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Showing contexts for: basic structure constitution in Lal Chand vs State Of Haryana And Ors. on 28 May, 1998Matching Fragments
5. The argument further proceeded that after the judgment of the Supreme Court in Minerva Mills Ltd. case, AIR 1980 SC 1789, it is quite well settled that judicial review is a basic structure of our Constitution and an integral part of our Constitutional system. Even the Constitution cannot be amended to tinker with or to erode the basic structure of the Constitution. Articles 243-O and 243-ZG erode and tinker with the basic structure of the Constitution i.e. judicial review by the High Court under Article 226 of the Constitution of India. According to the learned counsel if the jurisdiction of the High Court or judicial review of an election dispute under Article 226 of the Constitution of India is to be taken away, then an alternative substitute arrangement forum has to be equally effective, efficacious and efficient as also capable of upholding the Constitutional limitations. Such a Tribunal should be a real substitute pf the High Court -- not only in form and de jure but in content and de facto. Giving powers to a Civil Court or any other Tribunal to decide the election dispute is not providing a real substitute of the High Court. Primary reliance was placed on the Supreme Court judgment reported as S.P. Sampat Kumar v. Union of India, AIR 1987 SC 386. In that case, the vires of the Administrative Tribunals Act were under challenge and one of the grounds was that by ousting the jurisdiction of the High Court to entertain service matters on the constitution of an Administrative Tribunal by the State or the Central Government, as the case may be, the basic structure of the Constitution had been tinkered with as the judicial review by the High Court under Article 226 of the Constitution of India in such matters was being taken away. The vires of the said Act were upheld by the Supreme Court after going in details of the constitution of the Administrative Tribunal. It came to the conclusion that effective alternative institutional mechanism or arrangements for judicial review had been provided by the constitution of a Tribunal under the Administrative Tribunal Act and the Administrative Tribunal could exercise all the powers of the High Court. Specific reliance was placed by the counsel for the-petitioners on paras 12, 14, 15, 16, 17 of the Report. Paras Nos. 12, 16 and 17 may be reproduced here :
14. During the pendency of the above writ petition, the petitioner in C.W.P. No. 1160 of 1995 filed an application seeking permission of the Court to challenge the vires of Article 243-O of the Constitution of India. It was also contended that there were only two grounds mentioned in the Haryana Act, on which the election of a returned candidate can be challenged and these grounds were : corrupt practices committed by the returned candidate and the wrong counting of votes. It was further contended that there cannot be any complete bar under the Constitution or in any Act to oust the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India, It was submitted that judicial review was the basic structure of our Constitution and an integral part of our Constitutional System. Even the Constitution cannot be amended to tinker with or to erode the basic structure of the Constitution. It was contended that Article 243-O and 245-ZG erode and tinker with the basic structure of the Constitution i.e. the judicial review under Article 226 of the Constitution of India.
(a) That the returned candidate committed corrupt practices within the meaning of Sub-section (5);
(b) That some irregularities or illegalities were committed during the course of counting, on which plea the Court may order scrutiny and recounting of votes and declaring the candidate who is found to have largest number of valid votes in his favour to be duly elected.
19. Mr. Ravi Sodhi, learned counsel appearing on behalf of the petitioners in C. W.P. No. 1160 of 1995 submitted that under Article 38 of the Constitution, the State was required to secure political justice and political justice could not be secured if the power of judicial review under Article 226 of the Constitution is eroded. He submitted that even the Constitution cannot be amended to erode the basic structure of the Constitution and it is now well settled that judicial review is the basic structure of the Constitution. In support of his submissions, the learned counsel placed reliance on three judgments of the Supreme Court in Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461; Minerva Mills Limited v. Union of India, AIR 1980 SC 1789 and L. Chandra Kumar v. Union of India, (1997) 3 JT (SC) 589 :
31. We, however, do not find any merit in the contention raised by the learned counsel for the State. In this connection, reference may be made to a 13-Judge Bench judgment of the Supreme Court in the case of Kesavananda Bharti, (AIR 1973 SC 1461) (supra). In this case by a majority of 7 against 6, the Supreme Court held that Article 368 of the Constitution does not enable Parliament to alter the basic structure or framework of the Constitution. The majority also opined that the basic structure of the Constitution could not be altered by any Constitutional amendment and it was held in unambiguous terms that one of the basic features is the existence of the Constitutional system of judicial review. This view was followed by a Constitution Bench of the Supreme Court in the case of Minerva Mills (AIR 1980 SC 1789) (supra).