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28.7.2008 Posting orders 62 of 148 Promotion through limited departmental competitive examination 23.4.2008 Date of Circular 18.5.2008 to 20.5.2008 Written test 29.7.2008 Letter from the Registrar General to the State recommending appointment 11.8.2008 Orders issued by the Government 22.10.2008 Date of posting GENERAL ISSUES

105. As counsels for the petitioners have raised many issues regarding judicial system with reference to the constitutional scheme, it being part of basic structure of the Constitution of India, we deem it appropriate to notice the same before dealing with other issues.

Judicial system-- the Basic structure, Article 233 of the Constitution of India

106. In Madras Bar Association's case (supra), issue under consideration before the Constitution Bench of Hon'ble the Supreme Court was the validity of the National Tax Tribunal Act, 2005 (for short, 'NTT Act'), vide which National Tax Tribunal (for short, 'the Tribunal') was constituted, which was to take over jurisdiction of the High Courts for dealing with appeals under different direct and indirect taxes statutes. While considering the issue as to whether NTT Act violates the basic structure of the Constitution, answer was in positive. The scope of judicial review was examined. Concepts of "rule of law", "separation of power" and "judicial review" were held to be part of basic structure of the Constitution. These were held to be essential ingredients of adjudicatory process. Finding that power of judicial review vested in the High Court under Articles 63 of 148 226/227 of the Constitution remained intact, National Tax Tribunal was deemed to be held to be discharging a supplemental role, rather, than substitutional role. The plea raised by the Attorney General that the law having been enacted within the competence of the Parliament has to be tested on that touch-stone and none else, was not accepted. The NTT Act was also found to be violating the basic structure theory as it was not found to be as independent an institution as the High Courts are, powers from which were sought to be transferred.

64 of 148 Finally, the opinion expressed in para Nos. 134 to 139 striking down the NTT Act are extracted below:

"134. (i) The Parliament has the power to enact legislation, and to vest adjudicatory functions, earlier vested in the High Court, with an alternative court/tribunal. Exercise of such power by the Parliament would not per se violate the "basic structure" of the Constitution.
135. (ii) Recognized constitutional conventions pertaining to the Westminster model, do not debar the legislating authority from enacting legislation to vest adjudicatory functions, earlier vested in a superior court, with an alternative court/tribunal. Exercise of such power by the Parliament would per se not violate any constitutional convention.
136. (iii) The "basic structure" of the Constitution will stand violated, if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure, that the newly created court/tribunal, conforms with the salient characteristics and standards, of the court sought to be substituted.
137. (iv) Constitutional conventions, pertaining to the constitutions styled on the Westminster model, will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced, are not incorporated in the court/tribunal sought to be created.