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

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basic structure, judicial independence, NJAC, revival

(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)

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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 42^nd 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 42^nd 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 42^nd 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 99^th 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 99^th 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 99^th amendment and NJAC Act, the pre-amendment law would revive. As a matter of fact, pre amendment law died with the parliamentary enactment of 99^th 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.

Debating the NJAC: The Question of Revival – A Response (Guest Post)

Tags

judicial independence, NJAC, revival

(With the NJAC hearings winding down, we will be covering the issues extensively on this blog. To kick things off, Vasujith Ram responds to Sarangan Rajeshkumar’s essay on the question of the revival of the collegium, should the Supreme Court strike down the 99th Amendment)

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In a post published a couple of weeks ago, Mr. Sarangan Rajeshkumar has argued that the collegium will revive if the 99^th Constitutional Amendment (establishing the National Judicial Appointments Commission) is struck down. In this post, I will contend that the question of revival in case of constitutional amendments being struck down is one that will have to argued and adjudicated – in other words, it is not a settled position in constitutional law that the original provision will revive if the constitutional amendment is declared as unconstitutional.

Mr. Rajeshkumar opines, in the context of the Property Owners’ Association case: “However, a closer look at the order of the lower bench would reveal that the only issue that has in fact been referred to a larger bench is only the interpretation of Articles 39(b) and 39(c) and not the question of applicability of the doctrine of revival […] Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.” (Emphasis supplied)

It would to useful to lay down the history of litigation in the Property Owners’ Association case. In the said case, the primary issue before the Court was the constitutional validity of an amendment to the Maharashtra Housing and Area Development Act, 1976. The statutory amendment sought to attract the protection of Article 31-C, which, according to the State, bars any constitutional challenge on grounds of Article 14 or 19 if the statute has been enacted in furtherance of Articles 39(b) or 39(c).

Vide the 42^nd Amendment the constitutional protection hitherto given to laws giving effect to Articles 39(b) or 39(c), was expanded to laws in furtherance of any or all principles enshrined in Part IV of the Constitution. In Minerva Mills v Union of India, the said part of the 42^nd Amendment was declared unconstitutional. Minerva Mills, and later Waman Rao v Union of India as well as Sanjeev Coke Manufacturing v. Bharat Coking Coal were adjudicated on the assumption that the original Article 31-C stood revived.

Counsel for the petitioner in Property Owners’ Association case, Mr. F Nariman, contended that it was never argued in any of the above cases (including Waman Rao and Sanjeev Coke) whether the doctrine of revival would apply in case of unconstitutional constitutional amendments. Rather, he contended, the cases proceeded on the assumption that Article 31-C spontaneously revives. The three judge bench hearing the case agreed with Mr. Nariman. Opining that the question of revival in the context of unconstitutional constitutional amendments “did not arise for consideration in any of the those decisions which were rendered on a certain premise as indicated therein, which assumption is now seriously challenged…, the bench decided to place the matter before the Chief Justice for referral to a larger bench of not less than five judges.

The constituted five judge bench inexplicably did not deal with this question at all; instead it took up an entirely different question of interpretation of Article 39(b). It decided to refer the question to a larger bench. The constituted seven judge bench referred the matter of interpretation of Article 39(b) to nine judge bench (2013) 7 SCC 522.) The nine judge bench has so far not been constituted.

Thus question of revival of the original article post the declaration of unconstitutionality of the amendment still remains contested, without argument or adjudication. This has been clearly delineated by the three judge bench.

Cases such as Rashtriya Mill Mazdoor Sangh and Basantibai Mohanlal Khetan, which have been cited, are similar to Waman Rao and Sanjeev Coke: they proceed on the assumption that Article 31-C stands revived. The quoted portion from Mohanlal Khetan in the original post highlights the same: “Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala […] and Minerva Mills Ltd & Ors. v. Union of India & Ors. […], Article 31C reads as…” (Emphasis supplied). This is precisely what Mr. Nariman argued, leading to the Court holding that these cases proceeded on an assumption of revival, and that the doctrine would have to be argued and adjudicated (since it was contested for the first time in this case).

In the Bombay High Court case of Qucxova Cundo, has been cited. The Bombay High Court holds: “Even after Property Owners Association case, in the large number of cases set out in para 34 above, the Supreme Court has upheld the validity of the Legislation under consideration on the basis of unamended Article 31-C…” Only one case in the said para 34 (Rashtriya Mill Mazdoor Sangh, a two judge bench decision) was decided after Property Owners’ Association, the rest were decided before. In all these cases, the same logic (accepted by the three judge bench) applies: the cases were decided on the assumption of revival; the point was never contested before the Court.

My point is not to argue that the doctrine of revival will not apply to constitutional amendments. My limited argument is to the effect that we have no precedent to support this position. Moreover, since the doctrine of revival has been contested in this case it is appropriate that is argued and adjudicated.

(Vasujith Ram is a student at NUJS, Kolkata)