2\\Kumar\d\d data\cdrive\V.K. 2015\NJAC\Final note page 1 and 2.docxRESPONSE TO THE SUBMISSION OF THE ATTORNEY-GENERAL IN REPLY TO GROUND M(1) THE WRIT PETITION

I.In ground M (1) in the Writ Petition it was stated as follows: (M)GROUNDS of challenge to the National Judicial Appointments Commission Bill No. 96 of 2014 passed by both Houses of Parliament in August 2014 and assented by the President on 31.12.2014 (as the National Judicial Appointments Commission Act 2014).M(1)The National Judicial Appointments Commission Bill No.96C of 2014 was passed by both Houses of Parliament when Parliament had no power, authority or jurisdiction to pass such a Bill in the teeth of Articles 124(2) and 217(1) as enacted in the Constitution of India, 1950. The passing of the said Bill was itself unconstitutional, ultra vires and void and neither the purported ratification by State Legislatures nor the assent of the President could give it any validity.

-In answer, in the (only) affidavit filed by the Union of India (in May 2015) Ground (M1) has not been adverted to.

-BUT in the course of arguments of the Learned Attorney General on 16.6.2015 it was (orally) submitted that ground (M(1) and arguments of Petitioner is support were not only technical but had no substance.

II.The relevant factual position from the record is as follows:

(i)On 11.8.2014 the NJAC Bill No.96 of 2014 was moved by the Minister of Law in the Lok Sabha (page 145) The motion to move the Bill adopted;

(ii)On 11.8.2014 the Law Minister also moved in Lok Sabha that the Constitution 121st Amendment Bill 2014 be taken into consideration;

(iii)On 12th August 2014 suspension was sought under Rule 388[footnoteRef:1] of the Lok Sabha Rules (and granted) of the proviso to Rule 66[footnoteRef:2] proviso of the Rules of Procedure and Conduct of Business in the Lok Sabha; [1: Rule 388 of the Lok Sabha Rules. 388 Any member may, with the consent of the Speaker, move that any rule may be suspended in its application to a particular motion before the House and if the motion is carried the rule in question shall be suspended for the time being. ] [2: : Rule 66 of the Lok Sabha Rules. 66. A Bill, which is dependent wholly or partly upon another Bill pending before the House, may be introduced in the House in anticipation of the passing of the Bill on which it is dependent;Provided that the second Bill shall be taken up for consideration and passed in the House only after the first Bill has been passed by the Houses and assented to by the President. ]

(iv)each of the two Bills were then discussed in the Lok Sabha on 12th and 13th August 2014;

(v)On 13.8.2014, Constitution 121st Amendment Bill, 2014 (as per Rule 158 of Lok Sabha Rules) was on a division passed (316:0) (page 104 of Lok Sabha Debates) and the NJAC Bill was also passed (page 110 of Lok Sabha Debates): on a show of hands;

(vi)On 13th August 2014 the Rajya Sabha that received a message (from the Lok Sabha) of the passing of both the Bills in the Lok Sabha and a copy of each of the Bills as passed by Lok Sabha was laid on the table of the Rajya Sabha (according to rules);

(vii)Discussion on these two Bills took place on 13th and 14th August 2014 in the Rajya Sabha, and on 14th August 2013, the Constitution 121st Amendment Bill on a division was passed with 180 member present voting in favour of its passing with one against (page 267 of Rajya Sabha Debates) and the NJAC Bill.No.96 of 2014 was also passed by the Rajya Sabha (page 375 of Rajya Sabha Debates);

(viii)Neither of the two Bills were then presented to the President for assent since the Constitution (121st Amendment) Bill required ratification under the Proviso to Article 368(1); but after at least one-half of the State Legislatures had ratified the Constitution (121st Amendment) Bill, on 31st August, 2014 both the Constitution Amendment Bill as well as the NJAC Bill were presented to the President and assented to by the President;

(ix)The submission of the Attorney General was that since the Constitution Amendment Bill had been first assented to (which was obvious), followed by the Presidential assent to the NJAC Bill, it must be also assumed that the Constitution stood amended on 31st August, 2014 and the NJAC Bill having then received Presidential assent on the same day it then became law hence the contention of the Petitioners was not only technical but also of no substance.

THE RESPONSE OF THE PETITIONERS TO THE ABOVE SUBMISSION IS AS FOLLOWS:

1. First, assuming the Learned Attorney Generals assumption about sequence of assent by the President to the two Bills be correct as something to be assumed in natural and normal course, it is clear from the recitation of the above events (including the suspension of Rule 66 of the Lok Sabha Rules) that the two Bills were inter-dependent [as had been stated in the forwarding letter of Secretary General of Rajya Sabha to all State Legislatures (Annexure-A)] and as was inherent in the motion made and granted for suspension of the proviso to Rule 66 of the Lok Sabha Rules. It is also apparent that the provisions made in the Constitution (99th Amendment) Act, 2014 (along with the NJAC Act, 2014) (read together) were in substitution of Articles 124(2) and 217(1) of the Constitution as originally enacted in 1950[footnoteRef:3]; and the substitution of words in the two Articles along with insertion of new Article 124A, 124B and 124C was an integral part of the new scheme (expression used in Unions affidavit in reply the provisions of each of the two Acts when enacted comprised a substitution of the provisions of Article 124(2) and 217(1) as they existed on and from 1950. [3: The Amendment and the Act nowhere asserts that it is to operate respectively. ]

In any case the provisions in Section 5 and 6 of the Act relating to veto were not procedural they were substantive since if the constitutional amendment stood alone if a majority of (4 members) had recommended X and Y it could not be shot-down by any negative vote.

2.To submit a truncated part of the new scheme for ratification leaving out the NJAC Act, 2014 was not justified since the proposed constitutional amendment in form and substance consisted of one integrated measure (or scheme) for substitution and insertion for the previously existing provisions contained in Article 124(2) and Article 217(1) respectively viz. in the first of which (Article 124(2)) the words after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose were substituted with the words on the recommendation of the National Judicial Appointments Commission referred to in Article 124A; as also the deletion of the first Proviso to Article 124(2) (viz. provided that in the case of appointment of a Judge other the Chief Justice, the Chief Justice of India shall always be consulted); and in the second of which (Article 217(1)) the words after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court were substituted with the words on the recommendation of the National Judicial Appointments Commission referred to in Article 124A the Constitution amendment having also provided for insertion of Articles 124A, 124B and 124C.

It is submitted that it was the new scheme (in its entirety as contained in Constitution (99th Amendment) Act, 2014 as well as in the NJAC Act, 2014) that had sought to make effective changes in Chapter IV of Part-5 and Chapter V of Part-6 of the Constitution and hence the integrated scheme of substitution (including insertion) not piece-meal but as a whole required ratification under Proviso to Article 368(2), and not having been in its entirety ratified there has been no effective constitutional amendment.

3.Although the newly inserted Article 124C read (in its opening words: Parliament may, by law regulate the procedure for the appointment of ..), in fact as the newly inserted Article 124C stood after assent of the President on 31st December, 2014 it had to be read as: Parliament has by law regulated the procedure for the appointment of .

When so read it is clear that the provisions of the NJAC Act, 2014 were a part and parcel of the new scheme for appointment of Judges of the Higher Judiciary, which having already been enacted as law on 31st December, 2014 and brought into force on and from 13th April, 2015 it could not be operate as a constitutional amendment since: (i) the NJAC Act, (which was the Act mentioned in Article 124C) had not been passed as a constitutional amendment, and (ii) because more importantly) it had not been got ratified by State Legislatures under the Proviso to Article 368(2).

As a result of the above it is respectfully submitted that there has been no effective constitutional amendment by way of substitution (and insertion) since the entire new scheme (especially the law enacted by Parliament with Presidential assent as from 31st December, 2014 was not submitted for ratification nor ratified by State Legislatures under the Proviso to Article 368.

II(i) If the aforesaid submission be not accepted as correct and if it be held that the Constitution (99th Amendment) Act, 2014 is the only new scheme for appointment of Judges in the Higher Judiciary in substitution (with addition) of the old scheme in Article 124(2) and Article 217(1) as originally enacted, then again, the new scheme has not lawfully taken effect since the law (the NJAC Act, 2014) was already passed by both Houses of Parliament in August 2014 at a time when Articles 124(2) and 217(1) were a part of the Constitution (Ground M-1 in the Writ Petition)

(ii)Again with respect to ground M(i) the plea that Article 122(1) of the Constitution was breached and if the plea in ground M-1 is upheld - is based on a misconception.

It is submitted that this Honble Court in the Constitution Bench Decision of Babulal Parate vs. State of Bombay: 1960 (1) SCR 605 (5J) at page 616 has held that Article 122(1) of the Constitution is inapplicable where there is a violation of a constitutional provision. The relevant portion reads as follows: It is advisable, perhaps, to add a few more words about Article 122(1) of the Constitution. Learned counsel for the appellant has posed before us the question as to what would be the effect of that Article if in the Bill, completely unrelated to any of the matters referred to in Clauses (a) to (e) of Article 3, an amendment was to be proposed and accepted changing (for example) the name of a State. We do not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Article 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the present case.

Besides, it has now been held by a Constitution Bench of the Supreme Court of India in Raja Rampal vs. The Speaker: 2007 (3) SCC 184, paras 360-363 as follows: 360. The question of extent of judicial review of parliamentary matters has to be resolved with reference to the provision contained in Article 122(1) that corresponds to Article 212 referred to in Pandit Sharma (II)[footnoteRef:4]. On a plain reading, Article 122(1) prohibits the validity of any proceedings in parliament from being called in question in a court merely on the ground of irregularity of procedure. In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature. But then, procedural irregularity stands in stark contrast to substantive illegality which cannot be found included in the former. We are of the considered view that this specific provision with regard to check on the role of the judicial organ vis-a-vis proceedings in Parliament uses language which is neither vague nor ambiguous and, therefore, must be treated as the constitutional mandate on the subject, rendering unnecessary search for an answer elsewhere or invocation of principles of harmonious construction. [4: M.S.M. Sharma vs. Dr. Shree Krishna Sinha, AIR 1960 SC 1186: (1961) 1 SCR 96 (Eight Judges)]

361. Article 122 corresponds to draft Article 101 which was considered by the Constituent Assembly on 23-05-1949. Though the marginal note of the article, courts not to enquire into proceedings of Parliament clearly indicates the import of the provision contained therein, Mr. H.V. Kamath introduced an amendment that the words in any court be inserted after the words called in question in Clause (1). Answering the debate that had followed, Dr. B.R. Ambedkar intervened and clarified as under: (8 CAD p.200).

The Honourable Dr.B.R. Ambedkar. Sir, with regard to the amendment of Mr. Kamath, I do not think it is necessary, because where can the proceedings of Parlaiment be questioned in a legal manner except in a court? Therefore the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the court. Therefore it is unnecessary to mention the words which Mr. Kamath wants in his amendment.

For the reason I have explained, the only forum where the proceedings can be questioned in a legal manner and legal relief obtained either against the President or the Speaker or any office or Member, being the court, it is unnecessary to specify the forum. Mr. Kamath will see that the marginal note makes it clear.

362. The above indeed was a categorical clarification that Article 122 proceedings. What the provision intended to prohibit thus were cases of interference with internal parliamentary proceedings on the ground of mere procedural irregularity.

363. That the English cases laying down the principle of exclusive cognizance of Parliament, including Bradlaugh[footnoteRef:5], arise out of a jurisdiction controlled by the constitutional principle of sovereignty of Parliament cannot be lost sight of. In contrast, the system of governance in India is founded on norm of supremacy of the Constitution which is fundamental to the existence of the Federal State. Referring to the distinction between a written Federal Constitution founded on the distribution of limited Executive, Legislative and Judicial authority among bodies which are coordinate with and independent of each other on the one hand and the system of governance in England controlled by a sovereign Parliament which has the right to make or unmake any law whatever, this Court in U.P. Assembly case (Special Reference No.1 of 1964)[footnoteRef:6] concluded thus in paras 40 and 41: (AIR pp. 762-63) [5: Bradlaugh v. Gossett, (1884) 12 QBD 271: 53 LJQB 290: 50LT 620.] [6: AIR 1965 SC 745: (1965) 1 SCR 413 sub nom Keshav Singh, In re.]

40. Our legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides the legislative supremacy of our legislatures including Parliament is normally controlled by the provisions contained in Part III of the of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.

41. In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt to true that the Constitution itself can be amended by Parliament, but that is possible because Article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by Parliament in England, cannot be claimed by any legislature in India in the literal sense.

page 371431. We may summarise the principles that can be culled out from the above discussion. They are:(a) .................................................................

(n) Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;

(s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny.

(iii)The reply then to the submission of the Learned Attorney General in what he (erroneously) has described as a technical question, it is respectfully submitted that the real question (howsoever characterised) is:

Whether the National Judicial Appointment Commission Bill No. 96 of 2014 having been passed by Parliament (both Houses) at a time when the Constitution had not yet given authority to Parliament to set up and prescribe by law the procedure for a National Judicial Appointments Commission, the passage of such Bill by Parliament (though assented to by the President was illegal (Article 122(1) being inapplicable to an illegal Act) the NJAC Act 2014 was ultra vires the Constitution: Parliament had no competence or authority to permit introduction of a Bill (NJAC Bill) much less passing it as an ordinary Bill without first amending the constitution

In Saghir Ahmad Vs. State of U.P. (5J) 1955 (1) SCR 708 at page 728 Chief Justice Mukherjea speaking for the Constitution Bench of the Court categorically held that an amendment of the Constitution which came later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed; a statute invalid for unconstitutionality is dead and cannot be vitalized by a subsequent amendment removing the constitutional objection but must be reenacted.

The National Judicial Appointments Commision Bill of 2014 when purportedly passed in August 2014 by Parliament was dead when purportedly passed as being directly opposed to Article 124(2) and Article 217(1) as they then stood. Consequently the NJAC Act, could only be validly enacted after 31st December, 2014 when the Constitution (121st Amendment) Bill, 2014 (after ratification by State Legislatures) received Presidential assent and became law the Constitution then stood amended w.e.f. 31st December, 2014 .

The decision in Saghir Ahmad Vs. State of U.P. (5J) 1955 (1) SCR 708 has been relied on in Deepchand (5J) 1959 Supp. (2) SCR 8 at page 34-35); as also in Mahendra Lal Jaini v. State of U.P. 1963 Supp. 1 SCR 912 (5J) where (in the latter) Justice Wanchoo speaking for the Constitution Bench clearly said:It is in our opinion absolutely elementary that the constitutionality of an Act must be judged on the basis of the Constitution as it was on the date the Act was passed subject to any retrospective amendment of the Constitution.

In Mahendra Lal Jaini the argument that the constitutionality of the Transfer Act had to be judged on the basis of the Constitution as it stood on the date when the writ petition was filed in Court was firmly rejected.

Hence, in the present case despite their togetherness each of the two measures even if considered separately then as submitted in ground M of the Writ Petition, Parliament had no competence to pass the law i.e. the NJAC Act, in August, 2014 since it was totally inconsistent with the Constitutional provisions then existing in the Constitution viz. Article 124(2) and Article 217(1).

It was contended that under Article 122(1) of the Constitution this plea is barred. It is respectfully submitted it is not (see above). Article 122(2) is only limited to procedural irregularities and not an illegality in the passing of the Bill. The passing of the Bill in each of the two Houses are governed by Article 118 that is to say by Rules 93 to 97 of the Lok Sabha and by Rules 109 to 111 (and 121 to 134) of the Rajya Sabha.

The Legislative Bill (the NJAC Bill), 2014 was passed by each of the Houses illegally since so long as Article 124(2) and Article 217(1) remained in the Constitution it was illegal to have a New Scheme of appointments radically different from the one envisages and provided for in Article 124(2) and Article 217(1).

The Constitution (99th Amendment) Act, 2014 which substituted the National Judicial Appointments Commission as the Body to make recommendations to the President in place of the Scheme contained in Article 124(2) and Article 217(1) became law only on 31st December, 2014 after Presidential assent and came into force on the same day on 13th April, 2015 under two Government Notifications.

Consequently, the provisions contained in Section 3 of the Constitution (99th Amendment) Act, 2014 became a part of the Constitution of India only on and from 31st December, 2104 not earlier.

Parliament could not have passed any Legislation in defiance or inconsistent with the Constitution in force on the date when the Legislative Bill got passed. Admittedly on 14th August, 2014 original Articles 124(2) and Article 217(1) remained in full force and effective and had not been replaced till months later.

Consequently the passing of the NJAC Bill, 2014 which became an Act at the earliest on and after 31st December, 2014 was an illegality and cannot be supported in principle or in law.

ON THE EFFECT OF UNCONSTITUTIONALITY (INVALIDITY)

- Once the Court declares a statute unconstitutional it is void from its inception. It is regarded as nonest. Thus the law is ineffectual and nugatory and devoid of any legal force or binding effect (no doctrine of eclipse for revival (p-932)

Mahendra lal Jaini Vs. State of UP 1963 (S1) SCR 912 (5J) 939.