(We are continuing our coverage of the key issues in the NJAC litigation. In this guest post, Saranagan Rajeshkumar argues that were the Supreme Court to strike down the 99th Amendment, the Collegium would revive).

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Over the past week, most individuals involved in this debate seem to be of the opinion that if the Supreme Court proceeds to strike down the 99th Amendment Act the country will then face a void, where there will be no process for appointment of judges to the higher judiciary. Even the Union, in its submissions, seems to be of this opinion. This is because the collegium system of judicial appointments is an institution fashioned by the Supreme Court based on its construction of the phrase “consultation with such of the Judges of the Supreme Court and of the High Courts” under Article 124. Thus the Union believes that if these words are removed from the constitution, then even in the case the amending act is struck down, the words themselves will not revive.  However, this is far removed from the actual position of law.

It is true that when it comes to ordinary statutes, a repeal of the statute would mean that the statute had never existed in the first place. Thus, in the context of an amendment – since it involves the repeal of the earlier provision of law and then the enactment of a new one – when an amending act is struck down the pre-amendment version of the act will not revive. However, there are three exceptions to this rule, collectively known as the “doctrine of revival”.

Firstly, when an act is struck down for want of legislative competence(such as when it is not of a subject mentioned in the relevant constitutional list) then the amending act itself is deemed to be ‘still-born’. The implication of this is that the amending act itself is held to have never been in existence, thus reviving the old act.  The second exception is invoked when an act is struck down as being violative of one of the fundamental rights under the constitution. The result, again, is that the act, as it stood prior to the amendment, will revive. These exceptions have been clearly laid down by the Supreme Court in the case of State of Tamil Nadu v Shyam Sunder.

“Thus, the law on the issues stands crystallized that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be un-enforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise.”

The third exception, however, is something which is yet to come up before the Supreme Court and has till date only been addressed by the High Court of Madhya Pradesh in its decision in Sharique Ali v State of Madhya Pradesh. In this case, the court held “any law that corrodes the basic essence of the Constitution cannot be regarded as a good law and when the same is struck down the original provision rises like phoenix and the doctrine of revival gets attracted”. Therefore, even when an amending act is violative of the basic structure of the constitution, and not any specific provision, it must be held to have never been in existence, thus reviving the old law. It is this test of the basic structure, which will be employed in deciding the constitutionality of the NJAC. Thus, if the NJAC is struck down as being violative of the basic structure, then Article 124 of the Constitution as it stood prior to the NJAC amendment should revive and the collegium should also be restored as well.

Admittedly, these three exceptions were laid down in the context of ordinary statutes and not that of constitutional amendments. Ordinarily it is true that statutes must be treated on a different footing as compared to constitutional amendments, such as for the purpose of Article 13. But this is because, as the Supreme Court has held, amendments are made in exercise of constituent power, while laws are made in exercise of legislative power. The difference in the kind of power that the parliament exercises will have no bearing upon the doctrine of revival. Consequently, the logic that an act that violates the Constitution is still-born, should apply with equal force to an amendment that violates the basic structure.

Nonetheless, the applicability of the doctrine of revival to constitutional amendments, as opposed to ordinary laws, has never been conclusively pronounced by the Supreme Court. This question was to be decided in the case of Property Owners Association vState of Maharashtra, which was then referred to a 9-judge bench of the Supreme Court. The 9-judge bench is yet to hear the case. In this case, the question that was to be decided was whether subsequent to the case of Minerva Mills v Union of India, which struck down parts of Article 31C of the Constitution, the un-amended Article 31C would be revived?

However, a closer look at the order of the lower bench would reveal that the only issue that has in fact been referred to a larger bench is only the interpretation of Articles 39(b) and 39(c) and not the question of applicability of the doctrine of revival. Since the case concerned an exception under the constitution under Article 31C, given to statutes passed pursuant to Articles 39(b) and (c), the question of interpretation of the two articles would be irrelevant if the doctrine of revival did not apply. Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.

The implication of this is that the Supreme Court, in the case at hand, will not be prevented from deciding on the revival of the Collegium since the referral 9-judge bench is not on a similar question.

It must be noted that even prior to Property Owners Association, in the case of Rashtriya Mill Mazdoor Sangh v Union of India and in State of Maharashtra v Basantibai Mohanlal Khetan, the Supreme Court, by applying the un-amended Article 31C, had implicitly accepted its revival. In fact, in the later case, it was stated:

” Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. S.C.R. 1. and Minerva Mills Ltd & Ors. v. Union of India & Ors. [1981] 1 S.C.R. 206, Article 31C reads as “notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 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 Article 14 or Article 19.”

Considering that Minerva Mills was the case that struck down the amended 31C, this paragraph provides strong support to the doctrine of revival.

These decisions were of particular relevance in the case of Shri Qucxova Sinal Cundov Union of India, where the Bombay High Court, considering that the Supreme Court had upheld the validity of un-amended Article 31C, held that the High Court would have no option but to accept the same as binding. The Court held that despite the existence of the common law rule that the striking down of an amending act would not revive the old law, un-amended Article 31C must be considered valid.

Thus, if the logic which upholds the validity of un-amended Article 31C were to be extended to Article 124, then even if the court were to strike down the validity of the 99th Amendment Act, the old Article 124 would be revived and along with it the collegium.

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(Sarangan is a third-year student at NLSIU Bangalore)

Original author: gautambhatia1988