Moot Problem

1. To enable greater participation of the executive branch in the appointment of Judges in the higher judiciary, the Parliament of India has passed the Constitution (One Hundred and Fiftieth Amendment) Act, 2013 (Amendment) to further amend the Constitution of India, along with a new act, the Higher Judiciary (Appointments and Transfer) Act, 2013 (Act) to provide for the composition of the Judicial Appointments Panel (Panel) for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts, its functions, procedure to be followed by it and for matters connected therewith or incidental thereto. Both the acts received presidential assent and entered into force after notification in the official gazette. 2. The Amendment replaces 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 with on the recommendation of the Judicial Appointments Panel as referred to in article 124A, in Article 124 clause 2 (a) of the Constitution, and omits the first proviso thereof. It also inserts a new article, 124A, which provides that there shall be a Judicial Appointments Panel, and further prescribes that the Parliament may, by law, provide for, the composition of the Panel. Necessary changes to the other articles of the Constitution, required in view of the new article, have also been made under the Amendment. While the composition of the Panel has been detailed under the Act, this has not been included under the Amendment.

3. The Act further prescribes that the Panel shall make regulations regarding the procedure for the recommendation, short-listing and appointment of Judges in the higher judiciary. However such regulations shall be laid before each House of the Parliament for thirty days while it is in session so as to enable both the houses to propose and agree upon any modifications to such regulations, and any such modifications shall be without prejudice to the validity of anything previously done under that rule or regulation. It also provides that no act or proceedings of the Panel shall be questioned or shall be invalidated merely on the ground of existence of any vacancy in, or defect in the constitution of, the Panel. Full texts of the aforesaid Amendment and the Act are annexed herewith.

4. In The Bar Association of India v. Union of India, a petition before the Honble Supreme Court of India, the Petitioner, a statutory body representing the legal fraternity, challenged the constitutional validity of the Amendment primarily on the ground that it alters the basic structure of the Constitution, by diminishing the independence of the judiciary. The Petitioner also prayed that the Higher Judiciary Act be struck down as unconstitutional, as consequential relief. The regular bench after framing of the issues opined that the matter involved detailed interpretation of the Constitution which required determination by a bench of a higher number of judges and remitted the matter for consideration before the Chief Justice, who thereafter directed that the matter be placed before a special constitutional bench for final arguments.

5. The Union of India contested the petition on various grounds, one of which was that under the Constitution of India, the Supreme Court has no power to hold an amendment to the Constitution to be unconstitutional, if it was made in accordance with the procedure set out under Article 368. The Union of India argued that the basic structure doctrine as outlined by the Court in its prior judgments rests on a mistaken interpretation of the Constitution and should be overruled, and prayed that the Supreme Court depart from its previous decisions insofar as they are inconsistent with this conclusion. The Union of India also argued that the Amendment was made in accordance with the procedure set out under Article 368 and that it does not alter the basic structure of the Constitution. The Union of India therefore prayed that the constitutional validity of the Amendment and the Act be upheld.

6. In a landmark judgment delivered by the Chief Justice of India speaking for the majority, the special constitutional bench of the Honble Supreme Court allowed the petition after hearing it on merits, thereby setting aside the Amendment, as well as the Act. The majority opinion also stated that the basic structure doctrine is deeply entrenched in the jurisprudence of the Constitution of India, and we are not about to reverse it now.

7. In the lone dissenting opinion, it was stated that the basic structure doctrine is the most vague and undefined concept in Indian constitutional jurisprudence and that the court has neither defined the basic structure nor has it given any tests to determine the basic structure; it has just given certain instances of the basic structure and has always provided that the list is not exhaustive. It further added that in its previous decisions, this court not only incorrectly interpreted Articles 124(2) and 217(1) of the Constitution with respect to the meaning of consultation as concurrence, but also erred while holding that the consultation with the Chief Justice of India refers to a collegium consisting of the Chief Justice and two or four Judges, as the case may be, thereby leading to the creation of the Memorandum of Procedure which laid down the process followed for appointment of Judges to the High Courts and the Supreme Court, prior to enactment of the Amendment and the Act. 8. Aggrieved by the above judgment of the Honble Supreme Court of India, the Union of India has now appealed to the Moot Court primarily on the grounds that the Supreme Court has no power to hold an amendment to the Constitution to be invalid, if it was made in

accordance with the procedure set out in Article 368, and that the Amendment does not alter the basic structure of the Constitution. The Respondent asks the Moot Court to affirm the decision of the Supreme Court. The matter is now listed for final arguments. *** Notes: The Moot Court has the jurisdiction to hear appeals from decisions of the Honble Supreme Court of India. In hearing such an appeal, the Moot Court can depart from precedents of the Supreme Court of India where it would be lawful for the Supreme Court itself to do so. The Moot Court will decide the case in accordance with the law of India as it existed on September 21, 2013. Locus Standi of the Petitioner is not under challenge.

THE CONSTITUTION (ONE HUNDRED AND FIFTIETH AMENDMENT) ACT 2013 An act further to amend the Constitution of India BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows: 1. (1) This Act may be called the Constitution (One Hundred and Fiftieth Amendment) Act 2013 Act, 2013. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 2. In article 124 of the Constitution, in clause (2),(a) the words on the recommendation of the Judicial Appointments Panel as referred to in article 124A shall substitute and replace 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; (b) the first proviso shall be omitted; (c) in the second proviso, for the words Provided further that, the words Provided that shall be substituted. 3. After article 124 of the Constitution, the following article shall be inserted, namely: 124A (1) There shall be a Panel to be known as the Judicial Appointments Panel. (2) Parliament may, by law, provide for(a) the composition of the Panel; (b) the appointment, qualifications, conditions of service and tenure of office of the Chairperson and other members of the Panel; (c) the functions of the Panel; (d) the procedure to be followed by the Panel in discharge of its functions; (e) the manner of selection of persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts; and (f) such other matters as may be considered necessary.

4. In article 217 of the Constitution, in clause (1), for the portion beginning with the words after consultation and ending with the words the High Court, the words on the recommendation of the Judicial Appointments Panel referred to in article 124A shall be substituted. 5. In article 222 of the Constitution, in clause (1), for the words after consultation with the Chief Justice of India, the words on the recommendation of the

Judicial Appointments Panel referred to in article 124A shall be substituted. 6. In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted.

HIGHER

JUDICIARY

(APPOINTMENTS

AND

TRANSFER)

ACT

2013

An act to provide for the composition of the Judicial Appointments Panel for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts, its functions, procedure to be followed by it and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:- 1. (1) This Act may be called the Higher Judiciary (Appointments and Transfer) Act, 2013. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 2. In this Act, unless the context otherwise requires,(a) Chairperson means the Chairperson of the Judicial Appointments Panel referred to under this act; (b) Panel means the Judicial Appointments Panel referred to under this act; (c) Member means a Member of the Panel and includes its Chairperson; (d) prescribed means prescribed by the rules made under this Act; (e) regulations means the regulations made by the Panel under this Act.

3. (1) The Judicial Appointments Panel, referred to in clause (1) of article 124A of the Constitution, shall consist of(a) The Chief Justice of India, Chairperson, ex officio; (b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority Members, ex officio; (c) The Union Minister in charge of Law and Justice-Member, ex officio; (d) One representative of the legal profession; (e) two eminent persons, to be nominated by the collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People-Members, provided that such eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination. (2) The Secretary to the Government of India in the Department of Justice shall be the convener of the Panel. 4. It shall be the duty of the Panel to recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High

Courts; to recommend transfer of Chief Justices of High Courts and the Judges of High Courts from one High Court to any other High Court; and to ensure that the person recommended is of ability, integrity and standing in the legal profession. 5. In case of appointment of Judge of a High Court, the views of the Governor and the Chief Minister of the concerned State as also of the Chief Justice of High Court shall be elicited in writing in accordance with the procedure as may be specified by regulations made by the Panel. 6. The Central Government shall, two months prior to the date of occurrence of any vacancy by reason of completion of the term of Judge of the Supreme Court and a High Court, and within a period of two months from the date of occurrence of any vacancy by reason of death, resignation of the Judge of the Supreme Court and a High Court, make a reference to the Panel for filling up the vacancies. 7. (1) The Convenor of the Panel shall initiate the process of selection by inviting recommendations from the Chief Justices of High Courts, the Central & State Governments in respect of candidates fulfilling the eligibility criteria. (2) The Panel may, by regulations, specify the procedure for short-listing of candidates for considering their appointment as Judges to the Supreme Court or a High Court, as the case may be. (3) The recommendations made by the Panel shall be taken by a vote of majority. 8. The Panel shall meet at such time and place as the Chairperson may decide, and the Panel shall have the power to specify, by regulations, the procedure for the discharge of its functions under the Act. 9. No act or proceedings of the Panel shall be questioned or shall be invalidated merely on the ground of existence of any vacancy in, or defect in the Constitution of, the Panel. 10. The Panel may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder to carry out the provisions of this Act, and without prejudice to the generality of the foregoing power, such regulations may provide for matters, including, the procedure for recommendation with respect to appointment of Judge of a High Court; the procedure for short-listing of candidates for considering their appointment as Judges of the Supreme Court; the procedure for short-listing of candidates for considering their appointment as Judges of the High Court; and the procedure to be followed by the Panel in discharging of its functions under this act.

11. Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification to the rule or regulation or both Houses agree that the rule or regulation should not be made, such rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; however, any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.