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Why the NJAC legal challenges must fail (for now)

KV Dhananjay: Anti-NJAC PILs are set up for failure
KV Dhananjay: Anti-NJAC PILs are set up for failure
Supreme Court advocate KV Dhananjay argues that the public interest litigations against the National Judicial Appointments Commission (NJAC) bill must fail, at least at this point in time… The Supreme Court is hearing the petitions by Fali Nariman and four others right now.

Imagine this hypothetical conversation:

A”, on behalf of a Patient: Doctor, you have to intervene. You have no idea how sick the patient is.

Doctor: Oh! Really? But where is the patient?

A: We will come to that in a while. You should know that the disease is simply devastating!

Doctor: That will be seen once we have the patient. But, where is the patient?

A: Dear Doctor, you have not the slightest idea that the patient is so badly down with the disease!

Doctor: Look, I cannot treat a description of a disease. I cannot treat a patient unless he is physically brought forth for treatment.

A: (Finally) Well, there is no patient ‘yet’. But…

Doctor: Well then, come back with the patient; when you have a patient who needs to be treated. Remember to bring the patient along. Don’t just come with a mere description of the disease!

The missing patient in the above illustration could be compared, just for effect, to the subject matter of a couple of public interest petitions that have been filed in the Supreme Court against the National Judicial Appointments Commission Bill, 2014 (‘NJAC’, or ‘NJAC Bill’ for short).

Well, I would say that unless a Court intends to seriously undermine the well-established constitutional separation of powers doctrine, it should not entertain any judicial challenge to these two Bills so long as these Bills have not crossed-over to become enforceable statutes.

Background: The Bill’s passage

The NJAC Bill was passed by the Lok Sabha on 13 August 2014 and was passed by the Rajya Sabha on 14 August 2014. That is all. It has not become an enforceable law as yet in this country: the further step of ‘presidential assent’ is yet to be sought or given to it.

Even the giving of a presidential assent would not render this law ‘enforceable’ in view of the fact that this Bill has a commencement clause and it could come into force only from a separately notified date.

It would be for the Government of India to issue such a notification after the presidential assent is secured to this Bill. It is only then that the said Bill would have transformed itself into an enforceable statue and it is such ‘National Judicial Appointments Commission Act’ that could become the proper subject of a judicial challenge.

Background: The Amendment’s passage

Interestingly, the National Judicial Appointments Commission Bill is a legislation that is intended to give effect to a broader Government plan of changing the mode of appointment of judges to the high courts and the Supreme Court. The Constitution that already deals with appointment of judges to the Supreme Court and to the High Courts had never envisaged any such commission in the first place.

So, the Constitution itself had to be first amended before any such Commission could be put into place. The Constitution (One Hundred And Twenty First Amendment) Bill, 2014 (‘Amendment Bill’, for short) was therefore introduced in the Parliament for the purpose of amending certain provisions of the Constitution. What is the current status of this Bill? Again, this too is still at the stage of legislation. Unlike the NJAC Bill, the Amendment Bill invites additional considerations – by reason of being an amendment to the Constitution itself, this Amendment Bill is required to be first passed by three quarters of the membership of both Houses of the Parliament and this has been accomplished. The Lok Sabha passed this Amendment Bill on 13-August-2014 and the Rajya Sabha passed this Amendment Bill on 14-August-2014.

However, because this Amendment Bill seeks to modify certain provisions of the Constitution that deal with the appointment of judges to the Supreme Court and of appointment, elevation and transfer of judges to the High Courts, this Amendment Bill should also be ratified by half of all state legislatures in the country in order to become a valid amendment to the Constitution. Essentially, the Legislatures of not less than fifteen of the twenty nine States must now individually and separately pass a resolution by majority to support this Amendment Bill. This Amendment Bill has not even begun the process of traversing through the State Legislatures as of this day. So, the NJAC Bill that is integrally tied to the passage of this Amendment Bill cannot even be enforced until this Amendment Bill has been first ratified by the Legislatures of at least fifteen States. This is the current status of both the NJAC Bill and the Constitution Amendment Bill. They merely exist on paper and have no potency to bring into effect, the provisions that they embody.

So, whose rights could these Bills possibly affect at this stage?

If this kind of question is not acceptable to some because of the objection that a written Constitution that lays down a definite arrangement as to appointment of judges to the Supreme Court and to the High Courts may not really confer any personal right to any citizen to an extent as to legally allow him to claim that he has a specific right susceptible to injury or invasion, let us ask a slightly different question – “what constitutional arrangement have these Bills actually threatened at this stage”?

A proper answer would be that, “at this stage, these Bills have no legal capacity to threaten anybody’s rights or to derail any constitutional arrangement”. So, how then could these Bills become the subject of any judicial challenge at all, at this stage?

Well, I would say that unless a Court intends to seriously undermine the well-established constitutional separation of powers doctrine, it should not entertain any judicial challenge to these two Bills so long as these Bills have not crossed-over to become enforceable statutes.

In short, one would expect the Supreme Court to summarily dismiss these NJAC PILs on the short ground that they cannot be scrutinised at a stage when they still continue to remain in the legislative process and have not become enforceable statutes.

However, should the Supreme Court want to hear these PILs and would further want the Government of India to defend these Bills, it would have seriously encroached into the realm of legislative processes and would have necessarily infringed ‘parliamentary privileges’ thereby. In doing so, the Supreme Court would have damaged the constitutional fabric of this country in wanting to seriously consider a judicial challenge to mere legislative Bills with full knowledge that it is faced not with any enforceable statute but with an attack on the legislative process itself that has a full constitutional claim to be free from interference by the judicial branch of the Government.

Imminent threat to constitution?

Is there any imminent threat of damage to the Constitution or injury to the rights of any class of citizens merely due to the existence of these legislative Bills?

The answer is obviously in the negative. Further, is there a possibility that once these Bills become the law, there would be an instantaneous diminution in the power of the Supreme Court to entertain a challenge to the constitutionality of these Bills so that the Supreme Court could only entertain a challenge to these Bills while they were still at this stage of Bills and not after these Bills have been enacted into statutes?

In other words, is there anything in these Bills to affect the judicial power of the existing composition of the Supreme Court or of the High Courts?

The answer again, is in the negative. Further, is there any argument that the petitioners in these PILs could only advance while these Bills were only at this stage of the Bills and no such argument could be technically made to the court after these Bills have been enacted into statutes?

The answer is obvious; there is no argument that the petitioners have already made in their PILs that they cannot repeat should they be refused audience now and be asked to return after these Bills have been enacted into binding statutes. When such is the case, it would be very futile to treat these NJAC PILs as urging any serious reason for the Supreme Court to needlessly and unconstitutionally confront the legislative processes itself and to thereby breach and encroach upon protected parliamentary processes.

It is very much necessary for the Supreme Court to dismiss these NJAC PILs in the interest of preserving the comity between the different branches of the Government.


The Parliament must be free and unfettered to conduct its own business without interference from the courts and if its proceedings be interrupted in the manner that these NJAC PILs necessarily seek, the judiciary would have simply exceeded its powers and jurisdiction under the Constitution; the judicial power of the courts though designed to keep the Parliament and the State Legislatures within the bounds of the Constitution is intended to be exercised in a manner without having to interfere in the legislative processes itself.

In other words, while the Parliament is free to do what it pleases and to secure the passage of any Bill that is most dear to its heart or mind, the enforcement of the said statute is not always left to the will of the Parliament as the courts could always interrupt the enforcement of any statute that runs contrary to the Constitution.

The fact that the courts have the power to review legislative and parliamentary outcomes is not the same as saying that courts also have the powers to interrupt or to interfere in legislative and parliamentary processes. The former does not contain the latter and in fact, they are mutually inconsistent when seen against the fact that the Parliament and the State Legislatures under our Constitution have been expressly clothed with ‘parliamentary privileges and protection’.

The Supreme Court of India is, of course, the final interpreter of what the Constitution of India means and says and is also equipped under the constitution with the necessary and incidental powers to block the enforcement of any law that runs contrary to the Constitution that it has the duty to interpret and to preserve.

However, no part of the discharge of the said duty would require the Supreme Court to interrupt the legislative process itself. It would take grave ignorance on the part of a court established under our Constitution to want to interrupt the legislative process under the circumstances that we are discussing here. The power of the Supreme Court to do justice in a case before it is very vast and yet, such power is not under any risk of diminution should the Supreme Court choose to respect parliamentary privileges and not want to interrupt parliamentary processes as sought by these NJAC PILs.

Probable certainty?

It is to be expected that the NJAC PIL petitioners are likely to claim that the passage of these Bills into enforceable statutes is completely certain and that the composition of the different State Legislatures and the make-up of the political parties that command a majority of the State Legislatures should lead to no manner of doubt over these Bills becoming enforceable statutes in a very short period of time.

If only an argument is founded on the principle that it would be premature for the Supreme Court to intervene at a stage when there is simply no certainty of these Bills becoming enforceable statutes at a future point of time, it would be an effective counter argument to say that there is great certainty in these Bills becoming enforceable statutes within a short period of time.

Some courts in overseas jurisdictions have refused to exercise their power to stall legislative processes on the ground that the Bills before them may not even see the light of the day and that judicial power should not be exercised on the assumption that a contingent future event that is yet to happen but may not happen at all would still happen; forestalling future damage is not a good invitation for a court of law to encroach upon legislative processes.

Jurisdictional issue

I must say that such a legal reasoning is quite slippery. If a court would say that it would not interrupt a legislative process by reason of the constitutional protection accorded to such a legislative process, it would simply be immaterial and unnecessary to consider whether the Bill in question would certainly become an enforceable statute at a later point of time. The objection must rest on the non-existence of jurisdiction itself and not on the mere non-desirability of exercise of discretion.

Even if a court could be legally certain and reasonably convinced that the Bill brought before it will become an enforceable statute thereafter, the absence of jurisdiction on the part of that court to interrupt a legislative process would give it no power to say that it would not intervene because of it not reaching any certainty that the Bill could become an enforceable statute.

The question of certainty would only be relevant to the exercise of discretion and would by itself not determine whether there is indeed any jurisdiction at all to intervene in the very first place. Therefore, the certainty that the Bills at hand are very likely to become enforceable statutes in a short period of time would give no power to the Supreme Court to interrupt the legislative processes in these cases.

For the same reason, it would be out of place to argue in opposition that the NJAC PILs are premature also because the President may not even grant assent in the first place and could even suggest suitable changes to the Bills that may be delivered to him for his assent. One is of course, free to hope that the President who has a solemn duty to uphold the Constitution would refuse to assent to these Bills in the first place and may convey his displeasure and suggestions for modification of the Bills as already passed by the Parliament.

However, it would take great ignorance for one to concede to the Supreme Court, the power and jurisdiction to intervene and invalidate these Bills at this stage and then pray to it that the possibility of the President of India still holding the power to not assent should postpone the exercise of such power and jurisdiction. The fact remains, however, that the Supreme Court neither has any such power nor the jurisdiction to so intervene in the very first place.

Declaratory PILs?

Finally, we only need to see that the NJAC PILs essentially seek a declaration that the Bills in question run contrary to the basic structure of the Constitution or that they are opposed to some existing provision of the Constitution. In effect, the NJAC PILs seek a declaration from the Supreme Court that certain provisions of the Bills in question are unconstitutional.

The problem with the seeking or the giving of such a declaration is that any such declaration, by itself, would be without any practical value unless the court could issue a further writ of prohibition upon the very bringing of the said Bills into enforcement or upon the very enforcement of the statutes that emerge therefrom.

It is quite difficult to imagine the serious damage that the Constitution of India would become subject to should these NJAC PILs lead to the issue of such writs by the Supreme Court. The very legitimacy and freedom of the Parliament and of the State Legislatures would have been seriously eroded should the Supreme Court arrogate to itself, the power to decide on the desirability, legality or wisdom of the Parliament or the State Legislatures bringing, deliberating or passing upon any particular Bill.

Though the Court might never intend to traverse as much, should the Court consider an encroachment in the manner invited by these NJAC PILs, it would have been inevitably propelled in that direction. The consequence of the Supreme Court taking upon such power to itself and the result of demonstrating such power would be that the Constitution that we gave to ourselves in 1950 must be taken to have effectively run its course and to have instead led to the coming into existence of an altogether different form of Constitution that was never in the contemplation of those who formulated it. One only has to hope that the seeds of such damage and destruction are not sown by these NJAC PILs.

The NJAC PILs should have their day in Court someday. But, not now; not yet.

KV Dhananjay is an advocate of the Supreme Court of India

Update 12:25: The Supreme Court has declined to entertain the petitions.

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