Sunday, November 11, 2012

SAMAJWADI PARTY DRAWING FLASK DETERIORATION WHILE BAHUJAN SAMAJWADI PARTY IN MAKING MONEY , WHO CARES FOR MOST BACKWARDS AND SC/ST

The Samajwadi Party (SP) government, which is already drawing flak for deterioration in law and order in Uttar Pradesh (UP) and misconduct of the party leaders, has landed in a fresh controversy. SP MLA Vijay Mishra's daughter was caught on camera distributing Rs 500 notes to policemen as 'bakshish' after release of his father from Naini jail in Allahabad after one-and-a-half-year.
Mishra was in jail after being accused of engineering the bomb attack on former minister Nand Gopal Nandi on July 2010. Nandi, who was minister in the then ruling Bahujan Samaj Party (BSP), was injured in the blast but a journalist and a police guard were killed. Mishra fought election from Gyanpur assembly constituency from inside jail and won. The MLA recently got bail and was released on Tuesday evening.
The video footage shows Mishra's daughter Seema, while sitting in her SUV along with father, distributing cash as 'tips' to the police personnel deployed in the jail to gaurd prisoners. Police personnel jostled to grab the currency and were seen thanking MLA's daughter. While politicians getting VIP treatment in jails is a common feature in UP, Mishra's case reflects how brazenly ruling party MLAs are breaking law.
Earlier, in June this year, Mishra, who was given permission by the court to attend assembly proceedings, flouted orders and went to attend the lunch hosted by chief minister Akhilesh Yadav for Congress's presidential candidate Pranab Mukherji when he came to Lucknow for campaign. Similarly, another mafia-turned-politician and MLA from Mau assembly constituency, Mukhtar Ansari, also in jail, was present during the lunch.
Mishra has 62 criminal cases against him. He was arrested and put behind bars during the Maywati rule. The government also slapped Mishra with National Security Act (NSA). The SP, during its campaign for assembly election earlier this year, had announced that if voted to power, it will withdraw all cases slapped against Mishra during the Mayawati rule. The SP described cases against Mishra as 'politically motivated'.
IMPORTANT REQUIREMENT OF THE ENDS OF JUSTICE
"There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the (inherent) powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the (inherent) power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the (inherent) power of the High Court can be legitimately invoked. In regard to non-bailable offences there is no need to invoke such power because S. 497(5) specifically deals with such cases."
When a question is answered expressly or by necessary implication by Supreme Court the answer cannot be ignored by referring to the decisions appealed against and holding that the real question that must be considered to have been answered was something else. What the judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the Judges themselves are what constitute precedents
BALESHWAR DASS V. STATE OF U.P., (1981) 1 SCR 449 : (AIR 1981 SC 41)
Baleshwar Dass v. State of U.P., (1981) 1 SCR 449 : (AIR 1981 SC 41) and subsequently followed in several decisions, that ordinarily in the absence of any specific rule of seniority governing the cadre or service, the length of continuous officiation should be counted in reckoning seniority as between direct recruits and promotees, should also be extended in determining seniority of such ad hoc employees viv-a-vis direct recruits, and whether the failure on the part of the Government to count the entire period of officiation as such ad hoc employees would be per se arbitrary and irrational and thus violative of Arts. 14 and 16(l) of the Constitution inasmuch as the temporary service in the post in question was not for a short period intended to meet some emergent or unforeseen circumstances, but to meet the exigencies of the service. It is asserted that the recent pronouncement of this Court in the case of Narender Chadha v. Union of India, (1986) 2 SCC 157. (AIR 1986 SC 638) supports this view. The argument at first blush appears to be plausible but on deeper consideration is not worthy of acceptance. We proceed to give reasons therefor.
We are not aware of any principle or rule which lays down that the length of continuous officiation service is the only relevant criterion in determining seniority in a particular cadre or grade, irrespective of any specific rule of seniority to the contrary. It is necessary to emphasise that the principles laid down in the two leading cases of N. K. Chauhan and S. B. Patwardhan, (AIR 1977 SC 2051) reiterated in Baleshwar Dass' case (AIR 1981 SC 41) and subsequently followed in several decisions are not an authority for any such proposition. These decisions particularly that in Baleshwar Dass' case clearly lay down that ordinarily and in the absence of any specific rule of seniority governing the cadre or service, the length of continuous officiation should be counted in reckoning seniority as between direct recruits and promotees. These authorities nowhere lay down that the same principle i.e. the length of continuous officiation must be the sole guiding factor and the only criterion in determining seniority of such ad hoc employees vis-a-vis direct recruits.
. We feet it necessary to emphasise that the principles laid down by this Court in the two cases of N.K. Chauhan, (AIR 1977 SC 251) and S.B. Patwardhan. (AIR 1977 SC 2051) which were reiterated in Baleshwar Dass case, (AIR 1981 SC 41 ) and subsequently followed in several other cases do not lay down any principle to the contrary. These cases are not an authority for the proposition relied upon. On the contrary, they clearly proceed on the principle that persons appointed on an ad hoc basis or for fortuitous reasons or by stop-gap arrangement, constitute a class which is separate and distinct from those who are appointed to posts in the service in strict conformity with the rules of recruitment. In the case of S.B. Patwardhan, Chandrachud, C.J., observed :
NO MAN CAN BE A JUDGE IN HIS OWN CAUSE :-
It is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common-sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias @page-SC455 but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contenting parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner.
PUBLIC SERVICE COMMISSION - SELECTION OF CANDIDATES - BIAS
Constitution of India, Art.316, Art.226 - Public Service Commission - Selection of candidates - Bias - Close relative of a member of Commission appearing for selection - Member need not completely withdraw from selection process - Sufficient, if he does not participate in interview of that candidate.
There can be no doubt that if a selection committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. However, the principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place need not be applied an case of a Constitutional Authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. Of course, when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.
Constitution of India, Art.14 and Art.16 - Appointment of teachers on ad hoc basis at commencement of year and terminating their services before summer vacation - Policy of State Government in following such practice is violative of Arts. 14 and 16 - State Government directed to make appointments as per rules and fill up vacancies in which teachers who are working on ad hoc basis are now working.
JUDICIAL REVIEW IS A BASIC AND ESSENTIAL FEATURE OF THE CONSTITUTION
It is judicial review is a basic and essential feature of the Constitution now well-settled as a result of the decision of this Court in Minerva Mills Ltd. v. Union of India (1981) 1 SCR 206: (AIR 1980 SC 1789) 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 left to the Executive to decide and for two very good reasons. First the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law, the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be left to the determination of the legislature. The Constitution has, therefore created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. The judiciary is constituted the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of Government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. It is also a basic principle of the Rule of Law which permeates every provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities. This function is discharged by the judiciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the Rule of Law would become a teasing illusion and a promise of unreality. That is why I observed in my judgement in Minerva Mills Ltd. case, (AIR 1980 SC 1789) (supra) at pages 287 and 288 of (1981) 1 SCR: (at p. 1825 and 1826 of AIR) :-
"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 however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasis 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 @page-SC389 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 and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that Cl. (4) of the Art. 368 is unconstitutional and void as damaging the basic structure of the Constitution."
It is undoubtedly true that my judgement in Minerva Mills Ltd. case (AIR 1980 SC 1789) (supra) was a minority judgement but so far as this aspect is concerned, the majority Judges also took the same view and held that judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution and it is equally clear from the same decision that though judicial review cannot be altogether abrogated by Parliament by amending the Constitution in exercise of its constituent power, Parliament can certainly, without in any way violating the basic structure doctrine, set up effective alternative institutional mechanisms or arrangements for judicial review. The basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is not less efficacious than the High Court. Then, instead of the High Court, it would be another institutional mechanisin or authority which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the Rule of Law. Therefore, if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential 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.
Here, in the present case, the impugned Act has been enacted by Parliament in exercise of the power conferred by Cl. (1) of Art. 323-A which was introduced in the Constitution by Constitution (42nd Amendment) Act, 1976. Cl. (2)(d) of this Article provides that a law made by Parliament under Cl. (1) may exclude the jurisdiction of Courts, except the jurisdiction of the Supreme Court under Art. 136, with respect to the disputes or complaints referred to in Cl. (1). The exclusion of the jurisdiction of the High Court under Arts. 226 and 227 by any law made by Parliament under Cl. (1) of Art. 323A is, therefore, specifically authorised by the constitutional amendment enacted in Cl. (2)(d) of that Article. It is clear from the discussion in the preceding paragraph that this constitutional amendment authorising exclusion of the jurisdiction of the High Court under Arts. 226 and 227 postulates for its validity that the law made under Cl. (1) of Art. 323A excluding the jurisdiction of the High Court under Arts. 226 and 227 must provide for an effective alternative institutional mechanism or authority for judicial review. If this constitutional amendment were to permit a law made under Cl. (1) of Art. 323A to exclude the jurisdiction of the High Court under Arts. 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure doctrine and hence outside the constituent power of Parliament. It must, therefore, be read as implicit in this constitutional amendment that the law excluding the jurisdiction of the High Court under Arts. 226 and 227 permissible under it must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the High Court Under Arts. 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being within the ambit and coverage of Cl. (2)(d) of Art. 323A, only if it can be shown that the Administrative Tribunal set up under the impugned Act is equally efficacious as the High Court, so far as the power of judicial review over service matter is concerned. We must, therefore, address ourselves to the question whether the Administrative Tribunal established under the impugned Act can be regarded as equally effective and efficacious in exercising the power of judicial review as the High Court acting under Arts. 226 and 227 of the Constitution.
It is necessary to bear in mind that service matters which are removed from the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution and entrusted to the Administrative Tribunal set up under the impugned Act for adjudication involve questions of interpretation and applicability of Arts. 14, 15, 16 and 311 in quite a large number of cases. These questions require for their determination not only judicial approach but also knowledge and expertise in this particular branch of constitutional law. It is necessary that those who adjudicate upon these questions should have same modicum of legal training and judicial experience because we find that some of these questions are so difficult and complex that they baffle the minds of even trained Judges in the High Courts and the Supreme Court. That is the reason why at the time of the preliminary hearing of these writ petitions we insisted that every bench of the Administrative Tribunal should consist of one judicial member one administrative member and there should be no preponderance of administrative members on any bench. Of course, the presence of the administrative member would provide input of practical experience in the functioning of the services and add to the efficiency of the Administrative Tribunal but the legal input would undeniably be more important and sacrificing the legal input or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal as compared to the High Court. Now S. 6 provides that the Chairman of the Administrative Tribunal should be or should have been a Judge of the High Court or he should have for at least two years held office of Vice-Chairman or he should have for at least two years held the post of Secretary to the Government of India .or any other post under the Central or State Government carrying a scale of pay which is not less than that of a Secretary to the, Government of India. I entirely agree with Ranganath Misra, J. that the Chairman of the Administrative Tribunal should be or should have been a Judge of a High Court or he should have for at least two years held office as Vice-Chairman. If he has held office as Vice-Chairman for a period of at least two years he would have gathered sufficient experience and also within such period of two years, acquired reasonable familiarity with the constitutional and legal questions involved in service matters. But substituting the Chief Justice of a High Court by a Chairman of the Administrative Tribunal who has merely held the post of a Secretary to the Government and who has no legal or judicial experience would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the High Court. We cannot afford to forget that it is the High Court which is being supplanted by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity. Of course, I must make it clear that when I say this, I do not wish to cast any reflection on the members of the Civil Services because fortunately we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and who have remarkable capacity to resolve and overcome administrative problems of great complexity. But what is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience. I am, therefore, of the view, in agreement with Ranganath Misra, J. that Cl. (c) of S. 6(l) must be struck down invalid.
It is now well-settled as a result of the decision of this Court in Minerva Mills Ltd. v. Union of India (1981) 1 SCR 206: (AIR 1980 SC 1789) 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 left to the Executive to decide and for two very good reasons. First the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law, the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be left to the determination of the legislature. The Constitution has, therefore created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. The judiciary is constituted the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of Government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. It is also a basic principle of the Rule of Law which permeates every provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities. This function is discharged by the judiciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the Rule of Law would become a teasing illusion and a promise of unreality. That is why I observed in my judgement in Minerva Mills Ltd. case, (AIR 1980 SC 1789) (supra) at pages 287 and 288 of (1981) 1 SCR: (at p. 1825 and 1826 of AIR) :-
"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 however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasis 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 @page-SC 389 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 and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that Cl. (4) of the Art. 368 is unconstitutional and void as damaging the basic structure of the Constitution."
It is undoubtedly true that my judgement in Minerva Mills Ltd. case (AIR 1980 SC 1789) (supra) was a minority judgement but so far as this aspect is concerned, the majority Judges also took the same view and held that judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution and it is equally clear from the same decision that though judicial review cannot be altogether abrogated by Parliament by amending the Constitution in exercise of its constituent power, Parliament can certainly, without in any way violating the basic structure doctrine, set up effective alternative institutional mechanisms or arrangements for judicial review. The basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is not less efficacious than the High Court. Then, instead of the High Court, it would be another institutional mechanisin or authority which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the Rule of Law. Therefore, if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential 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.
3. Here, in the present case, the impugned Act has been enacted by Parliament in exercise of the power conferred by Cl. (1) of Art. 323-A which was introduced in the Constitution by Constitution (42nd Amendment) Act, 1976. Cl. (2)(d) of this Article provides that a law made by Parliament under Cl. (1) may exclude the jurisdiction of Courts, except the jurisdiction of the Supreme Court under Art. 136, with respect to the disputes or complaints referred to in Cl. (1). The exclusion of the jurisdiction of the High Court under Arts. 226 and 227 by any law made by Parliament under Cl. (1) of Art. 323A is, therefore, specifically authorised by the constitutional amendment enacted in Cl. (2)(d) of that Article. It is clear from the discussion in the preceding paragraph that this constitutional amendment authorising exclusion of the jurisdiction of the High Court under Arts. 226 and 227 postulates for its validity that the law made under Cl. (1) of Art. 323A excluding the jurisdiction of the High Court under Arts. 226 and 227 must provide for an effective alternative institutional mechanism or authority for judicial review. If this constitutional amendment were to permit a law made under Cl. (1) of Art. 323A to exclude the jurisdiction of the High Court under Arts. 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure doctrine and hence outside the constituent power of Parliament. It must, therefore, be read as implicit in this constitutional amendment that the law excluding the jurisdiction of the High Court under Arts. 226 and 227 permissible under it must not leave a void but it must set up another effective institutional mechanism or @page-SC 390 authority and vest the power of judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the High Court Under Arts. 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being within the ambit and coverage of Cl. (2)(d) of Art. 323A, only if it can be shown that the Administrative Tribunal set up under the impugned Act is equally efficacious as the High Court, so far as the power of judicial review over service matter is concerned. We must, therefore, address ourselves to the question whether the Administrative Tribunal established under the impugned Act can be regarded as equally effective and efficacious in exercising the power of judicial review as the High Court acting under Arts. 226 and 227 of the Constitution.
4. It is necessary to bear in mind that service matters which are removed from the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution and entrusted to the Administrative Tribunal set up under the impugned Act for adjudication involve questions of interpretation and applicability of Arts. 14, 15, 16 and 311 in quite a large number of cases. These questions require for their determination not only judicial approach but also knowledge and expertise in this particular branch of constitutional law. It is necessary that those who adjudicate upon these questions should have same modicum of legal training and judicial experience because we find that some of these questions are so difficult and complex that they baffle the minds of even trained Judges in the High Courts and the Supreme Court. That is the reason why at the time of the preliminary hearing of these writ petitions we insisted that every bench of the Administrative Tribunal should consist of one judicial member one administrative member and there should be no preponderance of administrative members on any bench. Of course, the presence of the administrative member would provide input of practical experience in the functioning of the services and add to the efficiency of the Administrative Tribunal but the legal input would undeniably be more important and sacrificing the legal input or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal as compared to the High Court. Now S. 6 provides that the Chairman of the Administrative Tribunal should be or should have been a Judge of the High Court or he should have for at least two years held office of Vice-Chairman or he should have for at least two years held the post of Secretary to the Government of India .or any other post under the Central or State Government carrying a scale of pay which is not less than that of a Secretary to the, Government of India. I entirely agree with Ranganath Misra, J. that the Chairman of the Administrative Tribunal should be or should have been a Judge of a High Court or he should have for at least two years held office as Vice-Chairman. If he has held office as Vice-Chairman for a period of at least two years he would have gathered sufficient experience and also within such period of two years, acquired reasonable familiarity with the constitutional and legal questions involved in service matters. But substituting the Chief Justice of a High Court by a Chairman of the Administrative Tribunal who has merely held the post of a Secretary to the Government and who has no legal or judicial experience would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the High Court. We cannot afford to forget that it is the High Court which is being supplanted by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity. Of course, I must make it clear that when I say this, I do not wish to cast any reflection on the members of the Civil Services because fortunately we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and who have remarkable capacity to resolve and overcome administrative problems of great complexity. But what is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience. I am, therefore, of the view, in agreement with Ranganath Misra, J. that Cl. (c) of S. 6(l) must be struck down invalid.
It is now well-settled as a result of the decision of this Court in Minerva Mills Ltd. v. Union of India (1981) 1 SCR 206: (AIR 1980 SC 1789) 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 left to the Executive to decide and for two very good reasons. First the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law, the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be left to the determination of the legislature. The Constitution has, therefore created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. The judiciary is constituted the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of Government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. It is also a basic principle of the Rule of Law which permeates every provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities. This function is discharged by the judiciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the Rule of Law would become a teasing illusion and a promise of unreality. That is why I observed in my judgement in Minerva Mills Ltd. case, (AIR 1980 SC 1789) (supra) at pages 287 and 288 of (1981) 1 SCR: (at p. 1825 and 1826 of AIR) :-
"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 however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasis 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 @page-SC 389 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 and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that Cl. (4) of the Art. 368 is unconstitutional and void as damaging the basic structure of the Constitution."
Government carrying a scale of pay which is not less than that of a Secretary to the, Government of India. I entirely agree with Ranganath Misra, J. that the Chairman of the Administrative Tribunal should be or should have been a Judge of a High Court or he should have for at least two years held office as Vice-Chairman. If he has held office as Vice-Chairman for a period of at least two years he would have gathered sufficient experience and also within such period of two years, acquired reasonable familiarity with the constitutional and legal questions involved in service matters. But substituting the Chief Justice of a High Court by a Chairman of the Administrative Tribunal who has merely held the post of a Secretary to the Government and who has no legal or judicial experience would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the High Court. We cannot afford to forget that it is the High Court which is being supplanted by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity. Of course, I must make it clear that when I say this, I do not wish to cast any reflection on the members of the Civil Services because fortunately we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and who have remarkable capacity to resolve and overcome administrative problems of great complexity. But what is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience. I am, therefore, of the view, in agreement with Ranganath Misra, J. that Cl. (c) of S. 6(l) must be struck down invalid.
. In order to consider and determine this question it is relevant to look into the Regulations made by the Indian Medical Council under S. 33 of the said Act. The Regulations have been enumerated at pages 45. These Regulations thus provide that the students of post-graduate training are to be selected strictly on merit judged on the basis of academic record in the under-graduate course and that all selections for post-graduate studies are to be conducted by the Universities besides looking to the other criteria regarding rotating internship, housemanship, etc. The Government of Uttar Pradesh issued a notice on 15-10-1982 inviting applications in prescribed form for admission to the postgraduate degree and diploma courses for the different Medical Colleges of the province. In para 4 of the said notice it has been specifically provided that the minimum eligibility qualification of the applicants would be according to the recommendations of the Medical Council of India. On 15-12-1982, the Government issued another order laying down the policy and procedure to be followed with regard to the admission of candidates to the post-graduate courses (both degree and @page-SC 404 diploma) in State Medical Colleges. In this order in para 6 it has been specifically provided that "no candidate shall be eligible for admission for post-graduate degree or diploma course who has obtained less than 55% and 52% marks respectively for the two courses (degree and diploma) on merit to be calculated in accordance with para 2 of the said order." It is this eligibility criterion laid down in the said Government order which is the subject matter of challenge in these appeals and writ petitions before this Court.
The said order modifies to a certain extent the earlier notification issued on 15-10-1982 inviting applications for admission to the post-graduate courses as per notification dated 3-12-1980. In the notification dated 3-12-1080, the criterion for admission to the post-graduate courses was on the basis of merit only. In para 2 of the said order the manner how the merit is to be determined has been laid down. In that order there was no such criterion laid down as mentioned in the Government order dated 15-12-1982. Two questions arise for our consideration which are firstly whether the State Government is competent to make the aforesaid order in question in exercise of its executive powers under Art. 162 of the Constitution. This Article specifically provides that the executive powers of the State shall extend to matters with respect to which the legislature of the State has power to make laws. Entry 25 of the Concurrent List i.e. List III of the Seventh Schedule to the Constitution provides as follows :-
"Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."
15. The State Government can in exercise of its executive power make an order relating to matters referred to in entry 25 of the Concurrent List in the absence of any law made by the State Legislature. The impugned order made by the State Government pursuant to its executive powers laying down the eligibility qualification for the candidates to be considered on merits for admission to the post-graduate courses in Medical Colleges in the State is valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in entry 66 of List I. Entry 66 of List I is in the following terms :-
"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
. What relevance the above decision has to the facts of the present case is also beyond us. It is not possible to equate the members of the Scheduled Castes with goods imported from abroad. They are human beings like all other human beings, the only difference being that for centuries a large number of their countrymen have not treated them as human beings but as sub-human creatures beyond the pale of society and even of humanity. William Blake in his poem "Auguries of Innocence" said :
"Every Night and every Morn
Some to Misery are Born.
Every Morn and every Night
Some are Born to sweet delight.
Some are Born to sweet delight,
Some are Born to Endless Night."
The members of the Scheduled Castes were the children of the "Endless Night". Their birth-right was the badge of shame; their inheritance, the overflowing cup of humiliation; their constant and closest companion, degradation; the bride of their marriage, lifelong poverty; and their only fault, to be born to their parents. They were denied education. They were denied jobs except the lowest menial tasks. They were denied contact with persons not belonging to their castes for their touch polluted and even their shadow defiled, though the touch and the shadow of the animals did not, for men rode on horses and elephants and on mules and camels and milked cows, goats and buffaloes. They were denied worship and the doors of the temples were shut in their faces for their very presence was supposed to offend the gods. All these wrongs were done to them by those who fancied themselves their superiors. As the anonymous satirist said
"We are the precious chosen few
Let all the rest be damned.
There's only room for one or two
"We can't have Heaven crammed."
The treatment meted out to the members of the Scheduled Castes throughout the ages was an affront to Human Rights. It was in a spirit of atonement for the wrongs done to them and to make restitution for the injury and injustice inflicted upon them that the framers of the Constitution enacted Article 16(4) placing them in a separate class in matters relating to employment or appointment to any office under the State, formulated the Directive Principle embodied in Article 46, and proclaimed the great Constitutional mandate set out in Article 335.
Children are the citizens of the future era. On the proper bringing; up of children and giving them the proper training to turn out to be good citizens depends the future of the country. In recent years, this position has been well realised. The Children Act, 1948, has made elaborate provisions to cover the International Charters relating to the rights of children and if these provisions are properly translated into action and the authorities created under the Act become cognisant of their role, duties and obligation in the performance of the statutory mechanism created under the Act and they are properly motivated to meet the situations that arise in handling the problems, the situation would certainly be very much eased. It is very much necessary, therefore, that officers at the different level called upon to perform statutory duties by exercising powers conferred under the Statute have to be given the proper training and only when they had the requisite capacity in them should they be called upon to handle the situation. (Paras 5, 6)
It is not necessary that for employment in children's home, the children should be given remuneration. Children in Observation Homes should not be made to stay long and as long as they are there, they should be kept occupied and the occupation should be congenial and intended to bring about adaptability in life aided at bringing about a self-confidence and picking of humane virtues. (Para 8) @page-SC 657
Dedicated workers have to be found out, proper training to them has to be imparted and such people alone should be introduced into the children homes. (Para 9)
The Juvenile Court has to be manned by a Judicial Officer with some special training. Creation of a Court with usual Judicial Officer and labelling it as Juvenile Court does not serve the requirement of the statute. If that were so, the statutes have no necessity of providing a Juvenile Court. The statutory scheme contemplates a Judicial Officer of a different type with a more sensitive approach-oriented outlook. (Para 10)
A problem child is indeed a negative factor. Every society must, therefore, devote full attention to ensure that children are properly cared for and brought up in a proper atmosphere where they could receive adequate training, education and guidance in order that they may be able to have their rightful place in the society when they grow up. (Para 11)
The Children Aid Society should have been treated as a State within the meaning of Art. 12 as it is undoubtedly an instrumentality of the State. The Society has, therefore, to regulate its activities not only in accordance with the statutory requirements but also act in a manner satisfying the requirements of the Constitutional provisions in Arts. 21 and 24 as also the Directive Principles of the State Policy. (Para 12)
Righteousness never leaves man’s side
I joined the legal profession in June 1974, Earlier I was supervising my landed property in district Mainpuri as there was no one to look after the property after my father’s death in 1971.
Since I have seen the miserable conditions prevalent amongst the farmers I have always wanted to work for the downtrodden.
The jurisdiction in the courts is like the construction of a building: it is eitherperfect or has many defects.The final word of posterity depends on the skill and calibre of the builder. He may desire to build like an expert builder with Architectonic viruses to amend and add some material both by method and uniformity .But if the structure itself lacks ventilation and wants in windows and sufficient light carries any other deficiency then it will ultimately collapse .
Likewise justice should speak in a language that is easy to understand .The common man needs to understand and know what is spoken .He cannot understand anything if the language is not cut out for him.Lastly, I quote a verse from Manusmriti and other scriptures:’all the members of the court are considered as wounded, where justice is found wounded with inequity, and judges do not extract the dart of inequity from justice or remove its blot and destroy inequity’. In other words if the innocents are not respected and criminals not punished justice will not play its given role.
In this world, justice and righteousness alone are a man’s friends. These go with him after death. All other things or companions part with the destruction of the body and he is detached from all company. But the company of justice is never cut off.
MOST INCONGRUOUS ARGUMENTS
Believe it or not, the most incongruous arguments can sometimes find a suitor. Were it not so, the High Court of Andhra Pradesh could not have taken the view that occupation or user of lands and buildings for the purpose of running horse races, and for training the horses, etc. constitutes occupation or user of the property for a 'charitable' purpose. What the High Court has completely' failed to realize is that the 'occupation' of the land and buildings or the 'user' of the land and buildings must be for a 'charitable purpose' and that it is altogether irrelevant as to the manner in which the income of the club is utilised. Section 202(l)(b) makes no reference. to the question as regards the employment of the income of the club or the purpose for which the income is so employed. Exemption is granted only in respect of buildings which are 'solely' used, meaning thereby exclusively used, for charitable purpose. For instance, if the premises are occupied for the purposes of benevolent activities such as the running of a free dispensary or clinic or for running of a free school for the children, such user of the building would constitute a user for a charitable purpose and entitle the owner of the building to claim exemption. It is impossible to subscribe to the view that occupation or user for 'any' purpose would constitute a user for a charitable purpose provided the income is used for a charitable purpose. Clutching at the tail of this reasoning, one would be induced to the conclusion that user of a building for running a common gaming house (or for any immoral or illegal purpose) would be user for a 'charitable' purpose provided the income of the common gaming house is utilised for a charitable purpose. The argument deserves no further scrutiny and must be rejected outright. No further exercise need be undertaken in order to find out whether or not S. 202(l)(b) is attracted in the facts of the present matter. The judgment of the High Court in so far as the High Court holds that S. 202(l)(b) is attracted must therefore be reversed and set aside. We are of the opinion that the user of the premises for the Race Course Club will not constitute occupation or user for a charitable purpose within the meaning of S. 202(1)(b) and the Race Course Club will not be entitled to claim exemption from levy of general tax.
Two other questions have been agitated by the Appellant Municipal Corporation. First, whether the general tax could have been lawfully levied for the assessment year 1966-67. The High Court has rightly taken a view adverse to. the appellant on an appreciation of evidence. We do not see any fallacy in the reasoning of the High Court. We therefore do not propose to disturb the finding recorded by the High Court in so far as this question is concerned. Secondly, as regards the valuation of the property. The learned Judge of the Small Cause Court has valued the property at Rs. 4 lakhs. The valuation made by the Small Cause Court has been confirmed by the High Court. We see no reason to interfere with the valuation as made by the Small Cause Court and confirmed by the High Court. Accordingly, in so far as these two points are concerned, the decision rendered by the High Court must be confirmed.
The appeals are therefore partly allowed to the aforesaid extent. The order passed by the High Court in so far as it is held that the property is exempt from levy of general tax under S. 202(l)(b) is set aside. The appellant would be entitled to levy general tax from 1967-68 onwards in accordance with law. The appeals are partly allowed to this extent. There will be no order as to costs.
DYING DECLARATION WAS FULLY CONSISTENT
"When the deponent (while making his dying declaration) was in severe bodily pain (because of stab injuries in the abdomen) and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details as to who had stabbed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the ocular account given by the eye-witnesses."
"SUB-SECTION (5) TO SECTION 437
"Sub-section (5) to Section 437 is important. It provides that any Court which has released a person on bail under sub-section (1) or subsection (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under S. 437(1) or (2). Section 437(5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under S. 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he has committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1) (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed, is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a charge-sheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appetlants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under Section 437(1) and (2)."
The result of our discussion and the case-law in this: An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309(2). The order for release on bail may however be cancelled under S. 437(5) or S. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167(2) for the default of the prosecution in not completing the investigation in sixty days. after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.

Not only this, recent controversial remarks of ministers in Akhilesh Yadav government have invited widespread condemnation. In fact, Akhilesh's uncle and public works department minister Shivpal Yadav was recently caught on camera abetting corruption and telling officer "you can steal a little, if you work hard". Earlier, another minister Durga Prasad Yadav had created a controversy by saying that 'even God cannot control crime'
The law and order situation in the state has deteriorated rapidly after the SP came to power. In fact, there are 19 ministers out of total 52 in Akhilesh's cabinet with criminal record. The seriousness could be gauged from the fact that there have been around 20 incidents in which police was assaulted by criminals or SP workers in different parts of the state in five months of SP rule. Five incidents of communal violence have also taken place.

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