AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 162

4.3. Observations of the Constitution Bench of the Supreme Court in L. Chandra Kumar v. Union of India.-

The seven-Judge Constitution Bench of the Supreme Court has since delivered its judgment in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. The unanimous opinion of the Court has been delivered by A.M. Ahmadi, C.J. The essential features of the judgment are the following:-

(a) Clause 2(d) of Article 323A and clause 3(d) of Article 323B of the Constitution of India to the extent they provide for excluding the jurisdiction of the High Courts and the Supreme Court under Articles 226 and 227 and Article 136 respectively are un-constitutional on the ground that they violate the basic structure of the Constitution.

Judicial review conferred upon the High Courts and the Supreme Court by the aforesaid Articles, it has been held, is a basic feature of the Constitution and is not amenable to amendment, and since the 42nd Amendment Act of the Constitution which introduced the aforesaid Articles is a post-Bharati enactment, it is invalid and unenforceable in so far as it violates the said basic feature of the Constitution.

Section 28 of the Administrative Tribunals Act, 1985 and other clauses in any other enactment providing for excluding the power of judicial review of the High Courts and the Supreme Court, it has been held, is equally void and ineffective.

(b) While the 'power of judicial review' of the High Courts and the Supreme Court cannot be taken away, it is open to the legislature to create courts and tribunals and entrust them with judicial powers but such powers can only be supplementary to the powers conferred upon the High Courts and the Supreme Court by Articles 226 and 227 and Article 32 of the Constitution. The tribunals created under the aforesaid Articles, of course, are competent to pronounce upon the constitutional validity of statutory provisions and rules, with this exception that they cannot examine or pronounce upon the validity of the provisions of the enactment under which they are created.

(c) The decisions of the Administrative Tribunals created under Article 323A and the Administrative Tribunals Act, 1985 shall be subject to scrutiny by a Division Bench of the High Court within whose jurisdiction the relevant tribunal is located. The tribunals will continue to act as courts of first instance and it shall not be open to the parties to approach the High Court directly in the matters relating to their conditions of service except where the constitutionality of any of the provisions of the very enactment under which the particular tribunal is constituted, is questioned.

(d) The concept of judicial and quasi-judicial tribunals has a sound basis, though it may be that the tribunals constituted under various enactments have not come up to the expectations. The remedy is not in abolishing them but in improving them so that they become effective instruments of the justice delivery system.

(e) The provision for appointment of administrative members in the Administrative Tribunals Act, 1985 cannot be said to be wrong in principle. On the contrary, the administrative members do provide a certain input and expertise which contributes to, and is conducive of, an effective, just and balanced decision by the tribunal.

(f) No appeal shall lie to the Supreme Court against the decisions of the Administrative Tribunals directly. The parties must approach the Division Bench of the High Court concerned. From the decision of the High Court, of course, a party can approach the Supreme Court under Article 136 of the Constitution, if he is so advised.

(g) It is necessary that an independent agency for the administration of all the tribunals constituted under Article 323A and 323B be set up. All such tribunals should be placed under a single nodal agency which will be in a position to supervise the working of these tribunals. Until creation of such a central Independent agency, the Ministry of Law should supervise the working of these tribunals. The Ministry of Law may, however, appoint an independent supervisory body to oversee the working of these tribunals.

(h) So far as the inter-play of sub-section (2) and (6) of section 5 is concerned, the position is that a single-member of an administrative tribunal shall not be entitled to decide a question involving the interpretation of a statutory provision or, rule in relation to the Constitution. All matters involving such questions shall be placed before a Bench of at least two-members, one of them shall be a judicial member.

4.4. Other relevant observations made in L. Chandra Kumar v Union of India, (1997) 3 SCC 261 are as follows:

(i) The power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution constituting a part of its basic structure. Ordinarily the power of High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

The power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdiction is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation is equally to be avoided.

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 and the Supreme Court under Article 226/227 and 32 of the Constitution are unconstitutional.

Section 28 of the Administrative Tribunals Act, 1985 and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of Articles 323A and 323B are, to the same extent, unconstitutional.

(ii) There are pressing reasons why the conferment of such a power of judicial review of administrative actions be preserved. When the framers of our Constitution bestowed the powers of judicial review of legislative action upon the High Courts and the Supreme Court they ensured that other constitutional safeguards were created to assist them in effectively discharging this onerous burden. The expectation was that this power would be required to be used only occasionally.

However, in the five decades that have ensued since Independence, the quantity of litigation before the High Courts has exploded in an unprecedented manner. The decision in Sampath Kumar's case was rendered against such a backdrop. We are conscious of the fact that when a Constitution Bench of this Court in Sampath Kumar's case adopted the theory of alternative institutional mechanisms, it was attempting to remedy an alarming practical situation and the approach selected by it appeared to be most appropriate to meet the exigencies of the time.

The various Tribunals have not performed up to the expectations is a self-evident and widely acknowledged truth. However to draw an inference that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. The reasons for which the Tribunals were constituted still persist; indeed, those reasons have become even more pronounced in our times.

We have already indicated that our constitutional scheme permits the setting up of such Tribunals. However, drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them.

"[Para 78. 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.]"

Though the subordinate judiciary or tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court there is no constitutional prohibition against their performing a supplemental as opposed to a substitutional role in this respect:

The Tribunals are competent to hear matters where the vires of statutory provisions are questioned, they cannot act as substitutes for the High Courts and the Supreme Court. 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.

This power of the Tribunals will be subject to one important exception that the Tribunals shall not entertain any question regarding the vires of their parent statutes. The High Court concerned 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.

The Tribunals will continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. The litigants have to directly approach firstly the Tribunals even in cases where the vires of statutory legislations (except where the legislation which creates the particular Tribunals) is challenged.

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.

The decision in L. Chandra Kumar will come into effect prospectively.

No appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to more the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party can move the Supreme Court under Article 136 of the Constitution. Regarding the need for appointment of Administrative members, the Supreme Court held:

"95. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. In the case of Administrative Tribunals, it has been pointed out that the Administrative Members who have been appointed have little or no experience in adjudicating such disputes; the Malimath Committee has noted that at times IPS Officers have been appointed to these Tribunals.

It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenures. For these reasons, it has been urged that the appointment of Administrative members to Administrative Tribunals be stopped. We find it difficult to accept such a contention.

It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grassroot experience would best serve this purpose.

To hold that the Tribunal should consist only of Judicial Members would attack the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that Administrative members are chosen from amongst those who have some background to deal with such cases."

(iii) The Supreme Court emphasised the need for changes in respect of appointment to Tribunals and supervision of their functioning by an Independent body or authority. It held:

"96. The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration.

We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set up it is desirable that all such Tribunals should be as far as possible under a single nodal ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry', in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals.

This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunals, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises there can be separate umbrella organisations at the Central and the State levels.

Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out."

(Emphasis supplied)

The Supreme Court felt that these suggestions should be considered in detail by those entrusted with the duty of formulating the policy in this respect. It couched:

"97. The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of expert bodies like the LCI and the Malimath Committee in this regard.

We, therefore, recommend that the Union of India initiate action in this behalf and after consulting all concerned, place all these Tribunals under one single nodal department, preferably the Legal Department."

(Emphasis supplied)

(iv) The Supreme Court upheld the provision under section 5(c) of the Administrative Tribunals Act as valid, since where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Members Bench of the Administrative Tribunal, the proviso to section 5(c) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or Bench which does not consist of a Judicial Member.



Review of functioning of Central Administrative Tribunal - Customs, Excise and Gold (Control) Appellate Tribunal and Income-Tax Appellate Tribunal Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys