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(1) Whether the power conferred upon Parliament or the Stale Legislatures, as the case may be, 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 Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?

42. Mr. Shanti Bhushan, appearing for the respondent in C.A. No. 1532-33/96, advanced the following submissions: (i) The 42nd Amendment to the Constitution, which introduced the impugned constitutional provisions, must be viewed in its historical context. The 42nd Amendment, being motivated by a feeling of distrust towards the established judicial institutions, sought, in letter and spirit, to divest constitutional courts of their jurisdiction. The aim was to vest such constitutional jurisdiction in creatures whose establishment and functioning could be controlled by the executive. Such an intent is manifest in the plain words of Articles 323A and 323B which oust the jurisdiction vested in this Court and the High Courts under Articles 32, 226 and 227 of the Constitution; (ii) The validity of the impugned provisions has to be determined irrespective of the manner in which the power conferred by them has been exercised. In Sampath Kumar's case, this Court restricted its enquiry to the Act, which did not oust the jurisdiction under Article 32, and did not explore the larger issue of the constitutionality of Article 323A (2)(d), which in express terms permits Parliament to oust the jurisdiction of the Supreme Court. This was not correct approach as the constitutionality of a provision ought not to be judged only against the manner in which power is sought to be exercised under it. The correct test is to square the provision against the constitutional scheme and then pronounce upon its compatibility. The vice in Article 323A (2)(d) is that it permits Parliament to enact, at a future date, a law to exclude the jurisdiction of this Court under Article 32. Being possessed of such potential for unleashing constitutional mischief in the future, its vires cannot be sustained; (iii) The power of judicial review vested in this Court under Article 32 and the High Court under Article 226 is part of the basic structure of the Constitution. The relevant portions of the decisions in Kesavananda Bharati's case, Fertiliser Corporation Kamgar Union v. Union of India : (1981)ILLJ193SC and Delhi Judicial Service Association v. State of Gujarat : AIR1991SC2150 highlight the importance accorded to Article 32 of the Constitution; (iv) The theory of alternative institutional mechanisms advocated in Sampath Kumar's case ignores the fact that judicial review vested in the High Courts consists not only of the power conferred upon the High Courts but also of the High Courts themselves as institutions endowed with glorious judicial traditions. The High Courts had been in existence since the 19th century and were possessed of a hoary past enabling them to win the confidence of the people. It is this which prompted the Framers of our Constitution to vest such constitutional jurisdiction in them. A Tribunal, being a new creation of the executive, would not be able to recreate a similar tradition and environment overnight. Consequently, the alternative mechanisms would not, in the absence of an atmosphere conducive to the building of traditions, be able to act as effective alternatives to High Courts for the exercise of constitutional Jurisdiction. In Pratibha Bonnerjea v. Union of India : AIR1996SC693 , this Court has analysed the special constitutional status of Judges of High Courts and explained how they are distinct from other tiers of the judiciary.

43. Mr. A.K. Ganguli, appearing for the second and third respondents in C.A. 1532-33/93, adopted the arguments of Mr. Rama Jois and Mr. Bhushan. In addition, he cited certain authorities in support of his contention that the power to interpret the provisions of the Constitution is one which has been solely vested in the constitutional courts and cannot be bestowed on newly created quasi-judicial bodies which are susceptible to executive influences.

44. Mr. K.N. Bhat, the learned Additional Solicitor General of India represented the Union of India which is a party in C.A. No. 169 of 1994 and C.A. No. 481 of 1989. His contentions are as follows: (i) Clause 2(d) of Article 323A and Clause 3(d) of Article 323B ought not to be struck down on the ground that they exclude the jurisdiction of this Court under Article 32 of the Constitution. On account of several decisions of this Court, it is a well-established proposition in law that the jurisdiction of this Court under Article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore, Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under Article 32 was not intended to be affected. However, the jurisdiction of the High Courts under Article 226 was sought to be removed by creating alternative institutional mechanisms. The theory enunciated in Sampath Kumar's case is based on sound considerations and does not require any reconsideration; (ii) Alternatively, Articles 323A and 323B do not seek to exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective, the High Courts would still be vested with Constitutional powers to exercise corrective or supervisory jurisdiction; (iii) Since the decisions of this Court in Amulya Chandra's case and Dr. Mahabal Ram's case had clearly held that matters relating to the vires of a provision are to be dealt with by a Bench consisting of a judicial member and these guidelines will be followed in future, there is no vice of unconstitutionality in Section 5 (6).

100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they 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 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. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.