ADMINISTRATIVE LAW

L. CHANDRA KUMAR VS. UNION OF INDIA

[A.I.R 1997 SC 1125]

SUBMITTED TO,

Dr. GIRISH R.

ASSISTANT PROFESSOR OF LAW,

GUJARAT NATIONAL LAW UNIVERSITY

SUBMITTED BY,

MRINMAY KUSHAL,

BATCH 2017-2022

REGISTRATION NUMBER: 17A088

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 CONTENTS

1. Background 3

2. Brief Introduction to Article 323 4

3. Introduction 5

4. Facts of the Case 6

5. Issues Raised 7

6. Judgement 8

7. Observation by Larger Bench 12

8. Verdict of the Court 13

9. Ratio Decidendi 14

10. Critical Analysis and Concluding Remarks 15

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Note: This project deals with an analysis of the case of L. Chandra Kumar v. Union of India,
the landmark case which decided on the constitutionality of Articles 32A and 323B as they
dealt with the exclusion of jurisdiction of High Court in service matters.

BACKGROUND

For a long time, search was going on for a mechanism to relieve the courts, including High
Courts and the Supreme Court, from the burden of service litigation which formed a substantial
portion of pending litigation. As early as in 1958, this problem engaged the attention of the Law
Commission which recommended for the establishment of tribunals consisting of judicial and
administrative members to decide service matters. In 1969 Administrative Reform Commission
also recommended for the establishment of civil service tribunals both for the Central and State
civil servants. In 1975, Swarn Singh Committee again recommended for setting up of service
tribunals. It was against this backdrop that Parliament passed Constitution (Forty- Second
Amendment) Act, 1976, which added Part- XIV- A in the Constitution. This Part is entitled as
‘Tribunals’ and consists of only two Articles- Article 323-A, dealing with administrative tribunals
and Article 323-B, dealing with tribunals for other matters.

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BRIEF INTRODUCTION TO ART.323

While Article 323-A contemplates establishment of tribunals for public service matters only,
Article 323-B contemplates establishment of tribunals for certain other matters (taxation, foreign
exchange, industrial and labour disputes, land reforms, elections to Parliament and State
Legislatures etc.)

While tribunals under Article 323-A can be established only by the Parliament, tribunals under
Article 323-B can be established both by Parliament and State Legislatures with respect to
matters falling within their legislative competence.

Under Article 323-A, only one tribunal for the Centre and one for each State or two or more
States may be established, there is no question of hierarchy of tribunals; whereas under Article
323-B a hierarchy of tribunals may be created.

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INTRODUCTION

There were enormous controversies regarding the constitutionality of Article 323A and 323B as
it was felt that the exclusion of the jurisdiction of the High Court in relation to service matters
was against the spirit of the Constitution. In numerous cases right from Keshavananda Bharati’s
(Keshavananda Bharti1 v. State of Kerela case to Sampat Kumar’s case2 and beyond the Courts
have tried to set this controversy to rest but, in the process, further creating more controversies.
However, the matter finally rested in the landmark judgment of L. Chandra Kumar’s case. A
thorough discussion of this case goes a long way in clarifying the positions of the Administrative
Tribunals vis-a-vis the power of judicial review and the basic structure of the Constitution.

1
(1973) 4 SCC 225: AIR I973 SC 1461

2
(1987) 1 SCC 124: AIR (1987) SC 386)

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FACTS OF THE CASE

Pursuant to Article 323-A and 323-B of the Constitution of India the Central Administrative
Tribunal, with five Benches, was established on November 1, 1985. However, even before the
Tribunal had been established, several writ petitions had been filed in various High Courts as
well as the Supreme Court, challenging the constitutional validity of Article 323-A, on the
ground that it is contrary to the spirit of the Constitution as it excludes the jurisdiction of the
Supreme Court under Article 32 of the Constitution and the High Court under Article 226 of the
Constitution. Through an interim order in S. P. Sampat Kumar v. Union of India the Supreme
Court, in order to ensure the functioning of the Tribunal along with sound Constitutional
principles, directed carrying out of certain measures.

When Sampat Kumar’s case was finally heard, these changes had already been incorporated in
the body and text of the Act. The Supreme Court took the view that most of the original
grounds of challenge –which included the challenge to the constitutional validity of Article 323-
A – did not survive and restricted its focus to testing only the validity of the provisions of the
act. In the final decision it was held that though judicial review is the 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 Court, would not be violative of the basic
structure of the Constitution, so long it was ensured that the alternative mechanism was an
effective and real substitute for the High Court.

Similar questions were raised subsequently in many cases and one of them was L. Chandra
Kumar v. Union of India. In this case after analysing the relevant Constitutional provisions and
the circumstances which led to the decision in Sampat Kumar’s case, the bench reached the
conclusion that:- on account of the divergent view expressed by the Supreme Court in a series of
cases after Sampat Kumar’s case, the resulting situation warranted a fresh look by a larger Bench
over all the issues adjudicated by the Court in Sampat Kumar’s case including the question
whether the Tribunal can at all have an Administrative Member on its bench, if it were to have
the power of even deciding the constitutional validity of a statute or Article 309 rule as decided
in J. B. Chopra v. Union of India. The present case under discussion is the very case where the
larger bench looked over all the issues adjudicated by the Court in Sampat Kumar’s case.

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ISSUES RAISED

1. Whether the power conferred upon the Parliament by Article 323-A (2) (d) or upon the
State Legislature by Article 323-B (3) (d) of the Constitution of India, to totally exclude
the jurisdiction of ‘all courts’, except that of the Supreme Court under Article 136 ?
2. Whether the Tribunals constituted either under Article 323A or under Article 323B of
the Constitution, possess the competence to test the constitutional validity of a statutory
provision or rule?
3. Whether the Tribunals, as they are functioning at present, can be said to be the effective
substitutes for the High Court in discharging the power of judicial review? If not, what
are the changes required to make them conform to their founding objectives?

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JUDGEMENT

Issue 1 :- Whether the power conferred upon the Parliament by Article 323-A (2) (d) or upon
the State Legislature by Article 323-B (3) (d) of the Constitution of India, to totally exclude the
jurisdiction of ‘all courts’, except that of the Supreme Court under Article 136, in respect of
disputes and complaints referred to in Article 323-A (1) or with regard to all or any of the
matters specified in Article 323-B (2), runs contrary to the power of judicial review conferred on
the High Court u/as 226/227 and on the Supreme Court u/a 32 of the Constitution of India?

In adjudging this issue, the Bench made a study of the provisions of the Administrative
Tribunals Act, particularly Section 28. It pointed out that although Section 28 was originally
enacted in express terms with Article 323A of the Constitution and the only exception was made
in respect to the jurisdiction of the Supreme Court under Article 136 but when the final hearing
of Sampat Kumar’s case was concluded the provision was already amended to save the
jurisdiction of the Supreme Court under Article 32 of the Constitution. It also pointed out that
as Sampat Kumar case was specifically related with power of judicial review of the Supreme
Court, and as it already had been returned to the court, the court expressed itself satisfied with
the position as it had emerged during the pendency of Sampat Kumar case and the court did not
ventured to address the larger issue of whether Article 323A (2) also required a similar
amendment.

The court also found that the main intention behind the Act was to provide for a self-contained,
self-sufficient and exclusive forum of adjudicating all service-related matters. But it made it clear
that it was intended to perform a substitution role and not a supplemental role.

Next it ventured in examining post-Sampat Kumar cases and found that those cases did not
specifically addressed the question regarding the power of the Administrative Tribunals in
striking down a statute or provision as unconstitutional. In J. B. Chopra’s case the Division
Bench felt that it would follow as a logical and direct consequence of the judgment in Sampat
Kumar’s case. In M. B. Majumdar v. Union of India the bench held that Administrative
Tribunals can be equated with High courts as regards to its jurisdiction in service matters but not
in case of service conditions of the members of the tribunal. In R. K. Jain v. Union of India,
which coincidently had the same bench as in the discussed case, analysed the relevant provisions,
and cases such as Sampat Kumar, Chopra, Majumdar etc. and found that the Tribunals under
Article 323A cannot be substitutes to the High Court as their performance was not satisfactory

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and also because they leave the litigants with only one remedy under 136 by the way of appeal to
the Supreme Court which is costly affair. It suggested that an expert body like the Law
Commission of India should study the feasibility of providing an appeal to a two judge Bench of
the High Court from a decision of the Tribunals.

The court also took in view the suggestions made by the learned counsels. Mr. Rama Jois and
Mr. Shanti Bhushan urged the court to review the judgment in Sampat Kumar’s case and
contended that Articles 323A (2) (d) and 323B (3) (d) should be declared unconstitutional to the
extent they exclude the jurisdiction of the High Court. Mr. Bhatt, the learned Additional Solicitor
General, Mr. P. P. Rao and Mr. K. K. Venugopal on the other hand urged the court to uphold
the validity of the said Articles. Mr. A. K. Ganguly cited that the power of judicial review vested
on the constitutional Courts cannot be bestowed on newly created quasi-judicial bodies which
are susceptible to executive influences. Next it went to discuss the other facet of this issue viz.
judicial review and the basic feature of the constitution. After citing various cases like
Kesavananda Bharati’s case, dissenting view of Chandrachud J. in Indira Nehru Gandhi v. Raj
Narain, Minority judgment of Bhagwati J. in Minerava Mills v. Union of India and the view, or
rather a revised view, of Chandrachud CJ. In Fertilizer Corporation Kamgar Union v. Union of
India, the Court came to the conclusion that judicial review is indeed a basic feature of the
Constitution.

Also, the court relied on the view of Dr. B. R. Ambedkar, the Chairman of the Drafting
Committee of the Constitution of India regarding Article 25 (corresponding to the present
Article 32 of the Constitution) where he said that this Article is the very soul of the Constitution.

Issue 2: - Whether the Tribunals constituted either under Article 323A or under Article 323B of
the Constitution, possess the competence to test the constitutional validity of a statutory
provision or rule?

In this regard the court cited took help from the American practice regarding judicial review. The
court also found that the definition of judicial review in America and in India are similar and
therefore went on to review the position of judicial review in America and for this relied on the
view of Henry J. Abraham (Henry J. Abraham, The Judicial Process, an acclaimed American
Constitutional Law scholar. It found that theoretically every Court in America, no matter how
high or low, had the power of judicial review although it is seldom used. That is there is no
blanket prohibition on the conferment of judicial power upon Courts other than the U. S.
Supreme Court.
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The court also agreed that if the power of judicial review under Article 32 of the Constitution,
which has been described as the heart and soul of the Constitution, can be additionally conferred
on any other court, there is no reason why the same cannot be done in case of the power
conferred upon the High Court under Article 226 of the Constitution. However, it is must that
the jurisdiction of the High Court under Articles 226/227 and of the Supreme Court under
Article 32 is retained and the Tribunals function as a supplementary body.

In giving the reason of this view the learned Court pointed out the following points:

In view of the unprecedented increase of litigation it is necessary to provide Tribunals with

supplementary power of judicial review. In this regard the decision in Sampat Kumar’s case was
correct as it adopted the theory of alternative institutional mechanism in such a backdrop of
serious backlog of cases in the High Court.

• It is very necessary for clearing the backlog of pending cases which has assumed a
colossal proportion.
• Although the Tribunals have not performed upto the expectations it would not be
satisfactory to attribute these problems to the very basic principles of its establishment
and hold them as unsound. The reasons for the establishment of the Tribunals still
persist and have become more pronounced in the recent times.

However, it held that the jurisdiction of the Tribunals would be subject to the review of the High
Court under Articles 226/227. This would serve two purposes; one it will ensure that frivolous
claims would be filtered out through the process of adjudication in the Tribunal and two, the
High Court will not lose its power of judicial review. Thus, the Supreme Court held that the
Tribunals constituted either under Article 323A or under Article 323B of the Constitution,
possess the competence to test the constitutional validity of a statutory provision or rule subject
to the review by the High Court.

Issue 3: - Whether the Tribunals, as they are functioning at present, can be said to be the
effective substitutes for the High Court in discharging the power of judicial review? If not, what
are the changes required to make them conform to their founding objectives?

The Court throughout the judgment pointed out that the Tribunals are not substitutes of the
High Court but are supplementary. Moreover, it suggested the following changes:

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• They will function as a supplementary body and all such decisions of the Tribunals will
be subject to the scrutiny before a Division Bench of the respective High Courts.
• The contention that appointment of Administrative members to Administrative tribunals
should be stopped cannot be accepted as a judicious mix of judicial members and those
with grass-root experience would be better suited for the purpose of speedy and efficient
discharge of justice.
• To remove the inefficiency of the Tribunals the tribunals should be made subject to the
supervisory jurisdiction of the High Court.
• The Ministry may appoint an independent supervisory body to oversee the working of
the tribunals.

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OBSERVATION BY LARGER BENCH

The power of judicial review is a basic and essential feature of the Constitution and the
jurisdiction conferred on High Courts under Articles 226 and 227 and on Supreme Court under
Article 32 of the Constitution is a part of the basic structure of the Constitution.

For securing independence of judiciary, the judges of superior courts have been entrusted with
the power of judicial review. Though the Parliament is empowered to amend the Constitution,
the power of amendment cannot be exercised so as to damage the essential feature of the
Constitution or to destroy its basic structure.

The High Courts and the Supreme Court have been entrusted with the task of upholding the
Constitution (i.e. furthering the ends of the Constitution) and with a view to achieving that end,
they have to interpret the Constitution.

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VERDICT OF THE COURT

The Court held that Section 28 of the Administrative Tribunals Act, 1985 and the “exclusion of
jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B
would, to the extent that they exclude the jurisdiction of the High-Courts (under Articles 226
and 227) and the Supreme Court (under Article 32) would be ultra-vires the Constitution.

The Court held that there was no Constitutional prohibition against administrative tribunals in
performing a supplemental as opposed to a substitutional role; that is in exercising their powers
such tribunals cannot act as substitutes for High-Courts and the Supreme Court. Their decisions
will be subject to scrutiny by a Division Bench of the respective High-Courts i.e. all decisions of
these tribunals (tribunals created under Articles 323-A and 323-B of the Constitution of India)
will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction
the concerned tribunal falls.

Lastly, the Court upheld Section 5(6) of the Administrative Tribunals Act, 1985 as valid and
constitutional and held that Sections 5(2) and 5(6) of the Act must operate together and must be
harmoniously construed i.e. where a question involving the interpretation of a statutory
provision or rule in relation to the Constitution arises for 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 refer the matter to a Bench consisting of at least
two Members, one of whom must be a Judicial Member.

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RATIO DECIDENDI

• Power of judicial review over legislative action vested in the High Courts and the
Supreme Court under Articles 226 and 32 respectively is the basic structure of the
Constitution.
• Power of judicial superintendence over decisions of all courts and Tribunals within their
jurisdiction is the basic structure of the Constitution
• Judicial review of legislative action in exercise of power by subordinate judiciary or
Tribunals created under ordinary legislation cannot be to the exclusion of the High
Courts and the Supreme Court. However, they can perform supplemental – as opposed
to substitutional – role in this respect.
• Tribunals constituted under Articles 323A and 323B have the power to test vires of
subordinate legislation except vires of their parent statutes. All its decisions would be
subject to scrutiny before Division Bench of their respective High Courts under Articles
226/227. No appeal would lie directly to the Supreme Court under Article 136. The said
direction would operative prospectively.
• Appointment of Administrative members need not be stopped.
• Till a wholly independent body is set for the purpose of overseeing the working of the
Tribunals, all such Tribunals will be under single nodal ministry whose members would
be appropriately be a Ministry of Law.

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CRITICAL ANALYSIS AND CONCLUDING REMARKS

In pursuance of the power conferred upon it by Clause (1) of Article 323- A of the Constitution,
the Parliament enacted the Administrative Tribunals Act, 1985.

Pursuant to the provisions of the Administrative Tribunals Act 1985, the Central Administrative
Tribunal (CAT) comprising of five Benches was established on 1 November 1985. However,
even before CAT had been established, several writ petitions had been filed in various high-
courts as well as the Supreme Court challenging the constitutional validity of Article 323- A, as
also the provisions of the Administrative Tribunals Act 1985.

The exclusion of judicial review under Articles 226, 227 and 32 was questioned as violating the
basic structure of the Constitution in S.P. Sampath Kumar v. UOI. In S.P. Sampath Kumar v.
UOI, in the final decision the Court held that Section 28 which excludes jurisdiction of the High-
Courts under Articles 226/227 is not unconstitutional. The Court ruled that this section does not
totally bar judicial review. It also said that Administrative Tribunals under the 1985 Act are
substitute of High- Courts and will deal with all service matters even involving Articles 14, 15
and 16. It also advised for changing the qualifications of Chairman of the tribunal.
In J.B. Chopra and Ors. v. UOI, AIR 1987 SC 357, a Division Bench of the Supreme Court held
that “the Administrative Tribunal being a substitute power of the High Court had the necessary
jurisdiction, power and authority to adjudicate upon all disputes relating to service matters
including the power to deal with all questions pertaining to the Constitutional validity or
otherwise of such laws as offending Articles 14 and 16(1) of the Constitution.”

In M.B. Majumdar v. UOI, AIR 1990 SC 2263, The court, after analysing- the text of Article
323-A of the Constitution, the provisions of the impugned Act, and the decision in Sampath
Kumar, rejected the contention that the tribunals were the equals of the high-courts in respect of
their service conditions.

In R.K. Jain v. UOI, (1993) 4 SCC 119, Justice Ramaswamy analysed the relevant constitutional
provisions; the decision in Sampath Kumar, J.B. Chopra and M.B. Majumdar, and held that the
tribunals created under Articles 323-A and 323-B could not be held to be substitutes of High-
Courts for the purpose of exercising jurisdiction under Articles 226 and 227 of the Constitution.
In L. Chandra Kumar v. UOI, (1995) 1 SCC 400, a Division Bench of the Supreme Court
expressed the view that the decision rendered by the Constitutional Bench of five Judges in
Sampath Kumar case needed to be “comprehensively reconsidered”, and a “fresh look by a

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larger Bench over all the issues adjudicated in Sampath Kumar case was necessary”. In the light
of the opinion of the Division Bench, the matter was placed before a larger Bench of seven
Judges. The position of law as subsists today that Administrative Tribunals can perform a
supinate role as opposed to a substitutional role, so far as the High-Courts are concerned. It is a
settled proposition that the High-Coutts by nature are Constitutional Courts and ousting their
jurisdiction, so vested in them by Articles 226 and 227 of the Constitution is against the Doctrine
of Basic Structure. Moreover, has already been deckled overtime by plethora of judgements that-
Tribunal under Part XIV-A of the Constitution shall be 'forums of first redressal' regards to
remitters—for the adjudication of which they have been established; likewise on grounds desire
and legally correct, appeals shall lie to the High- Courts and thereafter to the Supreme Court
respectively, as the case may be, well agreed and It is agreed that Tribunals are free from the
trappings of the courts and expound justice on the principles of natural justice, thereby ensuring
tine effective and cost effective justice, however based on observations made in the R. K. Jain's
case nothing can concretely be sail about the 'quality of justice' delivered or dispensed with.
Opening the forum in regards to appeal to the High-Courts and there from to the Supreme
Court, as from the orders of Tribunals on one hand is necessary to ensure that justice delivered
or dispensed with is quality justice- in the nature of Fiat Justitia Courts- to ensure lesser
burdening of which Part XIV- A of the Constitution was enacted the first place. The scenario as
it stands today is that, by establishment of Tribunals what can be ensured is that, speedy justice is
delivered (as tribunals are free from the trappings of the Courts) but only to the extent of the
lower of the judiciary, and the scenario becomes the same as the case progresses the High-Court
or the Supreme Court; that is situation similar to any other case for adjudication of which no
tribunals are established and thereby are adjudicated upon by the ordinary courts. The
contentions raised in the present case and decisions rendered in regards to sane are well
appreciated and can be summarised as follows- (l) Articles 323-A and 323-B are unconstitutional
to the extent they exclude maculation of the High-Coutts under Articles 226/227 and of
Supreme Court under Article 32 of the Constitution; (2) The tribunals constituted under Part
XIV- A of the Constitution are possessed of the competence to examine the constitutional
validity of statutory provisions and rules except statutes establishing these tribunals; (3) 'These
tribunals will continue to work as the courts of first stance in respect of the areas of law for
which they have been constituted. The litigants cannot remove the High Court directly; (4) No
appeal will lie under 136 to the Supreme Court directly from the decisions of these tribunals.
Special leave petitions will lie from the decision of tl-r High-Court. But in the light of cases
discussed in the present case along with the opinions of expert bodies such as the Law

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Commission of India and the Malirmoth Committee, what can be said is that in regards to
tribunals in India constituted under Pan XIV- A of the Constitution of India, has been bitter and
far from satisfaction and no concrete solution for the sane has been provided for or has been
discussed in the present case. The SC in the present case was rare concerned with deciding-
whether or not the jurisdiction of the High-Courts under Articles 226 and 227, and that of the
SC under 32, can be ousted by the Administrative Tribunals; the SC did acknowledge that
functioning of Administrative Tribunal in India has been very poor but was still against the idea
of their abolishment; what is note-worthy is that the SC did not provide any concrete solution as
to how the functioning of the Administrative Tribunals be improved, except of the opinion that
these Tribunals must be placed under the scrutiny of the High-Coutts so as to ensure that these
Tribunals deliver quality justice—irrespective of the fact that the problem of docket explosion
with which the High-Courts are suffering at present will remain un-resolved. Overall the
Judgement is well-written but the Bench has not adjudicated upon all the issues of vial
impedance i.e. Judgement doesn't seem to be far-sighted (with all due Respect to the Hon'ble
Judges). The Judgement settles the debate that the jurisdiction of the Constitutional Courts can
never be ousted; and too great extent also proves that the purpose for which the Tribunal were
formed i.e. reducing the pitching of the cases in the Constitutional Courts, largely remains un-
resolved (it is not that the Tribunals require sometime to establish fully- well and only then there
functioning should be judged- because when this Judgement was delivered nearly a decade had
already elapsed since the Tribunals were first established).

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