TMI Blog1993 (10) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 136 with respect to the disputes or complaints referred to in Clause (1) . Clause (3) incorporating non-obstante clause mandates that the provisions of Article 323-A shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force. 2. The Administrative Tribunals' Act, 1985 (Act No. 13 of 1985) was enacted by Parliament in exercise of power under Article 323-A. The Act contains provisions for establishment of a Central Administrative Tribunal at the National level with Benches at several places and an Administrative Tribunal for each State or two or more States to exercise jurisdiction, powers and authority conferred under the Act. The tribunals at the State level are established only on receipt of a request in that behalf from any State Government (Section 4). 3. Section 6 of the Act lays down qualifications for appointment of Chairman, Vice-Chairman or other members. Under Sub-section (1), a person who is or has been a Judge of a High Court is eligible to be appointed as the Chairman. The Vice-Chairman could be a Judge of a High Court or Secretary to the Government of India with two years experien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 6th July, 1976. The coming into force of the State Reorganisation Act had resulted in the extinction of the Part-B State of Hyderabad. The employees of the erstwhile Hyderabad Government working in the territories (Telangana area) which become part of the State of Andhra Pradesh with effect from 1-11-1956 faced certain difficulties in regard to their service conditions: the region itself was backward requiring immediate development. The A.P. Administrative Tribunal Order itself was issued by the President under Article 371-D. The events leading to the enactment of Constitution (32nd Amendment) Act, 1973 by which Article 371-D was included in the Constitution are: In the year 1957, the Public Employment (Requirement as to residence) Act was enacted inter alia to provide for employment opportunities for residents of Telangana area, some of the relevant provisions were held to be unconstitutional by the Supreme Court due to a variety of causes. The working of the safeguards gave rise to dissatisfaction sometimes in the Telangana area and sometimes in the other areas of the State and even led to violent agitations. A consensus was arrived among several leaders of Andhra Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust also fail along with it since it is inextricably interlinked with it . By Clause (7), the power of the High Court to have superintendence over the Administrative Tribunal was excluded. The power of judicial review of the Supreme Court was alone retained. Clause (8) conferred power on the President to abolish, by order, the Administrative Tribunal if he was satisfied that the continued existence of the tribunal was not necessary and he was also empowered to make provisions in the order for transfer and disposal of cases pending before the tribunal before the abolition. By an order issued in GSR 920-E, the President, on 25-10-1989 in exercise of power under Clause (8) of Article 371-D, abolished the A.P. Administrative Tribunal and directed the transfer of all the cases pending before mat tribunal to the newly constituted tribunal set up on 1-11-1989 under Act No. 13 of 1985. 7. Three categories of persons have filed these writ petitions - (i) those claiming employment to the post of Village Assistant and Second Grade Teacher, (ii) State Government employees challenging orders of punishment imposed upon them in disciplinary proceedings; and (iii) State Government employees se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents on behalf of the petitioners, has contended that the Andhra Pradesh Administrative Tribunal set up under Act No. 13 of 1985 is unconstitutional as per the dicta of the Supreme Court in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 and certain other decisions. In the state of Andhra Pradesh, no Administrative tribunal can come into being by an executive order; such a tribunal can only be created by parliamentary enactment as envisaged by Article 323-A itself and that too, after reconciling Article 371-D by an appropriate amendment to the constitution. Article 323-A (2) (d) is unconstitutional since it destroys the basic structure of the Constitution; the Constitution vests judicial power of the State in the Supreme Court and the High Courts under Articles 32,226 and 227 and any interference with that power would amount to destroying the basic and essential feature of the Constitution. 13. The rule in Sampath Kumar's case, AIR 1987 SC 386 that the power of judicial review need not always be exercised by regular Courts and that the same can be exercised by an equally efficacious alternative mechanism is contrary to the dicta laid down by the earlier Constitution Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciary and no tribunal or Court set up by ordinary legislation can interpret or enforce the provisions of the Constitution and mat function must be discharged only by the Courts set up by the Constitution itself. 18 Mr. Altaf Ahmed, learned Additional Solicitior-General of India, has stated at the very outset that he is representing the Attorney-General of India to whom notice was issued by this Court requesting his assistance and that he is not representing either the Union Government or the State Government and so the contentions advanced by him, therefore, should not be taken as representing the views of either of the Government. According to him Sampath Kumar's case (4 supra) is a complete answer to all the propositions urged on behalf of the petitioners. The constitutionality of both Article 323-A and Act N o. 13 of 1985 having already been upheld in Sampath Kumar's case (4 supra), it is not open to this Court to enquire any further into this aspect. The Administrative Tribunals constituted under Act No. 13 of 1985 are empowered to review the constitutionality of any statute since they are equally efficacious alternative ; forums for the High Courts. Although judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atically - adhere to the view propounded by John Marshall, one of the framers of the American Constitution and the fourth Chief Justice of the Supreme Court of the United States that the Constitution should contain the very minimum and that minimum to be rules of law . Amongother things, we have adopted the Cabinet system of Government prevailing in the United Kingdom, the theory of separation of powers in vogue in the United States and the doctrine of judicial review enabling the higher judiciary to review legislative enactments on the touch-stone of the constitutional provisions. The justification for this, according to Sri B.N. Rau: Most modern constitutions do make full use of the experience of other countries, borrow whatever is good for them and reject whatever is unsuitable. To profit from the experience of other countries or from the vast experience of one's own is the path of wisdom. There is another advantage in borrowing not only the substance but even the language of established constitutions; for we obtain in this way, the benefit of the interpretation put upon the borrowed provisions by the Courts of the countries of their origin and we thus avoid ambiguity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration before the Privy Council in Don John Francis Douglas Liyanage and Ors. v. The Queen, 1967 (1) A.C. 259 . One of the contentions advanced before the Privy Council was that although there was no express prevision in the Ceylon Constitution with regard to vesting of judicial power in the Courts, but the Judges, having regard to the judicial oath taken by them and the pretection in regard to the service conditions afforded to them under the Constitution, were under a duty, in exercising judicial functions, to dispense even handed justice to all persons according to the laws of the country and as a necessary corollary to that, the Parliament, in the guise of exercising its legislative power, cannot usurp the judicial functions of the judges or interfere with them and this fundamental distinction flows from the constitutional position which ensures either expressly or by necessary implication, a complete separation of judicial functions. This contention found favour with the Privy Council. After examining the nature of judicial appointments the pretection afforded to Judges and the duties enjoined upon them, Lord Pearce speaking for the Judicial Committee of the Privy Council sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons like the United States and Australia, judicial power is specifically vested in Courts. In Australia, by Section 71 of the Commonwealth of Australia (Constitution) Act, 1900, judicial power is vested in the High Court of Australia (highest Federal Supreme Court) and in such other Federal Courts as Parliament may create. The definition of 'judicial power' by Griffith, C.J., in Huddart, Parker Co. v. Moorehead, 8 C.L.R. 330 at 357 was accepted by the Privy Council in Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 A.C. 275 which was in the following terms: I am of the opinion that the words 'judicial power' as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action . (pp 295-296) The Privy Council, in principle, recognised: The authorities are clear to show that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermine actual controversies arising between adverse litigants duly instituted in Courts of proper jurisdiction . 29. Jurisdiction is the authority of a Court to exercise judicial power and is, therefore, a necessary pre-condition for the exercise of judicial power when a Court hears and decides a dispute. Courts established by the Congress under Article III are Constitutional Courts which are vested with the judicial power and such Courts are different from legislative Courts created in virtue of the general right of sovereignty which exists in the Government.....The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third Article of the Constitution but is conferred by Congress in the execution of those general powers which that body possesses over the territories of the United States, Edward S. Corwin: The Constitution of the United States of America - p.533 . Clause (2) of Article VI ensures the supremacy of the Constitution by declaring that the Constitution and the laws of the United States shall be the Supreme Law of the Land. This supremacy clause recognized judicial review of legislative enactments not only in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egitimating function is inescapable - even if unintended - by product of the checking power, See: Alexander M. Bickel The Least Dangerous Branch - The Supreme Court at the Bar of Politics p.29 . 39. Constitutional Courts are the proper guardians to ensure and safeguard the enduring values, the Constitution seeks to preserve. The advantage, Courts have, is that questions of principle never carry the same aspect for them as they did for the legislature or the executive, See Alexandar M. Bickel - op. cit. p.26. Statutes, after all, deal typically with abstract or dimly foreseen problems. The Courts are concerned with the flesh and blood of an actual case. This tends to modify, perhaps to lengthen, everyone's view. It also provides an extremely salutary proving ground for all abstractions; it is conducive in a phrase of Holmes, to thinking things not words, and thus to the evolution of principle by a process that tests as it creates. Why should Courts alone be entrusted with the task of interpreting and enforcing the Constitution and not other non-judicial branches like the legislature and the executive even though they too are sworn to uphold the Constitution? Prof. Laurence H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w arises in the limiting context of cases, to be sure, but while the Court should not surmount the limitation, it must rise above the case, See: Alexander M. Bickel - op. cit. p.50 . Larger considerations transcending the immediate situation presented by the case should come into play. As observed by Justice Cordozo, judges should hold fast to kant's categorical imperative, 'Act on a maxim which thou canst will to be law Universal . Judges should refuse to sacrifice the larger and more inclusive (universal?) good to the narrower and smaller and they should look beyond the particular to the universal and shape our judgment in obedience to the fundamental interest of society......,See: B.N. Cordozo: The Nature of the Judicial Process - pp.139-140 . 41. In the United States, so far, the controversy as to whether an amendment to the Constitution was unconstitutional has not arisen, but it is a settled principle of American Constitutional Law that the functions of Article III Courts (Constitutional Courts) cannot be performed by other legislative Courts established by the Congress in exercise of its legislative power. In regard to matters not covered by Article III, the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inly is not within the doctrine of the separation and independent exercise of governmental powers contemplated by the tripartite distribution of such powers. .....As the Court of Claims has derived its power and the Judges their rights from the Acts of Congress, unrelated to Article III, the Court was not a constitutional Court and the Judge had no right to claim under Article III that his salary could not be reduced. (p. 1384). 43. In Cooper v. Aaron, 3 L.Ed. 2d. 5 = 358 U.S. 1, the Court citing the historical pronouncement of Chief Justice Marshall in Marbury v. Madison, 2 L.Ed. 2d. 60, observed: .......This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system......Any interpretation of the Constitution by the Supreme Court would become the 'supreme law of the land'. 44. The question was again exhaustively considered by the Supreme Court of the United States in one of the recent decisions - Northern Pipeline Construction Co. v. Marathon Pipe L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to decide the dispute according to law i.e., it has to consider and decide the proposal and the objections in the light of the evidence and not on grounds of policy or expediency . Further examining the nature of the power: The power in appeal to order registration of transfers has to be exercised subject to the limitations similar to those imposed upon the exercise of the power of the Court in a petition for that relief under Section 155: the restrictions which inhere the exercise of the power of the Court also apply to the exercise of the appellate power by the Central Government.....The authority cannot proceed to decide the question posed for its determination on grounds of expediency: the statute empowers the Central Government to decide the disputes arising out of the claims made by the transferor or transferee which claim is opposed by the company and by rendering a decision upon the respective contentions, the rights of the contesting parties are directly affected. Prima facie, the exercise of such authority would be judicial , (p. 1675). The opinion expressed by Mahajan, J., in The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icature but not tribunals other than such Courts. This is the reason for using both the expressions in Articles 136 and 227. By 'Courts is meant Courts of civil judicature and by tribunals, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decided such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before the tribunals and the residue goes before the ordinary Courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that Courts have an air of detachment . But this is more a matter of age and tradition and is not of the essence: Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient . (p. 1680). 48. Speaking for the majority, the concept of judicial power was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion incorporates justiciable Fundamental Rights. 52. Under Article 32 the right to move the Supreme Court for enforcement of the Fundamental Rights is itself a guaranteed Fundamental Right. For enforcement of the constitutional remedies, Clause (2) of Article 32 confers power on the Supreme Court to issue directions or orders or writs including the five well-known writs mentioned therein. Clause (3) empowers Parliament by law to confer jurisdiction on any other Court to exercise within the limits of its jurisdiction, all or any of the powers exercisable by the Supreme Court under Clause (2). Article 214 enjoins that there shall be a High Court for each State and by Article 215 every High Court is made a Court of Record and invested with all powers of such a Court including the power to punish for contempt of itself. Article 226 confers on every High Court notwithstanding anything in Article 32, power to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III and for any other purpose. Clause (4) makes it explicit that the power conferred on a High Court by Article 226 shall not be in derogation of the power conferred on the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistency. Clause (2) injuncts the State from making any law taking away or abridging the rights conferred by Part III, and any law made in contravention of that clause, shall be void to the extent of the contravention. Article 13 is, therefore, in the nature of a supremacy clause comparable to Clause (2) of Article VI of the United States Constitution. 54. Although it is now well-settled that judicial review is a basic feature of our Constitution, there was divergence of judicial opinion in the past on the question whether the Indian Constitution contains express provisions for judicial review. According to Chief Justice Ray, in Smt. Indira Nehru Gandhi (8 supra): Judicial review is one of the distinctive features of American Constitutional law. In America, equal protection of laws is based on the concept of 'due process of law'. These features are not in our Constitution. (p. 2318) 55. A diametrically opposite view was taken by Chief Justice Patanjali Sastry in State of Madras v. V.G. Rao, 1952 S.C.R. 597 at 605-606: Before proceeding to consider this question, we think it right to point out what is sometimes overlooked, that our Constitution contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But a statute enacted by a State Legislature cannot confer jurisdiction on the Supreme Court since Parliament alone can exercise such power under Article 246 (1) read with Entry 77 of List I (vide In Re Special Courts Bill, 1978), . This Legislative competence does not amount to and cannot be equated with the power to create Courts endowed with the power of judicial review. Such enactments also fall within the ambit of the power of judicial review which inheres in our Constitutional Courts - the Supreme Court and the High Courts. 56. The Supreme Courts ruling in Keshavananda Bharathi (5 supra) in which a thirteen Judge Bench has considered the constitutionality of the 24th, 25th and 29th amendments to the Constitution - marks a watershed in the constitutional jurisprudence of our Courtry. By a majority of seven against six, the Court ruled that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. On the question of implied limitations on the power of amendment under Article 368, seven Judges held that there is no such implied limitation under Article 368 while five Judges held otherwise. Jaganmohan Reddy, J., (as he then was) exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddy, J., held: A sovereign democratic republic, Parliamentary democracy and the three organs of the State certainly, in my view, constitute the basic structure . (p. 1753) According to Khanna, J., the power of amendment under Article 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. 60. The Judges who constituted the minority, expressed the view that there are no limitations on the power of Parliament to amend the Constitution. From the judgments of the majority, it is clearly discernible that judicial review is a basic feature of our Constitution. When separation of powers was held to be one of the basic features, as a corollary to that, it follows that the power of judicial review is also a basic feature. On this, Shelat and Grover, JJ,. held: The function of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the legislature conferred by the Constitution would always be a question of interpretation of the Constitution (p. 1602) They also observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely indicate that the validity of an amendment to the Constitution can be decided on more substantive grounds. But there is no warrant for such a conclusion having regard to the views expressed by the learned judge in the rest of the judgment. Beg, j., in his minority judgment has clearly expressed that the role of judiciary in examining the validity of an amendment to the Constitution is limited to seeing that the form and the manner of the amendment is properly observed . Chandrachud, J., completely agreed with the other judges who constituted the minority that the power of amendment under Article 368 is wide and unfettered reaching every part and provision of the Constitution. 61. A study of the separate but concurring judgments of the majority in Keshavananda (5 supra) shows that there is no inconsistency or incongruity in their ratiocination. The underlying theme in the reasoning is the same, although we discern different shades in the articulation. Even in case where for different reasons several judges come to the same conclusion, the decision becomes a precedent and each of the judgments contains a ratio and all the rationes can, cumulatively or separately, be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constituted majority in regard to the judgment under appeal in the Delhi Transport Corporation case must, therefore, be construed as an expression of opinion rendered by the majority with the legal consequence that it being the law declared by the Supreme Court, we are bound by it under Article 141 of the Constitution . 63. From a close examination of the views expressed by the majority in Keshavananda (5 supra) we get a clear picture that the power of Parliament under Article 368 to amend the Constitution does not extend to abrogating the basic features of the Constitution. What are integral to the Constitution cannot be destroyed by Parliament in exercise of its constituent power under Article 368. Even though the language employed in Article 368 is wide, the nature of the constituent power confided in Parliament is subject to the aforesaid limitations. It, therefore, follows that not being a sovereign body with unlimited powers, whatever powers are confided in it must be exercised within the specified limitations. What it can do in exercise of its constituent power, it cannot do in exercise of its legislative power. The power of judicial review is a basic feature of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case . The binding nature of the views expressed in the Privileges case was contested by Sri Y. Suryanarayana, learned counsel appearing for one of the respondents on the ground that the opinion expressed by the Supreme Court in exercise of its adivsory jurisdiction does not fall within the ambit of Article 141 and so, this Court is not bound by that dicta. We do not agree. It is open to the Supreme Court to overrule the view expressed by it in exercise of its advisory jurisdiction. But so long as that was not done, the same would be binding on all the Courts in India by virtue of Article 141. This legal position was laid down by a seven Judge Bench of the Supreme Court in In Re Special Courts Bill, 1978 (36 supra), a decision rendered by the Court in exercise of its advisory jurisdiction: We are inclined to the view that though it is always open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, functioning under the Constitution. 66. Another learned Judge, Chandrachud, J., (as he then was) viewed judicial review as a basic feature except in respect of matters which are specifically excluded by the Constitution, as originally enacted [Articles 31 (4), 31(6), 136(2), 227(4), 262(2) and 329(a)]. 67. That the Constitutional Courts alone are competent to enforce and interpret the Constitution was again reiterated in Minerva Mills (6 supra) in which the validity of Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 were challenged. All the five Judges of the Constitution Bench were unanimous that Section 55 which inserted Clauses (4) and (5) in Article 368, is void and unconstitutional since it is violative of the basic structure of the Constitution and beyond the amending power of Parliament. So far as Section 4 was concerned - by which Article 31(c) was amended excluding the challenge to any legislation giving effect to the policy of the State for securing all or any of the principles laid down in Part-IV - the majority struck down Section 4 taking the view that Section 4 totally abrogates Articles 14 and 19 in their application to the category of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament , (p. 1826) The learned Judge again observed in the next sentence: But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. (p. 1826) As judicial review is an integral part of our Constitutional system, its abrogation would affect the basic structure and the Supreme Court and the High Courts being the exclusive repositories of that power, the view that: the power of judicial review could be vested in effective alternative institutional mechanisms or arrangements , we think, with the greatest respect to the learned judge, does not represent the correct legal position; it is contrary to the law laid down in Keshavananda (5 supra), Privileges case(7 supra) and Indira Gandhi (8 supra), the binding precedents. In the majority judgment, there is no reference to the-effective alternative institutional machanisms or arrangements, and all the learned counsel agreed on this. 69. In S.P. Sampath Kumar (4supra), the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionally operate as a disincentive for well qualified people to accept the offer and by way of comparison referred to the pattern of Income Tax Appellate Tribunals and Customs Tribunals and concluded that when amendments are undertaken, this aspect of the matter deserves to be considered..... . It was also suggested that in every Bench there should be at least one judicial member. 71. The main challenge in the Writ Petitions was against Section 28 of the Administrative Tribunals Act by which jurisdiction of the Supreme Court under Article 32 was taken away in respect of specified service disputes. The learned Attorney -General assured the Court that the law would be amended to save the jurisdiction of the Supreme Court under Article 32 and other minor anomalies also would be set right. It was represented before the Supreme Court that the necessary amendments were brought about by an ordinance which was subsequently replaced by an Act of Parliament. The contention that judicial review is a fundamental aspect of the basic structure and the divestiture of the jurisdiction of the High Courts under Articles 226 and 227 was illegal was examined by the Supreme Court with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out alternative mechanisms for judicial review, although lengthy arguments were advanced on this by the counsel appearing for the petitioneRs. But the theory of alternative mechanism is contrary to the rationes dccidendi of the earlier larger Benches - Keshavananda (5 supra) Privileges case (7 supra) and the Constitution Bench in Indira Gandhi (8 supra) - as already indicated supra. All the three decisions laid down the principle that the Constitutional Courts - The Supreme Court and the High Courts - alone have the power of judicial review and they alone can pronounce upon the validity of laws made by Parliament and lagislatures of the States. What is note-worthy is that no reference was made to any of these three binding precedents either in Sambamurty (2 supra) or in Sampath Kumar (4 supra). Had the Supreme Court laid down the principle in these two cases with regard to alternative institutional mechanisms after noticing the above three precedents, the same would have been binding on us under Article 141 of the Constitution of India and in such a situation, no further question would arise as to whether the binding precedents have been correctly construed. When a smaller Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges was cited with approval, (p. 1946). 74. On the authority of Raghubir Singh, , as to what constitutes a precedent, we conclude that- the opinion of the Supreme Court in Sambamurthy and Santpath Kumar (2 and 4 supra) as regards alternative mechanisms for judicial review cannot be construed as binding precedents under Article 141 of the Constitution. For the same reason, the view expressed by a two-judge Bench in J.B. Chopra and Ors. v. Union of India, that the tribunals constituted under the Administrative Tribunals Act, 1985 are invested with power to deal with questions pertaining to the constitutionality or otherwise of such laws as offending Articles 14 and 16(1) of the Constitution does not become a binding precedent. 75. We, therefore, cannot accept the submission of Sri Altaf Ahmed, learned Additional Solicitor-General of India, that the ruling in Sampath Kumar (4 supra) precludes this Court from considering the questions raised by the petitioners. 76. One important aspect that deserves serious consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draw in such weighty matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a co-ordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra judicial disquisition is entitled, See: Prof Cooley: Constitutional limitations, p.163. 77. Our view gains support from the ruling in Chief Justice of A.P. v. L.V.A. Dikshitulu, in which one of the questions that fell for consideration before the Constitution Bench was: whether the officers and servants of the High Court and the members of the judicial service are outside the scope of Article 371-D of the Constitution? Article 371-D was enacted by the Constitution (32nd Amendment) Act, 1973. By Clause (3), the President is empowered to provide for the constitution of an Administrative Tribunal for the State of Andhra Pradesh to adjudicate matters relating to the service conditions of any class or classes of civil posts in any civil service of the State as may be specified in the Presidential Order. The Administrative Tribunal, as constituted by the Presidential Order, was conferred w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. It is the responsibility of the permanent executive to carry out the policies of the political executive. In the discharge of their onerous and delicate duties, members of the permanent executive must maintain objectivity and neutrality. A contented, informed and fearless civil service is a sine qua non of a good government. What acts as a chief propelling factor for the civil servants to maintain morale at a high level is their faith and confidence that because of the structural setup of the High Court, they will get justice if deprived unjustly of any of their rights in regard to their conditions of service. If the High Court's power of judicial review in relation to Articles 14 and 16 is taken away in respect of civil servants, they will not be able to maintain objectivity and neutrality in the required measure, which, in turn, will affect the quality of administration. 80. The Supreme Court and the High Courts - being the creatures of not ordinary legislation but the very Constitution itself - are the guardians of the rule of law and the survival of democracy depends upon, to a large extent, on the independence of the judiciary. The constitutional prescriptions regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for certain purposes, See: 65 L.S.D. Col. 121 - Quoted by K.I. Vibhute in Administrative Tribunals and the High Courts: A Plea for Judicial Review 0ournal of the Indian Law Institute -Vol.29 No. 4. Oct-Dec. 1987). Almost to the same effect was the view expressed by Sri K.P. Singh Deo, Minister of State, Department of Personnel and Administrative Reforms, while moving the Administrative Tribunal Bill, 1985 in the Lok Sabha: The tribunals are not going to be parallel High Courts but they will be doing the work of the High Courts as far as problems and cases pertaining to the service conditions are concerned, See: 1985 (1) L.S.D. Col.98 - Quoted by K.I. Vibhute in Administrative Tribunals and the High Courts: A Plea for Judicial Review 0ourfial of the Indian Law Institute -Vol.29 No. 4. Oct-Dec. 1987). The power of the Supreme Court under Article 32 and the jurisdiction exercised by it under Article 136, in our considered view, cannot fill the void resulting from the exclusion of the High Court's power of judicial review. Though Article 32 is a fundamental right, a public servant seeking judicial review by the summit Court has to surmount many a hurdle . Making th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t special leave to appeal from the order of any tribunal in the territory of India. It is implicit in the discretionary reserve power that it cannot be exhaustively defined. It cannot be obviously so construed as to confer a right to a party where he has none under the law, See: Bengal Chemical and Pharmaceutical Works Ltd. v. Their Employees . If the question is not of public importance, Article 136 power is not exercised by the Supreme Court, See: S.G. Chemicals and Dyes Employees Union v. Management ; State of Bombay v. Rusy . 85. The learned Additional Solicitor-General of India has endeavoured to impress upon us that the Administrative Tribunals are discharging their functions expeditiously and efficiently and, therefore, the divestiture of the power of judicial review from the High Courts would not result in any injustice to the civil servants. We are not inclined to agree. In judging the constitutionality of a provision, the fact that the substituted body created by the impugned provision is working efficiently, even if true, cannot be the basis for judicial assent. This is a well settled principle of Constitutional adjudication. As observed by the American Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedents under Article 141 of the Constitution even without Keshavananda (5 supra) Privileges (7 supra) and Indira Gandhi (8 supra): when a decision rendered by a larger Bench was interpreted subsequently by a smaller Bench of the same Court, the lower Courts in the hierarchy will have to follow the latter decision. 88. As the constituent power of Parliament under Article 368 does not extend to abrogating a basic feature of the Constitution, the power of judicial review cannot be divested from the High Courts by a Parliamentary enactment. The language of Article 323-A(2)(d) clearly shows that legislative competence is conferred on Parliament to enact a law for excluding the jurisdiction of all Courts except that of the Supreme Court under Article 136 with respect to persons appointed to public services. What is not permissible in the exercise of the constituent power is plainly prohibited in the sphere of ordinary legislaive power. As already, noticed, the actual exclusion of the power of judicial review was brought about by Section 28 of the Administrative Tribunals Act, 1985. On this ground also, the exclusion of the power of judicial review of the High Courts under Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, according to whom, the constitutionality of an amendment of the Constitution has to be judged on the touch-stone of the Constitution, as originally enacted. The initial norm, we therefore hold is what was brought into being as the Constitution by the Founding Fathers but not what was subsequently added to the basic document by - as some of the learned cousnel for the petitioners described - 'Foster Fathers! Amendments to the original Constitution by Parliament in exercise of its constituent power, as already noticed, in the opinion of the majority, should not result in abrogation of any of the basic features of the Constitution. Law attains sublimationin the Constitution. It incorporates, as in the case of ours, not only the mechanism for the governance of the country but also certain fundamental principles and enduring values the nation wanted to preserve permanently, which are held to be the basic features by the Supreme Court in Keshavananda (5 supra). These basic features, therefore, are integral to the basic norm, in which one ought to believe. It is imperative that the unconstitutionality of a constitutional provision needs to be examined from this stand point. In tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prescribed mode of amendment, has the effect of changing the personality of the Constitution. If, in its vital aspects, the Constitution is changed by Parliament in exercise of its constituent power, we think it is hardly possible to hold that what was left unto uched still retained its original personality. We may explain this with reference to a common example: If the chasis, body and engine of a motor car are substituted, can it still be said that the vehicle continued to be the old one? When the High Court is divested of its power of judicial review, under Article 226, it cannot be said that after the divestiture, the personality of the Constitution still remains unchanged: the disfiguration is too prominent to be ignored. 94. Interpreting sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution, by which power was vested in the Presiding Officer of each of the two houses of Parliament-Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha - to decide any question regarding the disqualification of a member and whose decision shall be final , his Lordship Venkatachallaiah, C.J., in Kihoto Hollohan (32 supra) after holding mat such powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Andhra Pradesh Administrative Tribunal Order, 1975 is not necessary, abolished the same with effect from 1st November, 1989 and directed that the cases pending before the Tribunal immediately prior to that date together with records shall stand transferred to the Andhra Pradesh Administrative Tribunal established under Sub-section (2) of Section 4 of Act No. 13 of 1985, for disposal in accordance with law. By another order dated 26-10-1989, the President, on receipt of request from the Government of Andhra Pradesh, established with effect from 1-11-1989, the Andhra Pradesh Administrative Tribunal under Act No. 13 of 1985. 99. The order of the President dated 25-10-1989 abolishing the Administrative Tribunal in the State of Andhra Pradesh is in the following terms: In exercise of the powers conferred by Clause (8) of Article 371-D of the Constitution, the President, being satisfied that the continued existence of the Andhra Pradesh Administrative Tribunal constituted under paragraph 3 of the Andhra Pradesh Administrative Tribunal Order, 1975, issued under Clauses (3) and (4) of the said Article, is not necessary, hereby ablishes the said Tribunal with effect from the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with each other. The principle that when there are two amendments to a statute and if there is any repugnancy between the two, the latter amendment shall have effect because it represents the latest thinking of the law making body, although is a recognised canon of interpretation, has no application in the present context. We do not find any conflict between Clause (10) of Article 371-D and Clause (3) of Article 323-A. So long as no law was enacted by Parliament under Article 323-A(2)(f) repealing or amending any order made by the President under Clause (3) of Article 371-D, there is no impediment, whatever, for the President to exercise his power under Clause (8) of Article 371-D to abolish the Administrative Tribunal. Article 371-D is concerned exclusively with the State of Andhra Pradesh and as there is no provision in the Administrative Tribunals Act, 1985 (13 of 1985) in regard to repeal or amendment of any order made by the President under Clause (3) of Article 371-D, the inevitable legal consequence is that there is no embargo on the President to invoke the power vested in him under Clause (8) of Article 371-D for abolishing tine Tribunal. We think, the two provisions have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal may proceed to deal with such cases or other proceedings...... . We, therefore, hold that the Andhra Pradesh Administrative Tribunal Order, 1975 stood abrogated with effect from 1-11-1989 and no legal device or technic can breathe life into it. 102. We do not think it necessary to consider the argument advanced for the petitioners that Act 13 of 1985 is unconstitutional since it has not incorporated the Sampath Kumnar (4 supra) prescriptions regarding qualifications, method of appointment, tenure and other service conditions of the Chairman and members of the tribunals constituted under the Act. Two reasons prompt us to say so: (i) our declaration that the power of judicial review of the High Court under Article 226 cannot be excluded by Article 323-A(2)(d) and Section 28 of the Administrative Tribunals Act, 1985; and (ii) neither the Andhra Pradesh Administrative Tribunal nor its Chairman or members are parties to these Writ Petitions and in their absence, any question affecting their interests cannot be adjudicated. 103. In the result, we declare that Article 323-A(2)(d) of the Constitution of India is unconstitutional to the extent it empowers Parliament, by law, to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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