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Showing contexts for: "basic structure" in A.K.Behera vs Union Of India & Anr on 6 May, 2010Matching Fragments
54. I am, therefore, clearly of the opinion that there is no anathema in the Tribunal exercising jurisdiction of High Court and in that sense being supplemental or additional to the High Court but, at the same time, it is our bounden duty to ensure that the Tribunal must inspire the same confidence and trust in the public mind. This can only be achieved by appointing the deserving candidates with legal background and judicial approach and objectivity.
55. I deem it appropriate to briefly discuss the theory of basic structure and separation of power in the Constitution to properly comprehend the controversy involved in this case. EQUALITY AND BASIC STRUCTURE
56. Initially when the doctrine of basic structure was laid down there was no specific observation with respect to whether Article 14 forms part of basic structure or not. In fact the confusion was to such an extent as to whether fundamental rights as a whole form part of basic structure or not? It was in this light that Khanna, J., had to clarify in his subsequent decision in Indira Nehru Gandhi v. Raj Narain & Anr. (1975) Supp. SCC 1 in the following words:-
".......What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution.....The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution". [Paras 251-252] Further, though not directly quoting Article 14 of the constitution Chandrachud, J. in the above mentioned case held that, "I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of the Constitution, they are that: (i) Indian sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens;
(iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion and that (iv) the nation will be governed by a Government of laws, not of men. These, in my opinion, are the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution." [Para 664]
57. Thus, from the above observations it is very clear that at no point of time there was the intention to exclude the mandate of equality from the basic structure. The I.R. Coelho (dead) by Lrs. v. State of Tamil Nadu & Others (2007) 2 SCC 1 rightly observed that in Indira Gandhi's case, Chandrachud, J. posits that equality embodied in Article 14 is part of the basic structure of the constitution and, therefore, cannot be abrogated by observing that the provisions impugned in that case are an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our constitution [Para 108]
58. In the above case relying on the observations in the Minerva mills's case the question of Article 14 coming under the purview of Basic structure has been brought at rest. Since it has been a settled question per the judgment of I.R. Coelho that the arbitrariness of a legislation, Rules, Policies and amendment would be subject to the test of reasonableness, rule of law and broad principle of equality as per Article 14.
59. In Ashoka Kumar Thakur & Ors. v. Union of India & Ors. (2008) 6 SCC 1, Balakrishnan, CJ. observed that, "118. Equality is a multicolored concept incapable of a single definition as is also the fundamental right under Article 19(1)(g). The principle of equality is a delicate, vulnerable and supremely precious concept for our society. It is true that it has embraced a critical and essential component of constitutional identity. The larger principles of equality as stated in Articles 14, 15 and 16 may be understood as an element of the "basic structure"