(With the NJAC hearings winding down, we will be covering the issues extensively on this blog. To kick things off, Vasujith Ram responds to Sarangan Rajeshkumar’s essay on the question of the revival of the collegium, should the Supreme Court strike down the 99th Amendment)

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In a post published a couple of weeks ago, Mr. Sarangan Rajeshkumar has argued that the collegium will revive if the 99th Constitutional Amendment (establishing the National Judicial Appointments Commission) is struck down. In this post, I will contend that the question of revival in case of constitutional amendments being struck down is one that will have to argued and adjudicated – in other words, it is not a settled position in constitutional law that the original provision will revive if the constitutional amendment is declared as unconstitutional.

Mr. Rajeshkumar opines, in the context of the Property Owners’ Association case: “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 […] Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.” (Emphasis supplied)

It would to useful to lay down the history of litigation in the Property Owners’ Association case. In the said case, the primary issue before the Court was the constitutional validity of an amendment to the Maharashtra Housing and Area Development Act, 1976. The statutory amendment sought to attract the protection of Article 31-C, which, according to the State, bars any constitutional challenge on grounds of Article 14 or 19 if the statute has been enacted in furtherance of Articles 39(b) or 39(c).

Vide the 42nd Amendment the constitutional protection hitherto given to laws giving effect to Articles 39(b) or 39(c), was expanded to laws in furtherance of any or all principles enshrined in Part IV of the Constitution. In Minerva Mills v Union of India, the said part of the 42nd Amendment was declared unconstitutional. Minerva Mills, and later Waman Rao v Union of India as well as Sanjeev Coke Manufacturing v. Bharat Coking Coal were adjudicated on the assumption that the original Article 31-C stood revived.

Counsel for the petitioner in Property Owners’ Association case, Mr. F Nariman, contended that it was never argued in any of the above cases (including Waman Rao and Sanjeev Coke) whether the doctrine of revival would apply in case of unconstitutional constitutional amendments. Rather, he contended, the cases proceeded on the assumption that Article 31-C spontaneously revives. The three judge bench hearing the case agreed with Mr. Nariman. Opining that the question of revival in the context of unconstitutional constitutional amendments “did not arise for consideration in any of the those decisions which were rendered on a certain premise as indicated therein, which assumption is now seriously challenged…, the bench decided to place the matter before the Chief Justice for referral to a larger bench of not less than five judges.

The constituted five judge bench inexplicably did not deal with this question at all; instead it took up an entirely different question of interpretation of Article 39(b). It decided to refer the question to a larger bench. The constituted seven judge bench referred the matter of interpretation of Article 39(b) to nine judge bench (2013) 7 SCC 522.) The nine judge bench has so far not been constituted.

Thus question of revival of the original article post the declaration of unconstitutionality of the amendment still remains contested, without argument or adjudication. This has been clearly delineated by the three judge bench.

Cases such as Rashtriya Mill Mazdoor Sangh and Basantibai Mohanlal Khetan, which have been cited, are similar to Waman Rao and Sanjeev Coke: they proceed on the assumption that Article 31-C stands revived. The quoted portion from Mohanlal Khetan in the original post highlights the same: “Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala […] and Minerva Mills Ltd & Ors. v. Union of India & Ors. […], Article 31C reads as…” (Emphasis supplied). This is precisely what Mr. Nariman argued, leading to the Court holding that these cases proceeded on an assumption of revival, and that the doctrine would have to be argued and adjudicated (since it was contested for the first time in this case).

In the Bombay High Court case of Qucxova Cundo, has been cited. The Bombay High Court holds: “Even after Property Owners Association case, in the large number of cases set out in para 34 above, the Supreme Court has upheld the validity of the Legislation under consideration on the basis of unamended Article 31-C…” Only one case in the said para 34 (Rashtriya Mill Mazdoor Sangh, a two judge bench decision) was decided after Property Owners’ Association, the rest were decided before. In all these cases, the same logic (accepted by the three judge bench) applies: the cases were decided on the assumption of revival; the point was never contested before the Court.

My point is not to argue that the doctrine of revival will not apply to constitutional amendments. My limited argument is to the effect that we have no precedent to support this position. Moreover, since the doctrine of revival has been contested in this case it is appropriate that is argued and adjudicated.

(Vasujith Ram is a student at NUJS, Kolkata)

Original author: gautambhatia1988