Indian Kanoon - Search engine for Indian Law

45. Mr. P.P. Rao, learned Counsel for the State of Andhra Pradesh in C.A. No. 196 of 1994 and the connected special leave petitions, put forth the following submissions: (i) The matter before us involves a very serious, live problem which needs to be decided by adopting a pragmatic, cooperative approach instead of by a dogmatic, adversarial process. It is a fact that the Administrative Tribunals which were conceived as substitutes for the High Courts have not lived upto expectations and have instead, proved to be inadequate and ineffective in several ways. However, the striking down of the impugned constitutional provisions would, instead of remedying the problem, contribute to its worsening. The problem of pendency in High Courts which has been a cause for concern for several decades, has been focused upon by several expert committees and commissions. The problem of enormous increase in the volume of fresh institution coupled with massive areas has necessitated the seeking of realistic solutions in order to prevent High Courts from becoming incapable of discharging their functions. The consistent view of these expert committees has been that the only manner in which the situation can be saved is by transferring some of the jurisdiction of the High Courts, in relatively less important areas, to specially constituted Tribunals which would act as substitutes for the High Courts. In Sampath Kumar's case, this Court was required to test the constitutional validity of providing for such a substitute to the High Court in the shape of Administrative Tribunals. While deciding the case, this Court had actually monitored the amendments to the Act by a series of orders and directions given from time to time as the learned Attorney General had offered to effect the necessary amendments to the Act to remove its defects. After the necessary amendments were made to the Act, this Court was satisfied that there was no need to strike, it down as it was of the view that the Act would provide an effective alternative forum to the High Courts for the resolution of service disputes. However, the actual functioning of the Tribunals during the last decade has brought forth several deficiencies which need to be removed. The remedy, however, lies not in striking down the constitutional provisions involved but in allowing the Union of India to further amend the Act so as to ensure that the Tribunals become effective alternative form; (ii) Article 323A (2)(d) does not violate the basic structure of the Constitution. The relevant observations in Keshvananda Bharati's case, show that there is an inherent distinction between the individual provisions of the Constitution and the basic features of the Constitution. While the basic features of the Constitution cannot be changed even by amending the Constitution each and every provision of the Constitution can be amended under Article 368. The majority judgments in Keshavananda Bharti's case emphatically state that the concept of separation of powers is a basic feature of the Constitution. It, therefore, follows that the powers of judicial review, which is a necessary concomitant of the independence of the judiciary, is also a basic feature of our Constitution. However, it does not follow that specific provisions such as Article 32 or Article 226 are by themselves part of the basic structure of the Constitution. In this regard, the history of Article 31, which contained a Fundamental Right to Property and was shifted from Part III to Chapter IV of Part XII can be cited by way of an example; (iii) the essence of the power of judicial review is that it must always remain with the judiciary and must not be surrendered to the executive or the legislature. Since the impugned provisions save the jurisdiction of this Court under Article 136, thereby allowing the judiciary to have the final say in every form of adjudication, it cannot be said that the basic feature of judicial review had been violated. The constitutional bar is against the conferment of judicial power on agencies outside the judiciary. However, if within the judicial set-up, arrangements are made in the interests of bolter administration of justice to limit the jurisdiction under Article 32 and 226 of the Constitution, there can be no grievance. In fact, it is in the interest of better administration of justice that this Court has developed a practice, even in the case of violation of Fundamental Rights, of requiring parties to approach the concerned High Court under Article 226 instead of directly approaching this Court under Article 32 of the Constitution. This, undoubtedly, has the effect of limiting the jurisdiction of this Court under Article 32 but, being necessary for proper administration of justice, cannot be challenged as unconstitutional. Service matters, which are essentially in the nature of in-house disputes, being of lesser significance than those involving Fundamental Rights, can also be transferred to Tribunals on the same reasoning; (iv) By virtue of Order XXVII-A, Rule 1A, ordinary civil courts are empowered to adjudicate upon questions of vires of statutory rules and instruments. In view of this situation, there is no constitutional difficulty in empowering Tribunals to have similar powers; (v) Alternatively, in case we are inclined to take view that the power of judicial review of legislative enactments cannot in any event be conferred on any other Court or Tribunal, we may use the doctrine of reading down to save the impugned constitutional provisions. So construed, the High Courts would continue to have jurisdiction to decide the vires of an Act even in the area of service disputes and would, therefore, perform a supervisory role over Tribunals in respect of matters involving constitutional questions.

(Emphasis added)

61. It is interesting to note that the origins of the power of judicial review of legislative action have not been attributed to one source alone. While Sastri, C.J. found the power mentioned expressly in the text of the Constitution, Gajendragadkar, C.J. preferred to trace it to the manner in which the Constitution has separated powers between the three wings of Government.

62. In Kesvananda Bharati's case, a 13 - Judge Constitution Bench, by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend to Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or to destroy its basic structure. The identification of the features which constitute the basic structure of our Constitution has been the subject-matter of great debate in Indian Constitutional Law. The difficulty is compounded by the fact that even the judgments for the majority are not unanimously agreed on this aspect. [There were five judgments for the majority, delivered by Sikri, C.J., Shelat & Grover, JJ. Hegde & Mukherjee, JJ. Jaganmohan Reddy, J. and Khanna, J. While Khanna, J. did not attempt to catalogue the basic features, the identification of the basic features by the other Judges are specified in the following paragraphs of the Court's judgments : Sikri, C.J. (para 292), Shelat and Grover, JJ. (para 582), Hegde and Mukherjee, JJ. (paras 632, 661) and Jaganmohan Reddy, J. (paras 1159, 1161)]. The aspect of judicial review does not find elaborate mention in all the majority judgments. Khanna, J. did, however, squarely address the issue (at para 1529):

(Emphasis added)

64. In Indira Nehru Gandhi v. Raj Narain, five-Judge Constitution Bench had to, inter alia, test the Constitutional validity of provisions which ousted the jurisdiction of all Courts including the Supreme Court, in election matters. Consequently, the Court was required to express its opinion on the concept of judicial review. Though all five Judges delivered concurring judgments to strike down the offending provision, their views on the issue of judicial review are replete with variations. Ray, C.J., was of the view that the concept of judicial review, while a distinctive feature of American Constitutional Law, is not founded on any specific Article in our Constitution. He observed that judicial review can and has been excluded in several matters; in election matters, judicial review is not a compulsion. He, however, held that our Constitution recognises a division of the three main functions of Government and that judicial power, which is vested in the judiciary cannot be passed to or shared by the Executive or the Legislature. (Paras 32, 43, 46, 52). Khanna, J. took the view that it is not necessary, within a democratic set up, (hat disputes relating to the validity of elections be settled by Courts of Law; he, however, felt that even so the legislature could not be permitted to declare that the validity of a particular election would act be challenged before any forum and would be valid despite the existence of disputes. (Para 207). Mathew, J. held that whereas in the United States of America and in Australia, the judicial power is vested exclusively in Courts, there is no such exclusive vesting of judicial power in the Supreme Court of India and the Courts subordinate to it. Therefore, the Parliament could, by passing a law within its competence, vest judicial power in any authority for deciding a dispute. (Paras 322 and 323). Beg, J. held that the power of Courts to test the legality of ordinary laws and constitutional amendments against the norms laid down in the Constitution flows from the 'supremacy of the Constitution' which is a basic feature of the Constitution. (Para 622). Chandrachud, J. felt that the contention that judicial review is a part of the basic structure and that any attempt to exclude the jurisdiction of courts in respect of election matters was unconstitutional, was too broadly stated. He pointed out that the Constitution, as originally enacted, expressly excluded judicial review in a large number of important: matters. The examples of Articles 136(2) and 226(4) [exclusion of review in laws relating to armed forces], Article 262(2) [exclusion of review in river disputes] Article 103(1) [exclusion of review in disqualification of Members of Parliament], Article 329(a) [exclusion of review in laws relating to delimitation of constituencies and related matters], were cited for support. Based on this analysis, Chandrachud, J. came to the conclusion that since the Constitution, as originally enacted, did not consider that judicial power must intervene in the interests of purity of elections, judicial review cannot be considered to be a part of the basic structure in so far as legislative elections are concerned.

(Emphasis added)

76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and into the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The Doctrine of basic structure was evolved in Kesvananda Bharati's case. However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat & Grover, JJ., Hegde & Mukherjee, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi's case, Chandrachud, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country, (supra at pp. 751-752). This approach was specifically adopted by Bhagwati, J. in Minerva Mill's case (supra at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law.