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

1228 SUPREME COURT REPORTS [1997) 2 S.C.R.

A that Gajendragadkar, CJ made the following observations:

"... [W]hether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the constitution has entmsted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamen- B tal rights of the citizens. When a statute is challenged Oil the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed Oil fundamental rights, it is for the courts to detemiine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are c conferred legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question D as to whether legislative authority has been exceeded or fundamen- tal rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country."

E (Emphasis added)

It is interesting to note that the origins of the power of judicial review of legislative action have not been attributed to one source alone. While Sastri, C.J. found the power mentioned expressly .in the text of the Con- stitution, Gajendragadkar, CJ. preferred to trace it to the manner in which the constitution has separated powers between the three wings of Govern- ment.

In Kesvananda Bharati's case, a 13-Judge Constitution Bench, by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend to Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or to destroy its basic structure. The identification of the features which constitute the basic structure of our Constitution has been the subject-matter of great debate in Indian Constitutional Law. The difficulty is compounded by the fact that even the judgments for the majority are not unanimously agreed on this

L. CHANDRA KR. v. u.o.r. [AHMADI, C.J.] 1229

aspect. [There were five judgments for the majority, delivered by Sikri, C.J ., A Shelat & Grover, JJ. Hegde & Mukherjee, JJ. Jaganmohan Reddy, J. and Khanna, J. While Khanna, J. did not attempt to catalogue the basic features, the identification of the basic features by the other Judges are specified in the following paragraphs of the Court's judgments : Sikri, C.J. (para 292), Shelat and Grover, JJ. (para 582), Hegde and Mukherjee, JJ. B (paras 632, 661) and Jaganmohan Reddy, J. (paras 1159, 1161)]. The aspect of judicial review does not find elaborate mention in all the majority judgments. Khanna, J. did, however, squarely address the issue (at para 1529) :

"... The power of judicial review is, however, confined not merely c to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four corners of the legis- lative lists earmarked for them; the cowts also deal with the question as to whether the laws are made in conjonnity with and not in violation of the other provisions of the Constitution ... As long as D some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not con- travened ... Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts E and the Supreme Cowt to decide about the constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions." F

(Emphasis added)

Shelat & Grover, JJ., while reaching the same conclusion in respect of Articles 32& 226, however, adopted a different approach to the issue (at para ~77) : G

"There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exer- H

1230 SUPREME COURT REPORTS [1997] 2 S.C.R.

A cising and discharging powers and functions entrusted to them. Though the constitution does not lay down the principle of separa- tion of powers in all its rigidity as is the case in the United States Constitution but it envisages such a separation to a degree as was found in Ranasinghe's case (supra). The judicial review provided B e.xpressly in our constitution by means of Articles 226 and 32 is one uf the features upon which hinges the system of checks and balances."

(Emphasis added)

ln Indira Nehru Gandhi v. Raj Narain, five-Judge Constitution Bench c had to, i1:ter alia, test the Constitutional validity of provisions which ousted the jurisdiction of all Courts including the Supreme Court, in election matters. Consequently, the Court was required to express its opinion on the concept of judicial n;view. Though all five Judges delivered concurring judgmeuts to strike down the offending provision, their views on the issue of judicial review are replete with variations. Ray, C.J ., was of the view that the concept of judicial review, while a distinctive feature of American Constitutional Law, is not founded on any specific Article in our Constitution. He observed that judicial review can and has ·J;ieen excluded in several matters; in election matters, judicial review is not a compulsion. He, however, held that our Constitu- tion recognises a division of the three main functions of Government and that judicial power, which is vested in the judiciary cannot be passed to or shared by the Exec~tive or the Legislature. (Paras 32, 43, 46, 52). Khanna, J. took the view that it is not necessary, within a democr:itic set up, that disputes relating to the validity of elections be settled by Courts of Law; he, however, felt that even so the legislature could not be. permitted to declare that the validity of a particular election would not be challenged before any forum and would be valid despite the existence of disputes. (Para 207). Mathew, J. held that whereas in the United States of America and in Australia, the judicial power is vested exclusively in Courts, there is no such exclusive vesting of judicial power in the Supreme Court of India and the Courts subor- dinate to it. Therefore, the Parliament could, by passing a law within its competence, vest judicial power in any authority for deciding a dispute. (Paras 322 and 323). Beg, J. held that the power of Courts to test the legality of ordinary laws and constitutional amendments against the

L. CHANDRA KR. v. U.0.1. [AHMADI, C.J.] 1231

norms laid down in the Constitution flows from the 'supremacy of the A Constitution' which is a basic feature of the Constitution. (Para 622). Chandrachud, J. felt that the contention that judicial review is a part of the basic structure and that any attempt to exclude the jurisdiction of courts in respect of election matters was unconstitutional, was too broadly stated. He pointed out that the Constitution, as originally enacted, expressly B excluded judicial review in a large number of important. matters. The examples of Articles 136(2) and 226(4) [exclusion of review in laws relating to armed forces), Article 262(2) [exclusion of review in river disputes] Article 103(1) [exclusion of review in disqualification of Members of Parliament), Article 329(a) [exclusion of review in laws relating to delimita- tion of constituencies and related matters], were cited for support. Based c on this analysis, Chandrachud, J. came to the conclusion that since the Constitution, as originally enacted, did not consider that judicial power must intervene in the interests of purity of elections, judicial review cannot be considered to be a part of the basic structure in so far as legislative elections are concerned. D

The foregoing analysis reveals that the Ji.idges 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.

In Minerva Mills v. Union of India, a five-Judge Constitution Bench G of this Court had to consider the validity of certain provisions of the Constitution (42nd Amendment) Act, 1976 which" inter alia, excluded judicial review. The judgment for the majority, delivered by Chandrachud, CJ for four Judges, contained the following observations (at p. 644, para 21): H

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A " ... Our Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. lt is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies B are as writ in water. A controlled Constitution will then become uncontrolled."

(Emphasis supplied)

The majority judgment held the impugned provisions to be uncon- stitutional. While giving reasons in support, Chandrachud, CJ stated as follows :

" .... It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from other basic dissimilarities, Article 31-C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of clauses (2) to (6) of Article 19. Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law."

It may, however, be noted that the majority in Minerva Mills did not -- F hold that the concept of judicial review was, by itself, part of the basic structure of the Constitution. The judgment of Chandrachud, CJ in the Mine1va Mill's case must be viewed in the. context of his judgment in Indira Gandhi's case where he had stated that the Constitution, as originally enacted, excluded judicial review in several important matters. - G In his minority judgment in Minerva Mill's case, Bhagwati, J. held as follows:

" ...The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent H machinery is the judiciary which is vested with the power of

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

judicial review to determine the legality of executive action and 1233

A the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature.within the limits of the power conferred upon them by the Constitution. 77iis power of judicial review is conferred on the judiciary by Articles B 32 and 226 of the Constitution ..... 17ie judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. C It is for the judiciary to uphold the constitutional values and

- to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and D the law''. The power of judicial review is an integral pa1t of our constitutional system the power of judicial review..... is unques- tionably....part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective altemative institutional mechanisms or al7angements for judicial review cannot be made by Parliament." E

(Emphasis added)

The A.P. High Court has, through the judgment of M.N. Rao, J., pointed out that the theory of alternative institutional mechanisms enun- F dated by Bhagwati, J. in his minority judgment in Minerva Mill's case was . not supported by or even mentioned in the majority judgment. In fact, such a theory finds no prior mention in the earlier decisions of this Court and, in the opinion of the AP. High Court, did not represent the correct legal position. It is to be noted that in Sampath Kumar's case, both Bhagwati, CJ and Misra, J. in their separate judgment have relied on the observations G in the minority judgment of Bhagwati, J. in Minerva Mill's case to lay the foundation of the theory of alternative institutional mechanisms.

We may, at this stage, take note of the decision in Fertiliser Corpora- tion Kamgar Union V. Union of India, (1981) 1 sec 568, where H

1234 SUPREME COURT REPORTS [1997) 2 S.C.R.

A Chandrachud, CJ appears to have somewhat revised the view adopted by him in Indira Gandhi's case. In that case, speaking for the majority, Chandrachud, CJ held that "the jurisdiction conferred on the Supreme Court by Article 32 is an important and integral part of the basic structure of the Constitution." (at para 11). B In Kihoto Hollohan v. Zachillu & Ors., a five-Judge Constitution Bench had to, inter alia, consider the validity of Paragraph 7 of the Tenth Schedule to. the Constitution which excluded judicial review. The judgment for the minority, delivered by Verma, J. struck down the provision on the ground that it violated the rule of law which is a basic feature of the c Constitution requiring that decisions be subject to judicial review by an independent outside authority. (Paras 181-182). Though the majority judg- ment delivered by Venkatachaliah, J. also struck down the offending provision, the reasoning employed was different. The judgment for ·the majority contains an observation to the effect that, in the opinion of the - D judges in the majority, it was not necessary for them to express themselves on the question whether judicial review is part of the basic structure of the Constitution. (Para 120).

We may now analyse certain other authorities for the proposition that the jurisdiction conferred upon the High Courts and the Supreme- E Court under Article 226 and 32 of the Constitution respectively, is part of the basic structure of the Constitution. While expressing his views on the significance of draft Article 25, which corresponds to the present Article 32 of the Constitution, Dr. B.R. Ambcdkar, the Chairman of the Drafting Committee of the Constituent Assembly stated as follows F (CAD, Vol. VII, p. 953) :

"If I was asked to name any particular Article in this Constitution as the most imporlant - an Article without which this Constitution would be a nullity--I could not refer to any other Article except -- this one. It is the very soul of the Constitution and the very hearl of it and I am glad that the House has realised its importance."

(Emphasis added)

This statement of Dr. Ambedkar has been specifically reiterated in several judgments of this Court to emphasise the unique significance

L. CHANDRA KR.. v. U.0.1. [AHMADI, CJ.] 1235

attributed to Article 32 in our constitutional scheme. [See for instance, A ·Khanna, J. in Kesava11a11da Bharati's case (p. 818), Bhagwati, J. in Minerva - Mills (p. 678), Chandrachud, CJ Fertiliser Kamgar (para 11), R. Misra, J. in Sampatlt Kumar (p. 137)].

In the Special Reference Case, While addressing this issue, B Gajendragadhkar, CJ stated as follows (supra at pp. 493- 494):

"If the power of the High Courts under An. 226 and the authority of this Court under An. 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necesswily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case." E (Emphasis added)

To express our opinion on the issue whether the power of judicial review vested in the High Courts and into the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, F we must first attempt to understand what constitutes the basic structure of the Constitution. The Doctrine of basic structure was evolved in Kesva11a11- da Bharati's case. However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in G the judgments of Shelat & Grover, JJ., Hegde & Mukherjee, JJ. and Jaganmohan Reddy, J,., there are specific observations to the effect that their list of essential features comprising the basic structure of the Con- stitution are illustrative and are not intended to be exhaustive. In Indira Gandhi's case, Chandrachud, J. held that the proper approach for a Judge H

1236 SUPREME COURT REPORTS [1997) 2S.C.R.

A who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the B country. (supra at pp. 751-752). This approach was specifically adopted by Bhagwati, J. in Minerva Mill's case (supra at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law.

We find that the. various factors mentioned in the test evolved by Chandiachud, J. have already been considered by decisions of various c 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 D 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 Bharti's case, Chandrachu<l, 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 highlight- E ing the significance of this feature.

The legitimacy of the power of Courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such F 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 secur-

G ing 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 # See Chapter VII, HThe Judicial)' and the Social Revolution" in Granville Austen, The Indian Constitution: Cornerstone of a Nation Oxford University Pft'ss, 1972; the chapter includes exhaustive reforences to the relevant preparatory works and dehates in the Constituent Assembly. H

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1237

Court, it also contains elaborate provisions dealing with the tenure, salaries, A 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 uphold- B ing 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 constitu- tional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals c do not fall foul of strict standards of legal correctness and judicial inde- pendence. 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 ordi- nary legislations. Consequently, Judges of the latter category can nevei" be D considered full and effective substitutes for the superior judiciary in dis- charging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in .this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, con- stituting part of its basic structure. Ordinarily, therefore, the power of E 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 F 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 G judiciary or Tribunals created under ordinary legislations cannot exer- • cise 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 H

1238 SUPREME COURT REPORTS (1997) 2 S.C.R.

A \\~thinthe constitutional scheme becomes evident when one analyses clause (3) of Article 32 of the Constitution which reads as under:

"32. Remedies for enforcement of 1ights conferred by this Part.--(l) --- B (2) ...

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other cowt to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)."

(Emphasis supplied)

• If the power under Article 32 of the Constitution, which has been described as the "heart" and "soul" of the Constitution, can be additionally conferred upon "any other court", there is no reason why the same situation cannot subsist in respect of the jurisdiction con- ferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 E and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals. created under the Act or upon Tribunals created under Article 323B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 232A and 323B, both F Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by G Parliament and the State Legislatures for this purpose.

There are pressing reasons why we are anxious to preserve the conferment of such a power on these Tribunals. 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

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1239

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. B 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. Nearly a decade.later, we are now in a position to review the theoretical and practical results that have arisen c as a consequence of the adoption of such an approach.

We must, at this stage, focus upon the factual position which occasioned the adoption of the theory of alternative institutional mechanisms in Sampath Kumar's case. In his leading judgment, R. Misra, D J. refers to the fact that since independence, the population explosion and the increase in litigation had greatly increased the burden of pendency in the High Courts. Reference was made to studies conducted towards reliev- ing the High Courts of their increased foad. In this regard, the recommen- dations of the Shah Committee for setting up independent Tribunals as E also the suggestio!l' of the Administrative Reforms Commission that Civil Service Tribunals be set up, were noted. Reference was: also made to the decision in KK Dutta v. Union of India, (1980) 4 SCC 38, where this Court had, while emphasising the need for speedy resolution of service disputes, proposed the establishment of Service Tribunals. F

The problem of clearing the backlogs of High Courts, which has reached colossal proportions in our times is, nevertheless, one that has been the focus of study for close to a half century. Over time, several Expert Committees and Commissions have analysed the intricacies in- G volved and have made suggestions, not all of which have been consistent. Of the several studies that have been conducted in this regard, as many as twelve have been undertaken by the Law Commission of India (hereinafter referred to as "the LCI"") or similar high level Committees appointed by the Central Government, and are particularly noteworthy.(***) H

1240 SUPREME COURT REPORTS [1997] 2 S.C.R. ~ ,_ A An appraisal of the daunting task which confronts the High Courts can be made by referring to the assessment undertaken by the LCI in its 124th Report which was released sometime after the judgment in Sampatii Kumar's case. The Report was delivered in 1988, nine years ago, and some - changes have occurred since, but the broad p"'rspective which emerges is still, by and large, true: · B

c " ... The High Courts enjoy civil as well as criminal, ordinary as well as extraordinary, and general as well as special jurisdiction. The source of the jurisdiction is the Constitution and the various statutes as well as letters patent and other instruments constituting -- the High Courts. The High Courts in the country enjoy an original jurisdiction in respect of testamentary, matrimonial and guardian- ship matters. Original jurisdiction is conferred oil the High Courts under the Representation of the People Act, 1951, Companies Act, 1956, and several other special statutes. The High Courts, being courts of record, have the power to punish for its contempt as well as contempt of its subordinate courts. The High Courts enjoy extraordinary jurisdiction under articles 226 and 227 of the Con- stitution enabling it to issue prerogative writs, such as, the one in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Over and above this, the High Courts of Bombay, Calcutta, Delhi, Himachal Pradesh, Jammu and Kashmir and Madras also exercise ordinary original civil jurisdiction. The High Courts also enjoy advisory jurisdiction, as evidenced by section 256 of the Indian Companies Act, 1956, section 27 of the Wealth Tax Act, 1957, section 26 of Gift Tax Act, 1958, and section 18 of F Companies (Profits) Surtax Act, 1964. Similarly, there are parallel provisions conferring advisory jurisdiction on the High Courts, such as section 130 of Customs Act, 1962, and section 354 of (''')Report of the High Court Arrears Committee 1949; LC!, 14th Report on Reform of Judicial Administration (1958); LC!, 27th Report on Code of Civil Procedure, 1908 G (1964); LC!, 41st Report on Code of Criminal Procedure, 1898 (1969); LCI, 54th Report of Code of Civil Procedure, 1908 (1973); LCI, 57th Report on Structure and Jurisdiction of the Higher Judiciary (1974); Report of High Court Arrears Committee, 1972; LCI, 79th Report on Delay and Arrears in High Courts and other Appellate Courts (1979); LCI, 99th Report on Oral Arguments and Written Arguments in the Higher Courts (1984); Satish Chandra's Committee Report 1986; LC!. 124lh Report on the High Court Arrears--A Fresh Look (1988); Report of the Arrears Committee H (1989-90).

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1241

Central Excises and Salt Act, 1944. The High Courts have also enjoyed jurisdiction under the Indian Divorce Act, 1869, and the Parsi Marriage and Divorce Act, 1936. Different types of litigation coming before the High Court in exercise of its wide jurisdiction bear different names. The vast area of jurisdiction can be ap- preciated by reference to those names, viz., (a) first appeals; (b) B appeals under the letters patent; (c) second appeals; (d} revision petitions; (e) criminal appeals; (f) criminal revisions; (g) civil and crimina: references; (h) writ petitions; (i) writ appeals; G) refer- ences under direct and indirect tax laws; (k) matters arising under the Sales Tax Act; (!) election petitions under the Representation of the People Act,; (m) petitions under the Companies Act, Bank- c ing Companies Act and other special Acts and (n) wherever the High Court has original jurisdiction, suits and other proceedings in exercise of that jurisdiction. This varied jurisdiction has to some extent been responsible for a very heavy institution of matters in the High Courts." D After analysing the situation existing in the High Courts at length, the LCI made specific recommendations towards the establishment of specialist Tribunals thereby lending force to the approach adopted in Sampath Kumar's case. The LCI noted the erstwhile international judicial trend which pointed towards generalist courts yielding their place to specialist Tribunals. Describing the pendency in the High Courts as "catastrophic, crisis ridden, almost unmanageable, imposing ... an im.- measurable burden on the system", the LCI stated that the prevailng view in Indian Jurisprudence that the jurisdiction enjoyed by the High Court is a holy cow required a review. It, therefore, recommended the trimming of the jurisdiction of the High Courts by setting up specialist courtsn'ribunals while simultaneously eliminating the jurisdiction of the High Courts.

It is important to realise that though the theory of alternative institu- tional 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 specfalised 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 Jl5th Report (1986) H

1242 SUPREME COURT REPORTS (1997] 2 S.C.R.

A revived the recommendation of setting up separate Central Tax Courts. Similarly, other Reports of the LCI have suggested the setting up of 'G!am Nyayalayas' (LCI, 114th Report (1986)], Industrial/Labour Tribunals [LCI, 122nd Report (1987)] and Education Tribunals [LCI, 123rd Report (1987)]. B In R.K Jain's case, this Court had, in order to understand how the theory of alternative institutional mechanisms had functioned in practice, recommended that the LCI or a similar expert body should conduct a survey of the functioning of these Tribunals. It was hoped that such a study, conducted after guaging the working of the Tribunals over a sizeable c period of more than five years would provide an answer to the questions posed by the critics of the theory. 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 feasibility of setting up 'Gram Nyayalayas', In- dustrial Tribunals and Educational Tribunals, the Committee has dealt with the issue of Tribunals set up under Articles 323A and 323B of the Constitution. The relevant observations in this regard, being of consider- able significance to our analysis, are extracted in full as under: F "Functioning of Tribunals

8.63 Several tribunals are functioning in the country. Not all of them, however, have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity a11d judicial approach. The next is their co11stitutio11, the power and method of appoi11tment of personnel thereto, the i11ferior status and the casual method of working. TI1e last is their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, exerntive subordination in matters of ad-

L. CHANDRA KR. v. U.0.l. [AHMADI, C.J.] 1243

ministrulion and political interference in judicial functioning. For A these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such tribunals.

8.64 Even the experiment of setting up of the Administrative I Tribunals under the Administrative Tribunals Act, 1985, has not B been widely welcomed. Its members have been selected from all kinds of services including the Indian Police Service. The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the c right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the State where they have been established for their abolition.

Tribunals-Test for Including High Court's Jurisdiction D 8.65 A Tribunal which substitutes the High Court as an alternative in:;titutional mechanism for judicial review must be no Jess effica- cious than the High Court. Such a tribunal must inspire confidence and public esteem that it is a highly competellf and expert mechanism with judicial approach and objectivity. What is needed in a t1ibunal, E which is intended to supplant the High Cowt, is legal training and expe1ience, and judicial acumen, equipmelll and approach. When such a tribunal is composed of personnel drawn from the judiciary as well as from services or from amongst experts in the field, any weightage in favour of the service members or expert members F and value- discounting the judicial members would render the tribunal less effective and efficacious than the High Court. The Act setting up such a tribunal would itself have to be declared as void under such circumstances. The same would not at all be conducive to judicial independence and may even tend, directly or indirectly, to influence their decision making process, especiaHy G when the Government is a litigant in most of the cases coming before such tribunal. (See S.P. Sampath Kumar v. Union of India, reported in [1987) 1 SCR 435. The protagonists of specialist tribunals, who simultaneously with their establishment want ex- clusion of the Writ jurisdiction of the High Courts in regard to H

1244 SUPREME COURT REPORTS (1997] 2 S.C.R.

A matters entrusted for adjudication to such tribunals, ought not to ·overlook these vital and important aspects. It must not be forgotten that what is pennissible to be supplant by another equally effective and efficacious institutional medianism is the High Cowts and not the judicial review itself. Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, B uniformity of approach, predictability of decisions and specialist justice are to be achieved, the frame work.of the tribunal intended to be set up to attain them must still retain its basic judicial character and inspire public confidence. Any scheme of ' ' '

decentralisation of administration of justice providing for an alter- c native Institutional mechanism in substitution of the High Courts must pass the aforesaid test in order to be constitutionally valid.

8.66 Tjle overall picture regarding the tribunalisation of justice in our country is not satisfactory and encouraging. There is a need for a fresh look and review and a serious consideration before the D experiment is extended to new areas of fields, especially if the constitutional jwisdiction of the High Courts is to be simultaneously ousted. Not many tribunals satisfying the aforesaid tests can pos- sibly he established.

E (Emphasis added)

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 F 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 y~ars that have passed since the Report of the Malimath G Committee was delivered, the pendency in the High Courts has substan- tially 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 infere~ce that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. I

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1245

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 constitu- tional scrutiny in the discharge of the power of judicial review conferred upon them.

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. lf 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 con- stitutional questions on a regular basis; for instance, in service law matters, a large majority of case.~ involve an interpretation of Articles 14, 15 and 16 E 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 F 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 arc 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 G the matter.

It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy H

1246 SUPREME COURT REPORTS [1997] 2 S.C.R.

A provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced B to perform the role of a First Appellate Court. We have already em- phasised the necessity for ensuring that the High Courts are able to . exercise judicial superintendence over the decisions of .Tribunals· under Article 227 of the Constitution. In R.K. Jai11's case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within c whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the afore-stated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitu- D tion, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.

We may add here that under the existing system, direct appeals have E been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; hut instead, the aggrieved party will be entitled to move the High Court under F Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.

Before moving on to other aspects, we may summarise our con- G clusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as sub- stitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. H Their function in this respect is only supplementary and all such decisions

L. CHANDRA KR. v. U.0.I. [AHMADI, CJ.) 1247

of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court 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. We may add that the Tribunals will, however, continue to act as c the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlook- D ing the jurisdiction of the concerned Tribunal.

The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceed- ings, we have invoked the doctrine of prospective over-ruling so as not to disturb the procedure in relation to decisions already rendered.

We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administra- tive supervision over them. 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 ad- judicating such disputes; the Malimath Committee has noted th:i.t at times, G 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 H

~ 1248 SUPREME COURT REPORTS [1997] 2 S.C.R. \

A Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. lt 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 B judicious mix of judicial members and those with grass-roots 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 Commit- tee is now headed by a Judge of the Supreme Court, nominated by the c Chief Justice of India, we have reason to believe that the Committee would take care to ensure that administrative members arc chosen from amongst those who have some background to deal with such cases. /

It has been brought to our notice that one reason why these Tribunals D have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements. To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall. We arc, however, of the view that this may not be the best way of solving the problem. Wc do not think that our constitutional scheme E requires that all adjudicatory bodies which fall within the territorial juris- diction of the High Courts should be subject to their supervisory jurisdic- tion. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot, in an;' manner, be of assis- · lance to them. The situation at present is that different Tribunals con- F stituted 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 G 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

H 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 - '

L. CHANDRA KR. v. U.O.l. [AHMADI, C.J.] 1249

body to oversee the working of the Tribunals. This will ensure that if the. A· President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not langui<;h 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 B 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 selec- tion of the members of the Tribunals, the manner in which funds arc allocated for the functioning of the Tribunals and all other consequential details will have to be de~rly spelt out. c 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 D the comments of experts bodies like the LCI and the Malimath Committee in this regard. We, therefore, recommend that the Union of India initiate action in this behaif and after consulting all concerned, place all these Tribunals under one single nodal department, preferably the Legal Depart- ment. E Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may no pronounce our opinion on this aspect. Though the vires of the provision was not in question in Dr. Mahabal Rani's case, we a believe that the approach adopted in that case, · the relevant portion of which has been extracted in the first part of. this . · p · judgment, is correct since it harmoniously resolves. the manner iii wlJ.ich . Sections 5(2) and 5(6) can operate together. We wish to make it clear.tpat..: where a question involving the interpretation of a statutory 'provision or rule in relation to the Constitution arises for the consideration of a single' Member Bench of the Administrative Tribunal, the proviso to Section 5(6) · will automatically apply and the Chairman or the Member concerned shall G 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 a Bench which does not consist· of a Judicial Member. So construed, Section 5(6) will no longer be susceptible H

1250 SUPREME COURT REPORTS [1997] 2 S.C.R. ~I A to charges of unconstitutionality.

In view of the reasoning adopted by us, we hold that 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 under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the B Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our C Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution arc possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.

All these matters may now be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in this judgment.

R.P. Matters disposed of.