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.
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.”