Tag Archives: separation of powers

The Supreme Court’s Ordinance Judgment – II: Two Debates

In the previous essay, I discussed the two key conceptual issues at the heart of the Supreme Court’s Ordinances judgment (Krishna Kumar Singh vs State of Bihar). In this essay, I focus on two debates that arise out of the judgment: first, did the seven-judge bench overrule D.C. Wadhwa vs State of Bihar? And secondly, was Justice Chandrachud correct in holding that there was a distinction between an Ordinance “ceasing to operate”, and becoming “void”, for non compliance with the conditions laid out under Articles 123 and 213? And relatedly, was Justice Lokur correct in holding that there is no mandatory requirement of laying the Ordinance before the Legislative Assembly?

Did the Supreme Court Overrule D.C. Wadhwa?

In D.C. Wadhwa, the Constitution Bench had this to say about re-promulgation of Ordinances:

“The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law- making function of the Legislature… Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation.”

In other words, while the Court held that in general re-promulgation would be a fraud on the Constitution, there may be special circumstances, where the Legislature, during its Session, was simply unable to consider the Ordinance. In such circumstances, re-promulgation would be acceptable.

In Krishna Kumar Singh, the Majority discussed repromulgation in Section “J” of its judgment. Justice Chandrachud observed that he would consider the issue “on first principles.” After discussing the exceptional nature of the Ordinance-making power, he then observed:

“Once the legislature has reconvened after the promulgation of an ordinance, the Constitution presupposes that it is for the legislative body in exercise of its power to enact law, to determine the need for the provisions which the ordinance incorporates and the expediency of enacting them into legislation. Once the legislature has convened in session, the need for an ordinance is necessarily brought to an end since it is then for the legislative body to decide in its collective wisdom as to whether an ordinance should have been made and if so, whether a law should be enacted.”

And:

“Re-promulgation postulates that despite the intervening session of the legislature, a fresh exercise of the power to promulgate an ordinance is being resorted to despite the fact that the legislature which was in seisin of a previously promulgated ordinance has not converted its provisions into a regularly enacted law. What if there is an exceptional situation in which the House of the legislature was unable to enact a legislation along the lines of an ordinance because of the pressure of legislative work or due to reasons? Would the satisfaction of the Governor on the need for immediate action be arrived at for an act of re-promulgation, after a legislative session has intervened?… Re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law making authority in a parliamentary democracy. Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors.”

Notice that Justice Chandrachud explicitly framed the question in terms of D.C. Wadhwa (what happens if the legislature has too much business to transact and cannot consider the Ordinance?), but instead of answering it directly, only held that “Re-promulgation of ordinances is constitutionally impermissible.” While on the one hand he didn’t expressly hold that there could be no exceptional circumstances, and didn’t say that he was overruling Wadhwa, the unqualified statement: “Re-promulgation of ordinances is constitutionally impermissible” is quite a strong one.

In fact, the Majority opinion’s relationship with Wadhwa remains curiously ambiguous throughout the judgment. Immediately after this, in Section J2, the Court cited Wadhwa, and then critcised it for only expressing a “hope and trust” that repromulgations would not happen (hope and trust that was soon belied). It then returned to Wadhwa in Section M, while discussing the actual repromulgations in the present case. It specifically observed that Wadhwa had been “criticised” for its “exceptional circumstances” escape clause, especially given that it was always open to the House to the government to seek an extension of a legislative session so that an Ordinance could be considered. But then, the Majority held that be that as it may, it is not the case of the State of Bihar in the present case that there was any reason or justification to continue with a chain of ordinances nor is there any material before the court to indicate exceptional circumstances involving a constitutional necessity.” Or, in other words, it did not need to consider the criticism of Wadhwa.

While the previous Section that we considered (J2) indicated that the seven-judge bench of the Court was overruling Wadhwa by stating in an unqualified manner that repromulgations were a fraud on the Constitution, this Section (M) indicated the other way, because the Court noted the criticism of Wadhwa and then said that it was irrelevant to the present case. So did Krishna Kumar overrule Wadhwa?

The answer is blowing in the wind.

Voidness and Laying before the Assembly

Justice Chandrachud held that on disapproval by Parliament, or on failing to be laid before Parliament, the Ordinance would “cease to operate“. He held that the word “cease to operate” carried a different meaning from the word “void“; and given that Article 123 itself used the word “void” elsewhere, clearly, the two meant different things. Consequently, it could not be held that failure on disapproval or lapse, the Ordinance would become void ab initio.

Meanwhile, in his partially dissenting opinion, Justice Lokur held that despite the presence of the word “shall” (every such Ordinance…shall be laid before the legislative Assembly“), laying of the Ordinance before the Assembly was not mandatory. Justice Lokur advanced a structural reading of Article 213 (and, by extension, Article 123). He observed that Article 213 simply stated that if an Ordinance was not laid before the Assembly, it would ipso facto expire six weeks after the Session began. That was the only consequence contemplated by the Section, and in the absence of anything else, it could not be presumed that there was any other consequence to not laying the Ordinance before the Assembly. Given that in all circumstances the Ordinance would lapse at the end of the six weeks, it could not be held that laying it was “mandatory”, in any meaningful sense of the word.

In this section, I will argue against the views of both Justice Chandrachud and Justice Lokur. Although they were addressing two separate points, in my view, both contentions are adequately answered by the same response, which is grounded in the separation of powers, and the supervisory role of the Assembly under Articles 123 and 213 (a point repeatedly emphasised by Justice Chandrachud).

Let us start with the separation of powers. Separation of powers is a basic feature of the Constitution. Separation of powers, in the Indian constitutional scheme, does not mean a rigid separation of legislative, executive and judicial functions, but, as held in Indira Nehru Gandhi vs Raj Narain, the existence of “checks and balances”, and ensuring that one organ of the State does not “predominate” over the others.

Now, according to Article 123, a condition precedent to the exercise of the President’s ordinance-making power is that “circumstances exist which render it necessary for him to take immediate action.” The system of checks and balances requires a degree of scrutiny over the exercise of this power. However, since the purpose of Article 123 is to equip the President to deal with emergencies, any check or balance upon his power must be post facto and not ex ante (unlike, e.g., the assent requirement for passing bills). One possible check, that is judicial review, is highly circumscribed, and – after this judgment – limited to the Bommai standard of scrutinizing only the existence of material, and not the reasonableness of the decision itself. However, the Constitutional scheme itself provides for a more substantive check upon the Executive’s misuse of the Ordinance-making power, and that is through a requirement that the Ordinance shall be placed before both Houses of Parliament, and “cease to operate” once six weeks have passed after the Parliament re-assembles, or if both Houses pass resolutions disapproving of the Ordinance. If – as per Justice Lokur – this requirement was not mandatory, the Constitutionally-imposed check would become irrelevant.

Justice Lokur might respond that the check lies in the fact that whatever happens, the Ordinance lapses after six weeks. What stronger check could there be? To answer this, we need to go into history. A perusal of the history of the Ordinance-making power reveals that the requirement of placing the Ordinance before the legislature was not always a condition. In the 1861 Indian Councils Act, and in the 1915 Government of India Act, there was no such requirement; however, there was another kind of check, which was that the Ordinance would expire after six months (i.e., Justice Lokur’s suggested remedy). Under Section 72 of the Government of India Act, 1935, the requirement of placing the Ordinance before the legislature was introduced for the first time, and was incorporated into Article 123 of the Constitution. Note that this requirement replaced the six-month sunset clause. During the Constituent Assembly Debates, attempts to reintroduce a sunset clause were defeated, on the stated ground that because an Ordinance had to be placed before Parliament, the longest possible period that it could last was seven and a half months. The importance of this requirement (i.e., of placing the Ordinance before Parliament) was highlighted by Dr Ambedkar, when he pointed out that the Assembly had consciously not incorporated the equivalent of Sections 43 and 44 (which did away with this requirement) into the Constitution, but only Section 42. In other words, the Constitutional history shows that faced with a choice between automatic expiry and “laying” before the Assembly, the Constituent Assembly consciously chose the latter. The Assembly’s choice would be set at nought if the requirement of laying was considered to be optional.

Now, this history is coupled with the fact that since Ordinances – as held by Justice Chandrachud himself – are an exception to the normal rule of the legislature making laws, and not a “parallel system of lawmaking”, the requirement of checks and balances ought to apply with an even greater force in the case of Ordinances.

A combination of these arguments leads to the inference that the requirement of placing the Ordinance before the Parliament is meant to enable Parliament to act as a post facto check upon the President’s use of the Ordinance-making power, and to review whether there actually existed a situation of emergency that warranted the use of the power, or whether the Executive had abused its authority (which makes the case for mandatory laying even stronger). This proposition may be buttressed by the following: In R. K. Garg vs Union of India, the Supreme Court held that the Ordinance-making power was meant to “tide over” an emergent situation, and that the executive is “clearly answerable to the legislature”. R.K. Garg also held that – if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature can not only pass a resolution disapproving of the Ordinance, but can also pass a vote of no confidence in the executive. Consequently, according to R.K. Garg, the placing of the Ordinance before the Parliament is for the purpose of ensuring that the executive remains answerable to the primary law-making body, and also for the legislature to act if, in its opinion, the President abused his power.

The purpose of placing the Ordinance before Parliament was expressed by Pandit Hriday Nath Kunzru during the Constituent Assembly Debates, when he stated that “as I pointed out the other day, the objection to a procedure of the kind lid down in this article is not merely that it unnecessarily prolongs the duration of an Ordinance, but that it prevents the legislature from considering whether the terms of the Ordinance are justified by the emergency. The legislature when it meets, may either disapprove of the Ordinance or if it agrees with the executive in thinking that a special situation calling for special action exists, may feel that the Ordinance confers excessive powers on the executive and may modify it in such a way as to safeguard the liberties of the ordinary man in so far as this is consistent with the existence of an emergency. When a crisis occurs, it does not mean that the rights of the people are to be suspended altogether.”

Consequently, when the Ordinance is placed before Parliament, Parliament’s task is somewhat analogous to that of judicial review of legislation – i.e., to ensure that the conditions precedent for the Ordinance to be valid (i.e., the situation of urgency) actually existed when the Ordinance was passed. Therefore, if the Parliament fails to endorse the Ordinance – either through a Resolution signifying disapproval, or through conscious inaction allowing the Ordinance to lapse – then such action should count as Parliament’s assessment that the conditions precedent for passing an Ordinance were not satisfied, and as a result, the Ordinance is void ab initio. And therefore, contra Justice Chandrachud, the term “cease to operate” in Article 123 should be given this meaning.

To this, the following argument may be added. In particular, there is no requirement for public deliberation/debate or discussion before an Ordinance is promulgated. One of the core features of the rule of law, which has been held to be part of the basic structure, is the requirement of publicity: i.e., laws should only be framed after a public, deliberative process. Because Ordinances are meant to deal with emergency situations, this essential feature of the rule of law is dispensed with under the Constitution; however, as submitted above, this leads to a serious democratic deficit with respect to ordinances. The constitutional scheme seeks to correct this deficit post facto by the requirement that the Ordinance be laid before the Parliament when it opens, so that one essential step of lawmaking – that of public deliberation in the House – is fulfilled, even if it is after the fact. For this reason, the laying of the Ordinance before the Parliament must be considered an integral part of the Ordinance-making power, and not merely a subsequent event. If the laying before Parliament is an integral part of the Ordinance-making process, then until this happens, the Ordinance should be considered to be only conditionally or presumptively valid – that is, it enjoys the “force” and “effect” of law, but remains legally incomplete until it is deliberated by Parliament. Consequently, acts done under the Ordinance should also enjoy a conditional validity, and any permanent or enduring effect should be subject to the Ordinance itself being ratified or enacted into law.

This incidentally, addresses Justice Lokur’s concern in paragraph 15 of his judgment, where he rejects the contention that Ordinances have no “force and effect of law” until laid before the Assembly, on the ground that “the force and effect of a law cannot depend on an uncertainty and the occurrence of a future event, unless the law itself so provides. An Ordinance, on its promulgation either has the force and effect of a law or it does not – there is no half-way house dependent upon what steps the Executive might or might not take under Article 213(2) of the Constitution.” The halfway house, as I have argued, is the doctrine of conditional validity.

A combination of all these reasons, I would respectfully submit, makes the case for the laying of the Ordinance before the Assembly to be mandatory, contra Justice Lokur; and it also provides a powerful alternative to Justice Chandrachud’s view: notwithstanding the use of the word “cease to operate” and “void” in Article 123, there is good cause to hold that lapse or disapproval of an Ordinance makes it void ab initio, and that means that all acts done in the meantime automatically go.

(Disclaimer: The author assisted in legal arguments on behalf of Interveners taking the position that there ought to exist judicial review of the circumstances in which Ordinances are passed, and also that Ordinances do not create enduring effects).

 

 

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Filed under Ordinances, The Executive

The Supreme Court’s Judgment on the Sale of Liquor along National Highways

In a judgment delivered earlier this week, a three-judge bench of the Supreme Court issued directions to the states and union territories to desist from granting licenses for the sale of alcohol along national and state highways, and also directed that no liquor shop be located within five hundred metres of the highway. Although the Court began its judgment with a nod to judicial review, in my view, it failed to demonstrate the legal source of its power to pass the directions that it did. This is evidenced by its reference, in paragraph 24(vii), to the constitutional catch-all:

“These directions issue under Article 142 of the Constitution.”

As I have argued before, however, Article 142 is not a carte blanche; it specifies that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” A preliminary condition for the applicability of Article 142, therefore, is that the Supreme Court act within its jurisdiction. One aspect of this, surely, is that the Court act in accordance with the separation of powers, even if it is the loose and flexible separation of powers that exists under the Indian Constitution. Now, under the Constitution, the power to grant liquor licenses rests with the states (under List II of the Seventh Schedule), and indeed, this legal fact was admitted by the Court  in paragraph 13. Directions to the state governments not to grant licenses for alcohol shops appear to encroach directly upon the legislative function, and therefore – prima facie – fall outside the “jurisdiction” of the Court.

The Court made two arguments to justify this exercise of power. First, it referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents. It also referred to the fact that the union Ministry had issued circulars “advising” the State governments not to grant any new licenses to liquor shops along the highways. However, at no point did the Court hold or observe that these policy documents or circulars had any kind of statutory or legal force. And in any event, as the Court itself admitted, the circulars were limited to the national highways, since the Union had no jurisdiction over state highways. In its judgment, however, the Court extended its directions to both national and state highways, and provided this by way of justification:

The power of the states to grant liquor licences is undoubted. The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative.”

With respect, this is not the issue. The issue is whether the Court is acting within its jurisdiction by taking over the function of the state legislatures to regulate liquor licenses, and on that question, the judgment remains silent. While the reasoning would be unexceptionable if it was in the Statement of Objects and Reasons of a Bill being tabled in a state assembly, it fails to address the essential issue of the Court’s jurisdiction, which is the precondition to the exercise of Article 142 power. Reference to the “expert determination” of the Union government does not help, because the question is not whether the Union government’s determination was correct or incorrect, but which body is authorised to act upon that determination.

Secondly, the Court made a brief mention of Article 21, observing that “… the court [is] not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies.” While this pithy formulation is not developed further, an argument could be made that in granting liquor licenses along state highways, the state governments are failing in their positive duty to protect the fundamental right to life under Article 21 of the Constitution. Consequently, the Court’s directions – under Article 142 – are within its jurisdiction, since the Court is only performing its constitutional duty to ensure that the State abides by fundamental rights (whether in their negative or their positive aspects).

However, if this was the legal foundation of the judgment (and I can see no other), then the Court – I would suggest – was required to rest it on firmer evidentiary foundation than it did in the present case, and also, to provide a legal test for the degree of proximity required between State (in)action and the loss of life, for Article 21 (in its positive aspect) to be attracted. There are a lot of things that the State does or does not do, that ultimately affect peoples’ lives. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the State was to ban all junk food. That, however, would not justify the Court invoking Article 21 and directing the State to ban all junk food.

The Court – as pointed out above – referred to the Union’s circulars and policy documents, which had found a correlation between access to liquor along highways and road deaths, and then observed that it would defer to these findings. However, this was not a case where the Court was adjudicating upon the validity of administrative action, where a simple, deferential approach would be appropriate. Here, the Court was using the Union’s policy documents to make a finding that the states were in breach of their obligations under Article 21. This, I would submit, requires more exacting scrutiny (and a legal test of causation) than what the Court engaged in.

Lastly, although the Court correctly followed precedent in holding that there was no fundamental right under Article 19(1)(g) to trade in alcohol, in my view, it missed an important aspect: while the right to trade in alcohol might not be a fundamental right, surely the right to consume alcohol – as an aspect of personal choice – is a fundamental right (Article 21). The Court may still have returned a finding that the limited removal of access to alcohol along highways did not affect the content of the right in any meaningful way, but it at least ought to have acknowledged the existence of the right, and engaged with the fact that there was some interference with it.

Unlike some recent orders delivered by other benches, the Supreme Court’s judgment in this case made a substantive attempt to ground itself within the parametres of the Constitution. In my view, however, in order to be persuasive, its reasoning needed to be substantially stronger than what it was.

 

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Filed under Article 21 and the Right to Life, separation of powers, The Judiciary

Supreme Court to decide on the Scope of Presidential Legislation

A seven-judge bench of the Supreme Court today began hearing arguments in Krishna Kumar Singh vs State of Bihar. The case arose out of an original reference from a two-judge bench in 1998. The State of Bihar had taken over Sanskrit Schools through an ordinance passed in 1989. The ordinance was re-promulgated a few times, before lapsing in 1992. The teachers of the schools then filed a petition before the High Court contending that they had become – and continued to remain – government servants, with all attendant benefits. The High Court rejected the plea.

Before the Supreme Court, therefore, there were two questions: first, were the Ordinances valid? And secondly, what was the effect of acts that were taken under an Ordinance which eventually lapsed? Recall that Articles 123 and 213 of the Constitution authorise the President and the Governors (i.e., the political executive) to legislate via “ordinances” under certain specific circumstances. The basic idea is that in cases of urgency, and when the Parliament is not in session, the Executive can temporarily take over the job of law-making to deal with emergent situations. Ordinances have to be ratified within six weeks of Parliament reassembling, otherwise they lapse.

The two-judge bench split on both issues. On the first issue, Justice Sujata Manohar held:

“The State of Bihar has not even averred that any immediate action was required when the 1st ordinance was promulgated. It has not stated when the Legislative Assembly was convened after the first Ordinance or any of the subsequent Ordinances, how long it was in session, whether the ordinance in force was placed before it or why for a period of two years and four months proper legislation could not be passed. The constitutional scheme does not permit this kind of Ordinance Raj. In my view all the ordinances form a part of a chain of executive acts designed to nullify the scheme of Article 213. They take colour from one another and perpetuate one another, some departures in the scheme of the 4th and subsequent Ordinances notwithstanding. All are unconstitutional and invalid particularly when there is no basis shown for the exercise of power under Article 213. There is also no explanation offered for promulgating one Ordinance after another. If the entire exercise is a fraud on the power conferred by Article 213, with no intention of placing any Ordinance before the legislature, it is difficult to hold that first Ordinance is valid, even though all others may be invalid.”

In other words, Sujata Manohar J effectively subjected the ordinances to judicial review, holding that there would have to be some material demonstrating the circumstances that necessitated “immediate action” on part of the Governor to pass an ordinance, as required by Article 213.

On the second issue, Sujata Manohar J held that whether or not any acts done, or rights accrued under an ordinance would have a permanent effect even after the ordinance lapsed or, for any other reason, was not ratified by Parliament, would depend upon the nature of the acts or the rights. Consequently, she held:

“Basically, an effect of an Ordinance can be considered as permanent when that effect is irreversible or possibly when it would be highly impractical or against public interest to reverse it e.g. an election which is validated should not again become invalid. In this sense, we consider as permanent or enduring that which is irreversible. What is reversible is not permanent.”

Justice D.P. Wadhwa disagreed on both counts. Surveying the case law, he held that an ordinance has the same effects as “law”, and should be understood as having the “attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution.” Consequently, on the issue of judicial review, he held that “the Court may not go into the question whether circumstances existed for exercise of power under the provision of the Constitution and as to what was the urgency or emergency to promulgate an ordinance.” 

Nonetheless, following D.C. Wadhwa’s judgment, he struck down the re-promulgated ordinances as being fraudulent exercises of power. On the issue of permanent effect, he compared ordinances to temporary statutes, and held:

“The effect of the first Ordinance has been of enduring nature. Whatever the Ordinance ordained was accomplished. Its effect was irreversible. Ordinance was promulgated to achieve a particular object of taking over the Sanskrit Schools in the State including their assets and staff and this having been done and there being no legislation to undo the same which power the Legislature did possess, the effect of the Ordinance was of permanent nature. Ordinance is like a temporary law enacted by the Legislature and if the law lapses whatever has been achieved thereunder could not be undone, viz., if under a temporary law land was acquired and building constructed thereon it could not be said that after the temporary law lapsed the building would be pulled down and land reverted back to the original owner. The only consideration to examine the Ordinance is to see if the effect is of an enduring nature and if the Ordinance has accomplished what it intended to do.”

Because of the disagreement between the two judges, the question was referred to a higher bench, and after being progressively referred over the years, is now finally being heard and decided by seven judges of the Supreme Court. The questions are twofold:

(a) What is the scope of judicial review over the political executive’s ordinance-making power?

(b) Do the acts undertaken under an ordinance which eventually fails to be ratified by Parliament and become law survive even after the ordinance ceases to exist?

The importance of this case can scarcely be understated, as the Court’s judgment will have far-reaching effects upon the balance of power between the Parliament and the Executive. This case is also best understood in the context of a global concern with how political power is being incrementally transferred from the legislature to the executive, across jurisdictions. This concern was voiced more than forty years ago in Arthur Schlessinger’s famous The Imperial Presidency, and is presently an issue of burning controversy in the U.K. concerning Brexit. The Court’s judgment, therefore, is crucial to the future of the separation of powers under the Indian Constitution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

 

 

SepPowers

 

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

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

Independence of the Judiciary

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

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

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

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

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

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

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

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

Subsequently, the amendment was negatived.

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

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

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

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Debating the NJAC — Article 124C, excessive delegation, and the separation of powers

Over the last one week, we have debated the constitutionality of Article 124A of the 99th Amendment, which constitutes the National Judicial Appointments Commission. Let us now consider an equally important provision that the 99th Amendment seeks to insert into the Constitution – Article 124C.

Article 124C authorises the Parliament to regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.” This is in contrast to the old, un-amended Article 124, which laid out the entire procedure of judicial appointments within the Constitution itself (as interpreted by the Supreme Court in the Second Judges’ Case, 1993 (4) SCC 441). Consequently, under the old regime, the appointment process was part of the constitutional scheme (i.e., contained within the Constitution), and any change in the process of appointments could only be made through a constitutional amendment. The 99th Amendment – which introduces Articles 124A, B and C – is itself evidence of this fact. By contrast, under the new regime, a significant part of the appointments process will be shaped and structured by the Parliament through “regulations” – i.e., through the process of ordinary law-making.

It is well-accepted that Parliament acts in different capacities while amending the Constitution, and while passing ordinary legislation. The former is an exercise of constituent power, while the latter is an exercise of legislative power (Indira Nehru Gandhi vs Raj Narain, 1975 SuppSCC 1). Being a Constitutional amendment, Article 124C is therefore an exercise of Parliament’s constituent power, which delegates the (a significant part of the) procedure for appointment of judges to Parliament exercising its legislative power. Furthermore, Article 124C also authorises Parliament, while acting in exercise of its legislative power, to delegate in turn to an executive authority (the NJAC), the ultimate process of judicial selection. In this essay, I will argue that this form of delegation violates the basic structure of the Constitution by removing the core of the appointments process from the Constitutional scheme, and placing it within reach of ordinary legislation as well as executive action.

Let’s start with a hypothetical. Consider Articles 54 and 55 of the Constitution. Article 54 stipulates that the President shall be elected by an electoral college. Article 55 lays down detailed guidelines for the election, aimed at achieving parity of representation. Suppose that through a constitutional amendment, Parliament was to erase Articles 54 and 55, replace them with a new “Article 54A”, which stated: “Parliament shall regulate the procedure for the appointment of the President of India and such other matters as may be considered necessary by it”. I suspect many of us would find this amendment deeply problematic. To understand why, we need to take a detour through the principle of excessive legislative delegation, and then draw an analogy with Article 124C.

Excessive Delegation: Scope and Principles

The concept of excessive delegation arose in the context of ordinary legislation. In In Re the Delhi Laws Act, AIR 1951 SC 332, a seven-judge bench of the Supreme Court unanimously endorsed the proposition that parliament may not delegate “essential legislative functions” (although the judges differed about the outcome of the case). In his minority opinion (although not on this point), Kania CJI laid out the classic statement of law:

   “When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. These essentials are the characteristics of a legislature by itself… Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency… it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer.” (paragraph 11)

   As all the judges agreed, it was the “essentials” of the legislative function that could not be delegated. While conditional or subordinate legislation, i.e., powers conferred upon the executive that were either designed to give effect to the law, or ascertain facts as a pre-requisite for bringing the legislation into force, were allowed, conferral of “powers of legislation” was not. In Kania J.’s opinion:

     “… the Indian Legislature… could not create another body with the same powers as it has or in other words, efface itself.” (paragraph 17).

According to Justice Kania – citing American scholarship with approval – to survive this test, the standard must not be too indefinite or general. It may be laid down in broad general terms.” (paragraph 30) The distinction that is crucial to make – as enunciated by Taft C.J. in Hampton and Co. vs United States, 276 U.S. 394 (1928) – is between “the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law.” (paragraph 31)

The dictum in In Re Delhi Laws Act was subsequently refined. Broadly, there are two tests to determine whether legislation suffers from the vice of excessive delegation. The first is the “control test”, which was laid out by Justice Mathew in M.K. Paplah & Sons vs The Excise Commissioner, AIR 1975 SC 1007, where the learned Justice held that:

“[the]… laying of rules before the legislature is control over delegated legislationthe legislature may also retain its control over its delegate by exercising its power of repeal.” (paragraphs 18, 22)

Implicit in Justice Mathew’s formulation is the idea that Parliament must exercise a continuing supervision over the executive while the latter is exercising its delegated legislative powers. This was made explicit by Krishna Iyer J. in Avinder Singh vs State of Punjab, AIR 1979 SC 321, where he observed:

“… even if there be delegation, parliamentary control over delegated legislation should be a living continuity as a constitutional necessity.” (paragraph 12)

The second test is the “functional test”, developed in detail by Justice Khanna in Gwalior Rayon Silk Mfg vs Asst. Commr. Of Sales Tax, AIR 1974 SC 1660. Referring to the American constitutional scholar, Willoughby, Justice Khanna observed:

   “The qualifications to the rule prohibiting the delegation of legislative power… are those which provide that while the real law-making power may not be delegated, a discretionary authority may be granted to executive and administrative authorities : (1) to determine in specific cases when and how the powers legislatively conferred are to be exercised and (2) to establish administrative rules and regulations, binding both upon their subordinates and upon the public, fixing in detail the manner in which the requirements of the statutes are to be met, and the rights therein created to be enjoyed.” (paragraph 24)

He then observed:

“… in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid. In other words, in order to avoid the pure delegation of legislative power by the creation of an administrative agency, the legislature must set limits on such agency’s power and enjoin on it a certain course of procedure and rules of decision in the performance of its function; and, if the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, its attempt to delegate is a nullity.”

The Scope and Nature of Article 124C

What is the relevance of this? I would contend that just as the legislature is not permitted to transfer or abdicate essential legislative functions to the executive, the parliament, in exercising its constituent power, is not permitted to transfer or abdicate its constituent functions to the legislature. This is because such an act would violate two of the basic features of the Constitution – separation of powers and the rule of law – and more specifically, Section 124C also violates the basic feature of judicial independence. Each of these issues will be discussed in the context of Section 124C.

Separation of Powers

It has been repeatedly held by the Supreme Court that the separation of powers is a basic feature of the Constitution. (Kesavananda Bharati vs State of Kerala, AIR 1972 SC 1461; Indira Nehru Gandhi vs Raj Narain) The precise character of the separation of powers in India – which commentators have often classified as a “flexible” separation instead of a “rigid” one – flows from the Constitution. In other words, the structure and allocation of powers between the three wings of State are determined by the Constitutional scheme. Consequently, it is not open to Parliament to transfer powers from one of the wings of State to another, even through a Constitutional amendment (because this would upset the Constitutional scheme of separation of powers).

The contention that Parliament, while acting in exercise of its constituent power of amendment, must respect the institutional structure and arrangement of the separation of powers, was upheld by in Indira Nehru Gandhi vs Raj Narain, in which it was argued that the 39th Amendment, which sought to retrospectively validate Indira Gandhi’s election result and bar it from judicial scrutiny, violated the basic structure. Before the Supreme Court, A.K. Sen, arguing in support of the 39th Amendment, stated:

     “The constituent power is independent of the doctrine of separation of powers. Separation of powers is when the Constitution is framed laying down the distribution of the powers in the different, organs such as the legislative, executive and the judicial power. The constituent power springs as the fountain head and partakes of sovereignty and is the power which creates the organ and distributes the powers. therefore, in a sense the constituent power is all embracing and is at once judicial, executive and legislative, or in a sense super power. The constituent power can also change the system of checks and balances upon which the separation of powers is based.” (paragraph 521)

Ray C.J. agreed with this contention, holding that “the constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign” (paragraph 48). However, Ray C.J. was in the minority on this specific point, and his reasoning has never been followed. In that same case, Justice Khanna observed:

     “A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding.” (paragraph 190)

In addition to Justice Khanna, Justice Beg also held the 39th Amendment to be void for violating the basic feature of the separation of powers, since it sought to concentrate judicial power in the hands of the Parliament (paragraph 690). Two judges out of five, therefore, specifically invalidated a constitutional amendment because it sought to change the separation of powers scheme that flowed from the Constitution.

More recently, in Madras Bar Association vs Union of India (2014 (10) SCC 1), the Supreme Court quoted the following excerpt from the Privy Council decision in Hinds vs The Queen, 1976 All ER (1) 353:

   “What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members… a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.” (paragraph 22)

It is submitted that the logic of Hinds vs The Queen and Madras Bar Association vs Union of India – namely, that converting judicial power to executive power upsets the separation of powers that flows from the Constitution – applies with equal force to parliament converting constituent power to legislative power. By doing this, Parliament grants to itself (functioning as a legislature) the power to change through ordinary law-making what earlier could be changed only through constituent lawmaking. This, naturally, aggrandises the power of the Parliament at the expense of the other branches. The only difference with the more familiar cases in Hinds and Madras Bar Association is that instead of taking power from one of the other co-ordinate branches, the Parliament is taking it away directly from the Constitution. The violation of the basic structure is therefore clear.

In sum: A matter that was regulated by the Constitution (appointment of judges) under the unamended Article 124 cannot, via amendment, be delegated to merely legislative control, as this violates the principle of separation of powers.

     Judicial Independence

Article 124C is not only destructive of the separation of powers more generally, but is also specifically destructive of judicial independence, which has been held to be part of the basic structure (Second Judges Case), and has been admitted to be so by the Respondents in this case. Judicial appointments have also been held to be an essential aspect of judicial independence (Sub-Committee on Judicial Accountability vs Union of India, (1991) 4 SCC 699; Union of India vs Pratibha Bonnerjea, (1995) 6 SCC 765). It is for this reason that the erstwhile Article 124 regulated the system of judicial appointments as part of the constitutional scheme.

However, under the new Articles 124A-B-C regime, the only aspect that is part of the Constitutional scheme is the make-up of the NJAC, in Article 124A. As is evident from the NJAC Act, Article 124C allows the Parliament to make rules with respect to critical issues such as quorum, vote weightage, veto powers, tie-breaks, and even selection criteria for the “two eminent persons”, who constitute one-third of the strength of the NJAC. It is obvious that each of these issues can have a significant impact upon the outcome of the selections process, and taken together, they can change its entire character. For the reasons adduced above, this amounts to a significant delegation of constituent power, and is therefore impermissible.

Article 124C and Excessive Delegation

It might be argued that the delegation in this case is within permissible parametres. Reliance might be placed upon the cases cited above to argue that the policy has been laid out in Article 124A and B, and the goal of C is to simply provide for day-to-day implementation. A quick glance at 124A, B and C reveals, however, that both the functionality test, and the control test, have been violated.

Control

As discussed above, the nub of the control test is there should be ongoing supervision, a “living continuity” of control. This is impossible under the 124A-B-C regime, because the Parliament only acts in its constituent capacity when it is amending the Constitution. The difficulties of putting together super-majorities to amend the Constitution means that this is an infrequent occurrence. Consequently, once 124C has delegated the major questions of appointment to legislative control, without any guidance under 124A or B, it is obvious that supervisory control is impossible.

This position is exacerbated by the fact that after I.R. Coelho vs Union of India ((2007) 2 SCC 1), it is arguable that ordinary legislation is not subject to the basic structure. This leads to a perverse situation, where the only possible form of control – that of approaching the Courts – will be unavailable if Parliament, in pursuance of its authority under Article 124C, frames perverse rules or regulations dealing with the constitution and procedures of the NJAC, which completely undermine the independence of the judiciary, but which Parliament is not barred from doing under 124A-B-C as they stand.

Functionality

As pointed out above, the 124A-B-C scheme, as it stands, leaves huge swathes of discretion, in critical areas, to the Parliament (which, in turn, is further allowed to leave them to the Commission itself). With respect to the workings of the NJAC, these include issues of quorum, voting weightage, tie-breakers, and selection criteria, to name just four. There is no “guidance” provided by the wording of Article 124A, which solely deals with the composition of the NJAC, or 124B, which solely deals with appointment of judges on the basis of ability and integrity. This, therefore, amounts to an impermissibly excessive delegation of an essential constitutional function to the legislature (arguing merely legislative power).

A comparison with the 122nd Amendment Bill to the Constitution, which establishes the GST regime, will make the contrast stark. Section 12 of the Amendment Act establishes the Goods and Services Tax Council, and provides the following details:

  1. every member
  2. the overall value that the Council must act in accordance with: “the need for a harmonised structure of goods and services tax and for the development of a harmonised national market for goods and services.”
  3. the quorum (half)
  4. the decision process (in a meeting)
  5. the modalities of decision-making (majority of not less than three-fourths of the weighted votes)
  6. the principles on which to weigh votes

It is evidence that none of these six crucial issues are present in the 99th Amendment. In fact, as the NJAC Act shows, all these have been left to the Parliament, through the process of ordinary law-making. This, therefore, is not a case of the parent law laying out the vision and encoding it as a legal rule, with only the “gaps” needing to be filled in by the delegate. On the other hand, this is an impermissible substitution of power – from the Constitution (via constituent law-making) to the Parliament (through legislative power).

Conclusion

Article 124C violates the basic structure of the Constitution, and ought to be struck down. By using its constituent power of amendment to draft a provision that delegates what was earlier part of the constitutional scheme to the ordinary legislature, Parliament, in framing Article 124C, has violated the basic feature of the separation of powers. Specifically, it has also violated judicial independence by placing far-reaching powers with regard to the manner and functioning of the NJAC in the hands of the legislature. Drawing an analogy with the rule against non-delegation of essential legislative functions, it can be seen that 124C does not have the safeguard of continuing supervision of the legislature. Furthermore, since Article 124A only provides for the make-up of the NJAC, the Article 124C’s delegation is not merely allowing the legislature to fill in gaps in order to give effect to the constitutional scheme, but effectively amounts to a substitution of constituent power. For all the reasons adduced above, this violates the basic structure.

It is also clear that if Article 124C is struck down, then nothing remains of the 99th Amendment, and the rest of it must go as well. Without Article 124C, all that remains is the Judicial Appointments Commission, without any further details about its functioning. Consequently, Article 124C is not severable from the rest of the 99th Amendment – if the Court decides to invalidate it, it must also strike down the entire Amendment, including Article 124A.

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