BBMP Elections and the Karnataka High Court’s Validation of a Constitutional Fraud (Guest Post)

(In this guest post, Dheeraj K. explores a constitutional controversy around local government elections in Bengaluru)

Recently the Karnataka High Court while dealing with petitions against the inaction of the State government to hold elections to Bengaluru’s urban local body, the Bruhat Bengaluru Mahanagara Palike (‘BBMP’) gave a rather astonishing verdict. The decision of the division bench of the Court, in effect extended the term of the BBMP beyond the permissible limit of five years. The decision came after the State government preferred an appeal against the order of a single judge who had directed the State and the election commission to complete the election process before May 30, 2015.

In the year 2010 elections to BBMP were held and the newly constituted corporation had its first meeting on April 23, 2010. As per Article 243U of the Constitution of India which deals with the duration of municipalities, the term would expire on April 22, 2015 after the completion of five years and it is not constitutionally permissible for the term to be extended beyond this date. However, the State Government which is charged with the responsibility of notifying delimitation of wards under Article 243S and reservation of seats under Article 243T had failed to do so, thereby hindering the election process. Petitions were filed before the Hon’ble Court against such governmental inaction. The single judge had ruled against the government and directed it to complete the process in time. During the pendency of the appeal, the State Government notified in the official gazette on April 4, 2015 the dissolution of the BBMP in exercise of the powers vested with it under Section 99(1) of the Karnataka Municipal Corporation Act, 1977 (‘Act’) which empowers it to dissolve the corporation.

The appellant State contented that in light of such a dissolution as per Article 243U(3)(b) the time period for holding elections upon dissolution of a municipality is six months from the date of dissolution and hence, due to the change in factual circumstances, the direction of the single judge is liable to be set aside. The respondents on the other hand contended that the wording in Article 243U(1) is quite clear as far as the maximum term of a municipality is concerned and the same cannot exceed five years.

The dissolution of the BBMP four days before the expiry of its term, meant that the Court was faced with a very pertinent question as to whether six months duration would be granted to the state within which it was to hold elections or the time limit as ordered by the single judge was to be adhered to by the government. Ruling the former would mean that a judicial precedent would be set for governments to unnecessarily dissolve the municipalities a few days prior to the end of its term in order to push off elections. On the other hand ruling with the latter would mean a violation of Article 243U(3)(b) in so far as restricting the period for holding elections which is beyond the scope of the judiciary.

Interestingly, the court did contemplate the judicial precedent it would set if it validated the dissolution as dissolving a municipality four days prior to the end of its term and thereby extending the term is in contravention of constitutional provisions and future government could take refuge under this decision. Despite this grave concern, the Court ruled in favour of the State government and provided them with a period of six months to hold elections. It however added that the government and the election commission must perform its constitutional obligations and ensure the timely re-constitution of BBMP.

This ruling meant that the dissolution under Section 99 of the Act was valid and the responsibility to oversee the functions of the Corporation in absence of elected councilors rested with the administrator appointed by the State Government. This judgment apart from paving the way for a slippery slope, where governments could rely on this precedent and impose its authority over elected municipal corporations also validated a fraud on the constitution.

In the words of Justice P.N. Bhagwati in D.C. Wadhwa v State of Bihar, a constitutional authority cannot do indirectly what is not permitted by the constitution to do directly. By dissolving the municipality four days prior to the end of its term and appointing an administrator for six months from the date of dissolution, the government has extended the term of a municipality well beyond five years. Article 243U(1) is clear in its wordings that the municipality will continue to for a period of five years and no longer. This puts a maximum limit on the term of a municipality at five years. The State government through its acts has in essence violated this constitutional mandate and the Court in permitting it has validated a fraud on the constitution.

The mandate under Article 243U(3)(b) is one which envisages timely elections to the municipalities. The six months time duration fixed by it is a maximum time limit within which elections have to be held. The administrator is appointed in the interim to look after the functioning of the municipality till the time an elected body takes over. The provisio clause to Article 243U(3) provides that elections need not be conducted if the remainder of the term upon dissolution is less than six months. It can be inferred that the six months time period is merely for the elections to be held and to prevent any mischief of delaying the process of elections and thus allowing a nominated body to function. Furthermore, Article 243U(4) states that the municipality constituted upon dissolution shall only continue for the remainder of the period the dissolved municipality would have continued had it not been dissolved. This clearly states that under no circumstance can the five year cycle envisaged by the Constitution be disturbed let alone extended. The view was upheld by the Gujarat High court in the case of Gujarat Pradesh Panchayat Parishad v State Election Commission and others where is held that any attempt by the Executive or the Legislature not to hold elections cannot be permitted.

Article 243U(3)(a) directs the state government to complete the election process before the expiration of the five year period. The process of elections must have taken place well in advance. The state government has failed to fulfill this responsibility. It was held in Indira Nehru Gandhi v Raj Narain, that democracy postulates that there should be periodical elections. The Apex Court further held that periodic elections forms a part of the basic structure doctrine. The State government has violated this constitutional mandate as well. Interestingly, the Court does not address this issue at all but advised the State and the Election Commission to conduct periodic elections. Such an approach by the Court is lamentable.

The government has perverted the Constitution in as much as it has acted inconsistently and in opposition to the spirit of the Constitution. In this case the Court was charged with a huge responsibility since the interpretation given by the High Court would have become the law. The High Court had an opportunity to address these issues in detail and come out with a reasoned and possibly a landmark judgment outlining the lacuna that exists in such a case of dissolution of a municipality few days prior to its termination. It was open for the Court to invoke the doctrine of fraud on the Constitution in order to prevent the government from employing subterfuge. However, the High Court has failed to discharge this burden and turned a blind eye to these unconstitutional actions of the State Government.

(The writer is a third-year student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata)

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Debating the NJAC: Round-Up and (Tentative) Conclusions

Over the last two weeks, on this blog, we have had an extensive debate about the various aspects of the National Judicial Appointments Case, where the validity of the 99th Amendment and the National Judicial Appointments Commission Act have been challenged. Recall, once again, that the 99th Amendment and the NJAC Act seek to remove the old system of judicial appointments, whereby the three senior-most judges of the Supreme Court (“the Collegium”) decided upon appointments to the Supreme Court, with (what was effectively) a nominally consultative role played by the Executive. Through a new Article 124A of the Constitution, they seek to bring into existence a National Judicial Commission, comprising of six members (the three senior-most judges of the Supreme Court, two “eminent persons”, and the Law Minister), the functioning of which is – per a new Article 124C – is to be regulated by law (which is the NJAC Act). Under a new Article 124B, the NJAC will recommend appointments to the higher judiciary. Articles 124A, B and C form the backbone of the 99th Amendment, and have been impugned as violating the basic structure by destroying the independence of the judiciary, the separation of powers, and the rule of law. The Union has equally strenuously defended the 99th Amendment.

In a set of powerful essays, Vishwajith, Suhrith, Ritwika, Malavika and Faiza have responded to my arguments that the 99th Amendment should be struck down. I am almost convinced, but not quite. Let me briefly highlight some of the key issues that have emerged.

On Article 124A, which replaces the collegium with the NJAC, there is consensus on two issues: first, that judicial independence is part of the basic structure, and secondly, that the nine-judge Second Judges Case binds the present five-judge bench. The Union’s argument is that the Second Judges Case merely interpreted the text of the old Article 124 in a certain way – “consultation” to mean “concurrence”, which was the basis of the collegium. By the 99th Amendment, the Parliament has replaced that text, and with it, the Supreme Court’s interpretation. The petitioners, on the other hand, argue that in The Second Judges Case, the Court clearly held that it was judicial primacy – via the collegium – that was part of the basic structure. Which side of the issue you come down on, therefore, depends upon your reading of The Second Judges Case, and the cases before and after it, with respect to three questions:

(a) Is judicial independence affected by the nature or manner of judicial appointments?

(b) If yes, then did the Second Judges Case hold that judicial primacy in appointments is part of the basic structure, because it preserves judicial independence?

(c) If yes, then did the Second Judges Case also hold that judicial primacy in appointments is a necessary requirement for the protection of judicial independence?

In my submission, the answer to all three questions is yes, leaving the present Constitution Bench with no option but to strike down Article 124A. Let me stress once again that this is not a defence of the collegium. I am in complete agreement with Suhrith, that the Court ought to have referred the matter to an eleven-judge bench, to decide without being constrained by The Second Judges Case. But it didn’t. And I would submit that it ought not now to compound an error by overturning precedent, and going against the grain of stare decisis.

With respect to Article 124C, I argued that by delegating the framing of regulations governing the functioning of the NJAC to Parliament through its ordinary law-making process, the 99th Amendment has transformed constituent power into legislative power, and this is a violation of the separation of powers. Two arguments were made in response: first, that the separation of powers exists horizontally (i.e., you cannot take power away from one State wing and transfer it to another, as was being done in the case of tribunals (judiciary to executive)), and secondly, a history of the constitutional scheme indicates that parliamentary control over judicial appointments is consistent with the separation of powers.

With respect to the first argument, I would contend that the verticality of the separation of powers is a necessary consequence of its more familiar, horizontal understanding. As I argued in my essay, the constitutional scheme distributes power among the three state organs – the legislature, the executive, and the judiciary – while at the same time, it retains certain powers within the Constitution. Just as the powers of one of the three wings of State cannot be aggrandised by redistributing inter se, by the same logic, it cannot be aggrandised by taking from the Constitution and giving it to that wing. To put it in less jargon-y terms: until now, the procedure for judicial appointment was located within the Constitution. Any change could be made only through a constitutional amendment – i.e., by Parliament exercising its constituent power through a super-majority. A good example of this is the 99th Amendment itself. But what Article 124C effectively does it to exercise a one-time constituent power of amendment, in order to delegate all future changes to the parliament through its ordinary law-making process. Thus, it takes from the constitutional scheme and gives to the Parliament, thereby aggrandising the power of the Parliament at the relative expense of the judiciary and the executive. To take a concrete example – suppose that tomorrow, Parliament amends the NJAC Act and establishes a quorum of three members, or gives the Law Minister a permanent veto? I’m not necessarily arguing that this is unconstitutional – but I am arguing that it has to be done through an amendment, not through law.

The second point – that Parliamentary control over appointments is part of the constitutional scheme – is harder to answer, because if true, it undermines my entire argument. Admittedly, there is no rigid separation of powers under the Indian Constitution. We have a flexible scheme, which is accommodative of a little tinkering around the edges. If Parliamentary control is structurally consistent with the constitutional scheme, then clearly, the manner in which the 99th Amendment redistributes power cannot be held to violate the separation of powers. It merely redistributes power within permissible contours.

I would maintain, however, that the old Article 124 was very clear on the point. Appointments were to be made through a consultative process between the executive (President) and the judiciary. The 99th Amendment transforms that entirely, making the Parliament supreme, by giving it law-making powers in a way that can completely erase the judiciary’s role (e.g., under Article 124C, framing a law that gives the law minister a veto). My analogy with Articles 53 and 54 – imagining a hypothetical where the parliament amends the provisions for electing the President, abolishes the electoral college, and delegates the issue to parliamentary law – substantiates the contention. For these reasons, I think that my argument on the separation of powers holds, although I admit it is a very close question. I still think that the Supreme Court ought to strike down 124A on the basis of the binding ratio of The Second Judges Case, and Article 124C on the basis of the separation of powers, but I do not think that a contrary, well-reasoned judgment would leave much to complain about.

There have also been conflicting views on the issue of whether, if the Supreme Court were to strike down the 99th Amendment, the 99th Amendment would revive. One argument is that by failing to specifically refer the issue to a larger bench in The Property Owners Case, the question has impliedly been settled in favour of revival. As against this, it has been argued that the question requires adjudication, since the Property Owners Case – so far – has been silent it; and that in any event, the question of revival in the case of Article 31C, which merely allowed an immunity to Parliament (and is the subject of the Property Owners Case), is very different from the question of revival in this case, where an entire constitutional apparatus has been replaced.

Will the Court go that far, however? My own feeling is that the Supreme Court will not do something as (politically) bold and risky as striking down the 99th Amendment altogether. I suspect it will strike down the NJAC Act, while reading in guidelines into Article 124A on the lines suggested by Chintan, in his essay: maybe a veto power for the CJI, further specifications for the “eminent persons”, and/or the requirement of written reasons for rejecting a nominee. I personally think that this would amount to an illegitimate rewriting of a Constitutional amendment, but as the last twenty years have shown, the Courts’ power to issue guidelines is more or less untrammeled. Of course, I am speculating in the dark – the Court might actually strike down the Amendment, just as it may well uphold everything.

The struggle between the judiciary and the executive/legislature has marked much of India’s political history after over the last forty-five years. Whatever the Supreme Court decides now, it will have important ramifications in the years to come; and whatever it decides, I doubt whether we will have heard the last of it!

 

A thematic list of all the essays debating the NJAC case on this blog is as follows:

The Second Judges Case

1. Akhil’s essay, arguing that the Second Judges Case was wrongly decided, and that the collegium is unconstitutional

Article 124A

2. My essay arguing that Article 124A violates the basic structure because of the Second Judges Case (Parts One and Two)

3. Vishwajith’s response, arguing that Article 124A is constitutional, on a contrary reading of the Second Judges Case (Parts One and Two)

4. Suhrith’s response, arguing that 124A is constitutional, because judicial primacy is not part of the basic structure

5. Ritwika’s essay on the “eminent persons” to be appointed to the NJAC

Article 124C

6. My essay arguing that Article 124C amounts to impermissible delegation of constituent power, violates the separation of powers, and should be struck down.

7. Malavika and Vishwajith’s response, arguing in favour of Article 124C on the basis of separation of powers

8. Ritwika and Faiza’s response, arguing that parliamentary control over judicial appointments does not violate the basic structure (Parts One and Two)

Remedies

9. Chintan and Rahul, arguing (separately) about the remedy the Court might craft, and the possible implications.

Revival

10.  Sarangan’s essay, arguing that the collegium will revive if the SC strikes down the 99th Amendment

11. Vasujith’s response, arguing that the question of revival must be separately adjudicated

12. Sanjay Jain’s essay on the philosophy of revival

My thanks to all those who took their time out and contributed to the debate. Hopefully we can make this a regular thing for big cases!

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Debating the NJAC: The Philosophy of Revival (Guest Post)

(In the final substantive essay of our two-week long debate on the NJAC, Professor Sanjay Jain examines the issue of revival from a jurisprudential perspective.

A round-up post will follow tomorrow)

The question as to whether the doctrine of revival can be applied to deal with unconstitutional constitutional amendments is still res-integra. This question does not only involve the relationship between legislature and judiciary, but it also has a bearing on the doctrine of separation of powers. In terms of Hartian jurisprudence, this debate can be characterized as involving the clash between rule of adjudication and rule of change.

Can the judiciary, by resorting to the rule of adjudication, unilaterally effect a change in the law, in the absence of participation from legislature via the rule of change? In my submission, the position in India is extremely inconsistent. Let me illustrate. In Minerva mills, Supreme Court declared the 42nd amendment of the Constitution, that extended immunity to laws promoting all directive principles against the challenge of violation of fundamental rights guaranteed by articles 13,14, 19 and 21 to be unconstitutional and it confined the scope of the immunity to the promotion of articles 39 (b) & (c).

What is the reality now? Look at the text of the constitution. It shows that legislature has not taken cognizance of this decision and that the language of article 31C is the same as it was after the 42nd amendment and prior to the Minerva mills judgment. In other words, the legislature has not translated the law laid down in Minerva in article 31C. Nevertheless, it is argued in some quarters that, with the decision of Minerva, amended article 31C was voided and pre-amended article 31 C got revived. But this is far from clear. The Court has not conclusively dealt with the doctrine of revival. Besides, the impact of the amendment in the Constitution made by the parliament, on the pre-amended text is also to be examined. Is it possible to argue that by resorting to rule of adjudication, court both invalidated the amendment and revived the earlier text? Would it not amount to arrogation of legislative power by the court unto itself? One possible answer to these questions may be that, the court has not revived the pre-amended text, rather it has merely adhered to the interpretation of Article 31C placed on it by 13 Judge Bench of Supreme Court in Kesavananda Bharthi case. This argument can be defended on the rationale that the width of the powers of parliament is not absolute and is subject to constitutional limitations including that of basic structure and hence any exercise of power exceeding this limitation is non-est and would not have any impact on the previous interpretation of the court. Going by this logic, since the exercise of power in amending article 31C by way of the 42nd amendment was infructuous, there is no question of any revival and the old law (i.e. pre-amendment law) would govern the field.

Let us analyze whether the same logic would govern the case of the 99th amendment of the Constitution and NJAC Act.

In order to deal with this issue, it has to be first ascertained whether the analogy between article 31C and articles 124A, B, and C of the 99th Amendment, and the NJAC Act, is appropriate. It is possible to argue that the analogy is misplaced because in a Hohfeldian sense, article 31C is merely an immunity-conferring provision. As a consequence of this provision, the parliament and the state legislatures have only acquired immunity for some of their actions against a challenge based on certain fundamental rights; whereas after the 99th amendment, Article 124A, B and C along with NJAC act has resulted in the creation of a set of complex and radically different power conferring rules. It has not only nullified the collegium system, which was read into article 124 by way of interpretation in Judges 2 and 3 cases by the Supreme Court, but it has also introduced an entirely new machinery to appoint new judges. Thus, upon a bare perusal of these provisions, it is evident that Articles 124A, B, C and NJAC Act are a set of power conferring rules and have made qualitative changes in the constitutional process of appointment of judges. Indeed these changes are both procedural and substantive. More importantly, the NJAC act by introducing a national Judicial Appointments Commission, has not only discarded the collegium system all together, but through this enactment, the parliament has also seriously eroded the judicial domination in the process of appointment of judges by doing away with the element of judicial primacy in case of difference of opinion between the members of the newly created NJAC. In such a scenario, it would be stretching the imagination to imply that upon voiding of 99th amendment and NJAC Act, the pre-amendment law would revive. As a matter of fact, pre amendment law died with the parliamentary enactment of 99th amendment and NJAC act. Although the court has the power by way of judicial review to invalidate any constitutional amendments and legislations alike, from where would it derive the power to fill the vacuum created by the void as a result of its own decision?

However, it is an altogether different ball game when it comes to Article 31C. Article 31C did not create any new machinery, nor did it provide any additional powers to the parliament or state legislatures. It merely made the exercise of legislative power for promotion of certain directive principles immune from the challenge of certain fundamental rights. As a result, if Article 31C is struck down, it would only result in doing away with the immunity provided to the parliament and state legislatures against the challenge of certain fundamental rights in respect of exercise of legislative power by them to promote certain directive principles. Thus, it would neither discount the powers of the legislature nor, would it do away with any machinery. This is in sharp contrast with the voiding of Articles 124A, B, C and NJAC act which would not only result in doing away with the existing machinery but, would also take away the legislative powers of the parliament. On the other hand, even in the absence of Article 31C, a mere immunity, parliament and state legislatures would still be able to promote directive principles by making laws in the light of explicit mandate of Article 37 of the Constitution of India; whereas, it would become impossible for the state to make appointment of judges in absence of any machinery as the existing machinery would have been voided by the court and machinery prior to the present amendment, has already been done away with by the amending body and parliament, by way of amendment and NJAC act. This would be a case of constitutional vacuum vis-à-vis appointment of judges.

However, it is equally possible to argue against the so called constitutional vacuum. It is too banal a proposition to dispute the law making authority of the Supreme Court. In numerous cases, including the Vishakha judgment, Supreme Court has evolved guidelines as ad-hoc mechanisms to fill in the legislative void and the present scenario is not any different from the earlier cases. As a custodian of ‘constituent power’ and guardian of ‘basic structure’ of the constitution, it is plausible for the Supreme Court not only to void ‘unconstitutional constitutional amendments’ but also to put in place ad-hoc norms to fill the legislative vacuum resulting from the invalidation of the amendments.

To sum up, it is possible to argue on both sides of the debate, however it would be appropriate if judiciary and legislature collaborate in the deployment of rule of adjudication and rule of change respectively. It would lead to stability if the Supreme Court takes a call on doctrine of revival and parliament clarifies its position on article 31C by making appropriate amendments. Overuse of both, implication and the device of reasoning by analogy, would adversely affect the stability of the legal system and also create room for unwarranted speculations and conjectures. However, till the judiciary and parliament act, the anxiety continues and as observers we have to merely keep on guessing.

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Debating the NJAC: Framing a Remedy (Guest Post)

(What is the Supreme Court finds that the 99th Amendment and the National Judicial Appointments Commission, in their present form, are constitutionally unsatisfactory, but also does not wish to strike them down? In the first part of this guest post, Chintan Chandrachud explores what the Court might do to bring the 99th Amendment in line with the Constitution. In the second part, Rahul Bajaj discusses the interaction between Court guidelines and Article 124C of the 99th Amendment.)

After thirty-one days of argument, a five-judge bench of the Supreme Court has reserved judgment in amongst the most significant constitutional cases before the Court in recent years. Since the Supreme Court’s decision in the Second Judges Case in 1993, appointments to the Court have been made through what has come to be known as the ‘collegium’ system – in which the three senior most judges of the Court play a decisive role in the appointments process. The collegium system suffered increasing criticism, and Parliament attempted to replace it with an appointments process led by a ‘National Judicial Appointments Commission’ (NJAC) through a constitutional amendment and a statute that gives effect to the amendment. The amendment provides that the NJAC will consist of six people – the Chief Justice of India, the two senior most judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for three-year terms by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha and are not eligible for renomination. The Supreme Court has been called upon to decide to constitutionality of the amendment and the statute.

This post will not consider the constitutionality or the merits of the collegium system and the NJAC. Although that is a most significant matter, it has been considered elsewhere (see, for example, here and here on this blog). It will explore a different, less studied, aspect of the case – the remedies available to the Supreme Court. As with the NJAC case, on most occasions on which law is challenged on the basis that it is unconstitutional, the challenge is conceived in terms of a binary – whether to strike down or not to strike down the law. The matrix of remedies available to the court is far more complex than this. In fact, although I have not come across any empirical data on this issue in India (see evidence from the UK here), the most common response to a finding of unconstitutionality is not to strike down the unconstitutional law, but to interpret it in a way that is consistent with constitutional requirements.

Therefore, it is highly problematic to take the premise that: (i) the court finds the constitutional amendment unconstitutional, to mean that (ii) the court will strike down the amendment. Instead, the Supreme Court has several intermediate options falling short of the strike down power before it. In this post, I consider three such options – although this should not be taken to mean that these options are mutually exclusive, or, for that matter, collectively exhaustive. These interpretive possibilities can be divided based on whether they address the composition of the NJAC or the functioning of the NJAC, and it is in this sequence that they will be considered.

1.Composition of the NJAC

Defining ‘eminent persons’ more narrowly

Amongst the arguments that the petitioners have made is that the constitutional amendment makes no attempt to define who the two eminent persons on the NJAC will be. This, it is argued, can give rise to two sets of problems. The first is a ‘malice’ based argument – that the executive could seek to nominate people with favorable political leanings. The second is more of a ‘recklessness’ based argument – that the executive could seek to nominate people who clearly lack the credentials to judge the performance of candidates. The Supreme Court could seek to eschew these concerns by specifying a set of criteria – or qualifications – that eminent persons would need to hold. Conversely, the Court could prescribe a set of disqualifications – for instance, that those who are charged with serious criminal offences will not be considered ‘eminent’.

Modifying the ‘eminent persons’ appointments process

 The constitutional amendment provides that the eminent persons on NJAC are to be appointed by a Committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. The argument here is that the politicians could combine to nominate a person who, in the opinion of the Chief Justice, lacks the credentials to be part of the NJAC. One way in which the Supreme Court may seek to avoid this situation is by interpreting the provisions to the effect that the Chief Justice has a veto power in the appointment of eminent persons. This would mean that the Chief Justice would always need to be in the majority, and a 2-1 decision, with a dissenting note from the Chief Justice, would not result in an appointment.

2. Functioning of the NJAC

An exclusive veto power for the judges

 Neither the constitutional amendment nor the statute giving effect to the amendment make it clear how the six-member NJAC is expected to take its decisions. The ideal scenario, presumably, is for decisions to be made by consensus. But where consensus is not possible, the alternative is likely to be a majority decision procedure. The statute specifies that no person shall be recommended for appointment to the Supreme Court if any two members disagree with the appointment. The argument against this requirement is that both sides – the judges and the non-judges – have a veto power over appointments. Arguably, the Law Minister together with one or more of the eminent persons could exercise their veto against independent-minded candidates. In order to grant the judges a degree of primacy in the process, the Supreme Court could read down this provision as applying only to the judges. This would, in other words, mean that assuming that all six members of the NJAC participate and vote, a successful appointment would require the concurrence of at least two of the three judges on the Commission.

There are many reasons for which the middle road – constitutional rights-compliant interpretation – seems intuitively appealing. It would probably enable all sides to claim victory. The government could claim that its amendment secured the Court’s stamp of approval, the petitioners could claim that they succeeded in having important safeguards infused into the appointments process, and the Court could send the message that it has effectively protected constitutional rights without thwarting the democratic will. A legislative sequel or pushback from Parliament would be much less likely in the event of an interpretive solution than if the constitutional amendment were struck down.

Nevertheless, the Court should be conscious of the risks associated with radically modifying the effect of the constitutional amendment. A fairly recent attempt at modifying the effect of a law (in which the provisions for appointment of Information Commissioners under the Right to Information Act 2005 were recast) came under severe criticism, following which the Supreme Court stepped back from its judgment in a review petition (for analysis, see here). Most importantly, some of the interpretive possibilities articulated here may produce an appointments process that closely resembles the existing collegium system. Thus, the NJAC could become the collegium in disguise – in which case, the Supreme Court would have successfully struck down the amendment without being transparent about doing so.

(Chintan Chandrachud is a PhD Candidate at the University of Cambridge)

(The second part is by Rahul Bajaj)

 

It is submitted that the Supreme Court can address all the arguments against the 99th Amendment in a cogent manner without striking down the entire framework as unconstitutional and thereby avoid throwing the baby out with the bathwater. Let us examine how it can assuage the unease of those who question the constitutionality of the new dispensation.

First, with respect to the first argument, the Court can read into Article 124A a specific set of guidelines in accordance with which the eminence of persons to be appointed to the NJAC can be judged. More specifically, by delineating a set of factors which would be indicative of the persons’ vast knowledge of the law, impeachable integrity, lack of political affiliations and sustained and enduring commitment to public service and justice, the Court can effectively put to rest the fear that the appointment process would be dictated by extraneous political considerations, ulterior motives or the whims and fancies of the 3-member committee.

Similarly, with respect to the second argument, there are at least 2 conceivable solutions that the Court can adopt to bring the exercise of veto power in line with the values of the Constitution. First, it can set out the parameters in accordance with which the veto power can be exercised, such as the need for those exercising that power to put forth cogent evidence that can bring into question the integrity and competence of the potential appointee in support of their stance. Second, in order to preserve judicial primacy, the court can give the CJI, as the chairman of the NJAC, the power to overrule the veto in exceptional cases by putting forth cogent and compelling reasons for the same.

Finally, it is submitted that if the working of the NJAC is altered in the ways mentioned above, the argument that it undermines the independence of the judiciary would not pass muster for two reasons. First, as the first two Judges’ Cases unequivocally indicate, the focus of the judiciary has always been on highlighting the centrality of the role of consultation in the appointment process. Not only would the new framework institutionalize that desire in a far more well-structured and cohesive manner than has ever been done before, but the inbuilt checks in the new regime would enhance, as opposed to undermining, the independence of the judiciary. Second, the alterations that I have suggested would help create a robust bulwark against the arbitrary use of power which is the only way in which the avowed objective of judicial independence can be achieved.

Possible Constitutional Impediments to the Implementation of the Proposed Solution

In order to implement this solution, the judiciary would have to structure its scope and contours in such a way as to bring it in line with Article 124C of the Constitution. Article 124C reads as follows: “Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.” As Article 124C expressly authorizes Parliament and Parliament alone to delegate to the NJAC the power to determine the procedures and parameters governing its functioning, the argument goes, the issuance of judicial guidelines on these issues would not only run counter to the express mandate of Article 124C, but would leave Parliament with no meaningful power to structure the working of the NJAC. I would submit that such an argument would not hold water for at least 2 reasons. First, while it is true that Article 124C authorizes Parliament to structure the working of the NJAC in exercise of which Parliament enacted the NJAC Act, the issuance of the guidelines that I propose would be nothing more than an interim measure aimed at filling the vacuum that Parliament has created by failing to put in place any objective parameters to govern either the appointment of eminent persons or the exercise of veto power. Put differently, these guidelines would be issued by the judiciary in furtherance of its bounden duty to construe any legislative action harmoniously with the Constitution and would not, in any way, deprive the Parliament of the power expressly granted to it under Article 124C. Ergo, Parliament would be free to incorporate, at any time of its choosing, the guidelines pertaining to the determination of eminent persons issued by the judiciary into Article 124A and the guidelines with respect to the exercise of veto power into the NJAC Act. It would also be free to modify those guidelines or put in place other safeguards in order to attain the fundamental objective of making the process of selection of eminent persons and the exercise of veto power less arbitrary and unfair. The power of the Supreme Court to issue guidelines in the existence of a legislative vacuum despite express constitutional provisions authorizing the Parliament alone to frame laws on the issues in question is best epitomized by its decision in the celebrated case of Vishaka v. State of Rajasthan where the Court issued a set of concrete guidelines for the protection of working women from sexual harassment at the workplace. Even though Article 51(c), Article 253 and entry 14 of the Union List in the 7th Schedule exclusively empower Parliament to frame laws to give effect to India’s commitments under international treaties, the Court decided to give effect to those commitments through the issuance of its guidelines to fill the void created by Parliament. Second, Article 141 and 144 impose a mandatory obligation on all authorities, civil or judicial, to follow the directions issued by the Supreme Court. Therefore, I would submit that the NJAC would be bound by the guidelines issued by the Supreme Court until Parliament makes express provisions to regulate the election of eminent persons or the exercise of veto power. If the 99th amendment or the NJAC Act had contained express provisions to address these two issues in a manner inconsistent with the Constitution and the judiciary had then issued guidelines to bring those provisions in line with the Constitution, the argument that such a step by the judiciary amounts to rewriting express statutory or Constitutional provisions may have passed muster, but since the two acts are completely silent about the parameters governing the exercise of veto power or the selection of eminent persons, the judiciary would be merely discharging its constitutional obligation in construing the new regime in a manner consistent with the Constitution. This would be a mere exercise of judicial pragmatism or, at most, a form of judicial activism actuated by the twin goals of preventing a constitutional crisis and ensuring that the process of judicial appointments does not suffer from the vice of arbitrariness.

In sum, it is a widely accepted proposition that the collegium system entirely failed to achieve the objectives that it was set up for because of lack of transparency, absence of valid parameters for the appointment of members of the collegium as well as absence of objective criteria for the appointment of judges. This being the case, it would be in the fitness of things for the judiciary to imbue the consultative and transparent framework that the legislature, in its collective wisdom, has sought to institutionalize for the appointment of judges with the values that would bring it in line with the Indian Constitution.

(Rahul Bajaj is an intern at the Vidhi Centre for Legal Policy)

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Debating the NJAC – Article 124C, Excessive Delegation, and the Separation of Powers: A Response – III (Guest Post)

(Rounding off our debate about Article 124C of the Constitution, in this second part of their two-part essay, Ritwika Sharma and Faiza Rahman defend its constitutionality.)

In the first part of our defence of Article 124C, we argued that the said provision is neither violative of the principle of separation of powers nor vests a process which was hitherto enumerated under the Constitution within the contours of a law enacted by Parliament. In the second part of our defence, we argue that Article 124C cannot be challenged for suffering from the vice of excessive delegation insofar it delegates the power to frame regulations on the NJAC. The petitioners had, on occasions more than one, challenged Section 12 of the NJAC Act for conferring the NJAC with the power to frame regulations on a wide range of aspects pertaining to the functioning of the NJAC. An extensive discussion on the contours of delegated legislation has already taken place on this blog. Our defence of Article 124C, as well as the NJAC Act, is premised on certain specific aspects, as following:

First, the NJAC does not have unguided power to frame regulations under the scheme of the NJAC Act. It was specifically averred by the petitioners that the NJAC Act empowers the NJAC to formulate regulations in respect of criteria of suitability, other procedure and conditions for selection and appointment of judges to the higher judiciary. It has been rightly contended that one of the underlying principles for valid delegation of legislative power is that the legislature cannot delegate its essential legislative function. An equally important principle with regard to delegation of legislative principle was laid by the Supreme Court in Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516:

The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates…” [para 26]

Similarly, the Supreme Court held in K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1:

Law is settled that the court shall not invalidate a legislation on the ground of delegation of essential legislative functions or on the ground of conferring unguided, uncontrolled and vague powers upon the delegate without taking into account the Preamble of the Act as also other provisions of the statute in the event they provide good means of finding out the meaning of the offending statute. The question whether any particular legislation suffered from excessive delegation, has to be determined by the court having regard to the subject-matter, the scheme, the provisions of the statute including its Preamble and the facts and circumstances and the background on which the statute is enacted. See Bhatnagars & Co. Ltd. v. Union of India [AIR 1957 SC 478] and Mohmedalli v. Union of India [AIR 1964 SC 980]” [para 60]

Thus, the lack of guidance to the NJAC to frame regulations is a pertinent factor while addressing the contention on excessive delegation. It is firmly argued that the NJAC’s power to frame regulations under Section 12 of the NJAC Act is not unguided or arbitrary. Under sub-clause (c) of the newly inserted Article 124B of the Constitution, the NJAC is under a duty to “ensure that the person recommended is of ability and integrity”. Under Section 5(2), the NJAC shall recommend a candidate for appointment as a Judge of the Supreme Court on the basis of “ability, merit and any other criteria”. Sections 6(1) and 6(3) of the NJAC Act prescribe similar guidance for appointment of the Chief Justice and other judges of the High Courts. Correspondingly, Sections 12(2)(a) and (c) of the NJAC Act empower the NJAC to frame regulations for the criteria of suitability with respect to appointments, and other procedure and conditions for selection and appointment of Judges of the Supreme Court and High Courts. Under Section 12(2)(a) and (c), the NJAC can frame regulations with respect to criteria of suitability with respect to appointment of a Judge of the Supreme Court, and the High Court, respectively. In light of the principle of ejusdem generis, it can be safely argued that the power of the NJAC to frame regulations with regard to criteria of suitability is not unguided or unfettered. The Supreme Court in Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080 explained the principle of ejusdem generis in the following words:

…The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified…” [para 52]

The criteria of ability and merit, which find mention in Sections 5(2), and Sections 6(1) and 6(3) belong to a genus and are indicative of qualities that are essential for performing the task of a judge. The NJAC is to draw guidance from these words and specify “any other criteria” of a nature akin to the criteria specified by Parliament. Upon application of the rule of ejusdem generis, the phrase “any other criteria” would take colour from “ability” and “merit”. This would act as a safeguard against the NJAC laying down arbitrary criteria for appointment of judges. By virtue of the application of the principle of ejusdem generis, it is argued that Section 5(2), Sections 6(1) and 6(3) and Sections 12(2)(a) and (c) of the NJAC Act do not suffer from the vice of excessive delegation. Section 12 of the NJAC Act is not an instance of the Parliament having abdicated its essential legislative function to the NJAC. Parliament has laid down its policy with sufficient clarity, on the basis of which the NJAC is expected to operate.

Secondly, the approach adopted by the NJAC Act is in line with international best practice with regard to appointment of judges. Even the Constitutional Reform Act, 2005 (CRA 2005) of the United Kingdom, does not lay down any detailed suitability criteria for appointment of judges to the Supreme Court. Quite like the originally enacted Article 124, Section 25 of the CRA 2005 lays down eligibility criteria for appointment of a person as a judge of the Supreme Court (which includes criteria such as having held a judicial office for a period of at least 2 years, been a qualified practitioner for a period of at least 15 years, etc.). The selection process for appointments finds enunciation under Section 27 of the CRA 2005 which, in its sub-section (5), mandates that “Selection must be made on merit.” Evidently, CRA 2005 has only enumerated eligibility criteria for appointment of judges of the Supreme Court and it leaves wide discretion to the selection commission to assess the merit of a candidate by not enumerating the indicators of merit. In fact, the Supreme Court selection commission had by itself devised an “Information Pack” which enumerated the criteria for appointment of judges. In Part I of our defence of Article 124C, we had presented a similar position with regard to the original Article 124 which only laid down eligibility criteria for appointment of judges while leaving the assessment of suitability largely to the Memoranda of Procedure.

Similar has been the experience in the Republic of South Africa which also envisages a commission for the selection of Chief Justice of its Constitutional Court and the President and Deputy President of its Supreme Court of Appeal (the appointing body is called the Judicial Service Commission). This Commission also nominates the names of individuals who are considered for appointment as other judges of the Constitutional Court. Article 178(6) of the Constitution of the Republic of South Africa states:

The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.

Evidently, the Constitution of the Republic of South Africa, like the CRA 2005 does not lay down any specific criteria pertaining to assessment of the suitability of a candidate for appointment and the Judicial Service Commission is given wide discretion in formulating its procedure vis-a-vis the appointment and selection process adopted by them. The illustrative experiences of the UK and South Africa clearly indicate that wide discretion is given to their appointment commissions as regards the criteria for suitability for appointment of judges. Hence, the authority to determine the suitability criteria which has been given to the NJAC under Sections 5, 6 and 12 of the NJAC Act lies in sync with international best practices pertaining to judicial appointment commissions.

Lastly, Article 124C only confers such regulation-making power on the NJAC as is necessary to carry out its procedure. The delegation of power to formulate rules/regulations prescribing procedural matters has been well-recognised. For instance, in Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupesh Kumar Sheth (1984) 4 SCC 27, the Supreme Court held:

So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational acts within the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act….” [para 14]

In this regard, one of the provisions that the petitioners specifically challenged the validity of was Section 10(2) of the NJAC Act which lays down that the NJAC shall observe such rules of procedure, including the quorum at its meeting, as it may specify by regulations (under Section 12(2)(i)). The contentious issue was whether the NJAC can determine its own quorum by means of regulations. Quite unsurprisingly, the NJAC Act is not the only statute which comprises such a provision. Section 10(1) of the Insurance Regulatory and Development Authority, 1999, Section 8(1) of the Telecom Regulatory Authority of India Act, 1997 and Section 7(1) of the Securities and Exchange Board of India Act, 1992 are just some of the various statutes that envisage the body being constituted by these Acts as also the entity which lays down the quorum. Yet again, the NJAC Act does not create a legislative innovation in this regard.

It also deserves mention that laying down of voting requirements lies within the province of specifying procedure and the even the Parliament is well within its authority to lay down specifications with regard to the same by means of Parliamentary law. In any event, it is well-recognised that the requirement with regard to voting majorities is procedural, as evident from Kihoto Hollohon v. Zachilhu, 1992 Supp (2) SCC 651:

The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed. The limitation requiring a special majority is a procedural one…..” [para 65]

Thus, a provision such as Section 6(6), or the second proviso to Section 5(2), which lay down the voting requirements to be followed in the NJAC, are perfectly within the competence of the Parliament and cannot be challenged as an instance of excessive delegation.

Conclusion

The policy with regard to the NJAC Act is abundantly clear. The Statement of Objects and Reasons of the NJAC Act explicitly contemplates “a broad based National Judicial Appointments Commission should be established for making recommendations for appointments of Judges of the Supreme Court and High Courts. The said Commission would provide a meaningful role for the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.” With the policy in place, the NJAC by means of regulations would only fill in relevant details with regard to the procedure to be followed by it. By no stretch of imagination can such regulation-making be challenged for being an excessive delegation of power. Hence, a challenge to Article 124C insofar it delegates the regulation making on the NJAC is misplaced.

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Debating the NJAC: Article 124C, Excessive Delegation and the Separation of Powers: A Response – II (Guest Post)

(In a two-part series, Ritwika Sharma and Faiza Rahman respond to my essay on Article 124C, arguing that the provision is entirely constitutional)

Among the many contentious issues that engaged the attention of the Supreme Court in the NJAC case was Article 124C which has been alleged to be violative of the basic feature of the independence of the judiciary. It has also been attacked for entrusting the Parliament with a function that, till now, formed part of the Constitution.

On close scrutiny, it becomes evident that Article 124C empowers the Parliament in two respects: it commences with vesting Parliament with the legislative competence to regulate the procedure for appointment of Supreme Court and High Court judges. Thereafter, it provides the legal basis for the Parliament to empower the NJAC to lay down by regulations the procedure for discharge of its functions, manner of selection of persons and other matters considered necessary.

In Part I of our defence of Article 124C, it is argued that Article 124C cannot be held to be violative of the independence of the judiciary on the following grounds:

First, independence of the judiciary does not connote independence from Parliamentary law. In fact, this was a proposition that was expressly rejected by the framers of the Constitution. Due regard must be had to Article 50 in this context. Article 50, which is one of the Directive Principles of State Policy, states that “The State shall take steps to separate the judiciary from the executive in the public services of the State.

A brief glimpse into the drafting history of this Article would reveal that an amendment proposed by Prof. KT Shah which sought independence of the judiciary from Parliament as well, was expressly rejected by the Constituent Assembly. Prof. KT Shah moved the following amendment in the Constituent Assembly Debate dated 23rd May 1949 (Constituent Assembly Debates, Vol. VIII, Book 3, p. 218):

Sir, I move:

That under Chapter IV of Part V, the following new article be added:-

“102-A. Subject to this constitution the Judiciary in India shall be completely separate from and wholly independent of the Executive or the Legislature.”

Prof. K.T Shah while proposing Article 102-A stated-

“In this amendment: it is not merely the separation of judiciary from the Executive, but also its independence, and I want it to be also separate from the legislature and the executive.

However, Prof. KT Shah’s proposed amendment was decisively rejected by the Constituent Assembly. Shri KM Munshi on 23rd May 1949 (Constituent Assembly Debates, Vol. VIII, Book 3, p. 220-221) opposed the inclusion of Article 102A stating that:

“This Constitution is based on an entirely different principle, adopting the British Model. We have invested the Judiciary with as much independence as is possessed by the Privy Council in England and to large extent, by the Supreme Court of America; but any water-tight compartment of powers have been rejected. That is with regard to separation of powers.

Evidently, the framers of the Constitution did not envisage the inclusion of a standalone article which would have enforced a strict separation of powers between the three branches of government. A construction of judicial independence which seeks independence from Parliament, or Parliamentary law would anyway be an anomaly given the framework of our Constitution. In fact, the scheme of the Constitution itself reveals that certain pertinent aspects pertaining to judicial functioning are regulated by Parliamentary law. Some illustrative examples of such laws are:

1. The Judges (Inquiry) Act, 1968 which regulates the procedure of investigation during the impeachment proceedings against a judge. This legislation emanates from the enabling Article 124(5) by virtue of which Parliament is empowered by law to regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4). An observation was made in this regard in Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506 this Hon’ble Court:

Article 124(5) mandates enactment of a parliamentary law to regulate the investigation and proof of misbehaviour or incapacity of a Judge under Clause (4) and pursuant to it the Judges (Inquiry) Act, 1968 has been enacted by the Parliament….” [para 24]

2. Similarly, Parliament has enacted the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 and the High Court Judges (Salaries and Conditions of Service) Act, 1954. The powers to enact both these laws can be respectively traced to Articles 125 and 221 of the Constitution. These provisions allow the Parliament to enact laws determining the salaries, pension and other privileges of Judges of Supreme Court (Article 125), and of the High Court (Article 221).

3. Under Article 138, Parliament may by law confer on the Supreme Court such further jurisdiction and powers with respect to any of the matters in the Union List. Consequently, Parliament has widened the jurisdiction of the Supreme Court by means of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

Similar provisions pertaining to other aspects of judicial functioning exist throughout Chapter IV of Part V (the Union Judiciary) and Chapter V of Part VI (the High Courts in the States) of the Constitution. Essentially, Article 124C empowers the Parliament to enact a law regulating the procedure for appointment of judges of the Supreme Court and High Court, something which is entirely within its legislative competence. It would be anybody’s case that the method to remove judges as well fixation of their salaries and conditions of service are aspects vital to the independence of the judiciary. These laws cited above are just as vulnerable to amendment by the Parliament as provisions of the NJAC Act would be. The framers of the Constitution could not have intended to compromise with the independence of the judiciary by vesting Parliament with the power to enact such laws. In fact, such provisions are reinforcement of the wisdom of the Parliament to enact laws which are not prejudicial to judicial independence. Clearly, regulation of certain facets of judicial functioning by means of Parliamentary law is not an innovation devised by Article 124C.

Secondly, it argued that Articles 124 and 217, as they originally stood, did not lay down the entire procedure for appointment of judges. The first limb of this argument hinges upon the crucial distinction between “eligibility” and “suitability”. Articles 124 and 217 only laid down “eligibility” criteria for appointment of judges which, at the most, are the minimum threshold criteria for filtering prospective candidates. The difference between “eligibility” and “suitability” was discussed in Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273:

At this stage, we may state that, there is a basic difference between “eligibility” and “suitability”. The process of judging the fitness of a person to be appointed as a High Court Judge falls in the realm of suitability. Similarly, the process of consultation falls in the realm of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)(b). This dichotomy between suitability and eligibility finds place in Article 217(1) in juxtaposition to Article 217(2)….” [para 39]

The Supreme Court further held in Mahesh Chandra Gupta

The appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of “consultation”. Fitness of a person to be appointed a Judge of the High Court is evaluated in the consultation process (see Basu’s Commentary on the Constitution of India, 6th Edn., p. 234). Once this dichotomy is kept in mind, then, it becomes clear that evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. Article 217(2), therefore, prescribes a threshold limit or an entry point for a person to become qualified to be a High Court Judge whereas Article 217(1) provides for a procedure to be followed before a person could be appointed as a High Court Judge, which procedure is designed to test the fitness of a person to be so appointed: his character, his integrity, his competence, his knowledge and the like.” [para 41]

Articles 124(3) and 217(2) must be viewed against the backdrop of the distinction between “eligibility” and “suitability”, as enunciated upon in Mahesh Chandra Gupta. When Article 124(3) mandates that a person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and (a) has been for at least five years a Judge of a High Court or of two or more High Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more High Courts in succession; or (c) is a distinguished jurist, in the opinion of the President, it only lays down the minimum eligibility criteria that need to be fulfilled for a person to be considered for appointment. Similarly, Article 217(2) lays down minimum eligibility criteria for appointment of a person as a judge of a High Court. Clearly, the framers of the Constitution found sufficient to only enumerate the “eligibility criteria” within the four corners of the Constitution. “Suitability criteria” would have to be located somewhere else.

The second limb of this argument addresses the issue of “suitability criteria”. Such criteria which are meant to assess the fitness of prospective candidates are considered in accordance with the Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court of India as well as the Memorandum Showing the Procedure for Appointment and Transfer of Chief Justices and Judges of High Courts, documents which have been agreed to jointly by the Chief Justice of India and the Ministry of Law and Justice. Considerations such as inter se seniority of puisne judges, and conditions such as medical fitness are some of the aspects which are to be considered under these Memoranda. For instance, for appointment of the Chief Justice of India, the Memorandum of Procedure for the Supreme Court lays down that:

Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India.” [para 2]

In the Memorandum for High Courts also, seniority is considered to be a determining factor:

For purposes of elevation as Chief Justices the inter-se seniority of puisne Judges will be reckoned on the basis of their seniority in their own High Courts and they will be considered for appointment as Chief Justices in other High Courts when their turn would normally have come for being considered for such appointment in their own High Courts.” [para 3]

Hence, seniority is used as one of the criteria to determine suitability of a candidate under the Memoranda. The Memoranda, for both the Supreme Court and the High Courts lay down the procedure to be followed for appointment of the Chief Justice, Acting Chief Justice, permanent judges, additional judges, ad hoc judges and acting judges, as and when applicable. The Memorandum of Procedure for the High Courts also specifically lays down the procedure for transfer of a Judge from one High Court to another High Court. Keeping in view the framework of Articles 124 and 217, and the Memoranda of Procedure, it can be inferred that the framers of the Constitution did not find it imperative to include suitability criteria within the provisions of the Constitution. In fact, thus far, the task of laying down suitability criteria is being performed by the executive by means of these memoranda of procedure. It is difficult to imagine how the independence of the judiciary would be violated if this task is now entrusted to the Parliament under Article 124C.

In light of the above, it is submitted that Article 124C is not violative of the independence of the judiciary. In fact, it is an attempt to put flesh and blood into the skeletal structure that the 99th Amendment seeks to create. In the second part of this essay, we would proceed to argue that Article 124C is not an instance of excessive delegation, and falls within the permissible limits of delegated legislation.

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Debating the NJAC: Article 124C, Excessive Delegation and the Separation of Powers – A Response (Guest Post)

(In the previous essay, I had argued that Article 124C should be struck down, because it violates the separation of powers and the independence of the judiciary, both of which are part of the basic structure. In this essay, Vishwajith Sadananda and Malavika Prasad respond to that claim, arguing that 124C is entirely constitutional).

The charge against Art. 124C is that the Parliament has abdicated its constituent powers, by delegating those powers to the legislature, i.e. the Parliament in its legislative capacity, and that such excessive delegation violates the principle of separation of powers. To contest this proposition, we argue that first, the nature of amending power itself requires it to be sovereign, and thus superior to the legislative, executive and judicial powers, and second, that separation of powers cannot possibly apply in the context of a power that is subordinate to another.

While Ray C.J. may have been on the minority on the specific point that constituent power is sovereign, in that it is “independent of the doctrine of separation of powers” (paragraph 48, Indira Nehru Gandhi vs Raj Narain), the proposition is not alien to our understanding of constituent amending power today. After Keshavananda and Indira Gandhi, the constituent amending power is only subject to the basic structure doctrine. In other words, an exercise of constituent amending power is not plenary or “sovereign”, akin to the constituent power to constitute a sovereign. This is because, while wielding constituent power to frame the constitution, the framers are bound by no constitutional constraints; they wield a sovereignty by which they validate the constitution (call this ‘original sovereignty’). This sovereignty is external in a manner of speaking, having been arrogated by the constituent body to itself, rather than conferred by a superior or sovereign authority or instrument. Necessarily then, it cannot be subject to any fetters, there being no fettering authority or instrument. This sovereign has plenary powers to author new political systems, forms of governance and a constitutive instrument.

Once constituted however, the political essence of the Constitution so created forms the basic structure of the Constitution. The basic structure can thus only be altered by an institution vested with ‘original sovereignty’, since it would amount to authoring a new political form. Since the constituent amending power finds its origin in Constitution of India, and since a power originating from an instrument cannot possibly be larger than the instrument creating it, even at its widest exercise, amending power under Art. 368 is inherently limited in extent, compared with the constituent power to frame a constitution. These constraints are neither externally imposed nor implied into constituent power. These constraints are the basic structure, as we understand it today.

The legislative, executive and judicial powers, akin to the constituent amending power, are powers that were created by an exercise of sovereign, plenary constituent power. To that extent, the legislative, executive and judicial powers can also be exercised only subject to the Constitution. However, it would be incorrect to suggest a likeness on all fronts, between these three powers and the constituent amending power. Constituent amending power is still the superior power in that an exercise of amending power under Article 368 can widen or constrict the extent or fields of judicial, executive or legislative power vesting in the wings of the State, so long as the basic structure is not destroyed. Consider, for instance, the amendments that have introduced whole new entries into List I of the Seventh Schedule (Entry 2A, and amended Entry 63 etc.), thereby significantly expanding the fields in which the Parliament is competent to legislate. It is this recognition of the superiority of the constituent amending power that underlies the impermissibility of conflating Parliament’s power under Art. 368 with its power under Art. 245.

 

 

SepPowers

 

It is also this superiority of the constituent amending power that impelled the Court in Indira Gandhi to prevent the amending power from being used to carry out judicial acts (as Art. 329A(4) sought to), such as voiding judgments and orders of Courts. The reasoning was not rooted in impermissibly upsetting the separation of powers vertically, between the constituent amending power and judicial power, by way of “delegation”. It was based in the impermissibility of divesting the High Court of its judicial powers, and then, worse still, not conferring that jurisdiction upon any other Court. (Para 201, Khanna’s judgment in Indira Gandhi), thus taking away the right to a free and fair election, and the remedy to challenge it (para 206). The right to a free and fair election was central to the democratic form of government, that is a part of our basic structure.

The logic of Hinds vs The Queen and Madras Bar Association vs Union of India, that converting judicial power to executive power upsets the separation of powers, would apply with equal force to conversion of constituent power to legislative power only if there existed a separation of powers vertically. There cannot possibly be a separation of powers (whether rigid or flexible) vertically, between constituent amending power and the three powers subordinate to it, as such separation is antithetical to the very power to amend. The power of amendment is only subject to the basic structure doctrine. Outside of the constraints posed by the basic structure, the power of amendment is plenary. Until we evolve a norm that constitutionalises the separation of powers vertically, between the amending power and other powers, and that too, to the extent that it becomes part of the basic structure of the Constitution, the prevalent understanding of the principle, as between the three equally situated powers cannot be sought to be pressed in force here.

Independence of the Judiciary

Art. 124C is next assailed on the ground that empowering the Parliament to enact laws on the procedure of appointments disturbs the independence of the judiciary. Article 124C which reads as follows:

124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.”

Art. 124C must be viewed in the context of the provisions that empower the Parliament to enact laws generally: Articles 245 (which begins with the words “Subject to the provisions of this Constitution…”) and Article 246. The source of the power of the Parliament is thus the Constitution itself, and the amendment is not, and cannot, confer any new or additional powers. In exercise of the powers vested in it, the Parliament can enact laws in the fields enumerated in the Seventh Schedule; in this specific case, the Parliament is allowed the breadth of Entry 77 of List I. Thus, exercise of power under Art. 124C cannot possibly result in damage to the basic structure that is irremediable, being effected by way of a legislation, given that both the power to legislate as well as the fields of legislation were in the Constitution to begin with. Any argument that Article 124C could enable the Parliament to effectively undo the independence of judiciary is necessarily premised on the assumption that Articles 245-246 read with Entry 77 of List I are incapable, in and of themselves, to ensure the independence of the judiciary. Such a proposition obviously cannot be countenanced, as provisions of the Constitution cannot possibly be unconstitutional, for being destructive of the basic structure.

It is an interesting and noteworthy aside, that under the collegium system, the manner of appointments was in fact determined by two executive memorandums- the “Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court” and the “Memorandum Showing the Procedure for Appointment and Transfer of the Chief Justices of India and Judges of the High Court”, which are extra-constitutional instruments.

As for the claim that Article 124C violates the independence of the judiciary, the true nature of judicial independence under the Indian Constitution cannot be lost sight of. In India, in the context of separation of powers, we follow a system of checks and balances, with each wing ensuring that power does not get concentrated in the hands of the other wings.

At this juncture, it would be apt to revisit the constitutional debates on the question of separation of the judiciary from the legislature and its impact on judicial independence. On 23rd May 1949, KT Shah introduced an amendment which mandated the separation of the judiciary and the legislature on the grounds of preserving judicial independence. In reply to the introduction of the said amendment, KK Munshi was of the view:

“: …We have invested the Judiciary with as much independence as is possessed by the Privy Council in England and to large extent, by the Supreme Court of America; but any water-tight compartments of powers have been rejected. That is with regard to separation of powers.

As regards the question of the independence of the Judiciary, which my Friend Professor Shah emphasised, ample care has been taken in this Chapter that the judicial system in India under this Constitution should be an integrated system, and that it should be independent of the Executive in so far as it could be in a modern State. The House will see as it proceeds to deal with this Chapter that once a Judge is appointed, his remuneration and allowances etc. remain constant. Further he is not removable except under certain conditions like a two-thirds majority of the two Houses… These are considered sufficient guarantees of the independence of the Judiciary throughout those countries which have adopted England as the model. These safe guards are there.”

Subsequently, the amendment was negatived.

Under our constitutional scheme, the judiciary has never traditionally been completely free from Parliamentary supervision. For example, the salaries of judges are governed by a law passed by the Parliament under Article 125. The impeachment of judges of the Supreme Court, under Article 124(5), is also governed by a law passed by the Parliament. It goes without saying that both these aspects have always been considered to have a central role in ensuring the independence of the judiciary, world over.

As one of us has argued before on this blog, the amendment will have to be tested on the basis of the degree or extent to which the independence of the judiciary is disturbed. From our analysis above, it becomes evident that Article 124C does not eviscerate the independence of the judiciary but only subjects it to Parliamentary supervision, in tune with our constitutional tradition.

(Disclosure: Vishwajith has been involved in assisting the Union of India in this case)

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