Indian Kanoon - Search engine for Indian Law

9. In reply to the submissions of the respondent, learned Senior Counsel Mr. A.V. Anthurkar advanced following submissions.

a) The powers of judicial review under Article 226 and 227 of the Constitution of India forms integral part of basic structure of the constitution. It cannot be taken away either by the Act or by the judgment of the Supreme Court, be that of Constitutional Bench.

b) The judgment relied upon by the respondent in the matter of M/s. S.B.P and Co. Vs. M/s. Patel Engineering Ltd. And Anr 2005 AIR SCW 5932 is not a ratio for the proposition that jurisdiction of judicial review of the High Court is excluded.

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have], or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.

16. In the matter of S.V. Sampath Kumar (supra), Supreme Court held that though judicial review is a basic feature of the constitution the vesting of power of judicial review in an 11 1039.WP-9868-2024.doc alternative constitutional mechanism after taking it away from the High Courts would not violate the basic structure so long as it was ensured that alternative mechanism was effective and real substitute for the High Court. Later on the Division Bench found that Sampath Kumar (supra) case would need fresh look by larger Bench over all the issues. Hence, the matter reached Constitutional Bench.The arguments were advanced for the proposition that the exclusion of jurisdiction of powers of the High Court under Article 226 and 227 of the Constitution of India violates the basic structure of the Constitution.

17. Learned Senior Counsel adverted our attention to following paragraphs of L. Chandra kumar vs. Union of India and others (supra)

76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and into the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The Doctrine of basic structure was evolved in Kesvananda Bharati's case. However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat & Grover, JJ., Hegde & Mukherjee, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi's case, Chandrachud, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country, (supra at pp. 751-752). This approach was specifically adopted by Bhagwati, J. in Minerva Mill's case (supra at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law.

99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.