Can HC look into substantial question of law?

Makes NCLAT redundant

Right to appeal v. writ jurisdiction

Can say no ouster because you can approach for writ jurisdiction

Raj Narain- appellate can be restricted

Contention – judicial review cannot be ousted

Debate – whether tribunals are effective anymore?

Chandra kumar – objective defeated

Compare when person goes to tribunal and why not going into writ jurisdiction

NCLAT – appeal to SC? Not to HC

Consumer Court, Advocate Act

Judgements do not go into depth – only look at whether jurisdiction was exceeded or not – board of
education v. rice – maintainability is checked –

In India, that is why writ jurisdiction is more relevant

decisions. In India, because of article 226 of the Constitution, the writ system is entrenched2 and no statutory provision
excluding judicial review can affect the power of the High Courts to issue a writ (most probably certiorari

statutory provision, its scope can be curtailed by another statutory provision. The question arises most frequently as
to how far a provision in a statute seeking to exclude courts' review power affects the ordinary statutory remedy to file a suit.
The question has been considered earlier in several cases5 and it has again been considered by the Supreme Court in the
Bata1

In arriving at its decision, the Supreme Court noted that the act had been passed with a view to
provide a special
procedure for recovery of debts due to banks and financial institutions, and that there was a specific
mechanism of
appeal provided for in the enactment itself. The court observed that even though a provision under an
enactment
cannot expressly oust the jurisdiction of the courts under Articles 226 of the Constitution,
nevertheless, when there is
an alternative remedy available, judicial prudence demands that the courts refrain from exercising
jurisdiction.
The court has thus reaffirmed the principle of law settled in earlier cases such as Om Prakash v
Jagdish Lal
Marwaha(2) and Committee of Management v Vice Chancellor,(3) in which exercise of writ
jurisdiction was not
warranted where there was an equally efficacious alternative remedy available. This is not to say,
however, that
availability of an alternative remedy by itself may never be a ground for the High Court to refuse to
exercise

1
2. Jain, Indian Constitutional Law 191 et seq. (1978); Jam & Jain, Principles of Administrative Law 324 et seq. (2nd ed.) 3. Raja Jagdambika Pratap
Narain v. Central Board of Direct Taxes , A. I. R. 1975 S.C. 1816. 4. S.9 of the Civil Procedure Code, 1908 provides that the courts shall have jurisdiction to try
«all suits of civil nature excepting suits of which their cognisance is either expres- sly or impliedly barred.' For a discussion of statutory judicial remedies
see, Jain & Jaią supra note 2 at 436 et seq. $. Jain & Jain, id. at 4
jurisdiction. The court has merely reiterated that when an order has been passed in accordance with
the principles of
natural justice and by an authority that has the lawful jurisdiction to pass such an order, the superior
courts may
consider exercising discretion in matters of writ jurisdiction with greater circumspection.

The privative clause raises a set of questions of constitutional law importance, viz., (/) does it merely preclude the High
Courts, along with ordinary civil courts, to exercise their hitherto appellate / original jurisdiction in the specified service
matters leaving aside their writ juris- diction empowering them to issue appropriate writs, orders, or directions? O'O does the
phrase "any jurisdiction, power or authority" include writ jurisdiction of the High Courts and thereby exclude such
jurisdiction also? If the answer to this question is in the affirmative, is such an ex- clusion total, i.e. y does it debar a High
Court from exercising its power of issuing writs altogether or leave some room for the exercise of such jurisdiction? If yes,
does the ouster clause, read with the jurisdictional clause in such a case, vest in the tribunals the authority to issue the writs? If
yes, is it constitutionally justifiable? and (iii) last, but not the least, does it also take away the constitutional power of the High
Courts to deter- mine the constitutionality of orders in service matters? The comprehensive scheme of the Act regarding, (i)
vesting

vided in the Act is effective and inadequate. It is also worth noting that articles 226(1) and 32 confer concurrent or parallel
jurisdiction on the High Courts and the Supreme Court protecting the fundamental rights guaranteed in part III of the
Constitu- tion, the only difference being that the latter itself is a fundamental right, while the former is a constitutional one.
The object in providing such concurrent or parallel jurisdiction to these two judicial forums is two-fold, viz., to (0 provide
quick remedy; and (ii) offer a choice to the petitioner to select the forum to vindicate the fundamental right. The Act
defeats this constitutional object without any convincing reason

matters.63 The Constitution does not contemplate issuing of writ by a tribunal.54 It is worth noting that the late H.R.
Gokhale, the then Law Minister, who moved the most controversial Forty-second Amendment by which part XIYA dealing
with the administrative bunal was inserted, observed: It is not correct to say that a tribunal will have the power to issue
writs. That power is not given to the tribunal because the power to issue writs is not the power under the conditions of
service of the employees. That was an extraordinary remedy. . .given by the Constitution for certain purposes.55 The
argument also finds support from the following observation of K.P. Singh Deo, Minister of State, Department of Personnel and
Admi- nistrative Reforms, while moving the Administrative Tribunal Bill 1985 in the Lok Sabha . He observed: The tribunals are
not going to be parallel High Courts, but they will be doing the work of the High Courts as far as the problems and cases
pertaining to the service conditions are concerned.56

to provide speedy relief to the government employees in service matters.68 The object of reducing the workload in the
High Courts could be achieved either by strictly enforcing the judicial policy of refusing to exercise jurisdiction under
article 226 or by creating an Administrative Division of the High Court to deal with service matters. Probable objection
to the second alternative is that an appeal would lie from an expert body to a non-expert body

IX Implications of "Chandra Kumar Judgment" It is respectfully submitted that the judgment of the Supreme Court is likely to lead to
consequences which are anamolous and undesirable. The Supreme Court erred in its assumption that the reach and range of the
power of judicial review of the Supreme Court and that of the High Courts are identical. It has already been pointed out above that the
power of judicial review in India, after Kesavananda' s case covers the following three cases. The courts have the power to strike
down the following: (i) subordinate legislation which is ultra vires the parent Act; ( ii ) legislations of Parliament and the state
legislatures if they contravene the provisions of the Constitution; and (iii) the constitutional amendments which violate the basic
structure of the Constitution. The Supreme Court in Kesavananda for the first time in the history of democratic Constitutions of
the world, assumed to itself the third power men- tioned above, i.e., the power to declare constitutional amendments as
unconstitu- tional if they violate the basic structure of the Constitution. Some might feel that the assumption of this power by the
Supreme Court is bad enough in the context of representative democracy. But what is worse would be to extend the exercise of
this enormous power to the High Courts also and after Chandra Kumar to all manner of tribunals. One bizarre consequence would be
that different High Courts are likely to strike down different provisions of constitutional amendments in are likely to strike down
different provisions of constitutional amendments in different states and the Constitution of India which is the fundamental law of the
different states and the Constitution of India which is the fundamental law of the country would be in operation in a fractured and
fragmented manner. In fact a Division Bench of the Andhra Pradesh High Court in Satinala Harinath v. Andhra Pradesh 33 has
struck down article 323-^4 (2 )(d) which ousted the jurisdiction of the High Courts in service matters. Given the vagaries of
unstable coalition governments which depend on survival politics at any cost, the possibility cannot be ruled out of collusive writ
petitions in the High Courts seeking the striking down of inconvenient provisions of constitutional amendments, past, present or
future, without any party seeking a further appeal to the Supreme Court conve- niently. Now, thanks to the Chandra Kumar
judgment, these disastrous results can be extended to different tribunals within the same state striking down different provisions of
the constitutional amendments on the ground of violation of the so called basic structure of the Constitution. This relativity of
constitutionality even with regard to fundamental law of the country is bewildering and would shatter the sanctity and supremacy
of the Constitution as a symbol of national unity and integrity Is the power of judicial review higher than the integrity of the
Consti- tution? Thus as stated above the Supreme Court ought not to assimilate the judicial review of the High Courts to that of the
Supreme Court of India with regard to the basic structure doctrine as propounded in Kesavananda. The Supreme Court 33.
Supra note 21 .422 JOURNAL OF THE INDIAN IA W INSTITUTE [Vol 39 : 2 - 4 should
exclusively reserve to itself the power to strike amendments
for violating the basic structure of the Constitution. power on the High Courts would create terrible constitutional confusion would
be worse confounded if it is further extended to all manner of tribunals. While the Supreme Court on one hand expressed its serious
reservations about the quality of justice dispensed by these service tribunals, the court on the other hand was willing to
distribute the power of judicial review under the Kesavananda doctrine to all sorts of tribunals throughout the country. It
should be remembered that though Parliament has the power under article 32(3) to confer the power of judicial review on "other
courts" without prejudice to the power of the Supreme Court under article 32(1), it has not done that so far even when it has established
different tribunals under different enactments. But in an extraordinary gratuitous gesture the Supreme Court has done that in Chandra
Kumar's case while professing to uphold the supremacy of judicial review in the name of upholding the supremacy of the
Constitution. The power of judicial review of the High Courts under article 226 is not as invoilable as that of the Supreme Court
under article 32. While article 32(3) preserves the supremacy of judicial review of the Supreme Court, there is no saving
provision under article 226. Establishment of tribunals as substitutes and not supplements to the High Courts as held by the
Supreme Court in Sampath Kumar's case is perfectly in tune with the letter and spirit of the Constitution. It is respectfully
submitted that the time has come for the Supreme Court to clearly delineate the reach and range of judicial review in all its facets
to be exercised by itself and by the High Courts, "other courts"34 and other tribunals. exercised by itself and by the High Courts,
"other courts"34 and other tribunals. After Kesavananda* s case, the grund norm in the Kelsenian sense is not the After
Kesavananda* s case, the grund norm in the Kelsenian sense is not the supremacy of the Constitution by the supremacy of the
Supreme Court35 in its exercise of judicial review in its most transcendental form. It is desirable that the Supreme Court reserves this
power to 'itself and does not delegate this extra- ordinary power to the lesser judiciary. As the Supreme Court itself observed in
Chandra Kumar's case the establish- ment of tribunals system was necessitated by certain compelling circumstances like the need
for expert bodies to deal with specialised categories of dispute settlement, the need for cutting down delays in the justice delivery
modalities, and docket explosion in the ordinary courts of the land. The very purpose and rationale of those tribunals would be
defeated if all those cases have to go before the concerned High Courts again. It is too late in the day to go back to Dicey's
puritanical view of Rule of Law vis-a-vis Droit Administratif. Establishment of Alternative Dispute Resolution mechanism is
now universally accepted in common law as well as continental legal systems and also in other jurisdictions.36 In Chandra
Kumar , the Supreme Court was justifiably perturbed over the functioning and quality of justice dis- 34. Under art. 32(3), Constitution of
India. 35. See, Kesavananda. supra note 2 at 2007-8. 36. See, Mod LRev (Special Issue) on Dispute Resolution : Civil Justice and Alternative , vol. 56, no. 3 (May
1993).1997] DOCTRINE OF JUDICIAL REVIEW AND TRIBUNALS 423 pénsed by the tribunals. The composition of the tribunals attention. There is
no doubt, that many remedial measures regarding the composition, qualifications and mode of appointment of the tribunals as
well as the judges of different High Courts Court. Legal fraternity is seriously concerned about the accountability in the justice
delivery system. As the Sampath Kumar's case, it could have proposed in Chandra legislative measures to improve the
tribunal justice system. Court sends a wrong signal in Chandra Kumar's case that with maintenance of judicial supremacy
because of the growth of alternative dispute settlement mechanism might confining the higher judiciary to that of a
constitutional It may not be out of place here to submit that in view pronouncements of the Supreme Court since Minerva
review is a part of the basic structure of the Constitution, of the Ninth Schedule which has far grown beyond its inconsistent with
even the original version of the doctrine propounded in Marbury v. M addi s on. The fundamental Schedule was to save the
unconstitutional statutes from be said that statutes which do not violate the basic structure placed in the Ninth Schedule. If the statutes
are otherwise in Constitution, they do not need to be placed in the Ninth Schedule. time that the Supreme Court reconsiders its stand
regarding Ninth Schedule in the context of co-existence of power basic feature and the very negation of it in th