Category Archives: Basic structure

Constitutional Problems with the Exclusion of Jurisdiction in the Coal Block Cases

(In this guest post, Abhinav Sekhri takes on from his previous analysis of the Girish Kumar Suneja Case, and demonstrates the various constitutional issues that arise out of the manner in which the Supreme Court has excluded the jurisdiction of the High Courts in certain criminal cases. This essay has been cross-posted from The Proof of Guilt blog).

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:
  • Directed the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
  • Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
  • Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments).

On January 24, 2017, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional.
Testing Article 14
In Anwar Ali Sarkar v. State of West Bengal [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C.
The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed).
In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster.
Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place.
Just, Fair, and Reasonable?
The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.
In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.
As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case.
Violating the Basic Structure?
The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].
Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1995) 1 SCC 400] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.
Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal.”

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Filed under Access to Justice, Article 21 and the Right to Life, Article 226 Remedies, Basic structure, Equality, Jurisdiction

Guest Post: Girish Kumar Suneja and the Exclusion of the High Court’s Jurisdiction in Anti-Corruption Cases

(This is a guest post by Abhinav Sekhri).

Few headlines were made last week when a Single Judge of the Delhi High Court decided Girish Kumar Suneja v CBI (Crl. M.C. 3847/2016 decided on 27.10.2016), dismissing a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution on grounds of maintainability. The case was filed before the High Court, challenging an order framing charges in one of the many Coal-Block Allocation Scam related matters that are being tried before a Special Judge in New Delhi (this particular case also had the industrialist Naveen Jindal as a co-accused). I find this strange though, since it upholds arbitrary exclusion of access to justice initiated and approved by the Supreme Court in a widely publicised trial. This guest post is an attempt to confer some much needed attention on this decision and spur discussion on the underlying issues at play.

The Genesis – Shahid Balwa and the 2-G Trial

I’ve written earlier about a media tendency to represent the Supreme Court as the White Knight cleaning up the corrupt governance of India, and of this being reciprocated by the Court as well. The best instance of this was the allocation of spectrum scandal in all its breadth that hit the country in 2010-2011. Since corruption allegations had been levelled against the executive and legislature, there was public approval for the Supreme Court to handle everything. So it set aside the license-allocations, and, most importantly for this post, monitored a CBI investigation and then vetted the entire set-up (from the particular judge to the special prosecutor) for trial of the offences allegedly arising out of this ‘2-G Scam’. While doing this, it also directed that any challenge to orders passed by the Special Judge trying the 2-G Scam cases had to be made before the Supreme Court. All aggrieved persons were denied approaching the High Court for relief. This was labelled an exercise of the Court’s extraordinary powers to do ‘complete justice’ under Article 142 of the Constitution.

Restricting procedural of rights of accused persons had been done before by both Federal and State legislatures [the legality of which came up before the Supreme Court way back in State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75)]. But for the first time we saw the Supreme Court itself go ahead and take up the reins. And since the Supreme Court was seemingly handling everything at that point, this evoked little criticism. Naturally, though, it was challenged by the accused in the first 2-G Scam case which was decided in Shahid Balwa v Union of India & Ors. [(2014) 2 SCC 687]. The Supreme Court took up this opportunity to rubber-stamp its actions with approval without giving any inkling of legal justification. Instead, the Court turned to coffee-table conversation and gave ‘Larger Public Interest’ as the answer. Larger Public Interest demanded a speedy trial. This translated into denying the individuals their constitutional remedies to challenge judicial orders, because these challenges were mostly fraudulent abuses by these ‘better-heeled litigants’ of the ‘openings’ offered by the criminal justice system and delay the trial. In fact, the Court thought the accused persons owed it to this Larger Public Interest to forego their rights to appeal and challenge decisions to ensure the smooth progress of the trial.

The Coal Scam and Girish Kumar Suneja

The Coal-Block Allocation Scam was the latest opportunity for the Supreme Court to reprise its White Knight act and go through the repertoire of corruption-cleaning remedies. Barring access to the High Court for criminal defendants again figured as part of this and became the focal point in Girish Kumar Suneja. The Petitioner argued a challenge to the order framing charges was maintainable before the High Court and could not be barred by the Supreme Court’s orders. This seemed obvious, for of course the Supreme Court could never have intended to take away substantive rights (such as the right to challenge an order on charge under S. 482 of the CrPC), or limit the High Court’s writ jurisdiction under Articles 226 & 227. The focus of those orders was to prohibit challenges that sought a stay against trial court proceedings, and there was no problem here as no stay was sought.

The Delhi High Court dismissed the petition as non-maintainable. To its credit, it did not merely recite Shahid Balwa, and instead gave a reasoned order with three main planks of reasoning. The first was to distinguish the right of appeal and the right of revision/exercise of inherent powers by the High Court. There was no problem in denying the latter, the High Court held, because it was discretionary as opposed to a statutory right of appeal. The second plank was to conclude that no problem arose by denying writ remedies under Articles 226 & 227 as the Supreme Court remained accessible to those aggrieved. And finally, the High court observed that orders passed under Article 142 were binding on all courts and thus had to be complied with in the present case.

Comment – An Odious State of Affairs

 Girish Kumar Suneja remains a poor decision though. For starters, if the High Court felt bound by Article 142 then it renders the other planks of reasoning entirely superfluous. Those planks, in any event, are made of termite-stricken wood. In distinguishing the right of appeal with revision / inherent powers the High Court missed the point entirely. The issue here was not about the exercise of power but about whether access to court through this means could itself be barred completely for particular litigants. On this point the Petitioner cited Anur Kumar Jain [(2011) 178 DLT 501 (DB)] (which I have discussed on The Proof of Guilt earlier). In that case, a Division Bench of the High Court held that while Section 19 of the Prevention of Corruption Act, 1988 barred a revision against orders on charge, this could not prohibit invoking Section 482 Cr.P.C. and / or Articles 226 & 227 of the Constitution, as such a denial would be unconstitutional. The decision tries to side-step the issue of unconstitutionality in denying writ remedies [held contrary to the basic structure in L. Chandra Kumar (1997) 3 SCC 261] by wrongly equating the Supreme Court and High Court as fungible forums which is contrary to the text of the Constitution itself. I would go so far as to argue that reliance on Article 142 was also misplaced here. The orders passed on 25.07.2014 by the Supreme Court in the Coal Block Allocation Scam did not specifically invoke Article 142 unlike the similar orders that were passed at the time of the 2-G Scam.

The biggest problem remains the decision in Shahid Balwa. In Anwar Ali Sarkar (supra) the Court struck down a West Bengal Special Courts Act since it did not provide any principles for the Government to decide which cases could be tried by special procedures that took away some rights of accused persons. Larger Public Interest is as bad, if not worse, as that untrammelled executive discretion the Court warned against. The rhetoric about ‘better-heeled litigants’ reminds me of the criticisms levelled by Professor Hart in his exchange with Patrick (later Lord Devlin, where he questioned his conclusions on the relationship between law and morals for lacking any empirical basis. But since Article 142 of the Constitution does not prescribe how the Court must go about dispensing ‘complete justice’, we are expected to keep calm and march on knowing that our constitutional rights shall remain susceptible to be taken away based on what the Court feels is the Larger Public Interest One can argue that its applicability is limited by relying upon the Three Judge Bench decision in State of Punjab v Rafiq Masih [(2014) 8 SCC 883] which noted that orders under Article 142 do not constitute binding precedent [a paragraph that was cited in Girish Kumar Suneja]. This would prevent blind reliance on Shahid Balwa to pre-empt any debate on the validity of such orders in subsequent cases. One can only hope that the decision in Shahid Balwa has been cut down to size before the next time the White Knight makes a reprisal.

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Filed under Article 226 Remedies, Basic structure, Judicial Review, Jurisdiction

Guest Post: The Curious Case of Salient Features: Exploring the Current Relevance of the Basic Structure Doctrine in Pakistan

(In this guest post, Aratrika Choudhuri, a student at the National University of Juridical Sciences, Kolkata, discusses the recent discussion of the Pakistani Supreme Court on the basic structure doctrine)

The Supreme Court of Pakistan (“SCP”), by an overwhelming majority of 13 out of 17 judges, recently held that it has intrinsic powers to review the constitutionality of a constitutional amendment passed by the Parliament. While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations (e.g. Bangladesh) to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in Pakistan in an identical manner to India. In fact, a different doctrine was developed and upheld- the Salient Features Doctrine (“SFD”). Due to the considerable befuddlement surrounding this area, this essay analyses the SCP’s interpretation of SFD in the understanding of Pakistan’s unique politico-constitutional history, and critiques its understanding of the differences between BSD and SFD.

Put very briefly, the Basic Structure Doctrine, as enunciated in the landmark Indian case Kesavananda Bharati v. State of Kerala, implies that the Constitution of India has certain immutable basic features, which cannot be damaged or destroyed by constitutional amendments enacted by the Parliament, and that the Judiciary has power to strike down such amendments. While the Supreme Court of India has deliberately and steadfastly refused to provide an exhaustive list of “basic features”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure.

In the SCP’s decision, the petitions challenging the 18th Amendment (laying down a new procedure of judicial appointments) and 21st Amendment (setting up a series of military courts to try cases involving terrorism) to the Constitution were heard together as they involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment. The SCP, by aforementioned majority, answered both questions in the affirmative, saying that Article 239(5) (“no amendment of the Constitution shall be called in question in any court on any ground whatsoever”) and Art. 239(6) (“for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament to amend any of the provisions of the Constitution”) still left room for judicial review of constitutional amendments.

The majority verdict asserted that, from State v. Zia Ur Rahman to Nadeem Ahmed v. Federation of Pakistan, the SCP has consistently held that the BSD has been recognized only to the extent of identifying salient or fundamental features of the Constitution. On the other hand, Chief Justice Nasir-ul-Mulk’s opined that the foundations of arguments for BSD in Pakistan are shaky (p. 38)- (1) a stray remark in Mahmood Khan Achakzai v. Federation of Pakistan merely identifying three basic features- federalism, parliamentary form of Government, blended with Islamic provisions (contemporaneously interpreted by two other judges sitting on the same bench as not validating the basic structure theory); (2) a rhetorical unanswered question in Wukala Mahaz v. Federation of Pakistan (“If the Parliament by a Constitutional Amendment makes Pakistan as a secular State, though Pakistan is founded as an Islamic Ideological State, can it be argued that this Court will have no power to examine the vires of such an amendment?”); and (3) a restriction imposed by the SC on military dictator Pervez Musharraf, in Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan from altering the afore-mentioned basic features. Nowhere, however, has such a basic structure as commonly understood in India to be left deliberately vague and undefined, been recognized by the SCP.

The Chief Justice, along with Justice Rahman, argued that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan (especially when there is ample dissent in Kesavananda itself), and that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by appropriate political forums (e.g. parliamentary democracy), not by the judiciary (p. 77). Justice Nisar, concurring, made a passing remark that the earlier trend of passing draconian amendments (e.g., the 5th amendment seeking to “tame” the judiciary, as evinced in Article 280 of the Constitution of Pakistan) has generally ceased and therefore, unlike their Indian counterparts, recent constitutional amendments in Pakistan generally have a unique beneficial intent and effect (p. 535-536). This argument appears to attribute the very “heroism” to elected representatives, which he denounced in case of the Judiciary, and seems optimistic in its assumption that the Parliament would not relapse into such tyranny (1).

Justice Khawaja argued that, on an organic reading of the Constitution, the Parliament’s power to amend the Constitution is constrained by limitations which are both political and subject to judicial review, that the expression “amendment” (ordinarily implying correction and improvement) does not extend to abrogation or destruction and, therefore, SCP has the power to strike down a Constitutional amendment which transgresses these limits (p. 90). He affirmed that the Preamble, on account of its clarity in issuing nine People’s directives, is unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan need not rely on individual proclivities to circumscribe powers of State organs, like Indian judges do (p. 132-133). The dispensation of representatives’ fiduciary obligations in Pakistan would thus be reviewable by the Judiciary, through the mechanisms provided by the Constitution itself– the un-amendable Salient Features embodied by the Objectives Resolution 1949, and not through resort to the polemical realm of abstract philosophical theories, or to extra-constitutional material. Thus, the intractable conundrum of identifying a constantly shifting “supra-constitution” (whose provisions themselves are unknown and identified on a case-by-case basis), despite their immutability in legal prescription, emblematic of judicial aggrandizement and autocracy, could be avoided in Pakistan (p. 522).

 However, even the SFD as recognized by Khawaja, differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed- while the former rooted them in the Preamble, the latter said that the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features(p. 371). While they did not provide an exhaustive list, the 8 judges expressly recognized that Democracy, Parliamentary Form of Government and Independence of Judiciary “are certainly included in the Prominent Characteristics, forming the Salient Features(p. 234). Thus the 13 judges who approved the SFD themselves did not articulate a unanimous theory of what the SFD precisely entails, and whether the prominent features of the Constitution or judicial discretion would reign supreme while interpreting Salient Features, which may lead to potentially very different implications.

Moreover, the Chief Justice opined that subsequent incorporation, of the amended Objective Resolutions 1949, (which was originally just a manifestation of the founding fathers’ desires while enacting the Constitution, and hence could not be interpreted as supra-constitutional grundnorm in the face of clear language of the Constitution itself) as substantive part of Constitution under Article 2A, through the 8th amendment, makes it difficult to accept it as an integral, basic feature of the Constitution initially promulgated (p. 73). Justice Khosa posits that acceptance of any one of the basic features as a touchstone or a test of repugnancy or contrariety qua the other provisions of the Constitution would render the entire Constitution vulnerable to challenge in courts of law (p. 585). This would inevitably call for value judgment by the courts instead of allowing the people deciding as to what is good for them, which “would bring serious damage and destruction, if not doom,” to the present constitutional system in Pakistan (p. 586). Further, Justice Nisar asserted that the opening words of the resolution “…the will of the people of Pakistan to establish an order -Wherein the State shall exercise its powers and authority through the chosen representatives of the people” succinctly delineates sovereignty and authority in the body of elected representatives, not judges (p. 474). Nonetheless, as Justice Isa mentions in passing, it may also be argued that substituting the inanimate State with ‘the people’ reveals the precedence of the body-politic over their representatives, and owing to the transient nature of Parliament for prescribed period, it cannot preserve, protect and defend the Constitution at all times- a function which the Judiciary is oath-bound to fulfill (p. 862). Thus widely different strands of interpretation of Pakistan’s constitutional history and epistemology are observed in the judgment.

Thus the SCP’s verdict does not explain how a scheme reflecting the Constitution’s Salient Features which define the Constitution is realistically different from a basic structure, especially when the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features”. It is open to question how far Justice Khawaja’s own cautionary words against mindless transnational borrowing- grafting of an alien concept onto our body politic otherwise, is as likely to be rejected as an alien organ transplanted in a human body” – have been actually heeded by him and the judges who delivered the majority verdict. This attempt to chart a neutral middle path between complete non-interference and the BSD fails to distinguish itself materially from the BSD, even after the presentation of afore-mentioned arduous and long-drawn arguments.

It is pertinent to mention that critics such as Babbar Sattar have opined that the judgment allows the court to irresponsibly appropriate power for itself, diverting attention from the narrative that roots public support for military courts, in the failures of Pakistan’s criminal justice system, such as failings in ‘due process’ and ‘fair trials’ before ordinary courts, now widely regarded as a sanctuary for terrorists. It is also noteworthy to mention that the concomitant vital question- whether such institution of military courts, without any technical or operational discussion of international and national counterterrorism practices which would actually aid in ending the internal war in Pakistan- has been studiously ignored.

 

 

  • See Dietrich Conrad’s famous argument, widely attributed to be the foundation of the BSD in India- “Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper? Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period – discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.”

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Filed under Basic structure, Basic Structure in Pakistan, Comparative Constitutional Law, Pakistan

Ambedkar on Citizenship and the Right to Hold Office under the State

Previously on this blog, we have discussed in detail the pending constitutional challenge to the Haryana Panchayati Raj Act, which imposes educational, property and debt-based disqualifications upon candidature in local government elections. Part of the argument has focussed upon the link between the right to vote (or the right to representation) and the right to stand for office, two sides of the same coin that, together, form the core of republican democracy. This leads to the conclusion that notwithstanding the absence of these rights from the fundamental rights chapter, State attempts to curtail them must meet a heavy burden of justification.

As we’ve also discussed on this blog, the qualification and disqualification provisions for parliamentary eligibility were introduced and elaborately defended by Ambedkar, during the Constituent Assembly Debates. Interestingly, today I came across a piece of history, from thirty years before the drafting of the Constitution. In 1919, Ambedkar was called upon to give evidence to the Southborough Committee on Franchise, which was set up to look into designing a system of representation for the Indian dominion. Ambedkar’s complete written submissions can be accessed here. What I found of particular interest was the following passage, in the context of the disabilities suffered by the Untouchables:

“Citizenship is a bundle of rights such as (1) personal liberty, (2) personal security, (3) rights to hold private property, (4) equality before law, (5) liberty of conscience, (6) freedom of opinion and speech, (7) right of assembly, (8) right of representation in a country’s Government and (9) right to hold office under the State. The British Government by gradual growth may be said to have conceded these rights at least in theory to its Indian subjects. The right of representation and the right to hold office under the State are the two most important rights that make up citizenship.”

Notice that Ambedkar runs together rights that are presently in Part III (or, as in the case of property, used to be), and specifically two others which are not: the right to representation, and the right to office. Notice also that whereas rights (1) to (7) are civil rights (previously in the same paragraph, Ambedkar refers to the prohibition of access to public spaces such as roads a denial of civil rights), representation and office (8) and (9) are political rights. It is therefore hardly a coincidence when Ambedkar goes on to state that “the right of representation and the right to hold office under the State are the two most important rights that make up citizenship”: it signifies, also, that representation and office are not hermetically sealed claims that operate in isolation from each other, but rather, are two complementary aspects of citizenship.

Ambedkar’s remarks here can help throw some light on his defence of representation disqualifications in the Constituent Assembly, and the structure of the final Constitution, because they demonstrate that underlying the text of the Constitution was the consistent conviction about the role and place of representation and office in the constitutional scheme. As we have discussed before, much has been made in the Supreme Court’s jurisprudence over the years, about the fact that voting is not a fundamental right, but a “mere statutory right.” The history of the framing of the Constitution, and indeed, the political thinking of its chief architect, reveals that this argument is something of a red herring. It is of course true – and trivially so – that the absence of voting or standing for elected office in Part III of the Constitution precludes a specific Part III claim merely on that ground. However, if it is true that representation and occupying (elected) State office are the fundamental, structuring principles of citizenship in a republican democracy (which has been held to be part of the basic structure), then the State’s attempts to deprive a section of the populace from exercising those rights must be scrutinised carefully by the judiciary. In the Haryana Panchayati Raj case, for instance, the primary claim is that of discrimination under Article 14. In such a situation – as we have argued on this blog – it is the nature and importance of the rights to representation and elected office as structuring principles of the Constitution – that require the Court to abandon its normally deferential Article 14 approach, and apply a level of strict(er) scrutiny, placing high evidentiary burdens upon the State to justify its claims that the restrictions are essential to the integrity of the political process. It also disqualifies the State from invoking unrelated justifications (such as debt-free citizens being “model citizens” and an “example” to others) to defend its law.

(N.B. The full text of Ambedkar’s submissions make for a fascinating read, and repay close study. Of further interest in the present context are his remarks on suffrage, in paragraphs 29 and 30).

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Filed under Ambedkar, Article 14, Basic structure, Constituent Assembly Debates, Constitutional History, Equality, Local Government (Panchayati Raj), Suffrage, The Basic Structure and Democracy

The NJAC Judgment and its Discontents

In a landmark judgment today, the Supreme Court struck down the 99th Constitutional Amendment for being ultra vires the basic structure of the Constitution. The 99th Amendment was intended to replace the “collegium” system, in which the three senior-most judges of the Supreme Court had the final say on judicial appointments, with a National Judicial Appointments Commission (“NJAC”) consisting of the law minister, two “eminent persons”, and the three aforementioned judges. In striking down the NJAC, the Court also held that the collegium system of appointments had revived, and was operative. Justices Khehar, Lokur, Goel and Joseph wrote separate opinions for the majority, while Justice Chelameshwar dissented.

In an extended debate earlier on this blog, I had argued that Articles 124A and 124C, introduced by the Amendment, ought to be struck down. I, therefore, agree with the conclusion of the majority. However, I would also submit – with respect – that the four majority opinions are flawed in some serious respects, and lay down propositions of law which are not adequately defended or justified. In this essay, I will give a brief account of the majority holdings, and their discontents.

Background

Let us briefly go over the background to this case. Under the old Article 124, the President was to appoint judges in “consultation” with the Chief Justice, and other such judges that he might see fit to consult. In The Second Judges Case, a nine-judge bench of the Supreme Court held that the word “consultation” was to be read to mean “concurrence”, and as a result, established the collegium system, which upgraded the judiciary’s role from a formally consultative one, to one in which the three senior-most judges of the Supreme Court had the last word (“primacy”) in appointments. The 99th Amendment was Parliament’s attempt to overcome the holding of the Second Judges Case by replacing Article 124 with a new set of constitutional provisions, which established the NJAC. Article 124A detailed the composition of the NJAC (see above). Article 124C delegated the details of the selection process to parliamentary legislation, in pursuance of which the legislature framed the National Judicial Appointments Commission Act. Both the 99th Amendment and the Act were ultimately challenged before a Constitution Bench of the Supreme Court.

Issues

As I had argued in my summary of the NJAC debate, the Constitution Bench would be required to answer the following questions:

124A: In light of the fact that the Second Judges Case is binding upon the present bench,

(a) Did The Second Judges Case hold that judicial independence is 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?

124C: In light of the fact that under the Constitutional scheme, appointment of judges is a constituent power contained in the Constitution, is it consistent with the separation of powers to move it from the Constitution to the domain of parliamentary legislation? Can the power of the parliament be relatively aggrandised at the expense of the executive and judiciary?

None of the judgments (majority or minority) dealt with Article 124C and the separation of powers. On Article 124A, the four majority opinions, with varying degrees of emphasis and analysis, answered “yes” to each of the three questions.

Referral and Merits

Another preliminary remark, for the sake of clarity. During the course of arguments, the Union requested the bench to refer the matter to an eleven judge bench, in order to reconsider the correctness of The Second Judges Case (in my view, this would have been the correct thing to do). The Court, while declining immediate referral, indicated that it would fully deal with the question while handing down its final judgment. Consequently, the majority opinions of Justices Khehar, Lokur and Goel are divided into two parts: the rejection of the referral, and the finding of unconstitutionality (there is also a third part dealing with the question of whether Justice Khehar ought to have recused himself, but we can ignore that for now). This is somewhat unfortunate, because in the judgments, the considerations that weighed with the Court in declining referral tend to become blurred with the arguments on unconstitutionality, leading to a significant amount of confusion.

Let me explain. In rejecting referral, the majority is, in effect, stating that there are no good reasons to review The Second Judges Case. In doing so, the majority attempts to show that The Second Judges case was correctly decided insofar as, the collegium is consistent with the scheme of the Constitution. Now, whatever you think about this conclusion, it doesn’t even come close to answering the question of the 99th Amendment’s constitutionality. This is because the answer to that question depends upon whether the collegium arose only out of the Court’s textual interpretation of the word “consultation” (in which case, the parliament is entitled to amend Article 124, get rid of “consultation”, and simply remove the basis of The Second Judges Case), or whether the Court found it to be part of the basic structure (in which case, obviously, Parliament couldn’t amend it away). This was substantially in issue between the parties, and the judgments of Justices Lokur and Goel record it (while failing to substantially address the dispute).

In other words, the constitutionality of the collegium does not imply the unconstitutionality of the 99th Amendment. Unfortunately, however, the majority opinions, at various points, seem to be taking the latter as the natural consequence of the former. This, as I will attempt to show, damages the overall structure of the holding.

Justice Khehar’s Majority Opinion

Justice Khehar’s leading opinion (clocking in at 440 pages) provides, broadly, five reasons why the Second Judges Case was correctly decided. First, he argues that judicial primacy in appointments was repeatedly accepted by the Court since the case of Shamsher Singh. The First Judges Case, which held that the veto lay with the Executive, and which was overruled by The Second Judges Case, was thus a lone aberration in a continuous line of precedent (paragraph 60, referral opinion). Secondly, he argues that the collegium does not violate the constitutional scheme by effacing the participation of the Executive, since the President (acting on the aid and advice of the council of ministers) can still object to recommended names, provide his reasons, and so on: only the last word, in case of a stalemate, is with the collegium (paragraph 68, referral opinion). Thirdly, in the Constituent Assembly Debates, judicial appointments were specifically discussed in the context of judicial independence, making it clear that the constitutional scheme regards appointments as an integral part of judicial independence (paragraph 76). Fourthly, in the Constituent Assembly Debates, while the word “consultation” was being discussed, Dr. Ambedkar clearly stated that it was intended to “curtail the will of the Executive” (paragraph 78). Consequently, if the idea was to “shield” the appointments process from the executive, the Second Judges Case was correct in giving “consultation” a meaning that going beyond its dictionary equivalent (paragraph 79). At the same time, Dr Ambedkar was hesitant about giving a complete veto to one individual – the Chief Justice. The Collegium achieves the desired balance between the two positions, by placing primacy in the hands of a plurality of judges. And fifthly, consistent practice since Independence allowed the Chief Justice the final say in judicial appointments (paragraph 86).

While I have no quarrel with the proposition that judicial appointments are part of judicial independence, I find Justice Khehar’s fourth point particularly troubling. Justice Khehar moves glibly between “curtail the will of the Executive” and “shield the appointments process from the Executive”. The two, however, are not equivalent. As Justice Chelameshwar argues in dissent, the history of the Constituent Assembly Debates suggests that what the framers were worried about was preventing Executive dominance in the appointments process. This appears a more persuasive reading of the “curtailing the will of the Executive”, one that does not necessitate judicial primacy as a corollary.

Be that as it may, it is at this stage that Justice Khehar makes his major move. In paragraph 149 of his merits opinion, he says:

“... the word consultation… have to be read as assigning primacy to the opinion expressed by the Chief Justice of India (based on a decision, arrived at by a collegium of Judges), as has been concluded in the “Reference Order”. In the Second and Third Judges cases, the above provisions were interpreted by this Court, as they existed in their original format, i.e., in the manner in which the provisions were adopted by the Constituent Assembly, on 26.11.1949 (-which took effect on 26.01.1950). Thus viewed, we reiterate, that in the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, under Articles 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted). Therefore, when a question with reference to the selection and appointment (as also, transfer) of Judges to the higher judiciary is raised, alleging that the “independence of the judiciary” as a “basic feature/structure” of the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached…

In one word – the word “therefore” – Justice Khehar simply assumes away the core controversy! In the first part of the paragraph, he correctly notes that the Second and Third Judges Cases held that the word “consultation” meant primacy of the Chief Justice’s opinion. But if that was all that those cases said, then surely it is open to the Parliament to amend the Constitution, remove the word “consultation”, and take away the basis of those judgments – which is what it did. It must additionally and independently be shown that the Second Judges Case held that judicial primacy was part of the basic structure. As Vishwajith and Suhrith have argued on this blog, there is enough evidence in The Second Judges Case to militate against this conclusion (I have argued to the contrary). In either event, Justice Khehar’s assumption that everything after the “therefore” flows from everything before it, is misplaced: and this is the fulcrum of his decision.

After holding that judicial primacy in appointments is part of the basic structure, the rest follows more or less automatically. Judicial primacy in the NJAC is lost by the veto accorded to the “eminent members”; consequently, Article 124A and the Act must be held unconstitutional (paragraph 239). Justice Khehar also holds that the term “eminent persons” is unconscionably vague, and strikes that down as well (paragraph 182). Incidentally, he also states – while striking down the NJAC Act – that ordinary law can be challenged on the grounds of the basic structure (paragraph 220).

The Other Majority Opinions

The opinions of Justices Lokur, Joseph and Goel largely follow this structure, with a few variations. Justice Lokur points out additionally, for instance, that the NJAC not only diminishes the role of the CJI, but also that of the President, by converting his role from participatory to that of rubber-stamping the NJAC’s recommendations (paragraph 486), and that the presence of the Law Minister may skew the process (paragraph 516). Justices Joseph (page 899) and Goel (paragraph 18) hold – in clearer terms than Justice Khehar – that The Second Judges Case held that judicial primacy is part of the basic structure – but like him, they provide no analysis to buttress key claim. The amount of time all judges spend on showing that judicial primacy has been a long accepted constitutional convention makes me feel, once again, that mixing up the questions of referral and merits has led to a deeply confused judgment. Even if judicial primacy in appointments was a long-established constitutional convention, Parliament is entitled to change that through an Amendment. To invalidate the Amendment, you must show that judicial primacy is part of the basic structure. That claim is asserted. It is not demonstrated, either through through the text and structure of the Constitution, or through a close reading of the Second Judges Case.

Unfortunately, in what is otherwise a powerful dissent, Justice Chelameshwar also seems to miss this point: he too does not analyse the Second Judges Case for its holding. This is, of course, as important for him as it is for the majority – because if The Second Judges Case did hold that judicial primacy was part of the basic structure, Justice Chelameshwar, as part of a five-judge bench, would be bound by it.

Conclusion

What then are the key holdings of the majority? I would summarise them as follows:

(1) Judicial appointments, being an integral facet of judicial independence, are part of the basic structure.

(2) Judicial primacy in judicial appointments (with executive participation) is also part of the basic structure.

(3) The collegium allows for Executive participation while maintaining judicial primacy through the Collegium.

(4) The NJAC violates the basic structure by doing away with judicial primacy through its veto provisions.

What does this mean for the future? Parliament can, if it wants, bring in a new NJAC. But, in accordance with this judgment, judges will have to have the last word as part of that Commission – perhaps through an express veto power.

For the reasons I have provided above, I believe that the central claim of the majority, upon which all else turns, is unsubstantiated; and going forward, it constricts possibilities for a new commission by requiring judicial primacy in appointments. Perhaps this is what the constitutional scheme requires, but if so, it needed a strong defence. The majority has failed to provide that.

Many may feel that the Judiciary – and constitutional democracy in India – has dodged a bullet, and nipped the spectre of fascism in the bud. There might be some truth to that claim. But for those who feel that the collegium has been built upon foundations of naked power, and maintained through rhetoric, smoke and mirrors, this judgment will offer cold comfort. There might be some truth to that as well.

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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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