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Showing contexts for: article 323b in Union Of India vs R. Gandhi on 11 May, 2010Matching Fragments
(iii) Article 323B of the Constitution enables the appropriate Legislature to provide for adjudication or trial by Tribunals of disputes, complaints or offences with respect to all or any of the matters specified in clause (2).
Clause (2) enumerate the matters in regard to which Tribunals can be constituted. The said list is exhaustive and not illustrative. The list does not provide for constitution of Tribunal for insolvency, revival and restructuring of the company. In the absence of any amendment to Article 323B providing for a National Tribunal for revival of companies and winding up companies, there is no legislative competence to provide for constitution of NCLT and NCLAT.
Clause (2) of Article 323A and clause (3) of Article 323B lay down that a law made under sub-clause (1) of the respective Articles may provide for the following :
Article 323A Article 323B (a) provide for the establishment of an Provide for the establishment of a hierarchy administrative Tribunal for the Union and a of Tribunals; separate administrative Tribunal for each State or for two or more States; (b) specify the jurisdiction, powers (including Specify the jurisdiction, powers (including the power to punish for contempt) and the power to punish for contempt) and authority which may be exercised by each authority which may be exercised by each of of the said Tribunals; the said Tribunals; (c) provide for the procedure (including provide for the procedure (including provisions as to limitation and rules of provisions as to limitation and rules of evidence) to be followed by the said evidence) to be followed by the said Tribunals; Tribunals; (d) exclude the jurisdiction of all courts, except exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under the jurisdiction of the Supreme Court under article 136, with respect to the disputes or article 136 with respect to all or any of the complaints referred to in clause (1); matters falling within the jurisdiction of the said Tribunals; (e) provide for the transfer to each such provide for the transfer to each such Tribunal administrative Tribunal of any cases of any cases pending before any court or any pending before any court or other authority other authority immediately before the immediately before the establishment of establishment of such Tribunal as would have such Tribunal as would have been within been within the jurisdiction of such Tribunal the jurisdiction of such Tribunal if the cause if the cause of action on which such suits or of action on which such suits or proceedings are based had arisen after such proceedings are based had arisen after such establishment; establishment; (f) repeal or amend any order made by the --- President under clause (3) of article 371D; (g) contain such supplemental, incidental and contain such supplemental, incidental and consequential provisions (including consequential provisions (including provisions as to fees) as Parliament may provisions as to fees) as the appropriate deem necessary for the effective Legislature may deem necessary for the functioning of, and for the speedy disposal effective functioning of, and for the speedy of cases by, and the enforcement of the disposal of cases by, and the enforcement of orders of, such Tribunals. the orders of, such Tribunals.
27. In L. Chandra Kumar v. Union of India [1997 (3) SCC 261], this Court held that clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they empower Parliament and State Legislature to totally exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136, in regard to the disputes and complaints referred to in Article 323A(1) and the matters specified in Article 323B(2), offended the basic and essential features of the Constitution and were unconstitutional.
In Union of India vs. Harbhajan Singh Dhillon - 1971 (2) SCC 779, this Court held :
"It seems to us that the function of Article 246(1), read with Entries 1 to 96 of List I, is to give positive power to Parliament to legislate in respect of those entries. Object is not to debar Parliament from legislating on a matter, even if other provisions of the Constitution enable it to do so."
The power of Parliament to enact a law which is not covered by an entry in Lists II and III is absolute. The power so conferred by Article 246 is in no way affected or controlled by Article 323 A or 323 B. MBA contends that if the power to enact a law to constitute tribunals was already in existence with reference to the various fields of legislation enumerated in the Seventh Schedule, there was no need for enacting Articles 323A or 323B conferring specific power to Legislatures to make laws for constitution of Tribunals. It is their contention that the very fact that Articles 323A and 323B have been specifically enacted empowering the concerned legislature to make a law constituting tribunals in regard to the matters enumerated therein, demonstrated that tribunals cannot be constituted in respect of matters other than those mentioned in the said Articles 323A and 323B. The contention is not sound. It is evident that Part XIV-A containing Articles 323A and 323B was inserted in the Constitution so as to provide for establishment of tribunals which can exclude the jurisdiction of all courts including the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32, in respect of disputes and complaints covered by those Articles. It was thought that unless such enabling power was vested in the Legislatures by a constitutional provision, it may not be possible to enact laws excluding the jurisdiction of the High Courts and Supreme Court. However, this is now academic because clause 2(d) of Article 323A and clause 3(d) of Article 323B have been held to be unconstitutional in Chandra Kumar.