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38. The next issue that arises is whether the present petition can be entertained, when the remedy available to the Petitioner lies before the Tribunal under Section 14(1) of the Act. Counsel for the Petitioner strenuously argued that the power of judicial review of a High Court is a part of the basic structure of the Constitution and as held by the Supreme Court in L. Chandra Kumar (supra), cannot be ousted, being integral to the Constitutional scheme and thus this Court has jurisdiction even if an alternative remedy exists.

45. The Supreme Court thereafter addressed itself to the question as to what constitutes the basic structure of the Constitution, in order to express its opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 respectively, is a part of the basic structure of the Constitution of India. Relying on the observations of the Supreme Court in Kesavananda Bharati (supra), wherein the doctrine of basic structure was evolved and on the case of Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1 the Supreme Court observed as follows:

79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.‖

46. Having so held, what followed as an observation of the Supreme Court is significant and crucial to the present case. The Supreme Court thereafter held that though the subordinate Judiciary or the Tribunals created under ordinary Legislations, cannot exercise the power of judicial review of Legislative action to the exclusion of the Supreme Court and High Courts, there is no Constitutional prohibition against their performing a supplemental, as opposed to substitutional role in this respect. That such a situation is contemplated within the Constitutional scheme becomes evident by reading Clause (3) of Article 32 of the Constitution. The Court further went on to hold that if the power under Article 32 of the Constitution which has been described as the „heart‟ and „soul‟ of the Constitution can be additionally conferred upon any other Court, there is no reason why the same situation cannot subsist in respect of jurisdiction conferred upon the High Court. Importantly it was held that so long as the jurisdiction of the High Court under Article 226/227 is retained, there is no reason why the power to test the validity of Legislations cannot be conferred upon Administrative Tribunals, created under the Act or those under Article 323-B of the Constitution. Relevant paras are as under:

The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a 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 323-A and Article 323-B 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 Tribunal concerned 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 Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."