DOCTRINE OF JUDICIAL REVIEW AND TRIBUNALS :

SPEED BREAKERS AHEAD

I Introduction
"JUDICIAL REVIEW, in its most widely accepted meaning, is the power of
courts to consider the constitutionality of acts of other organs of government
where the issue of constitutionality is germane to the disposition of law-suits
properly pending before the courts." 1 The concept of judicial review has different
meanings and connotations under different democratic Constitutions. Thus the
doctrine of judicial review has acquired different nuances during the course of its
evolution in UK, USA and India. While its origins can be traced to UK which has
no written Constitution, it has become firmly established in USA with a written
Constitution establishing a federal polity.2 However, the doctrine reached its
culmination under the Indian Constitution when the Supreme Court of India
bestowed on judicial review the widest ambit and amplitude in the casus celebri
Kesavananda Bharati v. State of Kerala.2

II Judicial review in UK
According to Pritchett, the foundations of judicial review are to be traced to
"the obvious influence of natural law, the belief that human is conduct guided by
fundamental and immutable laws which have natural or divine origin and sanc-
tion."^ Thus in Dr. Bonham's case (1610), 4 Chief Justice Coke stated:

[W]hen an Act of Parliament was against common right or reason,

repugnant, or impossible to be performed, the Common Law would
control it, and adjudge such Act to be void.5

Though the above Cokian dictum contains the seminal vestiges of the doctrine
of judicial review, the doctrine, as it is understood now, as the judicial power to
strike down unconstitutional legislation, failed to strike roots in England because
of the historic conflict between the royal prerogative on the one hand, and
Parliament and the people on the other. The ultimate victory of the people against
the royal prerogative really meant the victory for Parliament and this quirk of
history led to the establishment of the doctrine of parliamentary sovereignty as
eloquently propounded by Dicey.6 The necessary consequence of the so-called
omnipotence of British Parliament is the hyperbolical proposition of De Lolme
that "it is a fundamental principle with English lawyers, that Parliament can do

1. Encyclopaedia of the American Constitution 1054 (1986).

2. AIR 1973 SC 1461.
3. C. Herman Pritchett, American Constitution 136 (1959).
4. 8 Coke Reports 114. See also, T.F.T. Plueknett, "Bonhom's case and Judicial Review", 40 Hon-
LRev 30 (1926); S.F. Thome, "Dr. Bonham's ease" 54 L Q Rev 543 (1938).
5. See also, Vijayalaxmi Dudeja, Judicial Review in India (1988): Asha Gupta,'kJudieial Review in
USA and India - A Comparative Study". Indian J Amer Stud vol. 22. p. 43 (1992).
6. A.V. Dicey, Introduction to the Study of the Law of the Constitution 39 (9th ed. 1950).

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everything but make a woman a man, and a man a woman." Hence Dicey
emphatically states that "English judges do not claim or exercise any power lo
repeal a Statute/' 7 In fact he proceeds to say that judicial law-making is "in short,
subordinate legislation" because "Acts of Parliament may over-ride and con-
stantly do override the law of the judges." 8
Consequently courts in England have come to exercise only a limited power
of judicial review in the sense that they review the validity of subordinate
legislation and the other executive acts of the government and strike them down
if they are ultra vires the provisions of the parent Acts under which they are made.
But, the English courts, including the House of Lords, do not have the power lo
declare the Acts of Parliament as null and void on any ground whatsoever. The
absence of a written Constitution and legal recognition of the doctrine of parlia-
mentary sovereignty seem to have inhibited the emergence of a full-fledged
doctrine of judicial review in England.9

Ill Judicial review in USA

Unlike UK where a unitary form of government exists under an unwritten
Constitution, USA adopted a written Constitution with a federal polity, thus
establishing a constitutionally limited or controlled government. The American
constitutional milieu provided a fertile soil for emergence of the doctrine of
judicial review under which the federal Supreme Court would be the arbiter in
enforcement of the federal principle and upholding the rights of the people. Thus
Hamilton, one of the founding fathers of the American Constitution argued that
"the limited Constitution can be preserved in practice no other way than through
the medium of courts of justice, whose duty it must be to declare all acts contrary
to the manifest tenor of the Constitution void."10 But it was Chief Justice John
Marshall who propounded in an articulate and authentic fashion the modern
doctrine of judicial review in the locus classicus Marbury v. Maddison in 1803."
Marshall declared:

Thus the particular phraseology of the Constitution of the United States

confirms and strengthens the principle, supposed to be essential to all
written Constitutions, that a law repugnant to the Constitution is void, and
that the courts as well as other departments, are bound by that instru-
ment. 32

The learned Chief Justice founded the doctrine of judicial review on the
following basic principles:
(0 The Constitution is the "fundamental and paramount Law of the na-
tion" and hence commands supremacy.

7. Id. at 60.
8. Ibid.
9. See, supra note 3.
10. Alexander Hamilton, The Federalist 78.
11.1 Cranch 137 (1803).
12. Ibid.

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(ii) In the case of written Constitutions, particularly of federal character, the

court has to perform the function of an arbiter in maintaining the balance
between the federation and the federating units with regard to distribu-
tion of legislative powers.
(Hi) The power of judicial review is inherent in a federal Constitution though
it is not expressly provided for.
(iv) "It is emphatically the province and duty of the judicial department lo
say what the law is."
(v) The President of USA and the judges of the Supreme Court are under an
oath to uphold the Constitution.' 3
Over a period of time the doctrine of judicial review has become the corner-
stone of American constitutional jurisprudence and the power of judicial review
has come to be exercised by the federal as well as State Supreme Courts to lesi
the validity of the legislative and executive actions of the federal as well as the
State legislatures and governments.

IV Judicial review in India

Unlike the American-Constitution which under article III, section 1 declares
that "the Judicial Power of the United States, shall be vested in one Supreme
Court and in such inferior courts as the Congress may from time to time ordain
and establish", the Indian Constitution does not contain an express provision to
that effect.14 However, it is generally believed that the power of judicial review
of the Supreme Court of India is traceable to article 13(1) and (2) and article 32( 1 )
and of the High Courts to article 226. 15
Article 13 which appears in part III of the Constitution dealing with the
fundamental rights provides in clause 1 and 2 as follows:

(1) All laws in force in the territory of India immediately before the
commencement of this Constitution in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be
void.

(2) The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.

Article 32 clause 1 provides:

the right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

13. Ibid. See also, Alfred H. Kelly and Winfred A. Harbison, The American Constitution: It's Origin
and Development 228 (1955); C. Herman Pritchett, supra note 3 at 138-41.
14. Cf. art. 53(1), Constitution of India.
15. See, State of Madras v. V.G. Row, AIR 1952 SC 196; Kesavananda Bharati v. State of Kerala.
supra note 2 at 1899.

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Article 226 clause 1 confers on the different High Courts the power to enforce
"any of the rights conferred by Part III and for any other purpose."
It can be seen from the above provisions that the judicial review of the
Supreme Court is confined to declaring as unconstitutional and null and void the
laws made by Parliament and the state legislatures if they take away or abridge
any of the fundamental rights conferred by part III. There is no other express
provisions conferring similar power on the Supreme Court with regard to legis-
lation contravening provisions of the Constitution other than those contained in
part III. On the other hand, article 226 confers on the High Courts the power to
strike down laws contravening not only the provisions of that part but also "for
any other purpose," Thus the High Courts' power of judicial review extends not
only to part HI but also to the rest of the Constitution. The necessary consequence
of the above position would be that the Supreme Court's power of judicial review
in the exercise of its original jurisdiction under article 32 is confined to part III
whereas in its appellate jurisdiction the Supreme Court can exercise this power
over the entire Constitution.
It may however be argued that the power of judicial review of the Supreme
Court comprehending the entrie Constitution is to be traced to its inherent power
as the highest court of the land under a written Constitution establishing a federal
polity. Whether the unconstitutionality of legislation arises out of the lack of
competence on the part of the legislature or because of contravention or violation
of fundamental rights, the resultant invalidity of the legislation is the same.
Similarly, the unconstitutionality of legislation is the same whether it contravenes
the provisions of part III which are specially protected by articles 13, 32 and 226
or whether it contravenes the rest of the provisions of the Constitution which are
not so specially protected with regard to the Supreme Court. Hence to trace the
power of judicial review of the Supreme Court only to articles 13 and 32 would
be an incomplete exercise. Thus in A.K. Gopalan v. State of Madras,xb Kania, C.J.
pointed out that article 13 was inserted in part III of the Constitution ex abundante
cautela and in India the Constitution was supreme and that a statute law to be
valid, must be in conformity with constitutional requirements and it was for the
judiciary to decide whether any enactment was constitutional or not. Thus
articles 13 and 32 do not exhaust the power of judicial review of the Supreme
Court and at best these two provisions signify and symbolise the great importance
that the founding fathers attached to the fundamental rights guaranteed by part III,
Consequently the Supreme Court of India and the High Courts are bestowed
with the power of judicial review in all its three aspects so as far generally
understood, i.e., firstly, the judicial review means the power of the courts to
review delegated or subordinate legislation and the acts of the executive in terms
of their compatibility with the parent Acts. This has come to be known as the 'ultra
vires' doctrine and this power is exercised by the courts in England, USA and in
India. Secondly under federal Constitutions the courts have the power to enforce
the scheme of distribution of legislative powers between the Central Government
and the provincial governments. This judicial function is inherent in a written

16. AIR 1950 SC 27.

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 1997] DOCTRINE OF JUDICIAL REVIEW AND TRIBUNALS 4.15

federal Constitution irrespective of whether such power is expressly conferred or

necessarily inferred. Judicial review in this sense is peculiar to federal Constitu-
tions, like that of the USA and India and hence is not found under the English
Constitution which is unitary and unwritten. Thirdly, judicial review in its third
and most commonly used sense means the power of the courts to declare the Acts
of the legislature as unconstitutional if such a legislation is repugnant to the
Constitution which is the fundamental law of the country. This was in essence
what was propounded by Chief Justice Marshall in Marbury v. Maddison^0 and
this power is also exercisable by the courts in the USA and India and not in the
United Kingdom.

V Kesavananda Bharati case and basic structure doctrine —

another dimension of doctrine of judicial review
As has been observed at the outset, the doctrine of judicial review has been
taken to its pinnacle of glory in the famous Kesavananda Bharati v. State of
Kerala.11 In that historic and momentous judgment, the Supreme Court held that
while the amending power under article 368 is comprehensive enough to cover the
amendment of any part of the Constitution including the fundamental rights, the
power could not be exercised so as to destroy those features of the Constitution
which constitute its basic structure. The crux of the holding in Kesavananda has
been pithily put in para 2 of the summary of the majority judgments signed by 9
out of the 13 judges. It states:

Article 368 does not enable Parliament to alter the basic structure or
framework of the Constitution.18

In Kesavananda while different judges identified different features as consti-

tuting the basic structure of the Constitution, it is remarkable that the doctrine of
judicial review was not per se mentioned as one of the basic features of the
Constitution. In fact the doctrine of judicial review has been added to the list of
basic features in Minerva Mills v. Union of India.19 In all the cases that have been
decided by the Supreme Court subsequent to Minerva,20 wherein constitutional
amendments were tested on the ground of affecting the basic structure of the
Constitution, the Supreme Court and the A.P. High Court struck down certain
provisions of those constitutional amendments only on the ground of ouster of
16<7. Supra note I 1.
17. See, supra note 2,
18. Id. at 1462. Though some doubts have been raised whether the summary is part of the judgment
or not, \lhasbccnhe\d\n Minerva Mills v. Union of India, AIR 1980SC 1789 at 1824, that the summary
correctly reflected the majority view in Kesavananda, supra note 2.
19. Id. at para 91.
20. In Indira Gandhi v. Raj Narain, AIR 1976 SC 2299, the Supreme Court struck down el. (4) of
art. 329 on the ground that it violated the Rule of Law and free elections which according to the court
constituted a basic feature of the Constitution. It may be noted that this decision was earlier to Minerva
Mills.
21. See, Sampath Kumar v. Union of India, AIR 1987 SC 386; Kihota v. Zachillu. (1992) Supp (2)
SCC 651; Subash v. Union of India, AIR 1991 SC 631; SAW Kumar v. Union of India. (1992) 2 SCC
428; Sakinala Harinath v. Andhra Pradesh, (1993) 2 An WR 484.

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416 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 39 : 2 - 4

judicial review of the Supreme Court or of the High Courts.21 What is remarkable
about the judgment in Kesavananda and the pronouncements that followed it is
that the Supreme Court of India has assumed to itself and the High Courts the
power to pronounce upon the constitutionality of constitutional amendments and
strike down those provisions of the constitutional amendments which in their view
have violated the basic structure of the Constitution. This enormous power
assumed by the Supreme Court and granted to the High Courts is unique and has
no parallel in any democratic Constitution in the world.
It must however be pointed out that the Supreme Court has not clarified
whether the High Courts also could be vested with the power of judicial review
to the extent of striking down constitutional amendments on the ground of
violation of basic structure. The Supreme Court has not made any distinction
between the ambit of judicial review of Supreme Court and that of the High Courts
and did not specify that the power of the High Courts is confined only to striking
down subordinate legislation on the ground of lultra vires' doctrine or declaring
as unconstitutional legislative and executive action for the contravention of
fundamental rights or other constitutional provisions.

VI Judicial review and judicial functions

Here it is worthwhile to distinguish between the general judicial functions and
jurisdiction of the Supreme Court and its special powers of judicial review
expressly conferred by article 32 (1). There are various provisions in the Consti-
tution whereby the jurisdiction of the Supreme Court is expressly excluded in
relation to certain subject matters like articles 131, 22 262 23 and 32924 and under
those provisions the jurisdiction of the Supreme Court is excluded and conferred
on other bodies or functionaries.
On the other hand the power of judicial review of the Supreme Court under
article 32(1) and (2) to issue writs, etc., for the enforcement of fundamental rights
stands on a different footing altogether. Article 32 (3) provides:

Without prejudice to the powers conferred on the Supreme Court by

clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction/all or any of the powers
exercisable by the Supreme Court under clause (2).

It is clear from the above provisions that while Parliament is competent to

confer the power exercisable by the Supreme Court under article 32( 1) and (2) on
"other courts", such conferment should be without prejudice to the power of the
Supreme Court under article 32(1) and (2). Hence the power of the Supreme Court
under article 32(1) and (2) is sacrosanct and inviolable and cannot be ousted. The

22. Art. 131 proviso provides for exclusion of original jurisdiction of the Supreme Court with regard
to disputes arising out of any pre-constitutional treaty, agreement, etc., which are still in force.
23. Art. 262(2) provides that Parliament may by law oust jurisdiction of the Supreme Court and other
courts with regard to a dispute or complaint relating to inter-state river or river valley.
24. Art. 329 el. {a) provides that the validity of any law relating to delimitation of constituencies.
etc., made under arts. 327, 328 shall not be called in question in any court.

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1997] DOCTRINE OF JUDICIAL REVIEW AND TRIBUNALS 417

expression "the courts" in article 32(3) cannot be taken to refer to the High Courts
because they are already vested with this power expressesly under article 226 of
the Constitution. Hence, the expression "other courts" in article 32(3) naturally
refers to courts other than the High Courts, and might include the district courts
or any other courts that might be established by Parliament in the exercise of its
power under article 247. 25 As has been pointed out above, the power of judicial
review of the High Courts under article 226 is wider than that of the Supreme
Court in the sense that the High Court can strike down any law not only for
violation of fundamental rights but also for contravention of any other provision
of the Constitution. As far as this all-pervasive power of judicial review is
concerned, the power of the High Courts is expressly conferred, while the power
of the Supreme Court is necessarily inferred. But, while article 32(3) expressly
provides that the power of the Supreme Court under article 32( 1) and (2) can be
conferred by Parliament on other courts without prejudice to tfie power of the
Supreme Court under article 32(1) and (2), the saving clause does not protect the
jurisdiction of the High Courts under article 226, The "without prejudice" clause
is not contained in article 226 either. Hence, Parliament can confer the writ
jurisdiction on "other courts" under article 32(3) without prejudice to the powers
of the Supreme Court under article 32(1) and (2) but can oust the jurisdiction of
the High Courts under article 226. Thus Parliament can establish alternative
dispute settlement machinery which will be a substitute to the High Courts but not
to the Supreme Court.
While holding that judicial review was "part of the basic structure of the
Constitution" Bhagawati J., observed in Minerva Mills:2(i

Of course, when I say this I should not be taken to suggest that however
effective alternative institutional mechanisms or arrangements for judi-
cial review cannot be made by Parliament.

This point was further elaborated by the learned judge in Sampath Kumar}1

The basic and essential feature of judicial review cannot be dispensed

with but it would be within the competence of Parliament to amend the
Constitution so as to substitute in place of the High Court, another
alternative institutional mechanism or arrangements for judicial review,
provided it is not less efficacious than the High Court....

Ranganath Mishra, J. who wrote the majority judgment in Sampath Kumar,

after mentioning that "judicial review by this court is left wholly unaffected"
held:

25. Under art. 247, Parliament may by law provide for the establishment of any additional courts tor
better administration of laws made by Parliament or of any existing laws with respect lo a mauer
enumerated in the Union List. See also, List I, Entries, 77, 78 and 95 and List III, Entry 5 of the Seventh
Schedule of the Constitution.
26. Supra note 18 paras 287-88. Justice BhagwatTs judgment was a minority.
27. See, supra note 21 at 389. Justice Bhagwati delivered a concurring judgment.

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418 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 39 : 2 - 4

Thus exclusion of jurisdiction of the High Court does not totally bar
judicial review. This court in Minerva Mills (case), (AIR 1980 SC 1789)
did point out that 'effective alternative institutional mechanisms or
arrngements for judicial review' can be made by Parliament. Thus it is
possible to set up an alternative institution in place of the High Court for
providing judicial review.... The tribunal has been contemplated as a
substitute and not as supplemental to the High Court in the scheme of
administration of justice... thus barring of the jurisdiction of the High
Court can indeed not be a valid ground of attack.28

It isj^spficlfully submitted that the above quoted judgments correctly state the
constitutional position with regard to power of judicial review of the Supreme
Court and of the High Courts and justify the interpretation placed above on articles
32(1), (2) and (3), and articles 226 to the effect that while the power of judicial
review of the Supreme Court is exclusive, that of the High Courts is not exclusive
and can be conferred upon other institutional machinery.

VIII Judicial review : High Courts versus administrative tribunals

With the enormous growth of administrative law in India in the post-Indepen-
dence period, the government and its various instrumentalities came to exercise
a wide variety of administrative powers. The existing system of courts proved to
be inadequate to meet the needs of adjudicating various kinds of disputes that
arose in different fields. There are a number of reasons which paved the way for
the establishment of specialised administrative tribunals which include want of
technical expertise required to adjudicate a dispute, consumption of more time by
the courts, rigid procedural formalities involved and court fees required to be paid
by the litigants, etc. However, it would be far from the truth to say that the
tribunals in India came to be established only after the Independence. There
existed many industrial tribunals, labour courts, income-tax tribunals and juvenile
courts not only in the pre-Independence India, but also in USA and UK. In the
post-Independence era, there was a substantial growth of tribunals not only
numerically but also from the point of various specialised areas like industrial law,
taxation, motor vehicle accidents, customs and excise, consumer protection,
environmental matters and, last but not the least, service matters.

Service tribunals
The 42nd Constitutional Amendment 1976 has made major changes in the
settlement of disputes relating to service matters, etc., by the introduction of
article 323-A and 323-B. Article 323-A empowers Parliament and state legisla-
tures to establish service tribunals to deal with the litigation pertaining to service
matters. The provisions of article 323-/1 relevant to the present discussion are as
follows:

28. Id. at 395.

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1997] DOCTRINE OF JUDICIAL REVIEW AND TRIBUNALS 419

(1) Parliament may, by law, provide for the adjudication or trial by

administrative tribunals of disputes and complaints with respect to re-
cruitment and conditions of service of persons appointed to public ser-
vices and posts in connection with the affairs of the Union or of any stale
or of any local or other authority within the territory of India or under the
control of the Government of India or any corporation owned or con-
trolled by the government.
(2) A law made under clause (1) may...

(d) exclude the jurisdiction of all courts, except the jurisdiction of the
Supreme Court under article 136, with respect to the disputes or com-
plaints referred to in clause (1).

Article 323-fi (1) empowers the appropriate legislatures for the establishment
of tribunals for adjudication or trial of any disputes, complaints, or offences with
respect to matters mentioned in clause (2) which include tax matters, and matters
relating to foreign exchange, import and export, industrial and labour disputes,
land reforms, elections to either House of Parliament and to state legislatures, etc.
Article 323-fl(3)(<f) is in pari materia with article 323-A(2)(d).
In pursuance of article 323-/4, the Administrative Tribunals Act of 1985 has
been enacted by Parliament setting up administrative tribunals to deal with service
matters. Section 28 of the Act excluded the jurisdiction of all courts except the
Supreme Court under article 136 of the Constitution in relation to service matters.
In Sampath Kumar v. Union of India^ the constitutionality of the Act was
challenged particularly on the ground of violation of basic structure of the
Constitution because section 28 excluded jurisdiction of the High Courts com-
pletely and provided for special leave petition to the Supreme Court under article
136 of the Constitution. Before the final hearing of the case, section 28 of the Act
was further amended so as to save jurisdiction of the Supreme Court under article
32 also. As has been already pointed out, 30 the Supreme Court speaking through
Ranganath Mishra J. with Bhagwati J. concurring31 upheld the constitutionality of
the Administrative Tribunals Act of 1985 and held that Parliament might by law
exclude the judicial review of the High Courts by providing for equally effective
substitute dispute settlement machinery.
The constitutionality of the Act and the ouster clauses contained in articles
323-4 and B of the Constitution read with section 28 of the Act came under
scrutiny of the Supreme Court in the recent landmark judgment in L. Chandra
Kumar v. Union of India?2

VIII Chandra Kumar and power of judicial review

After exhaustively discussing the relevant constitutional provisions and pro-
nouncements of the Supreme Court and High Courts with regard to the nature and
29. AIR 1987 SC 386.
30. See text pertaining to supra note 28.
31. See text pertaining to supra note 26.
32. (1997) 3 SCC 261.

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extent of the power of judicial review of the Supreme Court and the High Courts,
particularly in the context of the basic structure doctrine propounded by the
Supreme Court in Kesavananda Bharati case, the Supreme Court held in Chandra
Kumar as follows:
(1) The power of judicial review over legislative action vested in the High
Courts under article 226 and in this court under article 32 of the
Constitution was an integral and essential feature of the Constitution
consisting part of its basic structure.
(2) Ordinarily, as such, power of both the High Courts and the Supreme
Court to test the constitutionality of legislations, cannot be ousted or
excluded.
(3) The power vested in the High Courts to exercise judicial superintendence
over decisions taken by courts and tribunals within the respective
jurisdictions was also a part of the basic structure of the Constitution.
(4) This was so because a situation where the High Courts were divested ol
all other judicial functions apart from that of the constitutional interpre-
tation, was equally to be avoided.
(5) So long as the jurisdiction of the High Courts under articles 226 and 227
and that of this court under article 32 was retained, there was no reason
why the power test validity of legislations against provisions of the
Constitution could not be conferred upon administrative tribunals, the
only exception to such power of judicial review of tribunals being that
a tribunal which is a creature of an Act cannot declare that very Act to
be unconstitutional.
(6) Since service law matters often involved the interpretation of articles
14, 15 and 16 of the Constitution, to hold that tribunals had no power
to handle matters involving constitutional issues would not serve the
purpose for which they were constituted.
(7) As the manner in which justice was dispensed by the tribunals left much
to be desired and since the remedy provided in the parent statutes by way
of an appeal by Special Leave Petition under article 136 of the Consti-
tution was too costly and inaccessible to be real and effective, the court
held that all decisions of tribunals, whether created pursuant to article
323-A or 323-Z? of the Constitution, would be subject to the High Courts
writ jurisdiction under articles 226 and 227 of the Constitution before
a Division Bench of the High Court within whose territorial jurisdiction
the particular tribunal fell.
(8) The Supreme Court was of the opinion that the above approach would,
while, protecting the power of judicial review of the High Courts under
articles 226 and 227, also preserve jurisdiction of the tribunals not only
to decide the service matters before them, but also their power of
judicial review in striking down ultra vires subordinate legislation and
unconstitutional legislative enactments.

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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:
(0 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
(Hi) 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
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 Sakinala Harinath v. Andhra
Pradesh^ has struck down article 323-A (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.

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422 JOURNAL OF THE INDIAN LA W INSTITUTE \ Vol 39 2-4

should exclusively reserve to itself the power to strike down constitutional

amendments for violating the basic structure of the Constitution. Bestowing this
power on the High Courts would create terrible constitutional confusion and this
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.
After Kesavananda*s case, the grand 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 L Rev (Special Issue) on Dispute Resolution: Civil Justice and Alternative, vol. 56. no.
3 (May 1993).

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1997] DOCTRINE OF JUDICIAL REVIEW AND TRIBUNALS 423

pensed by the tribunals. The composition of the tribunals also needs particular
attention. There is no doubt, that many remedial measures have to be taken
regarding the composition, qualifications and mode of appointment of members
of the tribunals as well as the judges of different High Courts and of the Supreme
Court. Legal fraternity is seriously concerned about the falling standards and
accountability in the justice delivery system. As the Supreme Court did in
Sampath Kumar's case, it could have proposed in Chandra Kumar's case various
legislative measures to improve the tribunal justice system. Instead the Supreme
Court sends a wrong signal in Chandra Kumar's case that it was more concerned
with maintenance of judicial supremacy because of the apprehension that the
growth of alternative dispute settlement mechanism might ultimately lead to
confining the higher judiciary to that of a constitutional court.
It may not be out of place here to submit that in view of the consistent
pronouncements of the Supreme Court since Minerva Mills case that judicial
review is a part of the basic structure of the Constitution, the continued existence
of the Ninth Schedule which has far grown beyond its original rationale, is
inconsistent with even the original version of the doctrine of judicial review as
propounded in Marbury v. Maddison. The fundamental premise of the Ninth
Schedule was to save the unconstitutional statutes from any challenge. It cannot
be said that statutes which do not violate the basic structure doctrine only can be
placed in the Ninth Schedule. If the statutes are otherwise in conformity with the
Constitution, they do not need to be placed in the Ninth Schedule. Hence, it is high
time that the Supreme Court reconsiders its stand regarding the parameters of the
Ninth Schedule in the context of co-existence of power of judicial review as a
basic feature and the very negation of it in the form of the Ninth Schedule. 37

V. Nageswara Rao*
G.B. Reddy**

37. See, Waman Rao v. Union of India, AIR 1981 SC 271, Prag Ice & Oil Mills v. Union of India,
AIR 1978 SC \296mdGodavari Sugar Mills \.S.B. Kamble, AIR 1975 SC 1193. See also, Durga Das
Basu, Shorter Constitution of India 259-60, 1285, 1289 (12th ed. 1996).
* B.A., LL.M, Ph.D., Professor of Law, University College of Law, Osmania University, Hyderabad
(A.P.).
** B.A., LL.M., Lecturer in Law, University College of Law, Osmania University, Hyderabad
(A.P.).

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