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1. Even landmark judgments sometimes generate avoidable debate. The celebrated judgment in L. Chandra Kumar v. Union of India [AIR 1997 SC1125], which rendered the decisions/judgments of Tribunals set up under Articles 323A and [323B] of the Constitution, amenable to judicial scrutiny of a Division Bench of High Court under Articles 226/227 of the Constitution, is no exception.

2. The present controversy is all about the fall-out of this judgment and arises from two writ petitions wherein petitioners are resisting payment of excise duty and are aggrieved of the orders passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short CEGAT). The petitions are opposed by Respondents on the priliminary objection that this Court had no jurisdiction to test the validity of the CEGAT order/ decision in the face of judgment supra as the Tribunal was not the creature of Article 323B. In other words it is sought to be projected that the direction contained in the judgment supra reviving the power of the High Courts to judicially review the decisions of Tribunal was limited to such Tribunals only as were established under Articles 323A and 323B and since the CEGAT was created under the Customs Act and the Central Excise Act, this Court was not competent to examine the validity of its orders/decisions on the strength of directions contained in Chandra Kumar's case. Alternatively it is submitted that even if it was conceded that the Supreme Court judgment was attracted to it still this Court was helpless in the matter as it fell outside the Court's territorial jurisdiction. Lastly it was urged that the two writ petitions were not entertainable as the petitioners had failed to exhaust the alternative statutory remedy provided under Section 35L of the Excise Act.

7. Pursuant thereto Parliament enacted the Administrative Tribunal Act under Article 323A and Section 28 of this also excluded jurisdiction of all Courts except the Supreme Court. Resultantly the Central Administrative Tribunal (CAT) was established on 1-11-1985. However, before this Tribunal could find its feet several petitions were filed in High Court and in Supreme Court assailing the constitutional validity of Article 323A of the Constitution and also some provisions of the Administrative Tribunal Act. The issue was first considered in Sampat Kumar's case [AIR 1987 SC 386] wherein the Supreme Court affirmed that judicial review was a basic feature of the Constitution but at the same time approved the vesting of this power in alternative institutional mechanism like the Tribunals after taking it away from the High Courts. The Court did not touch or assess the impact of the exclusion of the jurisdiction of the High Courts and the Supreme Court under Articles 323A and 323B.

9. This judgment broadly holds that the power of judicial review vested in the High Courts under Article 226/227 and the Supreme Court under Article 32 was an integral and essential feature of the Constitution, forming part of its basic structure and that this power could not be excluded by any Act of Parliament or amendment to the Constitution. It further affirms the power of judicial superintendence of the High Courts over the decisions of Tribunals, whether or not created under Article 323A or Article 323B of the Constitution and makes these subject to judicial scrutiny before a Division Bench of the High Court. It additionally provides that such Tribunals would be competent to test the constitutional validity of the statutory provisions and the Rules other than their parent statute. Lastly, it virtually eliminates a direct appeal to the Supreme Court from the decision/orders of these Tribunals but saves a special leave under Article 136 against the orders/judgments of the Division Bench of the High Courts.

In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution." (Emphasis supplied)

11. This should have cleared all cobwebs but the irony is that varying interpretations are placed on the dictum of the Apex Court. Therefore, it requires to be underscored by way of illucidation that once the power of judicial review vested in the Supreme Court and the High Courts under Articles 32, 226 and 227 formed a basic feature of the Constitution and constituted a part of its basic structure, it required no further aid to show that this power was exercisable over the decisions and orders of all existing Tribunals, whether or not created under Articles 323A and 323B. The power was not liable to be exercised selectively to strike at the decisions of some and save those of others. Any view to the contrary would be grossly untenable and would fly in the face of the mandate of the relevant constitutional provisions. Therefore, even as the Supreme Court was primarily examining the vires of the exclusion clauses in Articles 323A and 323B and the provisions of the Central Administrative Tribunal Act, it was at the same time engaged in delineating the extent of its own power of judicial review and that of the High Courts. It cannot thus be logically suggested that its dictum was limited to the CAT and the four Tribunals created post Article 323B. The judgment of the Court when read between the lines leaves no scope for doubt in this regard. As such once it was settled that the power of judicial review possessed by the High Courts formed a basic feature of the Constitution, its flow of exercise would cover all Tribunals irrespective of any classification.