Equivalent Citation: 

AIR1987SC386a, 1989(20)ECR146(SC), 1987(27)ELT1(SC),

JT1986(1)SC996, (1987)ILLJ128SC, 1986(2)SCALE960, (1987)1SCC124, [1987]1SCR435,
1987(1)SLJ1(SC), 1987(1)UJ191(SC)

IN THE SUPREME COURT OF INDIA

Writ Petition Nos. 12437 of 1985 etc.

Decided On: 09.12.1986

Appellants: S.P. Sampath Kumar and Ors.

Vs.
Respondent: Union of India (UOI) and Ors.

Hon'ble Judges: 
P.N. Bhagwati, C.J., Ranganath Misra, V. Khalid, G.L. Oza and M.M. Dutt, JJ.

Counsels: 
For Appellant/Petitioner/Plaintiff: Raju Ramachandran, Kukul Mudgal, R. Ramachandran, N.J.
Mehta, P.H. Parekh, D. Krishnamurthy and K.N. Rai, Advs

For Respondents/Defendant: K. Parasaran, Attorney General, V.P. Sarthy, A. Subashini, S.K.

Sinha and S.K. Verma, Advs.

Subject: Constitution

Catch Words

Mentioned IN

Acts/Rules/Orders: 
Administrative Tribunals Act, 1985 - Sections 4, 6, 6(1), 6(2), 8 and 28; Constitution of India -
Articles 32, 136, 226, 227, 323A, 323A(1) and 368;Constitution of India (Forth-second
Amendment) Act, 1976

Cases Referred: 
K.K. Dutta v. Union of India, MANU/SC/0429/1980 Minerva Mills Ltd. v. Union of
India, MANU/SC/0075/1980

Citing Reference: 

Minerva Mills Ltd. and Ors. v. Union of India MANU/SC/0075/1980 Discussed

K.K. Dutta v. Union of India MANU/SC/0429/1980 Discussed

Case Note:

Constitution – jurisdiction – Sections 4, 6, 8 and 28 of Administrative Tribunals Act, 1985

and Articles 32, 136, 226, 227, 323A and 368 of Constitution of India – whether exclusion of
jurisdiction of High Court under Articles 226 and 227 in service matters specified in
Section 28 is unconstitutional and void – judicial review is basic and essential feature of
Constitution and it cannot be abrogated without affecting basic structure of Constitution –
judicial review cannot be altogether abrogated by parliament by amending Constitution it
would be within competence of parliament to amend Constitution so as to substitute in
place of High Court another alternative institutional mechanism – Court directed
Government to set up permanent bench which is equally effective and efficacious
substitution for High Court.

JUDGMENT

P. N. Bhagwati, CJ.

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

2. There are two questions which arise for consideration in these writ petitions and they have
been succinctly set out in the judgment of Ranganath Misra, J. The first question is whether the
exclusion of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution in
service matters specified in Section 218 of the Administrative Tribunals Act, 1985 (hereinafter
referred to as the impugned Act) and the vesting of exclusive jurisdiction in such service matters
in the Administrative Tribunal to be constituted under the impugned Act, subject to an exception
in favour of the jurisdiction of this Court under Articles 32 and 136, is unconstitutional and void
and in any event, even if the first question be answered against the petitioners and in favour of
the Government, the second question required to be considered is, whether the composition of
the Administrative Tribunal and the mode of appointment of Chairman, Vice-Chairmen and
members have the effect of introducing a constitutional infirmity invalidating the provisions of
the impugned Act. I agreed with the answers given to these questions in the judgment of
Ranganath Misra, J. I would articulate my reasons as follows:

3. It is now well-settled as a result of the decision of this Court in Minerva Mills Ltd. and Ors.
v. Union of India and Ors. MANU/SC/0075/1980 : [1981]1SCR206 that judicial review is a
basic and essential feature of the Constitution and no law passed by Parliament in exercise of its
constituent power can abrogate it or take it away. If the power of judicial review is abrogated or
taken away the Constitution will cease to be what it is. It is a fundamental principle of our
constitutional scheme that every organ of the State, every authority under the Constitution,
derives its power from the Constitution and has to act within the limits of such power. It is a
limited Government which we have under the Constitution and both the executive and the
legislature have to act within the limits of the power conferred upon them under the Constitution.
Now a question may arise as to what are the powers of the executive and whether the executive
has acted within the scope of its power. Such a question obviously cannot be left to the executive
to decide and for two very good reasons. First, the decision of the question would depend upon
the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to
be decided by the judiciary, because it is the judiciary which alone would be possessed of
expertise in this field and secondly, the constitutional and legal protection afforded to the citizen
would become illusory, if it were left to the executive to determine the legality of its own action.
So also if the legislature makes a law and a dispute arises whether in making the law, the
legislature has acted outside the area of its legislative competence or the law is violative of the
fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the
same reasons, be left to the determination of the legislature. 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. The judiciary is
constituted the ultimate interpreter of the Constitution and to it is assigned the delicate task of
determining what is the extent and scope of the power conferred on each branch of Government,
what are the limits on the exercise of such power under the Constitution and whether any action
of any branch transgresses such limits. It is also a basic principle of the rule of law which
permeates every provision of the Constitution and which forms its very core and essence that the
exercise of power by the executive or any other authority must not only be conditioned by the
Constitution but also be in accordance with law and it is the judiciary which has to ensure that
the law is observed and there is compliance with the requirements of law on the part of the
executive and other authorities. This function is discharged by the judiciary by exercise of the
power of judicial review which is a most potent weapon in the hands of the judiciary for
maintenance of the rule of law. The power of judicial review is an integral part of our
constitutional system and without it, there will be no Government of laws and the rule of law
would become a teasing illusion and a promise of unreality. That is why I observed in my
judgment in Minerva Mills Ltd. case (supra) at pages 287 and 288:

I am of the view that if there is one feature of our Constitution which, more than any other, is
basic and' fundamental to the maintenance of democracy and the rule of law, it is the power of
judicial review and it is unquestionably, to my mind, part of the basic structure of the
Constitution. Of course, when I say this I should not be taken to suggest that however effective
alternative institutional mechanisms or arrangements for judicial review cannot be made by
Parliament. But what I wish to emphasise is that judicial review is a vital principle of our
Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.
If by a Constitutional amendment, the power of judicial review is taken away and it is provided
that the validity of any law made by the legislature shall not be liable to be called in question on
any ground, even if it is outside the legislative competence of the legislature or is violative of any
fundamental rights, it would be nothing short of subversion of the Constitution, for it would
make a mockery of the distribution of legislative powers between the Union and the States and
render the fundamental rights meaningless and futile. So also if a constitutional amendment is
made which has the effect of taking away the power of judicial review and providing that no
amendment made in the Constitution shall be liable to be questioned on any ground, even if such
amendment is violative of the basic structure and, therefore, outside the amendatory power of
Parliament, it would be making Parliament sole judge of the constitutional validity of what it has
done and that would, in effect and substance, nullify the limitation on the amending power of
Parliament and affect the basic structure of the Constitution. The conclusion must therefore
inevitably follow that Clause (4) of the Article 368 is unconstitutional and void as damaging the
basic structure of the Constitution.

It is undoubtedly true that my judgment in Minerva Mills Ltd. case (supra) was a minority
judgment but so far as this aspect is concerned, the majority Judges also took the same view and
held that judicial review is a basic and essential feature of the Constitution and it cannot be
abrogated without affecting the basic structure of the Constitution and it is equally clear from the
same decision that though judicial review cannot be altogether abrogated by Parliament by
amending the Constitution in exercise of its constituent power, Parliament can certainly, without
in any way violating the basic structure doctrine, set up effective alternative institutional
mechanisms or arrangements for judicial review. The basic and essential feature of judicial
review cannot be dispensed with but it would be within the competence of Parliament to amend
the Constitution so as to substitute in place of the High Court, another alternative institutional
mechanism or arrangement for judicial review, provided it is no less efficacious than the High
Court. Then, instead of the High Court, it would be another institutional mechanism or authority
which would be exercising the power of judicial review with a view to enforcing the
constitutional limitations and maintaining the rule of law. Therefore, if any constitutional
amendment made by Parliament takes away from the High, Court the power of judicial review in
any particular area and vests it in any other institutional mechanism or authority, it would not be
violative of the basic structure doctrine, so long as the essential condition is fulfilled, namely that
the alternative institutional mechanism or authority set up by the parliamentary amendment is no
less effective than the High Court.

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

5. It is necessary to bear in mind that service matters which are removed from the jurisdiction of
the High Court under Articles 226 and 227 of the Constitution and entrusted to the
Administrative Tribunal set up under the impugned Act for adjudication involve questions of
interpretation and applicability of Articles 14, 15, 16 and 311 in quite a large number of cases.
These questions require for their determination not only judicial approach but also knowledge
and expertise in this particular branch of constitutional law. It is necessary that those who
adjudicate upon these questions should have same modicum of legal training and judicial
experience because we find that some of these questions are so difficult and complex that they
baffle the minds of even trained Judges in the High Courts and the Supreme Court. That is the
reason why at the time of the preliminary hearing of these writ petitions we insisted that every
bench of the Administrative Tribunal should consist of one judicial member and one
administrative member and there should be no preponderance of administrative members on any
bench. Of course, the presence of the administrative member would provide input of practical
experience in the functioning of the services and add to the efficiency of the Administrative
Tribunal but the legal input would undeniably be more important and sacrificing the legal input
or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the
Administrative Tribunal as compared to the High Court. Now Section 6 provides that the
Chairman of the Administrative Tribunal should be or should have been a Judge of the High
Court or he should have for at least two years held office of Vice-Chairman or he should have for
at least two years held the post of Secretary to the Government of India or any other post under
the Central or State Government carrying a scale of pay which is not less than that of a Secretary
to the Government of India. I entirely agree with Ranganath Misra, J. that the Chairman of the
Administrative Tribunal should be or should have been a Judge of a High Court or he should
have for at least two years held office as Vice-Chairman. If he has held office as Vice-Chairman
for a period of at least two years he would have gathered sufficient experience and also within
such period of two years, acquired reasonable familiarity with the constitutional and legal
questions involved in service matters, But substituting the Chief Justice of a High Court by a
Chairman of the Administrative Tribunal who has merely held the post of a Secretary to the
Government and who has no legal or judicial experience would not only fail to inspire
confidence in the public mind but would also render the Administrative Tribunal a much less
effective and efficacious mechanism than the High Court. We cannot afford to forget that it is the
High Court which is being supplanted by the Administrative Tribunal and it must be so manned
as to inspire confidence in the public mind that it is a highly competent and expert mechanism
with judicial approach and objectivity. Of course, I must make it clear that when I say this, I do
not wish to cast any reflection on the members of the Civil Services because fortunately we have,
in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and
who have remarkable capacity to resolve and overcome administrative problems of great
complexity. But what is needed in a judicial tribunal which is intended to supplant the High
Court is legal training and experience. I am, therefore, of the view, in agreement with Ranganath
Misra, J. that Clause (c) of Section 6 (1) must be struck down as invalid.

6. I also fail to see why a District Judge or an advocate who is qualified to be a Judge of a High
Court should not be eligible to be considered for appointment as Vice-Chairman of the
Administrative Tribunal. It may be noted that since the Administrative Tribunal has been created
in substitution of the High Court, the Vice-Chairman of the Administrative Tribunal would be in
the position of a High Court Judge and if a District Judge or an advocate qualified to be a Judge
of the High Court, is eligible to be a High Court Judge, there is no reason why he should not
equally be eligible to be a Vice-Chairman of the Administrative Tribunal. Can the position of a
Vice-Chairman of the Administrative Tribunal be considered higher than that of a High Court
Judge so that a person who is eligible to be a High Court Judge may yet be regarded as ineligible
for becoming a Vice-Chairman of the Administrative Tribunal? It does appear that the provisions
of the impugned Act in regard to the composition of the Administrative Tribunal are a little
weighted in favour of members of the Services. This weightage in favour of the members of the
Services and value-discounting of the judicial members does have the effect of making the
Administrative Tribunal less effective and efficacious than the High Court. I would therefore
suggest that a District Judge or an Advocate who is qualified to be a Judge of the High Court
should be regarded as eligible for being Vice-Chairman of the Administrative Tribunal and
unless an amendment to that effect is carried out on or before 31st March, 1987, the impugned
Act would have to be declared to be invalid, because the provision in regard to composition of
the Administrative Tribunal cannot be severed from the other provisions contained in the
impugned Act.

7. That takes me to another serious infirmity in the provisions of the impugned Act in regard to
the mode of appointment of the Chairman, Vice-Chairman and members of the Administrative
Tribunal. So far as the appointment of judicial members of the Administrative Tribunal is
concerned, there is a provision introduced in the impugned Act by way of amendment that the
judicial members shall be appointed by the Government concerned in consultation with the Chief
Justice of India. Obviously no exception can be taken to this provision, because even so far as
Judges of the High Court are concerned, their appointment is required to be made by the
President inter alia in consultation with the Chief Justice of India. But so far as the appointment
of Chairman, Vice-Chairmen and, administrative members is concerned, the sole and exclusive
power to make such appointment is conferred on the Government under the impugned Act.
There is no obligation cast on the Government to consult the Chief Justice of India or to follow
any particular selection procedure in this behalf. The result is that it is left to the absolute
unfettered discretion of the Government to appoint such person or persons as it likes as
Chairman, Vice-Chairman and administrative members of the Administrative Tribunal. Now it
may be noted that almost all cases in regard to service matters which come before the
Administrative Tribunal would be against the Government or any of its officers and it would not
at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the
executive to appoint the Chairman, Vice-Chairmen and administrative members; if a judicial
member or an administrative member is looking forward to promotion as Vice-Chairman or
Chairman, he would have to depend on the goodwill and favourable stance of the executive and
that would be likely to affect the independence and impartiality of the members of the Tribunal.
The same would be the position vis-a-vis promotion to the office of Chairman of the
Administrative Tribunal. The administrative members would also be likely to carry a sense of
obligation to the executive for having been appointed members of the Administrative Tribunal
and that would have a tendency to impair the independence and objectivity of the members of the
Tribunal. There can be no doubt that the power of appointment and promotion vested in the
executive can have prejudicial effect on the independence of the Chairman, Vice-Chairmen and
members of the Administrative Tribunal, if such power is absolute and unfettered. If the
members have to look to the executive for advancement, it may tend, directly or indirectly, to
influence their decision-making process particularly since the Government would be a litigant in
most of the cases coming before the Administrative Tribunal and it is the action of the
Government which would be challenged in such cases. That is the reason why in case of
appointment of High Court Judges, the power of appointment vested in the executive is not an
absolute unfettered power but it is hedged in by a wholesome check and safeguard and the
President cannot make an appointment of a High Court Judge without consultation with the
Chief Justice of the High Court and the Chief Justice of India and a healthy convention has
grown up that no appointment would be made by the Government which is not approved by the
Chief Justice of India. This check or safeguard is totally absent in the case of appointment of the
Chairman, Vice-Chairmen and administrative members of the Administrative Tribunal and the
possibility cannot be ruled out- indeed the litigating public would certainly carry a feeling-that
the decision-making process of the Chairman, Vice-Chairmen and members of the
Administrative Tribunal might be likely to be affected by reason of dependence on the executive
for appointment and promotion. It can no longer be disputed that total insulation of the judiciary
from all forms of interference from the coordinate branches of Government is a basic essential
feature of the Constitution. The Constitution makers have made anxious provision to secure total
independence of the judiciary from executive pressure or influence. Obviously, therefore if the
Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the
High Court under Articles 226 and 227 is taken away and vested in the Administrative Tribunal,
the same independence from possibility of executive pressure or influence must also be ensured
to the Chairman, Vice-Chairmen and members of the Administrative Tribunal. Or else the
Administrative Tribunal would cease to be an equally effective and efficacious substitute for the
High Court and the provisions of the impugned Act would be rendered invalid. I am, therefore,
of the view that the appointment of Chairman, Vice-Chairmen and administrative members
should be made by the concerned Government only after consultation with the Chief Justice of
India and such consultation must be meaningful and effective and ordinarily the recommendation
of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the
reasons must be disclosed to the Chief Justice of India and his response must be invited to such
reasons. There is also another alternative which may be adopted by the Government for making
appointments of Chairman, Vice-Chairmen and members and that may be by setting up a High
Powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the
Supreme Court or concerned High Court nominated by the Chief Justice of India. Both these
modes of appointment will ensure selection of proper and competent persons to man the
Administrative Tribunal and give it prestige and reputation which would inspire confidence in
the public mind in regard to the competence, objectivity and impartiality of those manning the
Administrative Tribunal. If either of these two modes of appointment is adopted, it would save
the impugned Act from invalidation. Otherwise, it will be outside the scope of the power
conferred on Parliament under Article 323-A. I would, however hasten to add that this judgment
will operate only prospectively and will not invalidate appointments already made to the
Administrative Tribunal. But if any appointments of Vice-Chairmen or administrative members
are to be made hereafter, the same shall be made by the Government in accordance with either of
the aforesaid two modes of appointment.

8. I may also add that if the Administrative Tribunal is to be an equally effective and efficacious
substitution for the High Court on the basis of which alone the impugned Act can be sustained,
there must be a permanent or if there is not sufficient work, then a Circuit Bench of the
Administrative Tribunal at every place where there is a seat of the High Court. I would,
therefore, direct the Government to set up a permanent bench and if that is not feasible having
regard to the volume of work, then at least a Circuit Bench of the Administrative Tribunal
wherever there is a seat of the High Court, on or before 31st March, 1987. That would be
necessary if the provisions of the impugned Act are to be sustained. So far as rest of the points
dealt with in the judgment of Ranganath Misra, J. are concerned, I express my entire agreement
with the view taken by him.

Ranganath Misra J

9. The challenge raised to the vires of the Administrative Tribunals Act, 1985, (hereinafter
referred to as 'the Act') in an application under Article 32 of the Constitution and the other
connected matters has been referred to the Constitution Bench for adjudication. Indisputably the
Act has been framed within the ambit of Article 323 A which was brought into the Constitution
by the Forty-Second Amendment Act in 1976. In exercise of power vested under Section 1(3) of
the Act, the Central Government appointed 1.11.1985 as the date from which the Act would
come into force. Thereupon Sampat Kumar and others (W.P. 12460 of 1985) moved this Court
and the connected matters were brought before this Court or different High Courts which have
since been transferred to this Court to be analogously heard. On 31.10.1985 a Division Bench of
this Court gave certain interim directions including stay of transfer of the pending applications
under Article 32 which were liable to be transferred to the Tribunal and also for continuance of
exercise of jurisdiction under Article 32 in regard to disputes covered under the Act
notwithstanding the bar provided in Section 28.

10. In the writ, applications as presented the main challenge was to the abolition of the
Jurisdiction of this Court under Article 32 in respect of specified service disputes. Challenge was
also raised against the taking away of the jurisdiction of the High Court under Articles 226 and
227. It was further canvassed that establishment of benches of the Tribunal at Allahabad,
Bangalore, Bombay, Calcutta, Gauhati, Madras. and Nagpur with the principal seat at Delhi
would still prejudice the parties whose cases were already pending before the respective High
Courts located at places other than these places and unless at the seat of every High Court
facilities for presentation of applications and for hearing thereof were provided the parties and
their lawyers would be adversely affected. The interim order made on October 31, 1985, made
provisions to meet the working difficulties. Learned Attorney General on behalf of the Central
Government assured the Court that early steps would be taken to amend the law so as to save the
jurisdiction under Article 32, remove other minor anomalies and set up a bench of the Tribunal at
the seat of every High Court. By the Administrative Tribunals (Amendment) Ordinance, 1986,
these amendments were brought about and by now an appropriate Act of Parliament has replaced
the Ordinance. Most of the original grounds of attack thus do not survive and the contentions that
were canvassed at the hearing by the counsel appearing for different parties are these:

(1) Judicial review is a fundamental aspect of the basic structure of our Constitution and bar of
the jurisdiction of the High Court under Articles 226 and 227 as contained in Section 28 of the
Act cannot be sustained;

(2) Even if the bar of jurisdiction is upheld, the Tribunal being a substitute of the High Court, its
Constitution and set up should be such that it would in fact function as such substitute and
become an institution in which the parties could repose faith and trust;

(3) Benches of the Tribunal should not only be established at the seat of every High Court but
should be available at every place where the High Courts have permanent benches;

(4) So far as Tribunals set up or to be set up by the Central or the State Governments are
concerned, they should have no jurisdiction in respect of employees of the Supreme Court or
members of the subordinate judiciary and employees working in such establishments inasmuch
as exercise of jurisdiction of the Tribunal would interfere with the control absolutely vested in
the respective High Courts in regard to the judicial and other subordinate officers under Article
235 of the Constitution.

11. After oral arguments were over, learned Attorney General, after obtaining instructions from
the Central Government filed a memorandum to the effect that Section 2(q) of the Act would be
suitably amended so as to exclude officers and servants in the employment of the Supreme Court
and members and staff of the subordinate judiciary from the purview of the Act. In the same
memorandum it has also been said that Government would arrange for sittings of the benches of
the Tribunal at the seat or seats of each High Court on the basis that 'sittings' will include 'circuit
sittings' and the details thereof would be worked out by the Chairman or the Vice-Chairman
concerned.

12. With these concessions made by the learned Attorney General, only two aspects remain to be
dealt with by us, namely, those covered by the first and the second contentions.

13. Strong reliance was placed on the judgment of Bhagwati, J (one of us— presently the learned
Chief Justice) in Minerva Mills Ltd. and Ors. v.Union of India and Ors. MANU/SC/0075/1980 :
[1981]1SCR206 where it was said:

The power of judicial review is an integral part of our constitutional system and without it, there
will be no Government of laws and the rule of law would become a teasing illusion and a
promise of unreality. I am of the view that if there is one feature of our Constitution which, more
than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it
is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of
the Constitution. Of course, when I say this I should not be taken to suggest that, however
effective alternative institutional mechanisms or arrangements for judicial review cannot be
made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of
our Constitution and it cannot be abrogated without affecting the basic structure of the
Constitution. If by a constitutional amendment, the power of judicial review is taken away and it
is provided that the validity of any law made by the Legislature shall not be liable to be called in
question on any ground, even if it is outside the legislative competence of the Legislature or is
violative of any fundamental rights, it would be nothing short of subversion of the Constitution,
for it would make a mockery of the distribution of legislative powers between the Union and the
States and render the fundamental rights meaningless and futile. So also if a constitutional
amendment is made which has the effect of taking away the power of judicial review.

14. Article 32 was described by Dr. Ambedkar in course of the debate in the Constituent
Assembly as the 'soul' and 'heart' of the Constitution and it is in recognition of this position that
though Article 323A(2)(d) authorised exclusion of jurisdiction under Article 32 and the original
Act had in Section 28 provided for it, by amendment jurisdiction under Article 32 has been left
untouched. The Act thus saves jurisdiction of this Court both under Article 32 in respect of
original proceedings as also under Article 136 for entertaining appeals against decisions of the
Tribunal on grant of Special Leave. Judicial review by the apex court has thus been left in tact.

15. The question that arises, however, for consideration is whether bar of jurisdiction under
Articles 226 and 227 affects the provision for judicial review. The right to move the High Court
in its writ jurisdiction—unlike the one under Article 32, is not a fundamental right. Yet, the High
Courts, as the working experience of three and a half decades shows have in exercise of the
power of judicial review played a definite and positive role in the matter of preservation of
fundamental and other rights and in keeping administrative action under reasonable control. In
these thirty-six years following the enforcement of the Constitution, not only has India's
population been more than doubled but also the number of litigations before the courts including
the High Courts has greatly increased. As the pendency in the High Courts increased and soon
became the pressing problem of backlog, the nation's attention came to be bestowed on this
aspect. Ways and means to relieve the High Courts of the load began to engage the attention of
the Government at the center as also in the various States. As early as 1969, a Committee was
set'up by the Central Government under the chairmanship of Mr. Justice Shah of this Court to
make recommendations suggesting ways and means for effective, expeditious and satisfactory
disposal of matters relating to service disputes of Government servants as it was found that a
sizable portion of pending litigations related to this category. The Committee recommended the
setting up of an independent Tribunal to handle the pending cases before this Court and the High
Courts. While this report was still engaging the attention of Government, the Administrative
Reforms Commission also took note of the situation and recommended the setting up of Civil
Services Tribunals to deal with appeals of Government servants against disciplinary action. In
certain States, Tribunals of this type came into existence and started functioning. But the Central
Government looked into the matter further as it transpired that the major chunk of service
litigation related to matters other than disciplinary action. In May 1976, a Conference of Chief
Secretaries of the States discussed this problem. Then came the Forty-Second Amendment of the
Constitution bringing in Article 323 A which authorised Parliament to provide by law "for the
adjudication or trial by administrative tribunals of disputes and complaints with respect to
recruitment and conditions of service of persons appointed to public services and posts in
connexion with the affairs of the Union or of any State or of any local or other authority within
the territory of India or under the control of the Government of India or of any Corporation
owned or controlled by the Government." As already stated this Article envisaged exclusion of
the jurisdiction of all courts, except the jurisdiction of. the Supreme Court under Article 136,
with respect to the disputes or complaints referred to in Clause (1). Though the Constitution now
contained the enabling power, no immediate steps were taken to set up any Tribunal as
contemplated by Article 323A. A Constitution Bench of this Court in K.K. Dutta v. Union of
India MANU/SC/0429/1980 : (1980)IILLJ182SC observed:

There are few other litigative areas than disputes between members of various services inter se,
where the principle that public policy requires that all litigation must have an end can apply with
greater force. Public servants ought not to be driven or required to dissipate their time and energy
in court-room battles. Thereby their attention is diverted from public to private affairs and their
inter se disputes affect their sense of -oneness without which no institution can function
effectively. The Constitution of Service Tribunals by State Governments with an apex Tribunal
at the center which in the generality of the cases, should be the final arbiter of controversies
relating to conditions of service, including the vexed question of seniority, may save the courts
from the avalanche of writ petitions and appeals in service matters. The proceedings of such
Tribunals can have the merit of informality and if they will not be tied down to strict rules of
evidence, they might be able to produce solutions which will satisfy many....

16. In the meantime the problem of the backlog of cases in the High Courts becomes more acute
and pressing and came to be further discussed in Parliament and in conferences and seminars.
Ultimately in January 1985, both Houses of Parliament passed the Bill and with the Presidential
assent on 27th February, 1985, the law enabling the long awaited Tribunal to be constituted came
into existence. As already noticed, the Central Government notified the Act to come into force
with effect from 1.11.1985.

17. Exclusion of the jurisdiction of the High Courts in service matters and its propriety as also
validity have thus to be examined in the background indicated above. We have already seen that
judicial review by this Court is left wholly unaffected and thus there is a forum where matters of
importance and grave injustice can be brought for determination or rectification. Thus exclusion
of the jurisdiction of the High Court does not totally bar judicial review. This Court in Minerva
Mills' case did point out that "effective alternative institutional mechanisms or arrangements for
judicial review" can be made by Parliament. Thus it is possible to set up an alternative institution
in place of the High Court for providing judicial review. The debates and deliberations spread
over almost two decades for exploring ways and means for relieving the High Courts of the load
of backlog of cases and for assuring quick settlement of service disputes in the interest of the
public servants as also the country cannot be lost sight of while considering this aspect. It has
'not been disputed before us—and perhaps could not have been—that the Tribunal under the
scheme of the Act would take over a part of the existing backlog and a share of the normal load
of the High Courts. The Tribunal has been contemplated as a substitute and not as supplemental
to the High Court in the scheme of administration of justice. To provide the Tribunal as an
additional forum from where parties could go to the High Court would certainly have been a
retrograde step considering the situation and circumstances to meet which the innovation has
been brought about. Thus barring of the jurisdiction of the High Court can indeed not be a valid
ground of attack.

18. What, however, has to be kept in view is that the Tribunal should be a real substitute of the
High Court—not only in form and demure but in content and de facto. As was pointed out in
Minerva's Mills, the alternative arrangement has to be effective and efficient as also capable of
upholding the constitutional limitations. Article 16 of the Constitution guarantees equality of
opportunity in matters of public employment. Article 15 bars discrimination on grounds of
religion, race, caste, sex or place of birth. The touch-stone of equality enshrined in Article 14 is
the greatest of guarantees for the citizen. Centring around these articles in the Constitution a
service jurisprudence has already grown in this country. Under Sections 14 and 15 of the Act all
the powers of the Courts except those of this Court in regard to matters specified therein vest in
the Tribunal—either Central or State. Thus the Tribunal is the substitute of the High Court and is
entitled to exercise the powers thereof.

19. The High Courts have been functioning over a century and a quarter and until the Federal
Court was established under the Government of India Act, 1935, used to be the highest courts
within their respective jurisdiction subject to an appeal to the Privy Council in a limited category
of cases. In this long period of about six scores of years, the High Courts have played their role
effectively, efficiently as also satisfactorily. The litigant in this country has seasoned himself to
look upto the High Court as the unfailing protector of his person, property and honour. The
institution has served its purpose very well and the common man has thus come to repose great
confidence therein. Disciplined, independent and trained Judges well-versed in law and working
with all openness in an unattached and objective manner have ensured dispensation of justice
over the years. Aggrieved people approach the Court— the social mechanism to act as the arbiter
—not under legal obligation but under the belief and faith that justice shall be done to them and
the State's authorities would implement the decision of the Court. It is, therefore, of paramount
importance that the substitute institution—the Tribunal—must be a worthy successor of the High
Court in all respects. That is exactly what this Court intended to convey when it spoke of an
alternative mechanism in Minerva Mills' case.

20. Chapter II of the Act deals with establishment of Tribunals and Benches thereof. Section 4
provides for establishment while Section 5 deals with composition of the Tribunal and Benches
thereof. Section 6 lays down the qualifications of Chairman, Vice-Chairman and members. So
far as the Chairman is concerned, Sub-section (1) requires that he should be or have been—

(a) Judge of a High Court; or

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

(c) has, for at least two years, held the post of a Secretary to the Government of India or any
other post under the Central or a State Government carrying a scale of pay which is not less than
that of a Secretary to the Government of India.

21. Sub-section (2) prescribing the qualification for Vice-Chairman provides that he should be or
have been-
(a) a Judge of a High Court; or

(b) for at least two years, held the post of a Secretary to the Government of India or any other
post under the Central or a State Government carrying a scale of pay which is not less than that
of a Secretary to the Government of India; or

(bb) for at least five years, held the post of an Additional Secretary to Government of India or
any other post carrying equivalent pay; or

(c) for a period of not less than three years held office as a judicial member of an Administrative
Tribunal.

22. Sub-section (3) prescribes the qualification of a judicial member and requires that: (a) he
should be or should have been or qualified to be a Judge of a High Court; or (b) has been a
member of the Indian Legal Service and has held a post in Grade I of that service for at least
three years.

23. Sub-section (3-A) provides the qualification for appointment as administrative member and
lays down that such person should have, for at least two years, held the post of an Additional
Secretary to the Government of India or any other post under the Central or a State Government
carrying a scale of pay not less than that of an Additional Secretary to Government of India; or
(b) has, for at least three years, held the post of a Joint Secretary to the Government of India or
any other post under the Central or the State Government carrying a scale of pay which is not
less than that of a Joint Secretary to Government of India. So far as the Chairman is concerned,
we are of the view that ordinarily a retiring or retired Chief Justice of a High Court or when such
a person is not available, a Senior Judge of proved ability either in office or retired should be
appointed. That office should for all practical purposes be equated with the office of Chief
Justice of a High Court. We must immediately point out that we have no bias, in any manner,
against members of the Service. Some of them do exhibit great candour, wisdom, capacity to
deal with intricate problems with understanding, detachment and objectiveness but judicial
discipline generated by experience and training in an adequate dose is, in our opinion, a
necessary qualification for the post of Chairman. We agree that a Vice-Chairman with these
qualifications and experience of two years may be considered for appointment as Chairman but
in order that the Tribunal may be acceptable to the litigants who are themselves members of the
various services, Section 6(1 )(c) should be omitted. We do not want to say anything about Vice-
Chairman and members dealt with in Sub-sections (2), (3) or (3A) because so far as their
selection is concerned, we are of the view that such selection when it is not of a sitting Judge or
retired Judge of a High Court should be done by a high-powered committee with a sitting Judge
of the Supreme Court to be nominated by the Chief Justice of India as its Chairman. This will
ensure selection of proper and competent people to man these high offices of trust and help to
build up reputation and acceptability. Once the qualifications indicated for appointment of
Chairman are adopted and the manner of selection of Vice-Chairman and members is followed,
we are inclined to think that the manning of the Tribunal would be proper and conducive to
appropriate functioning. We do not propose to strike down the prescriptions containing different
requirements but would commend to the Central Government to take prompt steps to bring the
provisions in accord with what we have indicated. We must state that unless the same be done,
the Constitution of the Tribunal as a substitute of the High Court would be open to challenge. We
hasten to add that our judgment shall operate prospectively and would not affect appointments
already made to the offices of Vice-Chairman and Member—both administrative and judicial.

24. Section 8 of the Act prescribes the term of office and provides that the term for Chairman,
Vice-Chairman or members shall be of five years from the date on which he enters upon his
office or until he attains the age of 65 in the case of Chairman or Vice-Chairman and 62 in the
case of member, whichever is earlier. The retiring age of 62 or 65 for the different categories is
in accord with the pattern and fits into the scheme in comparable situations. We would, however,
like to indicate that appointment for a term of five years may occasionally operate as a dis-
incentive for well-qualified people to accept the offer to join the Tribunal. There may be
competent people belonging to younger age groups who would have more than five years to
reach the prevailing age of retirement. The fact that such people would be required to go out on
completing the five year period but long before the superannuation age is reached is bound to
operate as a deterrent. Those who come to be Chairman, Vice-Chairman or members resign
appointments, if any, held by them before joining the Tribunal and, as such, there would be no
scope for their return to the place or places from where they come. A five year period is not a
long one. Ordinarily some time would be taken for most of the members to get used to the
service-jurisprudence and when the period is only five years, many would have to go out by the
time they are fully acquainted with the law and have good grip over the job. To require
retirement at the end of five years is thus neither convenient to the person selected for the job nor
expedient to the scheme. At the hearing, learned Attorney-General referred to the case of a
member of the Public Service Commission who is appointed for a term and even suffers the
disqualification in the matter of further employment. We do not think that is a comparable
situation. On the other hand, membership in other high-powered Tribunals like the Income-tax
Appellate Tribunal or the Tribunal under the Customs Act can be referred to. When amendments
to the Act are undertaken, this aspect of the matter deserves to be considered, particularly
because the choice in that event would be wide leaving scope for proper selection to be made.

25. We hope and trust that within a reasonable period not beyond 31st March, 1987, the
amendments indicated shall be brought about so as to remove the defects found in the Act.

Khalid, Oza and Dutt J.J.

26. We have read both the Judgments just delivered—the main judgment of learned Brother
Ranganath Misra and the other of Hon'ble the Chief Justice. We agree with both.