# Santosh Sharma v. State of U.P. & Anr

- **Citation:** (2015) 2 ILRA 543
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-18
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-sharma-v-state-of-u-p-anr-43244
- **Pages:** 34

## Headnote

(A)Constitution of India, Art. 32, 226,227Power of superintendence-against final
order
by
Army
Tribunal-in
spite
of
statutory
remedy to appeal-subject to
leave granted by Tribunal under Section 30
of Act-held-Power of judicial review-a
constitutional provision-can not be taken
away on special enactments.
Held: Para-73(ii)
The power of judicial review of the
Supreme Court and of the High Courts is
firmly entrenched as a basic feature of the
Constitution
which
lies
beyond
the
amending power. Even more so, ordinary
legislation
cannot
abrogate
the
constitutional power of judicial review that
is vested in the Supreme Court under Article
32 and in the High Courts under Article 226;
(B) Armed Force Tribunal Act 2007Jurisdiction-to decide the vires of parent
statute-exclusively
vests
with
High
Court-Tribunal can entertain and decide
other cases relating to services of
member of Arm force.
Held: Para-33
The Tribunals shall not entertain any
question regarding the vires of their
parent statutes following the well settled
principle that a Tribunal which is a
creature of an Act cannot declare that
very Act to be unconstitutional. In such
cases alone, the High Court could be
approached directly. Consequently, in all
other cases, the Tribunals will continue
as the only courts of first instance in
respect of the areas of law for which
they have been constituted:
Case Law discussed:
2012 (3) ADJ 655; (1997) 3 SCC 261; (1982) 3
SCC 140; (1973) 4 SCC 225; (1993) 4 SCC
119; (1987) 1 SCC 124; (1993) 21 An. WR
484:(1994) 1 APLJ 1 (FB); (1998) 5 SCC 468;
(2003) 6 SCC 581; (2010) 4 SCC 554; (2010)
11 SCC 1; (2011) 14 SCC 337; (2012) 4 SCC
761; (2012) 11 SCC 224; (2013) 1 SCC 745;
[ILR (2011) IV Delhi]; [2013 (2) MPLJ 212];
(2007) 2 SCC 1; (2012) 8 SCC 524.

## Text

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2 All] Santosh Sharma Vs. State of U.P. & Anr.
543
practitioner, arises when a person arrested in
connection with a cognizable offence is first
produced
before
a
magistrate.
We,
accordingly, hold that it is the duty and
obligation of the magistrate before whom a
person accused of committing a cognizable
offence is first produced to make him fully
aware that it is his right to consult and be
defended by a legal practitioner and, in case
he has no means to engage a lawyer of his
choice, that one would be provided to him
from legal aid at the expense of the State.
The right flows from Articles 21 and 22(1) of
the Constitution and needs to be strictly
enforced. We, accordingly, direct all the
magistrates in the country to faithfully
discharge the aforesaid duty and obligation
and further make it clear that any failure to
fully discharge the duty would amount to
dereliction in duty and would make the
concerned magistrate liable to departmental
proceedings.
477. Every accused unrepresented by a
lawyer has to be provided a lawyer at the
commencement of the trial, engaged to
represent him during the entire course of the
trial.Even if the accused does not ask for a
lawyer or he remains silent, it is the
Constitutional duty of the court to provide
him with a lawyer before commencing the
trial. Unless the accused voluntarily makes
an informed decision and tells the court, in
clear and unambiguous words, that he does
not want the assistance of any lawyer and
would rather defend himself personally, the
obligation to provide him with a lawyer at
the commencement of the trial is absolute,
and failure to do so would vitiate the trial and
the resultant conviction and sentence, if any,
given to the accused (see Suk Das v. UT of
Arunachal Pradesh 97)."
7. Having considered the observations
of the apex court, this Court is of the view
that service of a lawyer is of paramount
importance to an accused. If, for some reason,
the counsel for the accused fails to appear,
then the court must offer service of an amicus
curiae to the accused. It is very difficult to
imagine as to how, in ordinary circumstances,
an accused could cross-examine a witness to
discredit his evidence. The right to crossexamine the prosecution witnesses is a very
valuable right of an accused and should not
mechanically or casually be forfeited unless
there are compelling reasons justifying the
same. Of course, the court may forfeit the
right to cross examine where, for no cogent
reason, either the counsel or the accused
refuses to cross-examine the witness offered
for cross-examination.
8. In the instant case, admittedly, on
the date when those prosecution witnesses
were examined, the lawyers were on
strike and the counsel for the applicant
could not appear to cross-examine the
witnesses therefore, either the Court
should
have
deferred
the
crossexamination to another date or should
have offered services of an amicus curiae
to assist the applicant for such purpose.
Only when the applicant had refused to
avail of the services or had consciously
chosen
not
to
cross-examine
those
witnesses, then the right to cross-examine
those witnesses could have been forfeited.
9. Accordingly, the order passed by
the court below is unsustainable in law
and is hereby set aside. The court below is
directed to pass a fresh order on the
application of the applicant for recall of
the witnesses keeping in mind the
observations made herein above.
10. The application stands allowed
to the extent indicated above.
--------
ORIGINAL JURISDICTION
544
 INDIAN LAW REPORTS ALLAHABAD SERIES
CIVIL SIDE
DATED: ALLAHABAD 18.07.2014
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE B. AMIT STHALEKAR, J.
Writ-A No. 13628 of 2014
Mahesh Chandra Ex-LnK/CI ...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri Birendra Pratap Singh
Counsel for the Respondents:
A.S.G.I., Sri R.B. Singhal, Sri Satish
Kumar Rai, Sri Aditya Bhushan Singhal
(A)Constitution of India, Art. 32, 226,227Power of superintendence-against final
order
by
Army
Tribunal-in
spite
of
statutory
remedy to appeal-subject to
leave granted by Tribunal under Section 30
of Act-held-Power of judicial review-a
constitutional provision-can not be taken
away on special enactments.
Held: Para-73(ii)
The power of judicial review of the
Supreme Court and of the High Courts is
firmly entrenched as a basic feature of the
Constitution
which
lies
beyond
the
amending power. Even more so, ordinary
legislation
cannot
abrogate
the
constitutional power of judicial review that
is vested in the Supreme Court under Article
32 and in the High Courts under Article 226;
(B) Armed Force Tribunal Act 2007Jurisdiction-to decide the vires of parent
statute-exclusively
vests
with
High
Court-Tribunal can entertain and decide
other cases relating to services of
member of Arm force.
Held: Para-33
The Tribunals shall not entertain any
question regarding the vires of their
parent statutes following the well settled
principle that a Tribunal which is a
creature of an Act cannot declare that
very Act to be unconstitutional. In such
cases alone, the High Court could be
approached directly. Consequently, in all
other cases, the Tribunals will continue
as the only courts of first instance in
respect of the areas of law for which
they have been constituted:
Case Law discussed:
2012 (3) ADJ 655; (1997) 3 SCC 261; (1982) 3
SCC 140; (1973) 4 SCC 225; (1993) 4 SCC
119; (1987) 1 SCC 124; (1993) 21 An. WR
484:(1994) 1 APLJ 1 (FB); (1998) 5 SCC 468;
(2003) 6 SCC 581; (2010) 4 SCC 554; (2010)
11 SCC 1; (2011) 14 SCC 337; (2012) 4 SCC
761; (2012) 11 SCC 224; (2013) 1 SCC 745;
[ILR (2011) IV Delhi]; [2013 (2) MPLJ 212];
(2007) 2 SCC 1; (2012) 8 SCC 524.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
The Reference
1. A final order of the Armed Forces
Tribunal at its Lucknow Bench has been
challenged in this petition under Article
226 of the Constitution. A preliminary
objection was raised before the Division
Bench to the maintainability of the
petition founded on a judgment of a
Division Bench of this Court in Surendra
Bahadur
Singh
Vs.
Armed
Forces
Tribunal, Regional Bench, Lucknow &
Ors.1 that (i) no writ would lie before the
High Court against a final order of the
Armed Forces Tribunal, since an appeal
lies to the Supreme Court under Section
31 (1) of the Armed Forces Tribunal Act,
2007; and (ii) since a statutory remedy of
an appeal under Sections 30 and 31 is
available against a final order of the
Tribunal made in exercise of powers
2 All] Mahesh Chand Ex-LnK/CI Vs. Union of India & Ors.
545
under Section 14, this Court ought not to
entertain the petition. The Division Bench
found itself unable to agree with the
earlier decision in Surendra Bahadur
Singh (supra).
2. The following questions have
been referred for consideration of a larger
Bench2:
"(a) Whether the jurisdiction of the
High Court to entertain a writ petition
under Article 226 of the Constitution of
India against the final order of the
Tribunal made under Section 14 can be
said to have been taken away by any
stretch of interpretation of the statutory
provisions of the Armed Forces Tribunal
Act, 2007. The necessary corollary being
that can an act of Parliament whittle down
any of the constitutional remedies made
available under Article 226 of the
Constitution of India, which is one of the
basic features of the Constitution of India
as laid down in the case of L. Chandra
Kumar Vs Union of India.
(b) Whether the remedy of judicial
review
under
Article
226
of
the
Constitution of India can be denied by the
High Court to a litigant on the ground that
he has a statutory remedy available before
the Apex Court by way of an appeal under
Section 30/31 of AFT Act, 2007, thereby
he loses his constitutional right of judicial
review,
under
Article
226
of
the
Constitution of India specially in the
circumstance when the order of the High
Court
under
Article
226
of
the
Constitution
of India itself can be
subjected to challenge before the Apex
Court by way of Special Leave to Appeal
under Article 136 of the Constitution of
India.
(c) Whether the High Court may
refuse to entertain a writ petition under
Article 226 of the Constitution of India,
because of availability of statutory
alternative remedy only in cases where
after exhaustion of such statutory remedy
his right to seek judicial review under
Article 226 of the Constitution of India is
not lost."
3. In Surendra Bahadur Singh
(supra), the conclusion which was arrived
at by the Division Bench was as follows:
"Conclusion
43. On the aforesaid discussion, we
are of the view that the AFT Act, 2007
does not take away or violate the right of
judicial review under Art. 226/227 and
Art.32 of the Constitution of India. The
writ petitions under Art. 226 of the
Constitution
of
India
would
be
maintainable, where:-
(a) it pertains to challenge against the
constitutional validity of any of the
provisions of the AFT Act, 2007;
(b) in the matters relating to armed
forces excepted from the jurisdiction of
the AFT under Section 3 (o) of the AFT
Act, 2007;
(c) in the matters of interlocutory
orders passed by the AFT;
However, no writ will lie in the High
Court:-
(a) in contempt matters, where
statutory appeal is provided to the
Supreme Court under Section 30 (2) of
AFT Act, 2007;
(b) against final orders of the AFT, in
which an appeal lies to Supreme Court
under Section 31 (1) of AFT Act, 2007;
(c) under Art. 227 of the Constitution
of India.
44. In the writ petitions before us, the
petitioners have challenged the final
orders passed by the AFT, without filing
an application for leave to appeal to the
546
 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court under Section 31 (1) of
the AFT Act, 2007.
45. All the writ petitions are
consequently dismissed."
4. While differing with the view taken in
Surendra Bahadur Singh, the Division Bench
has observed that the principle of law which
was laid down by a Constitution Bench of the
Supreme Court in L. Chandra Kumar Vs.
Union of India & Ors.3 is that judicial review
under Article 226 of the Constitution is a
constitutional remedy and is one of the basic
features of the Constitution. Hence, in the view
of the Division Bench, a constitutional remedy
which forms part of the basic features of the
Constitution cannot be whittled down by an
Act of Parliament. The Division Bench
observed that the High Court, in its discretion,
may not entertain a writ petition if a suitable
statutory alternative remedy is available but that
is distinct from holding that the petition is not
maintainable. This conflict of views has given
rise to the reference before the Full Bench.
Background to the enactment of
Armed Forces Tribunal Act, 2007
Article
33
of
the
Constitution
provides thus:
"33. Power of Parliament to modify
the rights conferred by this Part in their
application to Forces, etc.- Parliament
may, by law, determine to what extent
any of the rights conferred by this Part
shall, in their application to, -
(a) the members of the Armed
Forces; or
(b) the members of the Forces
charged with the maintenance of public
order; or
(c) persons employed in any bureau
or other organisation established by the
State for purposes of intelligence or
counter intelligence; or
(d) persons employed in, or in
connection with, the telecommunication
systems set up for the purposes of any
Force, bureau or organisation referred to
in clauses (a) to (c),
be restricted or abrogated so as to
ensure the proper discharge of their duties
and the maintenance of discipline among
them."
5. The fundamental rights conferred by
Part III of the Constitution may be restricted
or abrogated in their application to members
of the armed forces or the forces charged with
the maintenance of public order to the extent
so determined by Parliament by law to ensure
the proper discharge of duties and the
maintenance of discipline among them.
6.
Entry 2 of the Union List to the
Seventh Schedule of the Constitution covers
naval, military and air forces and any other
armed forces of the Union. Entry 95 of the
Union List to the Seventh Schedule of the
Constitution provides for the jurisdiction and
powers of all courts, except the Supreme
Court, with respect to any of the matters
contained in the Union List. Parliament, by
virtue of Article 246 of the Constitution, has
the exclusive jurisdiction to legislate on these
heads of legislative power.
7. In Lt. Col. Prithi Pal Singh Bedi
Vs. Union of India & Ors.4, a Bench of
three learned Judges of the Supreme
Court, held, following the decision of the
Constitution Bench in Ram Sarup Vs.
Union of India5 that:
"...every provision of the Army Act
enacted by the Parliament, if in conflict with
the fundamental rights conferred by Part III,
2 All] Mahesh Chand Ex-LnK/CI Vs. Union of India & Ors.
547
shall have to be read subject to Article 33 as
being enacted with a view to either restricting
or abrogating other fundamental rights to the
extent of inconsistency or repugnancy
between Part III of the Constitution and the
Army Act..."
8. However, the Supreme Court
emphasised that:
"While investigating and precisely
ascertaining the limits of inroads or
encroachments
made
by
legislation
enacted in exercise of power conferred by
Article 33, on the guaranteed fundamental
rights to all citizens of this country without
distinction, in respect of armed personnel, the
court should be vigilant to hold the balance
between two conflicting public interests;
namely necessity of discipline in armed
personnel to preserve national security at any
cost, because that itself would ensure
enjoyment of fundamental rights by others,
and the denial to those responsible for
national security of these very fundamental
rights which are inseparable adjuncts of
civilised life."
9.
The Supreme Court, however,
observed that there was a necessity to
provide a fair, just and reasonable procedure
under which judicial review of law and facts
should be available to members of the armed
forces who had been subjected to the military
discipline of a court-martial to a body
composed of non-military or civilian
personnel. The Court observed that by
enlisting in the armed forces, a person does
not cease to be a citizen, to be wholly
deprived of constitutional rights and though
Parliament, in its wisdom, has been
empowered to restrict or abrogate their
fundamental rights, this process should not
be carried so far as to create a class of
citizens not entitled to the benefits of the
liberal spirit of the Constitution. In the
concluding part of the decision, the Supreme
Court expressed the hope and belief that the
changes which had taken place in the English
speaking
democracies
would
awaken
Parliament to the changed value system.
Cognisant of the expanding horizons of
fairness under Article 14 and of personal
liberty under Article 21 of the Constitution,
Parliament eventually enacted the Armed
Forces Tribunal Act, 2007.
The Armed Forces Tribunal Act,
2007
The Act has been enacted to provide
for:
"...the adjudication or trial by Armed
Forces Tribunal of disputes and complaints
with respect to commission, appointments,
enrolment and conditions of service in
respect of persons subject to the Army Act,
1950, the Navy Act, 1957 and the Air Force
Act, 1950 and also to provide for appeals
arising out of orders, findings or sentences of
courts-martial held under the said Acts and
for matters connected therewith or incidental
thereto."
10. Section 3(o) of the Armed
Forces Tribunal Act, 2007 defines the
expression "service matters" as follows:
"service matters", in relation to the
persons subject to the Army Act, 1950 (46 of
1950), the Navy Act, 1957 (62 of 1957) and
the Air Force Act, 1950 (45 of 1950), means
all matters relating to the conditions of their
service and shall include -
(i)
remuneration
(including
allowances), pension and other retirement
benefits;
(ii)
tenure, including
commission,
appointment,
enrolment,
probation,
confirmation, seniority, training, promotion,
548
 INDIAN LAW REPORTS ALLAHABAD SERIES
reversion,
premature
retirement,
superannuation, termination of service and
penal deductions;
(iii) summary disposal and trials
where the punishment of dismissal is
awarded;
(iv) any other matter, whatsoever,
but shall not include matters relating
to -
(i) orders issued under Section 18 of
the Army Act, 1950 (46 of 1950), subsection (1) of Section 15 of the Navy Act,
1957 (62 of 1957) and Section 18 of the
Air Force Act, 1950 (45 of 1950); and
(ii) transfers and postings including
the change of place or unit on posting
whether individually or as a part of unit,
formation or ship in relation to the
persons subject to the Army Act, 1950 (46
of 1950), the Navy Act, 1957 (62 of 1957)
and the Air Force Act, 1950 (45 of 1950)
(iii) leave of any kind;
(iv) Summary Court Martial except
where the punishment is of dismissal or
imprisonment
for
more
than
three
months;"
11.
Section 4 empowers the Central
Government to establish the Armed Forces
Tribunal to exercise the jurisdiction, powers
and authority conferred by or under the Act.
Under Section 5 (1), the Tribunal consists of
a
Chairperson
and
Judicial
and
Administrative Members. A Chairperson
under Section 6(1) has to be either a retired
Judge of the Supreme Court or a retired
Chief Justice of a High Court. The
qualification for appointment as a Judicial
Member under Section 6(2) is that a person
is or has been a Judge of the High Court. An
Administrative Member under Section 6(3)
must have (i) held the rank of Major General
or higher, for at least three years in the Army
or an equivalent rank in the Navy or under
the Air Force; and (ii) should have served for
not less than one year as Judge AdvocateGeneral in the Army, Navy or Air Force and
should not be below the rank of Major
General, Commodore and Air Commodore
respectively.
12. Chapter III of the Act deals with
the jurisdiction, power and authority of
the Tribunal. Section 14, insofar as is
relevant, is to the following effect:
"14.
Jurisdiction,
powers
and
authority in service matters.- (1) Save as
otherwise expressly provided in this Act,
the Tribunal shall, exercise, on and from
the appointed day, all the jurisdiction,
powers
and
authority,
exercisable
immediately before that day by all courts
(except the Supreme Court or a High
Court
exercising
jurisdiction
under
Articles 226 and 227 of the Constitution)
in relation to all service matters.
(2) Subject to the other provisions of
this Act, a person aggrieved by an order
pertaining to any service matter may
make an application to the Tribunal in
such form and accompanied by such
documents or other evidence and on
payment of such fee as may be prescribed.
(3) On receipt of an application
relating to service matters, the Tribunal
shall, if satisfied after due inquiry, as it
may deem necessary, that it is fit for
adjudication by it, admit such application;
but where the Tribunal is not so satisfied,
it may dismiss the application after
recording its reasons in writing."
13.
Under sub-section (1) of Section
15, the Tribunal exercises, save as otherwise
expressly provided, all the jurisdiction,
powers and the authority exercisable under
the Act in relation to an appeal against any
order, decision, finding or sentence passed by
a court-martial or any other matter connected
2 All] Mahesh Chand Ex-LnK/CI Vs. Union of India & Ors.
549
therewith or incidental thereto. Chapter V of
the Act provides for appeal. Under Section
30 (1), an appeal lies to the Supreme Court
against a final decision or order of the
Tribunal (other than an order passed under
Section 19):
"30. Appeal to the Supreme Court. - (1)
Subject to the provisions of section 31, an
appeal shall lie to the Supreme Court against
the final decision or order of the Tribunal
(other than an order passed under section 19):
Provided
that
such
appeal
is
preferred within a period of ninety days of
the said decision or order:
Provided further that there shall be
no appeal against an interlocutory order of
the Tribunal."
14. Under sub-section (2) of Section
30, an appeal lies to the Supreme Court as
of right from any decision or order of the
Tribunal in the exercise of its jurisdiction
to punish for contempt. Section 31(1) of
the Act is to the following effect:
"31. Leave to appeal.- (1) An appeal to
the Supreme Court shall lie with the leave of
the Tribunal; and such leave shall not be
granted unless it is certified by the Tribunal that
a point of law of general public importance is
involved in the decision, or it appears to the
Supreme Court that the point is one which
ought to be considered by that Court."
5.
Hence, an appeal lies to the
Supreme Court with the leave of the Tribunal
only on a certification that a point of law of
general public importance is involved or
where it appears to the Supreme Court that
the point is one which ought to be considered
by that Court.
16. Section 33 of the Act provides
for the exclusion of the jurisdiction of the
Civil Court and is to the following effect:
"33. Exclusion of jurisdiction of civil
courts. - On and from the date from which
any jurisdiction, powers and authority
becomes exercisable by the Tribunal in
relation to service matters under this Act, no
Civil Court shall have, or be entitled to
exercise,
such
jurisdiction,
power
or
authority in relation to those service matters."
SUBMISSIONS
17. On behalf of the Union of India,
it has been urged that :
(i) The Armed Forces Tribunal Act,
2007 was enacted by Parliament under
Article 246 read with Entry 2 of the
Union List to the Seventh Schedule of the
Constitution;
(ii) The Act provides for an appeal to
the Supreme Court under Section 30 and
Section 31;
(iii) The jurisdiction of the High
Court is not excluded (a) in matters not
covered by the definition of 'service
matters' under Section 3(o); (b) in
challenges against interlocutory orders
where no appeal lies under the proviso to
Section 30; and (c) in matters pertaining
to a challenge to the constitutional
validity of a provision of the Act;
(iv) The Statement of Object and
Reasons accompanying the introduction
of the Bill in Parliament would indicate
that against the final orders of the
Tribunal, an appeal is the only alternative
efficacious and suitable remedy under
Sections 30 and 31;
(v) The constitution, composition
and selection of the Administrative
Tribunals is distinct from the Armed
Forces Tribunal and, hence, the decision
of the Supreme Court in L. Chandra
Kumar (supra) would not govern;
550
 INDIAN LAW REPORTS ALLAHABAD SERIES
(vi) Under Entry 95 of the Union List
to the Seventh Schedule, Parliament has
the power to exclude the jurisdiction of all
courts except the Supreme Court. The
Constitution has conferred upon the
armed forces a special status under Article
33 which empowers Parliament to restrict
or abrogate the fundamental rights in their
application to the armed forces by
conferring
exclusive
power
upon
Parliament under Article 35 to make laws
with respect to a matter falling under
Article 33;
(vii) Under Article 136 (2), the power
of judicial review of the Supreme Court is
abrogated in relation to a judgment,
determination, sentence or order of a Court
or Tribunal constituted under any law
relating to the armed forces; Article 227 (4)
excludes judicial review in respect of the
superintendence of the High Court over a
Court or Tribunal constituted by a law
relating to the armed forces;
(viii) If an order passed by the
Armed Forces Tribunal is subjected to the
jurisdiction of the High Court under
Article 226, that jurisdiction not being
supervisory, the order of the Tribunal
would not merge with the order of the
High Court and, hence, a remedy under
Article 136 would not be available;
(ix) To determine what constitutes the
basic structure of the Constitution and whether
an Act is in violation of the basic structure,
every case has to be independently viewed. In
several other enactments, appeals are directly
provided to the Supreme Court leading to the
exclusion of judicial review under Articles
226 or 227 of the Constitution;
(x) A workable solution to maintain
the jurisdiction of the High Court under
Article 226 would be that :
(a) the validity of the Armed Forces
Act, 2007 is open to challenge under
Article 226;
(b) all matters which have been
excluded
under
Section
3(o)
are
susceptible of challenge under Article
226;
(c) all interlocutory orders and other
matters for which a provision has not been
made in the Armed Forces Tribunal Act,
2007 can be subject to judicial review under
Article 226. Since the High Court would be
exercising original jurisdiction, a Special
Leave Petition would be maintainable under
Article 136 of the Constitution. In all other
cases, judicial review under Article 226
stands excluded.
Decisions prior to L. Chandra Kumar
18. Following the judgment of 13
Judges in Kesavananda Bharati & Ors.
Vs. State of Kerala & Anr.6, several
decisions
of
the
Supreme
Court
elaborated upon the doctrine of basic
structure particularly in the context of
judicial review. These include:
(1) Indira Nehru Gandhi Vs. Raj
Narain & Anr.7
(2) Minerva Mills Ltd. & Ors. Vs.
Union of India & Ors.8
(3) Fertilizer Corporation Kamgar
Union & Ors. Vs. Union of India & Ors.9
(4) Kihoto Hollohan v. Zachillhu &
Ors.10
19. In Indira Nehru Gandhi (supra),
the constitutional validity of the 39th
amendment to the Constitution was
challenged on the ground that it offended
the basic features of the Constitution.
Chief Justice A.N. Ray held:
"Judicial review in India is not
founded on any article similar to that in
the
American
Constitution
or
the
Australian Constitution; judicial review in
many matters under statute had been
2 All] Mahesh Chand Ex-LnK/CI Vs. Union of India & Ors.
551
excluded; judicial review in election
disputes was not a compulsion; judicial
review in election disputes may be
entrusted by law to a tribunal; similarly,
Article 33 excluded judicial review in
matters relating to armed forces; Article
262(2) excluded jurisdiction of courts in
border disputes; the amending body had
excluded judicial review in Articles 31A,
31B and 31C; hence, the Constitution
permitted by amendment exclusion of
judicial review of a matter if it was
necessary to give effect to Directive
Principles of State Policy; a similar power
may be available when such exclusion
was needed in the larger interest of the
security of the State11.
20. Justice H.R. Khanna held that:
"...It is not necessary in a democratic
set-up that disputes relating to the validity
of elections must be settled by courts of
law; there were many countries like
France, Japan and the United States of
America where consistently with the
democratic set-up the determination of
such controversies was by the legislature
or by authorities other than the courts..12.
(emphasis supplied)
Justice K.K. Mathew held that:
"...Nobody can deny that by passing
a law within its competence, Parliament
can vest judicial power in any authority
for deciding a dispute or vest a part of that
power
in
itself
for
resolving
a
controversy, as there is no exclusive
vesting of judicial power in courts by the
Constitution. The doctrine of separation
of powers which is directed against the
concentration of the whole or substantial
part of the judicial power in the
Legislature or the Executive would not be
a bar to the vesting of such a power in
itself..13." (emphasis supplied)
Justice M.H. Beg held that:
"...Courts, however, have to test the
legality of laws, whether they purport to
be ordinary or constitutional, by the
norms laid down in the Constitution;
separation of powers and supremacy of
the Constitution are parts of the ''basic
structure' of the Constitution14. (emphasis
supplied).
21. While dealing with the submission
that judicial review is a part of the basic
structure of the Constitution, Justice Y V
Chandrachud noted that the fundamental
premise of the argument was too broadly
stated because the Constitution, as originally
enacted, expressly excluded judicial review
in a large variety of important matters. Many
among them were Articles 31(4), 31(6),
136(2),
227(4),
262(2)
and
329(a).
Moreover,
by
Article
103(1),
the
Constitution bestowed jurisdiction on the
President to determine any question arising
under Article 102 regarding disqualification
of a Member of Parliament. Judicial review
was held not to form part of the basic
structure in relation to elections to the
legislatures. Hence, the judgment evaluated
the position of judicial review in the case of
electoral disputes and held that in those
disputes, exclusion did not offend the basic
feature. In that context, it was held as
follows:
"...For
determining
whether
a
particular feature of the Constitution is a
part of its basic structure, one has perforce
to examine in each individual case the
place of the particular feature in the
scheme of our Constitution, its object and
purpose, and the consequences of its
552
 INDIAN LAW REPORTS ALLAHABAD SERIES
denial on the integrity of the Constitution
as a fundamental instrument of country's
governance. ..
Judicial review, according to Shri
Shanti Bhushan, is a part of the basic
structure of the Constitution and since the
Thirty-ninth Amendment by Article 329A
(4) and (5) deprives the courts, including the
Supreme Court, of their power to adjudicate
upon the disputed election, the amendment is
unconstitutional. The fundamental premise
of this argument is too broadly stated
because the Constitution, as originally
enacted, expressly excluded judicial review
in a large variety of important matters.
Articles 31(4), 31(6), 136(2), 227(4), 262(2)
and 329(a) are some of the instances in point.
True, that each of these provisions has a
purpose behind it but these provisions show
that the Constitution did not regard judicial
review as an indispensable measure of the
legality or propriety of every determination.
Article 136(2) expressly took away the
power of the Supreme Court to grant special
leave to appeal from the decisions of any
court or tribunal constituted by a law relating
to the armed forces. Article 262(2)
authorized the Parliament to make a law
providing that the Supreme Court or any
other court shall have no jurisdiction over
certain river disputes. But what is even more
to the point are the provisions contained in
Articles 103(1) and 329(b). Article 102
prescribes disqualifications for membership
of the Parliament. By Article 103(1), any
question arising under Article 102 as to
whether a Member of the Parliament has
become subject to any disqualification has to
be referred to the President whose decisions
is final. The President is required by Article
103(2) to obtain the opinion of the Election
Commission and act according to its opinion.
Thus, in a vital matter pertaining to the
election for membership of the Parliament,
the framers of the Constitution had left the
decision to the judgment of the Executive.
Articles 327 and 328 give power to the
Parliament and the State Legislatures to
provide by law for all matters relating to
elections to the respective Legislatures,
including the preparation of electoral rolls
and the delimitation of constituencies. By
Article 329(a), the validity of any law
relating to the delimitation of constituencies
or
the
allotment
of
seats
to
such
constituencies cannot be called in question in
any court.
...Since the Constitution, as originally
enacted, did not consider that judicial power
must intervene in the interests of purity of
elections,
judicial
review
cannot
be
considered to be a part of the basic structure
insofar as legislative elections are concerned.
The theory of basic structure had to be
considered in each individual case, not in the
abstract, but in the context of the concrete
problem. The problem here is whether under
our Constitution, judicial review was
considered as an indispensible concomitant
of elections to country's Legislatures. The
answer, plainly, is not."15 (emphasis
supplied)
22. In Minerva Mills Ltd. (supra),
the
question
for
consideration
was
whether Sections 4 and 55 of the
Constitution (Forty-second Amendment)
Act, 1976 exceeded the limitation on the
amending power of Parliament under
Article 368. In other words, whether the
amendments to Article 31C and Article
368 amended the basic structure of the
Constitution. The majority view was that
clauses (4) and (5) of Article 368 which
were inserted into the Constitution by
Section 55 were unconstitutional as they
exceeded
the
amending
power
of
Parliament. Section 4 was held to be
unconstitutional on the ground that it
offended
the
balance
between
the
2 All] Mahesh Chand Ex-LnK/CI Vs. Union of India & Ors.
553
fundamental
rights
and
directive
principles. The leading judgment of the
majority held as follows:
"The newly introduced clause (4) of
Article 368 must suffer the same fate as
clause (5) because the two clauses are interlinked. Clause (5) purports to remove all
limitations on the amending power while
clause (4) deprives the courts of their power
to call in question any amendment of the
Constitution. Our Constitution is founded on
a nice balance of power among the three
wings of the State, namely the Executive, the
Legislature and the Judiciary. It is the
function of the Judges, nay their duty, to
pronounce upon the validity of laws. If
courts are totally deprived of that power, the
fundamental rights conferred upon the
people will become a mere adornment
because rights without remedies are as writ
in water. A controlled Constitution will then
become uncontrolled. Clause (4) of Article
368 totally deprives the citizens of one of the
most valuable modes of redress which is
guaranteed by Article 32. The conferment of
the right to destroy the identity of the
Constitution coupled with the provision that
no court of law shall pronounce upon the
validity of such destruction seems to us a
transparent case of transgression of the
limitations on the amending power.
If a constitutional amendment cannot
be pronounced to be invalid even if it
destroys the basic structure of the
Constitution, a law passed in pursuance of
such an amendment will be beyond the
pale of judicial review because it will
receive the protection of the constitutional
amendment which the courts will be
powerless to strike down. Article 13 of
the Constitution will then become a dead
letter because even ordinary laws will
escape the scrutiny of the courts on the
ground that they are passed on the
strength of a constitutional amendment
which is not open to challenge16.
(emphasis supplied).
23. Justice Bhagwati was in agreement
with the majority on the issue of the validity
of clauses (4) and (5) of Article 368.
However, insofar as the validity of Article
31C was concerned, unlike the majority, His
Lordship held that the amended Article was
constitutionally valid. In regard to the power
of judicial review, Justice Bhagwati held as
follows:
"...The judiciary is the interpreter of
the Constitution and to the judiciary is
assigned the delicate task to determine
what is the power conferred on each
branch of government, whether it is
limited, and if so, what are the limits and
whether any action of that branch
transgresses such limits. It is for the
judiciary to uphold the constitutional
values and to enforce the constitutional
limitations. That is the essence of the rule
of law, which inter alia requires that "the
exercise of powers by the government
whether it be the legislature or the
executive or any other authority, be
conditioned by the Constitution and the
law". 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 illusion and a
promise of unreality. I am of the view that
if there is one feature of our Constitution
which, more than any other, is basic and
fundamental to the maintenance of
democracy and the rule of law, it is the
power of judicial review and it is
unquestionably, to my mind, part of the
basic structure of the Constitution. Of
course, when I say this I should not be
taken to suggest that effective alternative
554
 INDIAN LAW REPORTS ALLAHABAD SERIES
institutional mechanisms or arrangements
for judicial review cannot be made by
Parliament. 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...17."
(emphasis supplied).
24. In Fertilizer Corporation Kamgar
Union (supra), the Constitution Bench of
the Supreme Court decided whether the
workmen of a public enterprise had the
locus standi to challenge the sale of the
plant and machinery of an enterprise on
the ground that it deprived the workmen
of the fundamental right under Article
19(1)(g) of the Constitution and on the
ground that the sale violated Article 14.
On the issue of judicial review, the
Supreme Court held as follows:
"11. The jurisdiction conferred on
the Supreme Court by Article 32 is an
important and integral part of the basic
structure of the Constitution because it is
meaningless to confer fundamental rights
without providing an effective remedy for
their enforcement, if and when they are
violated. A right without a remedy is a
legal conundrum of a most grotesque
kind. While the draft Article 25, which
corresponds to Article 32, was being
discussed in the Constituent Assembly, Dr
Ambedkar
made
a
meaningful
observation by saying:
"If I was asked to name any
particular article in this Constitution as
the most important - an article without
which this Constitution would be a nullity
- I could not refer to any other article
except this one. It is the very soul of the
Constitution and the very heart of it and I
am glad that the House has realised its
importance18."
But though the right guaranteed by
Article 32 is one of the highly cherished
rights conferred by the Constitution, the
purpose for which that right can be
enforced is stated in the very Article
which confers that right. The violation of
a fundamental right is the sine qua non of
the exercise of the right conferred by
Article 32." (emphasis supplied).
25.
In Kihoto Hollohan (supra), a
Constitution Bench of the Supreme Court
considered a challenge to the constitutional
validity of the Tenth Schedule to the
Constitution. The majority, while upholding
the constitutional validity of the amendment
incorporating the Tenth Schedule, held that
paragraph 7 which, in effect, conferred an
absolute power on the Speaker as a sole and
final
arbiter
of
a
dispute
as
to
disqualification, vitiated the basic structure
of the Constitution. The minority view was
that the entirety of the amendment was
constitutionally invalid including paragraph
7. The majority view held as follows:
"181.The Speaker being an authority
within the House and his tenure being
dependent on the will of the majority
therein, likelihood of suspicion of bias
could not be ruled out. The question as to
disqualification
of
a
Member
has
adjudicatory disposition and, therefore,
requires the decision to be rendered in
consonance
with
the
scheme
for
adjudication of disputes. Rule of law has
in it firmly entrenched, natural justice, of
which, rule against bias is a necessary
concomitant; and basic postulates of rule
against bias are: nemo judex in causa sua
-
''A
Judge
is
disqualified
from
determining any case in which he may be,
or may fairly be suspected to be, biased';
and ''it is of fundamental importance that
justice should not only be done, but
2 All] Mahesh Chand Ex-LnK/CI Vs.