TaxTMI 
TaxTMI 
2003 (11) TMI 61
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....the subject for which an immediate result could be achieved by promulgating the Ordinance. It will take much time to set up infrastructure in various parts of the country by constructing buildings and making proper arrangement of man-power, it cannot be done overnight. He contends even during the last budget session and the monsoon session there was no whisper of setting up of this Tribunal. Taking advantage of Parliament not being in session for a brief period in the month of October, 2003, this Ordinance has been promulgated. The Government could have waited till the winter session of Parliament commences in the mid November, 2003. It is quite apparent that there is an oblique motive and mala fides on the part of the executive Government whose purported satisfaction as to existence of the emergent circumstances has been endorsed by the President. His further contention is that the satisfaction of the President is judicially reviewable and further justiciable. According to him the standard for judging the reasonableness in reaching satisfaction of the President should be that of a reasonable prudent man on the given facts and circumstances of this case. Whether on the given facts....
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....on. Therefore, the conditions in article 123 have been fulfilled. He submits that satisfaction of the President or bona fides in his satisfaction cannot be judicially reviewable nor is the same justiciable. If there is a statement in the object of the Ordinance of satisfaction of the President as to existence of the emergent circumstances the court cannot hold they do not exist. Unlike executive action the theory of reasonableness is wholly misplaced as the President being an executive, has been discharging his duty as a Legislature. In the scheme of the Constitution as to the separation of powers the thought process of the Legislature for making laws in Parliament and in this case that of the President promulgating the Ordinance cannot be questioned in any place other than in Parliament. That is why article 123 has made it obligatory upon the Government to place the Ordinance within the time mentioned therein on the floor of Parliament when the members of Parliament will either accept this Ordinance or will reject it. According to him the Government has discharged its onus by establishing the fact of existence of emergent circumstances in the statement of objects. The burden of ....
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....By this Ordinance the power of judicial review of the High Courts and the Supreme Court under article 226/227 and under article 32, respectively, have not been touched and in fact it cannot be as the same is part of the basic structure of the Constitution. His further contention is that it is too early for the petitioners to rush to this court for obtaining an interim order as at present no infrastructure has been established nor any appointment of personnel of this Tribunal has been made. Whether by this Ordinance establishing a forum can ensure the independent judiciary being part of the basic structure of the Constitution cannot be debated at this stage and it can perhaps be examined later on affidavit. Moreover, he contends that this Ordinance cannot last more than six weeks from the date of reassembly of Parliament. This can be decided in the floor of Parliament when it will be placed in the ensuing session. Therefore, there is no need for continuation of the interim order by this court and if this court thinks that this matter may be heard on affidavit. Having heard the respective contentions of learned counsel and considered the petition together with annexures it appears ....
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....ion. The first two conditions are not disputed at all. The only condition is as to whether the President is satisfied that circumstances exist for which immediale action is necessary. I accept the argument of Dr. Pal that this action of the President is susceptible to judicial review under article 226 of the Constitution of India and article 32 of the Constitution of India by the High Courts and the Supreme Court. It those conditions are not satisfied and there is no satisfaction of the President expressly that circumstances exist for which immediate action is necessary, the superior court will certainly interfere with this matter. In the absence of those conditions the act of the President, may be a legislative one, under article 123 of the Constitution of India, would be struck down as the same would be unconstitutional. Now it has to be seen as to whether any satisfaction of the President as required under the aforesaid article has been recorded or reached by the President of India or not. In the preamble of the said Ordinance it is mentioned that Parliament is not in session and the President is satisfied that circumstances exist which render it necessary far him to take imm....
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.... power of the President under article 356 is essentially an executive one under the Constitution. It was held further that the superior court can scrutinise the materials on the basis of which advice is given by the council of ministers and ultimately the President has taken a decision thereupon. Therefore, the S.R. Bommai case [1994] 3 SCC 1 may be applicable after affidavits are filed and at the time of final hearing. There are limitations of the superior courts to interfere in the case of legislative action. To make law is the function of the Legislature under the Constitution and under what conditions and circumstances a Legislature is to act cannot be scrutinised by the judiciary. On the given facts and circumstances whether any particular Act is required to be made or not can be scrutinised by the Members of Parliament. After having debated in Parliament if such an Act is passed the court is not supposed to encroach on the field of the Legislature to make a post mortem of the situation and circumstances on which such an Act was passed. If such an attempt is made by the court then that amounts to an unconstitutional action as simply in that case the court will be encroaching ....
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.... power except those to which the legislative power of the State Legislature is subject. Therefore, though an Ordinance can be invalidated for contravention of the constitutional limitations which exists upon the power of the State Legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind. Not the act of a Legislature." In the case of T. Venkata Reddy v. State of Andhra Pradesh, AIR 1985 SC 724, the Supreme Court while discussing the powers of the President and the Governor under articles 123 and 213, respectively, has reiterated the ratio laid down in Nagaraj case, AIR 1985 SC 551. In that case, while dealing with an Ordinance of the State of Andhra Pradesh in paragraph 14, at page 731, it has been observed amongst others that: "While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from enquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the Legisla....
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....nless it is established that there is no material to reach such satisfaction. There are other old decisions rendered by the Privy Council reported in Bhagat Singh v. Emperor [1931] 58 IA 169, at page 171; Emperor v. Benoari Lal Sarma [1945] 72 IA 57, at page 66 of Lakhi Narayan Vas v. Province of Bihar, AIR 1950 FC 59. The decision rendered by the Privy Council while dealing with the corresponding provision of the Government of India Act, 1915, and the Government of India Act, 1935, in those cases there Privy Council held that the satisfaction of the Governor General and the Governor as the case may be are not justiciable. Similarly the Federal Court also held on the same lines. Accordingly, I am of the prima facie view that whether the President was satisfied on existence of the real circumstances or on insufficient material to reach such conclusion cannot be scrutinised by this court, unless it is found that there is absolutely no such material. Now the next question remains as to whether the provisions of this Ordinance with establishment of the Tax Tribunal offend the basic structure of the Constitution of India or rather whether this ensures independence of judiciary or not ....