L. CHANDRA KUMAR ETC. ETC. v. THE UNION OF INDIA AND ORS. ETC. ETC.

E The Judgment of the Court was delivered by

AH!'vlADI, CJI. The special leave petitions, civil appeals and writ petitions which together constitute the present batch of matters before us owe their origin to separate decisions of different High Courts and several F provisions in different enactments which have been made the subject of challenge. Between them, they raise several distinct questions of law; they have, however been grouped together as all of them involve the considera- tion of the following broad issues:

(1) Whether the power conferred upon Parliament or the State G 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, totally exclude the jurisdic- tion of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to H in clause (1) of Article 323A or with regard to all or any of

, L. CHANDRA KR. v. U.0.1. [AHMADI, C.J.] 1197

the matters specified in clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High A

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 com- B petence 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 c discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?

We shall confine ourselves to the larger issues raised in this batch of matters without adverting to the specific facts of each of the matters; we shall, however, sekctively refer to some of the impugned decisions and the provisions involved to the extent we find it necessary to do so in order to appreciate the policy- conflicts in, and to draw the parameters of, the controversy before us. The broad principles enunciated in this judgment will, at a later time, be applied by a Division Bench to resolve the disputes involved in each of the individual cases.

The present controversy has been referred to us by an order of a Division Bench of this Court, reported in [1995] 1 SCC 400, which con- cluded that the decision rendered by a five-Judge Constitution Bench of this Court in S.P. Sampath Kumar V. Union of llldia, (1987] 1 sec 124, needs to be comprehensively reconsidered. The order of the Division Bench, dated December 2, 1994, was rendered after it had considered the arguments in the first matter before us, C.A. No. 481 of 1989, where the challenge is to the validity of Section 5(6) of the Administrative Tribunals Act, 1985. After analysing the relevant constitutional provisions and the G circumstances which led to the decision in Sampath Kumar's case, the referring Bench reached the conclusion that on account of the divergent views expressed by this court in a series of cases decided after Sampath Kumar's case, the resulting situation warranted a "fresh look by a larger "Bench over all the issues adjudicated by this Court in Sampath Kumar's case including the question whether the Tribunal can at all have an Ad- H

1198 SUPREME COURT REPORTS (1997) 2 S.C.R.

A ministrative Member on its Bench, if it were to have the power of even deciding constitutional validity of a statute or (Article) 309 rule, as con- ceded in Chopra's case". The "post- Sampath Kumar cases" which caused the Division Bench to refer the present matter to us are as follows : J.B. Chopra v. Union of India, (1987)1 SCC 422; M.B. Majumdar v. Union of India, (1990) 4 SCC 501; Amuya Chandra Kalila v. Union of India~ (1991] B 1 SCC 181; R.K. Jain v. Union of India, (1993] 4 SCC 119 and Dr. Mahabal Ram v. Indian Council of Agricultural Research, [1994) 2 SCC 401.

Before we record the contentions of the learned counsel who ap- peared before us, we must set out the legal and historical background relevant to the present case. c Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from March 1,1977. It comprises two provisions, Articles 323A and 323B, which have, for the sake of convenience, been fully extracted hereunder : D PART XIVA TRIBUNALS

323-A. Administrative tribunals. -- 323-B. Tribunals for other (1) Parliament may, by law, maters. -- (1) The appropriate provide for the adjudication or Legislature may, by law, provide E trial by administrative Tribunals for the adjucation or trial by of disputes and complaints with tribunals of any disputes, respect to recruitment and complaints, or offences with conditions of service of persons respect to all or any of the appointed to public services and matters specified in clause (2} F posts in connection with the with respect to which such affairs of the Union or of any Legislature has power to make State or of any local or other laws. authority within the territory of India or under the control of the Government. of India or of any G corporation owned or controlled by the Government. (2) A law made under clause (1) (2) (2) The mattters referred may -- to in clause (1) are the following, namely : H

L CHANDRA KR. v. U.0.1. [AI-I~lADI, C.J.) 1199

(a) provide for the (a) levy, assessment, establishment, of an collection and administrative tribunal for enforcement of any tax; " , the union and a separate administrative tribunal for each State or for two or more States; (b) specifiy the jurisdiction, (b) foreign exchange, import powers (including the and export across customs powers to punish for frontiers; contempt) and authority which may be exercised by c each of the said tribunals; (c) provide for the procedure (c) industrial and labour (including provisions as to disputes; limitation and rules of evidence) to be followed by the said tribunals; (d) exclude the jurisdiction of all (d) land reforms by way of courts, except the jurisdiction acquisition by the State of of the Supreme Coillt under any estate as defined in Article 136, with respect to Article 31A or of any the disputes or complaints rights therein or the referred to in clause (I); extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way; F (e) provide for the transfer to (e) ceiling on urban property; each such administrative tribunal of any cases pending before any court or other authority immediately G before the establishment of such tribunal as would. have been within the jur~sdiction of such tribunal if the causes H

1200 SUPREME COURT REPORTS [1997] 2 S.C.R.

A of action on which such suits or proceedings are based had arisen after such establishment; (t) repeal or amend any order (t) elections to either House B made by the president of Parliament or the under clause (3) of Article House or either House of 3710; the Legislature of a State, but excluding the matters referred to in Article 329 and Article 329 A; c (g) contain such supplemental, (g) production, procurement, incidental and supply and distribution of consequential provisions foodstuffs (including (including provisions as to edible oilseeds and oils) fee) as Parliament may and such other goods as deem necessary for the the President may, by effective functioning of, and public notification, declare for the speedy disposal of to be essential goods for cases by, and the the purpose of this article enforcement of the orders and control of prices of of, such tribunals. such goods; (3) The provisions ofthis article (h) offences against laws with shall have effect respect to any of the notwithstanding anything in matters specified in sub- any other provision of this clauses (a) to (g) and fees Constitution or in any other in respect of any of those matters; law for the time being in force. (i) any matter incidental to any of the matters specified in sub-clauses G (a) to (h). (3) A law made under clause (1) may --

L. CHANDRA KR. v. U.O.I. [AHMADI, C.J.] 1201

(a) provide for the establishment of a hierarchy of tribunals; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals ; (c) provide for the procedure (including provisions as to limitation and rules of c evidence ) to be followed by the said tribunals ; (d) exclude the jurisdiction of · all courts except the jurisdiction of the Supreme D Court under Article 136 with respect to all or any of the matters failing .within the jurisdiction of the said tribunals; . E (e) provide for. the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;

1202 SUPREME COURTREPORTS (1997) 2 S.C.R.

A (t) contain such supplemental, incidental and consequential provis- ions (including provisions as to fees) as the approp- riate Legislature may B ., deem necessary for the effective functioning of, and for the speedy disposal of cases by, 'and the enforcement of the c orders of, such tribunals. (4) The provisions of this article shall have effect notwithstanding anything in any -- other provision of this D Constitution or in any other law for the time being in force.

Explanation. -- In this article, "appropriate legislature'', in relation to any matter, means E Parliament or, as the case may be, a State Legislature competent to make laws with

F respect to such matter in accorpance with the provisions of Part XI. - (Emphasis added) We may now examine the manner in which these constitutional provisions have been sought to be implemented, the problems that have consequently arisen, and the manner in which Courts have sought to G resolve them. Such an analysis will have to consider the working of the two provisions separately.

A1ticle 323 A '' H In pursuance of the pow~r conferred upon it by clause (1) of Article

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1203

323A of the Constitution, Parliament enacted the Administrative Tribunals A Act, 1985 (Act 13 of 1985) [hereinafter referred to as "the Act"]. The Statement of Objects and Reasons of the Act indicates that it was in the express terms of Article 323A of the Constitutiqn and was being enacted because a large number of cases relating to service matters were pending before various Courts; it was expected that "the setting up of such Ad- B ministrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of the various courts and thereby giving them more time to deal with other cases e>..lJeditiously but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances." c Pursuant to the provisions of the Act, the Central Administrative Tribunal, with five Benches, was established on November 1,1985. How- ever, even before the Tribunal had been established, several writ petitions had been filed in various High Courts as well as this Court challenging the · constitutional validity of Article 323A of the Constitution as also the provisions of the Act; the principal violation complai.ned of being the exclusion of the jurisdiction of this Court under Article 32 of the Constitu- tion and of that of the High Courts under Article 226 of the Constitution. Through an interim order dated October 31, 1985, reported as S.P. Sam- path Kumar v. Union of b1dia, (1985] 4 SCC 458, this Court directed the carrying out of certain measures with a view to ensuring the functioning of the Tribunal along constitutionally-sound principles. Pursuant to an under- taking given to this Court at the interim stage by the erstwhile Attorney General, An amending Act (Act 19 of 1986) was enacted.to bring about the changes prescribed in the aforesaid interim order. F When Sampath Kumar's case was finally heard, these changes had . already been incorporated in the body and text of the Act. The Court took the. view that most of the original grounds of challenge-which included a challenge to the constitutional validity of Article 323A - did not survive and restricted its focus to testing only the constitutional validity of the provision G of the Act. In its final decision, the Court held that though judicial review is a basic feature of the constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court. Using this theory of effective alternative H

1204 SUPREME COURT REPORTS [1997) 2 S.C.R.

A institutional mechanisms as its foundation, the Court proceeded to analyse the provisions of the Act in order to ascertain whether they passed con- stitutional muster. The Court came to the conclusion that the Act, as it stood al that time, did not measure up to the requirements of an effective substitute and, to that end,' suggested several amendments to the provisions · governing the form and content of the Tribunal. The suggested amend- B ments were given the force of law by an amending Act (Act 51 of 1987) after the conclusion of the case and the Act has since remained unaltered.

We may now analyse the scheme and the salient features of the Act as it stands at the present time, inclusive as it is of the changes suggested c in Sampath Kumar's case. The Act contains 37 Sections which are housed in five Chapters. Chapter I ("Preliminary") contains three Sections; Section 3 is the definition clause.

Chapter II ("Establishment of Tribunals and Benches thereof') con- tains Sections 4 to 13. Section 4 empowers the Central Government to establish: (1) a Central Administrative Tribunal with Benches at separate places; (2) aµ Administrative Tribunal for a State which makes a request in this behalf; and (3) a Joint Administrative Tribunal for two or more States which enter into an agreement for the purpose. Section 5 states that · each Tribunal shall consist of a chairman and such number of Vice- Chairmen and Judicial and Administrative Members as may be deemed necessary by the appropriate Government. Sub-section (2) of Section 5 requires every Bench to ordinarily consist of one Judicial Member and one Administrative :fy1 ember. Sub-section (6) of Section 5, which enables the Tribunal to function through Single Member Benches is the focus of some controversy, as \vill subsequently emerge, and is fully extracted as under : F "S: 5(6) - Nothwithstauding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member ·and exercise the jurisdiction powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify:

Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench

L. CHANDRA KR. v. V.O.I. [AHMADI, CJ.] 1205

consisting of two M_embers the case or matter may be transferred by the chairman or, as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit."

Section 6 deals with the qualifications of the personnel of the Tribunal. Since the first few sub-sections of Section 6 are n::quired to be considered subsequently, they may be reproduced hereunder: B "6. Qualifications for appointment of Chainnan, Vice- Chainnan or other Members. -

(1) A person shall not be qualified for appointment as the Chair- man unless he-- c (a) is, or has been, a Judge of a High Court; or

(b) has, for at least two years, held the office of Vice-Chairman;

(tj D (2) A person shall not be qualified for appointment as the Vice·· Chairman unless he--

(a) is, or has been, or is qualified to be a Judge of a High Court; or E

(b) has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or F (bb) has for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or G (c) has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member.

(3) A person shall not be qualified for appointment as a Judicial Member unless he-- H

' 1206 SUPREME COURT REPORTS {1997]2S.c.µ. A (a) is, or has been, or is qualified to be, a Judge of a High Court; or (b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years.

B (3-A) A person shall not be qualified for appointment as an Administrative Member unless he--

(a) has, for at least two years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a sca!e of pay c which is not less than that of an Additional Secretary to the Government of India; or

(b) has, for at least three years, held the post of a joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which D is not less than that of a Joint Secretary to the Government of India.

and shall, in either case, have adequate administrative experience."

Sub-sections (4), (5) and (6) of Section 6 provide that all the Mem- E bers of the Central Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative Tribunals shall be appointed by the President; in the case of the State Administrative Tribunals and the Joint Administrative Tribunals, the President is required to consult the con- cerned Governor(s). Sub-section (7) stipulates that the Chief Justice of F India is also to be consulted in the appointment of the Chairman, Vice- Chairman and Members of all Tribunals under the Act.

Section 8 prescribes the terms of office of the personnel of the Tribunal as being for a duration of five years from the date of entering into G office; there is also provision for reappointment for another term of five years. The maximum age limit permissible for the Chairman and the Vice-Chairman is 65 years and for that of any other Member is 62 years. Section 10 stipulates that the salaries, terms and conditions of all Members of the Tribunal are tp be determined by the central Government; such terms are, however, not to be varied to the disadvantage of any Member H after his appointment.

L CHANDRA KR v. U.O.l. [AHMADI, CJ.) 1207

Chapter III ("Jurisdiction, powers and authority of Tribunals") con- A sists of Sections 14 to 18. Sections 14, 15 and 16 deal with the jurisdiction, powers and authority of the Central Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative Tribunals respec- tively. These provisions make it clear that except for the jurisdiction of this Court, the Tribunals under the Act will possess the jurisdiction and powers B of every other Court in the country in respect of all service-related matters. Section 17 provides that the Tribunals under the Act will have the same powers in respect of contempt as are enjoyed by the High Courts.

Chapter IV ("Procedure") comprises Section 19 to 27. Section 21 specifies strict limitation periods and does not vest the Tribunals under the c Act with the power to condone delay.

Chapter V ("Miscellaneous"), the final Chapter of the Act, compris- ing Sections 28 to 37, vests the Tribunals under the Act wjth ancillary powers to aid them in the effective adjudication of disputes. Section 28, the "exclusions of Jurisdiction" clause reads as follows: D "28. Exclusion of Jwisdiction of courts.--On and from the date from which any jurisdiction, powers and authority bec0mes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any E Service or post, no court except--

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any F other corresponding law for the time being in force,

Shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters." G A facet which is of vital relevance to the controversy before us,- and consequently needs to be emphasised, is that Section 28, when originally enacted, was in the express terms of clause (2) (d) of Article 323A of the Constitution and the only exception made in it was in respect of the jurisdiction of this Court under Article 136 of the Constitution. However, H

1208 SUPREME COURT REPORTS [1997) 2S.C.R.

A before the final hearing in Sampath Kumar's case the provision was further amended to also save the jurisdiction of this Court under Article 32 of the Constitution; this aspect has been noted in the judgment of Mishra, J. in Sampath Kumar's case (at para 14). Since lhe Court in Sampath Kumar's case had restricted its focus to the provisions of the Act, it expressed itself to be satisfied with the position that the power of judicial review of the B Apex Court had not been tampered with by the provisions of the Act and did not venture to address the larger issue of whether clause (2)(d) of Article 323A of the Constitution also required a similar amendment.

Section 29 provides for the transfer to the Tribunals under the Act, C of all service matters pending in every existing fora before their estab- lishment. The only exception carved out is in respect of appeals pending before High Courts. Section 35 vests the Central Government with rule- making powers and Section 36 empowers the appropriate Government to make rules to implement the provisions of the Act and the matters specified in it. By virtue of Section 37, the rules made by the Central Government are required to be laid before Parliament and, in the case of rules made by State Governments, before the concerned State Legislature (s).

The Act and its provisions will be analysed in the course of this judgment. However, a preliminary appraisal of the framework of the Act would indicate that it was intended to provide a self- contained, almost wholly exclusive (the exceptions being specified in Section 28) forum for adjudication of all service related matters. The Tribunals created under the Act were intended to perform a substitutional role as opposed to - and this distinction is of crucial significance-a supplemental role with regard to the High Courts.

According to the information provided to us by Mr. K.N. Bhat, the learned Additional Solicitor General, apart from the Central Administra- tive Tribunal which was established on 1.11.1985, eight States have set up G State Administrative Tribunals, all of which are presently functioning. The States, along with the date of establishment of the particular State Ad- ministrative Tribunals, are as follows: Andhra Pradesh (1.11.1989), Himachal Pradesh (l.9.1986), Karnataka (6.10.1986), Madhya Pradesh (2.8.1988), Maharashtra (8.7.1989), Orissa (14.7.1986), Tamil Nadu H (12.12.1988) and west Bengal (16.1.1995).

I ~ L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.) 1209

We may now analyse the "post-Sampath Kumar cases" which find A mention in the order of the referring Bench. In J.B. Chopra's case, a division Bench of this Court has occasion to consider one of the specific questions that has now arisen for our consideration, viz., whether the Central Administrative Tribunal constituted under the Act has the authority and the jurisdiction to strike down a rule framed by the President B of India under the proviso to Article 309 of the Constitution as bei)1g violative of Articles 14 and 16(1) of the Constitution. When the matter came up before the Division Bench, the issue was still being considered by the constitution Bench in Sampath Kumar's case. The Division Bench, therefore, deferred its judgment till the final pronouncement of the decision in Sampath Kumar's case. Thereafter, it analysed the Constitution c Bench's decision to arrive at the conclusion that "the Administrative Tribunal being a substitute of the High Court had the necessary jurisdic- tion, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all question pertaining to the constitutional validity or otherwise of such laws as offending Article 14 and D 16(1) of the Constitution."

An aspect which needs to be emphasised is that the Constitution Bench in Sampath Kumar's case had not specifically addressed the issue whether the Tribunals under the Act would have the power to strike down statutory provisions or rules as being constitutionally invalid. However, the E Division Bench in J.B. Chopras' case felt that this proposition would follow as a direct and logical consequence of the reasoning employed in Sampath Kumar's ·case.

In M.B. Majumdar's case, a Division Bench of this Court had to confront the contention, based on the premise that in Sampath Kumar's case this Court had equated the Tribunals established under the Act with High Courts, that the Members of the Central Administrative Tribunals must be paid the same salaries as were payable to Judges of the High Court. The Court, after analysing the text of Article 323A of the Constitu- tion, the provisions of the Act, and the decision in Sampath Kumar's case, rejected the contention that the Tribunals were the equals of the High Courts in respect of their service conditions. The Court clarified that in Sampath Kumar's case, the Tribunals under the Act had been equated with High Courts only to the extent that the former \vere to act as substitutes for the latter in adjudicating service matters; the Tribunals could not, H

1210 SUPREME COURT REPORTS

A therefore, seek parity for all other purposes. [1997] 2 S.C.R.

In Amulya Chandra's case, a Division Bench of this Court had to consider the question whether a dispute before the central Administrative ' Tribunal could be decided by a single Administrative Member. The Court took note of sub-section (2) of Section 5 of the Act which, as we have seen, B stipulates that a Bench of a Tribunal under the Act should ordinarily consist of a Judicial Member and an Administrative Member, as also the relevant observations in Sampath Kumar's case, to conclude that under the scheme of Act, all cases should be heard by a Bench of two Members. It appears that the attention of the Court was not drawn towards sub-section c (6) of Section 5 which, as we have noticed, enables a single Member of a Tribunal under the Act to hear and decide cases.

The same issue arose for consideration before another Bench of this Court in Dr. Mahabal Ram's case. The Court took note of the decision in D Amulya Chandra's case and, since the vires of sub-section (6) of Section 5 of the Act was not under challenge, held that sub-sections (2) and (6) of Section 5 are to be harmoniously construed in the following manner (supra at p. 404) :

"...There is no doubt that what has been said iin Sampath Kumar's E case would require safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, be many cases before the Tribunal where very F often no constitutional issues or even legal points would be in- volved ...... We are prepared to safeguard the interests of claimants who go before the Tribunal by Holding that while allocating work to the Single Member - whether Judicial or administrative - in tem1s of sub-section (6), the Chainna11 should keep in view tlze nature of the /i.tigation and where questions of law a11d for i11terpretation of ' G constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest. of claimants by casting an obliga- tion on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their H opinion require to be heard by a bench of two Members. We would

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.) 1211

like to add that it would be open to either party appearing before A a Single Member to suggest to the Member hearing the matter that it should go lo a bench of two Members. The Member should ordinarily allow the matter to go to a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigation B may be before the Single Member for disposal..... The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out. the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section c (6) are rationalised."

In R.K Jain v. Union of India, [1993) 4 SCC 119, a Division Bench ~f this Court consisting of three of us (Ahmadi, CJI, Punchhi and Ramas- wamy, JJ.) had occasion to deal with complaints concerning the functioning of the Customs, Excise and Gold Control Appellate Tribunal, which was set up by exercising the power conferred by Article 3238. In his leading judgment, Ramaswamy, J. analysed the relevant constitutional provisions, the Decisions in Sampath Kumar, J.B. Chopra and M.B. Majumdar to hold that the Tribunals created under Articles 323A and 323B could not be held to be substitutes of High Courts for the purpose of exercising .iurisdiction under Articles 226 and 227 of the Constitution. Having had the benefit of more than five years' experience of the working of these alternative institu- tional mechanisms, anguish was expressed over their ineffectiveness in exercising the high power of judicial review. It was recorded that their perfprmance had left much to be desired. Thereafter, it was noted that the sole remedy provided, that of an appeal to this Court under Article 136 of the Constitution, had proved to be prohibitively costly while also being inconvenient on account of the distances involved. It was suggested that an expert body like the Law Commission of India should study the feasibility of providing an appeal to a Bench of two Judges of the concerned High Court from the orders of such Tribunals and also analyse the working of the Tribunals since their establishment, the possibility of inducting mem- bers of the Bar to man such Tribunals etc. It was hoped that recommen- dations of such an expert body would be immediately adopted by the Government of India and remedial steps would be initiated to overcome the difficulties faced by the Tribunals, mak,ing them capable of dispensing. effective, inexpensive and satisfactory jµstlce. H

1212 SUPREME COURT REPORTS [1997] 2 S.C.R.

A In a separate but concurring judgment, Ahmadi, J.(as he then was) speaking for himself and Punchhi, J., endorsed the recommendations in the following words:

11 ... (T)he time is ripe for taking stock of the working of the various

B Tribunals set up in the country after the insertion of Articles 323A and 323B in the Constitution. A sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law. An independent and impartial justice delivery system in which the litigating public has faith and confidence alone can deliver the goods. After the incorporation of these two articles, c Acts have been enacted whereunder tribunals have been con- stituted for dispensation of justice. Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have served the purpose and objectives for which they were constituted. Complaints have D been heard in regard to the functioning of other tribunals as well and it is time that a body like the Law Commission of India has a comprehensive look-in with a view to suggesting measures for their improved functioning. That body can also suggest changes in the different statutes and evolve a model on the basis whereof triBunals ·may be constituted or reconstituted with a view to ensuring greater E · ·independence. An intensive and extensive study needs to be un- dertaken by the Law Commission in regard to the constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality oftheir performance may improve. We ' strongly recommend to the Law Commission of India to undertake F such an exercise on priority basis. A copy· of this judgment may be forwarded by the Registrar of this Court to the Member Secretary of the Commission for immediate action."

During the hearing, we requested the learned Additional Solicitor G General of India, Mr. K.N. Bhat, to inform us of the measures undertaken to implement the directions issued by this Court in R.K. Jain's case. We were told that the Law Commission had in fact initiated a performance, analysis on the lines suggested in the judgment; however, when the Division Bench issued its order indicating that Sampath Kumar's case might have to be reviewed by a larger Bench, further progre"s on the study was halted.

L CHA.l'iDRAKR. v. U.O.J. [AHMADI, CJ.] 1213

We may _now apply ourselves to analysing the decision which has been impugned in one of the matters before us, C.A. No. 169 of 1994. The judgment, Sakinala Harinath and Others v. State of A.P., rendered by a full Bench of the Andhra Pradesh High Court, has declared Article 323A (2)( d) of the Constitution to be unconstitutional to the extent it empowers Parliament to exclude the jurisdiction of the High Courts under Article 226 of the Constitution; additionally, Section 28 of the Act has also been held to be unconstitutional to the extent it divests the High Courts of jurisdiction under Article 226 in relation lo service matters.

The Judgment of the Court, delivered by M.N. Rao, J. has in a elaborate manner, viewed the central issues before us against the backdrop of several landmark decisions delivered by Constitution Benches of this c Court as also the leading authorities in the comparative constitutional law. The judgment has embarked on a wide-ranging quest, extending to the American, Australian and British jurisdictions, to ascertain the true import of the concepts of 'judicial power', 'judicial review' and other related aspects. The judgment has also analysed a contention based on Article D 371D of the Constitution, but, since that aspect is not relevant to the main controversy before us, we shall avoid its discussion.

The Judgment of the Andhra Pradesh High Court has, after analys- ing various provisions of our Constitution, held that under our constitution- al scheme the Supreme Court and the High Courts are the sole repositories E of the power of judicial review. Such power, being inclusive of the power to pronounce upon the validity of statutes, actions taken and orders passed by individuals and bodies falling within the ambit of the impression "State" in Article 12 of the Constitution, has only been entrusted to the constitu- tional courts, i.e., the High Courts and this Court. For this proposition, support has been drawn from the rulings of this Court in Kesavananda F Bharati v. State of Kerala, [1973] 4 SCC 225, Special Reference No. 1 of 1964, [1965] 1 SCR 413; Indira Nehrn Gandhi v. Raj Narain, [1975] (Supp) SCC 1; Mine1va Mills Ltd. v. Union of India, [1980) 3 SCC 625, Kihoto Hollohan v. Zachillu and Othm, [1992) Supp. 2 SCC 651 and certain other decisions, all of which have been extensively analysed and profusely quoted from. G Analysing the decision in Sampath Kumar's case against this back- drop, it is noted that the theory of alternative institutional mechanisms established in Sampath Kumar's case is in defiance of the proposition laid down in Kesva11a11da Bharati's case, Special reference case and Indira Gandhi's case, that the Constitutional Courts alone are competent to H

1214 SUPREME COURT REPORTS (1997] 2 S.C.R.

A exercise the power of judicial review to pronounce upon the constitutional validity of statutory provisions and rules. The High Court, therefore, felt that the decision in Sampath Kumar's case, being per incwiam, was not binding upon it. The High Court also pointed out that, in any event, the issue of constitutionality of Article 323A (2) (d) was neither challenged nor upheld in Sampath Kumar's case and it could not be said to be an authority B on that aspect.

Thereafter, emphasising the importance of service matters which affect the functioning of civil servants, who are an integral part of a sound governmental system, the High Court held that service matters which c involve testing the constitutionality of provisions or rules, being matters of grave import, could not be left to be decided by statutorily created ad- judicatory bodies, which would be susceptible to executive influences and pressures. It was emphasised that in respect of constitutional Courts, the Framers of our Constitution had incorporated special prescriptions to ensure that they would be immune from precisely such pressures. The High Court also cited reasons for holding that the sole remedy provided, that of an appeal under Article 136 to this Court, was not capable of being a real safeguard. It was also pointed out that even the saving of the jurisdiction of this Court under Article 32 of the Constitution would not help improve matters. It was, therefore, concluded that although judicial power can be vested in a Court or Tribunal, the power of judicial review of the High Court under Article 226 could not be excluded even by a constitutional Amendment.

A1ticle 323B. F This provision of the Constitution empowers Parliament or the State Legislatures, as the case may be, to enact laws providing for the adjudica- tion or trial by Tribunals of disputes, complaints or offences with respect to a wide variety of matters which have been specified in the nine sub-' G clause of clause (2) of Article 3238. The matters specified cover a wide canvas including i11ter alia disputes relating to tax cases, foreign exchange matters, industrial and labour cases, ceiling on urban property, election to State Legislatures and Parliament, essential goods and their distribution, criminal offences etc. Clause (3) enables the concerned Legislature· to H provide for the establishment of a hierarchy of Tribunals and to lay down

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1215

their jurisdiction, the procedure to be followed by them in their function- A ing, etc. Sub- clause (d) of clause (3) empowers the concerned Legislature to exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136 of the Constitution, with respect to all or any of matters falling within the jurisdiction of the Tribunals. The constitutional provision, therefore, invests Parliament of the State Legisla- B tures, as the case may be, with powers to divest the traditional. courts of a considerable portion of their judicial work.

According to the information provided to us by Mr. K.N. Bhat, the learned Additional Solicitor General, until the present date, only four Tribunals have been created under Article 323B pursuant to legislations enacted by the Legislatures of three States. The first of these was the West Bengal Taxation Tribunal which was set up in 1989 under the West Bengal Taxation Tribunal Act, 1987. Similarly, the Rajasthan Taxation Tribunal was set up in 1995 under the Rajasthan Taxation Tribunal Act, 1995. The State of Tamil Nadu has set up two Tribunals by utilising the power conferred upon it by Article 323B. The first of these was the Tamil Nadu Land Reforms Special. Appellate Tribunal which was established on 1.11.1990 under the Tamil Nadu Land Reforms {Fixation of Ceiling of Land) Amendment Act, 1985 to deal with all matters relating to land reforms arising under the Tamil Nadu Land Reforms (Fixation of Ceiling onLand) Act, 1961. Later, the Tamil Nadu Taxation Special Tribunal was established on 22.12.1995 under the Tamil Nadu Taxation Special Tribunal Act, 1992 to deal with cases arising under the Tamil Nadu General Sales Tax Act and Additional Sales Tax Act.

Certain problems have arisen in the functioning of these Tribunals especially in respect of the manner in which they exclude the jurisdiction of their respective High Courts. This aspect can be illustrated by briefly adverting to the broad facts of two of the matters before us. C.A. No. 1532-33 of 1993 arises as a result of conflicting orders issued by the West Bengal Taxation Tribunal and the Calcutta High Court. Certain petitioners had challenged the constitutional validity of some provisions in three legislations enacted by the West Bengal Legislature before the west Bengal Taxation Tribunal. After examining the matter and hearing the arguments advanced in response by the State of West Bengal, the West Bengal Taxation Tribunal, by this order dated 9.10.1991, upheld the constitutional validity of the impugned provisions. Thereafter, the constitutional validity of the same provisions was challenged in a Writ Petition before the H

1216 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Calcutta High Court. During the proceedings, the State of West Bengal raised the preliminary objection that by virtue of Section 14 of the West Bengal Taxation Tribunal Act, 1987, which excluded the jurisdiction of the High Court in all matters within the jurisdiction of the Taxation Tribunal, the Calcutta High Court had. no jurisdiction to entertain the writ petition. However, the High Court proceeded with the case and, by its judgment B dated 25.11.1992, declared the impugned provisions to be unconstitutional. These developments have resulted in an interesting situation, where the same provisions have alternately been held to be constitutional and uncon- stitutional by two different fora, each of which considered itself to be empowered to exercise jurisdiction. c S.L.P. No. 17768of1991 seeks to challenge a judgment of the Madras High Court which has held that the establishment of the Tamil Nadu Land Reforms Special Appellate Tribunal will not affect the powers of the Madras High Court to issue writs. This decision is based on the reasoning that the Legislature of the State had no power" to infringe upon the High D Courts' powers to issue writs under Article 226 of the Constitution and to exercise its powers of superintendence under Article 227 of the Constitu- tion."

It is against these circumstances that we must now test the proposi- tions put forth for our consideration. E Submissions of Counsel.

We have heard the submission of several learned senior counsel who appeared for the various pmties before us. Mr. Rama Jois and Mr. Shanti Bhushan, through .their respective arguments, urged us to review the F decision in Sampath Kumar's case and to hold Article 323 A (2)(d) and Article 323 B (3)( d) of the constitution to be unconstitutional to the extent they allow Tribunals created under the Act to exclusively exercise the jurisdiction vested in the High Courts under Articles 226 and 227 of the Constitution. On the other hand, Mr. Bhat, the learned Additional Solicitor G General, Mr. P.P. Rao, and Mr. K.K. Venugopal urged us to uphold the validity cf the impugned constitutional provisions and to allow such Tribunals to exercise the jurisdiction under Article 226 of the Constitution. We have also heard arguments advanced on behalf of the Regis•.rar of the Principal Bench of the Central Admmistrative Tribunal, who was repre- sented before us by Mr. Kapil Sibal. Mr. V.R. Reddy, the learned Addi- H tional Solicitor General, urged us to set aside the judgment of the Madras

. LCHANDRAKR.v. u.oi[AHMADI,CJ.] 1217

High Court which affects the jurisdiction of the Tamil Na du Land Reforms A Special Appellate Tribunal. Certain other counsel have also addressed us in support of the main arguments advanced.

Mr. Rama .Jois, learned counsel for the petitioner in W.P. No. 918 of 1992, contended as follows: (i) Section 5(6) of the Act, insofar as it allows a single Member Bench of a Tribunal to test the constitutional B validity of a statutory provision, is unconstitutional. This proposition flows from the decisions in Sampath Kumar's case, Amulya chandra's case and Dr. Mahabal Ram's case. In Sampath Kuriiar's case, this court had required a Bench of a Tribunal to ordinarily consist of a Judicial Member and an Administrative Member. Consequently, Section 5 (2) of the Act was ac- cordingly amended; however, since Section 5(6) was not amended simul- c taneously, the import of the observations in Sampath Kumar's case can still be frustrated. Even if the theory of alternative institutional mechanisms adopted in Sampath Kumar's case, is presumed to be correct, Section 5(6) of the Act will have to be struck down as a single Member Bench of a Tribunal cannot be considered to be a substitute for the exercise of the power of a High Court urider Article 226 of the Constitution; (ii) The impugned provisions of the Constitution, insofar as they exclude the juris- diction of the Supreme Court and the High Courts under Articles 32 and 226 of the Con,stitution, are unconstitutional. This is for the reason that: (a) Parliament cannot, in exercise of .its constituent power, confer power on Parliament and the. State Legislatures to exclude the constitutional jurisdiction conferred on. the High Courts as the power to .amend the Constitution cannot be conferred on the Legislatures; and (b) These provisions violate the basic structure of the Constitution insofar as they take away the power of judicial review vested !n the Supreme Court under Article 32 of the Constitution and the High Courts under Articles 226 and F 227 of the Constitution. While the Tribunals constituted under Articles 323A and 323 B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them. This proposition flows fr.om Kesavananda Bharati's case where 1t was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review G of legislative action; (iii). While the provisions of the Act do not pui:port to affect the sacrosanct jurisdiction of the Supreme Court under Article 32 of the Constitution, Articles 323A and 323B allow Parliament to pursue such a course in future and are therefore liable to be struck down; (iv) The decision in Sampath Kumar's case was founded on the hope that the H

1218 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Tribunals would be effective substitutes for the High Courts. This position is neither factually nor legally correct on account of the following differen- ces between High Courts and these Tribunals: (a) High Courts enjoy vast powers as a consequence of their being Courts of record under Article 215 of the Constitution and also process the power to issue Certificates of Appeal under Articles 132 and 133 of the Constitution in cases where they B feel that a decision of this Court is required. This is not so for Tribunals; (b) the qualifications for appointment of a High Court Judge and the constitutional safeguards provided ensure the independence of and ef- ficiency of the Judges who man the High Courts. The conditions prescribed for Members of Tribunals are not comparable; (c) While the jurisdiction c of the High Courts is constitutionally protected, a Tribunal can be abolished by simply repealing its parent statute; (d) While the expenditure of the High Courts is charged to the Consolidated Fund of the States, the Tribunals are dependent upon the appropriate Government for the grant of funds for meeting their expenses. These and other differences give rise to a situation whereby the Tribunals, being deprived of constitutional safeguards for ensuring their independence, are incapable of being effec- tive substitutes for the High Courts; (v) Under our constitutional scheme, every High Court has, by virtue of Articles 226 and 227 of the Constitution, the power to issue prerogative writs or orders to all authorities and instrumentalities of the State which function within its territorial jurisdic- tion. In such a situation, no authority or Tribunal located within the territorial jurisdiction of a High Court can disregard the law declared by it. The impugned constitutional provisions, insofar as they seek to divest the High Courts of their power of superintendence over all Tribunals and Courts situated within their territorial jurisdiction, violate the basic struc- ture of the constitution, and (vi) In view of the afore-stated propositions, the decision in Sampath Kumar's case requires a comprehensive recon- F sideration.

Mr. Shanti Bhushan, appearing for the respondent in C.A. No. 1532-33/96, advanced the following submissions: (i) The 42nd Amendment to the Constitution, which introduced the impugned constitutional provisions, must be viewed in its historical context. The 42nd Amendment, being motivated by a feeling of distrust towards the est~blished judicial institutions, sought, in letter and spirit, to divest constitutional courts of their jurisdiction. The aim was to vest such constitutional jurisdiction in creatures whose establishment and functioning could be controlled by the executive. Such an intent is manifest in the plain words of Articles 323A

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1219

- 6 SCC 765, this Court has analysed the special constitutional status of Judges of High Courts and explained how they are distinct from other tiers of the judiciary. H

1220 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Mr. A.K. Ganguli, appearing for the second and third respondents in C.A. 1532-33/93, adopted the arguments of Mr. Rama Jois and Mr. Bhushan. In addition, he cited certain authorities in support of his conten- tion that the power to interpret the provisions of the Constitution is one which has been solely vested in the constitutional courts and cannot be bestowed on newly created quasi-judicial bodies which are susceptible to B executive influences.

Mr. K.N. Bhat, the learned Additional Solicitor General of India represented the Union of India which is a party in C.A. No ...169-o ~f 1994 and C.A. No. 481 of 1989. His contentions are as follows: (i) Clause 2(d) c of Article 323A and clause 3(d) of Article 323B ought not to be struck down on the ground that they exclude the jurisdiction of this Court under Article 32 of the Constitution. On account of several decisions of this Court, it is a well-established proposition in law that the jurisdiction of this Court under Article 32 of the <;:onstitution is sacrosanct and is indisputably D . a part of the basic structure of the Constitution. This position had. been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore, ·Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under · Article 32 was not intended to be affected. However, the jurisdiction of the High Courts under Article 226 was sought to be removed by creating alternative institutional mech~nisms. The theory enunciated in Sampath Kumar's case is based on sound considerations and does not require any reconsideration; (ii) Alternatively, Articles 323A and 323B do not seek to · exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective, the High Courts would still be vested with Constitutional powers to exer- cise corrective or supervisory jurisdiction; (iii) Since the decisions of this Court in Amuzva Chandra's case and Dr. Mahabal Ram's case had clearly held that matters relating to the vires of a provision are to. be dealt with by a Bench consisting of a judicial member and these guidelines will be followed in future, there is no vice of unconstitutionality in section 5 (6). G Mr. P.P. Rao, learned counsel for the State of Andhra Pradesh in C.A. No. 196 of 1994 and the connected special leave petitions, put forth the following submissions: (i) The matter before us involves a very serious, live problem which needs to be decided by adopting a pragmatic, coopera- H tive approach instead of by a dogmatic, adversarial process. It is a fact that

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1221

the Administrative Tribunals which were conceived· as substitutes for the A · High Courts have not lived upto expectations and have instead, proved to be inadequate and ineffective in several ways. However, the striking down of the impugned constitutional provisions would, instead of remedying the problem, contribute to its worsening. The problem of pendency in High Courts which has been a cause for concern for several decades, has been B focused upon by several expert committees and commissions. The problem of enormous increase in the volume of fresh institution coupled with massive areas has necessitated the seeking of realistic solutions in order to prevent High Courts from becomingjncapable of discharging their func- tions. The consistent view of these expert committees has been that the only manner in which the situation can be saved is by transferring some of c the jurisdiction of the High Courts, in relatively less important areas, to specially constituted Tribunals which would act as substitutes for the High Courts. In Sampath Kumar's case, this Court was required to test the constitutional validity of providing for such a substitute to the High Court in the shape of Administrative Tribunals. While deciding the case, this D Court had actually monitored the amendments to the Act by a series of orders and directions given from time to time as the learned Attorney General had offered to effect the necessary amendments to the Act to remove its defects. After the necessary amendments were made to the Act, this Court was satisfied that there was no need to strike. it down as it was E of the view that the Act would provide an effective alternative forum to the High Courts for the resolution of service disputes. However, the actual functioning of the Tribunals during the last decade has brought forth several deficiencies which need to be removed. The remedy, however, lies not in striking down the constitutional provisions involved but in allowing the Union of India to further amend the Act so as to ensure that the F Tribunals become effective alternative fora; (ii) Article 323A (2)(d) does not violate the basic structure of the Constitution. The relevant observa- tions in Keshvananda Bharati's case, show that there is an inherent distinc- tion between the individual provisions of the Constitution and the basic features of the Constitution. While the basic features of the Constitution G cannot be changed even by amending the Constitution each and every provision of the Constitution can be amended under Article 368. The majority judgments in Keshavananda· Bharti's case emphatically state that .-.. the concept of separation of powers is a basic feature of the Constitution. It, therefore, follows that the powers of judicial review, which is a necessary H

1222 SUPREME COURT REPORTS [1997) 2 S.C.R.

A concomitant of the independence of the judii:iary, is also a basic feature of our Constitution. However, it does not follow that specific provisions such as Article 32 or Article 226 are by themselves part of the basic structure of the Constitution. In this regard, the history of Article 31, which con- tained a Fundamental Right to Property and was shifted from Part III to Chapter IV of Part XII can be cited by way of an example; (iii) the essence B of the power of judicial review is that it must always remain with the judiciary and must not be surrendered to the executive or the legislature. Since the impugned provisions save the .iurisdiction of this Court under Article 136, thereby allowing the judiciary to have the final say in every form of adjudication, it cannot be said that the basic feature of judicial c review had been violated. The constitutional bar is against the conferment of judicial power on agencies outside the judiciary. However, if within the judicial set-up, arrangements are made in the interests of better administra- · lion of justice to limit the jurisdiction under Article 32 and 226 of the Constitution, there can be no grievance. In fact, it is in (he interest of better D administration of justice that this Court has developed a practice, even in the case of violation of Fundamental Rights, of requiring parties to ap- proach the concerned High Court under Article 226 instead of directly approaching this Court under Article 32 of the Constitution. This, undoub- tedly, has the effect of limiting the jurisdiction of this Court under Article E 32 but, being necessary for proper administration of justice, cannot be challenged as unconstitutional. Service matters, which are essentially in the nature of in-house disputes, being of lesser significance than those involving Fundamental Rights, can also be transferred to Tribunals on the same reasoning; (iv) By virtue of Order XXVII-A, Rule lA, ordinary civil courts are empowered to adjudicate upon questions of vires of statutory rules and instruments. In view of this situation, there is no constitutional difficulty in empowering Tribunals to have similar powers; (v) Alternatively, in case we are inclined to take view that the power of judicial review of legislative enactments cannot in any event be conferred on any other Court or Tribun'al,. we may use the doctrine of reading down to save the impugned constitutional provisions. So construed, the High Courts would continue to have jurisdiction to decide the vires of an Act even in the area of service

- disputes and would, therefore, perform a supervisory role over Tribunals in respect of matters involving constitutional questions.

H Mr. K.K. Venugopal, representing the State of West Bengal in S.L.P. No. 1063 of 1996 and C.A. No. 1532-33 of 1993, began by reiterating the

L. CHANDRA KR. v. U.O.l. [AHMADI, CJ.) 1223

contention that the impubrned provisions do not seek to oust the jurisdiction of this Court under Article 32 which is a basic feature of the Constitution. His alternative contention was that since the provisions do not exclude the

- jurisdiction under Article 136 an<l since Article 32 (3) itself conceives of the delegation of that jurisdiction, the ouster of the jurisdiction under Article 32 was not unconstitutional. This submission was based on the reasoning that, in the absence of any specific constitutional prohibition, both Parliament and the State legislatures were vested with sufficient legislation powers to effect changes in the original jurisdiction of this Court as well as the High Courts. He then stated that in the event that we are not inclined to hold in accordance with either of the earlier contentions, the doctrine of severability should be applied to excise the words "under c Article 136" from the provisions and thus save them from the vice of uncon.~titutionality. Thereafter, he endeavoured to impress upon us the jurisprudential soundness of the theory of alternative institutional mechanism propounded in Sampath Kumar's case. He theri contended that the shortfalls in the. constitution of the Tribunals, the selection of their personnel, the methods of their appointment etc. are a consequence of legislative and executive errors of judgment; these shortfalls cannot affect the constitutionality of the parent constitutional provisions. He concluded by declaring that these constitutional amendments were lawfully incor- porated by the representatives of the people in exercise of the constituent power of Parliament to remedy the existing problem of inefficacious delivery of justice in the High Courts. He counselled us not to substitute our decision for that of the policy evolved by Parliament in exercise of il~ constituent power and urged us to suggest suitable amendments, as was done in Sampath Kumar's case, to make up for the shortfalls in the existing system. F Mr. Kiran K. Shah, the petitioner in W.P. No. 789 of 1990, who is a lawyer practicing before the Ahmedabad Bench of the Central Administra- tive Tribunal, sought to apprise us of the practical problems· faced by advocates in presenting their cases before the Central Administrative Tribunal and of several complaints regarding the discharge of their official G duties. ·

The Registrar of the Principle Bench of the Central Administrative Tribunal, who is theSecond respondent in C.A. No. 481 of 1989, was represented before us by Mr. Kapil Sibal. The case of the Registrar is that H

1224 SUPREME COURT REPORTS (1997] 2 S.C.R. ~

A the Tribunals, as they are functioning at present, are not effective sub- stitutes for the High Courts. However, the creation of alternative institu- tional mechanisms is not violative of the basic structure so long as it is as efficacious as the constitutional courts. He urged us to discontinue the appointment of Administrative Members to the Tribunals and to ensure that the Members of the Tribunals have security of tenure, which is a B necessary pre-requisite for securing their independence.

- Mr. V.R. Reddy, the learned Additional Solicitor General of India, drew our attention towards the judgment of tlie Madras High Court which is the subject of challenge in S.L.P. No. 17768 of 1991. Mr. Reddy en- -- C deavoured to convince us that the amendments incorporated in the legis- lation which created the Tamil Nadu Land Reforms Special Appellate Tribunal after the decision in Sampath Kumar's case have the effect of making it a proper and effective substitute for the High Courts. He also submitted that the functioning of the Land Reforms Tribunal was essential D for the effective resolution of disputes in that branch of law.

We may now address the main issues which have been identified at the begining of this judgment as being central to the adjudication of this batch of matters. This would involve an appreciation of the power of judicial review and an understanding of the manner and the instrurnen- E talities through which it is to be exercised.

The underlying theme of the impugned judgment of the AP. High Court rendered by M.N. Rao, J. is that the power of judicial review is one of the basic features of our constitution and that aspect of the power which enables courts to test the constitutional validity of statutory provisions is vested exclusively in the constitutional courts, i.e., the High Courts and the Supreme Courts. In this Regard, the position in American Constitutional Law in respect of Courts created under Article ill of the Constitution of the United States has been analysed to state that the functions of Article ill Courts (constitutional courts) cannot be performed by other legislative courts estab- G mhed by the Congress in exercise of its legislative power. The following decisions of the U.S. Supreme Court have been cited for support : National Mugal Insurance Company of the District of Columbia v. Tidewater Transfer Company, 93 L. Ed. 1156 - 337 US 582, Thomas S. William v. United States, 77 L. Ed. 1372 - 289 US 553, Cooper v. Aaron 3 L. Ed. 2d 5 - 358 US 1, Northem Pipeline Constmction Company v. Marathon Pipeline Company lJ and United States, 73 L. Ed. 2d 59 - 458 US 50.

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.) 1225

We may briefly advert to the position in American Constitutional A · Law to the extent that it is relevant for our purpose. As pointed out by Henery J. Abraham, an acclaimed American Constitutional Law scholar, judicial review in the United States comprises the power of any cowt to hold unconstitutional and hence unenforceable any law, any official action based upon a law or any other action by a public official that it deems to be in conflict with the Basic Law, in the United States, its Constitution.(*) It B further stated that in the United States, the highly significant power of judicial review is possessed, theoretically, by every court of record, no matter how high or low on the judicial ladder. Though it occurs only infrequently, it is quite possible for a Judge in a low-level court of one of the 50 States to declare a Federal Law unconstitutional. c The position can be better appreciated by analysing the text of Section 1 of Article III of the U.S. Constitution :

"Article III, Section 1 - The Judicial Power of the United States, shall be vested in one Supreme Court, and in such infelior Cowts D as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." E (Emphasis added)

The judgment of the A.P. High Court is, therefore, correct in assert- ing that the judicial power vested in Article III of the U.S. Constitution can p only be exercised by courts created under Section 1 of Article III. However, what must be emphasised is the fact that Article III itself contemplates the conferment of such judicial power by the U.S. Congress upon inferior courts so long as the independence of the Judges is ensured in terms of Section 1 to Article Ill. The proposition which emerges from this analysis is that in tJie United States, though the concept of judicial power has been accorded'great constitutional protection, there is no blanket prohibition on the conferment of judicial power upon courts other than the U.S. Supreme Court. Hemy J. Abraham, The Judicial Process, 4th Edn .. Oxford University Press (1980) p. 296. H

1226 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Henry J. Abraham's definition of judicial review in the American context is, subject to a few modifications, equally applicable to concept as it is understood in Indian Constitutional Law. Broadly speaking, judicial review in India comprises three aspects : judicial review of legislative action, judicial .review of judicial decisions and judicial review of ad- B ministrative action. We·are, for the present, concerned only with under- standing the first two aspects.

In the modern era, the origin of the power of judicial review of legislative action may well be traced to the classic enunciation of the principle by Chief Justice Jolin Marshall of the U.S. Supreme Court in c Marbury v. Madison, 1 Cranch 137 (1803) :

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule ... A law repug-· D nant to the constitution is void ... Courts as well as other depart- ments are bound by that instrument."

(Emphasis added)

The assumption of such a power unto itself by the U.S. Supreme Court was E never seriously challenged and, over the years, it has exercised this power in numerous cases despite the persisting criticism that such an exercise was undemocratic. Indeed, when the Framers of our Constitution set about

F their monumental task, they were well aware that the principle that courts possess the power to invalidate duly enacted legislations had already acquired a history of nearly a century and a half. - At a very early stage of the history of this C_ourt, when it was doubted whether it was justified in exercising such a power, Patanjali Sastri, CJ, While emphatically laying down the foundation of the principle held as G follows (State of Madras v. V.G. Row, [1952) SCR 597 at G06) :

".. .[O Jur Constitution contains express provisions for judicial review of legislation as to its conjom1ity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted H "due process" clause in the Fifth and Fourteenth Amendments. If,

It L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.]

then, the courts, in this country face up to such important and none 1227

A too easy task, it is not out of any desire to tilt at legislative authority in a crusader's sprit, but in discharge of a duty plainly laid upo11 them by the constitution. This is especially true as regards .the "fundamental rights", as to which this Courts has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to detennine finally the constitutionality of an impugned statute."

(Emphasis added)

Over the years, this Court has had many an opportunity to express its views on the power of judicial review of legislative action. What follows is an analysis of the leading pronouncements on the issue.

While delivering a separate but concur.ring judgment in the five- Judge Constitution Bench Decision in Bidi Supply Co. v. The Union of India and Orl:., [1956] SCR 267 at 284, Il_ose, J. made the following observations which are apposite to the Present c\mtext:

"The heart and core of democracy lies in the judicial process, and that means independent and fearless judges free frum executive control brought up in judicial traditions and training to judicial ways of working and thinking. The main bulwarks of liberty of freedom lie there and it is clear to me that uncontrolled powers of discrimination in matters that seriously affect the lives and properties of people cannot be left to executive or quasi executive bodies even if they exercise quasi judicial functions because they are then invested with an authority that even Parliament does not possess. Under the F Constitution, Acts, of Parliament are subjected to judicial review particularly when they are said to infringe fundamental rights, therefore, if under the Constitution Parliament itself has not un- controlled freedom, of action, it is evident that it cannot invest lesser authorities with that power.'' G Special Reference No, 1 of 1964, was a case where a seven-Judge Constitution Bench of this f:ourt had to express itself on the thorny issue of Parliamentary privileges. While doing so, the Court was required to consider the manner in which our Constitution has envisaged a balance of power between the three wings of Government and it was in this context H I