Over the last one week, we have debated the constitutionality of Article 124A of the 99th Amendment, which constitutes the National Judicial Appointments Commission. Let us now consider an equally important provision that the 99th Amendment seeks to insert into the Constitution – Article 124C.

Article 124C authorises the Parliament to “regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.” This is in contrast to the old, un-amended Article 124, which laid out the entire procedure of judicial appointments within the Constitution itself (as interpreted by the Supreme Court in the Second Judges’ Case, 1993 (4) SCC 441). Consequently, under the old regime, the appointment process was part of the constitutional scheme (i.e., contained within the Constitution), and any change in the process of appointments could only be made through a constitutional amendment. The 99th Amendment – which introduces Articles 124A, B and C – is itself evidence of this fact. By contrast, under the new regime, a significant part of the appointments process will be shaped and structured by the Parliament through “regulations” – i.e., through the process of ordinary law-making.

It is well-accepted that Parliament acts in different capacities while amending the Constitution, and while passing ordinary legislation. The former is an exercise of constituent power, while the latter is an exercise of legislative power (Indira Nehru Gandhi vs Raj Narain, 1975 SuppSCC 1). Being a Constitutional amendment, Article 124C is therefore an exercise of Parliament’s constituent power, which delegates the (a significant part of the) procedure for appointment of judges to Parliament exercising its legislative power. Furthermore, Article 124C also authorises Parliament, while acting in exercise of its legislative power, to delegate in turn to an executive authority (the NJAC), the ultimate process of judicial selection. In this essay, I will argue that this form of delegation violates the basic structure of the Constitution by removing the core of the appointments process from the Constitutional scheme, and placing it within reach of ordinary legislation as well as executive action.

Let’s start with a hypothetical. Consider Articles 54 and 55 of the Constitution. Article 54 stipulates that the President shall be elected by an electoral college. Article 55 lays down detailed guidelines for the election, aimed at achieving parity of representation. Suppose that through a constitutional amendment, Parliament was to erase Articles 54 and 55, replace them with a new “Article 54A”, which stated: “Parliament shall regulate the procedure for the appointment of the President of India and such other matters as may be considered necessary by it”. I suspect many of us would find this amendment deeply problematic. To understand why, we need to take a detour through the principle of excessive legislative delegation, and then draw an analogy with Article 124C.

Excessive Delegation: Scope and Principles

The concept of excessive delegation arose in the context of ordinary legislation. In In Re the Delhi Laws Act, AIR 1951 SC 332, a seven-judge bench of the Supreme Court unanimously endorsed the proposition that parliament may not delegate “essential legislative functions” (although the judges differed about the outcome of the case). In his minority opinion (although not on this point), Kania CJI laid out the classic statement of law:

   “When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. These essentials are the characteristics of a legislature by itself… Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency… it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer.” (paragraph 11)

   As all the judges agreed, it was the “essentials” of the legislative function that could not be delegated. While conditional or subordinate legislation, i.e., powers conferred upon the executive that were either designed to give effect to the law, or ascertain facts as a pre-requisite for bringing the legislation into force, were allowed, conferral of “powers of legislation” was not. In Kania J.’s opinion:

     “… the Indian Legislature… could not create another body with the same powers as it has or in other words, efface itself.” (paragraph 17).

According to Justice Kania – citing American scholarship with approval – to survive this test, the “standard must not be too indefinite or general. It may be laid down in broad general terms.” (paragraph 30) The distinction that is crucial to make – as enunciated by Taft C.J. in Hampton and Co. vs United States, 276 U.S. 394 (1928) – is between “the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law.” (paragraph 31)

The dictum in In Re Delhi Laws Act was subsequently refined. Broadly, there are two tests to determine whether legislation suffers from the vice of excessive delegation. The first is the “control test”, which was laid out by Justice Mathew in M.K. Paplah & Sons vs The Excise Commissioner, AIR 1975 SC 1007, where the learned Justice held that:

“[the]… laying of rules before the legislature is control over delegated legislation… the legislature may also retain its control over its delegate by exercising its power of repeal.” (paragraphs 18, 22)

Implicit in Justice Mathew’s formulation is the idea that Parliament must exercise a continuing supervision over the executive while the latter is exercising its delegated legislative powers. This was made explicit by Krishna Iyer J. in Avinder Singh vs State of Punjab, AIR 1979 SC 321, where he observed:

“… even if there be delegation, parliamentary control over delegated legislation should be a living continuity as a constitutional necessity.” (paragraph 12)

The second test is the “functional test”, developed in detail by Justice Khanna in Gwalior Rayon Silk Mfg vs Asst. Commr. Of Sales Tax, AIR 1974 SC 1660. Referring to the American constitutional scholar, Willoughby, Justice Khanna observed:

   “The qualifications to the rule prohibiting the delegation of legislative power… are those which provide that while the real law-making power may not be delegated, a discretionary authority may be granted to executive and administrative authorities : (1) to determine in specific cases when and how the powers legislatively conferred are to be exercised and (2) to establish administrative rules and regulations, binding both upon their subordinates and upon the public, fixing in detail the manner in which the requirements of the statutes are to be met, and the rights therein created to be enjoyed.” (paragraph 24)

He then observed:

“… in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid. In other words, in order to avoid the pure delegation of legislative power by the creation of an administrative agency, the legislature must set limits on such agency’s power and enjoin on it a certain course of procedure and rules of decision in the performance of its function; and, if the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, its attempt to delegate is a nullity.”

The Scope and Nature of Article 124C

What is the relevance of this? I would contend that just as the legislature is not permitted to transfer or abdicate essential legislative functions to the executive, the parliament, in exercising its constituent power, is not permitted to transfer or abdicate its constituent functions to the legislature. This is because such an act would violate two of the basic features of the Constitution – separation of powers and the rule of law – and more specifically, Section 124C also violates the basic feature of judicial independence. Each of these issues will be discussed in the context of Section 124C.

Separation of Powers

It has been repeatedly held by the Supreme Court that the separation of powers is a basic feature of the Constitution. (Kesavananda Bharati vs State of Kerala, AIR 1972 SC 1461; Indira Nehru Gandhi vs Raj Narain) The precise character of the separation of powers in India – which commentators have often classified as a “flexible” separation instead of a “rigid” one – flows from the Constitution. In other words, the structure and allocation of powers between the three wings of State are determined by the Constitutional scheme. Consequently, it is not open to Parliament to transfer powers from one of the wings of State to another, even through a Constitutional amendment (because this would upset the Constitutional scheme of separation of powers).

The contention that Parliament, while acting in exercise of its constituent power of amendment, must respect the institutional structure and arrangement of the separation of powers, was upheld by in Indira Nehru Gandhi vs Raj Narain, in which it was argued that the 39th Amendment, which sought to retrospectively validate Indira Gandhi’s election result and bar it from judicial scrutiny, violated the basic structure. Before the Supreme Court, A.K. Sen, arguing in support of the 39th Amendment, stated:

     “The constituent power is independent of the doctrine of separation of powers. Separation of powers is when the Constitution is framed laying down the distribution of the powers in the different, organs such as the legislative, executive and the judicial power. The constituent power springs as the fountain head and partakes of sovereignty and is the power which creates the organ and distributes the powers. therefore, in a sense the constituent power is all embracing and is at once judicial, executive and legislative, or in a sense super power. The constituent power can also change the system of checks and balances upon which the separation of powers is based.” (paragraph 521)

Ray C.J. agreed with this contention, holding that “the constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign” (paragraph 48). However, Ray C.J. was in the minority on this specific point, and his reasoning has never been followed. In that same case, Justice Khanna observed:

     “A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding.” (paragraph 190)

In addition to Justice Khanna, Justice Beg also held the 39th Amendment to be void for violating the basic feature of the separation of powers, since it sought to concentrate judicial power in the hands of the Parliament (paragraph 690). Two judges out of five, therefore, specifically invalidated a constitutional amendment because it sought to change the separation of powers scheme that flowed from the Constitution.

More recently, in Madras Bar Association vs Union of India (2014 (10) SCC 1), the Supreme Court quoted the following excerpt from the Privy Council decision in Hinds vs The Queen, 1976 All ER (1) 353:

   “What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members… a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.” (paragraph 22)

It is submitted that the logic of Hinds vs The Queen and Madras Bar Association vs Union of India – namely, that converting judicial power to executive power upsets the separation of powers that flows from the Constitution – applies with equal force to parliament converting constituent power to legislative power. By doing this, Parliament grants to itself (functioning as a legislature) the power to change through ordinary law-making what earlier could be changed only through constituent lawmaking. This, naturally, aggrandises the power of the Parliament at the expense of the other branches. The only difference with the more familiar cases in Hinds and Madras Bar Association is that instead of taking power from one of the other co-ordinate branches, the Parliament is taking it away directly from the Constitution. The violation of the basic structure is therefore clear.

In sum: A matter that was regulated by the Constitution (appointment of judges) under the unamended Article 124 cannot, via amendment, be delegated to merely legislative control, as this violates the principle of separation of powers.

     Judicial Independence

Article 124C is not only destructive of the separation of powers more generally, but is also specifically destructive of judicial independence, which has been held to be part of the basic structure (Second Judges Case), and has been admitted to be so by the Respondents in this case. Judicial appointments have also been held to be an essential aspect of judicial independence (Sub-Committee on Judicial Accountability vs Union of India, (1991) 4 SCC 699; Union of India vs Pratibha Bonnerjea, (1995) 6 SCC 765). It is for this reason that the erstwhile Article 124 regulated the system of judicial appointments as part of the constitutional scheme.

However, under the new Articles 124A-B-C regime, the only aspect that is part of the Constitutional scheme is the make-up of the NJAC, in Article 124A. As is evident from the NJAC Act, Article 124C allows the Parliament to make rules with respect to critical issues such as quorum, vote weightage, veto powers, tie-breaks, and even selection criteria for the “two eminent persons”, who constitute one-third of the strength of the NJAC. It is obvious that each of these issues can have a significant impact upon the outcome of the selections process, and taken together, they can change its entire character. For the reasons adduced above, this amounts to a significant delegation of constituent power, and is therefore impermissible.

Article 124C and Excessive Delegation

It might be argued that the delegation in this case is within permissible parametres. Reliance might be placed upon the cases cited above to argue that the policy has been laid out in Article 124A and B, and the goal of C is to simply provide for day-to-day implementation. A quick glance at 124A, B and C reveals, however, that both the functionality test, and the control test, have been violated.

Control

As discussed above, the nub of the control test is there should be ongoing supervision, a “living continuity” of control. This is impossible under the 124A-B-C regime, because the Parliament only acts in its constituent capacity when it is amending the Constitution. The difficulties of putting together super-majorities to amend the Constitution means that this is an infrequent occurrence. Consequently, once 124C has delegated the major questions of appointment to legislative control, without any guidance under 124A or B, it is obvious that supervisory control is impossible.

This position is exacerbated by the fact that after I.R. Coelho vs Union of India ((2007) 2 SCC 1), it is arguable that ordinary legislation is not subject to the basic structure. This leads to a perverse situation, where the only possible form of control – that of approaching the Courts – will be unavailable if Parliament, in pursuance of its authority under Article 124C, frames perverse rules or regulations dealing with the constitution and procedures of the NJAC, which completely undermine the independence of the judiciary, but which Parliament is not barred from doing under 124A-B-C as they stand.

Functionality

As pointed out above, the 124A-B-C scheme, as it stands, leaves huge swathes of discretion, in critical areas, to the Parliament (which, in turn, is further allowed to leave them to the Commission itself). With respect to the workings of the NJAC, these include issues of quorum, voting weightage, tie-breakers, and selection criteria, to name just four. There is no “guidance” provided by the wording of Article 124A, which solely deals with the composition of the NJAC, or 124B, which solely deals with appointment of judges on the basis of ability and integrity. This, therefore, amounts to an impermissibly excessive delegation of an essential constitutional function to the legislature (arguing merely legislative power).

A comparison with the 122nd Amendment Bill to the Constitution, which establishes the GST regime, will make the contrast stark. Section 12 of the Amendment Act establishes the Goods and Services Tax Council, and provides the following details:

1. every member
2. the overall value that the Council must act in accordance with: “the need for a harmonised structure of goods and services tax and for the development of a harmonised national market for goods and services.”
3. the quorum (half)
4. the decision process (in a meeting)
5. the modalities of decision-making (majority of not less than three-fourths of the weighted votes)
6. the principles on which to weigh votes

It is evidence that none of these six crucial issues are present in the 99th Amendment. In fact, as the NJAC Act shows, all these have been left to the Parliament, through the process of ordinary law-making. This, therefore, is not a case of the parent law laying out the vision and encoding it as a legal rule, with only the “gaps” needing to be filled in by the delegate. On the other hand, this is an impermissible substitution of power – from the Constitution (via constituent law-making) to the Parliament (through legislative power).

Conclusion

Article 124C violates the basic structure of the Constitution, and ought to be struck down. By using its constituent power of amendment to draft a provision that delegates what was earlier part of the constitutional scheme to the ordinary legislature, Parliament, in framing Article 124C, has violated the basic feature of the separation of powers. Specifically, it has also violated judicial independence by placing far-reaching powers with regard to the manner and functioning of the NJAC in the hands of the legislature. Drawing an analogy with the rule against non-delegation of essential legislative functions, it can be seen that 124C does not have the safeguard of continuing supervision of the legislature. Furthermore, since Article 124A only provides for the make-up of the NJAC, the Article 124C’s delegation is not merely allowing the legislature to fill in gaps in order to give effect to the constitutional scheme, but effectively amounts to a substitution of constituent power. For all the reasons adduced above, this violates the basic structure.

It is also clear that if Article 124C is struck down, then nothing remains of the 99th Amendment, and the rest of it must go as well. Without Article 124C, all that remains is the Judicial Appointments Commission, without any further details about its functioning. Consequently, Article 124C is not severable from the rest of the 99th Amendment – if the Court decides to invalidate it, it must also strike down the entire Amendment, including Article 124A.

Original author: gautambhatia1988