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TMI Blog2014 (9) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... tem of checks and balances, by reasons of which, powers are so distributed, that none of the three organs transgresses into the domain of the other - The concept ensures the dignity of the individual - The power of "judicial review" ensures, that executive functioning confines itself within the framework of law enacted by the legislature - the demarcation of powers between the legislature, the executive and the judiciary, is regarded as the basic element of the constitutional scheme - When the judicial process is prevented by law, from determining whether the action taken was or was not, within the framework of the legislation enacted, it would amount to the transgression of the adjudicatory/determinatory process by the legislature - Therefore, the exclusion of the power of "judicial review", would strike at the "basic structure" of the Constitution. The power of "judicial review" vested in the High Court under Articles 226 and 227 of the Constitution, has remained intact - This aspect has a substantial bearing to the issue – it will also lead to some important inferences - it must never be overlooked, that since the power of "judicial review" exercised by the High Court under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be substituted. Allowability to made appearances by the CS - Interpretation of section 13(1) of NTT - Whether Company Secretaries should be allowed to appear before the NTT to represent a party to an appeal in the same fashion, and on parity with, Accountants and Whether Section 13(1) of the NTT Act allows Accountants to represent a party to an appeal before the NTT is valid – Held that:- Members of the NTT would most definitely be confronted with the legal issues emerging out of Family Law, Hindu Law, Mohammedan Law, Company Law, Law of Partnership, Law related to Territoriality, Law related to Trusts and Societies, Contract Law, Law relating to Transfer of Property, Law relating to Intellectual Property, Interpretation of Statutes, and other Miscellaneous Provisions of Law, from time to time - The NTT besides these statutes, will not only have to interpret the provisions of the three statutes, out of which appeals will be heard by it, but will also have to examine a challenge to the vires of statutory amendments made in the provisions, from time to time - They will also have to determine as to whether the provisions relied upon had a prospective or retrospective applicability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of "judicial review" under Articles 226 and 227 of the Constitution had not been taken away, yet he acknowledged, that there would be implicit limitations where such power would be exercisable - Therefore, the composition of the NTT would have to be on the same parameters as judges of the High Courts - So Section 6(2)(b) of the NTT Act is declared unconstitutional - Section 7 cannot be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of the NTT, Secretaries of Departments of the Central Government - The interests of the Central Government would be represented on one side, in every litigation before the NTT - It is not possible to accept a party to a litigation, can participate in the selection process, whereby the Chairperson and Members of the adjudicatory body are selected. Chairperson/Member is appointed to the NTT for a duration of 5 years - Chairperson/Member is eligible for reappointment, for a further period of 5 years - a provision for reappointment would itself have the effect of undermining the independence of the Chairperson/Members of the NTT – thus, Sections 5, 6, 7, 8 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, in India: 2(i). Law relating to income tax dates back to 1860, when legislation pertaining to levy of tax on income, was introduced in India for the first time. The original enactment was replaced by subsequent legislations, enacted in 1865, 1886, 1918 and 1922. The Indian Income Tax Act, 1922 (hereinafter referred to as, the 1922 Act) was brought about, as a result of the recommendations of the All India Tax Committee. The 1922 Act can be described as a milestone in the evolution of direct tax laws in India. Detailed reference needs to be made to the provisions of the 1922 Act. (ii) After the procedure provided for assessment of tax had run its course, and tax had been assessed, an executive-appellate remedy was provided for, before the Appellate Assistant Commissioner of Income Tax (under Section 30 of the 1922 Act). A further quasi-judicial appellate remedy, from decisions rendered by the first appellate authority, lay before an appellate tribunal (hereinafter referred to as the Appellate Tribunal). Section 33A was inserted by the Indian Income Tax (Amendment) Act, 1941. It provided for a remedy by way of revision before a Commissioner of Income Tax. (iii) The reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Tribunal, before the jurisdictional High Court. A case referred to the High Court under Section 66, was to be heard by a bench of not less than two judges of the High Court (Section 66A of the 1922 Act inserted by the Indian Income Tax (Amendment) Act, 1926). Section 66 of the 1922 Act, was amended by the Indian Income Tax (Amendment) Act, 1939, whereby the power to make a reference became determinable by the Commissioner of Income Tax (in place of the Appellate Tribunal). (vii) In exercise of the reference jurisdiction, a question of law, which had arisen in an appeal pending before the Appellate Tribunal, had to be determined by the High Court. After the jurisdictional High Court had answered the reference, the Appellate Tribunal would dispose of the pending appeal in consonance with the legal position declared by the High Court. 3(i) The 1922 Act was repealed by the Income Tax Act, 1961 (hereinafter referred to as, the Income Tax Act). As in the repealed enactment, so also under the Income Tax Act, an order passed by an assessing officer, was assailable through an executive-appellate remedy. The instant appellate remedy, was vested with the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income was assessed as not exceeding ₹ 5 lakhs). The President of the Appellate Tribunal, had the authority to constitute special benches, comprising of three or more Members (one of whom had to be a Judicial Member, and one, an Accountant Member). In case of difference of opinion, the matter was deemed to have been decided in terms of the opinion expressed by the majority. (v) An assessee or the Commissioner, could move an application before the Appellate Tribunal, under Section 256 of the Income Tax Act, requiring it to make a reference to the High Court on a question of law (arising in an appeal pending before the Appellate Tribunal). In case the prayer made in the application was declined by the Appellate Tribunal, the order (declining the prayer) was assailable before the High Court. (vi) Section 257 of the Income Tax Act provided for a reference directly to the Supreme Court. The instant reference could be made by the Appellate Tribunal, if it was of the opinion, that the question of law which had arisen before it, had been interpreted differently, by two or more jurisdictional High Courts. (vii) Section 260A was inserted in the Income Tax Act by the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act. On exhaustion of the above remedy, a further quasi-judicial appellate remedy was provided for, under Sections 129 and 129A before the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as, the CEGAT/Appellate Tribunal). CEGAT was also the appellate authority, against orders passed by the Board. With introduction of Service Tax, under Chapter V of the Finance Act, 1994, CEGAT was conferred the jurisdiction to hear appeals in cases pertaining to service tax disputes as well. The Appellate Tribunal is now known as the Customs, Excise and Service Tax Appellate Tribunal the CESTAT. By Act 22 of 2003, the expression Gold (Control) was substituted with Service Tax in the definition of the Appellate Tribunal (w.e.f. 14.5.2003). (iii) Section 129 of the Customs Act delineated the constitution of the CEGAT. It was to comprise of as many Judicial and Technical Members, as the Central Government thought fit. The instant provision, also laid down the conditions of eligibility for appointment of Judicial/Technical Members. A Judicial Member could be chosen out of persons, who had held a civil judicial post for at least 10 years, or out of per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a Judicial and a Technical Member [Section 129C(4)(b)]. In case of difference of opinion on any point(s), the opinion of the majority was to constitute the decision of the Appellate Tribunal. If Members were equally divided, the appeal was to be referred by the President, for hearing on such point(s), by one or more other Members of the Appellate Tribunal. Whereupon, the majority opinion was to be considered as the decision of the Appellate Tribunal. Sub-sections (7) and (8) of Section 129C provided as under:- (7) The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:- (a) discovery and inspection; (b) enforcing the attendance of any person and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions. (8) Any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Indian Penal Code 945 of 1860) and the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isen. (vii) The Appellate Tribunal was also authorized to make a reference directly to the Supreme Court (under Section 130A of the Customs Act). This could be done, in case the Appellate Tribunal was of the view, that there was a conflict of decisions of High Courts in respect of a question of law pending before it for decision. The decision of the Supreme Court, would then be applied by the Appellate Tribunal, for the disposal of the appeal out of which the reference had arisen. (viii) The Finance (No. 32) Act, 2003 introduced a new Section 130. The remedy of a reference to the jurisdictional High Court, was substituted by a remedy of an appeal to the High Court. The amended Section 130 of the Customs Act provided, that an appeal would lie to the High Court from every order passed by the Appellate Tribunal (on or after 1.7.2003), subject to the condition, that the High Court was satisfied, that the case involved a substantial question of law. In such an eventuality, the High Court would formulate the substantial question(s) of law. It was open to the High Court in exercise of its instant appellate jurisdiction, also to determine any issue which had not been decided by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal jurisdiction against appellate orders passed by the Commissioner (Appeals) under Section 35. In 1978, the revisional jurisdiction which hitherto before lay with the Board, was vested with the Collector of Central Excise. (iii) On the exhaustion of the first executive-appellate remedy, a further quasijudicial appellate remedy was provided for, under Section 35B of the Excise Act, to an Appellate Tribunal. The remedy of appeal before the Appellate Tribunal, could be availed of (a) against a decision or order passed by the Collector of Central Excise as an adjudicating authority, (b) against an order passed by the Collector (Appeals) under Section 35A of the Excise Act (as substituted by the Finance (No. 2) Act, 1980), (c) against an order passed by the Board or the Appellate Collector of Central Excise under Section 35 (as it stood before 21.8.1980), and (d) against an order passed by the Board or the Collector of Central Excise under Section 35A (as it stood before 21.8.1980). (iv) The Appellate Tribunal was to be comprised of such number of Judicial/Technical Members as the Central Government would think fit. Appointment of Judicial Members could only be made from amongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction, powers and authority of the Appellate Tribunal. Section 28 provided as under:- 28. Proceedings before the Appellate Tribunal to be judicial proceedings All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code (45 of 1860). A perusal of the above amendment reveals, that by a fiction of law, the Appellate Tribunal was deemed to be discharging judicial proceedings . (vi) Section 35G provided for a reference on any question of law, by the Appellate Tribunal, to the High Court. The aforesaid remedy could be availed of by filing an application before the Appellate Tribunal. Such an application could be filed by either the Collector of Central Excise, or the person on whom the excise duty was levied. A reference, on a question of law, made by the Appellate Tribunal, to the High Court, would be heard by a bench of not less than two judges. On the Appellate Tribunal's refusal to refer a question of law, the aggrieved party could assail the decision of the Appellate Tribunal (declining to make a reference), before the High Court. The jurisdictional High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction under Section 35G of the Excise Act, or on a reference made under Section 35G by the Appellate Tribunal before 1.7.2003, or on a reference made under Section 35H), to the Supreme Court. (ix) The NTT Act omitted Sections 35G, 35H, 35I and 35J of the Excise Act. The instant enactment provided for an appeal from every order passed by the Appellate Tribunal to the NTT, subject to the condition, that the NTT was satisfied, that the case involved a substantial question of law. On admission of an appeal, the NTT would formulate the substantial question of law, for hearing the appeal. Section 23 of the NTT Act provided, that on and from the date to be notified by the Central Government, all matters and proceedings including appeals and references, pertaining to direct/indirect taxes, pending before the jurisdictional High Courts, would stand transferred to the NTT. Section 24 of the NTT Act provided for an appeal from an order passed by the NTT, to the Supreme Court. Facts leading to the promulgation of the NTT Act: 6. The first Law Commission of independent India was established in 1955 for a three year term under the chairmanship of Mr. M.C. Setalvad, who was also the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by continuous sitting throughout the year. It was also suggested, that judges who sit on the Special Tax Benches , should be selected from those who had special knowledge, to deal with matters relating to direct tax laws. The Choksi Committee recommended, that the judges selected for the Special Tax Benches would be transferred to the Central Tax Court , as and when the same was constituted. It is, therefore apparent, that according to the recommendations of the Choksi Committee, the Central Tax Court was to comprise of judges of High Courts, or persons qualified to be appointed as High Court Judges. The recommendations of the Choksi Committee reveal, that the suggested Central Tax Court would be a special kind of High Court, to deal with issues pertaining to direct tax laws. This was sought to be clarified in paragraph 6.22 of the Choksi Committee's Report. 9. None of the recommendations referred to hereinabove were implemented, till a similar recommendation was again mooted in the early 1990s. After deliberating on the issue for a few years, the Union of India promulgated the National Tax Tribunal Ordinance, 2003. The Ordinance inter alia provided, for the transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority, devoid of essential ingredients of the superior court, sought to be replaced was constitutionally impermissible, and was liable to be set aside. Besides the appellate jurisdiction, the power of judicial review vested in High Courts under Articles 226 and 227 of the Constitution, has also been negated by the NTT Act. And therefore, the same be set aside. The third contention: Separation of powers, the rule of law, and judicial review, constitute amongst others, the basic structure of the Constitution. Article 323B inserted by the Constitution (Forty-second Amendment) Act, 1976, to the extent it is violative of the above mentioned components of the basic structure of the Constitution, is liable to be declared ultra vires the Constitution. The fourth contention: A number of provisions including Sections 5, 6, 7, 8 and 13 of the NTT Act, undermine the independence of the adjudicatory process vested in the NTT, and as such, are liable to be set aside in their present format. 11. We shall now narrate each of the above contentions advanced by the learned counsel for the petitioners, in the manner submissions were advanced before us. The first contention: 12. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be submitted, that the figures indicated by the Revenue, with reference to the amount of tax held up in pending cases, before High Courts was wholly flawed and deceptive. 14. It was also the contention of the learned counsel for the petitioners, that the mere establishment and creation of the NTT, would not result in uniformity of decisions pertaining to tax laws. In this behalf it was sought to be asserted, that just as in the manner two High Courts could differ with one another, so also, could two tax benches, of the NTT. On the factual front, it was pointed out, that divergence of opinion in High Courts was very rare. It was, as a matter of approximation, suggested, that in most cases (approximately 99%), one High Court would follow the view taken by another High Court. Learned counsel, however pointed out, that in High Courts an age-old mechanism, to resolve conflicts of views, by either placing such matters before larger benches, or before a higher court, was in place. Pointing out illustratively to the ITAT and the CESTAT, it was asserted, that there had been many cases of divergence of opinion, which were resolved by larger benches. It was, therefore sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Green Tribunal Act, 2010 Section 22. Appeal to Supreme Court Any person aggrieved by any award, decision or order of the tribunal, may, file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision or order of Tribunal, to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (5 of 1908) Provided that the Supreme Court may, entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal. (iii) The Telecom Regulatory Authority of India Act, 1997 Section 18. Appeal to Supreme Court (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall lie against any order, not being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section 100 of that code. (2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties. (3) Every appeal under this section shall be preferred within a period of ninety days from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the learned counsel for the petitioners, that it was impermissible for the legislature to abrogate/divest the core judicial appellate functions traditionally vested with the High Court, and to confer/vest the same, with an independent quasi-judicial authority, which did not even have the basic ingredients of a superior Court, like the High Court (whose jurisdiction is sought to be transferred). In conjunction with the instant contention, it was also the submission of the learned counsel, that the jurisdiction vested in the High Courts under Articles 226 and 227 of the Constitution, is not only in respect of the rightful implementation of statutory provisions, but also of supervisory jurisdiction, over courts and tribunals, cannot be curtailed under any circumstances. 20. In order to supplement the instant contention, learned counsel also placed reliance on Article 225 of the Constitution which is being extracted hereunder:- 225. Jurisdiction of existing High Courts - Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution, as was originally enacted by the Constitution (Forty-fourth Amendment) Act, 1978 (with effect from 20.6.1979). Thus viewed, according to the learned counsel for the petitioners, under the provisions of the Constitution, prevailing at the present juncture, the original jurisdiction of the High Court (i.e., the jurisdiction under Articles 226 and 227 of the Constitution), as also, the law administered by a High Court at the time of enactment of the Constitution, cannot be restricted. Accordingly, it was asserted, that on matters pertaining to revenue or the collection thereof, the adjudication authority of High Courts, could not be curtailed. 21. Articles 226 and 227 of the Constitution, on which emphatic reliance has been placed by the learned counsel, are being reproduced hereunder:- 226. Power of High Courts to issue certain writs (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. It was submitted, that the above original jurisdiction vested in the High Court to issue prerogative writs, has been shown to have been consciously preserved, for matters pertaining to levy and collection of tax. It was also submitted, that the enactment of the NTT Act has the clear and explicit effect, of excluding the jurisdiction of the High Courts. This was sought to be explained by indicating, that the jurisdiction to adjudicate appeals, traditionally determined by jurisdictional High Courts, from orders passed by Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these offences were cognizable only before a Resident Magistrate's Court, or before the Circuit Court of the Supreme Court of Jamaica. The Gun Court Act, 1974, also laid down the procedure to be followed (in each of the divisions). For certain specified offences relating to unauthorized possession, acquisition or disposal of firearms and ammunition, the Gun Court was required to mandatorily impose a sentence of detention on hard labour. A detenue could only be discharged, at the direction of the Governor-General, acting in accordance with the advice of the Review Board. The Review Board was a non-judicial body under the Gun Court Act, 1974. Lord Diplock while recording the majority view in Hinds case (supra), observed as under:- ..In seeking to apply to the interpretation of the Constitution of Jamaica what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their respective functions by these three organs of government. Thus the constitution does not normally contain any express prohibition on the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature. As respects the judicature, particularly if it is intended that the previously existing courts shall continue to function, the constitution itself may even omit any express provision conferring judicial power upon the judicature. Nevertheless it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively. To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their Lordships' view, be misleading - particularly those applicable to taxing statutes as to which it is a well-established principle that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended by whatever special procedure is laid down in the Constitution for this purpose, impose a fetter upon the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers. The remaining Chapters of the Constitutions are primarily concerned not with the legislature, the executive and the judicature as abstractions, but with the persons who shall be entitled collectively or individually to exercise the plenitude of legislative, executive or judicial powers - their qualifications for legislative, executive or judicial office, the methods of selecting them, their tenure of office, the procedure to be followed where powers are conferred on a class of persons acting collectively and the majorities required for the exercise of those powers. Thus, where a constitution on the Westminster model speaks of a particular 'court' already in existence when the Constitution comes into force it uses this expression as a collective description of all those individual judges who, whether sitting alone or with other judges or with a jury, are entitled to exercise the jurisdiction exercised by that court before the Constitution came into force. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and appointed as resident magistrates a jurisdiction which under the provisions of Chapter VII of the Constitution is exercisable only by a person qualified and appointed as a judge of the Supreme Court. The second ground is much less fundamental. It need only be mentioned briefly, for it arises only if the first ground fails. It is that even if the conferment of jurisdiction on a Full Court Division consisting of three resident magistrates is valid, section 112 of the Constitution requires that any assignment of a resident magistrate to sit in that division should be made by the Governor-General acting on the recommendation of the Judicial Service Commission and not by the Chief Justice as the 1974 Act provides. The question was dealt with, by opining as under:- Chapter VII of the Constitution, 'The Judicature,' was in their Lordships' view intended to deal with the appointment and security of tenure of all persons holding any salaried office by virtue of which they are entitled to exercise civil or criminal jurisdiction in Jamaica. For this purpose they are divided into two categories: (i) a higher judiciary, consisting of judges of the Supreme Court and ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years. In contrast to this, judges of the Supreme Court and of the Court of Appeal are given a more firmly rooted security of tenure. They are protected by entrenched provisions of the Constitution against Parliament passing ordinary laws (a) abolishing their office (b) reducing their salaries while in office or (c) providing that their tenure of office shall end before they attain the age of 65 years. They are not subject to any disciplinary control while in office. They can only be removed from office on the advice of the Judicial Committee of Her Majesty's Privy Council in the United Kingdom given on a reference made on the recommendation of a tribunal of inquiry consisting of persons who hold or have held high judicial office in some part of the Commonwealth. The manifest intention of these provisions is that all those who hold any salaried judicial office in Jamaica shall be appointed on the recommendation of the Judicial Service Commission and that their independence from political pressure by Parliament or by the Executive in the exercise of their judicial functions shall be assured by granting to them such degree of security of tenure in their office as is justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament from transferring the whole of the judicial power of Jamaica (with two minor exceptions referred to below) to bodies composed of persons who, not being members of 'the Judicature,' would not be entitled to the protection of Chapter VII at all. What the Attorney-General does not concede is that Parliament is prohibited by Chapter VII from transferring to a court composed of duly appointed members of the lower judiciary jurisdiction which, at the time the Constitution came into force, was exercisable only by a court composed of duly appointed members of the higher judiciary. In their Lordships' view section 110 of the Constitution makes it apparent that in providing in section 103 (1) that: 'There shall be a Court of Appeal for Jamaica ' the draftsman treated this form of words as carrying with it by necessary implication that the judges of the court required to be established under section 103 should exercise an appellate jurisdiction in all substantial civil cases and in all serious criminal cases; and that the words that follow, viz. 'which shall have such jurisdiction and powers as may be conferred upon it by this Constitution or any other law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt referred to in the words 'There shall be a Supreme Court for Jamaica' was a court which would exercise in Jamaica the three kinds of jurisdiction characteristic of a Supreme Court that have been indicated above. If, as contended by the Attorney-General, the words italicised above in section 97 (1) entitled Parliament by an ordinary law to strip the Supreme Court of all jurisdiction in civil and criminal cases other than that expressly conferred upon it by section 25 and section 44, what would be left would be a court of such limited jurisdiction that the label 'Supreme Court' would be a false description; so too if all its jurisdiction (with those two exceptions) were exercisable concurrently by other courts composed of members of the lower judiciary. But more important, for this is the substance of the matter, the individual citizen could be deprived of the safeguard, which the makers of the Constitution regarded as necessary, of having important questions affecting his civil or criminal responsibilities determined by a court, however named, composed of judges whose independence from all local pressure by Parliament or by the executive was guaranteed by a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been exceeded by the particular law. If, consistently with the Constitution, it is permissible for the Parliament to confer the discretion to determine the length of custodial sentences for criminal offences on a body composed as the Review Board is, it would be equally permissible to a less well-intentioned Parliament to confer the same discretion on any other person or body of persons not qualified to exercise judicial powers, and in this way, without any amendment of the Constitution, to open the door to the exercise of arbitrary power by the executive in the whole field of criminal law. xxxx xxxx xxxx Their Lordships would hold that the provisions of section 8 of the Act relating to the mandatory sentence of detention during the Governor- General's pleasure and the provisions of section 22 relating to the Review Board are a law made after the coming into force of the Constitution which is inconsistent with the provisions of the Constitution relating to the separation of powers. They are accordingly void by virtue of section 2 of the Constitution. (ii) In the same sequence, learned counsel for the petitioners invited our attention to Liyanage v. Reginam, (1966) 1 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 of 1962, were invalid for the two reasons. Firstly, under the Constitution of Ceylon, there was a separation of powers. The power of the judicature, while the Constitution stood, could not be usurped or infringed by the executive or the legislature. Secondly, the Criminal Law (Special Provisions) Act, No. 1 of 1962, as well as, the Criminal Law Act, No. 31 of 1962 were aimed at individuals concerned in an abortive coup, and were not legislation effecting criminal law of general application. Although not every enactment ad hominem, and ex post facto, necessarily infringed the judicial power, yet there was such infringement in the present case, by the above two Acts. In addition to the above conclusions, it was also held, that the joint effect of the Ceylon Constitution Order in Council 1946, and the Ceylon Independence Act, 1947, was intended to, and resulted in, giving the Ceylon Parliament, full legislative powers of an independent sovereign State. Consequently, the legislative power of the Ceylon Parliament, was not limited by inability to pass laws, which offended fundamental principles of justice. The Privy Council while examining the above controversy, rendered the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. There is also provision that judges shall not be removable except by the Governor-General on an address of both Houses. These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature. Counsel for the appellants succinctly summarises his attack on the Acts in question as follows. The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troactive: they were also ad hoc, applicable only to the conspiracy which was the subject of the charges we have tried. We are unable to understand this discrimination. To the courts, which must be free of political bias, treasonable offences are equally heinous, whatever be the complexion of the Government in power or whoever be the offenders. Their Lordships sympathise with that protest and wholly agree with it. One might fairly apply to these Acts the words of Chase J., in the Supreme Court of the United States in Calder v. Bull: These acts were legislative judgments; and an exercise of judicial power. Blackstone in his Commentaries, Vol. I (4th Edition), p. 44, wrote: Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in General: it is rather a sentence than a law. If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Privy Council, while examining the controversy, opined as under:- Section 29 of the Juveniles Act 1951 [3] Section 3 of the Offences against the Person Act 1864, as amended, provides that every person convicted of capital murder shall be sentenced to death. But special provision has been made for those who commit this crime when aged under 18. Following a number of amendments made pursuant to section 4 of the Jamaica (Constitution) Order in Council 1962 (SI 1962/1500), section 29 of the Juveniles Act 1951 now provides, so far as material to the main issue in this appeal, as follows: (1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of 18 years, but in place thereof the court shall sentence him to be detained during Her Majesty's pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Law, be liable to be detained in such place (including, save in the case of a child, an adult correctional centre) and under such conditions as the Minister may direct, and while so detained shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l liberty not in execution of the sentence or order of a court but at the discretion of the executive. Such a person is not afforded a fair hearing by an independent and impartial court, because the sentencing of a criminal defendant is part of the hearing and in cases such as the present sentence is effectively passed by the executive and not by a court independent of the executive. xxx xxx xxx [13] ..It does indeed appear that the sentencing provisions under challenge in the Hinds case were held to be unconstitutional not because of their repugnancy to any of the rights guaranteed by sections in Chapter III of the Constitution but because of their incompatibility with a principle on which the Constitution itself was held to be founded. There appears to be no reason why (subject to the other arguments considered below) the reasoning in the Hindscase does not apply to the present case. It would no doubt be open to the Board to reject that reasoning, but it would be reluctant to depart from a decision which has stood unchallenged for 25 years, the more so since the decision gives effect to a very important and salutary principle. Whatever overlap there may be under constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld an enquiry under the Racial Discrimination Act, 1975 against Harry Brandy, was exercised by the second defendant. The second defendant had been appointed under Section 24 of the Racial Discrimination Act, 1975, which empowered the Minister, to appoint a person to perform and discharge the functions of the Commissioner. The second defendant returned his findings under Section 25Z of the Racial Discrimination Act, 1975 on 22.12.1993. The defendant's complaint was found to be substantiated. In disposing of the controversy, the second defendant required Harry Brandy, the plaintiff, to do the following acts/course of conduct:- (1) that the Plaintiff do apologise to the Third Defendant, the form of the apology being annexed to the determination; (2) that the Plaintiff do pay the sum of $2 500 to the Third Defendant by way of damages for the pain, humiliation, distress and loss of personal dignity suffered by the Third Defendant; (3) that ATSIC do take disciplinary action against the Plaintiff, in relation to the conduct which he perpetrated against the Third Defendant; (4) that ATSIC do apologise to the Third Defendant in relation to the handling of his complaint, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able decision reached by applying the relevant principles of law to the facts as found. xxx xxx xxx 25. Turning to the case before the Court, whatever might be the enforceability of a declaration that the plaintiff do apologise , a declaration that the plaintiff do pay the sum of $2 500 to the third defendant, once registered, attracts the operation of s.53 of the Federal Court of Australia Act 1976 (Cth). By that section, a person in whose favour a judgment is given is entitled to the same remedies for enforcement, by execution or otherwise, as are allowed by the laws of the State or Territory applicable. In the present case, this means New South Wales. Section 53 does not affect the operation of any provision made by or under any other Act or the Rules of Court for the execution and enforcement of judgments of the Court (40 s.53(2)) . 26. But s.25ZAB goes beyond providing the machinery for the enforcement of a determination. It purports to give a registered determination effect as if it were an order made by the Federal Court . A judicial order made by the Federal Court takes effect as an exercise of Commonwealth judicial power, but a determination by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al system, would be gravely undermined. Section 96 has thus come to be regarded as limiting provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and therefore as implicitly limiting provincial competence to endow a provincial tribunal with such powers. IV The belief that any function which in 1867 had been vested in a s. 96 Court must forever remain in that Court reached its apogee in the judgment of Lord Atkin in Toronto Corporation v. York Tp. Et. Al., (1938) 1 DLR 593, (1938) AC 415, (1938) 1 WWR 452. Describing s. 96 as one of the three principal pillars in the temple of justice not to be undermined , Lord Atkin held that the Ontario Municipal Board could not validly receive judicial authority . At the same time, he held that the Municipal Board was in 'pith and substance' an administrative body, and the impugned 'judicial functions' were severable from the administrative powers given to the Board under its enabling legislation. There was no analysis of the interrelationship between the judicial and administrative features of the legislative scheme; the assumption was that any attempt to confer a s. 96 function on a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fend or compromise the proceedings. If the answer to the initial question as to judicial power is in the negative, then that concludes the matter in favour of the provincial board. If, however, the power is in fact a judicial power, then it becomes necessary to ask a second question: in the exercise of that power, is the tribunal analogous to a Superior, District or County Court? xxx xxx xxx Step two involves consideration of the function within its institutional setting to determine whether the function itself is different when viewed in that setting. In particular, can the function still be considered to be a 'judicial' function? In addressing the issue, it is important to keep in mind the further statement by Rand J. in Dupont v. Inglis (at p. 424 DLR, p. 543 SCR) that it is the subject-matter rather than the apparatus of adjudication that is determinative . Thus the question of whether any particular function is 'judicial' is not to be determined simply on the basis of procedural trappings. The primary issue is the nature of the question which the tribunal is called upon to decide. Where the tribunal is faced with a private dispute between parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is imperative to proceed to the third and final step. The third step contemplates analysis and review of the administrative tribunal's functions as a whole, and to examine the same in its entire institutional context. It contemplated an examination of the interrelationship between the administrative tribunal's judicial powers, and the other powers and jurisdiction conferred by the legislative enactment. If a judicial hearing is a must, whereafter a judgment was required to be rendered, the administrative tribunal would be deemed to be exercising jurisdiction which is ordinarily vested in a Court . It is after recording a finding in the affirmative on all the three steps, that it will be possible to conclude, whether judicial functions have been required to be exercised by the concerned administrative tribunal. Having examined the controversy in Reference Re Residential Tenancies Act (supra), the Supreme Court of Canada arrived at the conclusion, that the Residential Tenancy Commission could have been authorized to grant orders for possession to a landlord or to grant orders for specific performance of a tenancy. 23. Finally, learned counsel for the petitioners placed relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies which are not courts is likewise subject to no general prohibition. However, here there is an important qualification to be made. The courts have held that the provincial Legislatures may not confer on a body other than a superior, district or county court judicial functions analogous to those performed by a superior, district or county court. This little separation of powers doctrine has been developed to preclude evasion of the stipulations of ss. 96 to 100 of the constitution Act, 1867. If ss. 96 to 100 of the constitution Act, 1867 were read literally, they could easily be evaded by a province which wanted to assume control of its judicial appointments. The province could increase the jurisdiction of its inferior courts so that they assumed much of the jurisdiction of the higher courts; or the province could best higher-court jurisdiction in a newlyestablished tribunal, and call that tribunal an inferior court or an administrative tribunal. It is therefore not surprising that the courts have added a gloss to s. 96 and the associated constitutional provisions. What they have said is this: if a province invests a tribunal with a jurisdiction of a kind that ought property t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners, that the proposition of law highlighted hereinabove on the basis of the provisions of constitutions of different countries (Jamaica, Ceylon, Australia and Canada) decided either by the Privy Council or the highest courts of the concerned countries, is fully applicable to India as well. In order to demonstrate this, he placed reliance on State of Maharashtra v. Labour Law Practitioners' Association, (1998) 2 SCC 688. The controversy in the cited case originated with the filing of a writ petition by the respondent Association challenging the appointment of Assistant Commissioners of Labour (i.e., Officers discharging executive functions under the Labour Department). The above appointments had been made, consequent upon amendments to the provisions of the Bombay Industrial Relations Act, and the Industrial Disputes (Maharashtra Amendment) Act. The submission advanced at the hands of the respondent Association was, that Labour Courts had been constituted in the State of Maharashtra, under the Industrial Disputes Act, the Bombay Industrial Relations Act, as also, the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices, Act. Qualifications of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five years; or (b) he has practiced as an Advocate or Attorney for not less than seven years in the High Court or any court subordinate thereto, or in any Industrial Court, Tribunal or Labour Court constituted under any law for the time being in force; or (c) he holds a degree in law of a University established by law in any part of India and is holding or has held an office not lower in rank than that of Deputy Registrar of any such Industrial Court or Tribunal, or of Assistant Commissioner of Labour under the State Government, in both cases for not less than five years. In the first instance, this Court for the first time declared the salient components of the functions exercised by a civil court , as under:- 6. In the case of The Bharat Bank Ltd. v. Employees, AIR 1950 SC 188, this Court considered whether an Industrial Tribunal was a court. It said that one cannot go by mere nomenclature. One has to examine the functions of a Tribunal and how it proceeds to discharge those functions. It held that an Industrial Tribunal had all the trappings of a court and performed functions which cannot but be regarded as judicial. The Court referred to the Rules by which proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The High Court has, therefore, correctly interpreted the observations of this Court in Chandra Mohan vs. State of U.P., AIR 1966 SC 1987, as giving paramount importance to the enforcement of the constitutional scheme providing for independence of the judiciary. The concern of the court was to see that this independence was not destroyed by an indirect method. xxx xxx xxx 18. In the case of Shri Kumar Padma Prasad v. Union of India Ors., (1992) 2 SCC 428, this Court had to consider qualifications for the purpose of appointment as a Judge of the High Court under Article 217 of the Constitution. While interpreting the expression judicial office under Article 217(2)(a), this Court held that the expression judicial office must be interpreted in consonance with the scheme of Chapters V and VI of Part VI of the Constitution. So construed it means a judicial office which belongs to the judicial service as defined under Article 236(b). Therefore, in order to qualify for appointment as a judge of a High Court, a person must hold a judicial office which must be a part of the judicial service of the State. After referring to the cases of Chandra Mohan (supra) and Statesman (Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with the Rules framed by the Governor of the State after consultation with the State Public Service Commission and with the High Court. Article 235 provides that the control over district courts and courts subordinate thereto shall be vested in the High Court; and Article 236 defines the expression District Judge extensively as covering judges of a City Civil Court etc. as earlier set out, and the expression judicial service as meaning a service consisting exclusively of persons intended to fill the post of the District Judge and other civil judicial posts inferior to the post of District Judge. Therefore, bearing in mind the principle of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge. The High Court has rightly come to the conclusion that the persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Court judges is required to be made in accordance with Article 234 of the Constitution. 25. According to the learned counsel for the petitioners, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws. (2) The matters referred to in clause (1) are the following, namely:- (a) levy, assessment, collection and enforcement of any tax; (b) foreign exchange, import and export across customs frontiers; (c) industrial and labour disputes; (d) land reforms by way of acquisition by the State of any estate as defined in article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way; (e) ceiling on urban property; (f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in article 329 and article 329A; (g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as before a court of law, was to be substituted in its entirety. Thereby, even the existing appellate process which was vested in High Courts was sought to be substituted by tribunals. It was submitted, that creation of a parallel judicial system, was alien to the provisions of the Constitution, which recognized the judiciary as an independent component, separate from the executive and the legislature. It was accordingly vehemently asserted, that the process of justice was being substituted, by tribunalization of justice, which was clearly unacceptable under the Constitution. Sub-clause (d) of Article 323B(3), according to the learned counsel for the petitioners, divested jurisdiction vested in all civil courts for the adjudication of the matters on the subjects referred to in Article 323B(2), including not only the appellate jurisdiction of High Courts, but also, the power of judicial review vested in High Courts under Articles 226 and 227, of the Constitution. It was also the contention of the learned counsel for the petitioners, that despite decisions rendered by this Court, the legislature has repeated and reiterated what had been found to be unsustainable in law. 28. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is considered inappropriate, to refer to all the judgments relied upon by the rival parties on the instant issue. Suffice it to state, that the same will be examined, only while recording conclusions. The fourth contention: 30. While advancing the fourth contention, learned counsel for the petitioners referred to various provisions of the NTT Act, which would have the effect of compromising the independence of the NTT. We may briefly refer to the provisions of the said Act, highlighted by the learned counsel for the petitioners, during the course of hearing, as under:- (i) First and foremost, reference was made to Section 5 of the NTT Act. The same is being extracted hereunder:- 5. Constitution and jurisdiction of Benches- (1) the jurisdiction of the National Tax Tribunal may be exercised by the Benches thereof to be constituted by the Chairperson. (2) The Benches of the National Tax Tribunal shall ordinarily sit at any place in the National Capital Territory of Delhi or such other places as the Central Government may, in consultation with the Chairperson, notify: Provided that the Chairperson may for adequate reasons permit a Bench to hold its temporary sitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the petitioners referred to Section 6 of the NTT Act to demonstrate, that the same would also have an undermining effect on the adjudicatory process. Section 6 of the NTT Act is reproduced hereunder:- 6. Qualifications for appointment of Chairperson and other Members (1) The Chairperson of the National Tax Tribunal shall be a person who has been a Judge of the Supreme Court or the Chief Justice of a High Court. (2) A person shall not be qualified for appointment as Member unless he- (a) is, or has been, or is eligible to be, a Judge of a High Court; or (b) is, or has been, a Member of the Income-tax Appellate Tribunal or of the Customs, Excise and Service Tax Appellate Tribunal for at least five years. Learned counsel for the petitioners pointed out, that sub-section (2), aforementioned, laid down the qualifications for appointment as Member of the NTT. Referring to clause (a) of sub-section (2) of Section 6 of the NTT Act it was submitted, that a person who is eligible to be a judge of a High Court, is to be treated as eligible as a member of the NTT. Inviting our attention to Article 217 of the Constitution it was submitted, that a person who is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government on the recommendations of a Selection Committee consisting of- (a) the Chief Justice of India or a Judge of the Supreme Court nominated by him; (b) the Secretary in the Ministry of Law and Justice (Department of Legal Affairs); (c) the Secretary in the Ministry of Finance (Department of Revenue). (3) No appointment of the Chairperson or of any other Member shall be invalidated merely by reason of any vacancy or any defect in the constitution of the Selection Committee. A perusal of sub-section (2) of Section 7 reveals the composition of the selection committee for selection of the Chairperson and Members of the NTT. It was sought to be pointed out, that there were two representatives of the executive, out of three member selection committee, and only one member in the selection committee was from the judiciary. Accordingly it was asserted, that the two representatives belonging to the executive would control the outcome of every selection process. Since the NTT was, an alternative to the jurisdiction earlier vested with the High Court, it was submitted, that the same process of selection, as was prevalent for appointment of judges of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. Explanation For the purposes of this Section,- (a) chartered accountant means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act; (b) legal practitioner means an advocate, a vakil or any attorney of any High Court, and includes a pleader in practice. It was submitted, that besides allowing the assessee to represent himself before the NTT, Section 13 allows him to be represented through one or more Chartered Accountants or legal practitioners. Thus far, according to learned counsel for the petitioners, there seemed to be no difficulty in Section 13(1) of the NTT Act. However, allowing any person duly authorized by the assessee to represent him before the NTT, is clearly ununderstandable. It was submitted, that the main function of the NTT would be to settle substantial questions of law on tax issues, and as such, under Section 13(1), it would be open to an assessee to engage an individual to represent him, even though he is totally unqualified in the fields on which the adjudicatory p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be pointed out, that as per the Centre for Monitoring Indian Economy Database, Indian companies have a vast amount locked in disputed taxes. As per the above report, during the Financial Year 2011-2012; 30 companies that make up the Bombay Stock Exchange sensex, had money locked in disputed taxes estimated at ₹ 42,388 crores. The above disputed tax liability, according to the learned counsel for the respondents, was a 27% increase from the amount of the preceding year, which was estimated at ₹ 33,339 crores. 32. In respect of disputes on direct taxes, it was submitted, that in a written reply submitted by the Minster of State for Finance, the Lok Sabha was informed in April, 2012, that 5,943 tax cases were pending with the Supreme Court, and 30,213 direct tax cases were pending with High Courts. It was submitted that the Lok Sabha was additionally informed, that the disputed amount of tax, at various levels, was estimated at ₹ 4,36,741 crores, as on 31.12.2011. It was further sought to be asserted, that in the preceding year, the estimate in respect of the disputed amount at various levels, was to the tune of ₹ 2,43,603 crores. Accordingly it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t number of unresolved cases. It was submitted, that the addition of cases each year, added not only to the inconvenience of the taxpayer, but also to the revenue earned by the government. It was pointed out, that the instant state of affairs created an uncertain and destabilized business environment, with taxpayers not being able to budget, for tax costs. Importantly such uncertainty, according to the learned counsel, emerged out of the two factors. Firstly, the law itself was complex, and therefore, uncertain. And secondly, for an interpretation of the law to achieve a degree of certainty at the Supreme Court level, required several rounds of litigation. It was submitted, that in view of the above, the current scenario called for reforms in the dispute resolution mechanism, and the introduction of, conscious practices and procedures, aimed at limiting the initiation, as well as, the prolongation of tax disputes. It is, therefore, the submission of the learned counsel for the respondents, that the assertions made at the hands of the petitioners, while projecting the first contention, were wholly misconceived, and as such, are liable to be rejected. The second contention: 36. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very start we may observe that the jurisdiction of the Civil Courts is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. This is the purport of Section 9 of the Code of Civil Procedure. How Section 9 operates is perhaps best illustrated by referring to the categories of cases, mentioned by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, [1859] 6 C.B. (NS) 336 - They are : One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statue gives the right to sue merely, but provides, no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. 38. In addition to the above submissions, it was sought to be asserted that the Income Tax Act expressly barred the jurisdiction of civil courts. Reference in this behalf was made to Section 293 of the Income Tax Act, which is being extracted hereunder: 293. Bar of suits in civil courts. No suit shall be brought in any civil court to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not exist independently of the section; the section uno flatu in the breath gives a specific remedy and appoints a specific tribunal for its enforcement, namely the General Commission or Special Commissioners. In those circumstances in my judgment, the taxpayer must resort to that remedy and that tribunal. In due course if dissatisfied with the decision of the commissioners concerned he can appeal to the high court by way Case Stated, but any original jurisdiction of the high court by declaration or otherwise, is, in my judgment, excluded. The contentions of the petitioners, that substituting Section 260A of the Income Tax Act and divesting the High Court of the appellate remedy and vesting it in the NTT, is unconstitutional as it constitutes an inroad into the principles of the rule of law and independence of judiciary, according to learned counsel, are fallacious. 41. According to the learned counsel for the respondents, the fallacy in the petitioners argument is, that they are overlooking the fact that as far as the NTT Act is concerned, there is no common law remedy which has now been divested. Section 260A of the Income Tax Act and Section 35(g), (h), (i) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statute substitutes the word tribunal in place of the High Court necessarily there will be whole-sale transfer of company law matters to the tribunals. It is an inevitable consequence of creation of a tribunal, for such disputes, and will no way affect the validity of the law creating the tribunal. 42. Similarly, statutory provisions providing for a revision to the District Judge, with the finality clauses, have been interpreted to exclude the revisionary powers of the High Court under Section 115 of CPC. In this behalf reference was made to, Aundal Ammal v. Sadasivan Pilai, (1987) 1 SCC 183, wherein it was held as under: 15. Under the scheme of the Act it appears that a landlord who wants eviction of his tenant has to move for eviction and the case has to be disposed of by the Rent Control Court. That is provided by Sub-section(2) of Section 11 of the Act. From the Rent Control Court, an appeal lies to the Appellate Authority under the conditions laid down under Sub-section (l)(b) of Section 18 of the Act. From the Appellate Authority a revision in certain circumstances lies in case where the appellate authority is a Subordinate Judge to the District Court and in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 115 of the CPC. In that view of the matter, the Full Bench rejected the view of the division bench of the Kerala High Court in Kurien v. Chacko [1960] KLT 1248. With respect, we are unable to sustain the view of the Full Bench of the High Court on this aspect of the matter. In our opinion, the Full Bench misconstrued the provisions of subsection (5) of Section 18 of the Act. Sub-section (5) of Section18 clearly states that such decision of the appellate authority as mentioned in Section 18 of the Act shall not be liable to be questioned except in the manner under Section 20 of the Act. There was thereby an implied prohibition or exclusion of a second revision under Section 115 of the CPC to the High Court when a revision has been provided under Section 20 of the Act in question. When Section 18(5) of the Act specifically states that shall not be liable to be called in question in any Court of law except in the manner provided under Section 20, it cannot be said that the High Court which is a court of law and which is a civil court under the CPC under Section 115 of the CPC could revise again an order once again after revision under Section20 of the Act. That would mean there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcisable by a High Court under Section 115 Code of Civil Procedure Under Section 20 the Revisional Authority is entitled to satisfy itself about the legality regularity, or propriety of the orders sought to be revised. Not only that, the Appellate Authority and the Revisional Authority have been expressly conferred powers of remand under Section 20A of the Act. Therefore, a party is afforded an opportunity to put forth his case before the Rent Control Court and then before the Appellate Authority and there after if need be before the Court of Revision viz. the District Court if the Appellate Authority is of the rank of a Subordinate Judge. The Legislature in its wisdom has thought that on account of the ample opportunity given to a party to put forth his case before three courts, viz. the Trial Court, the Appellate Court and the Revisional Court, there was no need to make the revisional order of the District Court subject to further scrutiny by the High Court by means of a second revision either under the Act or under the Code of Civil Procedure. It has been pointed out in Aundal Ammal's case (supra) that the full Bench of the Kerala High Court had failed to construe the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept as provided for in Section 20. These additional words clearly spell out the prohibition or exclusion of a second revision under Section 115 Code of Civil Procedure to the High Court against a revisional order passed by a District Court under Section 20 of the Act. This position has been succinctly set out in para 20 of the judgment in Aundal Ammal's case (supra). As was noticed in Vishesh Kumar's case, the intent behind the bifurcation of the jurisdiction is to reduce the number of revision petitions filed in the High Court and for determining the legislative intent, the Court must as far as possible construe a statute in such a manner as would advance the object of the legislation and suppress the mischief sought to be cured by it. 43. Most importantly, a nine-Judge constitution bench judgment of this Court, in Mafatlal Industries v. Union of India (1997) 5 SCC 536, while dealing with the validity of Section 11B(3) of the Excise Act, held as follows: 77. Hereinbefore, we have referred to the provisions relating to refund obtaining from time to time under the Central Excise and Salt Act. Whether it is Rule 11 (as it stood from time to time) or Section 11-B (as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is a bar upon a bar - an aspect emphasised in Para 23 (supra), and has to be respected so long as it stands. The validity of these provisions has never been seriously doubted. Even though in certain writ petitions now before us, validity of the 1991 (Amendment) Act including the amended Section 11-B is questioned, no specific reasons have been assigned why a provision of the nature of Sub-section (3) of Section11- B (amended) is unconstitutional. Applying the propositions enunciated by a seven-Judge Bench of this Court in Kamala Mills case, AIR 1965 SC 1942, it must be held that Section 11-B (both before and after amendment) is valid and constitutional. In Kamala Mills, this Court upheld the constitutional validity of Section 20 of the Bombay Sales Tax Act (set out hereinbefore) on the ground that the Bombay Act contained adequate provisions for refund, for appeal, revision, rectification of mistake and for condonation of delay in filing appeal/revision. The Court pointed out that had the Bombay Act not provided these remedies and yet barred the resort to civil court, the constitutionality of Section 20 may have been in serious doubt, but since it does provide such remedies, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter and the express and additional bar and exclusivity contained in Rule 11/Section 11-B, at all points of time, it must be held that any and every ground including the violation of the principles of natural justice and infraction of fundamental principles of judicial procedure can be urged in these appeals, obviating the necessity of a suit or a writ petition in matters relating to refund. Once the constitutionality of the provisions of the Act including the provisions relating to refund is beyond question, they constitute law within the meaning of Article 265 of the Constitution. It follows that any action taken under and in accordance with the said provisions would be an action taken under the authority of law , within the meaning of Article 265. In the face of the express provision which expressly declares that no claim for refund of any duty shall be entertained except in accordance with the said provisions, it is not permissible to resort to Section 72 of the Contract Act to do precisely that which is expressly 88 prohibited by the said provisions. In other words, it is not permissible to claim refund by invoking Section 72 as a separate and independent remedy whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was ultra vires the provisions of the Constitution. Insofar as the instant aspect of the matter is concerned, learned counsel for the respondents, first placed reliance on Article 246 of the Constitution. Article 246 is being extracted hereunder: 246. Subject-matter of laws made by Parliament and by the Legislatures of States (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List ). (2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List ). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List ). (4) Parliament has power to make laws with respect to any matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude the jurisdiction of a High Court. Relying on entries 82 to 84, it was the submission of the learned counsel for the respondents, that on matters of income-tax, customs duty and excise duty, the power to legislate was unequivocally vested with the Parliament. Reliance was placed on entry 95, to contend, that the extent of the jurisdiction of all courts including the High Court, in respect of matters expressed in List I could also be laid down by the Parliament. Referring again to entries 82 to 84 it was submitted, that the extension or exclusion of jurisdiction on tax matters, was also within the domain of Parliament. So as to assert, that in case this Court was of the view, that the subject of the legislation contained in the NTT Act did not find mention, in any of the three Lists of the Seventh Schedule of the Constitution, the submission on behalf of the respondents was, that Parliament would still have the authority to legislate thereon, under entry 97 contained in List I of the Seventh Schedule. 45. Learned counsel for the respondents, also placed reliance on entries 11A and 46 contained in List III of Seventh Schedule. The above entries are being extracted hereunder: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution (Forty-second Amendment) Act, 1976. The above provisions were included in the newly enacted Part XIV A of the Constitution. It was asserted, that the instant amendment of the Constitution was made for achieving two objectives. Firstly, to exclude the power of judicial review of the High Courts and the Supreme Court, totally. Thus excluding judicial review in its entirety. And secondly, to create independent specialized tribunals, with power of judicial review, which would ease the burden of the High Courts and the Supreme Court. It was however acknowledged by learned counsel representing the respondents, that the first of the above mentioned objectives, was interpreted by this Court in L. Chandra Kumar v. Union of India (1997) 3 SCC 261, which struck down clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, to the extent the amended provisions introduced by the Forty-second Amendment to the Constitution, excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32/136 respectively. Insofar as the second objective is concerned, placing reliance in L. Chandra Kumar case (supra), it was the contention of the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners, were misconceived and unacceptable. 50. Besides the submissions noticed hereinabove, it was also contended on behalf of the respondents, that the assertion made by the petitioners, that appellate jurisdiction on substantial questions of law could not be vested with the NTT, was fallacious. In this behalf, it was sought to be reiterated, that jurisdiction of civil courts (including the original side of the High Court) was barred in respect of tax related issues. It was sought to be explained, that a case could involve questions of fact, as well as, questions of law right from the stage of the initial adjudicatory authority. But, it was pointed out, that only cases involving substantial questions of law would qualify for adjudication at the hands of the NTT. As such, placing reliance on the decision in Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, it was submitted, that the above contention raised by the petitioners had no legs to stand. Furthermore, it was sought to be pointed out, that the phrase substantial questions of law has been interpreted by this Court to mean, not only questions of general pubic importance, but also questions which would di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323-B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 323- A and 323-B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose. 82. There are pressing reasons why we are anxious to preserve the conferment of such a power on these Tribunals. When the Framers of our Constitution bestowed the powers of judicial review of legislative action upon the High Courts and the Supreme Court, they ensured that ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... level committees appointed by the Central Government, and are particularly noteworthy. (Report of the High Court Arrears Committee, 1949; LCI, 14th Report on Reform of Judicial Administration (1958); LCI, 27th Report on Code of Civil Procedure, 1908 (1964); LCI, 41st Report on Code of Criminal Procedure, 1898 (1969); LCI, 54th Report of Code of Civil Procedure, 1908 (1973); LCI, 57th Report on Structure and Jurisdiction of the Higher Judiciary (1974); Report of High Court Arrears Committee, 1972; LCI, 79th Report on Delay and Arrears in High Courts and other Appellate Courts (1979); LCI, 99th Report on Oral Arguments and Written Arguments in the Higher Courts (1984); Satish Chandra s Committee Report 1986; LCI, 124th Report on the High Court Arrears A Fresh Look (1988); Report of the Arrears Committee (1989-90). 85. An appraisal of the daunting task which confronts the High Courts can be made by referring to the assessment undertaken by the LCI in its 124th Report which was released sometime after the judgment in Sampath Kumar s case (supra). The Report was delivered in 1988, nine years ago, and some changes have occurred since, but the broad perspective which emerges is still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has original jurisdiction, suits and other proceedings in exercise of that jurisdiction. This varied jurisdiction has to some extent been responsible for a very heavy institution of matters in the High Courts. 86. After analysing the situation existing in the High Courts at length, the LCI made specific recommendations towards the establishment of specialist Tribunals thereby lending force to the approach adopted in Sampath Kumar s case (supra). The LCI noted the erstwhile international judicial trend which pointed towards generalist courts yielding their place to specialist Tribunals. Describing the pendency in the High Courts as catastrophic, crisis-ridden, almost unmanageable, imposing an immeasurable burden on the system , the LCI stated that the prevailing view in Indian Jurisprudence that the jurisdiction enjoyed by the High Court is a holy cow required a review. It, therefore, recommended the trimming of the jurisdiction of the High Courts by setting up specialist courts/Tribunals while simultaneously eliminating the jurisdiction of the High Courts. 87. It is important to realise that though the theory of alternative institutional mechanisms was propoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach. The next is their constitution, the power and method of appointment of personnel thereto, the inferior status and the casual method of working. The last is their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning. For these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such tribunals. 8.64 Even the experiment of setting up of the Administrative Tribunals under the Administrative Tribunals Act, 1985, has not been widely welcomed. Its members have been selected from all kinds of services including the Indian Police Service. The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to be constitutionally valid. 8.66 The overall picture regarding the tribunalisation of justice in our country is not satisfactory and encouraging. There is a need for a fresh look and review and a serious consideration before the experiment is extended to new areas of fields, especially if the constitutional jurisdiction of the High Courts is to be simultaneously ousted. Not many tribunals satisfying the aforesaid tests can possibly be established. Having expressed itself in this manner, the Malimath Committee specifically recommended that the theory of alternative institutional mechanisms be abandoned. Instead, it recommended that institutional changes be carried out within the High Courts, dividing them into separate divisions for different branches of law, as is being done in England. It stated that appointing more Judges to man the separate divisions while using the existing infrastructure would be a better way of remedying the problem of pendency in the High Courts. 89. In the years that have passed since the Report of the Malimath Committee was delivered, the pendency in the High Courts has substantially increased and we are of the view that its recommendati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. 91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain s case (supra), after taking note of these facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. 94. The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, would also include tribunals administering justice, yet the impugned Act was unconstitutional, as it had the effect of eroding the independence of the judiciary, besides being irrational, discriminatory, unreasonable and arbitrary. As such it was held, that the provisions of the enactment were violative of the mandate contained in Article 14 of the Constitution. The High Court, in its judgment, also quashed the appointment of Presiding Officers of the tribunal. While adjudicating upon the above controversy in reference to some of the issues that have been raised before us, our pointed attention was invited to the following observations: 21. .. Sub-section (20) of Section 19 provides that after giving the applicant and the defendant an opportunity of being heard, the Tribunal may pass such interim or final order as it thinks fit to meet the ends of justice. It is after this order that a certificate is issued by the Presiding Officer to the Recovery Officer for recovery of money. Section 22 of the Act has not been amended. Therefore, reading Sections 19 and 22 of the Act together, it appears that the Tribunal and the Appellate Tribunal are to be guided by the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by affidavit, or it may order that the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to Rule 12(6) would certainly apply only where the Tribunal chooses to issue a direction on its own, for any particular fact to be proved by affidavit or the affidavit of a witness being read at the hearing. The said proviso refers to the desire of an applicant or a defendant for the production of a witness for crossexamination. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time, if it appears to the Tribunal, that such a witness can be produced and it is necessary to do so and there is no desire to prolong the case that it shall require the witness to be present for cross-examination and in the event of his not appearing, then the affidavit shall not be taken into evidence. When the High Courts and the Supreme Court in exercise of their jurisdiction under Article 226 and Article 32 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Presiding Officer of a Tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer of the Appellate Tribunal he is, or has been, qualified to be a Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade I for at least three years or has held office as the Presiding Officer of a Tribunal for at least three years. Persons who are so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously. It has to be borne in mind that the decision of the Appellate Tribunal is not final, in the sense that the same can be subjected to judicial review by the High Court under Articles 226 and 227 of the Constitution. 26. With the establishment of the Tribunals, Section 31 provides for the transfer of pending cases from civil courts to the Tribunal. We do not find such a provision being in any way bad in law. Once a Debts Recovery Tribunal has been established, and the jurisdiction of courts barred by Section 18 of the Act, it would be only logical that any matter pending in the civil court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, including provisions relating to arrest and detention of the defaulter. It cannot, therefore, be said that the Recovery Officer would act in an arbitrary manner. Furthermore, Section 30, after amendment by the Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the Recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law. 31. For the aforesaid reasons, while allowing the appeals of the Union of India and the Banks, we hold that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is a valid piece of legislation. As a result thereof, the writ petitions or appeals filed by various parties challenging the validity of the said Act or some of the provisions thereof, are dismissed. It would be open to the parties to raise other contentions on the merits of their cases before the authority constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List III as Item 11-A. 13. By virtue of clause (2) of Article 246 of the Constitution, Parliament has the requisite power to make laws with respect of constitution of organization of all courts except the Supreme Court and the High Court. 14. The learned counsel appearing on behalf of the petitioners could not seriously dispute the plenary power of Parliament to make a law as regard constitution of courts but as noticed supra, merely urged that it did not have the competence to create parallel civil courts. 15. The said submission has been made purported to be relying on or on the basis of the following observations made by Shinghal, J. while delivering a partially dissenting judgment in Special Courts Bill, 1978, In re: (1979) 1 SCC 380 (SCC at p. 455, para 152) 152. The Constitution has thus made ample and effective provision for the establishment of a strong, independent and impartial judicial administration in the country, with the necessary complement of civil and criminal courts. It is not permissible for Parliament or a State Legislature to ignore or bypass that scheme of the Constitution by providing for the establishment of a civil or criminal court parallel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for the directions which can be issued by the District Forum on arriving at a satisfaction that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the deficiencies in services have been proved. 26. Section 15 provides for an appeal from the order made by the District Forum to the State Commission. 27. Section 16 provides for composition of the State Commission which reads thus: 16. (1) Each State Commission shall consist of,- (a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President: Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court; (b) two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman: Provided that every appointment under this clause shall be made by the State Government on the recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent of any difference between them on any point or points, the same is to be referred to the other member for hearing thereon and the opinion of the majority shall be the order of the District Forum. By reason of Section 18, the provisions of Sections 12, 13 and 14 and the rules made thereunder would mutatis mutandis be applicable to the disposal of disputes by the State Commission. 31. Section 23 provides for a limited appeal to the Supreme Court from an order made by the National Commission i.e. when the same is made in exercise of its original power as conferred by sub-clause (i) of clause (a) of Section 21. This Court then, having placed reliance on Union of India v. Delhi High Court Bar Association (supra), Navinchandra Mafatlal, Bombay v. The Commissioner of Income Tax, Bombay City, AIR 1955 SC 58, and Union of India v. Harbhajan Singh Dhillon, (1971) 2 SCC 779, concluded as under:- 37. Once it is held that Parliament had the legislative competence to enact the said Act, the submissions of the learned counsel that the relevant provisions of the Constitution required amendments must be neglected. 38. The scope and object of the said legislation came up for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly, when provisions have been made therein for appeal thereagainst to a higher forum. 41. By reason of the provisions of the said Act, the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been nor could be taken away. xxx xxx xxx 49. The question as regards the applicability or otherwise of Articles 323-A and 323-B of the Constitution in the matter of constitution of such Tribunals came up for consideration before this Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. This Court therein clearly held that the constitutional provisions vest Parliament and the State Legislatures, as the case may be, with powers to divest the traditional courts of a considerable portion of their judicial work. It was observed that the Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and High Court apart from the authorisation that flows from Articles 323-A and 323-B in terms of Entries 77, 78, 79 and 95 of List I so far as the Parliament is concerned, and in terms of Entry 65 of List II and Entry 46 of List III so far as the State Legislatures are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NTT Act, were sought to be assailed. The provisions of the NTT Act were challenged, on the premise, that they had trappings of executive control, over the adjudicatory process vested with the NTT, and therefore, were liable to be set aside as unconstitutional. 54. In the context of the foregoing submissions advanced at the hands of the learned counsel for the petitioners, it is essential for us to examine the exact contours of judicial review , in the framework and scheme, of the concepts of rule of law and separation of powers , which have been held to constitute the basic structure of the Constitution. And also, the essential ingredients, of an independent adjudicatory process. It is, therefore, that we would travel the ladder of history and law, to determine the exact scope of the judicial review , which constitutes the basic structure of the Constitution. This would lead us to unravel the salient ingredients of an independent adjudicatory process. Based thereon, we will record our conclusions. The analysis: 55. Reference must first of all be made to the decision rendered by this Court in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. In the above cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em to be solved will often be not so much legal as political, social or economic, yet it must be solved by a Court of law. For where the dispute is, as here, not only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament. 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 pre-dominant 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 s case, 1965 AC 172. 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. Apart from that, as already stated, the necessity for judicial decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this behalf it is also imperative for us to record the observations of P. Jaganmohan Reddy, J., who observed as under:- 1104. ..There is no constitutional matter which is not in some way or the other involved with political, social or economic questions, and if the Constitution-makers have vested in this Court a power of Judicial review, and while so vesting, have given it a prominent place describing it as the heart and soul of the Constitution, we will not be deterred from discharging that duty, merely because the validity or otherwise of the legislation will affect the political or social policy underlying it. The basic approach of this Court has been, and must always be, that the Legislature has the exclusive power to determine the policy and to translate it into law, the constitutionality of which is to be presumed, unless there are strong and cogent reasons for holding that it conflicts with the constitutional mandate. In this regard both the Legislature, the executive, as well as the judiciary are bound by the paramount instrument, and, therefore, no court and no Judge will exercise the judicial power dehors that instrument, nor will it function as a supreme legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t constitutes amendment under Article 368. xxx xxx xxx 1533. The position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity of an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the specified subject. Both the above types of constitutional amendments are permissible under Article 368. What is not permissible, however, is a third type of constitutional amendment, according to which the amending authority not merely excludes judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject but also excludes judicial review for finding whether the statute enacted by the legislature is in respect of the subject for which judicial review has been excluded. xxx xxx xxx 1537. I may now sum up my conclusions relating to power of amendment under Article 368 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the law enacted is not for the object mentioned in Article 31-C, the declaration made by the legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by the legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31-C goes beyond the permissible limit of what constitutes amendment under Article 368. The second part of Article 31-C can be severed from the remaining part of Article 31-C and its invalidity would not affect the validity of the remaining part. I would, therefore, strike down the following words in Article 31-C -- and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy . 56(i) The next judgment having a bearing on the subject is Smt. Indira Nehru Gandhi v. Shri Raj Narain, 1975 Supp. SCC 1. In the instant judgment, this Court examined the constitutional validity of the Constitution (Thirty-ninth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the jurisdiction of this Court. The corollary sought to be drawn was, that if under clause 4 of Article 329A of the Constitution, the power of judicial review was taken away, it would amount to a destruction of the basic structure of the Constitution. The relevant observations made in the instant judgment rendered by a constitution bench of 5 Judges of this Court are being extracted hereunder. First and foremost reference may be made to the following observations of A.N. Ray, CJ:- 16. It should be stated here that the hearing has proceeded on the assumption that it is not necessary to challenge the majority view in Kesavananda Bharati s case, (1973) 4 SCC 225. The contentions of the respondent are these: First, under Article 368 only general principles governing the organs of the State and the basic principles can be laid down. An amendment of the Constitution does not contemplate any decision in respect of individual cases. Clause (4) of Article 329-A is said to be exercise of a purely judicial power which is not included in the constituent power conferred by Article 368. xxx xxx xxx 20. Fifth, clause (4) destroys not only judicial review but also separation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were parties to that case took a different view and came to the conclusion that the words amendment of the Constitution in Article 368 did not admit of any limitation. Those of us who were in the minority in Kesavananda Bharati s case (supra) may still hold the same view as was given expression to in that case. For the purpose of the present case, we shall have to proceed in accordance with the law as laid down by the majority in that case. 176. Before dealing with the question as to whether the impugned amendment affects the basic structure of the Constitution, I may make it clear that this Court is not concerned with the wisdom behind or the propriety of the impugned constitutional amendment. These are matters essentially for those who are vested with the authority to make the constitutional amendment. All that this Court is concerned with is the constitutional validity of the impugned amendment. xxx xxx xxx 210. It has been argued in support of the constitutional validity of clause (4) that as a result of this amendment, the validity of one election has been preserved. Since the basic structure of the Constitution, according to the submission, continues to be the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction had been declared to be void by the High Court and an appeal against the judgment of the High Court was pending in this Court. In spite of our query, we were not referred to any precedent of a similar amendment of any Constitution of the world. The uniqueness of the impugned constitutional amendment would not, however, affect its validity. If the constituent authority in its wisdom has chosen the validity of a disputed election as the subject-matter of a constitutional amendment, this Court cannot go behind that wisdom. All that this Court is concerned with is the validity of the amendment. I need not go into the question as to whether such a matter, in view of the normal concept of constitutional law, can strictly be the subject of a constitutional amendment. I shall for the purpose of this case assume that such a matter can validly be the subject-matter of a constitutional amendment. The question to be decided is that if the impugned amendment of the Constitution violates a principle which is part of the basic structure of the Constitution, can it enjoy immunity from an attack on its validity because of the fact that for the future, the basic structure of the Constitution r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach juxtaposed against others. He realised that the efficient operation of Government involved a certain degree of overlapping and that the theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers. As Holdsworth says, Montesquieu convinced the world that he had discovered a new constitutional principle which was universally valid. The doctrine of separation of governmental powers is not a mere theoretical, philosophical concept. It is a practical, work-a-day principle. The division of Government into three branches does not imply, as its critics would have us think, three watertight compartments. Thus, legislative impeachment of executive officers or judges, executive veto over legislation, judicial review of administrative or legislative actions are treated as partial exceptions which need explanation. (See generally: the Doctrine of Separation of Powers and its present day significance by T. Vanderbilt.) xxx xxx xxx 343. I think clause (4) is bad for the reasons which I have already summarised. Clauses (1) to (3) of Article 329-A are severable but I express no opinion on their validity as it is not necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot set aside the law as invalid merely because, in their opinion, the law is not adequate enough to give effect to a certain policy. In fact, though the clear intendment of Article 31-C is to shut out all judicial review, the argument of the learned Additional Solicitor-General calls for a doubly or trebly extensive judicial review than is even normally permissible to the courts. Be it remembered that the power to enquire into the question whether there is a direct and reasonable nexus between the provisions of a law and a directive principle cannot confer upon the courts the power to sit in judgment over the policy itself of the State. At the highest, courts can, under Article 31-C, satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a directive principle. If the court is satisfied as to the existence of such nexus, the inevitable consequence provided for by Article 31-C must follow. Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharati, (1973) 4 SCC 225, were agreed, it is this: that the only question open to judicial review under the unamended Article 31-C was whether there is a direct an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution (Forty-second Amendment) Act is beyond the amending power of the Parliament and is void since it removes all limitations on the power of the Parliament to amend the Constitution and confers power upon it to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. In order to appreciate the minority view on the issue, reference may be made to the following observations of P.N. Bhagwati, J.:- 87. It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of government are divided; the executive, the legislature and the judiciary. Under our Constitution we have no rigid separation of powers as in the United States of Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our Constitution, said in the Constituent Assembly on December 9, 1948: 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. (CAD, Vol. 7, p.953) It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368. It is difficult to appreciate the meaning of the opening words for the removal of doubts because the majority decision in Kesavananda Bharati case (supra) clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the amendatory power of Parliament and in Indira Gandhi case (supra), all the judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329-A(4) was to be judged. Therefore, after the decisions in Kesavananda Bharati case (supra) and Indira Gandhi case (supra), there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not exist. What clause (5) really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one. This was clearly and indubitably a futile exercise on the part of Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory remarks highlighting what the true function of the judiciary should be in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values. It is necessary for every Judge to remember constantly and continually that our Constitution is not a non-aligned national charter. It is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. ..Now this approach to the judicial function may be alright for a stable and static society but not for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice and equal justice, between chronic unequals. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service. It is only if appointments of Judges are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed only to the Constitution and to the people of India. The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciary which we must keep in mind while interpreting the relevant provisions of the Constitution. S. Murtaza Fazal Ali, J., on the issue of judicial review and the basic structure , opined as under:- 332. It would appear that our Constitution has devised a wholesome and effective mechanism for the appointment of Judges which strikes a just balance between the judicial and executive powers so that while the final appointment vests in the highest authority of the executive, the power is subject to a mandatory consultative process which by convention is entitled to great weight by the President. Apart from these safety valves, checks and balances at every stage, where the power of the President is abused or misused or violates any of the constitutional safeguards it is always subject to judicial review. The power of judicial review, which has been conceded by the Constitution to the judiciary, is in our opinion the safest possible safeguard not only to ensure independence of judiciary but also to prevent it from the vagaries of the executive. Another advantage of the method adopted by our Constitution is that by vesting the entire power in the President, the following impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x xxx 402. It has been vehemently argued by Mr. Seervai as also by Mr. Sorabjee who followed him that their main concern is that independence of judiciary should be maintained at all costs. Indeed, if they are really concerned that we should build up an independent judiciary then it is absolutely essential that new talents from outside should be imported in every High Court either to man it or to head it so that they may generate much greater confidence in the people than the local Judges. The position of a C.J. is indeed a very high constitutional position and our Constitution contains sufficient safeguards to protect both his decision-making process and his tenure. It is a well-known saying that power corrupts and absolute power corrupts absolutely. As man is not infallible, so is a Chief Justice, though a person holding a high judicial post is likely to be incorruptible because of the quality of sobriety and restraint that the judicial method contains. Even so, if a C.J. is from outside the State, the chances of his misusing his powers are reduced to the absolute minimum. We have pointed out that the power to formulate or evolve this policy clearly lies within the four-corner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its own terms regardless of the conventions that prevail in the United Kingdom. If the words of an Article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must be remembered that we are interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed. In State of Rajasthan v. Union of India, (1977) 3 SCC 592, also the importance of a constitutional convention or practice by way of crystallising the otherwise vague and loose content of a power to be found in certain article has been emphasised. In the State of W.B. v. Nripendra Nath Bagchi, AIR 1966 SC 447, the entire interpretation of the concept of 'vesting of control over District Courts and Courts subordinate thereto in the High Court was animated by conventions and practices having regard to the history, object and purpose that lay behind the group of relevant articles, the principal purpose being, the securing of the independence of the subordinate judiciary. It is true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law-making powers of the Parliament of the Federal Commonwealth over the States were read into the concerned provisions of the Constitution because of implications arising from the very federal nature of the Constitution: (vide Lord Mayor Councillors and Citizens of the City of Melbourne v. Commonwealth, 74 Commonwealth LR 31, and the State of Victoria v. Commonwealth of Australia, 122 Commonwealth LR 353). As regards the undertakings of the types mentioned above, it is true that strictly and legally speaking these undertakings only create a binding obligation on the concerned Member of the Bar and not on the appointing authority but it cannot be forgotten that when such undertakings were thought of, the postulate underlying the same was that there was no question of the appointing authority not making the offer of permanent Judgeship to the concerned Member of the Bar but that such an offer would be made and upon the same being made the sitting Additional Judge recruited from the Bar should not decline to accept it and revert to the Bar. I am therefore clearly of the view that the aforesaid convention or practice and the undertaking serve the cause of public interest in two re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arose in the context of transfer of Shri K.B.N. Singh, Chief Justice of Patna High Court as Chief Justice of Madras High Court consequent upon the transfer of Shri M.M. Ismail, Chief Justice of Madras High Court as Chief Justice of Kerala High Court by Presidential Notification dated January 19, 1981, in exercise of the power conferred upon him by Article 222. The controversy centred down the scope, ambit and content of consultation that the President must have with the Chief Justice of India before exercising the power to transfer under Article 222. Thus, the scope, ambit and content of consultation under Article 217 as also one of Article 222 which, as Mr Seervai stated, was more or less the same though the different facets on which consultation must be focussed may differ in the case of transfer and in the case of appointment, figured prominently in both the groups of cases. The parameters of scope, ambit and content of consultation both under Articles 217(1), 222 and 224, were drawn on a wide canvas to be tested on the touchstone of independence of judiciary being the fighting faith and fundamental and basic feature of the Constitution. It was stated that if the consultation it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court and of the High Courts. In other words, it was submitted on behalf of the respondents, the President has a discretion to consult or not to consult Judges of the Supreme Court and High Courts before making appointment of Chief Justice of India. It was pointed out that where consultation is obligatory it is specifically provided and reference was made to the proviso extracted hereinabove wherein it is stated that it would be obligatory upon the President to consult the Chief Justice of India before making appointment of a Judge of the Supreme Court other than the Chief Justice of India. Undoubtedly, the proviso leaves no option to the President but to consult the Chief Justice of India while making appointment of a Judge of the Supreme Court other than the Chief Justice of India, but it is rather difficult to accept the construction as suggested on behalf of the respondents that in making appointment of the Chief Justice of India the President is at large and may not consult any functionary in the judicial branch of the State before making appointment of Chief Justice of India. The expression 'may deem necessary qualifies the number of Judges of the Supreme Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Justice of India and yet would so circumscribe the power of the President as not to enable the executive to choose a person of its bend and thinking. In this very context it was pointed out that Article 126 permits the President to appoint even the juniormost Judge of the Supreme Court to be an acting Chief Justice of India and it was said that such an approach or such construction of Article 126 would be subversive of the independence of judiciary. It was said that if the juniormost can be appointed acting Chief Justice of India, every Judge in order to curry favour would decide in favour of executive. And as far as Article 124 is concerned it was said that if the convention of seniority is not read in Article 124(2), every Judge of the Supreme Court would be a possible candidate for the office of Chief Justice of India and on account of personal bias would be disqualified from being consulted. There is no warrant for such an extreme position and the reflection on the Judges of the Supreme Court is equally unwarranted. On the construction as indicated above there will be positive limitation on the power of the President while making appointment of Chief Justice of India and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakshman Rekha drawn by the safeguards when transgressed or crossed, the judicial review will set at naught the mischief. True it is that it is almost next to impossible for individual Judge of a High Court to knock at the doors of the Courts because access to justice is via the insurmountable mountain of costs and expenses. This need not detain us because we have seen that in time of crisis the Bar has risen to the occasion twice over in near past though it must be conceded that judicial review is increasingly becoming the preserve of the high, mighty and the affluent. But the three safeguards, namely, full and effective consultation with the Chief Justice of India, and that the power to transfer can be exercised in public interest, and judicial review, would certainly insulate independence of judiciary against an attempt by the executive to control it. Last of all, reference may be made to the observations of E.S. Venkataramiah, J., (as he then was) who held as under:- 1245. The question of policy is a matter entirely for the President to decide. Even though the Chief Justice of India is consulted in that behalf by the President since the policy relates to the High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khalid, G.L. Oza and M.M. Dutt, JJ. Insofar as the concurring view rendered by P.N. Bhagwati, CJ is concerned, the conclusion recorded in the following paragraphs has a bearing on the present controversy. 3. It is now well settled as a result of the decision of this Court in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, that judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away. If the power of judicial review is abrogated or taken away the Constitution will cease to be what it is. It is a fundamental principle of our constitutional scheme that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. It is a limited government which we have under the Constitution and both the executive and the legislature have to act within the limits of the power conferred upon them under the Constitution. Now a question may arise as to what are the powers of the executive and whether the executive has acted within the scope of its power. Such a question obviously cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in Minerva Mills Ltd. case (supra) at p. 287 and 288: (SCC p. 678, para 87) 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential condition is fulfilled, namely, that the alternative institutional mechanism or authority set up by the parliamentary amendment is no less effective than the High Court. 4. Here, in the present case, the impugned Act has been enacted by Parliament in exercise of the power conferred by clause (1) of Article 323-A which was introduced in the Constitution by Constitution (42nd Amendment) Act, 1976. Clause (2)(d) of this article provides that a law made by Parliament under clause (1) may exclude the jurisdiction of courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1). The exclusion of the jurisdiction of the High Court under Articles 226 and 227 by any law made by Parliament under clause (1) of Article 323-A is, therefore, specifically authorised by the constitutional amendment enacted in clause (2)(d) of that article. It is clear from the discussion in the preceding para that this constitutional amendment authorising exclusion of the jurisdiction of the High Court under Articles 226 and 227 postulates for its validity that the law made under clause (1) of Article 323-A excluding the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless at the seat of every High Court facilities for presentation of applications and for hearing thereof were provided the parties and their lawyers would be adversely affected. The interim order made on October 31, 1985, made provision to meet the working difficulties. Learned Attorney- General on behalf of the Central Government assured the court that early steps would be taken to amend the law so as to save the jurisdiction under Article 32, remove other minor anomalies and set up a Bench of the Tribunal at the seat of every High Court. By the Administrative Tribunals (Amendment) Ordinance, 1986, these amendments were brought about and by now an appropriate Act of Parliament has replaced the Ordinance. Most of the original grounds of attack thus do not survive and the contentions that were canvassed at the hearing by the counsel appearing for different parties are these: (1) Judicial review is a fundamental aspect of the basic structure of our Constitution and bar of the jurisdiction of the High Court under Articles 226 and 227 as contained in Section 28 of the Act cannot be sustained; (2) Even if the bar of jurisdiction is upheld, the Tribunal being a substitute of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the basic structure of the Constitution. 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. 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. 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. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review 14. Article 32 was described by Dr Ambedkar in course of the debate in the Constituent Assembly as the 'soul and 'heart of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authorized 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 powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by Parliament. Thus it is possible to set up an alternative institution in place of the High Court for providing judicial review. The debates and deliberations spread over almost two decades for exploring ways and means for relieving the High Courts of the load of backlog of cases and for assuring quick settlement of service disputes in the interest of the public servants as also the country cannot be lost sight of while considering this aspect. It has not been disputed before us - and perhaps could not have been - that the Tribunal under the scheme of the Act would take over a part of the existing backlog and a share of the normal load of the High Courts. The Tribunal has been contemplated as a substitute and not as supplemental to the High Court in the scheme of administration of justice. To provide the Tribunal as an additional forum from where parties could go to the High Court would certainly have been a retrograde step considering the situation and circumstances to meet which the innovation has been brought about. Thus barring of the jurisdiction of the High Court can indeed not be a valid ground of attack. 17. What, however, has to be kept in view is that the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may also be made to the decision rendered by this Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. The instant decision was rendered by a constitution bench of 7 Judges. The question which arose for determination in the instant judgment was, whether the power conferred upon the Parliament and the State legislatures vide Articles 323A(2)(d) and 323B(3)(d) totally excluding the jurisdiction of all courts except the Supreme Court, under Article 136 of the Constitution, violated the basic structure of the Constitution. In other words, the question was, whether annulling/retracting the power of judicial review conferred on High Courts (under Articles 226 and 227 of the Constitution) and on the Supreme Court (under Articles 32 of the Constitution), was violative of the basic structure of the Constitution. Furthermore, whether the tribunals constituted under Articles 323A and 323B of the Constitution, possess the competence to test the constitutional validity of statutory provisions/rules? And also, whether Tribunals constituted under Articles 323A and 323B of the Constitution could be said to be effective substitutes of the jurisdiction vested in the High Courts? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court that have been referred to in the course of our analysis. From their conclusions, many of which have been extracted by us in toto, it appears that this Court has always considered the power of judicial review vested in the High Courts and in this Court under Articles 226 and 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts, to be integral to our constitutional scheme. While several judgments have made specific references to this aspect [Gajendragadkar, C.J. in Keshav Singh case, AIR 1965 SC 745, Beg, J. and Khanna, J. in Kesavananda Bharati case (supra), Chandrachud, C.J. and Bhagwati, J. in Minerva Mills (supra), Chandrachud, C.J. in Fertilizer Kamgar, (1981) 1 SCC 568, K.N. Singh, J. in Delhi Judicial Service Assn., (1991) 4 SCC 406] the rest have made general observations highlighting the significance of this feature. 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 importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. xxx xxx xxx 96. It has been brought to our notice that one reason why these Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements. To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our constitutional scheme requires that all adjudicatory bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot, in any manner, be of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 98. Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the provision was not in question in Dr Mahabal Ram case, (1994) 2 SCC 401, we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a Single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a Single Member Bench or a Bench which does not consist of a Judicial Member. So construed, Section 5(6) will no longer be susceptible to charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g noticed. Firstly, whether Parliament does not have the jurisdiction/legislative competence, to vest intrinsic judicial functions, that have been traditionally performed by High Courts, in any tribunal outside the judiciary? Secondly, whether transferring of the entire company law jurisdiction, hitherto before vested in High Courts, to the National Company Law Tribunal, which was not under the control of the judiciary, was violative of the principles of separation of powers and independence of judiciary ? Thirdly, whether Sections 10-FB, 10-FD, 10- FE, 10-FF, 10-FL(2), 10-FO, 10-FR(3), 10-FT, 10-FX contained in Parts I-B and I-C of the Companies Act, by virtue of the above amendment, were unconstitutional being in breach of the principles of the rule of law , separation of powers and independence of judiciary ? The relevant narration and conclusions recorded by this Court are being reproduced hereunder:- Section 10-FD(3)(f): Appointment of Technical Member to NCLT 16. The High Court has held that appointment of a member under the category specified in Section 10-FD(3)(f), can have a role only in matters concerning revival and rehabilitation of sick industrial compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to labour, for not less than 15 years is vague and should be suitably amended so as to spell out with certainty the qualification which a person to be appointed under clause (h) should possess. 23. The Union Government contends that in view of the wide and varied experience possible in labour matters, it may not be advisable to set out the nature of experience or impose any restrictions in regard to the nature of experience. It is submitted that the Selection Committee headed by the Chief Justice of India or his nominee would consider each application on its own merits. 24. The second observation of the High Court is that the member selected under the category mentioned in clause (h) must confine his participation only to the Benches dealing with revival and rehabilitation of sick companies and should also be excluded from functioning as a single- Member Bench for any matter. 25. The Union Government contends that it may not be advisable to fetter the prerogative of the President of the Tribunal to constitute benches by making use of available members. It is also pointed out that it may not be proper to presume that a person well versed in labour matters will be un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal shall consist of a President and such number of judicial and technical members not exceeding sixty-two, as the Central Government deems fit, to be appointed by that Government, by notification in the Official Gazette. 10-FD. Qualifications for appointment of President and Members.- (1) The Central Government shall appoint a person who has been, or is qualified to be, a Judge of a High Court as the President of the Tribunal. (2) A person shall not be qualified for appointment as judicial member unless he- (a) has, for at least fifteen years, held a judicial office in the territory of India; or (b) has, for at least ten years been an advocate of a High Court, or has partly held judicial office and has been partly in practice as an advocate for a total period of fifteen years; or (c) has held for at least fifteen years a Group A post or an equivalent post under the Central Government or a State Government including at least three years of service as a Member of the Indian Company Law Service (Legal Branch) in Senior Administrative Grade in that service; or (d) has held for at least fifteen years a Group A post or an equivalent post under the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such under sub-section (2) of Section 10-FD and includes the President of the Tribunal; (ii) 'technical member means a Member of the Tribunal appointed as such under sub-section (3) of Section 10-FD. 10-FE. Term of office of President and Members.-The President and every other Member of the Tribunal shall hold office as such for a term of three years from the date on which he enters upon his office, but shall be eligible for reappointment: Provided that no President or other Member shall hold office as such after he has attained,- (a) in the case of the President, the age of sixty-seven years; (b) in the case of any other Member, the age of sixty-five years: Provided further that the President or other Member may retain his lien with his parent cadre or Ministry or Department, as the case may be, while holding office as such. 10-FF. Financial and administrative powers of Member Administration.-The Central Government shall designate any judicial member or technical member as Member (Administration) who shall exercise such financial and administrative powers as may be vested in him under the rules which may be made by the Central Government: Provided th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-FD: Provided that in case a Special Bench passes an order in respect of a company to be wound up, the winding-up proceedings of such company may be conducted by a Bench consisting of a single Member. (3) If the Members of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President of the Tribunal for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of Members of the Tribunal who have heard the case, including those who first heard it. (4) There shall be constituted such number of Benches as may be notified by the Central Government. (5) In addition to the other Benches, there shall be a Principal Bench at New Delhi presided over by the President of the Tribunal. (6) The Principal Bench of the Tribunal shall have powers of transfer of proceedings from any Bench to another Bench of the Tribunal in the event of inability of any Bench from hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers of the Appellate Tribunal and President and Members of the Tribunal shall be appointed by the Central Government on the recommendations of a Selection Committee consisting of- (a) Chief Justice of India or his nominee Chairperson; (b) Secretary in the Ministry of Finance and Company Affairs Member; (c) Secretary in the Ministry of Labour Member; (d) Secretary in the Ministry of Law and Justice (Department of Legal Affairs or Legislative Department) Member; (e) Secretary in the Ministry of Finance and Company Affairs (Department of Company Affairs) Member. (2) The Joint Secretary in the Ministry or Department of the Central Government dealing with this Act shall be the Convenor of the Selection Committee. * * * (5) Before recommending any person for appointment as the Chairperson and Members of the Appellate Tribunal and President and Members of the Tribunal, the Selection Committee shall satisfy itself that such person does not have financial or other interest which is likely to affect prejudicially his functions as such Chairperson or Member of the Appellate Tribunal or President or Member of the Tribunal, as the case may be. (6) No appointment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection Committee for appointment. When the tribunals are formed, they are mostly dependent on their sponsoring department for funding, infrastructure and even space for functioning. The statutes constituting tribunals routinely provide for members of civil services from the sponsoring departments becoming members of the tribunal and continuing their lien with their parent cadre. Unless wide ranging reforms as were implemented in United Kingdom and as were suggested by L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261, are brought about, tribunals in India will not be considered as independent. Whether the Government can transfer the judicial functions traditionally performed by courts to tribunals? 71. It is well settled that courts perform all judicial functions of the State except those that are excluded by law from their jurisdiction. Section 9 of the Code of Civil Procedure, for example, provides that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 72. Article 32 provides that without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, providing 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 Government 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. xxx xxx xxx 80. The legislative competence of Parliament to provide for creation of courts and tribunals can be traced to Entries 77, 78, 79 and Entries 43, 44 read with Entry 95 of List I, Entry 11-A read with Entry 46 of List III of the Seventh Schedule. Referring to these articles, this Court in two cases, namely, Union of India v. Delhi High Court Bar Assn., (2002) 4 SCC 75, and State of Karnataka v. Vishwabharathi House Building Coop. Society, (2003) 2 SCC 412, held that Articles 323-A and 323-B are enabling provisions which enable the setting up of tribunals contemplated therein; and that the said articles, however, cannot be interpreted to mean that they prohibited the legislature from establishing tribunals not covered by those articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained Judges in the High Court and Supreme Court would arise for discussion and decision. 92. Having held that legislation can transfer certain areas of litigation from courts to tribunals and recognising that the legislature can provide for technical members in addition to judicial members in such tribunals, let us turn our attention to the question as to who can be the members. 93. If the Act provides for a tribunal with a judicial member and a technical member, does it mean that there are no limitations upon the power of the legislature to prescribe the qualifications for such technical member? The question will also be whether any limitations can be read into the competence of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution, it can be challenged as violative of constitutional provisions which enshrine the principles of the rule of law, separation of powers and independence of the judiciary. xxx xxx xxx 106. We may summarise the position as follows: (a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal. (b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a judicial tribunal. This means that such tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the tribunal should have the independence and security of tenure associated with judicial tribunals. (c) Whenever there is need for tribunals , there is no presumption that there should be technical members in the tribunals. When any jurisdiction is shifted from courts to tribunals, on the ground of pendency and delay in courts, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunals, or Military Officers being members of the Armed Forces Tribunals, or electrical engineers being members of the Electricity Appellate Tribunal, or telecom engineers being members of TDSAT, we find no logic in members of the general civil services being members of the Company Law Tribunals. 114. Let us now refer to the dilution of independence. If any member of the tribunal is permitted to retain his lien over his post with the parent cadre or ministry or department in the civil service for his entire period of service as member of the tribunal, he would continue to think, act and function as a member of the civil services. A litigant may legitimately think that such a member will not be independent and impartial. We reiterate that our observations are not intended to cast any doubt about the honesty and integrity or capacity and capability of the officers of civil services in particular those who are of the rank of Joint Secretary or for that matter even junior officers. What we are referring to is the perception of the litigants and the public about the independence or conduct of the members of the tribunal. Independence, impartiality and fairness are qualities which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (iv) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 20 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as technical members in the Company Law Tribunal, is invalid. (v) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as technical members. (vi) In regard to category of persons referred in clause (g) of subsection (3) at least five years experience should be specified. (vii) Only clauses (c), (d), (e), (g), (h), and the latter part of clause (f) in sub-section (3) of Section 10-FD and officers of civil services of the rank of the Secretary or Additional Secretary in the Indian Company Law Service and the Indian Legal Service can be considered for purposes of appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt concerned. (xiii) Two-member Benches of the Tribunal should always have a judicial member. Whenever any larger or special Benches are constituted, the number of technical members shall not exceed the judicial members. 62. Before venturing to examine the controversy in hand it needs to be noticed, that some of the assertions raised at the hands of the petitioners in the present controversy have since been resolved. These have been noticed in an order passed by this Court in Madras Bar Association v. Union of India, (2010) 11 SCC 67, which is being extracted hereunder:- 1. In all these petitions, the constitutional validity of the National Tax Tribunal Act, 2005 ( the Act , for short) is challenged. In TC No. 150 of 2006, additionally there is a challenge to Section 46 of the Constitution (Forty-second Amendment) Act, 1976 and Article 323-B of the Constitution of India. It is contended that Section 46 of the Constitution (Forty-second Amendment) Act, is ultra vires the basic structure of the Constitution as it enables proliferation of the tribunal system and makes serious inroads into the independence of the judiciary by providing a parallel system of administration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Act, pointed out by the petitioners, it was submitted that the Union Government will examine them and wherever necessary suitable amendments will be made. 8. In view of these submissions, on 9-1-2007, this Court made an order reserving liberty to the Union Government to mention the matter for listing after the appropriate amendments were made in the Act. 9. On 21-1-2009, when arguments in CA No. 3067 of 2004 and CA No. 3717 of 2005, which related to the challenge to Parts I-B and I-C of the Companies Act, 1956 were in progress before the Constitution Bench, it was submitted that these matters involved a similar issue and they could be tagged and disposed of in terms of the decision in those appeals. Therefore the Constitution Bench directed these cases to be listed with those appeals, even though there is no order of reference in these matters. CA No. 3067 of 2004 and CA No. 3717 of 2005 were subsequently heard at length and were reserved for judgment. These matters which were tagged were also reserved for judgment. 10. We have disposed of CA No. 3067 of 2004 and CA No. 3717 of 2005 today (Union of India vs. Madras Bar Association, (2010) 11 SCC 1), by a separate ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of attack in regard to Parts I-B and I-C of the Companies Act and the provisions of the NTT Act are completely different. The challenge to Parts I-B and I-C of the Companies Act, 1956 seeks to derive support from Article 323-B by contending that Article 323-B is a bar for constitution of any tribunal in respect of matters not enumerated therein. On the other hand the challenge to the NTT Act is based on the challenge to Article 323-B itself. 15. We therefore find that these petitions relating to the validity of the NTT Act and the challenge to Article 323-B raise issues which did not arise in the two civil appeals. Therefore these cases cannot be disposed of in terms of the decision in the civil appeals but require to be heard separately. We accordingly direct that these matters be delinked and listed separately for hearing. 63(i) A perusal of the judgment rendered in Kesavananda Bharati case (supra) reveals, that separation of powers creates a system of checks and balances, by reasons of which, powers are so distributed, that none of the three organs transgresses into the domain of the other. The concept ensures the dignity of the individual. The power of judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Parliament, it was maintained, did not have the power to amend the basic structure of the Constitution. A legislative assertion, that the enacted law had been made, for giving effect to a policy to secure the provisions made in Part IV of the Constitution, had the effect of excluding the adjudicatory process. In the case on hand, this Court arrived at the conclusion, that Section 4 of the Constitution (Forty-second Amendment) Act was beyond the amending power of the Parliament, and the same was void, because it had the effect of damaging the basic and essential features of the Constitution and destroying its basic structure , by totally excluding any challenge to any law, even on the ground, whether it was inconsistent with or it had abridged, any of the rights conferred by Articles 14 and 19 of the Constitution. Furthermore, Section 55 of the Constitution (Forty-second Amendment), Act was held to be beyond the amending power of the Parliament. It was held to be void, as it had the effect of removing all limitations on the powers of Parliament, to amend the Constitution including, the power to alter its basic and essential features, i.e., its basic structure . According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further held, that it was the solemn duty of the judiciary under the Constitution, to keep the different organs of the State, such as the executive and the legislature, within the limits of the powers conferred upon them by the Constitution. It was accordingly also held, that the power of judicial review was an integral part of India's constitutional system, and without it, the rule of law would become a teasing illusion, and a promise of unreality. Premised on the aforesaid inferences, this Court finally concluded, that if there was one feature of the Indian Constitution, which more than any others, was its basic structure fundamental to the maintenance of democracy and the rule of law , it was the power of judicial review . While recording the aforementioned conclusion, this Court also recorded a clarificatory note, namely, that it should not be taken, that an effective alternative institutional mechanism or arrangement for judicial review could not be made by Parliament. It was, however, clearly emphasized, that judicial review was a vital principle of the Indian Constitution, and it could not be abrogated, without affecting the basic structure of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantially unaltered. So also, of appointments of Chief Justices of High Courts and the Supreme Court. It was reiterated, that to ensure judicial independence, primacy in all these matters should be with the judiciary. (v) Having recorded the determination rendered by this Court to the effect that separation of powers , rule of law and judicial review at the hands of an independent judiciary, constitute the basic structure of the Constitution, we are in a position now to determine, how the aforesaid concepts came to be adopted by this Court, while adjudicating upon the validity of provisions similar to the ones, which are subject of consideration, in the case on hand. The first controversy arose with reference to the Administrative Tribunals Act, 1985, which was enacted under Article 323A of the Constitution. In S.P. Sampath Kumar case (supra), it was sought to be concluded, that the power of judicial review had been negated by the aforementioned enactment, inasmuch as, the avenue of redress under Articles 226 and 227 of the Constitution before the High Court, was no longer available. It was also sought to be asserted, that the tribunal constituted under the enactment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h consultation had to be meaningful and effective, inasmuch as, ordinarily the recommendation of the Chief Justice of India ought to be accepted, unless there were cogent reasons not to. If there were any reasons, for not accepting the recommendation, they needed to be disclosed to the Chief Justice. Alternatively, it was commended, that a high powered Selection Committee headed by the Chief Justice or a sitting Judge of the Supreme Court, or of the concerned High Court (nominated by the Chief Justice of India), could be set up for such selection. If either of these two modes of appointment was adopted, it was believed, that the impugned Act would be saved from invalidation. It was mentioned, that Section 6(2) also needed to be amended, so as to make a District Judge or an Advocate, who fulfilled the qualifications for appointment as a judge of the High Court, eligible for appointment as Vice Chairman. With reference to Section 8 it was felt, that a term of five years of office, would be too short and ought to be suitably extended. It was so felt, because the presently prescribed tenure would neither be convenient to the persons selected for the job, nor expedient to the scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the controversies which arose before the tribunals, it was held, that matters wherein interpretation of statutory provisions or rules, or where the provisions of the Constitution were expected to be construed, the same would have to be determined by a bench consisting of at least two Members, one of whom must be a Judicial Member. Having found that the provisions of the Administrative Tribunals Act, had impinged on the power of judicial review vested in the High Court, clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, to the extent they excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, were held to be unconstitutional. Likewise, the exclusion of jurisdiction clauses in all other legislations enacted under the aegis of Articles 323A and 323B, were also held to be unconstitutional. In view of the above, it was concluded, that the jurisdiction conferred upon the High Court under Articles 226/227, and upon the Supreme Court under Article 32 of the Constitution, was a part of the inviolable basic structure of the Constitution. Since the said jurisdiction could not be ousted, jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a tribunal, the stature of the members of the newly constituted tribunal, should be possessed of qualifications akin to the judges of the High Court. Whereas in case, the jurisdiction and the functions sought to be transferred were being exercised/performed by District Judges, the Members appointed to the tribunal should be possessed of equivalent qualifications and commensurate stature of District Judges. The conditions of service of the members should be such, that they are in a position to discharge their duties in an independent and impartial manner. The manner of their appointment and removal including their transfer, and tenure of their employment, should have adequate protection so as to be shorn of legislative and executive interference. The functioning of the tribunals, their infrastructure and responsibility of fulfilling their administrative requirements ought to be assigned to the Ministry of Law and Justice. Neither the tribunals nor their members, should be required to seek any facilities from the parent ministries or department concerned. Even though the legislature can reorganize the jurisdiction of judicial tribunals, and can prescribe the qualifications/eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l courts and tribunals within their respective jurisdictions, was also a part of the basic structure of the Constitution. The position that Parliament had the power to amend the Constitution, and to create a court/tribunal to discharge functions which the High Court was discharging, was reiterated, in Union of India v. Madras Bar Association case (supra). It was concluded, that the Parliament was competent to enact a law, transferring the jurisdiction exercised by High Courts, in regard to any specified subject, to any court/tribunal. But it was clarified, that Parliament could not transfer power vested in the High Courts, by the Constitution itself. We therefore have no hesitation in concluding, that appellate powers vested in the High Court under different statutory provisions, can definitely be transferred from the High Court to other courts/tribunals, subject to the satisfaction of norms declared by this Court. Herein the jurisdiction transferred by the NTT Act was with regard to specified subjects under tax related statutes. That, in our opinion, would be permissible in terms of the position expressed above. Has the NTT Act transferred any power vested in courts by the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Sabha, and in the States with the State Legislative Assemblies (and in some States, the State Legislative Councils, as well). The instant legislative power is regulated by Part XI of the Constitution. The submission advanced at the hands of the learned counsel for the respondents, insofar as the instant aspect of the matter is concerned, is premised on the assertion that the NTT Act has been enacted strictly in consonance with the procedure depicted in Part XI of the Constitution. It is also the contention of the learned counsel for the respondents, that the said power has been exercised strictly in consonance with the subject on which the Parliament is authorized to legislate. Whilst dealing with the instant submission advanced at the hands of the learned counsel for the respondents, all that needs to be stated is, that the legislative power conferred under Part XI of the Constitution has one overall exception, which undoubtedly is, that the basic structure of the Constitution, cannot be infringed, no matter what. On the instant aspect, some relevant judgments, rendered by constitutional benches of this Court, have been cited hereinabove. It seems to us, that there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns which have now been vested with the NTT, constituted the core judicial appellate function traditionally vested with the jurisdictional High Courts, we have recorded under the heading The Historical Perspective , legislative details, pertaining to the Income Tax Act, the Customs Act and the Excise Act. We had to do so, for that was the only manner to deal with the instant aspect of the controversy. A perusal of the historical perspective reveals, that as against the initial assessment of tax/duty liability, the first forum for challenge has traditionally been with an executive appellate adjudicatory authority. Legislative details reveal, that for some time there was a power of reference, exercisable on questions of law . The adjudication thereof rested with the jurisdictional High Courts. The second appellate remedy has always been before a quasi-judicial appellate authority, styled as an Appellate Tribunal. Across the board, under all the enactments which are relevant for the present controversy, proceedings before the Appellate Tribunal have been legislatively described as judicial proceedings . It is, therefore apparent, that right from the beginning, the clear legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Appellate Tribunals were discharging judicial proceedings . The next stage of appellate determination, has been traditionally vested with the High Courts. The income-tax legislation, the customs legislation, as well as, the central excise legislation uniformly provided, that in exercise of its appellate jurisdiction, the jurisdictional High Court would adjudicate appeals arising out of orders passed by the respective Appellate Tribunals. The said appeals were by a legislative determination, to be heard by benches comprising of at least two judges of the High Court. Adjudication at the hands of a bench consisting of at least two judges, by itself is indicative of the legal complications, insofar as the appellate adjudicatory role, of the jurisdictional High Court was concerned. It would, therefore, not be incorrect to conclude, by accepting the submissions advanced at the hands of the learned counsel for the petitioners, that before and after promulgation of the Constitution, till the enactment of the NTT Act, all legislative provisions vested the appellate power of adjudication, arising out of the Income Tax Act, the Customs Act and the Excise Act, on questions of law, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions had become effective and operational. Furthermore, it was submitted, that the judicial power had to be exercised in the same manner as before, i.e., whether by a judge sitting singly, or with other judges. And therefore it was asserted, that on constitutional conventions well recognized the world over, appellate jurisdiction in respect of tax matters, would have to remain with the jurisdictional High Courts, and would have to be determined by a bench of at least two judges of the High Court, as was the position before the enactment of the Constitution, and, as has been the position thereafter, till the promulgation of the NTT Act. 71. We have given our thoughtful consideration to the submission advanced at the hands of the learned counsel for the petitioners, insofar as the first perspective is concerned. We find substance in the submission advanced at the hands of the learned counsel for the petitioners, but not exactly in the format suggested by the learned counsel. A closer examination of the judgments relied upon lead us to the conclusion, that in every new constitution, which makes separate provisions for the legislature, the executive and the judiciary, it is ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been exercised, to enact a given law). We are satisfied, that the aforesaid exposition of law, is in consonance with the position expressed by this Court, while dealing with the concepts of separation of powers , the rule of law and judicial review . In this behalf, reference may be made to the judgments in L. Chandra Kumar case (supra), as also, in Union of India v. Madras Bar Association case (supra). Therein, this Court has recognized, that transfer of jurisdiction is permissible, but in effecting such transfer, the court to which the power of adjudication is transferred, must be endured with salient characteristics, which were possessed by the court from which the adjudicatory power has been transferred. In recording our conclusions on the submission advanced as the first perspective, we may only state, that our conclusion is exactly the same as was drawn by us while examining the petitioners' previous submission, namely, that it is not possible for us to accept, that under recognized constitutional conventions, judicial power vested in superior courts cannot be transferred to coordinate courts/tribunals. The answer is, that such transfer is permissible. But whenev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arent, that the issue in hand, namely, the appellate jurisdiction vested with the jurisdictional High Courts, under the provisions of the Income Tax Act, the Customs Act and the Excise Act, has no bearing to the proviso under reference. We may therefore conclude by recording, that the instant submission advanced on behalf of the petitioners, is not made out from Article 225 of the Constitution. IV. Whether Company Secretaries should be allowed to appear before the NTT to represent a party to an appeal in the same fashion, and on parity with, Accountants? V. Whether Section 13(1) of the NTT Act insofar as it allows Accountants to represent a party to an appeal before the NTT is valid? 74. We may first take up for consideration, Writ Petition (Civil) no. 621 of 2007. The same has been filed by members of the Institute of Company Secretaries of India, seeking the right to appear before the NTT, as representatives of a party to an appeal. Respondent no. 5 in the said Writ Petition, is the Institute of Chartered Accountants. It has entered appearance and canvassed that the claim of Company Secretaries and Chartered Accountants is not comparable. While indicating the permissibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also indicated in the said public notice that no Indian university or Board conducts one year's course for giving the bachelor's degree in Ayurvedic Medicine or through correspondence course no M.D. Degree in Ayurveda was conferred by any university or Board. The public at large was cautioned by the said public notice published in the newspaper about such position in law. xxx xxx xxx 5. We are, however, unable to accept such contention of Mr. Mehta. Sub-section (3) of Section 17 of the Indian Medicine Central Council Act, 1970, in our view, only envisages that where before the enactment of the said Indian Medicine Central Council Act, 1970 on the basis of requisite qualification which was then recognized, a person got himself registered as medical practitioner in the disciplines contemplated under the said Act or in the absence of any requirement for registration such person had been practising for five years or intended to be registered and was also entitled to be registered, the right of such person to practise in the discipline concerned including the privileges of a registered medical practitioner stood protected even though such practitioner did not posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this Court to consider such submissions because the same remains in the realm of policy decision of other constitutional functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of the Delhi High Court is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interference by this Court is called for. These appeals therefore are dismissed without any order as to costs. Reliance was also placed on State of Rajasthan v. Lata Arun, (2002) 6 SCC 252, wherein it was held as under:- 4. The question which arises for determination in this case is whether the respondent had the eligibility qualification for admission in General Nursing and Midwifery and Staff Nurse Course (hereinafter referred to as Nursing Course ) commencing in the year 1990. The Director, Medical and Health Services had invited applications by 15-12-1989 from eligible candidates for admission in the Nursing Course to be started from January 1990. It was stated in the notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962 (wherefor reliance was placed on Section 146A of the Customs Act, 1962, read with Rule 9(a), Customs (Appeals) Rules, 1982). Besides the aforesaid provisions, it was contended, that Chartered Accountants were entitled to appear before various tribunals/fora under different statutory provisions, such as, under the Securities and Exchange Board of India Act, 1992, the Securities Contracts (Regulation) Act, 1956, the Telecom Regulatory Authority of India Act, 1991, the Companies Act, 2013, the Company Law Board Regulations, 1991, the Competition (Amendment) Act, 2007, and the Special Economic Zone Rules, 2006. We were informed, that Chartered Accountants were also entitled to appear before the Central Electricity Regulatory Commission vide Notification dated 27.8.1999. It was submitted, that if Chartered Accountants are competent to canvass complicated disputes which arise under the provisions referred to hereinabove, there should be no difficulty in allowing them to appear before the NTT, as also, to consider them eligible for being appointed as Members of the NTT. It was therefore asserted, that Section 13 of the NTT Act rightly permitted Chartered Accountants to represent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court held that the wife and daughters inheriting the property of a male Hindu do not form a HUF and that they could not also form such family by agreement among themselves by throwing their respective inherited shares in the hotchpot. 6 C.I.T. v. Bharat Prasad Anshu Kumar (2001) 249 ITR 755 (Delhi) The gift of property of a HUF to the members of the family is not void but voidable. 7 C.W.T. v. M.A.R. Rajkumar (1997) 226 ITR 804 (AP) Even the fact that the wife had given up her right to maintenance does not mean that she is no longer a member of the family of her husband. 8 C.G.T. v. B.S. Apparao (2001) 248 ITR 103 (AP) The amount spent by a Hindu father on his daughter's marriage is treated as maintenance (and not a gift) under the Hindu Adoptions and Maintenance Act, 1956. 9 Gowli Buddanna v. C.I.T. 60 ITR 293 (SC) A sole surviving coparcener can constitute a Hindu undivided family. 10 C.W.T. v. Chander Sen 161 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 436 (SC) Divided member marrying a Christian under Special Marriage Act, 1956. HUF way of living practiced by divided member and son continue to be HUF meaning of word Hindu discussed. II: Company Law: Sl. No Name and citation of case Allied subject/law adjudicated upon 1 C.I.T. v. Light Publications Ltd. (2001) 251 ITR 0120 (Guj.) A private company becoming a public company by virtue of the provisions of Section 43A of the Companies Act, 1956 may still not become a company in which the public are substantially interested due to the restriction imposed on its shareholders upon transferability of its shares to the other members of the public. 2 C.I.T. v. Sunaero Ltd. (2012) 345 ITR 0163 (Del) Presumption that a registered shareholder holds the share in his own right and any claim that shares were being held as a nominee has to be proved by the person claiming so. 3 Rajasthan Financial Corporation v. C.I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an extinguishment of rights and, therefore, there is a transfer. b) The amalgamation scheme sanctioned by the court would be an instrument within the meaning of Section 2(1) of the Bombay Stamp Act, 1958, and liable for stamp duty. A document creating or transferring a right is an instrument. 11 Anarkali Sarabhai v. C.I.T. 227 ITR 260(SC) Redemption of preference shares amounts to transfer and is liable to capital gains. 12 C.I.T. v. Artex Manufacturing Co. 227 ITR 260 (SC) Gains arising out of slump sale of business as a going concern is liable to tax under Section 41(2) on itemized basis if slump sale is determined on valuation of each asset/ liability. 13 C.I.T. v. Gold Mohore Investment Company Ltd. (1970) 78 ITR 16 (SC) Valuation of bonus shares The correct method to apply in cases where bonus shares rank pari passu is to take the cost of the original shares and to spread it over all the original as well as the bonus shares and to find out the average price of all the shares. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property though the document only gave him a limited right. 3 Ghiasuddin Babu Khan v. C.I.T. [1985] 153 ITR 707 (AP) Deferred dower on the dissolution of marriage by death or divorce is not a contingent debt because one of the two events is bound to happen. Wife cannot demand the payment of deferred dower before the event, but husband can pay even earlier. 4 Ziauddin Ahmed v. C.G.T. (1976) 102 ITR 253 (Gau) A family arrangement is valid amongst Muslims. 5 C.I.T. v. Puthiya Ponmanichintaka m Wakf, 44 ITR 172 (SC) A wakf cannot be a partner, but the mutawalli of a wakf can be. 6 Ahmed G H Ariff v. C.W.T. 76 ITR 471 (SC) Held, the moment a wakf is created all rights of property pass out of wakf and vest in the Almighty Property is a term of the widest import and subject to any limitation which the context may require; it signifies every possible interest which a person can clearly hold or enjoy. IV: Family Arrangement: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who were admitted to the benefits of the partnership could not claim their share of goodwill on the reconstruction of the firm by excluding the minors and consequently they were not liable to gift-tax. 8 Beniram Moolchand v. C.I.T. 25 ITR 287 (All) The mere fact that two persons take a commission agency business jointly would not necessarily constitute a partnership between them. 9 C.I.T. v. Chandra Shekhar Pawan Kumar 203 ITR 435 (Raj.) If a partnership has been entered between two persons of whom one is a benamidar of the other, there is no relation of partnership between the two persons and one person cannot constitute a firm. 10 Addl. C.I.T. v. Mohanbhai Pamabhai 165 ITR 166 (SC) On retirement of a partner from the firm, there is no transfer of interest of the partner I the assets thereof including the goodwill. The amount received is no assessable as capital gains. This case law is valid even after amendment in Section 45(4) which talks of dissolution or otherwise transferred. 11 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident in his trading activity. VII: Trusts/ Societies: Sl. No Name and citation of case Allied subject/law adjudicated upon 1 L.R. Patel Family Trust v. I.T.O. 262 ITR 520 (Bom) Trustees of a fixed (specific) trust cannot be considered as an association of persons or body of individuals. 2 C.I.T. v. Thanthi Trust (1982) 137 ITR 735 (Mad) Discussion on the Doctrine of Cypres as applicable to public charities. 3 C.I.T. v. Swashraya 286 ITR 265 (Guj) Power of trustees to contract on behalf of trust. Consent of beneficiaries, if necessary. 4 Pandit v. C.I.T. (1972) 83 ITR 136 (Bom) The number of ultimate beneficiaries of a trust may increase or decrease by reason of death and other circumstances and the interests of beneficiaries may, at a relevant date, be only contingent and may become vested at much a later date. If at that date, the beneficiaries can be ascertaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous owner affects the cost of acquisition. 3 C.I.T. v. Brig. Kapil Mohan 252 ITR 830 (Del) Though a transfer cannot be made directly to an unborn person, since under the definition of transfer in Section 5 of the Transfer of Property Act, 1882, a transfer is limited to living persons, transfer to an unborn person can only be made by the machinery of trusts. 4 C.G.T. v. Aloka Lata Sett (1991) 190 ITR 556 (Cal) If two registered documents re-executed by the same person in respect of the same property to two different persons at different times, the one which was executed first has priority over the other, although the former was registered subsequent to the latter. In other words, registration of a document relates to the date of its execution. 5 C.I.T. v. N.R. Bhusanraj (2002) 256 ITR 0340 (Mad) Whether a sale along with deed for re-conveyance of property amounts to transfer under both common law and income-tax law? X: Intellectual Property : Sl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s instructions on the revenue department. XII :Miscellaneous: Sl. No Name and citation of case Allied subject/law adjudicated upon 1 Sree Meenakshi Mills v. C.I.T. 31 ITR 25 (SC) Benami meaning and effect of taxation in benamidars hands discussed. 2 Leo Machado v. C.I.T. 172 ITR 744 (Mad) Boat belonging to the assessee met with an accident and sank in high seas; the compensation received from insurance company was due to destruction of property, thus no transfer as contemplated by Section 45 read with Section 48. The insurance amount received cannot be considered as consideration and amount received not liable to capital gains tax. 3 Gangadhar Bera v. Asst. C.I.T. (2004) 190 ITR 467 (Cal) A clarificatory notice is a mere addendum to the original notice and the effect of clarification is always retrospective so it must relate to the original notice. A mere non-mention of specific clause does not render notice bad i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the NTT would most definitely be confronted with the legal issues emerging out of Family Law, Hindu Law, Mohammedan Law, Company Law, Law of Partnership, Law related to Territoriality, Law related to Trusts and Societies, Contract Law, Law relating to Transfer of Property, Law relating to Intellectual Property, Interpretation of Statutes, and other Miscellaneous Provisions of Law, from time to time. The NTT besides the aforesaid statutes, will not only have to interpret the provisions of the three statutes, out of which appeals will be heard by it, but will also have to examine a challenge to the vires of statutory amendments made in the said provisions, from time to time. They will also have to determine in some cases, whether the provisions relied upon had a prospective or retrospective applicability. 78. Keeping in mind the fact, that in terms of Section 15 of the NTT Act, the NTT would hear appeals from the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) only on substantial questions of law , it is difficult for us to appreciate the propriety of representation, on behalf of a party to an appeal, through either Chartered Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the State, to which he belongs. An assessee may belong to a distant/remote State, in which eventuality, he would not merely have to suffer the hardship of traveling a long distance, but such travel would also entail uncalled for financial expense. Likewise, a litigant assessee from a far-flung State may find it extremely difficult and inconvenient to identify an Advocate who would represent him before the NTT, since the same is mandated to be ordinarily located in the National Capital Territory of Delhi. Even though we have expressed the view, that it is open to the Parliament to substitute the appellate jurisdiction vested in the jurisdictional High Courts and constitute courts/tribunals to exercise the said jurisdiction, we are of the view, that while vesting jurisdiction in an alternative court/tribunal, it is imperative for the legislature to ensure, that redress should be available, with the same convenience and expediency, as it was prior to the introduction of the newly created court/tribunal. Thus viewed, the mandate incorporated in Section 5(2) of the NTT Act to the effect that the sittings of the NTT would ordinarily be conducted in the National Capital Territ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the postings of different Members, with the Central Government, in our considered view, would undermine the independence and fairness of the Chairperson and the Members of the NTT, as they would always be worried to preserve their jurisdiction based on their preferences/inclinations in terms of work, and conveniences in terms of place of posting. An unsuitable/disadvantageous Chairperson or Member could be easily moved to an insignificant jurisdiction, or to an inconvenient posting. This could be done to chastise him, to accept a position he would not voluntarily accede to. We are, therefore of the considered view, that Section 5 of the NTT Act is not sustainable in law, as it does not ensure that the alternative adjudicatory authority, is totally insulated from all forms of interference, pressure or influence from co-ordinate branches of Government. There is therefore no alternative, but to hold that sub-sections (2), (3), (4) and (5) of Section 5 of the NTT Act are unconstitutional. 82. We shall now examine the validity of Section 6 of the NTT Act. The above provision has already been extracted in an earlier part of this judgment, while dealing with the submissions advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition to, or in substitution of Judicial Members), would constitute a clear case of delusion and encroachment upon the independence of judiciary , and the rule of law . It is difficult to appreciate how Accountant Members and Technical Members would handle complicated questions of law relating to tax matters, and also questions of law on a variety of subjects (unconnected to tax), in exercise of the jurisdiction vested with the NTT. That in our view would be a tall order. An arduous and intimidating asking. Since the Chairperson/Members of the NTT will be required to determine substantial questions of law , arising out of decisions of the Appellate Tribunals, it is difficult to appreciate how an individual, well-versed only in accounts, would be able to discharge such functions. Likewise, it is also difficult for us to understand how Technical Members, who may not even possess the qualification of law, or may have no experience at all in the practice of law, would be able to deal with substantial questions of law , for which alone, the NTT has been constituted. 84. We have already noticed hereinabove, from data placed on record by the learned counsel for the petitioners, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of the constitutional conventions recognized by courts, the world over. References on questions of law (under the three legislative enactments in question), were by a legislative mandate, required to be adjudicated by a bench of at least two judges of the jurisdictional High Court. When the remedy of reference (before the High Court) was converted into an appellate remedy (under the three legislative enactments in question), again by a legislative mandate, the appeal was to be heard by a bench of at least two judges, of the jurisdictional High Court. One cannot lose sight of the fact, that hitherto before, the issues which will vest in the jurisdiction of the NTT, were being decided by a bench of at least two judges of the High Court. The onerous and complicated nature of the adjudicatory process is clear. We may also simultaneously notice, that the power of judicial review vested in the High Courts under Articles 226 and 227 of the Constitution has not been expressly taken away by the NTT Act. During the course of hearing, we had expressed our opinion in respect of the power of judicial review vested in the High Courts under Articles 226 and 227 of the Constitution. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l position declared by this Court. It should not have been forgotten, that under the provisions of the Administrative Tribunals Act, 1985, which came up for consideration in L. Chandra Kumar case (supra), the tribunals constituted under the said Act, are to act like courts of first instance. All decisions of the tribunal are amenable to challenge under Articles 226/227 of the Constitution before, a division bench of the jurisdictional High Court. In such circumstances it is apparent, that tribunals under the Administrative Tribunals Act, 1985, were subservient to the jurisdictional High Courts. The manner of selection, as suggested in L. Chandra Kumar case (supra) cannot therefore be adopted for a tribunal of the nature as the NTT. Herein the acknowledged position is, that the NTT has been constituted as a replacement of High Courts. The NTT is, therefore, in the real sense a tribunal substituting the High Courts. The manner of appointment of Chairperson/Members to the NTT will have to be, by the same procedure (or by a similar procedure), to that which is prevalent for appointment of judges of High Courts. Insofar as the instant aspect of the matter is concerned, the above proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Chairperson/Member appointed to the NTT, would be constrained to decide matters, in a manner that would ensure his reappointment in terms of Section 8 of the NTT Act. His decisions may or may not be based on his independent understanding. We are satisfied, that the above provision would undermine the independence and fairness of the Chairperson and Members of the NTT. Since the NTT has been vested with jurisdiction which earlier lay with the High Courts, in all matters of appointment, and extension of tenure, must be shielded from executive involvement. The reasons for our instant conclusions are exactly the same as have been expressed by us while dealing with Section 5 of the NTT Act. We therefore hold, that Section 8 of the NTT Act is unconstitutional. 90. Sections 5, 6, 7, 8 and 13 of the NTT Act have been held by us (to the extent indicated hereinabove) to be illegal and unconstitutional on the basis of the parameters laid down by decisions of constitutional benches of this Court and on the basis of recognized constitutional conventions referable to constitutions framed on the Westminster model. In the absence of the aforesaid provisions which have been held to be unconst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is that the reason for setting up a National Tax Tribunal is non-existent as uniformity of decisions pertaining to tax laws is hardly a reason for interposing another tribunal between an appellate Tribunal and the Supreme Court, as High Court decisions are more or less uniform, since they follow the law laid down by each other. Since this is so, the Act must be struck down. The second contention is that it is impermissible for the legislature to divest superior courts of record from the core judicial function of deciding substantial questions of law. The third contention is as regards the Constitutional validity of Article 323-B being violative of the separation of powers doctrine, the rule of law doctrine and judicial review. The fourth contention concerns itself with the nitty gritty of the Act, namely, that various sections undermine the independence of the adjudicatory process and cannot stand judicial scrutiny in their present form. Since I am accepting the second contention urged by the petitioners, this judgment will not deal with any of the other contentions. 2. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. (Emphasis supplied) 3. The precise question arising in these appeals concerns the constitutional validity of the National Tax Tribunals Act, 2005. The question raised on behalf of the petitioners is one of great public importance and has, therefore, been placed before this Constitution Bench. Following upon the heels of the judgment in Union of India v. R.Gandhi, (2010) 11 SCC 1, these matters were delinked and ordered to be heard separately vide judgment and order dated 11th May 2010 reported in (2010) 11 SCC 67. The precise question formulated on behalf of the petitioners is whether a tribunal can substitute the High Court in its appellate jurisdiction, when it comes to deciding substantial questions of law. 4. Sections 15 and 24 of National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Appellate Tribunal or the Customs, Excise and Service Tax Appellate Tribunal involves the payment of any tax or duties, the assessee or the aggrieved person, as the case may be, shall not be allowed to prefer such appeal unless he deposits at least twenty-five per cent of such tax or duty payable on the basis of the order appealed against: Provided that where in a particular case the National Tax Tribunal is of the opinion that the deposit of tax or duty under this sub-section would case undue hardship to such person, it may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of revenue. 24. Appeal to Supreme Court.- Any person including any department of the Government aggrieved by any decision or order of the National tax Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the National Tax Tribunal to him; Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within such time as it may deem fit. 5. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other purpose to any person or authority. Under Art. 228 questions involving interpretation of the constitution are to be decided by the High Court alone when a court subordinate to it is seized of such question. Further, the importance of these provisions is further highlighted by Art. 368 proviso which allows an amendment of all the aforesaid Articles only if such amendment is also ratified by the legislatures of not less than one half of the States. 10. The Code of Civil Procedure also contains provisions which vest the High Court with the power to decide certain questions of law under Section 113 and, when they relate to jurisdictional errors, Section 115. 11. Art. 227 is of ancient vintage. It has its origins in Section 107 of the Government of India Act 1915 which reads as follows: Each of the High Courts has superintendence over all courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say.- (a) Call for returns; (b) Direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction; (c) Make and issue general rules and prescribe forms for reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 13. It will be noticed that Art. 227 adds the words and tribunals and contains no requirement that the superintendence over subordinate courts and tribunals should be subject to its appellate jurisdiction. 14. In Waryam Singh v. Amarnath, 1954 SCR 565, Das,J. stated the High Courts power under Art. 227: This power of superintendence conferred by article 227 is, as pointed out by Harries C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower courts in refusing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. (at 366) 16. The aforesaid analysis shows that the decision by superior courts of record of questions of law and the binding effect of such decisions are implicit in the constitutional scheme of things. It is obvious that it is emphatically the province of the superior judiciary to answer substantial questions of law not only for the case at hand but also in order to guide subordinate courts and tribunals in future. That this is the core of the judicial function as outlined by the constitutional provisions set out above. 17. As to what is a substantial question of law has been decided way back in Sir Chunilal V. Mehta v. The Century Spinning and Manufacturing Co. Ltd., (1962) Suppl. 3 SCR 549 at pages 557-558 thus: .The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m preferring the appeal. (iii) The Telecom Regulatory Authority of India Act, 1997 Section 18. Appeal to Supreme Court - (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall lie against any order, not being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section 100 of that code. (2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties. (3) Every appeal under this section shall be preferred within a period of ninety days from the date of the decision or order appealed against: Provided that the Supreme Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (iv) The Securities and Exchange Board of India Act, 1992 Section 15Z. Appeal to Supreme Court. - Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom an appellate decree passed exparte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 20. It is obvious that hitherto Parliament has entrusted a superior court of record with decisions on questions of law/substantial questions of law. Also, as has been pointed in Khehar, J.'s judgment traditionally, such questions were always decided by the High Courts in the country. The present Act is a departure made for the first time by Parliament. 21. In this regard, the respondents argued that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. (2) On receipt of notice that an application has been made under sub- section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such an application, file, within forty- five days of the receipt of the notice, a memorandum of cross- objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in sub- section (1). (3) If, on an application made under sub- section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Collector of Central Excise, or, as the case may be, the other party may, within six months from the date on which he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall decide the questions of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment shall be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case in conformity with such judgment. (2) The costs of any reference to the High Court or the Supreme Court which shall not include the fee for making the reference shall be in the discretion of the Court. 35L. Appeal to Supreme Court. An appeal shall lie to the Supreme Court from- (a) any judgment of the High Court delivered on a reference made under section 35G in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. 23. It is obvious that the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court's original jurisdiction in a Central Administrative Tribunal, stated thus: 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. 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. (see Para 93) 28. The stage is now set for the Attorney General's reliance on Union of India v. R. Gandhi (2010) 11 SCC 1. Various provisions of the Companies Act, 1956 were under challenge before the Constitution Bench. The effect of these provisions was to replace the Company Law Board by a Tribunal vested with original jurisdiction, and to replace the High Court in First Appeal with an appellate tribunal. After noticing the difference between courts and tribunals in paras 38 and 45, the court referred to the independence of the judiciary and to the separation of powers doctrine, as understood in the Indian Constitutional Context in paras 46 to 57. In a significant statement of the law, the Constitution Bench said: The Constitution contemplates judicial power being exercised by both courts and tribunals. Except the powers and jurisdiction vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by legislative enactments. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers would clearly be a case of dilution of and encroachment upon the independence of the judiciary and the rule of law and would be unconstitutional. (at para 90) The Bench then went on to hold that only certain areas of litigation can be transferred from courts to tribunals. (see para 92) In paragraphs 101 and 102 the law is stated thus: Independent judicial tribunals for determination of the rights of citizens, and for adjudication of the disputes and complaints of the citizens, is a necessary concomitant of the rule of law. The rule of law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the executive. Another facet of the rule of law is equality before law. The essence of the equality is that it must be capable of being enforced and adjudicated by an independent judicial forum. Judicial independence and separation of judicial power from the executive are part of the common law traditions implicit in a Constitution like ours which is based on the Westminster model. The fundamental rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers from Gandhi's case in a very fundamental manner. The National Tax Tribunal which replaces the High Courts in the country replaces them only to decide substantial questions of law which relate to taxation. In fact, a Direct Tax Laws Committee delivered a report in 1978 called the Choksi Committee after its Chairman. This report had in fact recommended that a Central Tax Court should be set up. The report stated: II-6.10. In paragraph 11.30 of our Interim Report, we had expressed the view that the Government should consider the establishment of a Central Tax Court to deal with all matters arising under the Income-tax Act and other Central Tax Laws, and had left the matter for consideration in greater detail in our Final Report. We have since examined the matter from all aspects. II-6.11. The problem of tax litigation in India has assumed staggering proportions in recent years. From the statistics supplied to us, it is seen that, as on 30th June, 1977, there were as many as 10,500 references under the direct tax laws pending with the various High Courts, the largest pendency being in Bombay, Calcutta, Madras, Karnataka and Madhya Pradesh. The number of references made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are inherent in the existing system, the jurisdiction pattern of the High Courts also seems to contribute to the generation of avoidable work. At present, High Courts are obliged to hear references on matters falling within their jurisdiction notwithstanding that references on identical points have been decided by other High Courts. The decision of one High Court is not binding on another High Court even on identical issues. Finality is reached only when the Supreme Court decides the issue which may take 10 to 15 years. II-6.14. Tax litigation is currently handled by different Benches of the High Courts constituted on an ad hoc basis. The absence of permanent benches also accounts for the delay in the disposal of the tax cases by High Courts. II-6.15. The answer to these problems, in our view, is the establishment of a Central Tax Court with all-India jurisdiction to deal with such litigation to the exclusion of High Courts. Such a step will have several advantages. In the first place, it would lead to uniformity in decisions and bring a measure of certainty in tax matters. References involving common issues can be conveniently consolidated and disposed of together, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the Tribunal and the tax authorities, being creatures of the Act cannot pronounce on the constitutional validity or vires of any provision of the Act; that; therefore, such a question cannot arise out of the order of the Tribunal and cannot be made the subject matter of a reference to the High Court and a subsequent appeal to the Supreme court; and that such a question of validity or vires can be raised only in a suit or a writ petition. While an income-tax authority or the Tribunal cannot decide upon the validity or vires of the other provisions of the law. We recommend that the powers of the Central Tax Court in this regard should be clarified in the law itself by specifically giving it the right to go into questions of validity of the provisions of the Tax Laws or of the rules framed thereunder. II-6.19. Another important matter, in which we consider that the present position needs improvement, is the nature of the Court's jurisdiction in tax matters. Under the present law, the High Court's jurisdiction in such matters is merely advisory on questions of law. For this purpose, the Appellate Tribunal has to draw up a statement of the case and refer the same to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting up of a Central Tax Court may not be interpreted to be only a modified version of the concept of administrative and other tribunals authorized to be set up for various purposes under the amendments effected by the 42nd Amendment of the Constitution. The Central Tax Court, which we have in view, will be a special kind of High court with functional jurisdiction over tax matters and enjoying judicial independence in the same manner as the High Courts. The controversy generated by the 42nd Amendment to the Constitution should not, therefore, be held to militate against the proposal for the establishment of a Central Tax Court to exercise the functions of a High Court in tax matters. This recommendation was not acceded to by Parliament. 31. It is obvious, that substantial questions of law which relate to taxation would also involve many areas of civil and criminal law, for example Hindu Joint Family Law, partnership, sale of goods, contracts, Mohammedan Law, Company Law, Law relating to Trusts and Societies, Transfer of Property, Law relating to Intellectual Property, Interpretation of Statutes and sections dealing with prosecution for offences. It is therefore not correct t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k down the Residential Tenancy Act which established a tribunal to require landlords and tenants to comply with the obligations imposed under the Act. The court held: The Court of Appeal delivered a careful and scholarly unanimous judgment in which each of these questions was answered in the negative. The Court concluded it was not within the legislative authority of Ontario to empower the Residential Tenancy Commission to make eviction orders and compliance orders as provided in the Residential Tenancies Act, 1979. The importance of the issue is reflected in the fact that five Judges of the Court, including the Chief Justice and Associate Chief Justice, sat on the appeal. It then went on to enunciate a three steps test with which we are not directly concerned. The Court finally concluded: Implicit throughout the argument advanced on behalf of the Attorney-General of Qntario is the assumption that the Court system is too cumbersome, too expensive and therefore unable to respond properly to the social needs which the residential Tenancies Act, 1979 is intended to meet. All statutes respond to social needs. The Courts are unfamiliar with equity and the concept of fairness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween and exercised by the courts that were already in existence when the new constitution came into force; but the legislature, in exercise of its power to make laws for the 'peace, order and good government of the state, may provide for the establishment of new courts and for the transfer to them of the whole or part of the jurisdiction previously exercisable by an existing court. What, however, is implicit in the very structure of a constitution on the Westminister model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the judicature, even though this not expressly stated in the constitution (Liyanage v. R [1966] All ER 650 at 658 [1976] AC 259 at 287, 288] The more recent constitutions on the Westminister model, unlike their earlier prototypes, include a chapter dealing with fundamental rights and freedoms. The provisions of this chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down in the constitution for this purpose, impose a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Australia v. R and Boilermakers' Society of Australia). 35. Ultimately, a majority of the court found that the provisions of the 1974 Act, in so far as they provide for the establishment of a full court division of the Gun Court consisting of three resident Magistrates were unconstitutional. 36. It was also argued by the learned Attorney General that the High Courts' jurisdiction under Section 260A of the Income Tax Act and other similar tax laws could be taken away by ordinary law and such sections could be deleted. If that is so surely the jurisdiction vested in the High Court by the said section can be transferred to another body. 37. It is well settled that an appeal is a creature of statute and can be done away by statute. The question posed here is completely different and the answer to that question is fundamental to our jurisprudence: that a jurisdiction to decide substantial questions of law vests under our constitution, only with the High Courts and the Supreme Court, and cannot be vested in any other body as a core constitutional value would be impaired thereby. 38. In fact, the Attorney General in his written argument at paras 16 and 21(a) has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding certain basic features of the Constitution, it was opined that separation of powers is part of the basic structure of the Constitution. Later, similar view was echoed in Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1] and in a series of other cases on the point. Nevertheless, apart from the fact that our Constitution does not envisage a rigid and strict separation of powers between the said three organs of the State, the power of judicial review stands entirely on a different pedestal. Being itself part of the basic structure of the Constitution, it cannot be ousted or abridged by even a constitutional amendment. (See L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L S) 577].) Besides, judicial review is otherwise essential for resolving the disputes regarding the limits of constitutional power and entering the constitutional limitations as an ultimate interpreter of the Constitution. 68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows: (iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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