TaxTMI 
TaxTMI 
1993 (10) TMI 364
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....cept the jurisdiction of the Supreme Court under Article 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 Secreta....
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....ctioning in the State of Andhra Pradesh with effect 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 conse....
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....espect of specified service matters and if the proviso goes, the main part of Clause (5) must 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....
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....me up before us. 12. Sri S. Ramachander Rao, learned Counsel who advanced leading arguments 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 a....
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....as highlighted the point that the Constitution ensures independence of the judiciary 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 e....
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....ct as possible and intended to endure for ages and they did not - very pragmatically - 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 borrowe....
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....or legalising the imprisonment of the accused while they were awaiting trial, came up for consideration 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 dut....
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....ion. In their Lordships view the Acts were ultra vires and invalid". (pp 291-292). 25. In some of the Constitutions 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....
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.... 2 and 3 of Article III. The United States Supreme Court in Muskrat v. United States, 219 U.S. 346 held: "Judicial power implies the right to determine 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 Constituti....
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....s not transgressed the constitutional limitations. Both legitimating function and checking function are implicit in the exercise of the power of judicial review. As observed by Prof. Alexander M. Bickel: "legitimating 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 e....
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....tand aside from the controversies of the day and free from the "deflecting pressures of the ego" and the values the Court vindicates "must have a content grater than any single concern of the moment....The function of judicial review 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 princi....
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.......a power definitely assigned by the Constitution to one department can neither be surrendered nor delegated by that department, nor vested by statute in another department or agency:....a power which may be devolved at the will of Congress upon any of the three departments plainly 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 inter....
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....al to the Central Government. Speaking for the majority, Shah, J., (as he then was) held that, in principle, there was no difference between the exercise of power by the Court under Section 155 and the appellate power conferred on the Central Government under Section 111. The Central Government was required 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....
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....al power of the State but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts. When the Constitution speaks of 'Courts' in Articles 136, 227 or 228 or in Articles 233 to 237 or in the lists, it contemplates Courts of civil judicature 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 establ....
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....ks of constitution and organization of High Courts with certain exceptions mentioned therein. Entry 79 speaks of extension and exclusion of the jurisdiction of High Courts in relation to any Union Territory. Entry 65 of List II relates to the jurisdiction and power of all Courts except the Supreme Court, with respect to any of the matters covered by that List. Part III of the Constitution 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 pu....
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.... to exercise this power of judicial review. Any doubts in this regard will be dispelled by an examination of Article 13 found in Part III comprising the Fundamental Rights. Clause (1) of Article 13, in unequivocal terms, declares that all laws in force immediately before me commencement of the Constitution in so far as they are inconsistent with the provisions of Part III shall be void, to the extent of such inconsistency. 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 Amer....
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....rticle 228 is a clear pointer in this regard. It would therefore, appear to be plain that every organ in which judicial power is vested, cannot exercise the power of judicial review. A law enacted by Parliament by virtue of its legislative competence (Articles 245 to 248 and Entries 77, 78 of List I and Entries 45 and 46 of List III) can confer original, appellate or revisional jurisdictions on the Supreme Court or the High Court. 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 constitut....
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....f the Country. (4) Essential freedoms secured to the citizens, and the mandate given to the Parliament to build a welfare State. 59. Stating that what are the essential features or basic elements comprising the structure of our Constitution need not be considered in detail since they will arise for consideration in any concrete case where they were alleged to have been abrogated, Jaganmohan Reddy, 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 r....
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....ard to procedural aspects, the validity of an amendment to the Constitution cannot be tested by any other yard-stick. However, the two sentences immediately following the above - "Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Constitution and an amendment of the Constitution can be ultra vires just as an ordinary law can be" - suggestively 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 concu....
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....e judgment. Now we know that each of them considers the matter separately, and they then consider the matter jointly, interchanging their judgments, so that every one of them has seen the judgments of the others. If they mean to differ in their view, they say so openly when they come to deliver their judgments, and if they do not do this, it must be taken that each of them agrees with the judgments of the others". Non-Expression of views by the other learned judges who 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....
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....he constitutional Courts to exercise (the jurisdiction vested in them by the Constitution. The existence of such jurisdiction is inter-linked with the existence of the right in the citizen. Highlighting this concept, the learned Chief Justice observed: "The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered 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 dict....
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....t as the real interpreters of the 'Real Will' of the people......and that they perform an essentially judicial function." (p. 538-539). As to where the judicial power of the State resides, the learned judge had no doubts. In emphatic terms he declared: "The Constitution undoubtedly specifically vests such power, that is to say, power which can properly be described as "judicial power& " only in the Supreme Court and in the High Courts and not in any other bodies or authorities whether executive or legislative, 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 inserte....
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....eview to determine the legality of the executive action and the validity of the legislation passed by the legislature.......this power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution". (p. 1825) While stating that: "The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illuson and a promise of unreality". (p. 1825-1826) The learned Judge added a limitation: "Of course, when I say this, I 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 ....
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.... the Chief Justice of India, ordinarily, be accepted unless there are cogent reasons for not accepting the same. Another suggestion was made that District Judge or an advocate who is qualified to be a Judge of the High Court should be regarded as eligible for being the Vice-Chairman of the Administrative Tribunal and if, to such an effect amendment was not carried out, the impugned Act would have to be declared to be invalid" since it cannot be severed from the other provisions. 70. Ranganatha Misra, J., (as he then was) observed that the five year term for the Chairman, Vice-Chairman and members "may occasionally 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 ....
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....ouse of Representatives vetoing the Court of Appeals Order of suspension of deportation of an alien appears to be a parallel analogy. 73. In view of the unanimous judgment in Sambamurty (2 supra) - as to Parliament's power to establish alternative institutional mechanisms to exercise the power of judicial review - we think it quite unnecessary to go into the questions as to what is the' effect of the majority judgment in Minerva Mills (6 supra)in not referring to this aspect and whether it was necessary for Bhagavathi, J., (as he then was), on the contentions advanced in Minerva Mills (6 supra) to express any views about 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 ....
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....h of Judges is obliged to follow the law laid down by a Division Bench of a larger number of Judges and answered the same: "It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges." (p. 1945) The statement of law in Mattulal v. Radhelal, that if the view expressed by two different Division Benches could not be reconciled, 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 v....
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....not challenged and no plea was raised, the Court had taken up the vires of the impugned enactment. Such assumptions are plainly forbidden. While deciding a case, the constitutional Courts will not try either to discover or discuss a constitutional question if it is not raised. The position in the American constitutional law is that unless the constitutionality of a statute was directly at issue, the Court would not go into that question. Citing an American case in this regard, Prof. Cooley says: "While the Courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to 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 ....
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....er the scheme of our Constitution, no High Court has power to examine the constitutionality of an amendment of the Constitution hardly merits any serious consideration. As a constitutional Court, the High Court is undoubtedly vested with the power of judicial review to examine the validity of the constituent power of Parliament, See: Raghubir Singh - 41 supra at p.1938. Indira Gandhi - 8 supra at p.2394. 79. Civil servants - both at the national level and the State level - play a vital role in our democratic setup. They constitute the permanent executive and to a large extent, their advice weighs with the political executive in laying down policies for the common good of the people. 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 Cour....
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.... Articles 323-A and 323-B - was inserted by Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from 3-1-1977. The intention of enactment of Article 323-A, it would appear, was not to empower the tribunals to pronounce upon the constitutionality of legislative enactments. Moving the Constitution amendment bill in the Lok Sabha, the then Law Minister -H.R. Gokhale - observed: "It is not correct to say that a tribunal will have the power to issue writs. That power is not given to the tribunal because the power to issue writs is not the power under the conditions of service of the employees. That was an extraordinary remedy ...... given by the Constitution 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 th....
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....at the High Court level, and other levels. Faith must be inspired in the hierarchy of Courts and the institution as a whole. Not only in this Court alone. And this objective can be achieved only by this Court showing trust in the High Court by directing the litigants to approach the High Court in the first instance." (p.1160) 84. The aggrieved civil servant cannot approach the Supreme Court as a matter of right impugning an order of the tribunal. The power conferred on the Supreme Court under Article 136 is a discretionary one. This position admits of no doubt. "Article 136 of the Constitution does not confer a right of appeal to any party from the decision of any tribunal but it confers a discretionary power on the Supreme Court to grant 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 ....
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....umdar (47 supra), another learned judge - his Lordship Justice K. Ramaswamy - observed: ".....what was meant by this Court in Sampath Kumar's ratio is that the Tribunals when exercise the power and functions, the Act created institutional alternative mechanism or authority to adjudicate the service disputations ....... This Court did not appear to have meant that the Tribunals are substitutes of the High Court under Articles 226 and 227 of the Constitution. J.B. Chopra v. Union of India - merely followed the ratio of Sampath Kumar." 87. R.K. Jain (55 supra), from the aforesaid observations made by their Lordships, in our comprehension, would appear to weaken the authority, to a large extent, of Sambamurthy and Sampath Kumar (2 and 4 supra) as binding precedents 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 fea....
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....n itself, although the question whether the amendment has been made in the manner and form and within the power conferred by the Constitution is always justiciable." (p.1911). These observations, no doubt, would show that an amendment to the Constitution is immune from challenge in a Court of a law except as regards compliance with procedural prescriptions - mode of amendment. It is in that context, evidently, the learned Judge made the further observations: "Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution its validity from the Constitution. An amendment of the Constitution can be ultra vires just as an ordinary law can be." (p.1911) This view did not find favour with the majority, 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 Fath....
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....ucture or the essential features of the Constitution. Another learned Judge- his Lordship Mohan, J.,-in his separate but concurring opinion, expressed the view: "......the question to be addressed is, can it (the Constitution) maintain its identity if something quite different is substituted? The personality of the Constitution must remain unchanged." It was not necessary that the effect of abrogation of a basic feature should be instant or immediate. The test to be applied is "whether the amendment contravenes or runs counter to an imperative rule or postulate, which is an integral part of the Constitution." 93. The axiomatic rule that emerges in testing the validity of the constituent power of Parliamentis: whether the impugned provision, even though complies with the 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 engin....
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....urisdiction to deal with service matters of specified classes of employees to the exclusion of the jurisdiction, powers and authority of all Courts except the Supreme Court. This exclusion of the jurisdiction was based upon clause (7) of Article 371-D. The Tribunal was actually constituted by a consequential order issued by the President in GSR 443-E dated 6-7-1976 by which the Chairman and two members were appointed. Clause (8) of Article 371-D confers power on the President to abolish the Administrative Tribunal and make consequential provisions for transfer and disposal of cases pending before the Tribunal immediately before the abolition. In exercise of the power conferred under Clause (8), the President, on being satisfied that the continued existence of the Tribunal constituted under paragraph 3 of 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 dis....
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....en though such a non-obstante clause is also incorporated in Clause (10) of Article 371-D, the former shall prevail over the latter since it represents the latest will of the law making body. The moment the Andhra Pradesh Administrative Tribunal constituted under Article 371-D was abolished, the injunction in Clause (7) of Article 371-D excluding the jurisdiction of the High Court in relation to the Tribunal automatically becomes inoperative, with the necessary consqeunce of revival of the jurisdiction of the High Court in relation to service conditions of State Government employees with effect from 1-11-1989. 101. We are not inclined to agree with these submissions. The doctrine of repugnancy has no role to play in the interpretation of two different provisions of the Constitution which are seemingly in conflict 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) o....
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....ce 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" and, therefore, it will be totally unrealistic to hold, as the learned counsel for the petitioners want us to do, that even after the abolition of the Tribunal, the 1975 Andhra Pradesh Administrative Tribunal Order constituting the Administrative Tribunal, would survive. The order of abolition does not give any scope for such an interpretation. On the other hand, it clearly mentions that after the abolition, all the cases pending before the tribunal "shall stand transferred on that date to the Andhra Pradesh Administrative Tribunal established under Sub-section (2) of Section 4 of the Administrative Tribunals Act, 1985 an the said tribunal 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 petitio....