GOKULA EDUCATION FOUNDATION Vs. SIDDAGANGA EDUCATION SOCIETY

JUDGEMENT

(1.) The petitioners in these writ petitions have challenged the constitutional validity of the two orders of the State Government marked as Exts.'C' and 'D' to the writ petitions. Ext.'C' is dated June 10, 1977, bearing No.ED210 TGL 76(I) regulating the admission and capitation fee in Engineering Colleges. Ext 'D' is dated June 13, 1977, bearing No.ED 210 TGL 76(II), the annexure to which contains rules regulating the selection of candidates for admission to Government aided and unaided Engineering Colleges (Full-time / Part-time) and Technological Institute, Bangalore, for the acadamic year 1977-78. Both the orders are parsed by the State Government in exercise of its executive power under Art. 162 of the Constitution.

(2.) These petitions were posted for preliminary hearing before a learned single Judge of this Court, who, after issuing rule nisi, referred them to a Division Bench for final disposal. Before the Division Bench, an objection was raised on behalf of the State that the impugned orders are "State law" as defined in Art.366(26A) of the Constitution, and in view of the provisions contained in Art.228A, the learned single Judge had no jurisdiction to issue rule nisi. The petitions have therefore been posted before us for a decision on the preliminary question, whether the orders impugned by the petitioners are "State law" as defined in Art.366(26A). After hearing Counsel on both sides, we pronounced our unanimous opinion on July 19, 1977, that the impugned orders are not "State law" within the meaning of Art. 366 (26A), Stating that we will give our reasons later. Accordingly, we now record our reasons.

(3.) "Central law" and "State law" have been defined by clause (4A) and (26A) of Art.366, inserted by the Constitution (42nd Amendment) Act, 1976. These amendments have been necessitated since the jurisdiction to determine the constitutionality of laws has been divided between the Supreme Court and the High Courts. This is an innovation introduced by the Constitution (42nd Amendment) Act, 1976. After the 42nd Amendment, the constitutional validity of "Central law" has become a forbidden fruit to the High Courts. Their jurisdiction to declare any 'Central law' to be constitutionally invalid has been tajjen away, They have however, jurisdiction to determine the constitutionality of "State law". The said amendment has also provided for composition of the Bench to hear such case, and a special majority has been prescribed for a decision to invalidate a "State law". In a High Court consisting of less than 5 Judges, the Full Court must hear and the decision must be unanimous to declare a law unconstitutional [Art. 228A(4) (b)] ; In a High Court having more than 5 Judges, a Bench of not less than 5 Judges must sit for determining the constitutionality of "State law" and no law shall be declared unconstitutional unless.2/3 of such Bench concur in the decision [Art.228A(4) (a)]. In the result, it will no longer be possible for a single Judge or even a Division Bench of a High Court to hear and decide a question of constitutionality of a law; and, in a Bench of five, not less than 4 must concur in order to invalidate "State law". From these provisions, it is clear that if the orders impugned in the writ petitions are "State law", necessarily the petitions ought to have been posted for preliminary hearing before a Special Bench of five Judges, as Rule 12 of the Writ Proceedings Rules, 1977, framed by the High Court provides :