234

CHAPTER IX
SAMPATH KUMAR AND CHANDRAKUMAR
VAGARIES OF JUDICIAL ATTITUDE
In this Chapter the judicial attitudes of two Constitutional Benches relating to the
constitutionality of provisions excluding jurisdiction of Supreme Court and High Courts
under 32 and 226 is discussed. Part XIV A was inserted in the Constitution through
section 46 of the Constitution of 42nd Amendment Act, 1976 to include two provisions
viz. articles 323A and 323B. In pursuance of the power conferred upon it by article 323A,
Parliament enacted the Administrative Tribunals Act, 1985. Several writ petitions were
filed challenging the Constitutional validity of provisions of the Act. The principal
violation complained was that of exclusion of jurisdiction of the Supreme Court under
article 32 and that of High Courts under article 226.
The constitutional validity of the Act was upheld in S.P Sampath Kumar v. Union
of India1. Through an interim order the Court had directed the Government to carry out
certain amendments with a view to ensuring the functioning of tribunal along
constitutionally sound principles. The Court held that administrative tribunals constituted
under the Act were substitutes of High Courts and it was designated to deal with all
service matters even involving challenges under articles 14, 15 and 16. Sampath Kumar
did not address the issue of constitutionality of article 323A (2) (d). The Supreme Court
in this case also observed:
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 High Court, another alternative
institutional mechanism or arrangement for judicial review provided it is
not less efficacious than the High Court.2

1
2

(1987) 1 SCC 124.

Ibid. p. 130.

235

Minerva Mills3 did point out that effective alternative institutional mechanism
or arrangements for judicial review could be made by Parliament. The view was not
supported by majority, but the view was erroneously assumed as majority view in
Sampath Kumar. Thus tribunal had been contemplated as substitute and not supplemental
to High Courts in the scheme of administration of justice. The judges opined that the
barring of jurisdiction of High Courts was not a valid ground of attack. The Court held
that though judicial review was the basic feature of the Constitution, resting power of
judicial review in an alternative institutional mechanism after taking it away from High
Courts 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 the High Courts. Using the
theory of effective alternative institutional mechanism as the foundation, the Court
proceeded to analyze the provisions of the Act in order to ascertain whether they passed
constitutional muster. Several amendments were suggested by the Court to measure up to
the requirement of an effective substitute.
The seminal view taken in Sampath Kumar had its consequences. The progeny of
Sampath Kumar had several intricate issues to decide. In J.B Chopras case4 the court
came to the conclusion that administrative tribunals, being a substitute of the High Court,
had the necessary jurisdiction, power and authority to adjudicate all disputes relating to
service matters including power to deal with questions pertaining to constitutional
validity of laws under articles 14 and 16(1).
In M.B.Majumdar5 it was contended that tribunals established under the Act were
equal to High Courts and members of tribunals must be paid same salaries as were
payable to judges of the High Court. The Court rejected the contention that the tribunals
were equals of the High Courts. The Court clarified that Sampath Kumar equated
tribunals with High Courts only to the extent that the former were to act as substitutes for
the latter in adjudicating service matters.

3
4
5

AIR 1980 SC 1789.

J. B. Chopra v. Union of India, AIR 1987 SC 357.
AIR 1990 SC 2263.

236

In Amulya Chandra Kalitas6 Division Bench considered the question, whether a

dispute could be decided by a single administrative member. The Court clarified that
Bench of a tribunal under section 5(2) of the Act should consist of a judicial member and
an administrative member.
The issue was again considered in Dr. Mahabal Ram.7 The Court held that
section 5 (2) and (6) were to be harmoniously construed. Sampath Kumar had held that to
safeguard the interest of litigants, disputes ought to be disposed in a judicious way. It was
held that to safeguard the interests of claimants while allocating work the chairman
should keep in view that where questions of law and interpretation of constitutional
provisions were involved they should not be assigned to a single member. The court
added that either party appearing before a single member could suggest that the matter
should go to a bench of two members.
In R. K. Jain v. Union of India8 the Court had occasion to deal with complaints
concerning the functioning of the Customs, Excise and Gold Control Appellate Tribunal.
Justice Ramaswamy held that tribunals created under article 323A and 323B could not be
held to be substitutes of High Courts for exercising jurisdiction under articles 226 and
227. The Court expressed anguish over the ineffectiveness of tribunals exercising power
of judicial review. It was recorded that their performance had left much to be desired. It
also noted that the sole remedy provided that of an appeal under article 136 had proved to
be prohibitively costly while also being inconvenient on account of the distance involved.
It was suggested that an expert body like the Law Commission of India should study the
feasibility of providing an appeal to a Bench of two judges of the concerned High Courts
from orders of tribunals.

6
7

(1991)1 SCC 181.

(1994)2 SCC 401. However, the decision was per incurium as section 5(6) which enabled such a
decision was not brought to the notice of the Court.
(1993)4 SCC 119.

237

The controversy that arose after Sampath Kumar was referred to the Chief Justice
to be placed before a larger bench of the Court9, which concluded that S.P.Sampath
Kumar needed to be comprehensively reconsidered.
In L. Chandrakumar v. Union of India10 the Supreme Court, held that tribunals
were not equal to High Courts. It further declared that decisions of tribunals should be
appealable before a bench of two judges in the High Court under whose jurisdiction the
tribunal fell. Thus tribunals established under article 323A could still examine
constitutionality of an enactment or rule under articles 14, 15 and 16. A similar power
will rest in tribunals created under authority of article 323B. The Court also held that
clause 2(d) of article 323A and clause 3(d) of 323B, to the extent they excluded the
jurisdiction of High Court and Supreme Court under article 226/227 and 32 were
unconstitutional. Section 28 of Administrative Tribunals Act and exclusion of jurisdiction
clauses in all other legislation enacted under articles 323A and 323B would thus be
unconstitutional. The jurisdiction of High Courts under articles 226 and that of the
Supreme Court under article 32 was held to be part of the inviolable basic structure of the
constitution. While the jurisdiction could be ousted, other courts or tribunals could
perform a supplemental role in discharging the powers conferred by articles 226 and 32 .
The court further held that the tribunals were competent to hear matters where the
constitutionalists of statutory provisions were questioned. All such decisions of tribunals
be subject to scrutiny by a Division Bench of respective High Courts. The tribunals could
consequently examine constitutionality of subordinate legislation in this manner.
However tribunals were not competent to entertain any similar challenge of their parent
statutes. In such cases the concerned High Court could be approached directly. The
tribunals will continue to act as only courts of first instance. Hence litigants are not
permitted to approach the High Court directly even in cases where they question the
legality of legislation bypassing tribunals. L.Chandrakumar thus confirmed that no party
could directly approach the Supreme Court in any matter decided by administrative

9
10

(1995)1 SCC 400.

AIR 1997 SC 1125.

238

tribunals. The litigants should approach the High Court first and then approach the
Supreme Court under the article 136.
The Court also analyzed Sakinala Harinath v. Andhra Pradesh.11The decision
rendered by the full bench of the Andhra Pradesh High Court had declared article 323A
(2) (d) and section28 to be unconstitutional. The High Court held that service matters
which involved the constitutionality of statutes or rules, being matters of grave import,
could not be left to be decided by statutory tribunals which would be susceptible to
executive influences and pressures. The High Court concluded that though judicial power
could be vested in a court or tribunal, the power of judicial review of High Courts under
article 226 could not betaken away even by constitutional amendment.
Even after a decade the Supreme Court has not made any attempt to change the
ratio contemplated in L. Chandrakumar. The position before the creation of tribunals as
per articles 323 A and 323 B still exist ie the High Courts are overburdened with appeals
from the tribunals. Most of the litigants approach the division bench of the High Court if
they did not get a desired order desired. To overcome this anomaly the Law Commission
in its 215th Report stated that L. Chanrakumar needs to revisited by a larger bench of the
Supreme Court or to make appropriate amendments in the statute.

11

(1994)1 APLJ (HC) 1.