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Report No. 272

Chapter - VI

Power of Judicial Review under the Constitution

6.1. Power of judicial review has consistently been held to be a basic feature of the Constitution. Basic features forming core structure of the Constitution cannot be affected otherwise, even the Constitutional amendments would be liable to be struck down. The Constitution confers on the judiciary the power of judicial review which is exclusive in nature. Under the constitution, it is the responsibility of judiciary, to interpret the Constitution and the laws made thereunder. Therefore, defining the contours of constitution of the Tribunals and the judicial control over them is necessary before undertaking any exercise of enacting a law.

6.2. The term 'quasi-judicial' is commonly used to describe certain kinds of powers exercised by ministers or government departments but subject to a degree of judicial control on the manner of their exercise by way of judicial review. It is applied to powers which can be exercised only when certain facts have been found to exist, and it indicates that these facts must be found in conformity with a code of rules called 'natural justice'. According to Sir Ivor Jennings, "the term 'quasi-judicial' appears to regard it as one of a number of pseudo-analytical expressions derived from false premises as to the separation of powers."86

86 Wade, H.W.R., "Quasi-Judicial and its Background" 2 CLJ 216 (1949).

6.3. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973SC 1461. the Supreme Court held that, in order to establish that a constitutional provision is an essential feature it must be shown that the same is fundamental and binds the amending powers of the Parliament. The judicial review is a part of the basic structure of the Constitution and its curtailment in any manner would amount to violation of the basic structure of the Constitution.

6.4. In Indira Nehru Gandhi vs. Raj Narayan, AIR 1975 SC 1590 the Supreme Court struck down clause (4) of Article 329-A which was inserted by Constitution (Thirty-ninth Amendment) Act, 1975 to validate the election with retrospective effect on the ground that "it violated the free and fair elections which was an essential postulate of democracy forming part of basic structure of the Constitution."

6.5. In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 178989 it was held that amendment of a single Article may have the potential to destroy the basic structure of the Constitution depending upon the nature and the context of the abrogation of that Article, if the purpose sought to be achieved by such Article constitutes the quintessential of the basic structure of the Constitution. The Court reiterated the importance of power of judicial review by observing:

89 See also Kuldip Nayar v. Union of India AIR 2006 SC 3127; and M. Nagaraj Waman Rao v. Union of India, (1981) 2 SCC 362.

'judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.'

6.6. In I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 the petitioner had challenged the various Central and State laws put in the Ninth Schedule. The nine-Judge Bench held that "validity of any law shall be open to challenge on the ground that it destroys or damages the basic structure of Constitution". The Court further held:

'equality, rule of law, judicial review and separation of powers, form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.'

6.7 In Madras Bar Association Case (Supra) the five-Judge Bench held:

'The "basic structure" of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.'

6.8 In Supreme Court Advocates on Record Association v. Union of India, AIR 2016 SC 117 the Court held that, "clause (d) of Article 124-A(1) which provides for the inclusion of two "eminent persons" as Members of the National Judicial Appointments Commission Act, 2014 was ultra vires the Constitution, for a variety of reasons. The same has also been held as violative of the "basic structure" of the Constitution.

6.9 The principle of separation of powers as enshrined in Article 50 of the Constitution has to be seen in the light of control over such Tribunals by the judiciary and the power of adjudication by the High Court or Supreme Court in the exercise of their writ jurisdiction and the power of superintendence over Tribunals by the High Court under Article 227 of the Constitution of India. For instance, for a specific State subject under List II can be an adjudicatory Tribunal created by the State. Thus, the Parliament cannot create a Tribunal for a subject matter which is exclusively within List II. And for adjudicating a dispute arising from the said subject matter, it is only the State Legislature who can create a Tribunal.

6.10 In S. P. Sampath Kumar Case (Supra), the Constitutional validity of the Administrative Tribunals Act, 1985 was challenged on the ground of exclusion of power of judicial review, of the Supreme Court under Article 32 and the High Courts under Articles 226 and 227 of the Constitution. Section 6 of the Act, which enumerated the qualifications of a Chairman, Vice Chairman, judicial members and administrative members, on the basis of the composition and mode of appointment was also challenged.

The Court held that section 6(c) was liable to be struck down on the ground that the officers of Secretary level cannot be the members of the Tribunal performing judicial functions. However, the Court held that section 28 which excluded the jurisdiction of the High Courts under Articles 226/227 was not unconstitutional. It was also ruled that this section does not totally bar the judicial review.

6.11 The Court further held that the Administrative Tribunals under the 1985 Act are substitutes to the High Courts and deal with all service matters involving Articles 14, 15 and 16, and advised to change the qualifications of Chairman of the Tribunal. As a result, the Act was amended in 1987. The Administrative Tribunals (Amendment) Act, 1987 section 6(1)(c) of the said Act was quashed and section 6(7) providing for appointment of Chairman, Vice-Chairman and members of the Tribunal in consultation with the Chief Justice of India was substituted.

6.12 The Supreme Court again examined the scope of judicial review in Tata Cellular v. Union of India, (1994) 6 SCC 651 wherein a tender awarded by a public authority for carrying out certain work was under challenge. The Court held that:

'Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justifiable but need to remedy any unfairness. Such an unfairness is set right by judicial review.'

6.13 In Sampath Kumar case (Supra), it was also observed that, if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court, there must be a permanent or a Circuit Bench of the Administrative Tribunal at every place where there is a seat of the High Court. In J.B. Chopra v. Union of India, AIR 1987 SC 357 the Court relying on the same decision held that the Central Administrative Tribunal constituted under the Act has the authority and the jurisdiction to strike down a rule framed by the President of India under the proviso to Article 309 of the Constitution being violative of Articles 14 and 16(1) of the Constitution. The Court observed:

'the Administrative Tribunal being a substitute of the High Court had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all questions pertaining to the constitutional validity or otherwise of such laws as offending Articles 14 and 16(1) of the Constitution.'

6.14 In M.B. Majumdar v. Union of India, AIR 1990 SC 2263 the Court relied upon the decision in Sampath Kumar (Supra), wherein it was held that the Tribunals under the Act had been equated with the High Courts only to the extent that the former were to act as substitutes for the latter in adjudicating service matters; therefore, parity cannot be sought for all other purposes and held that equation of the Tribunal with the High Court was only for the purpose of adjudication of disputes relating to service matters and not in respect of their service conditions.

6.15 In R. K. Jain v. Union of India, AIR 1993 SC1769 the Supreme Court expressed it anguish over the ineffectiveness of administrative tribunals in exercising high power of judicial review and emphasised on the need to take remedial steps to make them capable of dispensing effective, inexpensive and satisfactory justice. The court also considered whether the Tribunals could be an effective substitute of the High Courts with reference to the powers of the High Courts under Article 226 and 227, referred and relied upon it's earlier decisions in the cases of M. B. Majumder (Supra) and J.B. Chopra (Supra) and held that the Tribunals are not the effective substitutes of the High Courts.

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