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It was for the first time in s.P sampath Kumar v. (Jnion of Indiaz,
the constitutionality of section 28 of the Administrative Tribunals Act,
1985, was challenged on the ground that it violated the basic structure of
the Constitution, as it excludes the jurisdiction of High Courts underArticles
226 and227 and of the Supreme Court underArticle3},except under
Article I36 of the Constitution.
that most of the grounds of challenge did not survive and restricted its
focus to testify only the constitutional validity of the provisions of theAct.
The Court further held that the Administrative Tribunal under the
Act has been contemplated as a substitute and not as supplemental to the
High Court in the scheme of administration ofjustice and it is entitled to
exercise powers thereof. The Tribunal should be a real substitute of the
High Court, not only in form and dejure but in content and defacto. The
alternative ,urangement has to be effective and efficient as also capable of
upholding the constitutional limitations and it should be sufficiently
independent.
5. Supra n.2.
6. A.r.R. 1973 S.C, 1461.
C.U.L.R. Notes & Comments 497
The tribunals are left uncontrolled and become more free to abuse
the power as the Supreme Court cannot intervene suo-motu in the
functioning of tribunals underArticle 136, as the High Court can under
Article 227 of the Constitution. The object of the superintendence
jurisdiction of High Court to control the tribunals from going outside the
jurisdiction cannot be fulfilled by the Supreme Court, nor can the Supreme
Court correct the error committed by these bodies. Though the writ
jurisdiction of Supreme Court under Article 32 is restored by the
Amendment of the Act, the writ jurisdiction of High Courts under Articles
7. Supra n. 4.
498 Cochin Uniuersity Law Review t20031
In this case, Ramaswamy, J., held that the tribunals created under
Articles 323 A and 323B* could not be held as substitutes of High Courts
for the purpose of exercising jurisdiction under Articles 226 and227 of
the Constitution. The Court further observed that having had the benefit
of more than five years experience of working of these alternative
institutional mechanisms, anguish was expressed over their ineffectiveness
in exercising the high power of judicial review. It was noted that their
performance had left much to be desired. Therefore, the sole remedy
provided, that is 'an appeal to the Supreme Court under Article 136 of
the Constitution', had proved to be prohibitively costly while also being
inconvenient on account ofdistance involved.
The Andra Pradesh High Court while dealingwith the same issues
in Sakinala Harinathv. State of A.P.r0, declaredArticle 323A(2Xd) of
the Constitution to be unconstitutional to the extent it empowers Parliament
to exclude the jurisdiction of High Court under Article 226 of the
Constitution. Moreover Section 28 of the Act also has been held to be
unconstitutional to the extent that it divests the High Court's jurisdiction
underArticle226 of the Constitution in relation to service matters.
8. Supra n.2.
9.
A.I.R. r 993 S.C. 1769.
10. (1994) r A.P.L.J. (H.C.).r.
C.U.L,R. Notes & Comments 499
In this judgement M.N. Rao, J., held that under our constitutional
scheme, the Supreme Court and the High Courts were the sole repositories
of the power ofjudicial review.
Therefore, the Supreme Court held that the power vested in High
Court to exercise judicial superintendence over all courts and tribunals
within their respective jurisdictions is also a part of the basic structure of
the Constitution. The Supreme Court also emphasized that the subordinate
judiciary or tribunals created under ordinary legislation cannot exercise
the power ofjudicial review of legislative action to the exclusion of High
Courts and the Supreme Court. There is no constitutional prohibition
against their performing a supplemental role as opposed to substitutional
one in this respect.
The Supreme Court held that all the decisions of the tribunals will
be subject to the jurisdiction of High Court under Articles 226 and221 of
the Constitution before the Division Bench of the High Court within whose
territorial jurisdiction the tribunal concerned falls. In support of this decision,
the Supreme Court accepted the contention that the remedy provided
under the Act by way of Special Leave Petition under Article 136 of the
Constitution is too costly and inaccessible and the docket of the Supreme
Court is crowded with litigations that are challenged on relatively trivial
grounds and it is forced to perform the role of first Appellate Court.
The Supreme Court finally held that, clause (2)(d) of Article 323A
and clause(3Xd) of Art 3238 of the Constitution, to the extent they exclude
the jurisdiction of High Courts and Supreme Court under Articles 226,
227 and 32 of the Constitution, are unconstitutional. Section 28 of the
Act and the "exclusion of jurisdiction" clauses in all other legislations
enacted under the aegis of Articles 323Aand323B would, to the same
extent, be unconstitutional. The jurisdiction conferredupon the tribunals
had become "resting place for those who have outlived their utility" and
had become "dead wood"le.
t9. Ibid.
Cochin Uniuersity Law Reuiew t20031
21. K.I. Vibhute, "Administrative Tribunals and the High Courts : A Pleafor
Judicial Review", 29 Ll.Ll. 524 (1987) at p. 546.
504 Cochin Uniuersity Law Reuiew 120031
22. Ibid.
C.U.L.R. Notes & Comments 505
Consequently the laffer category can never be considered full and effective
substitutes for the superior judiciary. Several tribunals functioning in the
country have not inspired confidence in the public mind. The foremost
among the reasons is lack of competence and objectivity of judicial
approach. The next is its constitution, power and method of appointment
of personnel thereto, the inferior status and the casual method of working.
The last is the actual composition, i.e., men of caliber are not willing to be
appointed as presiding officers in view of uncertainity of tenure,
unsatisfactory conditions of service, exclusive subordination in matters of
administration and political interference in judicial functioning.
For these very reasons, the quality ofjustice is said to have suffered
and the cause of expedition is not found to have been served by
establishment of such tribunals. Therefore the quasi-judicial bodies should
not be left free of control of the judiciary. The High Court should have the
jurisdiction to supervise over these bodies.
H.A. Kadri*
23. Supra n. 14
* Lecturer, N.B.T. Law College, Nasik (M.S.). The author is indebted to Dr.
M.V. Saykhedkar & Professor S.C. Hajare for their valuable suggestions
and comments.