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Fali Nariman 1
Fali Nariman 1
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RESPONSE TO THE SUBMISSION OF THE
ATTORNEY-GENERAL IN REPLY TO GROUND M(1)
THE WRIT PETITION
I.
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.
2
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BUT in the course of arguments of the Learned
Attorney
submitted
General
that
on
ground
16.6.2015
(M(1)
it
and
was
(orally)
arguments
of
II.
follows:
(i)
145)
The
motion
to
move
the
Bill
adopted;
(ii)
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(iii) On 12th August 2014 suspension was sought under
Rule 3881 of the Lok Sabha Rules (and granted) of
the proviso to Rule 662 proviso of the Rules of
Procedure and Conduct of Business in the Lok
Sabha;
(v)
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(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);
August
2013,
the
Constitution
121 st
5
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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;
1.
First,
assuming
the
Learned
Attorney
Generals
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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
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stood alone if a majority of (4 members) had
recommended X and Y it could not be shot-down
by any negative vote.
since
the
proposed
constitutional
integrated
measure
(or
scheme)
for
necessary
substituted
for
with
recommendation
of
the
the
the
purpose
words
National
were
on
the
Judicial
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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
recommendation
the
of
words
the
on
National
the
Judicial
as
contained
in
Constitution
(99 th
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3.
Although the newly inserted Article 124C read (in
its opening words: Parliament
may, by law
124C)
had
not
been
passed
as
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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)
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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
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to Article 212 referred to in Pandit Sharma
(II)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.
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
4 M.S.M. Sharma vs. Dr. Shree Krishna Sinha, AIR
1960 SC 1186: (1961) 1 SCR 96 (Eight Judges)
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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
5
Parliament, including Bradlaugh , 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
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of 1964)6 concluded thus in paras 40 and 41:
(AIR pp. 762-63)
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
6 AIR 1965 SC 745: (1965) 1 SCR 413 sub nom Keshav
Singh, In re.
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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.
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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;
as
technical
question,
it
is
real question
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(NJAC Bill) much less passing it as an
ordinary Bill without first amending the
constitution
Consequently
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Legislatures) received Presidential assent and
became
law
the
Constitution
then
stood
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the one envisages and provided for in Article
124(2) and Article 217(1).
substituted
the
National
Judicial
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force and effective and had not been replaced till
months later.
ON
THE
EFFECT
OF
UNCONSTITUTIONALITY
(INVALIDITY)