Venu Sundaram

Uttarakhand, Arunachal and the Tale of Two Courts, Two Decisions

Unlike the Supreme Court which heard the case on Nabam Tuki’s ouster as Arunachal chief minister, the Uttarakhand high court accepted Harish Rawat’s plea that any delay in granting his prayer could make the result infructuous

The Uttarakhand high court’s decision to quash the President’s rule in the state, and revive the dismissed Harish Chandra Rawat government stands in contrast to the Supreme Court’s inability to come to the rescue of the dismissed chief minister of Arunachal Pradesh, Nabam Tuki in February.

Like the Uttarakhand high court, the Supreme Court’s constitution bench hearing the challenges to the imposition of president’s rule in Arunachal Pradesh in January, was also apprised of the Centre’s devious design to revoke president’s rule, and install a puppet regime with the support of the Bharatiya Janata Party before the bench could conclude the hearing and deliver the judgment.

However, the Uttarakhand high court accepted Rawat’s plea that any delay in granting his prayer could make the result infructuous – if the Centre went ahead and revoked president’s rule by itself so as to instal a government with the support of defectors and the opposition party.

A similar plea made to the Supreme Court’s constitution bench in February was not successful.

What paved the way for the revocation of President’s rule in Arunachal Pradesh and the formation of another government led by the rebel Congress leader, Kalikho Pul?

On February 16, Tuki’s counsel asked the constitution bench to restrain the Arunachal Pradesh governor, JP Rajkhowa, from swearing-in another chief minister, after recommending revocation of president’s rule.

The attorney general, Mukul Rohatgi asked the bench not to grant such an application for restraint, as in his view, the decision of the constitutional authority can be annulled by the court, but this application was totally misconceived.

According to Rohatgi, the courts cannot preempt a constitutional authority from taking any decision. The constitution bench implicitly accepted his suggestion, and declined the prayer for interim relief by restraining the governor or the president from revoking president’s rule and swearing-in a new chief minister during the hearing.

At the most, the constitution bench of the Supreme Court was willing to pass an interim order to maintain status quo on February 17 till it examined the judicial and assembly records on disqualification of 14 rebel Congress MLAs by the former speaker, Nabam Rebia.

On February 18, the constitution bench vacated its interim order to maintain status quo, when its perusal of the records showed prima facie that the speaker did not give the rebel MLAs a proper opportunity to be heard before their disqualification as defectors.

The decision to vacate this interim order paved the way for revocation of president’s rule, and the swearing in of Pul as the new chief minister of Arunachal Pradesh.

The Centre, however, volunteered to restrain itself from revoking President’s rule and swearing-in a new chief minister in Uttarakhand only till April 17. Taking a cue from the Supreme Court, the Uttarakhand high court must have realised that it did not have the power to impose such a restraint on the governor or the president, beyond April 17. Therefore, the high court adopted the remedy which the AG himself suggested to the Supreme Court’s constitution bench in February: annul the president’s decision to impose president’s rule.

This still leaves unanswered the question of whether the Supreme Court was indeed powerless to provide interim relief to Tuki in February, while the Uttarakhand high court did not think so on April 21.

Supreme Court of India. Credit: PTI

On February 19, Justice JS Khehar, who presided over the constitution Bench, told Congress counsel Kapil Sibal: “We may agree with you or may not agree with you in the case. But if we agree with you, then everyone knows what will happen. Nobody will take that chance’.

Justice Khehar was responding to Sibal’s apprehension that after swearing-in the new government, following the revocation of president’s rule, the governor’s next step would be to recommend dissolution of the assembly and hold fresh assembly elections in Arunachal Pradesh, and exercise control in the interim through a caretaker government.

This, Sibal said, would render the hearing and the verdict to be delivered by the bench infructuous. Sibal, therefore, pleaded with the bench that it should direct a floor test in the assembly, to preempt the centre’s next move in collusion with the governor of Arunachal Pradesh.

Justice Khehar, however, declined Sibal’s prayer because he felt members of the constitution bench would have different viewpoints, and an order could be pronounced only after all arguments were concluded. What Justice Khehar meant was that reconciling different viewpoints among the five members of the Constitution bench would take time, rendering the possibility of pronouncing an interim order remote.

There are two limbs to the Arunachal Pradesh case in the Supreme Court. One was the challenge to the validity of the governor’s summoning the assembly, without the aid and advice of the council of ministers, to take up the motion of confidence in the Tuki government, ahead of its scheduled session.

The governor’s action set off a series of political developments, which resulted in the imposition of president’s rule on January 26.

The second is the challenge to the validity of president’s rule. During the hearing, it was suggested by the bench that if the challenge to the governor’s discretion in summoning the assembly was upheld, then the justification for imposing president’s rule would lose its force, and the hearing of separate arguments on the validity of president’s rule would not be required. The bench has since reserved its judgment in the case.

Splits are now illegal, while mergers are a chimera

The factual matrix in Uttarakhand was different, as the Centre preempted the holding of the assembly session for the trial of strength, as directed by the governor, by imposing president’s rule.

Despite factual differences, however, there is one common issue which would determine the outcome of the confidence vote in both the states.

As Sibal explained to the Supreme Court’s constitution bench, the 91st Amendment Act, 2003 omitted paragraph 3 of the Tenth Schedule to the Constitution, dealing with the disqualification of legislators on the ground of defection. Paragraph 3 held that disqualification on the ground of defection would not apply in case of splits, brought about by one-third of a legislature party.

However, paragraph 4 which protects mergers from disqualification on the ground of defection, remains very much part of the Constitution. However, it is not easy to bring about mergers, as defined by this paragraph.

Although paragraph 4 mandates that two-third members of the legislature party must have agreed for such a merger with another political party or group, it should be preceded by the merger of the original political party (meaning the organisational wing of the party) with that party.

It is significant that both in Arunachal Pradesh and in Uttarakhand, the rebels in the Congress legislature party, who revolted against their chief ministers, numbered less than two-thirds of the legislature party strength. Even if they succeed in mustering the support of two-thirds of the legislature party’s strength to claim merger, they would still have to demonstrate that it was preceded by the merger of members of the original political party, that is, its organisational wing with the new party.

The wording of paragraph 4 is as follows:

“The merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of legislature party concerned have agreed to such merger.”

Sibal contended before the constitution bench that paragraph 4 makes it clear that both the conditions ought to be satisfied, that is, the merger of the original political party as well as of the two-thirds of the members of the legislature party, for MLAs to qualify for exemption from the penalty of disqualification.

Therefore, Sibal argued before the Constitution bench that the decisions on disqualification on the ground of defection must precede the confidence vote, as those who stand disqualified cannot be allowed to participate in the confidence vote, and make a mockery of democracy. And in this, the speaker’s decision on disqualification under the Tenth Schedule, has finality, which is subject to judicial review by the high courts and the Supreme Court.

Making Sense of the Uttarakhand HC Order on Assembly Floor Test

Those critical of the high court’s order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

Those critical of the high court’s order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

Uttarakhand Chief Minister Harish Rawat: Outmanoeuvred. Credit: PTI Photo

Harish Rawat. Credit: PTI

Uttarakhand high court judge U.C. Dhyani’s decision directing the convening of the state assembly to take up a vote of confidence on the Harish Rawat’s government has raised questions of whether the judiciary has the power to do so.

To critics, Justice Dhyani’s direction upsets the doctrine of separation of powers, a basic feature of the Constitution. A closer examination of the issues involved, however, shows that the criticism is misplaced.

Justice Dhyani justified the direction, on two grounds.

First, the imposition of President’s rule on March 27, he held, is a colourable exercise of power, because it aimed to frustrate Governor K. K. Paul’s direction on March 19 to the then chief minister to seek a vote of confidence from the assembly at the earliest, but not later than March 28.

If the Centre and the governor were on the same page, Paul could have revoked his direction to Rawat before the imposition of President’s rule and thereby answered the criticism of colourable exercise of power in the negative.

Although the central government relied on the report sent by the governor recommending President’s rule, the need to revoke his March 19 directive to Rawat was apparently not felt either by the Centre or Paul.

This technical lapse came as a blessing in disguise for the ousted chief minister, who persuaded Justice Dhyani to reach a prima facie conclusion that the imposition of President’s rule on March 27, a day prior to the scheduled trial of strength, was a colourable exercise of power.

Therefore, the fact remains that had the governor revoked his direction to Rawat to call a session of the house to prove his majority prior to the imposition of President’s rule, Justice Dhyani would not have found the Centre’s decision prima facie bad in law.

Remedying inconsistencies

Secondly, although Justice Dhyani expressly refrained from ‘staying’ the President’s rule, as the government has not yet been heard on the merits of its decision, he justified the limited intervention because, as he held, the court should not sit as a mute spectator in the interregnum.

In other words, Justice Dhyani clearly felt that failure to provide interim relief, as prayed for by the petitioners, would frustrate the end result, even if it is in their favour, and may even make the petition challenging the President’s rule infructuous.

The holding of a one-day session while the state is under President’s rule and the assembly is under suspended animation, may appear to be inconsistent. But the session is being called under the high court’s direction and supervision in order to correct the previous inconsistency of the Centre’s own making.

Justice Dhyani is justified in holding that this initial inconsistency – imposing President’s rule without revoking the governor’s direction – must be remedied.

Despite the popular usage of the phrase ‘suspended animation’, to refer to the state of the assembly during the President’s rule, the phrase does not figure in the president’s notification imposing President’s rule.

What has been suspended under President’s rule are Articles 163, 164 and 189(1). Article 163 deals with the council of ministers to aid and advice governor, while Article 164 deals with other provisions as to ministers. The suspension of these articles pose no problem in holding an assembly session.

However, it is Article 189(1) which could prove to be a hurdle. Article 189(1) says

Save as otherwise provided in this Constitution, all questions at any sitting of a House of the Legislature of a State shall be determined by a majority of votes of the members present and voting, other than the Speaker or Chairman, or person acting as such. The Speaker or Chairman or person acting as such, the provision further states, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.

The suspension of this article may suggest that a session of the assembly, even for the limited purpose of voting in a confidence motion, cannot be held when the state is under the President’s rule.

But Justice Dhyani appears to have assumed – inferred from a reading of the judgment and the Constitutional provisions that have been suspended – that if the result of the vote during the session is kept by the speaker in a sealed cover and submitted to the Court by the morning of April 1, as directed by him, there is no immediate “determination of the question by a majority of votes” as envisaged under the Article.

Justice Dhyani’s reasoning appears to be that the result of the vote could be retrospectively validated, if the court were to conclude that the imposition of President’s rule on March 27 was mala fide, and therefore, was void ab initio.

Other provisions suspended are consequential provisions and these do not come in the way of holding of the session for a limited purpose, as directed by the high court.

Those who are critical of the high court’s interim order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

The Constituent Assembly generally expected that Article 356 would be invoked in extreme situations and would not be utilised as a ‘surgical operation for a mere cold or catarrh’. Dr B.R. Ambedkar hoped that this provision ‘will never be called into operation’ and ‘would remain a dead letter’.

Ambedkar also assured the Constituent Assembly that ‘the first thing the President would do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution….’

It is clear that the Centre did not follow these principles while imposing President’s rule in Uttarakhand. After all, the passage of the Appropriation Bill in the assembly on March 18 cannot be construed as an irremediable decision, even if it is found that it was not passed by majority. A procedural irregularity could have been corrected by the governor by sending a message to the assembly to pass it afresh.

Legal precedents

The Punchhi Commission on Centre-State Relations had found that the Article had been used 103 times as of 2009.

The Supreme Court’s judgment in SR Bommai v. Union of India (1994) lays down the definitive law on the subject. Article 356, the judges said in that ruling, can be invoked only in cases where non-compliance with the Constitution is of such a nature that it results in situations that create an impasse and are not capable of being remedied, and where the governance of the state has become impossible. Not every violation of the Constitution merits imposition of President’s rule in a state.

One of the important issues decided by the majority in the Bommai case is that state legislative assembly cannot be dissolved merely upon issue of presidential proclamation and before parliamentary approval is accorded as required under Article 356 (3).

The Court read this limitation into the article to place a check on the executive and to ensure that the grant of final relief does not become infructuous. Had the Court not held so in the Bommai case, the present government could have dissolved the Uttarakhand assembly alongside with the imposition of President’s rule.

In the immediate aftermath of the Bommai judgment, senior advocate and former Attorney General Soli Sorabjee wrote in a critique carried in the Journal of Supreme Court Cases:

“A mere declaration of unconstitutionality without granting consequential relief would be a teasing illusion and in effect confer immunity upon unconstitutional action. Moreover, judicial review in the absence of grant of full and effective relief would be a futile exercise. The Pakistan judiciary has adopted a similar approach and granted full relief without any untoward consequences…

Any timorous retreat in future from the robust judicial activism reflected in Bommai will cause serious problems and lead to the pernicious consequence of one or more basic features of the Constitution being invoked to destroy another essential feature, Federalism”.

In Rameshwar Prasad v. Union of India, (2006), federalism suffered because of the Supreme Court’s failure to grant full and effective relief after finding the dissolution of the Bihar state assembly unconstitutional. The Court had missed the opportunity to provide interim relief by not restraining the Election Commission from holding of the next assembly elections during the hearing of the case. As a result, its judgment became an academic exercise, although it resulted in the resignation of Buta Singh, the governor of Bihar at that time.

As in the Uttarakhand case now, Singh had then alleged various allurements had been offered to win over elected representatives to cobble a majority and stake claim to form a government. He recommended the dissolution of the assembly to arrest this trend immediately. That the Supreme Court did not find merit in his reasoning should be a binding precedent for the high court to dismiss the Centre’s claim that it imposed President’s rule in Uttarakhand before the vote of confidence due to allegations of horse-trading.

More importantly, the Supreme Court in the Bommai case agreed with the view that the assembly was placed under suspended animation initially with the intention of providing time and space to political parties to explore the possibility of providing a majority government in the state. Therefore, Justice Dhyani can be said to have rightly used this reasoning to direct the holding of a special session of the assembly.

BJP contradicts previous position

Since coming to power at the Centre, the BJP appears to have forgotten its own suggestions to the Punchhi Commission on safeguards to make the use of Article 356 less arbitrary.

The party told the commission that safeguards corresponding in principle to clauses (7) and (8) of Article 352, which deals with the proclamation of emergency, should be incorporated in Article 356 to enable parliament to review continuance in force of a proclamation.

Clause 7 of Article 352 states:

Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.

Clause 8 of Article 352 states:

Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a Proclamation varying such Proclamation, –

To the Speaker, if the House is in session; or
To the President, if the House is not in session, a special sitting of the House shall be held within 14 days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.

That the BJP wanted similar safeguards in Article 356 speaks volumes of the party’s intention to make its use more transparent and less arbitrary.

The session, first directed to be held on March 31, has now been kept in abeyance till April 7, by the division bench of the high court, which heard the appeal by the Central government.

Uphaar and the Curious Case of the Judges Who Wouldn’t Listen

By hearing only the businessmen guilty of the Uphaar fire—and not the victims or the CBI—in deciding to let the Ansal brothers off without imprisonment, the Supreme Court upended a basic principle of natural justice.

By hearing only the businessmen guilty of the Uphaar fire and letting them off without imprisonment, the Supreme Court upended a basic principle of natural justice

File photo of Uphaar Cinema in New Delhi in 1997. The Supreme Court on Wednesday imposed a fine of Rs 60 crore on Gopal and Sushil Ansal. 59 cinegoers died of asphyxia in a massive blaze that engulfed the theatre in 1997. Credit: PTI Photo

File photo of Uphaar Cinema in New Delhi in 1997. The Supreme Court on Wednesday imposed a fine of Rs 60 crore on Gopal and Sushil Ansal. Fifty-nine cinegoers died of asphyxia in a massive blaze that engulfed the theatre that year. Credit: PTI Photo

On August 20, a three-judge bench of the Supreme Court led by Justice Anil Dave declined the Central Bureau of Investigation’s plea that it be given 15 minutes to refute arguments made by Ram Jethmalani on behalf of the convicts in the 1997 Uphaar fire tragedy, Sushil and Gopal Ansal. Just a day earlier, the bench—after hearing Jethmalani at length, but not the other side—sprang a surprise by imposing just a fine of Rs. 30 crore each on both brothers, without any word on their further imprisonment. Fifty-nine people perished in the fire due to the Ansals’ negligence, most of them children.

The Supreme Court’s August 19 refusal to hear the CBI and the victims of the tragedy on sentencing is a complete denial of natural justice. Both Harish Salve, representing the CBI, and K.T.S. Tulsi, representing the victims, had been waiting in the court room for their opportunity to answer Jethmalani’s contentions, and were taken aback by the sudden decision of the bench to wind up arguments and announce its decision.

The fact that the Supreme Court has not yet uploaded the sentencing judgment of Justice Anil Dave’s bench has led to further suspense about the reasons the bench could cite in defence of its decision not to impose any sentence of imprisonment on the duo.

It will be a mockery of justice if the judgment cites only Jethmalani’s contentions, and not the submissions of CBI and the victims on the question of sentence. But this is how the judgment will appear to be as both Salve and Tulsi only had the chance to briefly tell the bench—in response to a query—that they wanted the sentence of imprisonment to be maximum, that is, two years.

Denial of natural justice

The bench has obviously rejected their plea, but its decision, without hearing the reasons for their plea, is vulnerable to challenge—both in the review and curative petitions—on the ground of denial of natural justice. In the review petition, the petitioner has to cite an error apparent on the face of the record. But the fact that review petitions are heard and decided in chambers by the same bench which heard the principal matter means the CBI and the Uphaar victims may not succeed at that stage.

In the curative petition, however, the two judges who heard the principal matter, Justices Kurian Joseph and Adarsh Kumar Goel, and the three senior-most judges of the Supreme Court –Chief Justice H.L. Dattu, Justice T.S. Thakur and Justice Anil Dave (who also led the bench on August 19) are likely to sit on the bench. The ground of denial of natural justice, if raised by the curative petitioner, has a greater chance of ensuring an open court hearing of the matter — in contrast to the usual practice of disposal of the petition in chambers by circulation among the judges.

This is because the Supreme Court in 2002 specifically laid down the denial of natural justice as one of the two reasons for entertaining a curative petition. The other ground is an allegation of bias on the part of any of the judges who decided the principal matter.

It is of interest to note that one of the judges who decided the Uphaar sentencing case on August 19, Justice Kurian Joseph, had, while hearing Yakub Memon’s petition against his death warrant, contended that the curative bench need not confine itself with just these two grounds, but also consider a fresh ground not raised earlier. He also questioned the Supreme Court’s rule that excluded the judges who heard the review petition from hearing the curative petition, if they were not part of the bench that delivered the main judgment.

The composition of the curative bench will, however, change if the respondents delay the filing of the petition, and in the meantime, some of those judges who might sit on the Bench, retire.

The split judgment

The Justice Anil Dave-led bench’s decision is all the more curioser because the three judge bench was constituted as a result of the split between two judges who heard the case earlier on the question of sentence. The split judgment of the two judges – Justices T.S. Thakur and Gyan Sudha Misra –was delivered on March 5, 2014.

Both Justice Thakur and Justice Gyan Sudha Misra found the Ansals guilty of criminal negligence, but disagreed on sentencing. Justice Thakur opined that the sentence of one year’s imprisonment imposed by the High Court need not be enhanced.

Justice Gyan Sudha Misra, however, was unconvinced by the High Court’s reasoning justifying the reduction of maximum sentence, of two years, awarded by the trial court, to one year; therefore, she enhanced the sentence to two years, while holding that the enhanced imprisonment could be substituted by a fine of Rs. 50 crore each.

Justice Thakur, however, found it unnecessary to disturb the sentence imposed by the High Court. Here, Justice Thakur had contradicted himself. On the one hand, he cited the Supreme Court’s verdict in State of Madhya Pradesh vs Ghanshyam Singh to support the proposition that a sentence ought not to be reduced merely on account of long pendency of the matter. However, he subsequently supported the contention that delay has often been made a basis for the award of a reduced sentence.

Despite Justice Gyan Sudha Misra’s finding that the High Court had not given any reasons for reducing the maximum sentence awarded by the trial court, Justice Thakur concluded that ‘there is no reason why in the case at hand, the delayed conclusion of the proceedings should not have been taken by the High Court as a ground for reduced sentence of one year”.

Ansals benefit from delaying tactics

Justice Thakur’s endorsement of delay as a mitigating factor in sentencing is questionable because the facts clearly suggest that the convicts were responsible for seeking repeated adjournments, and thus delaying the proceedings themselves.

The Ansals’ appeal case was first listed in the Supreme Court on October 29, 2010 before a two judge bench comprising Justices Thakur and Justice V.S. Sirpurkar, (who has since retired) and got adjourned. On August 24, 2011, it was listed before the bench of the then Chief Justice S.H. Kapadia and Justice Thakur, and again got adjourned on the request of Ram Jethmalani. On November 9, 2011, it was listed before Justice Thakur and Justice Dipak Misra.

The matter was first listed before the Thakur-Gyan Sudha Misra bench only on February 8, 2012, and Ram Jethmalani began his arguments before this bench on February 16 that year. He argued for nearly 25 days, while the counsel representing the CBI and the victims together argued for about 11 days. On April 17, 2013, the arguments were concluded and the judgment reserved. But the bench took almost a year to deliver its March 5, 2014 judgment in which it upheld the conviction of Ansal brothers but split on sentencing. The list of dates of hearing, available on the court’s website, shows that frequent and prolonged adjournments took place before and during the hearing of the case, on the request of the arguing counsel.

The victims say they did not stand to benefit from the delay. “Why should the accused be given the double benefits of first a prolonged trial as it is a well-known fact that it is they who seek adjournments on one pretext or the other, and then a lighter sentence on the grounds of delay”, they asked in a press release in June this year.

Apart from treating the delays as a mitigating factor for the Ansal brothers, Justice Thakur gave two other reasons for not enhancing their sentence. He observed that sending someone to jail for one year when the maximum sentence prescribed for the offence is only to two years cannot be considered inadequate. He also cited the fact that Harish Salve, who represented the CBI, had not argued before the bench that the High Court had prescribed an inadequate sentence for the Ansals. “This is in contrast to the grounds urged in the memo of appeal by the CBI, where the inadequacy of sentence was also assailed. In the absence of any attempt, leave alone a serious one by the State acting through CBI to question the correctness of the view taken by the High Court on the quantum of sentence, we would consider the ground taken in the memo of appeal to have been abandoned at the Bar”, Justice Thakur wrote in his judgment.

Indefensible

In the light of the arguments made by both these judges, the Justice Anil Dave bench’s decision to impose no sentence of imprisonment at all on the Ansals appears completely indefensible.

There is one more factor which makes its decision even more vulnerable. The Supreme Court often invokes the theory of collective conscience to justify the imposition of the death sentence, especially if the offence committed by the accused is heinous. The basis for invoking this theory has been questioned by observers.

In an interesting coincidence, Justice Dipak Misra recently invoked this very same theory to justify enhanced sentence of imprisonment, in an abetment to suicide case, even though the facts of this case do not warrant it. There is reason to believe he might have done so in order to offer a belated justification for his decision to dismiss Yakub Memon’s plea against his death warrant on July 30.

However, the Justice Anil Dave-led Bench’s decision in the Uphaar case raises the question of whether the Supreme Court uses the theory of collective conscience selectively: while Memon had to die because of the theory of collective conscience which could have been invoked to justify his death sentence, the rich and powerful Ansals were let off the hook—even though the collective conscience of society might well have wished them to be behind bars.

Will the Collegium Revive Itself if the Supreme Court Voids the NJAC?

In these twilight days of the Collegium, the fate of the judiciary’s independence might finally turn on a case that the Supreme Court has put off hearing all these years

Supreme Court of India. Photo: supremecourt.nic.in

New Delhi: In the ongoing hearing of challenges to the validity of the National Judicial Appointments Commission before the Supreme Court’s Constitution Bench, there is one question which excites the bench more than anything else.

It is whether the erstwhile collegium – created by the Supreme Court in the Second Judges case in 1993 to appoint judges to the higher judiciary – will revive itself were the Court to strike down as unconstitutional the NJAC Act, 2014 and the Constitution 99th Amendment Act, 2014.

The collegium – comprising the senior-most judges of the Supreme Court – was a result of the interpretative judgment of the Supreme Court in the Second Judges case, involving the text of Articles 124 and 217 of the Constitution, dealing with appointment of judges to the Supreme Court and High Courts respectively.

The court’s poser

The moment government lawyers make the claim during arguments that the notification of the two Acts on April 13 has effectively ended the collegium era, the five judges hearing the case become curious, and then begin a conversation among themselves. Their confabulations finally end with a pointed question to the counsel making such a claim, such as: “Do you think if we were to strike these two Acts down, the previous system of appointments will revive itself, with the unamended Articles of the Constitution dealing with appointment of judges, and its corresponding interpretative judgment given in the Second Judges case in 1993, springing back to life?”

The pointed question leaves the counsel searching for an answer. The bench appears dissatisfied, but goes ahead with the rest of the arguments, with the hope that the question will be answered in due course.

Although Attorney General Mukul Rohtagi had asserted during the first phase of the arguments that the collegium was dead and gone and cannot revive itself even if the court were to strike down the NJAC Act and the 99th Constitution Amendment Act, the bench clearly has its own doubts about this assertion, and the petitioners’ counsel have not so far come up with an effective answer.

The AG’s contention was that in the event of the court striking down the two Acts, Parliament might have to legislate again, to fill the vacuum created by Article 124’s disappearance, as it originally stood, from the Constitution, as a result of NJAC Act’s enactment, and its hypothetical striking down by the Court.

Evasion apparent

The hearing on June 12 saw a repeat of this with the senior counsel for Madhya Pradesh, K.K. Venugopal, asserting that the 99th Constitution Amendment has nullified the basis of ‘SCAORA’, using the abbreviated form of the Supreme Court Advocates-on-Record Association, which was the lead petitioner in the 1993 Second Judges case and is also a lead petitioner in the current case being heard.

This time it was Justice Madan B. Lokur who interrupted Venugopal, to have a brief conversation with Justice J.S. Khehar sitting next to him. He then returned with a pointed question to Venugopal about the revival question.

When reminded by the bench about the AG’s contention that Article 124 as it originally stood cannot revive itself even if the court were to strike down the two Acts as unconstitutional, Venugopal, being one of the respondents supporting the Central Government on the issue, evaded a clear answer. The appointment of judges, he said, is an executive function, and can’t be claimed by the judiciary as a matter of right.

Not satisfied with this apparent evasion of the question, Justice Adarsh Kumar Goel asked Venugopal whether he agreed that with the court’s hypothetical striking down of the two Acts, the principle of independence of the judiciary inherent in SCAORA would revive itself.

Venugopal again avoided a direct answer. He posed a counter-question to the bench, asking how the independence of the judiciary would suffer if we have a different body like the NJAC to appoint judges, and which owes allegiance to none. According to him, the judiciary’s independence was not compromised before SCAORA, when the Executive had primacy in the appointment of judges, except during the Emergency, which he described as an aberration.

Doctrine of revival

When Justice Goel reminded Venugopal that after the 39th amendment of the Constitution was struck down by the court in 1975, the situation prior to the amendment stood revived, Venugopal had no answer. The Supreme Court struck down 39th amendment insofar as it shielded the election of the Prime Minister and the Speaker of the Lok Sabha from any legal challenge.

If there is an answer to the question which has been exercising the bench, Supreme Court advocates say it lies in a pending case which has so far failed to attract the attention of the judges and counsel, and which may hold the key to the discussion on the doctrine of revival.

In Property Owners Association vs the State of Maharashtra, decided on May 1, 1996, a three-judge bench of the Supreme Court referred the question of automatic revival for consideration by a bench of five judges.

In this case, the Maharashtra Housing and Area Development Act, 1976, as amended in 1986, sought to acquire certain properties on the ground that it was necessary to secure the principles specified in Article 39(b) (‘that the ownership and control of the material resources of the community are so distributed as best to subserve the common good’), and the State contended that it was not challengeable in view of Article 31C (‘Saving of laws giving effect to certain directive principles’).

Case that holds the key

The issue was whether Article 31C survived after the Keshavananda Bharati judgment struck down a part of this Article in 1973, as it originally stood. The petitioners argued that the doctrine of revival, as it applied to ordinary statutes, did not apply to constitutional amendments, and when a part of 42nd Amendment which amended Article 31C had been held to be invalid, it did not result in the automatic revival of the unamended Article 31C.

Article 31C, inserted by 25th Amendment Act, 1971, stated that no law giving effect to the policy of the state towards securing [all or any of the principles laid down in Part IV of the Constitution, i.e. the Directive Principles of State Policy] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Articles 14 (the right to equality) or 19 (the right to freedom) and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.

In the Keshavananda Bharati case (1973), the Supreme Court held the provision in bold and italics to be invalid.

In the Minerva Mills case (1980), the phrase ‘all or any of the principles laid down in Part IV’ inserted by the 42nd Amendment in 1976, replacing the earlier phrase, ‘for the principles specified in clause (b) or clause (c) of article 39’, was also declared invalid by the Supreme Court.

Property Owners Association was heard by a bench of five judges in 2001. The bench, however, concluded that it required to be reconsidered by a bench of seven judges. As the CJI has not constituted a bench of seven judges to hear this case, it has since been pending.

The Supreme Court had held in two cases in the 1980s – Waman Rao (1980) and Sanjeev Coke Manufacturing Company (1983) – that the doctrine of revival applied to Constitutional amendments, that is, if a part of the amendment is declared as invalid by the Supreme Court, the pre-amendment Constitutional provision would revive.

Interestingly, in the Property Owners Association case, it was Fali Nariman, as the counsel for the petitioners, who opposed the application of the doctrine of revival to the Constitutional amendments, and argued that the unamended Article 31C did not revive after the Minerva Mills decision, and therefore, could not come to the rescue of the Maharashtra Act, under challenge.

As dusk falls

Paradoxically, as Fali Nariman finds himself as the petitioners’ counsel in the ongoing NJAC case, his previous views on the doctrine of revival following Minerva Mills may come to the aid of the Central government and other respondents who argue that the collegium cannot automatically revive itself in the event of the court striking down the NJAC Act and the 99th Constitution Amendment.

Consider the irony: In these twilight days of the Collegium, the fate of the judiciary’s independence might finally turn on a case that the Supreme Court has put off hearing all these years. As Hegel said, “Only when the dusk starts to fall does the owl of Minerva spread its wings and fly.”

The Story of a Lapsed Ordinance

Despite promulgating several ordinances, the government has allowed one to lapse

Prime Minister Narendra Modi. Credit: PTI Photo

The Modi Government, since coming to power, has promulgated 13 ordinances, including the latest one on the land acquisition.

An ordinance promulgated during the recess of Parliament, under Article 123 of the Constitution, lapses at the expiration of six weeks from its reassembly, or if before the expiration of that period, resolutions disapproving it are passed by both Houses and may be withdrawn at any time by the President. So far, the Modi Government has not let any of its ordinances to lapse, or to be disapproved by Parliament, or withdrawn by the President.

While it re-promulgated the LARR (Amendment) Ordinance twice, not knowing when it will become a law, it re-promulgated the Coal Mines (Special Provisions) Ordinance, 2014 once before Parliament replaced it by law.

There is, however, one ordinance, the Scheduled Castes and Scheduled Tribes Prevention of Atrocities (Amendment) Ordinance, 2014, which it inherited from the previous UPA -II Government, and then allowed it to lapse.

The ordinance, promulgated on March 4 last year, lapsed on July 16, 2014, six weeks after the 16th Lok Sabha re-assembled on June 4, 2014. Curiously, the Bill to replace the Ordinance was introduced in the Lok Sabha by the Government just two days before it was about to lapse, on July 14, 2014.

The Bill was then referred to the Standing Committee on Social Justice and Empowerment on September 16, 2014 and the committee submitted its report on December 19, 2014. The report and the Bill have been gathering dust since then, as the Bill has not yet been included in the Government’s legislative agenda.

No doubts about motive

There is reason to believe that although the ordinance was promulgated by the previous UPA-II Government on the eve of the last general elections to the Lok Sabha, the Modi Government did not find anything improper in its enactment; nor did it publicly doubt the previous Government’s motives in promulgating the ordinance.

On the contrary, the Minister for Social Justice and Empowerment, Thaawar Chand Gehlot, while introducing the Bill in the Lok Sabha, justified the promulgation of the ordinance by the President on March 4, 2014 “keeping in view the urgency in the matter”.

In the Statement of Objects and Reasons, attached to the Bill, the Minister, while commenting on the principal Act, enacted in 1989, said as follows:

“Despite the deterrent provisions made in the Act, atrocities against the members of the Scheduled Castes and Scheduled Tribes continue at a disturbing level. Adequate justice also remains difficult for a majority of the victims and the witnesses, as they face hurdles virtually at every stage of the legal process. The implementation of the Act suffers due to (a) procedural hurdles such as non-registration of cases; (b) procedural delays in investigation, arrests and filing of charge-sheets; and (c) delays in trial and low conviction rate.”

He added: “ It is also observed that certain forms of atrocities, known to be occurring in recent years, are not covered by the Act. Several offences under the Indian Penal Code, other than those already covered under section 3(2) (v) of the Act, are also committed frequently against the members of the Scheduled Castes and the Scheduled Tribes on the ground that the victim was a member of a Scheduled Caste and Scheduled Tribe. It is also felt that the public accountability provisions under the Act need to be outlined in greater detail and strengthened.”

The Amendment Bill was thus drafted, after due consultation with all the stakeholders, to achieve the above objectives, by comprehensively amending the principal Act.

The Bill, apart from other things, inserts a new Chapter IVA relating to “Rights of Victims and Witnesses” to impose certain duties and responsibilities upon the State for making necessary arrangements for protection of victims, their dependents and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.

PRS Legislative Research says in its summary that the Standing Committee, in its report, endorsed amending the Act, but recommended certain modifications to the Bill.

This committee was chaired by the BJP’s Ramesh Bais, and comprised of 20 members from Lok Sabha and 10 members from Rajya Sabha cutting across party lines. Therefore, it is reasonable to expect that the Bill will enjoy all-party support in both the Houses of Parliament, when it is taken up for consideration and passage after the Government incorporates in the Bill, the recommended modifications.

Official explanation not credible

The official explanation for the promulgation of the LARR (Amendment) Ordinance for the third time skips the real reason, that is, the Government’s lack of majority in the Rajya Sabha, and states that it became necessary to maintain continuity, and provide a framework to compensate people whose land is acquired.

This objective, on the face of it, appears laudable; however, until the Government comes up with statistics regarding how many have been compensated since the first ordinance came into force, this is not credible.

If the Government requires a similar reasoning for the speedy enactment of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities (Amendment) Bill to replace the lapsed ordinance, it has to simply quote from the relevant paragraphs of the Statement of Objects and Reasons attached to the Bill.

As in the case of the re-promulgation of the LARR (Amendment) Ordinance, there has been no clamour for the re-promulgation of the SC/ST POA (A) Ordinance from its intended beneficiaries, because re-promulgation lacks legislative sanctity, as compared to enactment of a Bill.

In the case of LARR (Amendment) Ordinance, the Government, in the absence of such clamour from the beneficiaries for its re-promulgation, assumed itself as their parens patriae. In the case of SC and ST beneficiaries of the lapsed ordinance, the Government has been reluctant to assume the role of parens patriae, in the absence of clamour for re-promulgation.

However, lack of such clamour from the would-be beneficiaries should not make the Government ignore the legislative compulsions to speedily fill the void in the upliftment and empowerment of deprived and weaker sections of the society.

Why the President Should Have Returned Modi’s Land Ordinance

When the President promulgates an ordinance, he or she exercises intermediate legislative power. Ordinances lack the qualities that give Acts of Parliament elevated status. Returning an ordinance repeatedly may well be justified.

President Pranab Mukherjee at Jawaharlal Nehru’s memorial, 27 May 2015, New Delhi. Photo: PTI

The Union Cabinet’s decision to re-promulgate the controversial land acquisition ordinance for the third time raises interesting questions about its validity.

When the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015 was last re-promulgated on April 3, it was immediately challenged in the Supreme Court by four farmers’ organisations. The lead petitioner in the case is Delhi Grameen Samaj, and their lead counsel is Indira Jaising, senior advocate. When the case was heard on April 13, the Bench of Justice Jagdish Singh Khehar and Justice S.A. Bobde, showed no urgency in hearing the matter, and adjourned it after issuing notices to the respondents, (Union of India and others) with the hope that the petition might become infructuous with the two Houses of Parliament passing the necessary legislation to replace the ordinance in the mean time.

However, this did not happen, and the next hearing of the case is listed for July 6. In their petitions, the four farmers’ organisations have questioned the perceived reason for promulgating the ordinance, namely, the lack of legislative majority in the Rajya Sabha, even though the government may come up with certain legitimate grounds for promulgation, for the sake of public consumption.

The decision to re-promulgate the ordinance for the third time only vindicates the petitioners, and suggests that the optimism of the SC bench, though well-intended, was not consistent with the reality.

As and when the Supreme Court takes up the matter, it is likely to examine the relevance of the court’s previous judgment in D.C. Wadhwa vs State of Bihar (1987).

Between 1967 and 1981, the State of Bihar promulgated 256 ordinances that ‘were kept alive for periods ranging between one and 14 years by re-promulgation from time to time’. In this case, the Supreme Court held that the practice of re-promulgation of ordinances was unconstitutional.

However, Article 123 of the Constitution, which deals with the power of the President to promulgate ordinances during a recess of Parliament, is silent on whether an ordinance can be re-promulgated, and if so, how many times.

Strangely, the Supreme Court, while condemning the practice of re-promulgation of ordinances as a ‘fraud on the Constitution’ in D.C. Wadhwa, did not follow it up with effective remedies in its order. Instead, it hoped and trusted that such a practice shall not be continued in the future.

Again, while holding that re-promulgation of ordinances is unconstitutional, the Supreme Court in D.C. Wadhwa listed the circumstances in which such re-promulgation may be in order. Two such grounds were envisaged: first, the legislature may have too much legislative business; second, the time at the disposal of the legislature to secure the passage of the bill to replace the ordinance may be short.

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The cover.

In other words, as academic, Shubhankar Dam remarks in his excellent recent book, Presidential Legislation in India: The Law and Practice of Ordinances, (Cambridge, 2014), the court merely invalidated mechanical re-promulgation of ordinances, not re-promulgation per se. Thus, he says, if emergent conditions persist alongside adequate reasons for failing to legislate an ordinance into law, re-promulgation may be valid. These emergent conditions and reasons must point out why an ordinance was not transacted in the intervening legislative session, he asserts.

But Dam also points to the apparent inconsistency between the emergent conditions and the reasons. If a legislative emergency truly persists, with a make-do ordinance brought in to tide it over, why should such a matter be treated with low priority, he asks. If Parliament does not prioritise ordinance-related matters for reasons of volume or duration, that alone may be a ground to doubt the existence of emergent conditions, he suggests.

Nor surprisingly, the judgment in D.C. Wadhwa failed to satisfy Wadhwa, the petitioner, whose book, Endangered Constitutionalism: Documents from a Supreme Court Case, was published by the Gokhale Institute of Politics and Economics, Pune, in 2008.

Wadhwa’s solution to the twin exceptions carved out by the Supreme Court was to extend the duration of the session of the legislature, if the time at the disposal of the legislature in a particular session is short.

Dam also draws attention to another problem in D.C. Wadhwa. According to him, there is nothing to show that the Supreme Court, in D.C. Wadhwa, had not approved lack of legislative support as evidence of ‘adequate reasons’ to re-promulgate an ordinance, as it is unclear if the then Chief Justice P.N. Bhagwati’s two exceptions, which he laid down in the judgment, should be read as a closed category.

A related issue is whether the President can refuse to sign an ordinance, so re-promulgated. Dam says that when the President assents to a Bill, he or she exercises legislative power. A Bill, at least in theory, reflects certain representative, numeric and deliberative qualities. And it is the presence of those qualities that partly explains why the President cannot formally return it for a second time under Article 111, he says.

But when the President promulgates an ordinance, he or she exercises intermediate legislative power. Such an ordinance, by definition, lacks the qualities that give a Bill its elevated status. And for that reason, the President must treat ordinances differently from Acts, and if he or she sends it back to the Cabinet repeatedly for reconsideration, this may even be justified, he argues.

Despite lack of clarity on the constitutionality of re-promulgating ordinances, President Pranab Mukherjee has chosen not to return the Land ordinance; on Saturday, according to official sources, he signed it into law for the third time.

Had he chosen to send it back for reconsideration by the Union Cabinet even once, it would have sent a strong message to the political class. Having expressed his dissatisfaction with the Modi Government’s ordinance raj publicly, Pranab Mukherjee would have been justified in exploring his options when asked to sign the ordinance the third time within six months.

Until the 1990s, Central ordinances had never been re-promulgated. Of the 196 ordinances promulgated in the 1990s, as many as 53 (27 per cent) were re-promulgated, including some that were promulgated twice or more. This number came down to six during 2000-2009. The Modi government may well break the previous records in re-promulgation, if the Supreme Court and the President fail to restrain it in time.

Delhi Turf-War Case May Turn on Reference to 11-judge SC Bench

AAP MLAs during the concluding day of the Special session of the Delhi Assembly, in New Delhi on Wednesday. The special session of the assembly has been called by the Delhi government to debate its ongoing row over power sharing with the Lieutenant General. PTI Photo by Kamal Kishore

New Delhi: The Aam Aadmi Party government’s turf war with the Lt.Governor in Delhi, and the National Judicial Appointments Commission (NJAC) case – both currently before the Supreme Court – may end up having one thing in common: a plea for reference to an 11-judge bench to reconsider a judgment delivered by nine judges in the 1990s.

The point of difference, however, is that while in the first case, the Central government may find itself resisting such a reference, in the latter, it was the primary proponent of such a move, which was turned down by the Supreme Court on May 12.

In the first hearing of the Delhi turf war case, Union of India vs Government of National Capital Territory of Delhi on May 29, held before the vacation bench of the Supreme Court comprising Justices A.K.Sikri and Uday Umesh Lalit, the Central government was categorical that the issue before the court was well settled by the bench of nine judges in the 1996 case, NDMC vs State of Punjab.

However, it is precisely this judgment of nine judges which the Delhi government may want reconsidered and upturned by a larger bench of the Supreme Court if it has to win its turf war with the Lt. Governor.

Cabinet rule as ‘Basic Structure’

In his legal opinion submitted to the Delhi Government on the issue of its constitutional status, senior advocate Gopal Subramanium observed that to the extent the proviso to clause (4) of Article 239AA of the Constitution has the potential of diluting clause (4) and clause (6) – which provide for cabinet form of government for the National Capital Territory of Delhi – it would be directly hit by the Doctrine of Basic Structure evolved in the Kesavananda Bharati case.

Article 239AA, inserted by the Constitution (69^th Amendment) Act, 1991, deals with special provisions with respect to Delhi. Clause 4 of this article says:

“There shall be a Council of Ministers consisting of not more than 10 per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.”

The proviso to Clause 4 says:

“Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for his decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to given such direction in the matter as he deems necessary.”

Clause 6 of Article 239AA says: “The Council of Ministers shall be collectively responsible to the Legislative assembly.”

While answering the question, Is the National Capital of Delhi a State?, Subramanium in his legal opinion referred to the Supreme Court’s decision in the NDMC case. As Subramanium explained, although Delhi’s statehood was not a question which arose directly in the case, it was interpreted in the context of whether the property tax applied in the NCT of Delhi would amount to Union taxation or State taxation for the purposes of exemption under Article 289 of the Constitution.

The Supreme Court held in this case that a Union Territory is not a State, and therefore, a tax levied under a law made by the legislature of a Union Territory cannot be called “State taxation”. The court also held that though UTs do have a separate identity within the constitutional framework, this will not enable them to avail of the privileges available to the States.

In a subsequent judgment in Delhi Bar Association v. Union of India (2008), the court reiterated its previous decision in the NDMC case – that the Delhi Legislative Assembly is inferior to Parliament in hierarchy.

In his legal opinion, Subramanium observed that the NDMC judgment and those delivered after that but subscribing to it overlook the concept of democracy implicit in the creation of a legislature and the cabinet form of government. “Hence, it may be argued that the same are inconsistent with the doctrine of basic structure”, he has said. Towards the end of his opinion, Subramanium categorically states that the view taken by the Supreme Court in the NDMC case is incorrect and requires reconsideration.

Given that Subramanium’s opinion to the Delhi government is the most-detailed one it has received to date, his observation is very significant.

In the Delhi turf-war case, the Centre, as a petitioner, has prayed for setting aside the recent observations of the Delhi High Court describing as “suspect” its latest notification reducing the Delhi Government’s powers. The Centre may well argue that the High Court could not have so observed when the NDMC judgment held the field.

Crutch for the Centre

Although the factual matrix of the Delhi and NJAC cases is different, some of the arguments for and against making a reference to a larger bench to reconsider the law laid down in a previously decided case are the same.

Thus we may find the Centre adopting the argument of the petitioners in the NJAC case that judgments delivered by a Constitution Bench of nine Judges are not easily upturned to ensure consistency and predictability.

Another argument of the petitioners in the NJAC case which the government could find useful is what happens if an 11-judge bench upholds the law laid down in the NDMC case? Would the respondents (in this case, the Delhi Government) then agree to abide by it, or raise fresh issues not raised in the NDMC case.

If the Delhi government raises fresh issues in the event of the NDMC judgment being upheld by an 11-judge bench, then the reference to the larger bench would not serve the purpose, the Centre may find itself arguing before the Supreme Court.

As of now, the plea for reference of the NDMC case to a larger Bench in the Delhi turf war may be muted, but it is likely to gain strength once the hearing progresses in the Supreme Court.

The Supreme Court is Headed Into Uncharted Territory

At stake in the hearings over the National Judicial Appointments Commission is the manner in which India will select its judges. But no one knows what will happen if the SC strikes down the NJAC as unconstitutional.

New Delhi: The Supreme Court’s five-Judge Constitution Bench has deferred the hearing of challenges to the validity of the National Judicial Appointments Commission Act to June 8, which is in the midst of the judges’ summer vacation. This is a rare thing to happen, as normally during vacations, only one Vacation Bench, comprising two judges, sits every day to dispose of urgent matters.

Not much is known, however, about why the Constitution Bench took this extraordinary decision to sit during the summer vacation. Therein lies a story. The government wanted to delay the hearing of the case despite uncertainties in filling judicial vacancies, while the bench was determined to go ahead with the hearing, irrespective of the challenges to its composition. The answer to this mystery may, however, have less to do with the court’s position on the NJAC than with its concern to preserve India’s basic structure doctrine.

The challenges to the current bench, comprising Justices J.S.Khehar, J.Chelameswar, Madan B.Lokur, Kurian Joseph, and Adarsh Kumar Goel, have been unprecedented.

First, some of the 11 petitioners pleaded for recusal of Justice Khehar, who presides over the Bench, because he is a member of the outgoing collegium to select judges.

The second challenge was to the Chief Justice of India’s role as member of the NJAC. The NJAC comprises six members — the CJI, the two senior-most Judges of the Supreme Court, the Union Law Minister and two eminent members to be selected by a committee comprising the Prime Minister, the Leader of the Opposition, and the CJI. CJI H.L. Dattu refused to join the NJAC and the 3-member selection committee to select the two eminent members of NJAC. This resulted in a stalemate, and some senior counsel appealed to the bench for a direction to the CJI to take part in the NJAC.

The third dilemma the court faced was the respondent’s (i.e. the Government of India’s) vociferous demand to refer the case to a larger bench of 11 Judges. They wanted this larger bench to reconsider, as a preliminary issue, the Supreme Court’s judgment in the Second Judges case, delivered in 1993, according primacy to the judiciary vis-a-vis the executive in the appointment of judges. It is settled law that a judgment of the Supreme Court can be set aside only by a bench which is larger than the one which first delivered it.

The five-judge bench patiently heard counsel on both the sides, a few interveners, and some eminent amicus counsel, to resolve these challenges, although it chose not to disclose immediately the detailed reasons for its decision to reject the pleas.

Of these, the decision to decline the respondents’ plea to refer the case to a larger bench of 11 judges was the most significant. Initially, Justice Khehar discouraged attempts by counsel on both sides to compare the NJAC with the collegium, which was laid down by the Supreme Court in the Second (1993) and Third Judges (1998) cases, saying that they must argue on the merits of NJAC, as the collegium was no longer relevant. However, as the petitioners’ counsel continued to rely on the principles laid down in the judgments in the Second and Third Judges cases, the Attorney General, Mukul Rohatgi and counsel for the other respondents, belatedly realised that reconsideration of these judgments by a larger bench was a prerequisite to respond to their arguments, and therefore argued on the reference issue first.

The AG and the respondents’ counsel, among other things, emphasised the need for an authoritative pronouncement on the issue by a larger bench because it impinged on the future of our democracy. While they may well be right, what they implied was that setting aside the judgments in the Second and Third Judges cases by a larger bench could make their task of defending the NJAC and the 99^th Amendment easier.

Both the Second and Third Judges cases were heard by benches of nine judges each. While the Second Judges case was decided by a majority of seven judges, the advisory opinion in the Third Judges case was unanimously tendered by the court to the President under Article 143 of the Constitution.

The judgment in the Second Judges case – which was reiterated by the court in the Third Judges case – has been relied on by the counsel for the petitioners in the NJAC case to equate judicial independence with the primacy of the judiciary in the appointment process. The government, however, is arguing that primacy of judiciary in the appointment process is just a facet of judicial independence, and if this facet goes, the entire edifice will not fall.

At least one of the five judges, Justice Kurian Joseph, initially agreed with the respondents that it was difficult to decide the case before the current five judge bench, until an eleven judge bench reconsidered the Second and Third Judges cases. It is interesting to note that Justice Joseph changed his mind, and went along with the other four Judges on the Bench on May 12, after listening to an impassioned plea by Ram Jethmalani, who is the counsel for an intervener, and Fali S.Nariman, the counsel for the lead-petitioner, the Supreme Court Advocates-On-Record Association.

Both Jethmalani and Nariman alleged that the government wanted an immediate reference to a larger bench to hear the case in order to delay the hearing, and hinted that any delay would lead to further uncertainty, and weakening of the judiciary. Nariman alerted the bench to the possibility that the government would insist that the NJAC Act and the 99^th Amendment Act had wiped out the judgment in the Second Judges case, and therefore, even if an 11-judge bench were to uphold the 1993 judgment, it would not really matter to the government. The AG’s answer to this was that he would then argue on the merits of the NJAC Act. The Bench then wondered aloud, asking what prevented the government from doing precisely that – arguing on the merits of the NJAC without seeking a reference to an 11-judge bench.

Ram Jethmalani, counsel for the petitioners, cautioned the bench that if it yielded to the government on the reference issue, it would set a bad precedent, and the government would be emboldened to seek reconsideration of even the Keshavananda Bharati judgment of 1973, which gifted the basic structure doctrine to our democracy. The same arguments which the AG advanced in favour of referring the NJAC case to an 11-judge bench, namely, that ‘times have changed, and there is no harm in relooking’ might then apply to Keshavananda. The AG immediately denied any move to seek reconsideration of Keshavananda, which was decided by a bench of 13 judges with a majority of seven, but the denial appeared insufficient to erase the lingering doubts about the government’s intentions in seeking a reference.

One can only speculate about whether all of this influenced Justice Joseph to change his mind, and go along with the majority.

As the bench went ahead, two more challenges were in store, which defied easy resolution: One, the absence of a mechanism to select judges at present, with the Collegium dead and gone, and the NJAC not taking off; and second, the spectre of the continuing vacuum if the court were to strike down the NJAC, and the 99^th Constitution Amendment Act. Such a decision cannot revive the old collegium system automatically.

While the Court obtained guarantees from the government that the tenure of the Additional Judges in the High Courts, which were about to expire during the hearing of the case, would be extended, the filling up of existing and future vacancies in the High Courts and the Supreme Court which may arise in the near future remains to be addressed.

Having wasted precious time on the reference issue, the government then asked the court to hear the case during the vacation, as it was left with inadequate time to defend itself, before May 15, the Court’s last working day. The petitioners had completed their arguments on merits.

As the NJAC hearing is set to resume on June 8, the Court is apparently entering uncharted terrain, for which there is no worthwhile precedent. The government view – as articulated by the AG – is that if the NJAC Act and the 99^th Amendment are struck down by the court as unconstitutional, the pre-NJAC position with regard to judicial appointments will not revive, as it had been wiped out by the legislation, and Parliament has to fill in the void with a fresh law. Both the bench and the petitioners’ counsel have not so far responded to this, and the pundits too have no clear answer to such an eventuality.

The Supreme Court’s five-Judge bench has only declined to take the reference question as a prelude to considering the NJAC Act and the 99^th Constitution Amendment on merits. It is possible that it may revisit the issue at a later point, before it concludes the hearing.

But the manner in which the government and some senior counsel have tried to equate the size of the bench with the correctness or otherwise of the court’s decision simply defies logic. Indeed, six judges of an 11-judge Bench, if constituted to reconsider, can set aside the judgment delivered by seven concurring Judges in the Second Judges case, and can still lay claim to legitimacy.