(In the previous essay, I had argued that Article 124C should be struck down, because it violates the separation of powers and the independence of the judiciary, both of which are part of the basic structure. In this essay, Vishwajith Sadananda and Malavika Prasad respond to that claim, arguing that 124C is entirely constitutional).

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The charge against Art. 124C is that the Parliament has abdicated its constituent powers, by delegating those powers to the legislature, i.e. the Parliament in its legislative capacity, and that such excessive delegation violates the principle of separation of powers. To contest this proposition, we argue that first, the nature of amending power itself requires it to be sovereign, and thus superior to the legislative, executive and judicial powers, and second, that separation of powers cannot possibly apply in the context of a power that is subordinate to another.

While Ray C.J. may have been on the minority on the specific point that constituent power is sovereign, in that it is “independent of the doctrine of separation of powers” (paragraph 48, Indira Nehru Gandhi vs Raj Narain), the proposition is not alien to our understanding of constituent amending power today. After Keshavananda and Indira Gandhi, the constituent amending power is only subject to the basic structure doctrine. In other words, an exercise of constituent amending power is not plenary or “sovereign”, akin to the constituent power to constitute a sovereign. This is because, while wielding constituent power to frame the constitution, the framers are bound by no constitutional constraints; they wield a sovereignty by which they validate the constitution (call this ‘original sovereignty’). This sovereignty is external in a manner of speaking, having been arrogated by the constituent body to itself, rather than conferred by a superior or sovereign authority or instrument. Necessarily then, it cannot be subject to any fetters, there being no fettering authority or instrument. This sovereign has plenary powers to author new political systems, forms of governance and a constitutive instrument.

Once constituted however, the political essence of the Constitution so created forms the basic structure of the Constitution. The basic structure can thus only be altered by an institution vested with ‘original sovereignty’, since it would amount to authoring a new political form. Since the constituent amending power finds its origin in Constitution of India, and since a power originating from an instrument cannot possibly be larger than the instrument creating it, even at its widest exercise, amending power under Art. 368 is inherently limited in extent, compared with the constituent power to frame a constitution. These constraints are neither externally imposed nor implied into constituent power. These constraints are the basic structure, as we understand it today.

The legislative, executive and judicial powers, akin to the constituent amending power, are powers that were created by an exercise of sovereign, plenary constituent power. To that extent, the legislative, executive and judicial powers can also be exercised only subject to the Constitution. However, it would be incorrect to suggest a likeness on all fronts, between these three powers and the constituent amending power. Constituent amending power is still the superior power in that an exercise of amending power under Article 368 can widen or constrict the extent or fields of judicial, executive or legislative power vesting in the wings of the State, so long as the basic structure is not destroyed. Consider, for instance, the amendments that have introduced whole new entries into List I of the Seventh Schedule (Entry 2A, and amended Entry 63 etc.), thereby significantly expanding the fields in which the Parliament is competent to legislate. It is this recognition of the superiority of the constituent amending power that underlies the impermissibility of conflating Parliament’s power under Art. 368 with its power under Art. 245.

It is also this superiority of the constituent amending power that impelled the Court in Indira Gandhi to prevent the amending power from being used to carry out judicial acts (as Art. 329A(4) sought to), such as voiding judgments and orders of Courts. The reasoning was not rooted in impermissibly upsetting the separation of powers vertically, between the constituent amending power and judicial power, by way of “delegation”. It was based in the impermissibility of divesting the High Court of its judicial powers, and then, worse still, not conferring that jurisdiction upon any other Court. (Para 201, Khanna’s judgment in Indira Gandhi), thus taking away the right to a free and fair election, and the remedy to challenge it (para 206). The right to a free and fair election was central to the democratic form of government, that is a part of our basic structure.

The logic of Hinds vs The Queen and Madras Bar Association vs Union of India, that converting judicial power to executive power upsets the separation of powers, would apply with equal force to conversion of constituent power to legislative power only if there existed a separation of powers vertically. There cannot possibly be a separation of powers (whether rigid or flexible) vertically, between constituent amending power and the three powers subordinate to it, as such separation is antithetical to the very power to amend. The power of amendment is only subject to the basic structure doctrine. Outside of the constraints posed by the basic structure, the power of amendment is plenary. Until we evolve a norm that constitutionalises the separation of powers vertically, between the amending power and other powers, and that too, to the extent that it becomes part of the basic structure of the Constitution, the prevalent understanding of the principle, as between the three equally situated powers cannot be sought to be pressed in force here.

Independence of the Judiciary

Art. 124C is next assailed on the ground that empowering the Parliament to enact laws on the procedure of appointments disturbs the independence of the judiciary. Article 124C which reads as follows:

“124C. Parliament may, by law, 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.”

Art. 124C must be viewed in the context of the provisions that empower the Parliament to enact laws generally: Articles 245 (which begins with the words “Subject to the provisions of this Constitution…”) and Article 246. The source of the power of the Parliament is thus the Constitution itself, and the amendment is not, and cannot, confer any new or additional powers. In exercise of the powers vested in it, the Parliament can enact laws in the fields enumerated in the Seventh Schedule; in this specific case, the Parliament is allowed the breadth of Entry 77 of List I. Thus, exercise of power under Art. 124C cannot possibly result in damage to the basic structure that is irremediable, being effected by way of a legislation, given that both the power to legislate as well as the fields of legislation were in the Constitution to begin with. Any argument that Article 124C could enable the Parliament to effectively undo the independence of judiciary is necessarily premised on the assumption that Articles 245-246 read with Entry 77 of List I are incapable, in and of themselves, to ensure the independence of the judiciary. Such a proposition obviously cannot be countenanced, as provisions of the Constitution cannot possibly be unconstitutional, for being destructive of the basic structure.

It is an interesting and noteworthy aside, that under the collegium system, the manner of appointments was in fact determined by two executive memorandums- the “Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court” and the “Memorandum Showing the Procedure for Appointment and Transfer of the Chief Justices of India and Judges of the High Court”, which are extra-constitutional instruments.

As for the claim that Article 124C violates the independence of the judiciary, the true nature of judicial independence under the Indian Constitution cannot be lost sight of. In India, in the context of separation of powers, we follow a system of checks and balances, with each wing ensuring that power does not get concentrated in the hands of the other wings.

At this juncture, it would be apt to revisit the constitutional debates on the question of separation of the judiciary from the legislature and its impact on judicial independence. On 23rd May 1949, KT Shah introduced an amendment which mandated the separation of the judiciary and the legislature on the grounds of preserving judicial independence. In reply to the introduction of the said amendment, KK Munshi was of the view:

“: …We have invested the Judiciary with as much independence as is possessed by the Privy Council in England and to large extent, by the Supreme Court of America; but any water-tight compartments of powers have been rejected. That is with regard to separation of powers.

As regards the question of the independence of the Judiciary, which my Friend Professor Shah emphasised, ample care has been taken in this Chapter that the judicial system in India under this Constitution should be an integrated system, and that it should be independent of the Executive in so far as it could be in a modern State. The House will see as it proceeds to deal with this Chapter that once a Judge is appointed, his remuneration and allowances etc. remain constant. Further he is not removable except under certain conditions like a two-thirds majority of the two Houses… These are considered sufficient guarantees of the independence of the Judiciary throughout those countries which have adopted England as the model. These safe guards are there.”

Subsequently, the amendment was negatived.

Under our constitutional scheme, the judiciary has never traditionally been completely free from Parliamentary supervision. For example, the salaries of judges are governed by a law passed by the Parliament under Article 125. The impeachment of judges of the Supreme Court, under Article 124(5), is also governed by a law passed by the Parliament. It goes without saying that both these aspects have always been considered to have a central role in ensuring the independence of the judiciary, world over.

As one of us has argued before on this blog, the amendment will have to be tested on the basis of the degree or extent to which the independence of the judiciary is disturbed. From our analysis above, it becomes evident that Article 124C does not eviscerate the independence of the judiciary but only subjects it to Parliamentary supervision, in tune with our constitutional tradition.

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(Disclosure: Vishwajith has been involved in assisting the Union of India in this case)

Original author: gautambhatia1988