Vs.

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)