-Taken from the book, Infrastructure, PPP and Law for Executives by Anurag K. Agarwal
It was beyond imagination to think a restaurant at the Bombay International Airport could give rise to one of the most important Supreme Court judgements. During the national emergency at Bombay, now known as Mumbai, decided to have a good restaurant in its premises to serve the passengers and for this very purpose, it invited tenders from competent parties. It massively became the most talked case study related to the expansion of the role of administrative law in India as well as a sort of a highly recommended treatise on the role of the State in infrastructure development.
It so happened that hoteliers of tier 1 were permitted to submit their bids and hoteliers of tier 2, 3 and others were ineligible for participating in the bidding process. As luck would have it, there was no hotelier who could clear the stipulated requirements. However, a bidder from a certain lower tier, who had taken the chance of submitting the bid despite not being eligible in the first instance, got the contract.
Other interested parties from the lower tier, who were also interested but had not participated because of the conditions laid down earlier, felt aggrieved and filed a petition in the court that on the basis of equality—as protected under the fundamental rights in the Constitution of India—they should have also been given a chance to participate in the bidding process. And as that chance was not given to them, the contract which had already been awarded must be terminated and fresh bidding should be initiated.
This was the period just after the Emergency, and the courts in India, particularly the Supreme Court, were trying to bring back the balance of power. For the judiciary, it became an issue of high importance and a trial of Indian judiciary prowess. In 1973, the Supreme Court had made the landmark decision that the ‘basic structure’ of the Constitution of India could not be changed by the legislature. This was the historic judgement in Kesavananda Bharati case, decided by a 13-judge bench, which to a large extent strengthened the foundation of judicial review in India.
The power of judicial review, according to the Constitution of India, is one of the most important restraint on the legislature and the executive, and thus, the interpretation of the Constitution for this purpose was done by the Supreme Court in a new way—though not fully inconsistent with earlier pronouncements—which was the dawn of a new era of judicial activism. It may not exactly be judicial activism, but one can definitely call it the beginning of a period of ‘judicial assertion’. It was made clear by this and other judgements of that time that the government, whether at the centre or in the states, must work within the constitutional framework, whose limits would be determined according to the interpretation of the periphery of the constitutional boundaries, which sometimes appear to be fuzzy, but with the free, fair and fearless judiciary the boundaries got perceptible clarity.
This was the case of Ramana Dayaram Shetty v. The International Airport Authority,.
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