Articles 323A and 323B After L. Chandra Kumar: What Survives of the Distinction

The two Articles inserted by the Forty-second Amendment differ in who may legislate, on what subjects, and with what consequences for existing courts. Their most important difference in the original design was that both permitted the exclusion of the jurisdiction of all courts except the Supreme Court under Article 136, so that the High Courts could be shut out of whole fields of administration. That feature was struck down in 1997, and with it went much of what made the distinction consequential. What remains is a difference in the source of legislative competence, the range of subjects, and the structure the two permit. This topic examines what is left, and how tribunals under each Article operate in practice.

1. What the Articles Provide

Basis	Article 323A	Article 323B
Who may legislate	Parliament alone	Parliament or a State legislature, within its field
Subjects covered	Service matters of public servants only	Fifteen enumerated subjects, including taxation, foreign exchange, industrial and labour disputes, land reforms, ceiling on urban property, elections, essential goods and rent
Hierarchy of tribunals	Not contemplated; one tribunal for the Union and one for each State	Expressly contemplated; a hierarchy of tribunals may be provided
Exclusion of jurisdiction	Originally permitted, save the Supreme Court under Article 136	Originally permitted to the same extent
Effect of the 1997 decision	Exclusion of High Court jurisdiction under Articles 226 and 227 held unconstitutional	The same
Legislation enacted	Administrative Tribunals Act, 1985	Various enactments across the listed fields
Present position	Tribunals function as courts of first instance, subject to High Court review	The same

Both Articles were held in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 to be unconstitutional to the extent that they excluded the jurisdiction of the High Courts under Articles 226 and 227, judicial review by the High Courts being part of the basic structure. Tribunals under both accordingly operate as courts of first instance in their fields, subject to review by a Division Bench of the High Court within whose territory the tribunal sits.

2. The Consequence for Access to the High Court

📖 T.K. Rangarajan v. Government of Tamil Nadu, (2003) 6 SCC 581

Facts: A very large number of government employees were dismissed following a strike, under an Ordinance and the service rules. They approached the High Court directly under Article 226 rather than the Administrative Tribunal constituted under the Act of 1985, and it was objected that they were bound to move the Tribunal first, since service matters fall within its exclusive jurisdiction at the first instance.

Held: The Supreme Court held that the High Court could and should have entertained the petitions. It held that although the ordinary course is for a government servant to approach the Administrative Tribunal in the first instance, the High Court's jurisdiction under Article 226 is a constitutional power that cannot be taken away, and it may be exercised in exceptional circumstances where relegation would not serve the ends of justice. The Court held that the dismissal of a very large number of employees, raising a common question affecting many thousands of persons, and involving their means of livelihood, was such a circumstance; requiring each of them to move the Tribunal would have been impracticable and would have caused hardship out of proportion to any advantage. It emphasised that the rule requiring resort to the Tribunal first is one of discretion and practice, not of jurisdiction.

Ratio: Resort to the Administrative Tribunal in the first instance is a rule of discretion and practice, not of jurisdiction. The High Court may entertain a petition directly in exceptional circumstances, as where a large class is affected by a common question.

3. The Powers a Tribunal Possesses

📖 Union of India v. Paras Laminates (P) Ltd., (1990) 4 SCC 453

Facts: A question arose whether the President of a tribunal constituted under a taxing statute had power to constitute a larger Bench where a Bench disagreed with an earlier decision of a coordinate Bench, the statute containing no express provision conferring that power.

Held: The Supreme Court held that the power existed. It held that a tribunal, though a creature of statute with no powers beyond those conferred, possesses by necessary implication all such incidental and ancillary powers as are necessary to make its express powers effective and to discharge the functions entrusted to it: what is necessarily implied is as much conferred as what is expressed. It held that the need for consistency and certainty in a tribunal's decisions requires that where a Bench doubts an earlier view of a coordinate Bench, the matter be referred to a larger Bench rather than decided contrary to it, and that the power to constitute such a Bench is incidental to the exercise of the appellate jurisdiction conferred. The Court emphasised that judicial propriety and the interests of those appearing before the tribunal both require this course.

Ratio: A tribunal possesses by necessary implication the incidental and ancillary powers required to make its express powers effective, including the power to refer a matter to a larger Bench where a coordinate Bench's view is doubted.

4. What the Distinction Still Determines

Legislative competence. A tribunal for service matters requires an Act of Parliament; tribunals for the subjects in Article 323B may be created by a State legislature within its field.
The range of subjects. Article 323A is confined to service matters; Article 323B lists fifteen fields and is not available beyond them under that Article.
Structure. Article 323B expressly permits a hierarchy of tribunals, which Article 323A does not contemplate.
The governing statute and its scheme, since the Act of 1985 is a single comprehensive enactment while Article 323B legislation is scattered across many statutes.
Exhaustion of departmental remedies, which section 20 of the Act of 1985 makes a statutory precondition, a requirement not general to Article 323B tribunals.
Not the exclusion of the High Courts, which is unconstitutional under both.
Not the standards of independence, which apply to every tribunal to which judicial functions have been transferred.

5. Part XIVA Is Enabling, Not Exhaustive

A point that follows from the case law and is frequently misunderstood is that Part XIVA does not confine the power to create tribunals. Parliament and the State legislatures may constitute tribunals for subjects outside the fifteen enumerated in Article 323B, in exercise of their ordinary legislative power under the relevant entries in the Seventh Schedule. The company law tribunals, the consumer forums, the debt recovery tribunals and the securities appellate tribunal were created in that way rather than under Part XIVA. What the Part supplied was an express authority to do certain things, including the exclusion of jurisdiction, and that authority has now been read down.

Question	Position
Can a tribunal be created outside Part XIVA?	Yes, under the ordinary legislative entries
Does Part XIVA exhaust the power?	No; it is enabling
Can such a tribunal exclude the High Courts?	No, for the same reason as under Part XIVA
Do independence standards apply?	Yes, wherever judicial functions of the courts have been transferred
Can it decide the vires of its parent Act?	No; that remains for the constitutional courts
Can it decide the vires of rules and notifications?	Yes, under the Act of 1985 and generally

⚠ What was struck down was the feature that made the Articles matter

The Forty-second Amendment inserted Part XIVA in order to achieve one thing above all: to permit the legislature to remove whole fields of administration from the High Courts, leaving only a discretionary appeal to the Supreme Court. Everything else in the two Articles is machinery. Once that exclusion was held unconstitutional, tribunals under both Articles became what they are today, specialised courts of first instance whose decisions are reviewed by a Division Bench of the High Court. The remaining differences between the Articles, as to who may legislate, on what subjects and with what structure, are real but modest, and the questions that now matter about any tribunal, its independence, the manner of appointment and the tenure of its members, are governed by principles that apply to all of them irrespective of which Article it was created under.

6. The Position in Summary

Article 323A permits Parliament alone to create tribunals for service matters; Article 323B permits Parliament or a State legislature to create them for fifteen enumerated subjects, with a hierarchy expressly contemplated.
Both were held unconstitutional to the extent that they excluded the jurisdiction of the High Courts under Articles 226 and 227, and tribunals under both now function as courts of first instance subject to Division Bench review.
Resort to the Administrative Tribunal first is a rule of discretion and practice, and the High Court may entertain a petition directly in exceptional circumstances (T.K. Rangarajan).
A tribunal possesses by necessary implication the incidental powers needed to make its express powers effective, including the power to refer a matter to a larger Bench (Paras Laminates).
Part XIVA is enabling and not exhaustive, so tribunals may be created outside it under the ordinary legislative entries, subject to the same limits on excluding the High Courts and the same standards of independence.

7. Related Topics and Provisions

Constitutional Provisions on Tribunals (Topic 125) and Administrative Tribunals Act, 1985 (Topic 126).
Administrative Tribunal vs Court (Topic 207) and Administrative Tribunals (Topic 124).
Judicial Review of Tribunal Decisions (Topic 128) and Tribunal Independence (Topic 130).
Central Administrative Tribunal and Tribunalisation (Topic 127).
Doctrine of Exhaustion of Alternative Remedies (Topic 189): section 20 of the Act of 1985.
Constitution of India: Articles 136, 226, 227, 323A, 323B and the Seventh Schedule.