Constitutional Provisions on Tribunals: Article 323A, Article 323B and the Difference between Them

Article 323A in substance

Clause (1) empowers Parliament to provide by law for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within India or under the control of the Government of India, or of any corporation owned or controlled by the Government. Clause (2) provides that such a law may establish tribunals for the Union and for each State or for two or more States; may specify the jurisdiction, powers and authority to be exercised by them; may provide for their procedure, including limitation and rules of evidence; may exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136 (clause 2(d)); may provide for the transfer of pending cases; and may contain supplemental and incidental provisions. Clause (3) provides that the Article has effect notwithstanding anything in any other provision of the Constitution or in any other law.

Article 323B in substance

Clause (1) empowers the appropriate Legislature, meaning Parliament or a State legislature according to the subject, to provide by law for the adjudication or trial by tribunals of any disputes, complaints or offences with respect to the matters specified in clause (2), with respect to which such Legislature has power to make laws. Clause (2) lists the matters: (a) levy, assessment, collection and enforcement of any tax; (b) foreign exchange, import and export across customs frontiers; (c) industrial and labour disputes; (d) land reforms by way of acquisition of estates and related rights under Article 31A; (e) ceiling on urban property; (f) elections to either House of Parliament or of a State Legislature, but excluding the matters referred to in Articles 329 and 329A; (g) production, procurement, supply and distribution of foodstuffs and essential goods; (h) rent, its regulation and control, and tenancy issues including the rights, title and interest of landlords and tenants; (i) offences against laws with respect to any of these matters and fees in respect of them; (j) any matter incidental to them. Clause (3) permits the law to specify jurisdiction and procedure, to exclude the jurisdiction of all courts except that of the Supreme Court under Article 136 (clause 3(d)), and to provide for transfer of pending cases.

Subject matter

Recruitment and conditions of service only

Ten enumerated matters including tax, labour, land reform, rent and elections

Who may legislate

Parliament alone, even for State services

The appropriate legislature, Parliament or a State, according to competence

Number of tribunals

One for the Union and one for each State, or one for two or more States

As many as the enumerated matters require; hierarchy permitted

Hierarchy of tribunals

Not contemplated; a single tier

A hierarchy of tribunals may be created

Exclusion of courts

Clause 2(d), now struck down

Clause 3(d), now struck down

Constitutional origin

Forty-second Amendment, 1976

Forty-second Amendment, 1976

Principal legislation

Administrative Tribunals Act, 1985

Various statutes, each creating its own tribunal

Is the list exhaustive?

The subject is defined and closed

The list limits what may be done under this Article, but tribunals may be created under ordinary legislative entries outside it

📖 Union of India v. Delhi High Court Bar Association, (2002) 4 SCC 275

Facts: The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 established Debts Recovery Tribunals and Appellate Tribunals and transferred to them the jurisdiction of civil courts over the recovery of debts due to banks. The Act was challenged on the ground, among others, that recovery of debts is not one of the matters enumerated in Article 323B, so Parliament had no power to establish a tribunal for it and to oust the civil courts.

Held: The Supreme Court upheld the Act. It held that Article 323B is not the sole source of the power to constitute tribunals: the Article is an enabling provision, and the absence of a subject from the list in clause (2) does not disable the legislature from creating a tribunal for that subject under its ordinary legislative entries in the Seventh Schedule, read with the entries relating to jurisdiction and powers of courts and to administration of justice. Parliament had legislative competence in respect of banking, and could validly provide a special forum and a special procedure for the recovery of debts due to banks. The Court also examined and upheld the scheme of the Act subject to the tribunals functioning fairly, while emphasising that the establishment of a tribunal does not remove the supervisory jurisdiction of the High Courts.

Ratio: Part XIVA is enabling and not exhaustive. A tribunal may be created under an ordinary legislative entry for a subject not listed in Article 323B, provided the legislature is competent in respect of that subject.

📖 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

Facts: Clause 2(d) of Article 323A and clause 3(d) of Article 323B permitted laws establishing tribunals to exclude the jurisdiction of all courts except the Supreme Court under Article 136, and section 28 of the Administrative Tribunals Act, 1985 accordingly excluded the jurisdiction of the High Courts. The question before a seven-Judge Bench was whether these provisions were valid.

Held: The Court struck down clause 2(d) of Article 323A and clause 3(d) of Article 323B to the extent that they excluded the jurisdiction of the High Courts under Articles 226 and 227, together with section 28 of the 1985 Act and all corresponding provisions in other statutes. It held that the power of judicial review vested in the High Courts under Articles 226 and 227, and in the Supreme Court under Article 32, is an integral and essential feature of the Constitution and part of its basic structure, which cannot be ousted even by constitutional amendment. Tribunals may function as courts of first instance in their assigned fields, and litigants must ordinarily approach the tribunal first rather than the High Court; but all decisions of tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls, and a litigant may not bypass the High Court by moving the Supreme Court directly under Article 136. The Court also held that tribunals may decide the constitutional validity of statutory rules and regulations, but not of their own parent statute.

Ratio: Judicial review by the High Courts is part of the basic structure and survives Part XIVA. Tribunals are courts of first instance whose decisions are reviewable by a Division Bench of the High Court, and they cannot test the vires of the statute that created them.

⚠ Part XIVA now does less than it was designed to do

The Forty-second Amendment's purpose in inserting Articles 323A and 323B was not merely to permit tribunals, which the legislature could already create under its ordinary entries, as Delhi High Court Bar Association later confirmed. Its purpose was the exclusionary clauses: to allow a tribunal system that displaced the High Courts entirely, with only a discretionary appeal to the Supreme Court. Once those clauses fell in L. Chandra Kumar, Part XIVA was left doing work the Constitution already permitted by other means. That is why the modern law on tribunals turns far less on Articles 323A and 323B than on the general requirements of independence and competence worked out in the service-conditions cases.