Indian Kanoon - Search engine for Indian Law

No constitutional objection to the validity of Clause (3) of Article 371-D could possibly be taken since we have already held in S.P. Sampath Kumar v. Union of India and Ors., [1987] 1 S.C.C. 124, decided on 9th December, 1986 that judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution, but Parliament can certainly without in any way violating the basic structure doctrine amend the Constitution so as to set up an effective alternative institutional mechanism or arrangement for judicial review. One of us (Bhagwati, CJ.) pointed out in the judgment delivered in that case that: "the basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is not less efficacious than the High Court." We summarised the consti- tutional position in regard to the power of Parliament to amend the Constitution with a view to taking up the juris- diction of the High Court in the following words:-

" ..... if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institu- tional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential condition is fulfilled, namely, that the alternative insti- tutional mechanism or authority set up by the parliamentary amendment is no less effective than the High Court."

Parliament was therefore competent by enacting Clause (3) of Article 371-D to provide for setting up an Administrative Tribunal and excluding the jurisdiction of the High Court in regard to the matters coming within the jurisdiction of the Administrative Tribunal, so long as the Administrative Tribunal was not less effective or efficacious than the High Court in so far as the power of judicial review is con- cerned. The constitutional validity of Clause (3) of Article 371-D could not therefore be successfully assailed on the ground that it excluded the jurisdiction of the High Court in regard to certain specified service matters and vested it in the Administrative Tribunal.

It is obvious from what we have stated above that this power of modifying or annulling an order of the Administra- tive Tribunal conferred on the State Government under the proviso to Clause (5) is violative of the rule of law which is clearly a basic and essential feature of the Constitu- tion. It is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by over-tiding the decision given against it, it would sound the death/knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet get away with it. The Proviso to Clause (5) of Article 371-D is therefore clearly violative of the basic structure doctrine. The question of constitutional validity of the Proviso to Article 37 I-D can also be looked at from another angle. Clause (3) of Article 37 I-D empowers the President by order to provide for the setting up of the Administrative Tribunal and vesting in the Administrative Tribunal the jurisdiction of the High Court in respect of the specified service mat- ters. This constitutional amendment authorising exclusion of the jurisdiction of the High Court and vesting of such jurisdiction in the Administrative Tribunal postulates for its validity that the Administrative Tribunal must be as effective an institutional mechanism or authority for judi- cial review as the High Court. If the Administrative Tribu- nal is less effective and efficacious than the High Court in the matter of judicial review in respect of the specified service matters, the constitutional amendment would fall foul of the basic structure doctrine. Now it can hardly be disputed that the provision enacted in the Proviso to Clause (5) of Article 371-D deprives the Administrative Tribunal of its effectiveness and efficacy because it enables the State Government which is a party to the litigation before the Administrative Tribunal to over-fide the decision given by the Administrative Tribunal. The power of judicial review vested in the High Court under Articles 226 and 227 does not suffer from any such infirmity because whatever the High Court decides is binding on the State Government, subject only to a right of appeal to a court of superior jurisdiction and the State Government cannot, for any reason, set at naught the deci- sion of the High Court. But the power of judicial review conferred on the Administrative Tribunal is by reason of the Proviso to Clause (5) of Article 371-D subject to the veto of the State Government and it is not at all effective or efficacious because the State Government can defeat its exercise by just passing an order modifying or nullifying the decision of the Administrative Tribunal. The Proviso to Clause (5) of Article 371-D has the effect of emasculating the striking power of the Administrative Tribunal and the State Government can make the decision of the Administrative Tribunal impotent and sterile. It is therefore obvious that the Proviso to Clause (5) of Article 371-D renders the Administrative Tribunal a much less effective and effica- cious instiutional mechanism or authority for judicial review than the High Court in respect of the specified service matters. In the circumstances the conclusion is inescapable that the proviso to Clause (5) of Article 371-D by which power has been conferred on the State Government to modify or annul the final order of the Administrative Tribu- nal is violative of the basic structure doctrine since it is that which makes the Administrative Tribunal a less effec- tive and efficacious institutional mechanism or authority for judicial review and it is only by striking down that provision as being outside the constitutent power of Parlia- ment that Clauses (3) to (8) of Article 371-D can be sus- tained. We must therefore hold that the Proviso to Clause (5) of Article 371-D is unconstitutional as being ultra vires the amending power of Parliament and if the Proviso goes, the main part of clause (5) must also fall alongwith it, since it is closely inter-related with the proviso and cannot have any rationable for its existence apart from the Proviso. The main part of clause (5) of Article 37 I-D would, therefore, also have to be declared unconstitutional and void.