Law Commission Of India Submitted Its 215th Report To The Government

The Law Commission of India submitted to the Government of India, its 215th Report on “L. Chandra Kumar be revisited by Larger Bench of Supreme Court”. The Hon’ble Chairman of the Commission, Dr. Justice AR. Lakshmanan, former Supreme Court Judge, forwarded the said Report to the Hon’ble Union Law Minister, Dr. Hans Raj Bhardwaj, on 17th December, 2008. A radical change was brought about in the constitutional law through section 46 of the Constitution (Forty-second Amendment) Act, 1976, which inserted new Part XIVA on ‘Tribunals’ in the Constitution. Article 323A empowers 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 connection with the affairs of the Union or of any State. The law may provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States. The law may take out adjudication of disputes relating to service matters from the hands of the civil courts and the High Courts. Pursuant to the provisions of article 323A, Parliament enacted the Administrative Tribunals Act, 1985 (Act) to establish an Administrative Tribunal for the Union, viz., the Central Administrative Tribunal and a separate Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States. The establishment of Administrative Tribunals became necessary since a large number of cases relating to service matters were pending before various courts. It was expected that the setting up of the Administrative Tribunals would not only reduce the burden of courts, but would also provide speedy relief to the aggrieved public servants. In S. P. Sampath Kumar [(1985) 4 SCC 458], the Supreme Court directed the carrying out of certain measures with a view to ensuring the functioning of the Administrative Tribunals along constitutionally sound principles. The changes were brought about in the Act by an amending Act (Act 19 of 1986). Jurisdiction of the Supreme Court under article 32 was restored. Constitutional validity of the Act was finally upheld in S. P. Sampath Kumar [(1987) 1 SCC 124] subject, of course, to certain amendments relating to the form and content of the Administrative Tribunals. The suggested amendments were carried out by another amending Act (Act 51 of 1987). Thus became the Administrative Tribunals an effective and real substitute for the High Courts. In 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar [JT 1997 (3) SC 589] held that clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower Parliament to exclude the jurisdiction of the High Courts and the Supreme Court 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 Court held that the jurisdiction conferred upon the High Courts under articles 226/227 and upon the Supreme Court under article 32 of the Constitution is part of the inviolable basic structure of our Constitution. All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. As a result, orders of the Administrative Tribunals are being routinely appealed against in High Courts, whereas this was not the position prior to the L. Chandra Kumar’s case. On 18th March 2006, the Administrative Tribunals (Amendment) Bill, 2006 (Bill No. XXVIII of 2006) was introduced in Rajya Sabha to amend the Act by incorporating therein, inter alia, provisions empowering the Central Government to abolish Administrative Tribunals, and for appeal to High Court to bring the Act in line with L. Chandra Kumar. The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 17th Report on the said Bill did not subscribe to the same and as for the provision for appeal to High Court expressed the view that the original conception of the Administrative Tribunals be restored and appeal to High Court is unnecessary, and that if a statutory appeal is to be provided it should lie to the Supreme Court only. In the above backdrop, the Law Commission took up the study on the subject suo motu. The Administrative Tribunals were conceived as and constitute an effective and real substitute for the High Courts as regards service matters. Moreover, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must, an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of special leave petition under article 136. The Law Commission is of the view that L. Chandra Kumar’s case needs to be revisited by a Larger Bench of the Supreme Court or necessary and appropriate amendments may be effected in the Act in accordance with law and it has recommended accordingly.

"Loved reading this piece by Prakash Yedhula?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Join our Telegram group

Join our Whatsapp group