Whether Article 371-D (5) of the Constitution is Con­stitutionally Valid in India?

The order of the Administrative Tribunal, finally disposing of any case, shall become effective upon its confirmation by the State Government or on the expiry of 3 months from the date on which the order is made, whichever is earlier:

Provided that the State Government may, by special order made in writing for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it become effective, and in such a case the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be.”

The power of modifying or annulling an order of the Ad­ministrative Tribunal conferred on the State Government under the Proviso to Art. 371-D (5) is violative of the rule of law which is clearly a basic and essential feature of the Constitution.

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It is a basic principle of the rule of law that the exercise of power by the execu­tive or any other authority must not only be conditioned by the Con­stitution but must also be in accordance with law, and the power of judicial review is conferred by the Constitution with a view to ensur­ing that the law is observed there is Compliance with the requirement of law on the part of the executive and other authorities.

It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of law.

Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision giving against it, it would sound the death knell of the rule of law. The rule of law would cease to have any meaning, because, then it would be open to the State Government to defy the law and yet to get away with it.

The proviso to Clause (5) of Art. 371-D is, therefore, clearly violative of the basic structure doctrine. It is unconstitutional as being ultra vires the amending power of Parliament.

If the Proviso goes, the main part of Clause (5) must also fall along with it, since it is closely interrelated with the Proviso and cannot have any rational for its ex­istence apart from the Proviso. The main part of Clause (5) would, therefore, also have to be declared unconstitutional and void.