l. chandra kumar memo

L. Chandra Kumar V. Union Of India And Others

IINN T THEHE S SUPREMEUPREME C COURTOURT

O OFF I INDIANDIACase Concerning

‘Constitutional Law’

L. CHANDRA KUMAR(PETITIONER)

VS.

UNION OF INDIA & ORS.(RESPONDENT)

MEMORANDUM FOR THE PETITIONER

COUNSEL ON BEHALF OF THE PETITIONER

ALISHA FATIMA KHAN

Roll No.-19


TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS..............................................................................................i

2. INDEX OF AUTHORITIES...............................................................................................ii

ACTS, LEGISLATIONS AND STATUTES

TABLE OF CASES

BOOKS

3. STATEMENT OF JURISDICTION……………………………………………………..1

4. STATEMENT OF FACTS..................................................................................................2

5. ISSUES RAISED................................................................................................................3

6. SUMMARY OF ARGUMENTS.........................................................................................4

7. WRITTEN SUBMISSIONS................................................................................................6

8. PRAYER............................................................................................................................16

9.


LIST OF ABBREVIATIONS

&……………………………………………………………………………...……………...and

i.e…………………………………………………………………………………………..that is

A.I.R……………………………………………………………………………………...All India Report

Bom……………………………………………………………………………………...………. Bombay

Ch. D……………………………………………………………………………...Chancery Division

Gua………………………………………………………………………………………………Guwahati

Mad…………………………………………………………………………………………………

Madras

Ors…………………………………………………………………………………………………...Others

S.C………………………………………………………………………………………........Supreme

Court

v………………………………………………………………………………………………….........versu

s


INDEX OF AUTHORITIES

Acts/ Statutes/ Legislations: The Constitution of India, 1950

The Administrative Tribunals Act, 1985

Cases:

Foreign Judgements:

Cooper v. Aaron……………………………………………………3 L. Ed. 2d 5 358 US 1

National Mugal Insurance Co. of the District of

Columbia v. Tidewater Transfer Co…………….……….……93 L. Ed. 1156 337 US 582

Northern Pipeline Construction Co. v.

Marathon Pipeline Co. and United States…………...………...73 L. Ed. 2d 59 458 US 50

Thomas S. William v. United States……………..…………….77 L. Ed. 1372 289 US 553

Indian Judgements:

Amulya Chandra Kalita vs Union Of India (Uoi) And Ors……………….(1991) 1 SCC 181

Bidi Supply Co v. The Union of India and ors…………………………...[1956]29ITR17(SC)

Delhi Judicial Service Association v. State of Gujarat…………………..AIR1991SC2150

Dr Mahabal Ram vs Indian Council Of Agriculture……………………1994 SCC (2) 401

Fertiliser Corporation Kamgar Union v. Union of India……………….(1981)ILLJ193SC

Indira Gandhi v. Raj Narain……………………………………………………[1975]3SCR854


Kesavananda Bharati v. State of Kerala………………………………..(1973) 4 SCC 225

Kihoto Hollohan v. Zachillu and Ors……………………………….(1992 Supp (2) SCC 651)

M.B. Majumdar vs Union Of India…………………………………….......1990 AIR 2263

Minerva Mills v. Union of India………………………………………..AIR 1980 SC 1789

S.P. Sampath Kumar v. Union of India……………………………………..(1987)ILLJ128SC

Sakilana Harinath and Ors. V. State of A.P…………………………….1993 (3) ALT 471

Special Reference Case………………………………………………….AIR 1965 SC 745

State of Karnataka v. Union of India & Anr…………………………..[(1977) 4 SCC 608]

Subhesh Sharma v. Union of India………………………………………......AIR 1991 SC 631

Books:

M.P Jain, The Constitutional Law of India (7th Edition, 2014)

Sujata V. Manohar , Constitutional Law of India (3rd edition, 2010)


STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court under Article 137 of the Constitution

of India, 1950.


STATEMENT OF FACTS

I. The special leave petitions, civil appeals and writ petitions which together constitute the

present case before the Hon’ble Supreme Court of India owe their origin to separate decisions of

different High Courts and several provisions in different enactments which have been made the

subject of challenge.

II. The major issues raised in all these cases are in relation to Article 323A and Article 323B.

Another issue was to review S.P. Sampath Kumar v. Union of India , (1987)ILLJ128SC and the

position of the Tribunals.


ISSUES RAISED

I. WHETHER THE PETITION FILED IS MAINTAINABLE?

II. WHETHER SUB-CLAUSE (D) OF CLAUSE (2) OF ARTICLE 323A AND SUB-CLAUSE (D)

OF CLAUSE (3) OF ARTICLE 323B OF THE CONSTITUTION UNCONSTITUTIONAL?

III. 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?

IV. WHETHER THESE TRIBUNALS, AS THEY ARE FUNCTIONING AT PRESENT, CAN BE SAID

TO BE EFFECTIVE SUBSTITUTES FOR THE HIGH COURTS?


SUMMARY OF ARGUMENTS

[I] THE PETITION FILED BY THE PETITIONERS IS MAINTAINABLE

The writ petition filed by the Petitioners under Article 32 of the Constitution is maintainable, as

the petition is filed to test the validity of Article 323A and 323B of the Constitution and the

position of Tribunals.

[ II]SUB-CLAUSE (D) OF CLAUSE (2) OF ARTICLE 323A AND SUB-CLAUSE (D) OF CLAUSE (3)

OF ARTICLE 323B OF THE CONSTITUTION IS UNCONSTITUTIONAL.

The power conferred upon Parliament or the Stale Legislatures by impugned provisions totally

exclude the jurisdiction of 'all courts', runs counter to the power of judicial review conferred on

the High Court under Articles 226/227 and on the Supreme Court under Article 32 of the

Constitution. The power of judicial review being basic structure of the constitution, the

impugned provisions offend the basic structure. Hence, the impugned provisions are

unconstitutional.

[III] THE TRIBUNALS, CONSTITUTED EITHER UNDER ARTICLE 323A OR UNDER ARTICLE

323B OF THE CONSTITUTION, DOES NOT POSSESS THE COMPETENCE TO TEST THE

CONSTITUTIONAL VALIDITY OF A STATUTORY PROVISION/RULE.

The tribunal constituted under Article 323A and Article 323B of the Constitution, cannot

exercise the power to test the validity of a statutory provision or a rule as the tribunals can

consist of one member bench and it cannot be logically allowed to a single member bench to

validate a law. And also only the Constitutional Courts can exercise the power of judicial review.


IV.TRIBUNALS CANNOT BE SAID TO BE EFFECTIVE SUBSTITUTES FOR THE HIGH COURTS

The Tribunals constituted under Article 323A and Article 323B of the Constitution cannot be

considered as substitute for the High Courts. They are not equal cannot be considered as

substitutes. There is difference between them and the Tribunals are not as effective as the High

Courts. Also, remedy provided under Article 136 is also not sufficient.


ARGUMENTS ADVANCED

[I] THE PETITION FILED BY THE PETITIONERS IS MAINTAINABLE

The writ petition filed by the Petitioners under Article 137 of the Constitution is maintainable, as

the present petition is filed to review S.P. Sampath Kumar v. Union of India1. Under the Article

Supreme Court has power to review any judgment pronounced or order made by it. In the instant

case there is ambiguity regarding the constitutionality of the impugned provisions and also about

the Tribunals to be considered as substitute of High Court or not. The pronouncement of

different High Courts in post- Sampath Kumar cases which conflicting views on the matter,

created ambiguity. In Arvind Mohan Johri v. State of U.P2, it was held that a judgment of the

Supreme Court can be reviewed to clarify an ambiguity.

Thus the petition is maintainable.

1 (1987) ILLJ128SC2 (2005) 5 SCC 131


[II]SUB-CLAUSE (D) OF CLAUSE (2) OF ARTICLE 323A AND SUB-CLAUSE (D) OF

CLAUSE (3) OF ARTICLE 323B OF THE CONSTITUTION IS UNCONSTITUTIONAL.

The power conferred upon Parliament or the Stale Legislatures, as the case may be and 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 the Supreme Court

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 Court under Articles 226/227 and on the

Supreme Court under Article 32 of the Constitution. The power of judicial review is the basic

structure of the constitution. These provisions violate the basic structure of the Constitution

insofar as they take away the power of judicial review vested in the Supreme Court and the High

Court by the Constitution. Hence, the impugned provisions are unconstitutional

II.A. JUDICIAL REVIEW IS BASIC STRUCTURE OF CONSTITUTION

Article 32, 226 and 227 of the Constitution guarantee judicial review of legislation and

administrative action . the protection of the institution of judicial review is crucially inter-

connected with fundamental rights. In the absence of judicial review the written constitution will

be reduced to a collection of platitudes without any binding force.3 In Keshavnanda Case4, the

power of judicial review has been declared as the basic structure of the Constitution. As long as

some fundamental rights exists and are a part of constitution, the power to of judicial review has

also to be exercised. Thus judicial review has become an integral part of the constitution system.5

Also in Subhesh Sharma v. Union of India6, this Court asserted that judicial review is a part of

basic constitutional structure and one of the basic features of the essential Indian Constitutional

3 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, Lexis Nexis, 1694, (7th ed., 2014)4 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225)5 ibid6 AIR 1991 SC 631.


Policy. Judicial review is considered as an inseparable part of the constitution7 and also the heart

and core of judicial process.8

II.B Constitutional Amendments and Ordinary Legislations should conform to the basic

structure.

The doctrine of basic structure is to preserve the basic, core, constitutional value against the

onslaught of transient majority in Parliament. The Constitution is not a party manifesto which

can be amended by a party at its will to suit political expediency, but a national heritage which

ought to be amended only when there is a broad consensus favoring a specific amendment.9

All the legislations and constitutional amendments should not be in violation of basic structure.

A constitutional amendment which offends the basic structure of the constitution is ultra vires.10

An ordinary law cannot go against the basic scheme or the fundamental backbone of the

Constitution. In the course of an attack upon legislation, whether ordinary or constituent, what is

put forward as part of "a basic structure" must be justified by references to the express provisions

of the Constitution.11

II.C. The impugned provisions offend the basic feature of judicial review of the

Constitution.

Sub-clause (d) of Clause (2) of Article 323A, Sub-clause (d) of Clause (3) of Article 323B of the

Constitution offends the basic feature of judicial review as it excludes jurisdiction of both the

Supreme Court and the High Courts under Article 32 and 226 or 227 respectively. The power of

review to the Supreme Court under Article 136 of the Constitution will not amount to power of

judicial review as a basic feature of the Constitution.

7 Fertiliser Corporation Kamgar Union v. Union of India, (1981)ILLJ193SC ; and Delhi Judicial Service Association v. State of Gujarat, AIR1991SC21508 Bidi Supply Co v. The Union of India and ors., [1956]29ITR17(SC)9 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, Lexis Nexis, 1699, (7th ed., 2014) 10 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225)11 State of Karnataka v. Union of India & Anr. [(1977) 4 SCC 608]


The impugned provisions exclude jurisdiction of both the Supreme Court and the High Courts

under Article 32 and 226 or 227 respectively.

The essence of the impugned provisions is that the Parliament may by law provide for the

tribunals and that law excludes the jurisdiction of all courts, except the jurisdiction of the

Supreme Court under Article 136.12 The Legislature has no power to infringe upon the High

Courts’ power to issue writs13 and to exercise its power of superintendence14. under our

constitutional scheme the Supreme Court and the High Courts 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., the High Courts and the Supreme Court. 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., the High Courts and the Supreme Courts.15

The power of Courts 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. The judicial review is a part of the basic structure and that any

attempt to exclude the jurisdiction of courts was unconstitutional.16

In certain cases where the legislations or the amendments impugned excluded judicial review

were held unconstitutional. As in case of In Kihoto Hollohan v. Zachillu and Ors.17, a five-Judge

Constitution Bench declared Paragraph 7 of the Tenth Schedule to the Constitution which

excluded judicial review as unconstitutional. Also in Minerva Mills v. Union of India18, certain

provisions of the Constitution (42nd Amendment) Act, 1976 was held unconstitutional as it

excluded the Supreme Courts’ power of judicial review.

12 Article 323A(2)(a) and Article 323B(3)(d) of the Constitution of India, 1950.13 Article 226 of the Constitution of India, 195014 Article 227 of the Constitution of India, 195015 Sakilana Harinath and Ors. V. State of A.P, 1993 (3) ALT 47116 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225)17 (1992 Supp (2) SCC 651)18 AIR 1980 SC 1789


In Special Reference Case19 it was held that if the power of the High Courts under Article 226

and the authority of this Court under Article 32 are not subject to any exceptions, then it would

be futile to contend that a citizen cannot move the High Courts or this Court 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 Court in that behalf; otherwise the power conferred on the High Courts

and the Supreme Court would be rendered virtually meaningless.

Since the impugned provisions exclude the power of judicial review conferred on both the Courts

and therefore is considered unconstitutional.

19 AIR 1965 SC 745


III. THE TRIBUNALS, CONSTITUTED EITHER UNDER ARTICLE 323A OR UNDER ARTICLE 323B

OF THE CONSTITUTION, DOES NOT POSSESS THE COMPETENCE TO TEST THE

CONSTITUTIONAL VALIDITY OF A STATUTORY PROVISION/RULE.

The tribunal constituted under Article 323A and Article 323B of the Constitution, cannot

exercise the power to test the validity of a statutory provision or a rule as the tribunals can

consist of one member bench and it cannot be logically allowed to a single member bench to

validate a law. And also only the Constitutional Courts can exercise the power of judicial review.

III. A. Tribunal may consist of a Single member Bench

Section 5(6) of the Administrative Tribunal Act, 1985 allows a single Member Bench to preside

over the cases and to test the constitutional validity of statutory provisions. It can be inferred

from the decisions in Sampath Kumar's case20, Amulya Chandra's case21 and Dr. Mahabal Ram's

case22. A single member bench cannot be allowed to be conferred with power of validating or

invalidating a provision.

III.B. The power of judicial review can only be vested in Constitutional Court.

India has adopted the concept of judicial review from American Constitution, to understand that

whether the subordinate, non-constitutional courts can exercise the judicial review can be

inferred by looking at the practice in America and also in India.

III.B.i The exercise of judicial review in American context .

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

20 S.P. Sampath Kumar v. Union of India , (1987)ILLJ128SC21 Amulya Chandra Kalita vs Union Of India (Uoi) And Ors, (1991) 1 SCC 18122 Dr Mahabal Ram vs Indian Council Of Agriculture, 1994 SCC (2) 401


Congress in exercise of its legislative power.23 These functions of the Courts include judicial

review.

III.B.ii The Supreme Court and the High Court has power of judicial review.

In Indian context, the Supreme Court and High Courts are only constitutional courts. They can

test the validity of any law under Article 32 and 226 respectively. The rest of the courts are

formed through legislations including Tribunals and are not vested with any such power. The

Supreme Court and the High Courts are the sole repositories of the power of judicial review.24 In

case of M.B.Majumdar25, the court held that the Tribunals created under Articles 323A and 323B

could not be held to be substitutes of High Courts for the purpose of exercising jurisdiction under

Articles 226 and 227 of the Constitution. Also in Kesvananda Bharati's case26, Special reference

case27 and Indira Gandhi's case28, that the Constitutional Courts alone are competent to exercise

the power of judicial review to pronounce upon the constitutional validity of statutory provisions

and rules.

The Constitution confers the power to strike down laws upon the High Courts and the Supreme

Court, 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 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.

23 National Mugal Insurance Co. of the District of Columbia v. Tidewater Transfer Co. 93 L. Ed. 1156 337 US 582, Thomas S. William v. United States 77 L. Ed. 1372 289 US 553, Cooper v. Aaron 3 L. Ed. 2d 5 358 US 1, Northern Pipeline Construction Co. v. Marathon Pipeline Co. and United States 73 L. Ed. 2d 59 458 US 5024 Sakinala Harinath and Ors. v. State of A.P, 1993 (3) ALT 47125 M.B. Majumdar vs Union Of India, 1990 AIR 226326 AIR1973SC1461; 27 1964, [1965] 1 SCR 41328 [1975]3SCR854


Thus 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 323A and Article 323B of the Constitution.


IV.TRIBUNALS CANNOT BE SAID TO BE EFFECTIVE SUBSTITUTES FOR THE HIGH COURTS

The Tribunals constituted under Article 323A and Article 323B of the Constitution cannot be

considered as substitute for the High Courts. They are not equal cannot be considered as

substitutes.29 There is difference between them and the Tribunals are not as effective as the High

Courts. Also, remedy provided under Article 136 is also not sufficient.

IV.A. The Tribunals is not equal to the High Courts.

The Tribunal is not equivalent to the High Courts as it cannot exercise power of judicial review.

The Tribunals created under Articles 323A and 323B could not be held to be substitutes of High

Courts for the purpose of exercising jurisdiction under Articles 226 and 227 of the Constitution.

The importance of service matters which affect the functioning of civil servants, who are an

integral part of a sound governmental system, the High Court in case of Sakinala Harinath and

Ors. V. State of A.P30 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 Courts, the Framers of our Constitution had

incorporated special prescriptions to ensure that they would be immune from precisely such

pressures.

Also as dealt in previous issue, a single Member Bench of a Tribunal cannot be considered to be

a substitute for the exercise of the power of a High Court under Article 226 of the Constitution.

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.

29M.B. Majumdar vs Union Of India, 1990 AIR 226330 1993 (3) ALT 471


IV.B. Remedy provided by Article 136 of the Constitution is ineffective.

The remedy provided by Article 136 of the Constitution, of special leave is not real and effective

as it is too costly and inaccessible.31 This remedy is not capable to real safeguard the interest of

litigants as if they are not satisfied with the decision they cannot further appeal to high court nor

can High Court supervise over the matter. The right to constitutional remedy on violation of

fundamental right is also not available.32

Hence, it is submitted that the Tribunals cannot substitute the High Courts.

31 R.K. Jain v. Union of India : 1993(65)ELT305(SC)32 Sakinala Harinath and Ors. v. State of A.P, 1993 (3) ALT 471


PRAYER FOR RELIEFPRAYER FOR RELIEF

Therefore in the light of facts of the case, issues raised, arguments advanced and authorities cited,

this Court may be pleased to adjudge and declare that:

1. The Sub-clause (d) of Clause (2) of Article 323Aand Sub-clause (d) of Clause (3) of

Article 323B of the Constitution are unconstitutional.

2. The Tribunals, constituted either under Article 323A or under Article 323B of the

Constitution, are incompetence to test the constitutional validity of a statutory

provision/rule.

3. The Tribunals are not substitute of the High Courts.

All of which is respectfully submitted.

Place: New Delhi

Date: 07.04.2015

Alisha Fatima Khan

(Counsel for the Petitioner)

l. chandra kumar memo

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