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9. The learned Advocate General, however, maintained, that except the Supreme Court and the High Courts established under the Constitution on whom the jurisdiction to decide constitutional validity of any law is conferred by the provisions of the Constitution themselves, no other Court or Tribunal has got the power to decide the constitutional validity of any law and the provisions of Article 323A did not make any departure from that basic and inviolable scheme under the Constitution. Elaborating his submission, he said as follows : Under the scheme of the Constitution, the power and responsibility to decide the constitutional validity of the laws is exclusively vested in the Supreme Court and the High Courts established by the Constitution itself. The qualification of persons eligible to be appointed as Judges of the High Court and the method and procedure for appointment and the essential conditions of service of the Judges are all prescribed by the Constitution itself. Further, the security of tenure of the Judges of the High Court is ensured by Article 217(1)(b) of the Constitution, accordingly to which it is the same as the security of tenure of the Judges of the Supreme Court vide Article 124(4) of the Constitution. Article 226 confers jurisdiction on the High Court to issue prerogative Writs or to make order for the enforcement of fundamental rights and for any other purpose. This power includes both power of judicial review of administrative action as also judicial review of Legislative action of the State and to issue Writs appropriate to the case concerned. Article 228 of the Constitution clearly indicates that the power and obligation to decide the constitutional validity of the laws is exclusively conferred and imposed on the High Courts. (See Raja Ganga Pratap Singh v. Allahabad Bank Limited) (AIR) 1958 SC 293. Under the provisions of the Act, person who is, or is eligible to be appointed as a Judge of the High Court is made eligible to be appointed to the Tribunal. But persons who are not Judges of the High Court, who do not possess the qualification to be appointed as Judges of the High Court, who had held civil posts of the stature referred to in Section 6 of the Act are eligible to be appointed as Members of the Tribunal. Further, as far as the security of tenure is concerned, a member of the Tribunal could be removed by the President if such member is found guilty of any misbehaviour on an enquiry to be held by a Supreme Court Judge, nominated by the President. It is impossible to attribute an intention to the Parliament to confer the power to decide the constitutional validity of the laws on a Tribunal to be established and constituted by the executive under an Act of Legislature. In this behalf, it is pertinent to refer to Article 323B, which is similarly worded and introduced to the Constitution by Constitution 42nd Amendment Act. Under that Article the power to constitute Tribunals in respect of matters specified in the said Article could be exercised either by the Parliament or by the Legislature of the State concerned. Whatever interpretation is given to Article 323A, in view of the similarity of wordings, would equally be applicable to Article 323B. If Article 323A were to be understood as conferring jurisdiction on the Parliament to exclude jurisdiction of the High Courts under Articles 226 and 228 of the Constitution relating to the decision on questions of constitutional validity of the laws, it would mean any Legislature of a State would also have the power to impair the jurisdiction of the High Court conferred by Article 226 in that behalf. It could not be, and was not, the intention of the Parliament to arm the State Legislature with the power to exclude the jurisdiction of the High Courts conferred by the Constitution to decide the constitutional validity of the laws and confer it on a Tribunal to be constituted under a law enacted by it. Further, it is also pertinent to note that a Tribunal constituted within the territory of a State cannot be completely outside the purview of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. Therefore, even on the basis that in respect of specified matters referred to in Articles 323A and 323B, the intention of the Parliament was to provide for the establishment of a Tribunal to decide cases whose decision would be final in the specified cases subject only to the appellate jurisdiction of the Supreme Court under Article 136 of the Constitution so as to ensure speedy disposal of such disputes and avoiding multiplicity of proceedings, it cannot have the effect of depriving the High Courts of their jurisdiction under Articles 226 and 227 of the Constitution to ensure that all Court and Tribunals within the territorial limits of the High Court in respect of which it exercises jurisdiction, do not exceed their jurisdiction. He said that if in a given case, the Tribunal constituted under Article 323A or 323B entertains a case which is not within its jurisdiction and a writ of prohibition is sought for from the High Court to prevent the Tribunal from proceeding with the case, the High Court not only would have the power, but also would be under a duty to issue a writ of prohibition preventing such Tribunal from exercising jurisdiction not vested in it. This is evident from a comparison of Articles 323A and 323B, with Clause (7) of Article 371D which provides for exclusion of power of superintendence of the High Court of Andhra Pradesh over the Andhra Administrative Tribunal, but there is no corresponding clause in Article 323A or 323B. Any other view would result in affecting the basic structure of the Constitution and consequently Section 46 of the Constitution 42nd Amendment Act, which introduced Articles 323A and 323B into the Constitution, itself would be liable to be struck down as affecting the basic structure of the Constitution, for, judicial review of Legislative action and maintenance of rule of law which means that all Courts and Tribunals must function within the framework of law under which it is constituted and if they exceed their jurisdiction, it is the function of the High Court within whose territorial jurisdiction they function to prevent such exceeding of jurisdiction, constitutes the basic structure of the Constitution as expounded by Supreme Court in Keshavanand Bharathi v. Union of India and reiterated in Smt. Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India .

For these reasons the learned Advocate General said that the question should be answered in the negative.

10. Sri V. Albal, learned Counsel, invited my attention to the Writ Petition filed by him, which is pending before this Court in which he has challenged the constitutional validity of Section 46 of the 42nd Amendment Act, by which Article 323A was introduced into the Constitution on the ground that the said Section was void as it affected the basic structure of the Constitution. In that Writ Petition, the petitioner therein has challenged the constitutional validity of Article 323A which enables the Parliament to provide for transfer of Writ Petitions pending before the High Courts under Article 226 of the Constitution either for enforcement of fundamental rights or for any other purpose presented by civil servants regarding recruitment and conditions of service and to exclude the jurisdiction of the High Courts to retain or entertain such petitions, affected the basic structure of the Constitution.

(2) Whether the Administrative Tribunal or its Bench is bound by the law declared by the High Court within whose territorial jurisdiction it functions, in view of the ratio in the case of East India Commercial Co. (supra).
(3) Whether Section 46 of the Constitution 42nd Amendment Act by which Articles 323A and 323B were inserted into the Constitution is itself invalid on the ground that it affected the basic structure of the Constitution in view of the ratio in the case of Keshavanand Bharati (supra).

15. Further, a contrary view would lead to astounding results. There can be no doubt that the power to decide constitutional validity of laws includes the power to decide as to whether an amendment to the Constitution is invalid on the ground that it affected the basic structure of the Constitution. Take for instance a civil servant, who is dismissed from service, while challenging the legality of the order, by which he was dismissed, on the ground that second opportunity after the findings were recorded by the Inquiring Authority was not given, chooses to challenge the constitutional validity of Section 44 of the 42nd Amendment Act on the ground that the amendment of Article 311(2) deleting the requirement to give second opportunity affects the basic structure of the Constitution, the Tribunal constituted under the Act could also decide such question, and to the exclusion of the High Courts.