S P SAMPATH KUMAR J N GUPTA D J SOMAIYA Vs. UNION OF INDIA

JUDGEMENT

(1.) I am in entire agreement with the judgment prepared by my learned Brother Ranganath Misra, but since the questions involved in these writ petitions are of seminal importance affecting as they do, the structure of the judicial system and the principle of independence of the Judiciary, I think I would be failing in my duty if I did not add a few words of my own.

(2.) There are two questions which arise for consideration in these writ petitions and they have been succinctly set out in the judgment of Ranganath Misra, J. The first question is whether the exclusion of the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution in service matters specified in S. 28 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the impugned Act) and the vesting of exclusive jurisdiction in such service matters in the Administrative Tribunal to be constituted under the impugned Act, subject to an exception in favour of the jurisdiction of this Court under Arts. 32 and 136, is unconstitutional and void and in any event, even if the first question be answered against the petitioners and in favour of the Government, the second question required to be considered is, whether the composition of the Administrative Tribunal and the mode of appointment of Chairman, Vice-Chairmen and members have the effect of introducing a constitutional infirmity invalidating the provisions of the impugned Act. I agree with the answers given to these questions in the judgment of Ranganath Misra, J. I would articulate my reasons as follows :-

(3.) Here, in the present case, the impugned Act has been enacted by Parliament in exercise of the power conferred by Cl. (1) of Art. 323-A which was introduced in the Constitution by Constitution (42nd Amendment) Act, 1976. Cl. (2)(d) of this Article provides that a law made by Parliament under Cl. (1) may exclude the jurisdiction of Courts, except the jurisdiction of the Supreme Court under Art. 136, with respect to the disputes or complaints referred to in Cl. (1). The exclusion of the jurisdiction of the High Court under Arts. 226 and 227 by any law made by Parliament under Cl. (1) of Art. 323A is, therefore, specifically authorised by the constitutional amendment enacted in Cl. (2)(d) of that Article. It is clear from the discussion in the preceding paragraph that this constitutional amendment authorising exclusion of the jurisdiction of the High Court under Arts. 226 and 227 postulates for its validity that the law made under Cl. (1) of Art. 323A excluding the jurisdiction of the High Court under Arts. 226 and 227 must provide for an effective alternative institutional mechanism or authority for judicial review. If this constitutional amendment were to permit a law made under Cl. (1) of Art. 323A to exclude the jurisdiction of the High Court under Arts. 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure doctrine and hence outside the constituent power of Parliament. It must, therefore, be read as implicit in this constitutional amendment that the law excluding the jurisdiction of the High Court under Arts. 226 and 227 permissible under it must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the High Court Under Arts. 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being within the ambit and coverage of Cl. (2)(d) of Art. 323A, only if it can be shown that the Administrative Tribunal set up under the impugned Act is equally efficacious as the High Court, so far as the power of judicial review over service matter is concerned. We must, therefore, address ourselves to the question whether the Administrative Tribunal established under the impugned Act can be regarded as equally effective and efficacious in exercising the power of judicial review as the High Court acting under Arts. 226 and 227 of the Constitution.