Judicial Appointment Commission and the Basic
Structure Test: A Fear that never was
In this post, I seek to review one
of the changes made by the Constitution (121st Amendment) Bill, 2014
in furtherance of Constitution (120th Amendment) Bill, 2013 viz. incorporation of composition of Judicial
Appointment Commission (JAC) in the Constitutional Bill itself and deletion of
the same from the statutory Bill. Before going into the merits of the argument,
it is imperative to first address the history of the same.
Composition of JAC: A Journey from Ordinary Bill to
Constitutional Bill
The Constitution (120th Amendment)
Bill, 2013 and Judicial Appointment Commission, Bill 2013 were introduced in
the Rajya Sabha in August, 2013 which sought to replace the collegium system of
appointment of judges in higher judiciary with that of Judicial Appointment
Commission.
As per the proposed constitutional
provisions – Articles 124 and 124A – JAC is to make recommendations for
appointment of judges of the Supreme Court and High Courts. The Constitutional
Bill left it for the Parliament to make law regarding composition and functions
of JAC. To this end, the JAC Bill, 2013 was introduced in the Parliament. As
far as the composition of JAC is concerned, the Bill maintained equal number of
judicial and non-judicial members ensuring equal participation of both judiciary
and executive while recommending names for the post of Judge in Supreme Court
and High Courts. The move was based on the touchstone of judicial independence
and system of checks and balances in our Constitution.
As happens with every proposed law,
the JAC Bill was accompanied with some ambiguities, which needed to be
clarified. Accordingly, it was referred to the Standing Committee for review. One of the several recommendations of the Committee
was that the composition of JAC should be prescribed in the Constitution itself
instead of in a statute. However, the procedure to be followed by JAC may be
determined by a statute.
Standing Committee submitted two-pronged
reason for this suggestion: firstly, if the composition is prescribed in the
Constitution itself, in order to alter the same, Parliament has to undergo a
rigorous procedure under Article 368 viz.
(1) enactment by a super-majority of both houses of India’s Parliament (at
present, the Constitution Amendment Bill has only been passed by the upper
house); (2) ratification by the legislatures of half the states in India; and
(3) assent by the President. On the other hand, amendment in an ordinary statute can be made by a
simple majority in the Parliament. Standing Committee feared that if the
composition is provided in an ordinary statute (JAC Bill), it can be altered at
the whims and fancies of the then government. And, there will not be any check
over such an action.
With this, I move on to the second
prong of the reason behind the suggestion of constitutional retrenchment of
composition of JAC.
Standing Committee relied on position
of law that ordinarily, grounds of testing vires
of a legislation is whether the legislature has legislative competence or
whether the legislation is ultra vires
the provisions of the Constitution. It was under an impression that hypothetically,
in future, there is an amendment in JAC Act, if enacted, seeking four
non-judicial members and three judicial members in JAC. Such an amendment would
tilt the balance of equal participation of judicial and non-judicial members in
the appointment process. It would, therefore, affect the judicial independence
& the system of checks and balances. Unfortunately, the amendment cannot be
avoided as it does not fit in the abovementioned grounds of attack of an
ordinary statute. However, if the composition is provided in the Constitution
itself, and any such amendment is made, it can be struck down for violating
basic structure doctrine (Judicial independence, and checks & balances being
part of basic structure). As per Standing Committee’s anticipation, the ground
of basic structure violation is not available for review of an ordinary
statute. In this context (in the next part of the post), it is submitted that
the basic structure doctrine can be applied to both constitutional and
statutory provisions.
Coming back to the history of the
Bills, irrespective of the recommendations of Standing Committee, the
Constitutional Amendment Bill was passed by the Rajya Sabha. However, it lapsed
with dissolution of the 15th Lok Sabha. Subsequently, the JAC Bill,
2013 was withdrawn on August 11, 2014.
Later on, on August 11, 2014, the Constitution (121st Amendment)
Bill, 2014 and the National Judicial Appointments Commission (JAC) Bill, 2014 –
incorporating some of recommendations of Standing Committee – were introduced in
the Rajya Sabha in this regard only. Interestingly, the new set of Bills
prescribes the composition of JAC in the Constitutional Bill only.
Ordinary Statute and Basic Structure Test
Supreme Court faced the issue whether
basic structure doctrine is applicable on statutory provision for the first
time in Indira Gandhi v. Raj Narain. The Court decided by majority (3:1)
that basic structure is applied to determine validity of constitutional
provisions only – not statutory provisions. The judgement was consistently followed
in a catena of cases.[1] Nevertheless,
Supreme Court struck down statutory provisions in L. Chandra Kumar v. Union of India and Indra Sawhney v. Union of India –
Section 28 of Administrative Tribunal Act, 1985 and Sections 3, 4, 6 of Kerala
State Backward Classes (Reservation of Appointments or Post in the Services
under the State) Act, 1995 respectively – on the basis of violation of basic
structure of the Constitution.
Recently, constitution bench in K.T. Plantations & Anr v. State
of Karnataka[2]
has digressed from the
majority opinion in Raj Narain case and
has seconded the dissenting opinion of Beg J. Notably, K.T. Plantations did not
follow the reasoning of Beg J. who – referring to Kelsen’s theory of law
– stated that a law (ordinary statute) being subordinate to grundnorm (basic
structure) cannot go beyond it.[3] On
the other hand, in K.T. Plantations reliance
was placed on two Canadian Supreme Court cases[4]
and it was viewed that “Courts in Canada
exclusively rejected the notion that
only “provisions” of the Constitution can be used to strike down legislation
and comes down squarely in favour of the proposition that the rule of law [as basic
structural imperatives of the Constitution] binds legislatures as well as
governments.”[5]
Conclusion
In sum, it can be safely stated
that what cannot be done directly, cannot be done even indirectly. It is,
therefore, submitted that while prescribing composition of JAC in the
Constitutional Bill, the Parliament acted – though in bona fide manner – but in pursuance
of a bogus fear. Arguably, even ordinary statute can be tested against the
basic structure doctrine.
[1] State
of Karnataka v. Union of India and Anr.,
AIR 1978 SC 68; State of Andhra Pradesh and Ors.
v. McDowell & Co. and ors., AIR 1996 SC 1627; Public
Services Tribunal Bar Association v. State of U.P. and anr., AIR 2003 SC 1115;
Kuldip Nayar v. Union of India, AIR 2006 SC 3127.
[2]
AIR 2011 SC 3430.
[3]
Indira Gandhi v. Raj Narain,
AIR 1975 SC 1590, ¶394 (Beg J).
[4]
In Re: Resolution to Amend the Constitution, (1981) 1 SCR 753; OPSEU v. Ontario,
(A.G.) (1987) 2 SCR 2.
[5]
K.T. Plantations & Anr v.
State of Karnataka, AIR 2011 SC
3430, ¶139.
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