L. CHANDRA KUMAR
(PETITIONER)
VS.
UNION OF INDIA & ORS.
(RESPONDENT)
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
GuaGuwahati
Mad
Madras
Ors...Others
S.C........Supreme
Court
v.........versu
s
INDEX OF AUTHORITIES
Cases:
Foreign Judgements:
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 Agriculture1994 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)
Books:
STATEMENT OF JURISDICTION
The Petitioner has approached the Honble 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 Honble 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.
II.
III.
WHETHER
THE
ARTICLE 323B
TRIBUNALS,
OF THE
CONSTITUTION,
ARTICLE 323A OR
UNDER
IV.
WHETHER
THESE
TRIBUNALS,
HIGH COURTS?
SUMMARY OF ARGUMENTS
[II]SUB-CLAUSE (D)
OF ARTICLE
OF
CLAUSE (2)
OF
OF
CLAUSE (3)
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
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.
ARGUMENTS ADVANCED
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 India 1. 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) ILLJ128SC
2 (2005) 5 SCC 131
The power conferred upon Parliament or the Stale Legislatures, as the case may be and by Subclause (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
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 interconnected 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
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 ibid
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
THE
CONSTITUTION,
DOES
NOT
POSSESS
THE
COMPETENCE
TO
TEST
THE
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.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 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.
Therefore in the light of facts of the case, issues raised, arguments advanced and authorities cited,
Date: 07.04.2015