(In the final substantive essay of our two-week long debate on the NJAC, Professor Sanjay Jain examines the issue of revival from a jurisprudential perspective.

A round-up post will follow tomorrow)

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The question as to whether the doctrine of revival can be applied to deal with unconstitutional constitutional amendments is still res-integra. This question does not only involve the relationship between legislature and judiciary, but it also has a bearing on the doctrine of separation of powers. In terms of Hartian jurisprudence, this debate can be characterized as involving the clash between rule of adjudication and rule of change.

Can the judiciary, by resorting to the rule of adjudication, unilaterally effect a change in the law, in the absence of participation from legislature via the rule of change? In my submission, the position in India is extremely inconsistent. Let me illustrate. In Minerva mills, Supreme Court declared the 42nd amendment of the Constitution, that extended immunity to laws promoting all directive principles against the challenge of violation of fundamental rights guaranteed by articles 13,14, 19 and 21 to be unconstitutional and it confined the scope of the immunity to the promotion of articles 39 (b) & (c).

What is the reality now? Look at the text of the constitution. It shows that legislature has not taken cognizance of this decision and that the language of article 31C is the same as it was after the 42nd amendment and prior to the Minerva mills judgment. In other words, the legislature has not translated the law laid down in Minerva in article 31C. Nevertheless, it is argued in some quarters that, with the decision of Minerva, amended article 31C was voided and pre-amended article 31 C got revived. But this is far from clear. The Court has not conclusively dealt with the doctrine of revival. Besides, the impact of the amendment in the Constitution made by the parliament, on the pre-amended text is also to be examined. Is it possible to argue that by resorting to rule of adjudication, court both invalidated the amendment and revived the earlier text? Would it not amount to arrogation of legislative power by the court unto itself? One possible answer to these questions may be that, the court has not revived the pre-amended text, rather it has merely adhered to the interpretation of Article 31C placed on it by 13 Judge Bench of Supreme Court in Kesavananda Bharthi case. This argument can be defended on the rationale that the width of the powers of parliament is not absolute and is subject to constitutional limitations including that of basic structure and hence any exercise of power exceeding this limitation is non-est and would not have any impact on the previous interpretation of the court. Going by this logic, since the exercise of power in amending article 31C by way of the 42nd amendment was infructuous, there is no question of any revival and the old law (i.e. pre-amendment law) would govern the field.

Let us analyze whether the same logic would govern the case of the 99th amendment of the Constitution and NJAC Act.

In order to deal with this issue, it has to be first ascertained whether the analogy between article 31C and articles 124A, B, and C of the 99th Amendment, and the NJAC Act, is appropriate. It is possible to argue that the analogy is misplaced because in a Hohfeldian sense, article 31C is merely an immunity-conferring provision. As a consequence of this provision, the parliament and the state legislatures have only acquired immunity for some of their actions against a challenge based on certain fundamental rights; whereas after the 99th amendment, Article 124A, B and C along with NJAC act has resulted in the creation of a set of complex and radically different power conferring rules. It has not only nullified the collegium system, which was read into article 124 by way of interpretation in Judges 2 and 3 cases by the Supreme Court, but it has also introduced an entirely new machinery to appoint new judges. Thus, upon a bare perusal of these provisions, it is evident that Articles 124A, B, C and NJAC Act are a set of power conferring rules and have made qualitative changes in the constitutional process of appointment of judges. Indeed these changes are both procedural and substantive. More importantly, the NJAC act by introducing a national Judicial Appointments Commission, has not only discarded the collegium system all together, but through this enactment, the parliament has also seriously eroded the judicial domination in the process of appointment of judges by doing away with the element of judicial primacy in case of difference of opinion between the members of the newly created NJAC. In such a scenario, it would be stretching the imagination to imply that upon voiding of 99th amendment and NJAC Act, the pre-amendment law would revive. As a matter of fact, pre amendment law died with the parliamentary enactment of 99th amendment and NJAC act. Although the court has the power by way of judicial review to invalidate any constitutional amendments and legislations alike, from where would it derive the power to fill the vacuum created by the void as a result of its own decision?

However, it is an altogether different ball game when it comes to Article 31C. Article 31C did not create any new machinery, nor did it provide any additional powers to the parliament or state legislatures. It merely made the exercise of legislative power for promotion of certain directive principles immune from the challenge of certain fundamental rights. As a result, if Article 31C is struck down, it would only result in doing away with the immunity provided to the parliament and state legislatures against the challenge of certain fundamental rights in respect of exercise of legislative power by them to promote certain directive principles. Thus, it would neither discount the powers of the legislature nor, would it do away with any machinery. This is in sharp contrast with the voiding of Articles 124A, B, C and NJAC act which would not only result in doing away with the existing machinery but, would also take away the legislative powers of the parliament. On the other hand, even in the absence of Article 31C, a mere immunity, parliament and state legislatures would still be able to promote directive principles by making laws in the light of explicit mandate of Article 37 of the Constitution of India; whereas, it would become impossible for the state to make appointment of judges in absence of any machinery as the existing machinery would have been voided by the court and machinery prior to the present amendment, has already been done away with by the amending body and parliament, by way of amendment and NJAC act. This would be a case of constitutional vacuum vis-à-vis appointment of judges.

However, it is equally possible to argue against the so called constitutional vacuum. It is too banal a proposition to dispute the law making authority of the Supreme Court. In numerous cases, including the Vishakha judgment, Supreme Court has evolved guidelines as ad-hoc mechanisms to fill in the legislative void and the present scenario is not any different from the earlier cases. As a custodian of ‘constituent power’ and guardian of ‘basic structure’ of the constitution, it is plausible for the Supreme Court not only to void ‘unconstitutional constitutional amendments’ but also to put in place ad-hoc norms to fill the legislative vacuum resulting from the invalidation of the amendments.

To sum up, it is possible to argue on both sides of the debate, however it would be appropriate if judiciary and legislature collaborate in the deployment of rule of adjudication and rule of change respectively. It would lead to stability if the Supreme Court takes a call on doctrine of revival and parliament clarifies its position on article 31C by making appropriate amendments. Overuse of both, implication and the device of reasoning by analogy, would adversely affect the stability of the legal system and also create room for unwarranted speculations and conjectures. However, till the judiciary and parliament act, the anxiety continues and as observers we have to merely keep on guessing.

Original author: gautambhatia1988