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Whether exclusion of judicial review under Article 226 of the Constitution amounts to violation of basic structure doctrine

Nandhini SR ,
  22 June 2020       Share Bookmark

Court :
Supreme Court of India
Brief :
The Court in the present case reiterated the principle that basic structure of the Constitution is beyond the amending powers of the Parliament.
Citation :
REFERENCE: 1997 (2) SCR 1186 PARTIES Petitioner:L. Chandra Kumar Respondent:Union of India And Others
  • JUDGMENT SUMMARY: L. Chandra Kumar v. Union of India And Others
  • DATE OF JUDGMENT: 18/03/1997
  • JUDGES: A.M. Ahmadi Cji, M.M. Punchhi, K. Ramaswamy, S.P. Bharucha, S. Saghir

SUBJECT:

The judgment revolves around the question of whether exclusion of judicial review under Article 226 of the Constitution amounts to violation of basic structure doctrine?

FACTS: 

The petitioners in the instant case challenged the validity of insertion of Article 323A by the Constitution (42nd Amendment) Act, 1976 which excluded the jurisdiction of High Courts under Articles 226 and 227 in service matters.  They further challenged sections 4,5,6 and 28 of the Administrative Tribunals Act, 1985 which prescribed the mode of appointment and qualification for Chairman and Vice-Chairman.

IMPORTANT PROVISIONS

The Indian Constitution

Article 32:Remedies for enforcement of rights conferred by Part III

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III.

Article 323A (2)(d): exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints.

ISSUES:

Whether exclusion of jurisdiction under Article 226 and 227 amounts to violation of basic structure doctrine?

ANALYSIS OF THE JUDGEMENT:

When Article 323A was initially brought in, the provision excluded all jurisdictions except the one of Supreme Court under Article 136.  But after the amendment in 1986 the jurisdiction of the Apex Court under Article 32 was also included.  Therefore any dispute regarding the recruitment and appointment of persons in public services has to be first addressed before the administrative tribunal, if either party is aggrieved by the decision of the tribunal he has to only  approach the Supreme Court under Article 32 or 136 but cannot seek assistance under Article 226 or 227.  In simple words it was a two-tier system.  However, the petitioners challenged its validity as judicial review forms a part of the basic structure doctrine.  Rebutting the argument, the respondents submitted that, there was no complete exclusion as judicial review under Article 32 is still available.  Also, the Chairman of the Tribunal constitute a valid alternate to the High Courts.  As the required qualification stands as follows:

  • Should be or been the judge of HC
  • Or should have held the office of Vice-Chairman at least for a period of 2 years.
  • Or held the post of Secretary to government of India
  • Or held the post of Additional Secretary to the government of India
  • Or held the office of Judicial member for a period not less than 3 years.
  • Or Should have been qualified to be a member of High Court
  • Or Should have been the member of India Legal Service Grade 1 for a period of 3 years.

However, the question was already addressed in Sampath Kumar v. Union of India wherein the Court held that, Tribunals constitute a valid alternate to the High Courts.  But the Hon’ble SC in present caseoverruling the decision in Sampath kumar’s case held that, the power of judicial review under Articles 32 and 226 form a part of the basic structure of the Constitution and cannot be taken away by amendments.  Therefore, Article 323 (2)(d) stands invalid to the extent it omits the jurisdiction of HC.  In other words the Court held that, when either party to a case before the Tribunal is not satisfied with the decision she should first approach the High Court and then if he further wants to appeal then he can approach the SC under Articles 136 or 32 depending upon the facts of the case. 

CONCLUSION: 

The Court in the present case reiterated the principle that basic structure of the Constitution is beyond the amending powers of the Parliament.

 
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