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12. It has become imperative to deal the aspect of removal of judicial review on basic structure of the Constitution.

DOES REMOVAL OF JUDICIAL REVIEW, WHICH IS THE CONCEPT BEHIND SECTION 321 Cr.P.C., VIOLATE THE BASIC STRUCTURE?

13. While section 321 of Cr.P.C. itself does not apply, the principle of judicial review embodied therein does. In other words, section 321 of Cr.P.C. is a codified version of judicial review. At the trial court level, section 321 of Cr.P.C. ensures that the judiciary makes the final decision by approving the public prosecutor's decision to withdraw a case. Even if section 321 of Cr.P.C. is made inapplicable by a special law like POTA (Repeal) 2004 or POTA 2002, judicial review still applies. Section 321 of Cr.P.C. is a general provision that can be subjected to special laws.

14. On the other hand, judicial review should not suffer the same fate. A violation of judicial review is another way of saying that the separation of powers between the principal three organs of the State have been violated. Judicial review forms part of the basic structure of the Constitution. And when judicial review is removed - even at the trial court level - the question becomes one of degree : has the basic structure been destroyed? Our short answer is that because POTA (Repeal) 2004 has not removed judicial review under Article 226 or Article 136, the basic structure has not been destroyed. Given the gravity of this question, I deem it necessary to explain my reasoning.

A Constitution Bench in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 referred to and approved the above judgment.

SEPARATION OF POWERS IS PART OF THE BASIC STRUCTURE:

18. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Another (1973) 4 SCC 225, the Court opined that separation of powers is a part of the basic structure of the Constitution of India. (1973) 4 SCC 225, per Sikri, C.J., as paras 292 and 293, per Shelat and Grover JJ at para 582 - "Demarcation of power between the legislature, the Executive and the Judiciary".

"...So long as Clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati's case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and  indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged, contrary to the decision of this Court in Kesavananda Bharati's case. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers, I shall immediately proceed to state the reasons why I think that these two features form part of the basic structure of the Constitution."