India: Post Kesavananda Bharati Does Article 226 Of The Constitution Stand Elevated To The Status Of A Fundamental Right?

"16.3 Therefore, it is not surprising that the Constituent Assembly found in these writs the most effective means of enforcing fundamental rights. The writ of habeas corpus "is the most renowned contribution of the English common law to the protection of human liberty". The writs of mandamus, prohibition, certiorari and quo warranto had proved their effectiveness in compelling the performance of a public duty, in preventing inferior tribunals from going beyond their jurisdiction, in reviewing orders and convictions of inferior tribunals, and in inquiring into the right of a person to hold a public office. Speaking on Art. 32 (draft Art. 25) in the Constituent Assembly, Dr. Ambedkar described the Article as the very soul of the Constitution because it provided effective remedies against violation of fundamental rights – remedies which no legislature could take away.¹⁶ the writs were mentioned by name in Art. 32 because, said Dr. Ambedkar:

^"These writs have been in existence in Great Britain for a number of years. Their nature and the remedies they provided are known to every lawyer and consequently we thought that as it is impossible for a man who has a most fertile imagination to invent something new, it was hardly possible to improve upon the writs which have been in existence probably for thousands (hundreds?) of years and which have given complete satisfaction to every Englishman with regard to the protection of his freedom ... and which ... have been found to be knave-proof and fool proof.... "¹⁷

Dr. Ambedkar rightly emphasized the effectiveness of the remedies provided by the writs mentioned in Art. 32." ⁵

"16.8A In India, neither Parliament nor the State Legislatures can take away the jurisdiction of the Sup.Ct. or the High Courts to issue the writs mentioned in Arts. 32 and 226. Consequently, the complications which have arisen in English law need to maintain a distinction between errors within jurisdiction and errors going to jurisdiction, because the Sup. Ct. and the High Courts can quash orders which disclose errors of every kind. We have seen that in England, the grant of writs is discretionary, and so is it in India. At one time judgments of the Sup. Ct. seemed to suggest that the grant of appropriate writs under Art. 32 was not discretionary. But later judgments establish that although Art. 32 itself confers a fundamental right, the power to issue writs under Art. 32 is discretionary. Finally, the observations of Mukherjea J. in Basappa's Case^34-37 showed that it was open to our Courts to issue any appropriate writ to an aggrieved party, and his application for a writ would not fail because he had applied for a wrong kind of writ. In England, the position was different. However, the picture in England has been transformed by the "application for judicial review" which was introduced, first, by amending O.53 of the Rules of Sup. Ct. and then by the Sup. Ct. Act, 1981. Application for judicial review is fully considered later. It is enough to say that it was meant to eliminate differences governing the writs of prohibition, certiorari, mandamus and injunction of the quo warranto type by introducing one uniform procedure, so that an applicant for a writ would not fail because he had applied for the wrong kind of writ. Further, power was given to the Court to make a declaration or to grant an injunction in appropriate cases, and also to award damages. Provision was also made for discovery and inspection for interrogatories and for the right of cross examination. It may be added that habeas corpus continued as a writ with a separate procedure of its own."⁶ (underlining our own)

"16.239 The earlier decision of the Sup. Ct. had repeatedly emphasized the distinction between Art. 32 and Art. 226, namely that Art. 32(1) conferred a fundamental right to approach the Sup. Ct. for the enforcement of fundamental rights, whereas Art. 226 did not confer a fundamental right to approach the High Courts⁷⁸. But the Sup. Ct.'s decisions considered in para 16.230 et seq. above show that though there is right to approach the Sup. Ct. under Art. 32(1), the Sup. Ct. has a discretion whether or not to grant the relief claimed. The High Courts have repeatedly held that the exercise of jurisdiction under Art. 226 is discretionary and the court would decline to exercise this extraordinary jurisdiction (a) if there is an adequate alternative remedy;⁷⁹ (b) if there is delay;⁸⁰ (c) if the conduct of the petitioner disentitles him to relief;⁸¹ (d) if the interest of justice does not require a writ to be granted;⁸² (e) if the petition involves disputed questions of fact or⁸³ (f) if granting a writ would be futile.⁸⁴ This wide discretion claimed by the High Courts would apply to the enforcement of rights other than fundamental rights and although as a matter of form, the High Court has the same discretion in the enforcement of fundamental rights, it is submitted that different consideration would apply to fundamental rights, and it would not be judicial exercise of that discretion to refuse a writ for the enforcement of fundamental rights on a ground on which the Sup. Ct. would not refuse a writ under Art. 32. Thus, the Sup. Ct. has held that the existence of an alternative remedy, or the fact that disputed questions of fact may arise would not disentitle, a petitioner to an appropriate writ under Art. 32; consequently, it would not be a proper exercise of judicial discretion to refuse a writ under Art. 226 on those grounds⁸⁵, but the question is one of discretion and not of jurisdiction⁸⁶."¹¹

"16.242 As long as Arts. 32 and 226 are not amended, the powers conferred by them cannot be taken away or abridged by any law, for any such law would be void under Art. 13. Any law which took away or abridged the powers of the High Courts under Art. 226 would be ultra vires for the powers to make laws is subject to the provisions of the Constitution⁹² and all the laws in force are continued by Art. 372 "subject to the provisions of this Constitution". Thus, in Raj Krushna Bose V. Binod Kanungo^{, 93} the Supreme Court observed:

"Our power to make such an order was not questioned but it was said that when the legislature states that he orders of a tribunal under an Act like the one here shall that the powers conferred on us by Art. 136... cannot be taken away or whittled down by the legislature. So long as these powers remain our discretion and that of the High Courts is unfettered."

This conclusion was affirmed in Sangram Singh Vs. Election Tribunal.⁹⁴ It was there contented that s.105, Representation of the People Act, 1951, made every order of the tribunal final and conclusive and therefore, neither the Sup. Ct. nor the High Court could transgress the law by trying to correct what it considered an error of law. In repelling the contention, Bose J. said :

"The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this court to examine the decisions of all Tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal act shall become legal the moment the tribunal chooses to say they are legal. The legality of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal or limited jurisdiction."⁹⁵

In Abdul Majid v. P.R. Nayak⁹⁶ it was held that the high court's powers under Art. 226 could not be taken away by the legislature and could only be taken away or altered by an amendment of the Constitution. It was accordingly held that ss.28 and 43(c), Administration of Evacuee Property Ordinance, had not the effect of taking away the powers of the High Courts under Art. 226, and if the sections had that effect, they would be void. This decision was followed in Lt. Sahabzada Ravi Pratap Narain Singh v. U.P.⁹⁷ and other decisions all affirm the inviolability of Article 226 by ordinary law.⁹⁸ In Custodian Evacuee Property, Punjab v. Jafran Begum⁹⁹ the Sup. Ct. held that the bar of suit contained in ss.28 and 46 of the Administration of Evacuee Property Act, 1950, could not affect the jurisdiction of the High Courts under Art. 226. In Israr Fatima v. Custodian Evacuee Property¹ it was held that the bar of suit contained in the said s. 46, had been enacted because that act contemplated giving an opportunity to a third person to get his rights determined as against the Custodian by objecting to the vesting of the notified property in the Custodian. But where that procedure had not been followed, the remedy of the aggrieved person was not by way of a suit which was barred but by way of a writ for a mandamus under Art. 226. A full bench of the Allahabad High Court held that R.6, Ch.(xxii) of the Rules of the Court² was ultra vires as the jurisdiction under Article 226 was not excluded merely because there was an adequate alternative remedy.³"

"16.243 Though the powers conferred by Arts. 32 and 226 cannot be taken away by an ordinary law, the Sup. Ct. has held that the rights which can be enforced under those Articles can be regulated by law. Thus, in Daryao v. U.P.⁴ it was held that a petitioner could not maintain a petition under Article 32 if he had obtained a decision on the merits on the same matters in a petition under Art. 226, for he would be met by the bar of res judicata, which is not a technical rule of procedure but is based on considerations of public policy.⁵ This decision was affirmed in Amalgamated Coalfields V. Janapada Sabha,⁶ the Court adding that:

"...the application of the doctrine of res judicata to the petitions filed under Article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted ... in courts of law."

The Rajasthan High Court applied constructive res judicata to a petition under Art. 226.⁷ after some hesitation, the Supreme Court did likewise. In the Amalgamated Coalfields Case, it was held that constructive res judicata⁸ was special and artificial form of res judicata, enacted by s. 11, C.P.C., and generally it should not be applied to petitions under Arts. 32 and 226, especially when considering a taxing statute as was the case before the court. However, in Devi Lal's case⁹ it was held that constructive res judicata applied to a writ petition under Art. 226 challenging the validity of a sales tax imposed upon the petitioner for the same assessment year. It is not necessary to examine the two judgments in detail, both of which refer to the rule of constructive res judicata as an artificial rule enacted by s.11 C.P.C.¹⁰ it is submitted that this view is not correct. The rule obtains in England¹¹ and in the United States¹² and is based on the same principle on which the general doctrine of res judicata is based, namely, that public interest requires that there should be an end to litigation and that a person should not be vexed twice in respect of the same subject matter. Devi Lal's case recognizes this, for the court said:

"...but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with consideration of public policy to which we have just referred."¹³

In Devi Lal's Case, Constructive res judicata was applied to the assessment of the same year, the court observing that the position of assessment for different years may be different. It is submitted that the position for different years would be different. In the Amalgamated Coal fields Case¹⁴ the Sup. Ct. referred to the Privy Council Judgment in Broken Hill Proprietory Co. v. Municipal Council of Broken Hill¹⁵ which appeared to take a somewhat different view from that taken later in Hoystead V. Commr. of Taxation.¹⁶ However, in Society of Medical officers of Health V. Hope,¹⁷ Lord Radcliffe has shown that there is no inconsistency between the two judgments of the Privy Council. In Broken Hill the question argued, and decided was that a Valuation and Liability to tax in a previous year did not operate a res judicata. In Hoystead's case, not that question but a different question was argued, namely that a legal point decided in a judgment on a concession cannot operate as res judicata.¹⁸ the reason for not applying res judicata to the tax liability for different years is that the only question before a taxing authority is the liability to tax for that year and all other questions are collateral questions and decisions on collateral questions do not operate as res judicata.¹⁹ but where the Supreme Court decided against the assessee in an appeal from a reference under s.66, Income Tax act, 1922, on the ground that in such reference, no question about the vires of a taxing provision could be entertained, a subsequent petition by the assessee under Art. 226 challenging the vires of a taxing provision is not barred by res judicata. Since Art. 32 itself confers a fundamental right, the above decisions show that a fundamental right is subject to considerations relevant to the administration of justice. In substance, a person must elect to enforce his fundamental rights under Art. 32 or under Art. 226.¹²"

"15. The question that arises, however, for consideration is whether bar of jurisdiction under Articles 226 and 227 affects the provision for judicial review. The right to move the High Court in its writ jurisdiction — unlike the one under Article 32 — is not a fundamental right. Yet, the High Courts, as the working experience of three-and-a-half decades shows have in exercise of the power of judicial review played a definite and positive role in the matter of preservation of fundamental and other rights and in keeping administrative action under reasonable control. In these thirty-six years following the enforcement of the Constitution, not only has India's population been more than doubled but also the number of litigations before the courts including the High Courts has greatly increased. As the pendency in the High Courts increased and soon became the pressing problem of backlog, the nation's attention came to be bestowed on this aspect. Ways and means to relieve the High Courts of the load began to engage the attention of the government at the Centre as also in the various States. As early as 1969, a Committee was set up by the Central Government under the chairmanship of Mr Justice Shah of this Court to make recommendations suggesting ways and means for effective, expeditious and satisfactory disposal of matters relating to service disputes of government servants as it was found that a sizeable portion of pending litigations related to this category. The Committee recommended the setting up of an independent Tribunal to handle the pending cases before this Court and the High Courts. While this report was still engaging the attention of government, the Administrative Reforms Commission also took note of the situation and recommended the setting up of Civil Services Tribunals to deal with appeals of Government servants against disciplinary action. In certain States, Tribunals of this type came into existence and started functioning. But the Central Government looked into the matter further as it transpired that the major chunk of service litigations related to matters other than disciplinary action. In May 1976, a Conference of Chief Secretaries of the States discussed this problem. Then came the Forty-second Amendment of the Constitution bringing in Article 323-A which authorised Parliament to provide by law "for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government". As already stated this article envisaged exclusion of the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1). Though the Constitution now contained the enabling power, no immediate steps were taken to set up any Tribunal as contemplated by Article 323-A. A Constitution Bench of this Court in K.K. Dutta v. Union of India [(1980) 4 SCC 38 : 1980 SCC (L&S) 485 : AIR 1980 SC 2056 : (1980) 3 SCR 811] observed : [SCC p. 39, para 1 : SCC (L & S) p. 486]

"There are few other litigative areas than disputes between members of various services inter se, where the principle that public policy requires that all litigation must have an end can apply with greater force. Public servants ought not to be driven or required to dissipate their time and energy in courtroom battles. Thereby their attention is diverted from public to private affairs and their inter se disputes affect their sense of oneness without which no institution can function effectively. The constitution of Service Tribunals by State Governments with an apex Tribunal at the Centre, which, in the generality of cases, should be the final arbiter of controversies relating to conditions of service, including the vexed question of seniority, may save the courts from the avalanche of writ petitions and appeals in service matters. The proceedings of such Tribunals can have the merit of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many...."

In the meantime the problem of the backlog of cases in the High Courts became more acute and pressing and came to be further discussed in Parliament and in conferences and seminars. Ultimately in January 1985, both Houses of Parliament passed the Bill and with the Presidential assent on February 27, 1985, the law enabling the long awaited Tribunal to be constituted came into existence. As already noticed, the Central Government notified the Act to come into force with effect from November 1, 1985."

"16.386 Finally, it should be noted that although a law can bar a suit a law cannot deprive the High Court of its jurisdiction under Article 226. Any law attempting to bar the High Court's jurisdiction under Article 226 would be ultra vires and void. Therefore, where the provision of a taxing statute is challenged as ultra vires on the ground that it violates a fundamental right, or any other provision of the Constitution, the remedy by way of writ is the only adequate remedy, as explained earlier." ¹⁴

"62. In Kesavananda Bharati case [(1973) 4 SCC 225] a thirteen-Judge Constitution Bench, by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or to destroy its basic structure. The identification of the features which constitute the basic structure of our Constitution has been the subject-matter of great debate in Indian Constitutional law. The difficulty is compounded by the fact that even the judgments for the majority are not unanimously agreed on this aspect. [There were five judgments for the majority, delivered by Sikri, C.J., Shelat and Grover, JJ., Hegde and Mukherjea, JJ., Jaganmohan Reddy, J. and Khanna, J. While Khanna, J. did not attempt to catalogue the basic features, the identification of the basic features by the other Judges are specified in the following paras of the Court's judgments: Sikri, C.J. (para 292), Shelat and Grover, JJ. (para 582), Hegde and Mukherjea, JJ. (paras 632 & 661) and Jaganmohan Reddy, J. (paras 1159 & 1161).] The aspect of judicial review does not find elaborate mention in all the majority judgments. Khanna, J. did, however, squarely address the issue (at para 1529): (SCC p. 818)

"... The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution.... As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened.... Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions."

(emphasis added)

63. Shelat and Grover, JJ., while reaching the same conclusion in respect of Articles 32 and 226, however, adopted a different approach to the issue (at para 577): (SCC p. 452)

"There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so predominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States' Constitution but it envisages such a separation to a degree as was found in Ranasinghe case[Bribery Commr. v. Pedrick Ranasinghe, 1965 AC 172 : (1964) 2 All ER 785, PC] . The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances."

(emphasis added)

73. We may now analyse certain other authorities for the proposition that the jurisdiction conferred upon the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution respectively, is part of the basic structure of the Constitution. While expressing his views on the significance of draft Article 25, which corresponds to the present Article 32 of the Constitution, Dr B.R. Ambedkar, the Chairman of the Drafting Committee of the Constituent Assembly stated as follows: (CAD, Vol. VII, p. 953)

"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 importance."

(emphasis added)

75. InKeshav Singh, Re [(1965) 1 SCR 413 : AIR 1965 SC 745] , while addressing this issue, Gajendragadkar, C.J. stated as follows: (SCC at pp. 493-494)

"If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. 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."

(emphasis added)

78. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. [ See Chapter VII, "The Judiciary and the Social Revolution" in Granville Austin, The Indian Constitution : Cornerstone of a Nation, Oxford University Press, 1972; the chapter includes exhaustive references to the relevant preparatory works and debates in the Constituent Assembly.] These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided."

"99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."9(Underlining ours)

"137. A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of Law will protect their rights and liberties against any invasion by the State and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Khanna, J. must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions."

".....It is the remedy that makes a right real. If there is no remedy, there is no right of all, and I am therefore not prepared to burden the Constitution with a number of pious declarations which may sound as glittering generalities but for which the Constitution makes no provision by way of a remedy. It is much better to be limited in the scope of our rights and to make them real by enunciating remedies than to have a lot of pious wishes embodied in the Constitution. I am very glad that this House has seen that the remedies that we have provided constitute a fundamental part of this Constitution. Sir, with these words I commend this article to the House." ¹⁷