CASE NO.: Appeal (civil) 481 of 1980 PETITIONER: <NAME> RESPONDENT: <ORG> and others DATE OF JUDGMENT: 18/03/1997 BENCH: <NAME> & <NAME> & <NAME> & <NAME> & <NAME> & <NAME> & <NAME> JUDGMENT:

JUDGMENT 1997 (2) SCR 1186 A.M. Ahmadi, C.J.

1. The special leave petitions, civil appeals and writ petitions which together constitute the present batch of matters before us owe their origin to separate decisions of different <ORG> and several provisions in different enactments which have been made the subject of challenge. Between them, they raise several distinct questions of law; they have, however been grouped together as all of them involve the consideration of the following broad issues:

(1) Whether the power conferred upon <ORG> or the Stale Legislatures, as the case may be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of <ORG> under Article 136 , in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B , runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on <ORG> under Article 32 of the Constitution?

(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?

(3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for <ORG> in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?

2. We shall confine ourselves to the larger issues raised in this batch of matters without adverting to the specific facts of each of the matters; we shall, however, selectively refer to some of the impugned decisions and the provisions involved to the extent we find it necessary to do so in order to appreciate the policy- conflicts in, and to draw the parameters of, the controversy before us. The broad principles enunciated in this judgment will, at a later time, be applied by <ORG> to resolve the disputes involved in each of the individual cases.

3. The present controversy has been referred to us by an order of <ORG> of this <ORG>, reported in : (1995)IILLJ640SC , which concluded that the decision rendered by a five-Judge <ORG> of this <ORG> in <CITATION> : (1987)ILLJ128SC , needs to be comprehensively reconsidered. The order of <ORG>, dated December 2, 1994, was rendered after it had considered the arguments in the first matter before us, C.A. No. 481 of 1989, where the challenge is to the validity of Section 5(6) of the Administrative <ORG>s Act, 1985. After analysing the relevant constitutional provisions and the circumstances which led to the decision in <NAME> case, the referring Bench reached the conclusion that on account of the divergent views expressed by this <ORG> in a series of cases decided after <NAME> case, the resulting situation warranted a "fresh look by a larger Bench over all the issues adjudicated by this <ORG> in <NAME> case including the question whether the <ORG> can at all have an Administrative Member on its Bench, if it were to have the power of even deciding constitutional validity of a statute or (Article) 309 rule, as conceded in <NAME>'s case". The "post- <NAME> cases" which caused <ORG> to refer the present matter to us are as follows: <CITATION> : (1987)ILLJ255SC ; <CITATION> : (1991)IILLJ585bSC ; <CITATION> . : (1990)ILLJ523SC ; <CITATION>  4 SCC 119 and <CITATION> : (1991)IILLJ112SC .

4. Before we record the contentions of the learned Counsel who appeared before us, we must set out the legal and historical background relevant to the present case.

5. Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act , 1976 with effect from March 1,1977. It comprises two provisions, Articles 323A and 323B, which have, for the sake of convenience, been fully extracted hereunder:

PART XIVA TRIBUNALS 323-A. Administrative tribunals.-- 323-B. Tribunals for other (1) <ORG> may, by law, maters. -- (1) The appropriate provide for the adjudication or <ORG> may, by law, provide trial by administrative Tribunals for the adjuration or trial by of disputes and complaints with tribunals of any disputes, respect to recruitment and complaints, or offences with conditions of service of persons respect to all or any of the appointed to public services and matters specified in Clause (2) posts in connection with the with respect to which such affairs of the <ORG> or of any <ORG> has power to make State or of any local or other laws. authority within the territory of India or under the control of the <ORG>, of India or of any corporation owned or controlled by the <ORG>. (2) A law made under Clause (1) (2) (2) The matters referred may -- to in Clause (1) are the following, namely:

(a) provide for the (a) levy, assessment, establishment, of an collection and administrative tribunal for enforcement of any tax; the union and a separate administrative tribunal for each State or for two or more States;

(b) specify the jurisdiction, (b) foreign exchange, import powers (including the and export across customs powers to punish for frontiers; contempt) and authority which may be exercised by each of the said tribunals; (c) provide for the procedure (c) industrial and labour (including provisions as to disputes; limitation and rules of evidence) to be followed by the said tribunals; (d)exclude the jurisdiction of all (d) land reforms by way of courts, except the jurisdiction acquisition by the State of of <ORG> under any estate as defined in Article 136 , with respect to Article 31A or of any the disputes or complaints rights therein or the referred to in Clause (1); extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way; (e) provide for the transfer to (e) ceiling on urban property; each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment; (f) repeal or amend any order (f) elections to either <ORG> made by the president of <ORG> or the under Clause (3) of Article <ORG> or either <ORG> of 37ID; the Legislature of a State, but excluding the matters referred to in Article 329 and Article 329 A; (g) contain such supplemental, (g) production, procurement, incidental and supply and distribution of consequential provisions foodstuffs (including (including provisions as to edible oilseeds and oils) fee) as <ORG> may and such other goods as deem necessary for the President may, by effective functioning of, and public notification, declare for the speedy disposal of to be essential goods for cases by, and the purpose of this article enforcement of the orders and control of prices of of, such tribunals. such goods; (3) The provisions of this Article (h) offences against laws with shall have effect respect to any of the notwithstanding anything in matters specified in Sub- any other provision of this clauses (a) to (g) and fees Constitution or in any other in respect of any of those law for the time being in matters; force. (i) any matter incidental to any of the matters specified in Sub-clauses (a) to (h). (3) A law made under Clause (1) may--

(a) provide for the establishment of a hierarchy of tribunals; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals ; (c) provide for the procedure (including provisions as to limitation and rules of evidence ) to be followed by the said tribunals ; (d) exclude the jurisdiction of all courts except the jurisdiction of <ORG> under Article 136 with respect to all or any of the matters falling within the jurisdiction of the said tribunals; (e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment; (f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate <ORG> may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals. (4) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. Explanation. - In this article, "appropriate legislature", in relation to any matter, means <ORG> or, as the case may be, a State <ORG> competent to make laws with respect to such matter in accordance with the provisions of Part XI.

(Emphasis added)

6. We may now examine the manner in which these constitutional provisions have been sought to be implemented, the problems that have consequently arisen, and the manner in which <ORG> have sought to resolve them. Such an analysis will have to consider the working of the two provisions separately.

Article 323 A

7. In pursuance of the powder conferred upon it by Clause (1) of Article 323A of the Constitution, <ORG> enacted <ORG> Act , 1985 (Act 13 of 1985) [hereinafter referred to as "the Act"]. The Statement of Objects and Reasons of the Act indicates that it was in the express terms of Article 323A of the Constitution and was being enacted because a large number of cases relating to service matters were pending before various Courts; it was expected that "the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of the various courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons covered by <ORG> speedy relief in respect of their grievances."

8. Pursuant to the provisions of the Act, <ORG>, with five Benches, was established on November 1, 1985. However, even before the <ORG> had been established, several writ petitions had been filed in various High <ORG>s as well as this <ORG> challenging the constitutional validity of Article 323A of the Constitution as also the provisions of the Act; the principal violation complained of being the exclusion of the jurisdiction of this <ORG> under Article 32 of the Constitution and of that of the High <ORG>s under Article 226 of the Constitution. Through an interim order dated October 31, 1985, reported as <CITATION> : (1985)4SCC458 , this <ORG> directed the carrying out of certain measures with a view to ensuring the functioning of the <ORG> along constitutionally-sound principles. Pursuant to an undertaking given to this <ORG> at the interim stage by the erstwhile Attorney General, An amending Act (Act 19 of 1986) was enacted to bring about the changes prescribed in the aforesaid interim order.

9. When <NAME> case was finally heard, these changes had already been incorporated in the body and text of the Act. The <ORG> took the view that most of the original grounds of challenge-which included a challenge to the constitutional validity of Article 323A - did not survive and restricted its focus to testing only the constitutional validity of the provision of the Act. In its final decision, the <ORG> held that though judicial review is a basic feature of the constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from <ORG>, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for <ORG>. Using this theory of effective alternative institutional mechanisms as its foundation, the <ORG> proceeded to analyse the provisions of the Act in order to ascertain whether they passed constitutional muster. The <ORG> came to the conclusion that the Act, as it stood at that time, did not measure up to the requirements of an effective substitute and, to that end, suggested several amendments to the provisions governing the form and content of the <ORG>. The suggested amendments were given the force of law by an amending Act (Act 51 of 1987) after the conclusion of the case and the Act has since remained unaltered.

10. We may now analyse the scheme and the salient features of the Act as it stands at the present time, inclusive as it is of the changes suggested in <NAME> case. The Act contains 37 Sections which are housed in five Chapters. Chapter I ("Preliminary") contains three Sections; Section 3 is the definition clause.

11. Chapter II ("Establishment of <ORG>s and Benches thereof) contains Sections 4 to 13 . Section 4 empowers <ORG> to establish : (1) <ORG> with Benches at separate places; (2) <ORG> for a State which makes a request in this behalf; and (3) a Joint Administrative <ORG> for two or more States which enter into an agreement for the purpose. Section 5 states that each <ORG> shall consist of a chairman and such number of Vice-Chairmen and Judicial and Administrative Members as may be deemed necessary by the appropriate Government. Sub-section (2) of Section 5 requires every Bench to ordinarily consist of one Judicial Member and one Administrative Member. Sub-section (6) of Section 5 , which enables the <ORG> to function through Single Member Benches is the focus of some controversy, as will subsequently emerge, and is fully extracted as under:

Section 5(6) - Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction powers and authority of the <ORG> in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify:

Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members the case or matter may be transferred by the chairman or, as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit.

12. Section 6 deals with the qualifications of the personnel of the <ORG>. Since the first few sub-sections of Section 6 are required to be considered subsequently, they may be reproduced hereunder:

6. Qualifications for appointment of Chairman, Vice- Chairman or other Members. -

(1) A person shall not be qualified for appointment as the Chairman unless he-

(a) is, or has been, a Judge of <ORG>; or

(b) has, for at least two years, held the office of Vice-Chairman;

(c) ..

(2) A person shall not be qualified for appointment as the Vice-Chairman unless he--

(a) is, or has been, or is qualified to be a Judge of <ORG>; or

(b) has, for at least two years, held the post of a Secretary to <ORG> or any other post under the <ORG> or <ORG> carrying a scale of pay which is not less than that of a Secretary to <ORG>; or (bb) has for at least five years, held the post of an Additional Secretary to <ORG> or any other post under the <ORG> or <ORG> carrying a scale of pay which is not less than that of an Additional Secretary to <ORG>; or

(c) has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member.

(3) A person shall not be qualified for appointment as a Judicial Member unless he--

(a) is, or has been, or is qualified to be, a Judge of <ORG>; or

(b) has been a member of <ORG> and has held a post in <ORG> of that Service for at least three years.

(3-A) A person shall not be qualified for appointment as an Administrative Member unless he--

(a) has, for at least two years, held the post of an Additional Secretary to <ORG> or any other post under the <ORG> or <ORG> carrying a scale of pay which is not less than that of an Additional Secretary to <ORG>; or

(b) has, for at least three years, held the post of a joint Secretary to <ORG> or any other post under the <ORG> or <ORG> carrying a scale of pay which is not less than that of a Joint Secretary to <ORG>.

and shall, in either case, have adequate administrative experience.

13. Sub-sections (4), (5) and (6) of Section 6 provide that all the Members of <ORG>, <ORG> and <ORG> shall be appointed by the President; in the case of <ORG> and <ORG>, the President is required to consult the concerned Governor(s). Sub-section (7) stipulates that the Chief Justice of India is also to be consulted in the appointment of the Chairman, Vice- Chairman and Members of all Tribunals under the Act.

14. Section 8 prescribes the terms of office of the personnel of the <ORG> as being for a duration of five years from the date of entering into office; there is also provision for reappointment for another term of five years. The maximum age limit permissible for the Chairman and the Vice-Chairman is 65 years and for that of any other Member is 62 years. Section 10 stipulates that the salaries, terms and conditions of all Members of the <ORG> are to be determined by the central Government; such terms are, however, not to be varied to the disadvantage of any Member after his appointment.

15. Chapter III ("Jurisdiction, powers and authority of <ORG>") consists of Sections 14 to 18 . Sections 14 , 15 and 16 deal with the jurisdiction, powers and authority of <ORG>, <ORG> and <ORG> respectively. These provisions make it clear that except for the jurisdiction of this <ORG>, the <ORG> under the Act will possess the jurisdiction and powers of every other <ORG> in the country in respect of all service-related matters. Section 17 provides that the <ORG> under the Act will have the same powers in respect of contempt as are enjoyed by the High <ORG>s.

16. Chapter IV ("Procedure") comprises Section 19 to 27 . Section 21 specifies strict limitation periods and does not vest the <ORG> under the Act with the power to condone delay.

17. Chapter V ("Miscellaneous"), the final Chapter of the Act, comprising Sections 28 to 37 , vests the <ORG> under the Act with ancillary powers to aid them in the effective adjudication of disputes. Section 28 , the "exclusions of Jurisdiction" clause reads as follows:

28. Exclusion of Jurisdiction of courts.-- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a <ORG> in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except--

(a) <ORG>; or

(b) <ORG>, <ORG> or other authority constituted under the Industrial Disputes Act , 1947 or any other corresponding law for the time being in force, Shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.

18. A facet which is of vital relevance to the controversy before us, and consequently needs to be emphasised, is that Section 28 , when originally enacted, was in the express terms of Clause (2) (d) of Article 323A of the Constitution and the only exception made in it was in respect of the jurisdiction of this <ORG> under Article 136 of the Constitution. However, before the final hearing in <NAME> case the provision was further amended to also save the jurisdiction of this <ORG> under Article 32 of the Constitution; this aspect has been noted in the judgment of <NAME>, J. in <NAME> case (at para 14). Since the <ORG> in <NAME> case had restricted its focus to the provisions of the Act, it expressed itself to be satisfied with the position that the power of judicial review of the Apex <ORG> had not been tampered with by the provisions of the Act and did not venture to address the larger issue of whether Clause (2)(d) of Article 323A of the Constitution also required a similar amendment.

19. Section 29 provides for the transfer to the <ORG> under the Act, of all service matters pending in every existing form before their establishment. The only exception carved out is in respect of appeals pending before <ORG>. Section 35 vests <ORG> with rule-making powers and Section 36 empowers the appropriate <ORG> to make rules to implement the provisions of the Act and the matters specified in it. By virtue of Section 37 , the rules made by <ORG> are required to be laid before <ORG> and, in the case of rules made by State <ORG>s, before the concerned <ORG>s).

20. The Act and its provisions will be analysed in the course of this judgment. However, a preliminary appraisal of the framework of the Act would indicate that it was intended to provide a self- contained, almost wholly exclusive (the exceptions being specified in Section 28 ) forum for adjudication of all service related matters. The <ORG> created under the Act were intended to perform a substitution role as opposed to - and this distinction is of crucial significance-a supplemental role with regard to <ORG>.

21. According to the information provided to us by Mr. <NAME>, the learned Additional Solicitor General, apart from <ORG> which was established on 1.11.1985, eight States have set up State Administrative Tribunals, all of which are presently functioning. The States, along with the date of establishment of the particular State Administrative Tribunals, are as follows: Andhra Pradesh (1.11.1989), Himachal Pradesh (1.9.1986), Karnataka (6.10.1986), Madhya Pradesh (2.8.1988), Maharashtra (8.7.1989), Orissa (14.7.1986), Tamil Nadu (12.12.1988) and west Bengal (16.1.1995).

22. We may now analyse the "post-Sam path <NAME> cases" which find mention in the order of the referring Bench. In <NAME> case, a division Bench of this Court has occasion to consider one of the specific questions that has now arisen for our consideration, viz., whether <ORG> constituted under the Act has the authority and the jurisdiction to strike down a rule framed by the President of India under the proviso to Article 309 of the Constitution as being violative of Articles 14 and 16(1) of the Constitution. When the matter came up before <ORG>, the issue was still being considered by <ORG> in Sampath <NAME>'s case. <ORG>, therefore, deferred its judgment till the final pronouncement of the decision in Sampath <NAME>'s case. Thereafter, it analysed <ORG>'s decision to arrive at the conclusion that "<ORG> being a substitute of <ORG> had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all question pertaining to the constitutional validity or otherwise of such laws as offending Article 14 and 16(1) of the Constitution."

23. An aspect which needs to be emphasised is that <ORG> in <NAME> case had not specifically addressed the issue whether the <ORG> under the Act would have the power to strike down statutory provisions or rules as being constitutionally invalid. However, <ORG> in <NAME> case felt that this proposition would follow as a direct and logical consequence of the reasoning employed in <NAME> case.

24. In <NAME> case, <ORG> of this <ORG> had to confront the contention, based on the premise that in <NAME> case this <ORG> had equated the <ORG> established under the Act with High <ORG>s, that the Members of the Central Administrative <ORG> must be paid the same salaries as were payable to Judges of the High <ORG>. The <ORG>, after analysing the text of Article 323A of the Constitution, the provisions of the Act, and the decision in <NAME> case, rejected the contention that the <ORG> were the equals of the High <ORG>s in respect of their service conditions. The <ORG> clarified that in <NAME> case, the <ORG> under the Act had been equated with High <ORG>s only to the extent that the former were to act as substitutes for the latter in adjudicating service matters; the <ORG> could not, therefore, seek parity for all other purposes.

25. In <NAME> case, <ORG> of this <ORG> had to consider the question whether a dispute before the central <ORG> could be decided by a single Administrative Member. The <ORG> took note of Sub-section (2) of Section 5 of the Act which, as we have seen, stipulates that a Bench of a <ORG> under the Act should ordinarily consist of a Judicial Member and an Administrative Member, as also the relevant observations in <NAME> case, to conclude that under the scheme of Act, all cases should be heard by a Bench of two Members. It appears that the attention of the <ORG> was not drawn towards Sub-section (6) of Section 5 which, as we have noticed, enables a single Member of a <ORG> under the Act to hear and decide cases.

26. The same issue arose for consideration before another Bench of this Court in Dr. <NAME>'s case. The Court took note of the decision in <NAME> case and, since the vires of Sub-section (6) of Section 5 of the Act was not under challenge, held that Sub-sections (2) and (6) of Section 5 are to be harmoniously construed in the following manner (supra at p. 404):

..There is no doubt that what has been said in <NAME> case would require safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, be many cases before the <ORG> where very often no constitutional issues or even legal points would be involved..We are prepared to safeguard the interests of claimants who go before the <ORG> by Holding that while allocating work to the Single Member - whether Judicial or administrative - in terms of Sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates <ORG>'s concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should go to a bench of two Members. The Member should ordinarily allow (he matter to go to a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigation may be before the Single Member for disposal..The vires of Sub- section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in Sub- section (2) and the exemption in Sub-section (6) are rationalised.

27. <CITATION> : 1993(65)ELT305(SC) , a Division Bench of this Court consisting of three of us (<NAME>, CJI, <NAME> and <NAME>, JJ.) had occasion to deal with complaints concerning the functioning of <ORG>, which was set up by exercising the power conferred by Article 323B. In his leading judgment, <NAME>, J. analysed the relevant constitutional provisions, the Decisions in <NAME>, <NAME> and <NAME> to hold that the <ORG> created under Articles 323A and 323B could not be held to be substitutes of <ORG> for the purpose of exercising jurisdiction under Articles 226 and 227 of the Constitution. Having had the benefit of more than five years' experience of the working of these alternative institutional mechanisms, anguish was expressed over their ineffectiveness in exercising the high power of judicial review. It was recorded that their performance had left much to be desired. Thereafter, it was noted that the sole remedy provided, that of an appeal to this Court under Article 136 of the Constitution, had proved to be prohibitively costly while also being inconvenient on account of the distances involved. It was suggested that an expert body like the <ORG> should study the feasibility of providing an appeal to a Bench of two Judges of the concerned <ORG> from the orders of such <ORG> and also analyse the working of the <ORG> since their establishment, the possibility of inducting members of the <ORG> to man such <ORG> etc. It was hoped that recommendations of such an expert body would be immediately adopted by <ORG> and remedial steps would be initiated to overcome the difficulties faced by the <ORG>, making them capable of dispensing effective, inexpensive and satisfactory justice.

28. In a separate but concurring judgment, <NAME>, J.(as he then was) speaking for himself and <NAME>, J., endorsed the recommendations in the following words:

..(T)he time is ripe for taking stock of the working of the various <ORG> set up in the country after the insertion of Articles 323A and 323B in the Constitution. A sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law. An independent and impartial justice delivery system in which the litigating public has faith and confidence alone can deliver the goods. After the incorporation of these two articles, Acts have been enacted whereunder tribunals have been constituted for dispensation of justice. Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have served the purpose and objectives for which they were constituted. Complaints have been heard in regard to the functioning of other tribunals as well and it is time that a body like <ORG> has a comprehensive look-in with a view to suggesting measures for their improved functioning. That body can also suggest changes in the different statutes and evolve a model on the basis whereof tribunals may be constituted or reconstituted with a view to ensuring greater independence. An intensive and extensive study needs to be undertaken by <ORG> in regard to the Constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality of their performance may improve. We strongly recommend to <ORG> to undertake such an exercise on priority basis. A copy of this judgment may be forwarded by the Registrar of this Court to the Member Secretary of the <ORG> for immediate action.

29. During the hearing, we requested the learned Additional Solicitor General of India, Mr. <NAME>, to inform us of the measures undertaken to implement the directions issued by this Court in <NAME> case. We were told that <ORG> had in fact initiated a performance-analysis on the lines suggested in the judgment; however, when the Division Bench issued its order indicating that <NAME> case might have to be reviewed by a larger Bench, further progress on the study was halted.

30. We may now apply ourselves to analysing the decision which has been impugned in one of the matters before us, C.A. No. 169 of 1994. The judgment, <CITATION> ., rendered by a full Bench of <ORG>, has declared Article 323A (2)(d) of the Constitution to be unconstitutional to the extent it empowers <ORG> to exclude the jurisdiction of <ORG> under Article 226 of the Constitution; additionally, Section 28 of the Act has also been held to be unconstitutional to the extent it divests <ORG> of jurisdiction under Article 226 in relation to service matters.

31. The Judgment of the Court, delivered by <NAME>, J. has in a elaborate manner, viewed the central issues before us against the backdrop of several landmark decisions delivered by <NAME> of this Court as also the leading authorities in the comparative constitutional law. The judgment has embarked on a wide-ranging quest, extending to the American, Australian and British jurisdictions, to ascertain the true import of the concepts of 'judicial power', 'judicial review' and other related aspects. The judgment has also analysed a contention based on Article 371D of the Constitution, but, since that aspect is not relevant to the main controversy before us, we shall avoid its discussion.

32. The Judgment of <ORG> has, after analyzing various provisions of our Constitution, held that under our constitutional scheme <ORG> and <ORG> are the sole repositories of the power of judicial review. Such power, being inclusive of the power to pronounce upon the validity' of statutes, actions taken and orders passed by individuals and bodies falling within the ambit of the impression "State" in Article 12 of the Constitution, has only been entrusted to the constitutional courts, i.e., <ORG> and this <ORG>. For this proposition, support has been drawn from the rulings of this <ORG> in <CITATION> : AIR1973SC1461 , Special Reference No. 1 of 1964,  1 SCR 413; <CITATION> : 3SCR854a ; <CITATION> : 1SCR206 , <CITATION> . : 1SCR686 and certain other decisions, all of which have been extensively analysed and profusely quoted from.

33. Analysing the decision in <NAME> case against this back-drop, it is noted that the theory of alternative institutional mechanisms established in <NAME> case is in defiance of the proposition laid down in <NAME> case, Special reference case and <NAME> case, that <ORG> alone are competent to exercise the power of judicial review to pronounce upon the constitutional validity of statutory provisions and rules. <ORG>, therefore, felt that the decision in <NAME> case, being per incuriam, was not binding upon it. <ORG> also pointed out that, in any event, the issue of constitutionality of Article 323A (2) (d) was neither challenged nor upheld in <NAME> case and it could not be said to be an authority on that aspect.

34. Thereafter, emphasising the importance of service matters which affect the functioning of civil servants, who are an integral part of a sound governmental system, <ORG> held that service matters which involve testing the constitutionality of provisions or rules, being matters of grave import, could not be left to be decided by statutorily created adjudicatory bodies, which would be susceptible to executive influences and pressures. It was emphasised that in respect of constitutional <ORG>s, the Framers of our Constitution had incorporated special prescriptions to ensure that they would be immune from precisely such pressures. <ORG> also cited reasons for holding that the sole remedy provided, that of an appeal under Article 136 to this <ORG>, was not capable of being a real safeguard. It was also pointed out that even the saving of the jurisdiction of this <ORG> under Article 32 of the Constitution would not help improve matters. It was, therefore, concluded that although judicial power can be vested in a <ORG> or <ORG>, the power of judicial review of <ORG> under Article 226 could not be excluded even by a constitutional Amendment.

Article 323B.

35. This provision of the Constitution empowers <ORG> or the State <ORG>s, as the case may be, to enact laws providing for the adjudication or trial by <ORG> of disputes, complaints or offences with respect to a wide variety of matters which have been specified in the nine Sub-clause of Clause (2) of Article 323B. The matters specified cover a wide canvas including inter alia disputes relating to tax cases, foreign exchange matters, industrial and labour cases, ceiling on urban property, election to State <ORG>s and <ORG>, essential goods and their distribution, criminal offences etc. Clause (3) enables the concerned <ORG> to provide for the establishment of a hierarchy of <ORG> and to lay down their jurisdiction, the procedure to be followed by them in their functioning, etc. Sub-clause (d) of Clause (3) empowers the concerned <ORG> to exclude the jurisdiction of all courts, except the jurisdiction of <ORG> under Article 136 of the Constitution, with respect to all or any of matters falling within the jurisdiction of the <ORG>. The constitutional provision, therefore, invests <ORG> of the State <ORG>s, as the case may be, with powers to divest the traditional courts of a considerable portion of their judicial work.

36. According to the information provided to us by Mr. <NAME>, the learned Additional Solicitor General, until the present date, only four Tribunals have been created under Article 323B pursuant to legislations enacted by the Legislatures of three States. The first of these was <ORG> which was set up in 1989 under <ORG> Act, 1987. Similarly, <ORG> was set up in 1995 under <ORG> Act, 1995. The State of Tamil Nadu has set up two Tribunals by utilising the power conferred upon it by Article 323B. The first of these was <ORG> which was established on 1.11.1990 under the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Amendment Act, 1985 to deal with all matters relating to land reforms arising under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act , 1961. Later, <ORG> was established on 22.12.1995 under <ORG> Act, 1992 to deal with cases arising under the Tamil Nadu General Sales Tax Act and Additional Sales Tax Act.

37. Certain problems have arisen in the functioning of these Tribunals especially in respect of the manner in which they exclude the jurisdiction of their respective <ORG>. This aspect can be illustrated by briefly adverting to the broad facts of two of the matters before us. C.A. No. 1532-33 of 1993 arises as a result of conflicting orders issued by <ORG> and <ORG>. Certain petitioners had challenged the constitutional validity of some provisions in three legislations enacted by <ORG> before the <ORG>. After examining the matter and hearing the arguments advanced in response by the State of West Bengal, <ORG>, by this order dated 9.10.1991, upheld the constitutional validity of the impugned provisions. Thereafter, the constitutional validity of the same provisions was challenged in a Writ Petition before <ORG>. During the proceedings, the State of West Bengal raised the preliminary objection that by virtue of Section 14 of <ORG> Act, 1987, which excluded the jurisdiction of <ORG> in all matters within the jurisdiction of <ORG>, <ORG> had no jurisdiction to entertain the writ petition. However, <ORG> proceeded with the case and, by its judgment dated 25.11.1992, declared the impugned provisions to be unconstitutional. These developments have resulted in an interesting situation, where the same provisions have alternately been held to be constitutional and unconstitutional by two different form, each of which considered itself to be empowered to exercise jurisdiction.

38. S.L.P. No. 17768 of 1991 seeks to challenge a judgment of <ORG> which has held that the establishment of <ORG> will not affect the powers of <ORG> to issue writs. This decision is based on the reasoning that <ORG> had no power" to infringe upon <ORG> powers to issue writs under Article 226 of the Constitution and to exercise its powers of superintendence under Article 227 of the Constitution."

39. It is against these circumstances that we must now test the propositions put forth for our consideration.

Submissions of Counsel.

40. We have heard the submission of several learned senior counsel who appeared for the various parties before us. Mr. <NAME> and Mr. <NAME>, through their respective arguments, urged us to review the decision in <NAME> case and to hold Article 323 A (2)(d) and Article 323 B (3)(d) of the Constitution to be unconstitutional to the extent they allow <ORG> created under the Act to exclusively exercise the jurisdiction vested in <ORG> under Articles 226 and 227 of the Constitution. On the other hand, Mr. <NAME>, the learned Additional Solicitor General, Mr. <NAME>, and Mr. <NAME> urged us to uphold the validity of the impugned constitutional provisions and to allow such <ORG> to exercise the jurisdiction under Article 226 of the Constitution. We have also heard arguments advanced on behalf of the Registrar of the Principal Bench of <ORG>, who was represented before us by Mr. <NAME>. Mr. <NAME>, the learned Additional Solicitor General, urged us to set aside the judgment of <ORG> which affects the jurisdiction of <ORG>. Certain other counsel have also addressed us in support of the main arguments advanced.

41. Mr. <NAME>, learned Counsel for the petitioner in W.P. No. 918 of 1992, contended as follows: (i) Section 5(6) of the Act, insofar as it allows a single Member Bench of a Tribunal to test the constitutional validity of a statutory provision, is unconstitutional. This proposition flows from the decisions in <NAME> case, <NAME> case and Dr. <NAME> case. In <NAME> case, this Court had required a Bench of a Tribunal to ordinarily consist of a Judicial Member and an Administrative Member. Consequently, Section 5 (2) of the Act was accordingly amended; however, since Section 5(6) was not amended simultaneously, the import of the observations in <NAME> case can still be frustrated. Even if the theory of alternative institutional mechanisms adopted in <NAME> case, is presumed to be correct, Section 5(6) of the Act will have to be struck down as a single Member Bench of a Tribunal cannot be considered to be a substitute for the exercise of the power of <ORG> under Article 226 of the Constitution; (ii) The impugned provisions of the Constitution, insofar as they exclude the jurisdiction of <ORG> and <ORG> under Articles 32 and of the Constitution, are unconstitutional. This is for the reason that: (a) <ORG> cannot, in exercise of its constituent power, confer power on <ORG> and <ORG> to exclude the constitutional jurisdiction conferred on <ORG> as the power to amend the Constitution cannot be conferred on the <ORG>; and (b) These provisions violate the basic structure of the Constitution insofar as they take away the power of judicial review vested in <ORG> under Article 32 of the Constitution and <ORG> under Articles 226 and 227 the Constitution. While the <ORG> constituted under Articles 323A and 323 B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from <NAME> case where it was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review of legislative action; (iii) While the provisions of the Act do not purport to affect the sacrosanct jurisdiction of <ORG> under Article 32 of the Constitution, Articles 323A and 323B allow <ORG> to pursue such a course in future and are therefore liable to be struck down;

(iv) The decision in <NAME> case was founded on the hope that the <ORG> would be effective substitutes for <ORG>. This position is neither factually nor legally correct on account of the following differences between <ORG> and these <ORG>: (a) <ORG> enjoy vast powers as a consequence of their being <ORG> of record under Article 215 of the Constitution and also process the power to issue Certificates of Appeal under Articles 132 and 133 of the Constitution in cases where they feel that a decision of this Court is required. This is not so for <ORG>; (b) the qualifications for appointment of a <ORG> Judge and the constitutional safeguards provided ensure the independence of and efficiency of the Judges who man <ORG>. The conditions prescribed for Members of <ORG> are not comparable; (c) While the jurisdiction of <ORG> is constitutionally protected, a <ORG> can be abolished by simply repealing its parent statute; (d) While the expenditure of <ORG> is charged to <ORG>, the <ORG> are dependent upon the appropriate <ORG> for the grant of funds for meeting their expenses. These and other differences give rise to a situation whereby the <ORG>, being deprived of constitutional safeguards for ensuring their independence, are incapable of being effective substitutes for <ORG>; (v) Under our constitutional scheme, every <ORG> has, by virtue of Articles 226 and 227 of the Constitution, the power to issue prerogative writs or orders to all authorities and instrumentalities of the State which function within its territorial jurisdiction. In such a situation, no authority or <ORG> located within the territorial jurisdiction of a <ORG> can disregard the law declared by it. The impugned constitutional provisions, insofar as they seek to divest <ORG> of their power of superintendence over all <ORG> and <ORG> situated within their territorial jurisdiction, violate the basic structure of the constitution, and (vi) In view of the afore-stated propositions, the decision in <NAME> case requires a comprehensive reconsideration.

42. Mr. <NAME>, appearing for the respondent in C.A. No. 1532-33/96, advanced the following submissions: (i) The 42nd Amendment to the Constitution, which introduced the impugned constitutional provisions, must be viewed in its historical context. The 42nd Amendment, being motivated by a feeling of distrust towards the established judicial institutions, sought, in letter and spirit, to divest constitutional courts of their jurisdiction. The aim was to vest such constitutional jurisdiction in creatures whose establishment and functioning could be controlled by the executive. Such an intent is manifest in the plain words of Articles 323A and 323B which oust the jurisdiction vested in this <ORG> and the High <ORG>s under Articles 32, 226 and 227 of the Constitution; (ii) The validity of the impugned provisions has to be determined irrespective of the manner in which the power conferred by them has been exercised. In <NAME> case, this <ORG> restricted its enquiry to the Act, which did not oust the jurisdiction under Article 32 , and did not explore the larger issue of the constitutionality of Article 323A (2)(d ), which in express terms permits <ORG> to oust the jurisdiction of the Supreme <ORG>. This was not correct approach as the constitutionality of a provision ought not to be judged only against the manner in which power is sought to be exercised under it. The correct test is to square the provision against the constitutional scheme and then pronounce upon its compatibility. The vice in Article 323A (2)(d) is that it permits <ORG> to enact, at a future date, a law to exclude the jurisdiction of this <ORG> under Article 32. Being possessed of such potential for unleashing constitutional mischief in the future, its vires cannot be sustained; (iii) The power of judicial review vested in this <ORG> under Article 32 and the High <ORG> under Article 226 is part of the basic structure of the Constitution. The relevant portions of the decisions in <NAME> case, <CITATION> : (1981)ILLJ193SC and <CITATION> : AIR1991SC2150 highlight the importance accorded to Article 32 of the Constitution; (iv) The theory of alternative institutional mechanisms advocated in <NAME> case ignores the fact that judicial review vested in the High <ORG>s consists not only of the power conferred upon the High <ORG>s but also of the High <ORG>s themselves as institutions endowed with glorious judicial traditions. The High <ORG>s had been in existence since the 19th century and were possessed of a hoary past enabling them to win the confidence of the people. It is this which prompted the Framers of our Constitution to vest such constitutional jurisdiction in them. A <ORG>, being a new creation of the executive, would not be able to recreate a similar tradition and environment overnight. Consequently, the alternative mechanisms would not, in the absence of an atmosphere conducive to the building of traditions, be able to act as effective alternatives to High <ORG>s for the exercise of constitutional Jurisdiction. <CITATION> : AIR1996SC693 , this <ORG> has analysed the special constitutional status of Judges of High <ORG>s and explained how they are distinct from other tiers of the judiciary.

43. Mr. <NAME>, appearing for the second and third respondents in C.A. 1532-33/93, adopted the arguments of Mr. <NAME> and Mr. <NAME>. In addition, he cited certain authorities in support of his contention that the power to interpret the provisions of the Constitution is one which has been solely vested in the constitutional courts and cannot be bestowed on newly created quasi-judicial bodies which are susceptible to executive influences.

44. Mr. <NAME>, the learned Additional Solicitor General of India represented <ORG> which is a party in C.A. No. 169 of 1994 and C.A. No. 481 of 1989. His contentions are as follows: (i) Clause 2(d) of Article 323A and Clause 3(d) of Article 323B ought not to be struck down on the ground that they exclude the jurisdiction of this <ORG> under Article 32 of the Constitution. On account of several decisions of this <ORG>, it is a well-established proposition in law that the jurisdiction of this <ORG> under Article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore, <ORG> must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under Article 32 was not intended to be affected. However, the jurisdiction of the High <ORG>s under Article 226 was sought to be removed by creating alternative institutional mechanisms. The theory enunciated in <NAME> case is based on sound considerations and does not require any reconsideration; (ii) Alternatively, Articles 323A and 323B do not seek to exclude the supervisory jurisdiction of the High <ORG>s over all <ORG> situated within their territorial jurisdiction. Viewed from this perspective, the High <ORG>s would still be vested with Constitutional powers to exercise corrective or supervisory jurisdiction; (iii) Since the decisions of this <ORG> in <NAME> case and Dr. <NAME>'s case had clearly held that matters relating to the vires of a provision are to be dealt with by a Bench consisting of a judicial member and these guidelines will be followed in future, there is no vice of unconstitutionality in Section 5 (6).

45. Mr. <NAME>, learned Counsel for the State of Andhra Pradesh in C.A. No. 196 of 1994 and the connected special leave petitions, put forth the following submissions: (i) The matter before us involves a very serious, live problem which needs to be decided by adopting a pragmatic, cooperative approach instead of by a dogmatic, adversarial process. It is a fact that <ORG> which were conceived as substitutes for <ORG> have not lived upto expectations and have instead, proved to be inadequate and ineffective in several ways. However, the striking down of the impugned constitutional provisions would, instead of remedying the problem, contribute to its worsening. The problem of pendency in <ORG> which has been a cause for concern for several decades, has been focused upon by several expert committees and commissions. The problem of enormous increase in the volume of fresh institution coupled with massive areas has necessitated the seeking of realistic solutions in order to prevent <ORG> from becoming incapable of discharging their functions. The consistent view of these expert committees has been that the only manner in which the situation can be saved is by transferring some of the jurisdiction of <ORG>, in relatively less important areas, to specially constituted <ORG> which would act as substitutes for <ORG>. In <NAME> case, this <ORG> was required to test the constitutional validity of providing for such a substitute to <ORG> in the shape of Administrative <ORG>. While deciding the case, this <ORG> had actually monitored the amendments to the Act by a series of orders and directions given from time to time as the learned Attorney General had offered to effect the necessary amendments to the Act to remove its defects. After the necessary amendments were made to the Act, this <ORG> was satisfied that there was no need to strike, it down as it was of the view that the Act would provide an effective alternative forum to <ORG> for the resolution of service disputes. However, the actual functioning of the <ORG> during the last decade has brought forth several deficiencies which need to be removed. The remedy, however, lies not in striking down the constitutional provisions involved but in allowing <ORG> to further amend the Act so as to ensure that the <ORG> become effective alternative form; (ii) Article 323A (2)(d) does not violate the basic structure of the Constitution. The relevant observations in <NAME> case, show that there is an inherent distinction between the individual provisions of the Constitution and the basic features of the Constitution. While the basic features of the Constitution cannot be changed even by amending the Constitution each and every provision of the Constitution can be amended under Article 368. The majority judgments in <NAME> case emphatically state that the concept of separation of powers is a basic feature of the Constitution. It, therefore, follows that the powers of judicial review, which is a necessary concomitant of the independence of the judiciary, is also a basic feature of our Constitution. However, it does not follow that specific provisions such as Article 32 or Article 226 are by themselves part of the basic structure of the Constitution. In this regard, the history of Article 31 , which contained a Fundamental Right to Property and was shifted from Part III to Chapter IV of Part XII can be cited by way of an example; (iii) the essence of the power of judicial review is that it must always remain with the judiciary and must not be surrendered to the executive or the legislature. Since the impugned provisions save the jurisdiction of this <ORG> under Article 136 , thereby allowing the judiciary to have the final say in every form of adjudication, it cannot be said that the basic feature of judicial review had been violated. The constitutional bar is against the conferment of judicial power on agencies outside the judiciary. However, if within the judicial set-up, arrangements are made in the interests of bolter administration of justice to limit the jurisdiction under Article 32 and 226 of the Constitution, there can be no grievance. In fact, it is in the interest of better administration of justice that this <ORG> has developed a practice, even in the case of violation of Fundamental Rights, of requiring parties to approach the concerned High <ORG> under Article 226 instead of directly approaching this <ORG> under Article 32 of the Constitution. This, undoubtedly, has the effect of limiting the jurisdiction of this <ORG> under Article 32 but, being necessary for proper administration of justice, cannot be challenged as unconstitutional. Service matters, which are essentially in the nature of in-house disputes, being of lesser significance than those involving Fundamental Rights, can also be transferred to <ORG> on the same reasoning; (iv) By virtue of Order XXVII-A, Rule 1A, ordinary civil courts are empowered to adjudicate upon questions of vires of statutory rules and instruments. In view of this situation, there is no constitutional difficulty in empowering <ORG> to have similar powers; (v) Alternatively, in case we are inclined to take view that the power of judicial review of legislative enactments cannot in any event be conferred on any other <ORG> or <ORG>, we may use the doctrine of reading down to save the impugned constitutional provisions. So construed, <ORG> would continue to have jurisdiction to decide the vires of an Act even in the area of service disputes and would, therefore, perform a supervisory role over <ORG> in respect of matters involving constitutional questions.

46. Mr. <NAME>, representing the State of West Bengal in S.L.P. No. 1063 of 1996 and C.A. No. 1532-33 of 1993, began by reiterating the contention that the impugned provisions do not seek to oust the jurisdiction of this <ORG> under Article 32 which is a basic feature of the Constitution. His alternative contention was that since the provisions do not exclude the jurisdiction under Article 136 and since Article 32 (3) itself conceives of the delegation of that jurisdiction, the ouster of the jurisdiction under Article 32 was not unconstitutional. This submission was based on the reasoning that, in the absence of any specific constitutional prohibition, both <ORG> and the State legislatures were vested with sufficient legislation powers to effect changes in the original jurisdiction of this <ORG> as well as the High <ORG>s. He then stated that in the event that we are not inclined to hold in accordance with either of the earlier contentions, the doctrine of severability should be applied to excise the words "under Article 136" from the provisions and thus save them from the vice of unconstitutionality. Thereafter, he endeavoured to impress upon us the jurisprudential soundness of the theory of alternative institutional mechanism propounded in <NAME> case. He then contended that the shortfalls in the Constitution of the Tribunals, the selection of their personnel, the methods of their appointment etc. are a consequence of legislative and executive errors of judgment; these shortfalls cannot affect the constitutionality of the parent constitutional provisions. He concluded by declaring that these constitutional amendments were lawfully incorporated by the representatives of the people in exercise of the constituent power of <ORG> to remedy the existing problem of inefficacious delivery of justice in the High <ORG>s. He counseled us not to substitute our decision for that of the policy evolved by <ORG> in exercise of its constituent power and urged us to suggest suitable amendments, as was done in <NAME> case, to make up for the shortfalls in the existing system.

47. Mr. <NAME>, the petitioner in W.P. No. 789 of 1990, who is a lawyer practicing before the Ahmedabad Bench of <ORG>, sought to apprise us of the practical problems faced by advocates in presenting their cases before <ORG> and of several complaints regarding the discharge of their official duties.

48. The Registrar of <ORG> of the Central Administrative Tribunal, who is the Second respondent in C.A. No. 481 of 1989, was represented before us by Mr. <NAME>. The case of the Registrar is that the <ORG>, as they are functioning at present, are not effective substitutes for <ORG>. However, the creation of alternative institutional mechanisms is not violative of the basic structure so long as it is as efficacious as the constitutional courts. He urged us to discontinue the appointment of Administrative Members to the <ORG> and to ensure that the Members of the <ORG> have security of tenure, which is a necessary pre-requisite for securing their independence.

49. Mr. <NAME>, the learned Additional Solicitor General of India, drew our attention towards the judgment of <ORG> which is the subject of challenge in S.L.P. No. 17768 of 1991. Mr. <NAME> endeavoured to convince us that the amendments incorporated in the legislation which created <ORG> after the decision in <NAME> case have the effect of making it a proper and effective substitute for <ORG>. He also submitted that the functioning of <ORG> was essential for the effective resolution of disputes in that branch of law.

50. We may now address the main issues which have been identified at the beginning of this judgment as being central to the adjudication of this batch of matters. This would involve an appreciation of the power of judicial review and an understanding of the manner and the instrumentalities through which it is to be exercised.

51. The underlying theme of the impugned judgment of <ORG> rendered by <NAME>, J. is that the power of judicial review is one of the basic features of our Constitution and that aspect of the power which enables courts to test the constitutional validity of statutory provisions is vested exclusively in the constitutional courts, i.e., <ORG> and <ORG>. In this Regard, the position in American Constitutional Law in respect of Courts created under Article III of the Constitution of the United States has been analysed to state that the functions of Article III Courts (constitutional courts) cannot be performed by other legislative courts established by the <ORG> in exercise of its legislative power. The following decisions of <ORG> have been cited for support : <ORG> of the District of Columbia v. <ORG> 93 L. Ed. 1156 337 US 582, <NAME> v. United States 77 L. Ed. 1372 289 US 553, <NAME> v. <NAME> 3 L. Ed. 2d 5 358 US 1, <ORG> v. <ORG> and United States 73 L. Ed. 2d 59 458 US 50.

52. We may briefly advert to the position in American Constitutional Law to the extent that it is relevant for our purpose. As pointed out by <NAME>, an acclaimed American Constitutional Law scholar, judicial review in the United States comprises the power of any court to hold unconstitutional and hence unenforceable any law, any official action based upon a law or any other action by a public official that it deems to be in conflict with the Basic Law, in the United States, its Constitution. It further stated that in the United States, the highly significant power of judicial review is possessed, theoretically, by every court of record, no matter how high or low on the judicial ladder. Though it occurs only infrequently, it is quite possible for a Judge in a low-level court of one of the 50 States to declare a Federal Law unconstitutional.

53. The position can be better appreciated by analysing the text of Section 1 of Article III of the U.S. Constitution:

Article III, Section 1 - The Judicial Power of the United States, shall be vested in one <ORG>, and in such inferior Courts as the <ORG> may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

(Emphasis added)

54. The judgment of <ORG> is, therefore, correct in asserting that the judicial power vested in Article III of the U.S. Constitution can only be exercised by courts created under Section 1 of Article III. However, what must be emphasised is the fact that Article III itself contemplates the conferment of such judicial power by <ORG> upon inferior courts so long as the independence of the Judges is ensured in terms of Section 1 to Article III. The proposition which emerges from this analysis is that in the United States, though the concept of judicial power has been accorded great constitutional protection, there is no blanket prohibition on the conferment of judicial power upon courts other than <ORG>.

55. <NAME> definition of judicial review in the American context is, subject to a few modifications, equally applicable to concept as it is understood in Indian Constitutional Law. Broadly speaking, judicial review in India comprises three aspects: judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. We are, for the present, concerned only with understanding the first two aspects.

56. In the modern era, the origin of the power of judicial review of legislative action may well be traced to the classic enunciation of the principle by Chief, Justice <NAME> of <ORG> in <NAME> v. Mad 1 Cr 137 (1803):

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule..A law repugnant to the Constitution is void.. Courts as well as other departments are bound by that instrument.

(Emphasis added) The assumption of such a power unto itself by <ORG> was never seriously challenged and, over the years, it has exercised this power in numerous cases despite the persisting criticism that such an exercise was undemocratic. Indeed, when the Framers of our Constitution set about their monumental task, they were well aware that the principle that courts possess the power to invalidate duly enacted legislations had already acquired a history of nearly a century and a half.

57. At a very early stage of the history of this <ORG>, when it was doubted whether it was justified in exercising such a power, <NAME>, CJ, While emphatically laying down the foundation of the principle held as follows <CITATION> : 1952CriLJ966 :

..[O]ur Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where <ORG> has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted "due process" clause in the Fifth and Fourteenth Amendments. If, then, the courts, in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's sprit, but in discharge of a duty plainly laid upon them by the constitution. This is especially true as regards the "fundamental rights", as to which this <ORG> has been assigned the role of a sentinel on the qui vive. While the <ORG> naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.

(Emphasis added)

58. Over the years, this <ORG> has had many an opportunity to express its views on the power of judicial review of legislative action. What follows is an analysis of the leading pronouncements on the issue.

59. While delivering a separate but concurring judgment in the five-Judge Constitution Bench Decision in <ORG> v, <ORG> : [1956]29ITR717(SC) , <ORG> made the following observations which are apposite to the Present context:

The heart and core of democracy lies in the judicial process, and that means independent and fearless judges free from executive control brought up in judicial traditions and training to judicial ways of working and thinking. The main bulwarks of liberty of freedom lie there and it is clear to me that uncontrolled powers of discrimination in matters that seriously affect the lives and properties of people cannot be left to executive or quasi executive bodies even if they exercise quasi judicial functions because they are then invested with an authority that even <ORG> does not possess. Under the Constitution, Acts, of <ORG> are subjected to judicial review particularly when they are said to infringe fundamental rights, therefore, if under the Constitution <ORG> itself has not uncontrolled freedom, of action, it is evident that it cannot invest lesser authorities with that power.

60. Special Reference No. 1 of 1964, was a case where a seven-Judge <ORG> of this Court had to express itself on the thorny issue of Parliamentary privileges. While doing so, the Court was required to consider the manner in which our Constitution has envisaged a balance of power between the three wings of Government and it was in this context that <NAME>, CJ made the following observations:

..[W]hether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the <ORG> in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a <ORG> without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the <ORG> in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the <ORG> of this country.

(Emphasis added)

61. It is interesting to note that the origins of the power of judicial review of legislative action have not been attributed to one source alone. While <NAME>, C.J. found the power mentioned expressly in the text of the Constitution, <NAME>, C.J. preferred to trace it to the manner in which the Constitution has separated powers between the three wings of Government.

62. In <NAME> case, a 13 - Judge <ORG>, by a majority of 7:6, held that though, by virtue of Article 368 , <ORG> is empowered to amend to Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or to destroy its basic structure. The identification of the features which constitute the basic structure of our Constitution has been the subject-matter of great debate in Indian Constitutional Law. The difficulty is compounded by the fact that even the judgments for the majority are not unanimously agreed on this aspect. [There were five judgments for the majority, delivered by <NAME>, <NAME>, <NAME> & <NAME>, <NAME>. <NAME> & <NAME>, <NAME>. <NAME>, <NAME> and <NAME>, <NAME> While <NAME>, <NAME> did not attempt to catalogue the basic features, the identification of the basic features by the other Judges are specified in the following paragraphs of the <ORG>'s judgments : <NAME>, <NAME> (para 292), <NAME> and <NAME>, <NAME>. (para 582), <NAME> and <NAME>, <NAME>. (paras 632, 661) and <NAME>, <NAME> (paras 1159, 1161)]. The aspect of judicial review does not find elaborate mention in all the majority judgments. <NAME>, <NAME> did, however, squarely address the issue (at para 1529):

..The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution..As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened.. Judicial review has thus become an integral part of our constitutional system and a power has been vested in <ORG> and <ORG> to decide about the constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is touchstone for the validity of all laws, <ORG> and <ORG> are empowered to strike down the said provisions.

(Emphasis added)

63. <ORG>, <ORG>., while reaching the same conclusion in respect of Articles 32& 226, however, adopted a different approach to the issue (at para 577):

There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre- dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution but it envisages such a separation to a degree as was found in <NAME>'s case (supra). The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances.

(Emphasis added)

64. <CITATION> , five-Judge <ORG> had to, inter alia, test the Constitutional validity of provisions which ousted the jurisdiction of all <ORG>s including <ORG>, in election matters. Consequently, the <ORG> was required to express its opinion on the concept of judicial review. Though all five Judges delivered concurring judgments to strike down the offending provision, their views on the issue of judicial review are replete with variations. <NAME>, C.<NAME>, was of the view that the concept of judicial review, while a distinctive feature of American Constitutional Law, is not founded on any specific Article in our Constitution. He observed that judicial review can and has been excluded in several matters; in election matters, judicial review is not a compulsion. He, however, held that our Constitution recognises a division of the three main functions of Government and that judicial power, which is vested in the judiciary cannot be passed to or shared by the <ORG> or the <ORG>. (<NAME>s 32, 43, 46, 52). <NAME>, <NAME> took the view that it is not necessary, within a democratic set up, (hat disputes relating to the validity of elections be settled by <ORG>s of Law; he, however, felt that even so the legislature could not be permitted to declare that the validity of a particular election would act be challenged before any forum and would be valid despite the existence of disputes. (<NAME> 207). <NAME>, <NAME> held that whereas in the United States of America and in Australia, the judicial power is vested exclusively in <ORG>s, there is no such exclusive vesting of judicial power in <ORG> of India and the <ORG>s subordinate to it. Therefore, the <ORG> could, by passing a law within its competence, vest judicial power in any authority for deciding a dispute. (<NAME>s 322 and 323). <NAME>, <NAME> held that the power of <ORG>s to test the legality of ordinary laws and constitutional amendments against the norms laid down in the Constitution flows from the 'supremacy of the Constitution' which is a basic feature of the Constitution. (<NAME> 622). <NAME>, <NAME> felt that the contention that judicial review is a part of the basic structure and that any attempt to exclude the jurisdiction of courts in respect of election matters was unconstitutional, was too broadly stated. He pointed out that the Constitution, as originally enacted, expressly excluded judicial review in a large number of important: matters. The examples of Articles 136(2) and 226(4) [exclusion of review in laws relating to armed forces], Article 262(2) [ exclusion of review in river disputes] Article 103(1) [ exclusion of review in disqualification of Members of <ORG>], Article 329(a) [ exclusion of review in laws relating to delimitation of constituencies and related matters], were cited for support. Based on this analysis, <NAME>, <NAME> came to the conclusion that since the Constitution, as originally enacted, did not consider that judicial power must intervene in the interests of purity of elections, judicial review cannot be considered to be a part of the basic structure in so far as legislative elections are concerned.

65. The foregoing analysis reveals that the Judges in <NAME> case, all of whom had been party to <NAME> case, did not adopt similar approaches to the concept of judicial review. While <NAME>, <NAME> clearly expressed his view that judicial review was a part of the basic structure of the Constitution, <NAME>, CJ and <NAME>, <NAME> pointed out that unlike in the American context, judicial power had not been expressly vested in the judiciary by the Constitution of India. <NAME>, <NAME> did not express himself on this aspect, but in view of his emphatic observations in <NAME> case, his views on the subject can be understood to have been made clear. <NAME>, <NAME> pointed out that the Constitution itself excludes judicial review in a number of matters and felt that in election matters, judicial review is not a necessary requirement.

66. <CITATION> , a five-Judge Constitution Bench of this Court had to consider the validity of certain provisions of the Constitution (42nd Amendment) Act , 1976 which inter alia, excluded judicial review. The judgment for the majority, delivered by <NAME>, CJ for four Judges, contained the following observations(at p. 644, para 21):

..Our Constitution is founded on a nice balance of power among the three wings of the <ORG>, namely, the <ORG>, the <ORG> and the <ORG>. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled.

(Emphasis supplied)

67. The majority judgment held the impugned provisions to be unconstitutional. While giving reasons in support, <NAME>, CJ stated as follows:

..It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from other basic dissimilarities, Article 31-C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of Clauses (2) to (6) of Article 19. Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law.

68. It may, however, be noted that the majority in <ORG> did not hold that the concept of judicial review was, by itself, part of the basic structure of the Constitution. The judgment of <NAME>, CJ in <ORG> case must be viewed in the context of his judgment in <NAME> case where he had stated that the Constitution, as originally enacted, excluded judicial review in several important matters.

69. In his minority judgment in <ORG> case, <NAME>, J. held as follows:

..The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the <ORG> such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution..The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system the power of judicial review..is unquestionably..part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by <ORG>.

(Emphasis added)

70. <ORG> has, through the judgment of <NAME>, pointed out that the theory of alternative institutional mechanisms enunciated by <NAME>, J. in his minority judgment in <ORG> case was not supported by or even mentioned in the majority judgment. In fact, such a theory finds no prior mention in the earlier decisions of this Court and, in the opinion of <ORG>, did not represent the correct legal position. It is to be noted that in <NAME> case, both <NAME>, CJ and <NAME>, J. in their separate judgment have relied on the observations in the minority judgment of <NAME>, J. in <ORG> case to lay the foundation of the theory of alternative institutional mechanisms.

71. We may, at this stage, take note of the decision in <CITATION> : (1981)ILLJ193SC , where <NAME>, CJ appears to have somewhat revised the view adopted by him in <NAME> case. In that case, speaking for the majority, <NAME>, CJ held that "the jurisdiction conferred on <ORG> by Article 32 is an important and integral part of the basic structure of the Constitution." (at para 11).

72. <CITATION> ., a five-Judge <ORG> had to, inter alia, consider the validity of Paragraph 7 of the Tenth Schedule to the Constitution which excluded judicial review. The judgment for the minority, delivered by <NAME>, <NAME> struck down the provision on the ground that it violated the rule of law which is a basic feature of the Constitution requiring that decisions be subject to judicial review by an independent outside authority. (Paras 181-182). Though the majority judgment delivered by <NAME>, <NAME> also struck down the offending provision, the reasoning employed was different. The judgment for the majority contains an observation to the effect that, in the opinion of the judges in the majority, it was not necessary for them to express themselves on the question whether judicial review is part of the basic structure of the Constitution. (<NAME>.

73. We may now analyse certain other authorities for the proposition that the jurisdiction conferred upon <ORG> and <ORG> under Article 226 and 32 of the Constitution respectively, is part of the basic structure of the Constitution. While expressing his views on the significance of draft Article 25 , which corresponds to the present Article 32 of the Constitution, Dr. <NAME>, the Chairman of <ORG> stated as follows (CAD, Vol. VII, p.

If I was asked to name any particular Article in this Constitution as the most important - an Article without which this Constitution would be a nullity--I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the <ORG> has realised its importance.

(Emphasis added)

74. This statement of Dr. <NAME> has been specifically reiterated in several judgments of this Court to emphasise the unique significance attributed to Article 32 in our constitutional scheme. [See for instance, <NAME>, J. in <NAME> case (p. 818), <NAME>, J. in <ORG> (p. 678), <NAME>, CJ Fertiliser Kamgar (para 11), <NAME>, J. in <NAME> (p. 137)].

75. In the Special Reference Case, While addressing this issue, <NAME>, CJ stated as follows (supra at pp. 493- 494):

If the power of <ORG> under Article 226 and the authority of this <ORG> under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move <ORG> or this <ORG> to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the <ORG> in that behalf; otherwise the power conferred on <ORG> and this <ORG> would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on <ORG> and this <ORG> is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case.

(Emphasis added)

76. To express our opinion on the issue whether the power of judicial review vested in <ORG> and into <ORG> under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The Doctrine of basic structure was evolved in <NAME> case. However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of <ORG>, <NAME>., <ORG>, <NAME>. and <NAME> J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In <NAME> case, <NAME>, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country, (supra at pp. 751-752). This approach was specifically adopted by <NAME>, J. in <ORG> case (supra at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law.

77. We find that the various factors mentioned in the test evolved by <NAME>, <NAME> have already been considered by decisions of various Benches of this <ORG> that have been referred to in the course of our analysis. From their conclusions, many of which have been extracted by us in toto, it appears that this <ORG> has always considered the power of judicial review vested in the High <ORG>s and in this <ORG> under Articles 226 and 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts, to be integral to our constitutional scheme. While several judgments have made specific references to this aspect [<NAME>, CJ in Special Reference case, <NAME>, <NAME> and <NAME>, <NAME> in <NAME> case, <NAME>, CJ and <NAME>, <NAME> in <ORG>, <NAME>, CJ in <ORG>, <NAME>, <NAME> in <ORG>, etc.] the rest have made general observations highlighting the significance of this feature.

78. The legitimacy of the power of <ORG>s within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon <ORG> and <ORG>, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in <ORG> under Articles 226 and in this <ORG> under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High <ORG>s and <ORG> to test the constitutional validity of legislations can never be ousted or excluded.

79. We also hold that the power vested in <ORG> to exercise judicial superintendence over the decisions of all <ORG> and <ORG> within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where <ORG> are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.

80. However, it is important to emphasise that though the subordinate judiciary or <ORG> created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of <ORG> and <ORG>, there is no constitutional prohibition against their performing a supplemental--as opposed to a substitution - role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses Clause (3) of Article 32 of the Constitution which reads as under:

32. Remedies for enforcement of rights conferred by this Part.--(1)..

(2) ..

(3) Without prejudice to the powers conferred on <ORG> by Clauses (1) and (2), <ORG> may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by <ORG> under Clause (2).

(Emphasis supplied)

81. If the power under Article 32 of the Constitution, which has been described as the "heart" and "soul" of the Constitution, can be additionally conferred upon "any other court", there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon <ORG> under Article 226 of the Constitution. So long as the jurisdiction of <ORG> under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 232A and 323B, both <ORG> and <ORG> possess legislative competence to effect changes in the original jurisdiction of <ORG> and <ORG>. This power is available to <ORG> under Entries 77, 78, 79 and 95 of List I and to <ORG> under Entry 65 of List II; Entry 46 of List III can also be availed of both by <ORG> and <ORG> for this purpose.

82. There are pressing reasons why we are anxious to preserve the conferment of such a power on these <ORG>. When the Framers of our Constitution bestowed the powers of judicial review of legislative action upon <ORG> and <ORG>, they ensured that other constitutional safeguards were created to assist them in effectively discharging this onerous burden. The expectation was that this power would be required to be used only occasionally. However, in the five decades that have ensued since Independence, the quantity of litigation before <ORG> has exploded in an unprecedented manner. The decision in <NAME> case was rendered against such a backdrop. We are conscious of the fact that when <ORG> of this Court in <NAME> case adopted the theory of alternative institutional mechanisms, it was attempting to remedy an alarming practical situation and the approach selected by it appeared to be most appropriate to meet the exigencies of the time. Nearly a decade later, we are now in a position to review the theoretical and practical results that have arisen as a consequence of the adoption of such an approach.

83. We must, at this stage, focus upon the factual position which occasioned the adoption of the theory of alternative institutional mechanisms in <NAME> case. In his leading judgment, <NAME> refers to the fact that since independence, the population explosion and the increase in litigation had greatly increased the burden of pendency in <ORG>. Reference was made to studies conducted towards relieving <ORG> of their increased load. In this regard, the recommendations of <ORG> for setting up independent Tribunals as also the suggestion of <ORG> that Civil Service Tribunals be set up, were noted. Reference was also made to the decision in <CITATION> : (1980)IILLJ182SC , where this <ORG> had, while emphasising the need for speedy resolution of service disputes, proposed the establishment of Service Tribunals.

84. The problem of clearing the backlogs of <ORG>, which has reached colossal proportions in our times is, nevertheless, one that has been the focus of study for close to a half century. Over time, several Expert <ORG> and <ORG> have analysed the intricacies involved and have made suggestions, not all of which have been consistent. Of the several studies that have been conducted in this regard, as many as twelve have been undertaken by <ORG> (hereinafter referred to as "the LCI"") or similar high level <ORG> appointed by <ORG>, and are particularly noteworthy.

85. An appraisal of the daunting task which confronts <ORG> can be made by referring to the assessment undertaken by the <ORG> in its 124th Report which was released sometime after the judgment in <NAME> case. The Report was delivered in 1988, nine years ago, and some changes have occurred since, but the broad perspective which emerges is still, by and large, true:

..<ORG> enjoy civil as well as criminal, ordinary as well as extraordinary, and general as well as special jurisdiction. The source of the jurisdiction is the Constitution and the various statutes as well as letters patent and other instruments constituting <ORG>. <ORG> in the country enjoy an original jurisdiction in respect of testamentary, matrimonial and guardianship matters. Original jurisdiction is conferred on <ORG> under the Representation of the People Act , 1951, Companies Act , 1956, and several other special statutes. <ORG>, being courts of record, have the power to punish for its contempt as well as contempt of its subordinate courts. <ORG> enjoy extraordinary jurisdiction under Articles 226 and 227 of the Constitution enabling it to issue prerogative writs, such as, the one in the nature of habeas corpus, mandamus, prohibition, QUO warranto and certiorari. Over and above this, <ORG> of Bombay, Calcutta, Delhi, Himachal Pradesh, Jammu and Kashmir and Madras also exercise ordinary original civil jurisdiction. <ORG> also enjoy advisory jurisdiction, as evidenced by Section 256 of the Indian Companies Act, 1556, Section 27 of the Wealth Tax Act, 1957, Section 26 of Gift Tax Act, 1958, and Section 18 of Companies (Profits) Surtax Act, 1964. Similarly, there are parallel provisions conferring advisory jurisdiction on <ORG>, such as Section 130 of Customs Act, 1962, and Section 354 of Central Excises and Salt Act , 1944. <ORG> have also enjoyed jurisdiction under the Indian Divorce Act , 1869, and the Parsi Marriage and Divorce Act , 1936. Different types of litigation coming before <ORG> in exercise of its wide jurisdiction bear different names. The vast area of jurisdiction can be appreciated by reference to those names, viz., (a) first appeals;

(b) appeals under the letters patent; (c) second appeals; (d) revision petitions; (e) criminal appeals; (f) criminal revisions; (g) civil and criminal references; (h) writ petitions; (i) writ appeals; (j) references under direct and indirect tax laws; (k) matters arising under the Sales Tax Act ; (1) election petitions under the Representation of the People Act ,;

(m) petitions under the Companies Act , Banking Companies Act and other special Acts and (n) wherever <ORG> has original jurisdiction, suits and other proceedings in exercise of that jurisdiction. This varied jurisdiction has to some extent been responsible for a very heavy institution of matters in <ORG>s.

86. After analysing the situation existing in <ORG> at length, the <ORG> made specific recommendations towards the establishment of specialist Tribunals thereby lending force to the approach adopted in <NAME> case. The <ORG> noted the erstwhile international judicial trend which pointed towards generalist courts yielding their place to specialist Tribunals. Describing the pendency in <ORG> as "catastrophic, crisis ridden, almost unmanageable, imposing ..an immeasurable burden on the system", the <ORG> stated that the prevailing view in Indian Jurisprudence that the jurisdiction enjoyed by <ORG> is a holy cow required a review. It, therefore, recommended the trimming of the jurisdiction of <ORG> by setting up specialist courts/Tribunals while simultaneously eliminating the jurisdiction of <ORG>.

87. It is important to realise that though the theory of alternative institutional mechanisms was propounded in <NAME> case in respect of <ORG>, the concept itself--that of creating alternative modes of dispute resolution which would relieve <ORG> of their burden while simultaneously providing specialised justice-is not new. In fact, the issue of having a specialised <ORG> has been discussed for several decades; though the Report of the High Court Arrears Committee (1972) dismissed it as "ill-conceived", the <ORG>, in its 115th Report (1986) revived the recommendation of setting up separate Central <ORG>s. Similarly, other Reports of the <ORG> have suggested the setting up of 'Gram Nyayalayas' (1986) <ORG>, 114th Report , <ORG> 1987 <ORG>, 122nd Report and Education Tribunals (1987) [<ORG>, 123rd Report .

88. In <NAME> case, this <ORG> had, in order to understand how the theory of alternative institutional mechanisms had functioned in practice, recommended that the <ORG> or a similar expert body should conduct a survey of the functioning of these <ORG>. It was hoped that such a study, conducted after gauging the working of the <ORG> over a sizeable period of more than five years would provide an answer to the questions posed by the critics of the theory. Unfortunately, we do not have the benefit of such a study. We may, however, advert to the Report of the Arrears <ORG> (1989-90), popularly known as the Malimath <ORG> Report, which has elaborately dealt with the aspect. The observations contained in the Report, to this extent they contain a review of the functioning of the <ORG> over a period of three years or so after their institution, will be useful for our purpose. Chapter VIII of the second volume of the Report, "Alternative Modes and Forums for Dispute Resolution", deals with the issue at length. After forwarding its specific recommendations on the feasibility of setting up 'Gram Nyayalayas', Industrial <ORG> and Educational <ORG>, the <ORG> has dealt with the issue of <ORG> set up under Articles 323A and 323B of the Constitution. The relevant observations in this regard, being of considerable significance to our analysis, are extracted in full as under:

Functioning of Tribunals 8.63 Several tribunals are functioning in the country. Not all of them, however, have inspired confidence in the public mind.The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach. The next is their constitution, the power and method of appointment of personnel thereto, the inferior status and the casual method of working. The last is their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning. For these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such tribunals.

8.64 Even the experiment of setting up of <ORG> under <ORG> Act , 1985, has not been widely welcomed. Its members have been selected from all kinds of services including <ORG>. The decision of <ORG> are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the State where they have been established for their abolition.

Tribunals--Test for Including <ORG> Jurisdiction 8.65 A Tribunal which substitutes <ORG> as an alternative institutional mechanism for judicial review must be no less efficacious than <ORG>. Such a tribunal must inspire confidence and public esteem that it is a highly competent and expert mechanism with judicial approach and objectivity. What is needed in a tribunal, which is intended to supplant <ORG>, is legal training and experience, and judicial acumen, equipment and approach. When such a tribunal is composed of personnel drawn from the judiciary as well as from services or from amongst experts in the field, any weightage in favour of the service members or expert members and value- discounting the judicial members would render the tribunal less effective and efficacious than <ORG>. The Act setting up such a tribunal would itself have to be declared as void under such circumstances. The same would not at all be conducive to judicial independence and may even tend, directly or indirectly, to influence their decision making process, especially when the Government is a litigant in most of the cases coming before such tribunal. <CITATION> reported in : (1987)ILLJ128SC . The protagonists of specialist tribunals, who simultaneously with their establishment want exclusion of the Writ jurisdiction of <ORG>s in regard to matters entrusted for adjudication to such tribunals, ought not to overlook these vital and important aspects. It must not be forgotten that what is permissible to be supplant by another equally effective and efficacious institutional mechanism is <ORG>s and not the judicial review itself. Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the frame work of the tribunal intended to be set up to attain them must still retain its basic judicial character and inspire public confidence. Any scheme of decentralisation of administration of justice providing for an alternative institutional mechanism in substitution of <ORG>s must pass the aforesaid test in order to be constitutionally valid.

8.66 The overall picture regarding the tribunalisation of justice in our country is not satisfactory and encouraging. There is a need for a fresh look and review and a serious consideration before the experiment is extended to new areas of fields, especially if the constitutional jurisdiction of <ORG> is to be simultaneously ousted. Not many tribunals satisfying the aforesaid tests can possibly be established.

(Emphasis added)

89. Having expressed itself in this manner, <ORG> specifically recommended that the theory of alternative institutional mechanisms be abandoned. Instead, it recommended that institutional changes be carried out within <ORG>, dividing them into separate divisions for different branches of law, as is being done in England. It stated that appointing more Judges to man the separate divisions while using the existing infrastructure would be a better way of remedying the problem of pendency in <ORG>.

90. In the years that have passed since the Report of <ORG> was delivered, the pendency in <ORG> has substantially increased and we are of the view that its recommendation is not suited to our present context. That the various <ORG> have not performed upto expectations is a self-evident and widely acknowledged truth. However, to draw an inference that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. The reasons for which the <ORG> were constituted still persist; indeed, those reasons have become even more pronounced in our times. We have already indicated that our constitutional scheme permits the setting up of such <ORG>. However, drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them.

91. We may first address the issue of exclusion of the power of judicial review of <ORG>. We have already held that in respect of the power of judicial review, the jurisdiction of <ORG> under Article 226 /227 cannot wholly be excluded. It has been contended before us that the <ORG> should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach <ORG> and thus subvert the jurisdiction of the <ORG>. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the <ORG> have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of <ORG> under Articles 226/227 of the Constitution before <ORG> of <ORG> within whose territorial jurisdiction the <ORG> concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in <ORG> under Article 226 /227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the <ORG>. <ORG> will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.

92. It has also been contended before us that even in dealing with cases which are properly before the <ORG>, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of <ORG> is crowded with decisions of <ORG> that are challenged on relatively trivial grounds and it is forced to perform the role of <ORG>. We have already emphasised the necessity for ensuring that <ORG> are able to exercise judicial superintendence over the decisions of <ORG> under Article 227 of the Constitution. In <NAME> case, after taking note of these facts, it was suggested that the possibility of an appeal from the <ORG> on questions of law to <ORG> of <ORG> within whose territorial jurisdiction the <ORG> falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the afore-stated contentions, we hold that all decisions of <ORG>, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to <ORG> writ jurisdiction under Articles 226/227 of the Constitution, before <ORG> of <ORG> within whose territorial jurisdiction the particular <ORG> falls.

93. We may add here that under the existing system, direct appeals have been provided from the decisions of all <ORG> to <ORG> under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a <ORG> will directly lie before <ORG> under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move <ORG> under Articles 226/227 of the Constitution and from the decision of <ORG> of <ORG> the aggrieved party could move this Court under Article 136 of the Constitution.

94. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these <ORG>. The <ORG> are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for <ORG> and <ORG> which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the <ORG> will be subject to scrutiny before <ORG> of the respective <ORG>. The <ORG> will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the <ORG> will be subject to one important exception. The <ORG> shall not entertain any question regarding the vires of their parent statutes following the settled principle that a <ORG> which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned <ORG> may be approached directly. All other decisions of these <ORG>, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before <ORG> of their respective <ORG>. We may add that the <ORG> will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach <ORG> even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular <ORG> is challenged) by overlooking the jurisdiction of the concerned <ORG>.

95. The directions issued by us in respect of making the decisions of <ORG> amenable to scrutiny before <ORG> of the respective <ORG> will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective over-ruling so as not to disturb the procedure in relation to decisions already rendered.

96. We are also required to address the issue of the competence of those who man the <ORG>s and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such <ORG>s. In the case of Administrative <ORG>s, it has been pointed out that the administrative members who have been appointed have little or no experience in adjudicating such disputes; <ORG> has noted that at times, IPS Officers have been appointed to these <ORG>s. It is stated that in the short tenures that these Administrative Members are on the <ORG>, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenures. For these reasons, it has been urged that the appointment of Administrative Members to Administrative <ORG>s be stopped. We find it difficult to accept such a contention. It must be remembered that the setting-up of these <ORG>s is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of judicial members and those with grass- roots experience would best serve this purpose. To hold that the <ORG> should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted. Since <ORG> is now headed by a Judge of <ORG>, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that administrative members are chosen from amongst those who have some background to deal with such cases.

97. It has been brought to our notice that one reason why these <ORG> have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements. To this end, it is suggested that the <ORG> be made subject to the supervisory jurisdiction of <ORG> within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our constitutional scheme requires that all adjudicatory bodies which fall within the territorial jurisdiction of <ORG> should be subject to their supervisory jurisdiction. If the idea is to divest <ORG> of their onerous burdens, then adding to their supervisory functions cannot, in any manner, be of assistance to them. The situation at present is that different <ORG> constituted under different enactments are administered by different administrative departments of the <ORG> and the <ORG> Governments. The problem is compounded by the fact that some <ORG> have been created pursuant to <ORG> Legislations and some others have been created by <ORG> Legislations. However, even in the case of <ORG> created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such <ORG> can be set-up, it is desirable that all such <ORG> should be, as far as possible, under a single nodal <ORG> which will be in a position to oversee the working of these <ORG>. For a number of reasons that <ORG> should appropriately be the <ORG> of Law. It would be open for the <ORG>, in its turn, to appoint an independent supervisory body to oversee the working of the <ORG>. This will ensure that if the President or Chairperson of the <ORG> is for some reason unable to take sufficient interest in the working of the <ORG>, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the <ORG> and the <ORG> levels. Such a supervisory authority must try to ensure that the independence of the members of all such <ORG> is maintained. To that extent, the procedure for the selection of the members of the <ORG>, the manner in which funds arc allocated for the functioning of the <ORG> and all other consequential details will have to be clearly spelt out.

98. The suggestions that we have made in respect of appointments to <ORG> and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of experts bodies like the <ORG> and <ORG> in this regard. We, therefore, recommend that <ORG> initiate action in this behalf and after consulting all concerned, place all these <ORG> under one single nodal department, preferably <ORG>.

99. Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may no pronounce our opinion on this aspect. Though the vires of the provision was not in question in Dr. <NAME>'s case, we a believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of <ORG>, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or a Bench which does not consist of a Judicial Member. So construed, Section 5(6) will no longer be susceptible to charges of unconstitutionality.

100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B , to the extent they exclude the jurisdiction of <ORG> and <ORG> 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 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon <ORG> under Articles 226/227 and upon <ORG> under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and <ORG> may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The <ORG> created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these <ORG> will, however, be subject to scrutiny before <ORG> of <ORG> within whose jurisdiction the concerned <ORG> falls. The <ORG> will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach <ORG> even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular <ORG> is challenged) by overlooking the jurisdiction of the concerned <ORG>. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.

101. All these matters may now be listed before <ORG> to enable them to be decided upon their individual facts in the light of the observations contained in this judgment.