Guest Post: Judicial Review of Legislative Process – Analyzing Calcutta High Court’s Decision in Ambika Roy

[This is a guest post by Anmol Jain.]

On 28 September 2021, the Calcutta High Court delivered a significant order in a plea filed by Ambika Roy, a sitting MLA of the West Bengal Legislative Assembly elected on BJP’s ticket, against the appointment of Mukul Roy as the chairperson of the Public Accounts Committee (PAC). The primary ground of challenge was that once Mukul Roy defected from BJP to TMC, the Speaker could not have chosen him to chair PAC given the long tradition of choosing a legislator from the opposition parties for the position. While the Court did not finally rule on the validity of Roy’s selection as the chairperson as his disqualification petition for defection is still pending before the Speaker, it made certain observations on the ambit of judicial review of legislative actions, which form the basis for this short opinion piece.

Judicial Review of Legislative Process

Articles 122 and 212 of the Constitution define the ambit of judicial review of legislative processes in India. Article 122(1) states that ‘the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.’ A similar prohibition is set for judicial review of proceedings of state legislative assemblies under Article 212 of the Constitution. The Supreme Court has interpreted these provisions as limiting judicial review only in cases of procedural irregularity and not when substantive illegality is found. For instance, in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors, a Constitution Bench of the Court noted that

“On a plain reading. Article 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of irregularity of procedure. In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature But then, ‘procedural irregularity’ stands in stark contrast to ‘substantive illegality’ which cannot be found included in the former. … The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from merely irregularity thus cannot be held protected from judicial scrutiny by Article 122(1) inasmuch as the broad principle laid down in Bardlaugh acknowledging exclusive cognizance of the legislature in England has no application to the system of governance provided by our Constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and controls, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution.”

While the Supreme Court delineated substantive illegality from procedural irregularity, the understanding of ‘substantive illegality’ remained unclear. In later decisions, the Court tried to define the phrase by connecting it to the violation of any constitutional mandate. For instance, in his dissenting opinion in the K.S. Puttaswamy (II) judgment, Justice Chandrachud observed that a legislative process would be amenable to judicial review ‘if it suffers from illegality or from a violation of constitutional provisions’. The Constitution Bench in Roger Mathew followed the same definition and noted that Article 122 does not prohibit judicial review when a challenge is made on the ground of illegality or unconstitutionality under the constitutional scheme.

The Calcutta High Court adopted and extended the this approach in Ambika Roy v. Hon’ble Speaker, West Bengal Legislative Assembly and Ors. to conclude that judicial review under Article 212/122 would even include violation of constitutional conventions. The Court noted, particularly by referring to the comments made by the Speaker on the floor of the House, that a rich tradition and convention is being followed for at least the last 54 years to appoint a legislator form the opposition party as the chairperson of PAC. Further, as the Speaker found himself bound by such a tradition, it elevated the tradition to the status of a constitutional convention, the violation of which would be amenable to judicial review under Article 212.

While such a formulation of Article 122/212 expands the scope of judicial review of legislative processes, it still keeps ‘substantive illegality’ linked to the violation of a constitutional norm. There is no clarity on whether the courts would also include a violation of parliamentary rules as a ground for allowing judicial review, a scenario which has occurred on multiple instances in the near past, for instance, when the Deputy Chairperson of Rajya Sabha did not allow division of votes in clear violation of the ‘Rules of Procedure and Conduct of Business in the Council of States’.

In this backdrop. I argue that the Indian judiciary ought to adopt the comparative political process theory as advocated by Prof. Stephen Gardbaum and allow judicial review in all those scenarios that constitute as ‘political process failure’. In his paper titled ‘Comparative Political Process Theory’, Gardbaum refines and builds on the work of John Hart Ely on judicial review as a tool for the protection of representative democracy by broadening the types of political process malfunctions that a representative constitutional democracy might face on account of autocratic governance. As against Ely’s two-pronged understanding of political process failures – (1) where the incumbent government attempts to entrench itself to avoid political change in power; and (2) where the majority suppresses and systematically disadvantages the minority, Gardbaum includes ‘all the processes by and through which public power is allocated, exercised and held to account’ as part of his comparative political process theory. Based on this understanding, he develops a normative theory of judicial review and the specific manner in which the courts could secure the structures and processes of representative democracy which gives central importance to the deliberative model of law-making.

One of the political process failures that Gardbaum discusses is the failure of the legislature to hold executive accountable (a fundamental constitutional principle, an offshoot of the separation of powers). Applying this theory to the scenario in Ambika Roy, it could be argued that appointment of a legislator who holds allegiance to the majority party as the chairperson of the PAC could impact legislative ability to hold the executive accountable, and thus warranting judicial review. It would then make irrelevant the inquiry of whether the tradition has taken the shape of a constitutional convention. The mere fact of it being an important parliamentary rule or tradition integral to the legislature’s ability to hold executive accountable would support judicial review in case of its violation.

There are two benefits of adopting the comparative political process theory. First, adopting this approach would delink ‘substantive illegality’ from the violation of a constitutional norm and allow courts to quash any legislative action, including the passing of a law, in cases of violation of core parliamentary rules and tradition designed to achieve this manner of accountability. For instance, it would make it possible to quash any law only on the ground that the political majority did not extend legislative due process to the opposition parties and fast-paced the bill without any meaningful deliberation.

Second, adopting this approach would also equip judges with a definite tool to determine whether a particular violation calls for judicial review or not. Under the present framework, and as evident from the chain of cases pertaining to the possibility of judicial review of Speaker’s certification of a bill as a Money Bill, the determination that a particular violation is an irregularity or an instance of substantive illegality is a highly discretionary process. The comparative political process theory could guide the exercise of such discretion and may bring certainty in decision-making.

Concluding Remarks

Judicial review of legislative process aside, this case again brings to light the unregulated powers of the Speaker/Chair of the House. Despite Supreme Court decision in Keisham Meghachandra Singh mandating the Speaker to decide disqualification petitions under the Tenth Schedule to the Indian Schedule within a period of three months, Biman Banerjee did not take a decision on Mukul Roy’s defection and his consequent disqualification within the stipulated period. Such abuse of power by the Chair is pervasive. To quote a few instances from the recent past, the Speaker in Shivraj Singh Chouhan adjourned the house to avoid floor test; the Speaker of the Lok Sabha has virtually stopped referring bills to departmentally-related standing committees and wrongly certified many bills as Money Bills; and the Deputy Chairperson of Rajya Sabha denied division of votes despite legislators specific demand. Instead of being a neutral player envisaged to ensure legislative due process to all political parties, the Chair thus is being reduced to just another partisan office. While expecting any reforms from the legislature might not be reasonable in the present political scenario, the judiciary could definitely play important role in regulating the wide powers of the Chair. It is, therefore, important that courts approach such cases of abuse not as independent inquiries, but as a part of the larger scheme towards ensuring independence of the Chair.

Guest Post: The Supreme Court’s judgment granting suo motu powers to the NGT

[This is a guest post by Swapnil Tripathi.]

Earlier last month, the Hon’ble Supreme Court of India in Municipal Corporation of Greater Mumbai v. Ankita Singh & Ors., C.A. 12122 of 2018, examined the question whether the National Green Tribunal (‘NGT’) has the power to exercise suo motu  jurisdiction while exercising its functions under the National Green Tribunal Act, 2010 (‘Act’).

They two key arguments against the proposition were, (a) the Act is applicable to disputes and necessarily refers to a lis between two parties, which is necessitated by an applicant/claimant; and (b) lack of the power of judicial review by the NGT shows that it is not the same as writ Courts. The Court ultimately held that the NGT should have suo motu powers primarily because of its special role and also because the Parliament intended to vest it with such powers.

The Court reached this conclusion by adopting a purposive interpretation. In this post, I shall argue that the Court’s conclusion is incorrect. I shall critique the judgment on two grounds i.e., (a) the Court erroneously applied a purposive construction rather than the golden rule of interpretation; and (b) even a purposive construction of the Act would show that the Parliament did not intend for the NGT to have suo motu powers.

Erroneous Application of a Purposive Construction

The principle of purposive construction means that while ascertaining the meaning of a provision, the Court should adopt an interpretation which serves the purpose behind the provision. However, it is trite law that a purposive interpretation only comes into play when the literal rule or golden rule leads to absurdity or defeats the purpose of the provision. (Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619 at par. 33).

A perusal of Section 14 or 18 of the Act (both deal with the jurisdiction of the Tribunal and who may approach it), makes it crystal clear that an application is a must before the Tribunal can exercise its jurisdiction.

For instance, Section 14 (3) reads, ‘No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose…’  

Reaching a conclusion that an application is only one of the methods of exercising its jurisdiction (suo motu being the other) would be absurd. The Section discusses the jurisdiction of the Tribunal and  mentions the limitation for the application so made, which shows that an application is a must. Further, if one is to assume that the Parliament was desirous of clothing NGT with suo motu powers and Section 14(3) is not exhaustive of the modes of invoking those powers, then these suo motu powers will be without any limitation whatsoever. Such an interpretation is again absurd and allows the Tribunal untrammelled powers akin to a Constitutional Court, which could not have been the intention of the Parliament.

Similarly, Section 18 which specifically deals with who may approach the Tribunal nowhere mentions the existence of suo motu powers. The provision is worded extremely expansively and has rules of standing akin to Public Interest Litigation petitions (‘PIL’). This exclusion by the Parliament is a clear indication that NGT lacks suo motu powers.  The Court reaches an opposite conclusion and argues that omission of clear words ‘that an application is necessary to trigger the NGT into action’ shows that it can be triggered suo motu. I believe this is an incorrect interpretation because by adopting this approach one can clothe a Tribunal with massive powers, only because the Parliament did not use specific words excluding a power.

In fact, Section 18(1) also mentions that every application is to be accompanied with certain particulars, which logically means that an application is a must in the first place. 

Arguendo: Parliament did not intend for suo motu powers-

Despite the golden rule hinting against suo motu powers, I am cognisant that the Court’s approach on golden v. purposive construction has been inconsistent. For instance, in S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 SCC 370 the Court had observed,

36. The conflict between giving a literal interpretation or a purposive interpretation to a statute or a provision in a statute is perennial. It can be settled only if the draftsman gives a long-winded explanation in drafting the law but this would result in an awkward draft that might well turn out to be unintelligible. The interpreter has, therefore, to consider not only the text of the law but the context in which the law was enacted and the social context in which the law should be interpreted.’

This conflict was evident in the recent decision of Abhiram Singh v. CD Commachen, wherein the majority (writing through Lokur J.,) adopted a purposive construction whereas the minority led by Chandrachud J., adopted the golden rule. Chandrachud J., had observed (rightly in my opinion) “The legislature has carefully drafted Section 123(3) to reach out to a particular corrupt practice, which is even more evident when the ambit of Section 123(3A) is contrasted with Section 123(3). One cannot be read into the other nor can the text of Section 123(3) be widened on the basis of a purposive interpretation. To widen Section 123(3) would be to do violence to its provisions and to re-write the text.”

In the present judgment, the Court adopts an approach in favour of a purposive construction. Although it concedes that there is adequate clarity in the phraseology of Section 14 (see paragraph 15.1), it ends up looking at the intention of the Act and its provisions. In my opinion, even if we look at the intention of the Parliament we shall reach the same conclusion i.e., against suo motu powers.

First, the Court misinterprets the history and purpose behind NGT’s creation. It cites the 186th Law Commission Report (‘Law Commission Report’) and the Statement of Objects and Reason of the Act, to argue that the Parliament intended to vest suo motu powers in the NGT.  This conclusion is based primarily on the ground that NGT was supposed to be a forum that can competently deal with complex issues of environment and also reduce the burden of the Supreme Court and High Court and hence, should have similar powers.

In fact, at paragraph 17.1 the Court observes, “As can be seen, the Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution.”

And at 22.4 it observes, “Many of these cases transferred to NGT, emanated in the superior courts and it would be appropriate thus to ‘assume’ similar powers to initiate suo moto proceedings should also be available with the NGT’”.

Both these conclusions are incorrect. The Statement of Objects and Reasons of the Law Commission Report clearly states that the reason behind creating the NGT was two-fold i.e., (a) to reduce the pressure and burden on the Constitutional Courts and (b) to create a Tribunal equipped with experts, which can better deal with complex environmental law issues (these are reflected in the Statement of Objects and Reasons of the Act as well). The Report envisaged this body to have the same powers as a Civil Court and not Constitutional Courts. In fact, the Report cautions against giving the Tribunal powers of judicial review exercised by Constitutional Courts and writes in favour of powers of a Civil Court (page 165). These observations clearly indicate that the NGT was not to have the same powers as Constitutional Courts on environmental matters.

The Court erroneously reads paragraph 4 of Statement of Objects and Reasons of the Act to argue for a broad  mandate for the NGT. The paragraph discusses the narrow mandate of the National Environment Tribunal (NGT’s predecessor) in the context of its limited relief as the NET could only provide relief against damages arising out of accidents occurring while handling hazardous substances. The NGT’s mandate was definitely broader than the National Environment Tribunal but that was only in context of the reliefs it could grant and subject matter of cases it could entertain.  

In fact, the Report is silent on suo motu powers and only mentions that the jurisdiction of the NGT should be akin to the PIL jurisdiction of the Constitutional Courts. While discussing the need for regional Benches for the NGT, the Report observes ‘The alternative suggestion for having a single appellate Court at Delhi over the statutory authorities has not appealed to us inasmuch as practically no person or groups of persons residing in any local area who are aggrieved by orders of these authorities will be able to come all the way to Delhi to raise their grievances.’

The stress on the need for accessibility of litigants who approach the Tribunal, shows that the Law Commission and Parliament never envisaged/intended the removal of standing altogether. In other words, they never envisaged suo motu powers for the Tribunal.

Concluding Remarks:

The Court cites various other provisions and tries reading them expansively to clothe NGT with suo motu powers. This is made evident on paragraph 16.4 wherein the Court observes, ‘By choosing to employ a phrase of wide import, i.e. secure the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities.’

The term ‘ends of justice’ finds a mention in several procedural and substantive statutes namely Code of Criminal Procedure and Code of Civil Procedure but that does not mean that Civil Courts and Criminal Courts are vested with suo motu powers akin to Constitutional Courts. In my humble opinion, this over expansive interpretation by the Court seems to be a case of the Court clothing the NGT with suo motu powers rather than the Parliament intending to do so.