The 42 42nd Amendment brought about a massive modification to the adjudication procedure of the country by the introduction of Articles 323 A and 323 B into the Constitution of India. The legislative power to create administrative tribunals has been given by Article 323A along with Article 323B to the Parliament and state legislatures, respectively. The 44 amendment amendment eliminated all modifications brought about by the 42 3rd amendments, but Article 323 A as well as Article 323 B were left. It is evident at first glance that by introducing these amendments, the Parliament was aiming to shift the power of judicial review from the Judiciary to bodies that can effectively be controlled by the legislature. The amendment permitted the Parliament to make laws that establish the authorities, jurisdiction, and the manner of operation for these tribunals. It also allowed the exclusion of the jurisdiction of Civil and High Courts aside from the jurisdiction of the Supreme Court under Article 136. [1] At this point, there are two issues to be addressed. First, if criminalisation is a violation of the fundamental structure by violating the principle of separation of powers and independence of the Judiciary. Secondly, the constitutional framework allows the transfer of judicial authority.


The following exemplary judgments can observe the development of law and the court’s attitude toward criminalisation:

In Sampath Kumar Sampath Kumar [2 the dispute was about the constitutionality of the 42 42nd Amendment as well as the Administrative Tribunals Act 1985, as they did not allow judicial review. It was ruled the Judicial Review was a component of the fundamental structure of the Constitution. However, it was further stated that should the amendment to the Constitution provide an effective mechanism giving the Administrative Tribunals the power of Judicial review; then it would not violate the Constitution even though it did not grant jurisdiction to High Courts. [33

In L. Chandrakumar[4], the court reaffirmed its belief that the judicial process forms a part of the fundamental structure of the Constitution. Also, the authority of judicial review is the High Court and the Supreme Court under Article. 226 and. Art. 32 provides for the independence of the Judiciary. The “exclusion of jurisdiction” clause in all laws that were enacted within the terms of Article 323A and Article 323 B was struck down. The authority to supervise high courts over the lower courts under their jurisdiction was considered to be an element of the fundamental structure. For tribunals, it was decided that they would ensure rapid justice and serve as the first-instance courts about the law areas that they have created. The rationale to support the ruling was that the Constitution guarantees the independence of only superior Judiciary and not tribunals. The tribunals can not be an ideal substitute for special courts, and therefore, the authority to review the High Court and Supreme Court judicially is not excluded.[5 In Union of India v. R Gandhi,[6] the court ruled that the exclusion of the jurisdiction of the High Court is permissible, and Parliament is empowered to establish tribunals by specific laws and enactments and to accredit them with the authority to decide on issues relevant to the particular rules. In addition, it was stated that even though the legislature is able to create rules defining the criteria for eligibility and the type of knowledge needed for appointment to tribunals, the superior courts are empowered to determine if the requirements for eligibility and the qualifications required for the selection of members are enough to serve the purpose to which the tribunal is established. [7]

In spite of the unambiguous decisions issued to the Supreme Court, various issues need to be addressed. First, the primary reason for the establishment of tribunals was to guarantee rapid justice. However, the fact that they are subject to judicial review by the High Court and Supreme Court will create a process that is more time-consuming and complicated. Additionally, the tribunals can be independent when they are dominated by members who have been appointed by the executive or are components of an executive. Thirdly, due to the rise in tribunals, the uniformity of their administration is declining, and the functioning of the majority of tribunals is not in good condition. [8]


The principle of separation of power helps ensure the democratic process in our nation by giving each organ, i.e., legislative, executive, and Judiciary, to monitor and balance their actions. Our Constitution establishes separate and distinct roles for each of the three organs, and overstepping the jurisdiction of any other organ is strictly forbidden. The Constitution also states that each organ must function separately. In this regard, the autonomy of the Judiciary is essential for greater justice and to ensure that the government is not following its wishes or limiting citizen rights on the basis of government. In Indira Gandhi in v. Raj Narain, it was decided that the Parliament has no power to resolve disputes, and any disagreement relating to the elections of the Prime Minister needs to be referred to appropriate tribunals or courts since the separation of powers is a part of the fundamental Constitution. Constitution.[10 Since the passage of the Administrative Tribunals Act of 1985, the legislature has strayed beyond the boundaries outlined by the separation of powers and has taken away judges in the High Courts as well as Civil courts from crucial judiciary functions by shifting their operations to quasi-judicial organizations that are under their control.[11 The power that was granted to the High Court through our Constitution is being curtailed to an even greater extent.[12] I am of the opinion the most likely risk from the transfer of power to the Judiciary could be an infringement of the constitutional rights of citizens in our nation.

Leave a Reply

Your email address will not be published. Required fields are marked *