It appears that the experience with the functioning of the tribunals constituted under Article 323-A and 323-B of the Constitution has been so exasperating that the Supreme Court was constrained to restore partly the jurisdiction of the high courts under Article 226 and 227 while down-grading the role of tribunals from ‘substitutional’ to ‘supplemental’ to the high courts. The judgment in the recent Chandra Kumar's case will be remembered not only for its unequivocal declaration that the power of judicial review vested in the Supreme Court and the high courts constitutes part of the basic structure of the Constitution which cannot be abridged, but also for the craftsmanship with which the original jurisdiction of the tribunals, the writh jurisdication of the high courts and the jurisdiction of the Supreme Court under Article 136 have been restructured by the judicial process.
Had the apex court stopped with the finding that Clause (2)(d) of Article 323-A and Clause (3)(d) of Article 323-B, which excluded the jurisdiction of the high courts and the Supreme Court are unconstitutional, it would have resulted in a state of utter counfusion and chaos. The court, therefore, had to find an innovative solution to a pressing problem. The method evolved by the court allows the tribunals to continue to function as courts of first instance but subject to the writ jurisdiction of the high courts and requires persons aggrieved by the decisions of the tribunals to first approach the high courts (under Article 226 and 227) and thereafter, if necessary, move the Supreme Court under Article 136 for special leave to appeal. The solution, undoubtedly, is a pragmatic one though it is more legislative in character than judicial.
These are days of compulsive judicial activism. Had the union executive and Parliament responded in time to the suggestion made by the court in R. K. Jain's case to have the functioning of the tribunals examined by an expert body like the Law Commission and come out with necessary changes in the law this decision could have been avoided.
The theory of basic structure was first propounded by a Bench of 13 judges in 1973 in the Kesavananda Bharati case. Since then several amendments to the Constitution have been struck down on the anvil of basic structure, the latest being the 42nd amendment, 1976, which, inter alia, inserted Clause (2)(d) of Article 323-A and Clause (3)(d) of Article 323-B to the extent they permitted exclusion of the jurisdiction of the high courts and the Supreme Court. The doctrine of basic structure is now deeply entrenched in India and is gaining support in other countries too. With increasing judicial activism, the age-old theory of separation of powers is becoming more and more flexible.
The writ jurisdiction affords ample opportunities for both legal talent and judicial creativity. Commenting on the Indian Constitution soon after its enactment, Sir lvor Jennings had predicted that the writ jurisdiction would turn out to be a lawyers' paradise.
Any aggrieved person could have direct access to superior courts for obtaining quick relief against the State for violation of any fundamental right. Within a few years this new jurisdiction became so popular that the high courts were flooded with petitions which they were unable to cope with. Consequently, arrears of cases started piling up in almost all the high courts notwithstanding the creation of additional posts of judges from time to time.
Several expert committees consisting of retired judges of the Superme Court and of high courts recommmended the creation of tribunals for dealing with certain classes of cases as an alternative to the high courts. The Supreme 'Court in some of its judgmets made the same suggestion. Acting on these suggestions, Parliament inserted Article 323-A and Article 323-B which provided for the establishment of administrative tribunals for resolving service disputes and other tribunals for a variety of matters relating to tax, foreign exchange, elections, land reforms, etc.
As the intention was to relieve the high courts of the extra burden by transferring part of the jurisdiction to the tribunals, these articles permitted exclusion of the jurisdiction of all courts except the Supreme Court in all matters dealt with by the tribunals.
The following are the basic features of the Constitution according to various judgments of the Supreme Court:
All cases which fell within the jurisdiction of the tribunals were transferred to them soon after the establishment of the tribunals. Although in Sampath Kumar's case (1985) a Bench of five judges had tacitly endoresed Article 323-A and 323-B, the functioning of the tribunals, manned partly by judicial and partly by administrative members, was found to be unsatisfactory. The Malimath Committee, in its report (1989-90), pointed out that the tribunals, by and large, have not inspired confidence in the public mind, the foremost reason being lack of competence, objectivity and judicial approach. Tribunals were unable to dispose of cases speedily resulting in huge backlog of cases.
Following the suggestion in the R.K. Jain case, the law Commission issued a comprehensive questionnaire for eliciting public opinion, but could not proceed further after the correctness of post-Sampath Kumar cases was referred to a larger Bench in 1995 by another Bench. A Bench of seven judges has now resolved the problem without unsettling the decisions already given by the tribunals and without affecting the cases pending in the Suprence Court.
What is the net result of the latest decision? The tribunals have lost their status, but not jurisdiction. The high courts have not regained their jurisdiction fully in as much as they cannot entertain any writ petition in the first instance. Earlier, after losing in a tribunal, the aggrieved persons could immediately approach the Supreme Court for special leave to appeal. Now, it will not be possible to go to the Supreme Court directly from a decision of a tribunal, without first moving the high court. In this respect the Supreme Court has curtailed its own jurisdiction under Article 136. Persons who are subject to the jurisdiction of tribunals have gained another remedy by way of a writ petition before the high court concerned, but lost the opportunity of approaching the Supreme Court directly. What was earlier a two-tier litigation has now become a three - tier process . The strength of the judgment lay in the fact that it is unanimous.
But the apex court has used the case to settle once and for all the question whether judicial review is a basic feature of the constitution. In short, no amendment passed by Parliament in the future can bar the courts from pronouncing judgment on its constitutional validity.