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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1 Comment

Filed under Basic structure, Judicial Independence

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

  1. Pingback: Debating the NJAC: Round-Up and (Tentative) Conclusions | Indian Constitutional Law and Philosophy

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