Judges: A.M. AHMADI CJI, M.M. PUNCHHI, K. RAMASWAMY, S.P. BHARUCHA, S. SAGHIR AHMAD, K. VENKATASWAMI & K.T. THOMAS, JJ.

Date of Judgment: Mar 18, 1997

Administrative Tribunals

Held

(i) Present special leave under Article 136 is too costly to be real and effective – All decisions of Tribunals, whether created under Article 323 A or 323 B will be subject to the writ jurisdiction of High Court under Articles 226/27.

(ii) Appeal – No appeal from decision of the Tribunal will directly lie to Supreme Court but instead High Court may be moved under Article 226/227 and against judgment of High Court aggrieved party can move to Supreme Court under Article 136.

(iii) Jurisdictional Powers of Tribunals – Where vires of statutory provisions are questioned the Tribunals will have power to test the vires of subordinate legislation and rules but they cannot declare the Act under which they function as unconstitutional and so High Court may be approached directly – However Tribunal will be subject to scrutiny before a Division Bench but they will continue to be a court of first instance and litigants cannot move High Courts by overlooking jurisdiction of the Tribunal – These directions are prospective and so not disturb the procedure in relation to decision already rendered.

(iv) Administrative members to be chosen from those who have some back ground.

(v) All such Tribunals be under a single nodal ministry to oversee the working of these Tribunals – Supervisory authority to ensure maintenance of independence of members – Recommended putting all Tribunals under Legal Departments.

The foregoing analysis reveals that the Judges in Indira Gandhi’s case, all of whom had been party to Kesavananda Bharati’s case, did not adopt similar approaches to the concept of judicial review. While Beg, J. clearly expressed his view that judicial review was a part of the basic structure of the Constitution, Ray, CJ and Mathew, J. pointed out that unlike in the American context, judicial power had not been expressly vested in the judiciary by the Constitution of India. Khanna, J. did not express himself on this aspect, but in view of his emphatic observations in Kesavananda Bharati’s case, his views on the subject can be understood to have been made clear. Chandrachud, J. pointed out that the Constitution itself excludes judicial review in a number of matters and felt that in election matters, judicial review is not a necessary requirement.

We find that the various factors mentioned in the test evolved by Chandrachud, J. have already been considered by decisions of various Benches of this Court that have been referred to in the course of our analysis. From their conclusions, many of which have been extracted by us in toto, it appears that this Court has always considered the power of judicial review vested in the High Courts and in this Court under Articles 226 and 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts, to be integral to our constitutional scheme. While several judgments have made specific references to this aspect (Gajendragadhkar, CJ in Special Reference case, Beg, J. and Khanna, J. in Kesavananda Bharati’s case, Chandrachud, CJ and Bhagwati, J. in Minerva Mills, Chandrachud, CJ in Fertiliser Kamgar, K.N. Singh, J. in Delhi Judicial Service Association, etc.) the rest have made general observations highlighting the significance of this feature.

The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. 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 Article 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.

We also hold 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. 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.

However, it is important to emphasise that 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. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses clause (3) of Article 32 of the Constitution

We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. (Para 66, 78, 79, 80, 81 & 92)

Judges: A.M. AHMADI CJI, M.M. PUNCHHI, K. RAMASWAMY, S.P. BHARUCHA, S. SAGHIR AHMAD, K. VENKATASWAMI & K.T. THOMAS, JJ.

Date of Judgment: Mar 18, 1997

Judicial Review

Held power of judicial review over legislative action vested in High Courts under Articles 226/227 and in Supreme Court under Article 32 is integral and essential feature of the Constitution, being its basic structure and this power of High Court and Supreme Court to test the validity of legislation can never be ousted or excluded – Further held that power of judicial Superintendence over the decision of all courts and tribunals within their jurisdiction is part of basic structure – There is no Constitutional prohibition against these tribunals performing a supplemental roles as per Article 32 (3) – No bar on Tribunals exercising this power.

Judicial

Alternative institutional mechanisms – Need for creating alternative modes of dispute resolution in order to relieve High Courts of their burden while simultaneously providing specialised justice – Need for specialised Tax Court as recommended by Law Commission – Report of Malimath Committee and recommendations are not suited to our present content – Drastic measures necessary for elevating standards of Tribunals to stand up to constitutional scrutiny in the discharge of power of judicial review – However not correct to exclude from the Tribunals to adjudicate upon the vires of legislation.

It is important to realise that though the theory of alternative institutional mechanisms was propounded in Sampath Kumar’s case in respect of the Administrative Tribunals, the concept itself – that of creating alternative modes of dispute resolution which would relieve High Courts of their burden while simultaneously providing specialised justice – is not new. In fact, the issue of having a specialised Tax Court has been discussed for several decades; though the Report of the High Court Arrears Committee (1972) dismissed it as “ill-conceived”, the LCI, in its 115th Report (1986) revived the recommendation of setting up separate Central Tax Courts. Similarly, other Reports of the LCI have suggested the setting up of ‘Gram Nyayalayas’ (LCI, 114th Report (1986)), Industrial/Labour Tribunals (LCI, 122nd Report (1987)) and Education Tribunals (LCI, 123rd Report (1987)).

Unfortunately, we do not have the benefit of such a study. We may, however, advert to the Report of the Arrears Committee (1989-90), popularly known as the Malimath Committee Report, which has elaborately dealt with the aspect. The observations contained in the Report, to this extent they contain a review of the functioning of the Tribunals over a period of three years or so after their institution, will be useful for our purpose. Chapter VIII of the second volume of the Report, “Alternative Modes and Forums for Dispute Resolution”, deals with the issue at length. After forwarding its specific recommendations on the 3feasibility of setting up ‘Gram Nyayalayas’, Industrial Tribunals and Educational Tribunals, the Committee has dealt with the issue of Tribunals set up under Articles 323A and 323B of the Constitution.

Having expressed itself in this manner, the Malimath Committee specifically recommended that the theory of alternative institutional mechanisms be abandoned. Instead, it recommended that institutional changes be carried out within the High Courts, dividing them into separate divisions for different branches of law, as is being done in England. It stated that appointing more Judges to man the separate divisions while using the existing infrastructure would be a better way of remedying the problem of pendency in the High Courts.

In the years that have passed since the Report of the Malimath Committee was delivered, the pendency in the High Courts has substantially increased and we are of the view that its recommendation is not suited to our present context. That the various Tribunals have not performed upto 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 88, 89, 90 & 91)