Judicial Interpretation

Among the many innovative provisions adopted by the Forty-second Amendment of the Constitution (1976) a measure of far-reaching importance was the provision for the setting up of Administrative Tribunals. Part XIV-A which consists of two Articles 323A and 323B deals with these Tribunals.
    Section (1) of Article 323-A provides for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India. The power to constitute such Tribunals is vested exclusively in Parliament.
     Section (2) of the same Article provides that a law made by Parliament under section (1) may:
(i) Provide for the establishment of an Administrative Tribunal for the Union and a separate Administrative Tribunal for each State or for two or more States;
(ii) Specify the jurisdiction, powers and authority which may be exercised by such tribunals;

(iii) Provide for the procedure to be followed by these tribunals; and
(iv) Exclude the jurisdiction of all courts except the special jurisdiction of the Supreme Court under Article 136.
   Article 323-B empowers Parliament or State Legislatures to set up tribunals for matters other than those covered by clause (2) of Article 323-A. The matters to be covered by such tribunals are as follows:
(i) Levy, assessment, collection and enforcement of any tax;
(ii) Foreign exchange, import and export across customs frontiers;
(iii) Industrial and labour disputes;
(iv) Matters connected with land reforms covered by Article 31-A;
(v) Ceiling on urban property;
(vi) Elections to either House of Parliament or Legislatures of the States and
(vii) Production, procurement, supply and distribution of food-stuffs or other essential goods.
     A law made under the above provisions may provide for the establishment of a hierarchy of tribunals and specify the jurisdiction, powers and authority which may be exercised by each of them. Such law may also provide for the procedure to be followed by these tribunals and exclude the jurisdiction of all courts except the Supreme Court of India.
    The Scheme of Administrative Tribunals envisaged by Part XIV-A of the Constitution as several other provisions of the Forty-second Amendment of the Constitution was looked upon with suspicion and misgivings by certain sections of political and public opinion in the country and that was reflected in the attempt of the Janata Government (1977-79) to abolish these provisions.
    The Forty-fourth Amendment (1978) among other things sought to abolish Part XIV-A altogether. However, this attempt of the Janata Government was unsuccessful as it could not muster adequate support in Parliament.
       The Administrative Tribunals Act was passed in 1985 under article 323A and section 28 of this Act provided for the exclusion of jurisdiction of all courts except that of the Supreme Court under Article 136.[10] This fuelled a sudden spurt in the number of cases that challenged the validity of the said legislation as well as that of the 42nd Amendment that introduced Articles 323A and 323B in to the constitution.             Some of the prominent case in this regard is discussed below.
     S.P.Sampath Kumar v. Union of India (AIR 1987 SC) This is the first and perhaps the most important case in this period that attracted judicial scrutiny in this area. The Constitution Bench in Sampath Kumar was called upon to decide on the main issue whether Section 28 of the Act was unconstitutional as it excludes judicial review, which was contended as part of the basic structure of the Constitution [During the pendency of the case, the Government gave an assurance to the Court that the Act would be amended so that the jurisdiction of the Supreme Court under Article 32 was not excluded. The Act was consequently amended after the decision]. The Supreme Court accepted without doubt that judicial review is part of the basic structure. However the Court went on to observe that the creation of alternate institutional mechanisms which were as effective as the High Courts would not be violative of the basic structure. The Administrative Tribunals under the Act were recognized as effective substitutes for the High Courts. This proved to be a shot in the arm of the proponents of Tribunalisation. However the Apex Court came down heavily on the procedure for appointing the Chairman of the Tribunal. Section 6(1) (c) of the Act allowed a person who held the post of a Secretary to the Government of India or an equivalent post become the Chairman. Since these Tribunals were to be substitutes of High Courts it was held to be impermissible for bureaucrats to hold such a post. The Chairman should be a retiring or retired Chief Justice of a High Court. Oher members have to appointed by a committee consisting of a sitting Judge of the Supreme Court. It was also suggested that the Chief Justice of India must be consulted while making these appointments. The Parliament accepted these recommendations and now they find a place in the Act by way of the Administrative Tribunals (Amendment) Act of 1986.
    Sambamurthy v. State of Andhra Pradesh (1987) I SCC 386 - It was held in this case that Article 371D(5) of the constitution, which was  inserted by the Constitution (32nd Amendment) Act,1973, was unconstitutional and void. This provision had enabled the Government of Andhra Pradesh to modify or nullify any order of the Administrative tribunal of that state. It was pointed out that such a provision was violative of the basic structure as it made the tribunal not as effective as the High Court when it comes to judicial review. Court stressed strict adherence to the directive in Sampath Kumar’s case that the administrative tribunals should be effective substitutes to the High Court.
    J.B.Chopra v. Union of India (1987) I SCC 422- It was held that since the Administrative tribunals are meant to be substitutes of High Courts, their power of judicial review extended to power as to decide on the constitutionality of service rules.
     However, Judicial decisions in subsequent cases saw supreme Court back pedalling on its new found favour for the Tribunals In M.B.Majumdar v. Union of India, (1990) 4 SCC 501 the Supreme Court refused to extend the service conditions and other benefits enjoyed by ordinary High Court judges to the members of these Tribunals. Three years later, in R.K.Jain v. Union of India(1993) 4 SCC 119, the Supreme Court opined that these Tribunals could not be effective substitutes of High Courts under Articles 226 and 227. These cases also reflect the dissatisfaction of the Supreme Court in regard to the functioning and effectiveness of Administrative Tribunals specially with respect to their power of judicial review.
   In Sakinala Harinath v. State of Andhra Pradesh [1993 (2) An. W.R.484 (FB)]  the Andhra Pradesh High Court expressed serious doubts about the wisdom of the learned Judges in Sampath Kumar’s case. The Full Bench ruled that equating Administrative Tribunals with the High Court in respect of their jurisdiction under Articles 226 and 227 was inconsistent with the Supreme Court’s ruling in cases like Kesavanda Bharati v. State of Kerala(1973) 4 SCC 225 and Indira Gandhi v. Raj Narain AIR 1975 SC 2291. It was pointed out that only the constitutional courts could exercise the power of judicial review. Since the logic of alternative institutional mechanism propounded in Sampath Kumar’s case did not fit in to this constitutional mandate, it is by law impermissible. As a result both Articles 323A(d) and section 28 of the Act were struck down as unconstitutional.
     The confusion created by later conflicting judgments necessitated a relook at S.P. Sampath Kumar’s case.  This opportunity arrived when a three judge bench of the Supreme Court in L. Chandrakumar v. Union of India [AIR  1995  SC 1151] decided to refer the matter to a larger bench.  This eventually led to the famous ruling of the Seven Judge Bench of the Supreme Court on L. Chandrakumar v. Union of India [AIR 1997 SC 1125], which is now the law of the land.
    L. Chandrakumar’s Case
The important issues considered by the apex court were as follows:
1. Whether Art. 323A (2) (d) and Art.323B (3) (d) of the constitution which give the power to the Union and State Legislatures to exclude the jurisdiction of all courts except that of the Supreme Court under Art.136, is in accordance with the power of judicial review embodied in Art.32 and 226.
2. Whether the power of High Courts to exercise the powers of superintendence over the subordinate judiciary under Articles 226 and 227 forms part of the Basic Structure.
3. The competence of the aforesaid tribunals to determine the constitutionality of any law.
4. Whether the aforesaid tribunals are acting as affective substitutes to High Courts in terms of efficiency.
        It was held that the power of judicial review over legislative and administrative action is expressly vested with the High Courts and the Supreme Court under Articles 226 and 32 respectively. The contention that the constitutional safeguards which ensure the independence of the higher judiciary [In terms of qualifications, mode of appointment, tenure, mode of removal, etc.,] is not available to the lower judiciary and bodies such as Tribunals was upheld and the Apex Court consequently held that the lower judiciary would not be able to serve as an effective substitute to the higher judiciary in matters of constitutional interpretation and judicial review. Therefore the power of judicial review is vested in the higher judiciary and the power of High Courts and the Supreme Court to test the constitutional validity of legislative and administrative action cannot ordinarily be ousted. However it was held that these tribunals and the lower judiciary could exercise the role of judicial review as supplement to the superior judiciary. The court applied the provisions of Article 32(3) to uphold the same.
It was also held that the power of the High Courts to exercise judicial superintendence over the decisions of the lower judiciary within its jurisdiction  (under Articles 226 and 227) are part of the Basic structure of the Constitution.
  In its supplemental role to the higher judiciary it was held that these tribunals and the lower judiciary had the power to test the vires of legislative and administrative action, subject to their decisions being appealable to a Division Bench of the respective High Court.
    It was also observed that the working of the administrative tribunals was not up to the standards required of a body supposedly functioning as a substitute to a High Court. The court recommended the establishment of a nodal agency to supervise their working. The court also made suggestions regarding the appointment of members to these tribunals and the qualifications that such persons must have so as to qualify them for appointment. 
 Some of the arguments raised in this case are worthy of further examination:
    It was contended that judicial review being part of basic structure was erroneous because there are many constitutional provisions, which exclude judicial review in certain important issues.  Art.136 (2) and Art.226 (4) exclude judicial review in laws related to armed forces, Art.22 (2) excludes Judicial review in river water disputes, Art.103 (1) on disqualification of MPs and Art.329 (a) and (b) on laws relating to delimitation of constituencies seeks to exclude Judicial review.  However it is essential to note that these constitutional provisions be read in the context of the constitutional scheme and with respect to the fact that such provisions would undoubtedly be subject to Art.32.  Secondly, it is important to note that the disputes relating to armed forces are very sensitive in nature and so the framers of the Constitution thought it prudent to expressly remove such matters from the ambit of judicial scrutiny.  The emotive nature of river water disputes was a factor, which influenced the move to remove it from the ambit of judicial scrutiny.
Though there exists no rigid separation of powers in the Constitution between the three spheres of government, they have been entrusted with certain specific powers and functions. In order to ensure that each of the branches do not transgress their constitutionally defined parameters; there is a constitutionally created system of mutual checks and balances. In this clear demarcation of functions, judiciary is given the role of deciding disputes and determine the legality of executive and legislative action.  This power of Judicial review flows from Art.32 and 226 and is an integral part of the constitution in so far as the exercise of the doctrine seeks to uphold the rule of law and to ensure that the executive and legislature remains within their allocated domains.
     The judges in Sampath Kumar’s case, relying on the minority judgment of Bhagwati, J., in Minerva Mills v. Union of India held that alternate institutional mechanisms which were as effective as High Courts could exercise the power of Judicial review and consequently oust the jurisdiction of High Courts under Art.226.  There is no denying the fact that the Parliament under Art.32(3) can create special courts to deal with matters that the Supreme Court is empowered to deal with under Articles 32 (1) and (2) but the consequence of the provision does not led to the ousting of the jurisdiction of Supreme Court under Art.32.  So while conceding that alternate institutional mechanisms may be established, it is not permissible for them to exercise the power of judicial review as substitutes to High Courts even if they are as effective as High Courts.  As has been held in Chandrakumar’s case, institutional mechanisms may be set up and they can perform the function of judicial review but not as substitutes to High Courts but as supplementary to the role of High Courts.
    Unlike French Constitutional practice, which allows for such a dual system, it is clear that our Constitution does not provide for this practice. Our Constitution has clearly mandated a judiciary which would be independent and which is immune to the pressures and pulls from the legislature and the executive. However tribunals in India do not have such independence for example, the funding of the tribunals is controlled by the administrative ministry.  They are therefore susceptible to being influenced by the executive and cannot carry out their functions independently. 
The Supreme Court in L. Chandrakumar v. Union of India laid down that:
(i)                 The powers of Judicial review on legislative action vested in the Supreme Court and High Court under Art.32 and 226 from part of the basic structure of the Constitution.
(ii) The power of High Courts under Art.227 to exercise superintendence on all courts and tribunals under its jurisdiction is also basic to the constitution and therefore even if tribunals are allowed the power to perform Judicial review, they may do it in a supplementary role and not as substitutes to the High Courts.
(iii) Though tribunals may act as courts of first instance for the areas they are dealing with, they are subject to the appeal jurisdiction of a Division Bench of the High Court under whose jurisdiction they fall.
(iv) Though tribunals can examine the Constitutionality of statutes, the power does not extend to the parent statute under which they are constituted.
(v) In order to supervise the administration of tribunals and to increase their efficiency an independent agency has to be set up and till then a nodal Ministry has to see to these aspects.
   Consequently Articles 323A (2) (d) and 323B (3) (d) of the Constitution were held to be unconstitutional.
It is clear that attempts to create a system of administrative adjudication similar to the French Droit Administratif  is impermissible in India. This is because the Constitution of India has vested the powers of judicial review in the High Courts and the Supreme Court in order to make its scheme of checks and balances effective. Any other agency performing this function can only be doing it in a subordinate role. The system of tribunalisation, which removes the above power from the higher judiciary, will amount to a importation of the French position in to the Indian context. The French system of tribunals developed in a totally different context and hence their interpretation of the doctrine of separation of powers in the scheme of governance is different. In India, the Constitution is supreme unlike in France, where a change effected by the Parliament is seen as an expression of the popular will and therefore is treated as an amendment of their Constitution.