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Superintendence Jurisdiction of High

Courts over Administrative Tribunals


It is a well known fact that the present ethos has resulted in the
increase of the administrative functions of State. The numberof grievances
has subsequently gone up and the courts have been consequently burdened.
It is this scenario that enabled the development of administrative
adjudication out side the courts as desired and designed to cope with the
docket explosion in the law courts and for resolving disputes particularly
between the administration and the citizens and also with a view to
promoting and helping the adminisffative process in the country. The bodies
established to ease the present weight ofjudicial business, decides disputes
in accordance with legal principles and policy and not in strict law. This
may give chance for abuse of power.

If these bodies are left uncontrolled, it may lead to despotism and


hence negation of rule of law. Therefore there is an obvious need to have
some kind ofjudicial control over the decisions of tribunals so as to keep
them within the bounds of their authority and to correct the error of law,
committed by them. With this objective, the constitutional provisions provide
for the power ofjudicial review on the Supreme Court and High Courts
underArticles 32,136,226 and227.The courts have wide powers in
this regard, particularly the High Coun which can quash the order of lower
court or tribunal, and further, issue directions. All the courts and tribunals
in India are subject to the jurisdiction of High Courts underArticles226
and 227 and the Supreme Court under Articles 136 and 32 of the
Constitution.

But in I 976, Parliament enacted the Constitution (42nd Amendment)


Act which provides for establishment of tribunals free from the control of
High Courts and subject only to the limited appellate jurisdiction of the
Supreme Court.
494 Cochin Uniuersity Law Reuiew t20031

By this amendment, Articles 323 Aand323B were inserted which


enabled Parliament to constitute certain tribunals to deal with specific
disputes and also empowered the appropriate legislature to exclude the
jurisdiction of all courts except that of the Supreme Court under Article
136 of the Constitution with respect to the matters falling within the
jurisdiction of such tribunals. In exercise of these powers conferred under
Article 323 A, Parliament enacted Administrative Tribunals Act, I 9g5r
which established Administrative Tribunals with the exclusion ofjudicial
review of supreme Court under Article 32, andHigh Courts under Articles
226 and 227 of the constitution. This Act and the amendment were
subjected to scrutiny by Supreme Court through a number of petitions.
The present paper is an attempt to examine the supreme court's response
to these petitions.

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.

The Supreme court, through an interim order dated 3lst october,


1985, directed the carrying outof certain me:tsures with a view to ensuring
the functioning of the Tribunal on the constitutionally sound principles2.
The Amendment Act was enacted to this end and jurisdiction under Article
32 was restored.

when sampatth Kumaf was finally heard, these changes had


already been incorporated in the text of the Act. The Court took a view

l. Hereinafter referred to as the Act.


2. A.r.R. 1987 S.C. 386.
3. rbid.
C.U.L.R. Notes & Comments 495

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.

In the final decision, Bhagwati, C.J., in concurring judgement with


Rangnath Misra, J. held that, though judicial review is a basic structure of
the Constitution, the vesting of the power ofjudicial review in an altemative
institutional mechanism, after taking it away from the High Courts, would
not do violate the basic structure, so long as it was ensured that the
alternative mechanism was an effective and real substitute for the High
Court.

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.

The Court while giving such ajudgement considered the following


factors : Firstly, a strong reliance was placed on the judgement of Bhagwati,
J.,in Minerva Mills v. Union of Indiaa, in which it was held that judicial
review was part of the basic structure of the Constitution, but at the same
time it was held that Parliament might exclude judicial review by making
an effective "altemative institutional mechanism" forjudicial review and it
was not a violation of the basic structure doctrine. The next main ground
of challenge was that the Act excluded the jurisdiction of Supreme Court
underArticle 32 which was the soul and heart of the Constitution, but this
jurisdiction was earlier restored according to the directions given by this
court by an interim order. Thirdly, the Court considered the question of

4. A.I.R. r980 S.C. 2263.


496 Cochin Uniuersity Law Reuiew t20031

exclusion ofjurisdictions of High CourtunderArticles 226and227 of the


Constitution. The Court observed that Articles226 and227 were not
fundamental rights. The pendency in High Courts had greatly increased.
and to relieve the High Courts of the land, the Justice Shah Committee in
1969 made recommendations suggesting ways and means for effective,
expeditious and satisfactory disposal of matters relating to service disputes
of Government servants, as it was found that a sizeable portion of pending
litigations were related to this category. The Committee recommended
the setting up of an independent tribunal to handle pending cases before
the Supreme Court and High Courts. Fourthly, the tribunal has been
contemplated as a substitute and not as supplemental to the High Court in
the scheme of administration of justice. To provide the tribunal, as an
additional forum, from where parties could go to the High Court would
certainly have been a retrograde step, considering the situation and
circumstances under which the innovation was brought about. And thus,
barring of the jurisdiction of the High Court can indeed not be a valid
ground of attack, and hence, the Court upheld the validity of the
Admi nistrative Tribunals Act, I 985.

The detailed study of Sampath Kumarindicates that the tribunals


made under the impunged Act are substitutes to the High Court i.e., the
tribunals can exercise the power of judicial review of legislative and
administrative action. The vesting of such a power in tribunals is not a
violation of the basic structure of the Constitution.

The Supreme Court while deciding Sampath Kumaf had mistaken


and misunderstood the juflgement of Kesavananda Bharati v. State of
Kerala6,that only and all fundamental rights were the basic structure of
the Constitution and hence could not be amended by the Parliament and
held that Articles 226 and227 were not fundamental rights and therefore
these jurisdictions of High Courts could be excluded.

5. Supra n.2.
6. A.r.R. 1973 S.C, 1461.
C.U.L.R. Notes & Comments 497

The power of superintendence over all courts and tribunals conferred


upon the High Courts, is to control the functioning of these bodies from
abuse of power and to ensure justice. Under this power, the High Court
can quash the order of a tribunal and further can issue directions on certain
groundsT. But under the impugnedAct, this jurisdiction is totally excluded
and the appeal is allowed only in the Supreme Court underArticle 136 of
the Constitution. This made it very difficult, inconvenient and costly for a
common man to go to Supreme Court in appeal against the decision of a
tribunal.

The exclusion of the jurisdiction of High Courts and the remedy


provided only in Supreme Court under Article 136 would increase the
problem of delay in dispensation ofjustice and the Supreme Court may
not dispose the cases expeditiously. Due to this the purpose for which the
tribunals were established, i.e., to give effective, cheaper and expeditious
administration of justice, becomes fallacious.

The exclusion ofjudicial review of High Courts underArticles226


and227 of the Constitution deprives the aggrieved party's right to go to
High Court against the decision of the tribunal and that makes available
only one appeal while a second appeal is totally curtailed.

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

226 and 227 is wider, as it is not restricted only to enforcement of


Fundamental Rights. Therefore, there is no need of any hesitation to say
that the Supreme Court's decision in Sampath Kumars is bad, illogical
and.far from reality.

.Thereafter complaints were made concerning the functioning of the


Customs, Fxcise and Gold Control Appellate Tribunals, which were set
up by exercising the power conferred by Art 323B of the Constitution.
This was in R.K. Jain v. Union of Indiae.

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.

Such apower, being inclusive of the powerto pronounce upon the


validity of the statute, action taken and orders passed by individuals and
bodies falling within the ambit of expression 'state' in Article 12 of the
Constitution has only been entrusted with the constitutional courts, i.e.,
the Supreme Court and High Courts. The Andra Pradesh High Court,
analyzingthe decision of Sampath Kumar, very rightly noted that the
theory of alternative institutional mechanisms established in Sampath
Kumar is in defiance of the preposition laid down in Kesavananda Bharati
v. State of Keralatt, Special Reference caset2, and Indira Nehru
Gandhi v. Raj Naralzr3, that the Constitutional Courts alone are competent
to exercise the power of judicial review, i.e., to pronounce upon the
constitutional validity of statutory provisions and rules. The High Court
therefore felt that, the decisionin Sampath Kumar,being per incurium,
was not binding upon it. The High Court also pointed out that, in any
event, the issue of constitutionality of Articel 323A(z)(d) was neither
challenged nor upheld in Sampath Kumar and it could not be said to be
an authority on that aspect.

The constitutionality of the Administrative Tribunals Act and the


clauses contained in Articles 323Aand 3238 of the Constitution read
with Section 28 of the Act, again came under the scrutiny of Supreme
Court in the landmark case L.Chandra Kumarv. Union of Indiata.The
Supreme Court took an account of the working of the tribunals in one
decade and considered other Supreme Court and High Court decisions

11. A.I.R. 1973 S.C. 1461.


12. A.LR. 1965 S.C. 745.
13. A.LR. 1978 S.C.2291.
r4. A.I.R. 1997 S.C. 1125.
500 Cochin Uniuersity Law Reuiew t20031

including theAndra Pradesh High Court decision in Sakinala Harinath


v. Andra Pradeshts. The question however raised was : 'Whether the
Tribunals are real substitutes for High Court ? Do they really fulfill the
objects for which they have been set up ?'

Unfortunately the actual experience of functioning of tribunals was


far from satisfactory. They lacked competence, objectivity and judicial
approach. They failed to inspire confidence in the public mind and were
not successful in creating an "effective altemative, institutional mechanism",
as intended, while insertingArticle323Ain the Constinrtion. There were
several complaints against such tribunals. They did not allow even the
Supreme Court's decisions to be cited. Many a times such tribunals had
become "resting place for those who have outlived their utility" and had
become "dead wood"16.

The Supreme Court also considered the judgement of Bidi Supply


Co. v. Union of IndiatT ,in which it was held that uncontrolled powers of
discrimination in matters that seriously affect the lives and properties of
people cannot befit to the executive or quasi executive bodies, even if
they exercise quasi-judicial functions, because, they are then invested with
an authority that even Parliament does not possess.

The Supreme Court in L.Chandra Kumar,expressed the view that


the constitutional.safeguards of the superiorjudiciary are not available to
judges of the subordinate judiciary or to those who man the tribunals,
created by ordinary legislation. Consequently judges of the later category
can never be considered 'a full and effective substitute' for the Superior
Judiciary in discharging the function of constitutional interpretationr8.

15. Supra n. 70.


16. C.K., Thakkar Administative Law (1996), p.253.
17. A.I.R. 1956S.C.479.
18. Supra n. 14 at p. I I 50.
C.U.L.R. Notes & Comments 501

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

The Supreme Court very rightly decided in L.Chandra Kumafo


that the superintendence jurisdiction of High Court under Article 227
cannot be excluded. The object of superintendence is to keep the tribunals
within the jurisdiction. Underthis jurisdiction the High Court can oversee
and ensure that the judicial decisions rendered by those who man the
subordinate courts and tribunals do not fall foul of the strict standards of
legal correctness and judicial independence. The Supreme Court restored
the High Court's jurisdiction and now it became very easy to any aggrieved
party to reach the High Court underArticle227 . Moreover the High Court
can suo-mora issue directions against the order of tribunals if they are
going beyond the jurisdiction or four corners of law. Even a poor man
could go easily to the High Court which is a less costly remedy as compared
to the Supreme Court. Though the systemcausing delay, thejudicial review
can not be excluded, otherwise it would result in injustice in the name of
speedy proceedings. Ifthis contention ofspeedy proceedings is accepted,
there is even no need of Supreme Court and there is no need of an appeal
provision. The speedy andexpeditious proceedings is forthe sake ofjustice
and not only for the sake of mere speedy disposals. The tribunals contain
the administrative personnel, who lackjudicial expertise. Certainly it should
be there for an efficient administration, but at the same time care should
be taken that justice is given. Therefore the decision in L.ChandraKumar
is a correct decision on the right path and is a progressive step in the
direction of independence of judiciary and preservation of rule of law

The preceding discussion raised four questions to be answered after


taking into consideration of all the relevant factors. Firstly, whether the
judicial review could be excluded from High Courts by shifting it to other
alternative mechanism or machinery? Secondly, whether such an exclusion
from High Courts could serve the object for which it is excluded? Thirdly,
whether the appellate jurisdiction directly and solely vested in Supreme

20. Supra n. 14.


C.U.L.R. Notes & Comments 503

Court under Article 136 of the Constitution can exercise sufficient


superintendence over tribunals? Whether the purpose and object ofArticle
221 is being served properly and effectively under Article 136 by the
Supreme Court ? Lastly, whether such an alternative machinery forHigh
Court could be really effective and independent?

With regard to the first problem, it is suggested that the power of


judicial review should not be conferred on tribunals in exclusion of the
High Court, as these tribunals are part of the administrative wing of the
State. These bodies are not sufficiently independent so as to exercise the
power of judicial review of administrative and legislative action. The
personnel or the judges appointed on these tribunals are civil servants or
from police department. They may work under the political influence. They
may not exercise their powers properly and there may be miscarriage of
justice. There is no superior authority to supervise and to correct them.
As aptly observed :

"The idea of administrative justice through tribunals is a welcome


step but judicial umbrella is essential over them to ensure 'fair'
administrative justice and to preserve the 'rule of law"2r.

This can be achieved meaningfully and effectively by bringing the


tribunals under the judicial control of the High Courts.

Regarding the second question, the justification for such an


elimination of jurisdiction from High Courts is to reduce their burden and
thereby enabling them to devote speedy relief to the government employees
in service matters. But due to over crowded litigations under Article 136
the Supreme Court is unable to give decisions expeditiously. Instead, this
direct appeal to the Supreme Court increases the burden on Supreme

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

Court. The expeditious remedy can be provided by formulating a High


Court Bench, merely for service matters. This High Court Bench can issue
directions suo-motuto tribunals and even to High Courts itself for speedy
proceedings,

For the third question, it is submitted that, the Supreme Court's


jurisdiction underArticle 136 is adiscretionary one. It is available in special
circumstances. The Supreme Court itself impose restrictions on.
interference in the lower court's decisions. It is not a matter of right on the
part of the aggrieved party.But in theAct, the only remedy is in Supreme
CourtunderArticle 136, which is very much restricted. Thus the Supreme
Court is in a dilemma, whether to accept litigations libemlly so as to remove
injustice or to restrict itself from accepting litigations so as to give
expeditious decision. If it takes a liberal view, there is crowding of litigations
and it causes delay in proceedings and if it accepts the strict view, it cannot
remove injustice or miscarriage done by the tribunals22.

Another problem under Article I 36 is that the Supreme Court cannot


interfere suo motu, as like the High Court, when miscarriage ofjustice is
there or on any specified ground. If the litigant comes to the Supreme
Court then it can only quash the order of tribunal, but cannot issue directions
which High Court can underArticle22T of the Constitution. The special
leave petition under Article 136 Supreme Court is very costly and
inaccessible due to the reason of distance from the tribunals. Therefore,
the Supreme Court's jurisdiction under Article 136 can not serve the
purpose of superintendence over tribunals given to High Court under
Article 227 of the Constitution. Therefore the restoration of High Court's
jurisdiction under Article 227 is essential. It is submitted that the
consitutional safeguards which ensure the independence ofjudges of the
superiorjudiciary are not available to thejudges of the subordinate judiciary,
and to those who man tribunals created by ordinary legislations,

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.

In summing up, it is submitted that, the supreme court in L.chandra


Kumaf3,laid down the correct law and rightly held that the jurisdiction
of High Courts and the Supreme Court underArticles226,227 and32 of
the Constitution is a basic structure of the Constitution which can not be
excluded even by an amendment of the Constitution. The restoration of
judicial review is essential in the maintenance of independence ofjudiciary
and such a step must be welcomed by one and all, as it seeks to re-
inforce the rule of law.

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.

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