Document Fragment View

Matching Fragments

In paragraph 29 of the same judgment the Supreme Court noticed the judgment of the Constitution Bench in the case of L. Chandra Kumar (supra) and observed that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226/227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, what to speak of a parliamentary legislation. The judgment also approves the observations of a Division Bench of the Delhi High Court in the case of Govind v. State (Govt. of NCT of Delhi) reported in (2003) 6 ILD 468, which were as follows :-

"29. ... ... ... "The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution. ... ..."

In our opinion, the ratio of law laid down in the judgment of the Supreme Court in the case of Surya Dev Rai (supra) has been wholly misconstrued by the Division Bench. The judgment in Surya Dev Rai (supra) does not lay down the proposition that a writ petition under Article 226 of the Constitution would not be maintainable against an order passed by a Tribunal exercising judicial functions. Rather the Supreme Court emphatically lays down that the proceedings of judicial Courts, subordinate to the High Court can also be subjected to certiorari.

We are unable to agree with the aforesaid conclusion of the Division Bench. The law has been consistently laid down by the Supreme Court that the power of the High Court to exercise jurisdiction under Article 226/227 of the Constitution of India forms a part of the basic structure of the Constitution. In our opinion, the aforesaid jurisdiction, therefore, cannot be curtailed by any provision contained in any enactment of legislature or any rules framed by the High Court in exercise of its rules making powers under Article 225 of the Constitution of India. These rules are framed for the administrative convenience of the functioning of the High Court and for distribution of the work among the Judges. These rules enable the Chief Justice to allocate judicial as well as administrative functions to individual Judges. The High Court may be divided into Single Bench, Division Bench or a Larger Bench as the Chief Justice deems fit, in his/her discretion. These Rules cannot be interpreted in such a way as to curtail the jurisdiction of the High Court under Articles 226/227 which is conferred by the Constitution of India itself. On the basis of the roster framed by the Chief Justice specific jurisdiction may be exercised by particular Single Benches or Division Benches of the High Court. Beyond that, there can be no curtailment of the jurisdiction conferred on the High Court under Article 226 of the Constitution of India.

We are of the considered opinion that the observations of the Division Bench in this regard are inconsistent with the law settled by the Supreme Court in a catena of judgments. In L. Chandra Kumar (supra) the Supreme Court has clearly laid down that there can be no curtailment of the powers of the High Court under Article 226/227 of the Constitution of India. The judgment also does not lay down the proposition that a combined writ petition under Article 226/227 would only be maintainable to challenge the orders passed by the Tribunals established under Article 323A or Article 323B of the Constitution. The Supreme Court in the aforesaid case came to the conclusion that even power conferred on the Parliament under Article 323A and Article 323B for establishment of Tribunals cannot have the effect of denuding the High Court of its powers under Article 226/227 of the Constitution of India. It was concluded that the power of judicial review over legislative action vested in the High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. This power of the High Courts to test the constitutional validity of legislations can never be ousted or excluded. It is also held that the Tribunals created under ordinary legislations cannot supplant the powers of the High Court, under Articles 226/227 of the Constitution, though they can play a supplemental role.