Best Memorial Rakesh Aggarwal Memorial Moot Court Competition 2016 (P)

Memorial for P

BEFORE THE HONOURABLE SUPREME COURT OF VALSTON Writ Jurisdiction In the matter of, The Nation Judicial Appointment Commission Act, 2014 & Articles 14, 19, 21, 32 and Article 50 of the Constitution of Valston

Writ Petition for RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

PETITIONER

RESPONDENT

Supreme Court Advocates on

VERSUS

Union of Valston

Record Association

BEFORE SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HONOURABLE SUPREME COURT OF VALSTON

MEMORAMDUM ON BEHALF OF THE PETITIONER

2

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

1.

LIST OF ABBREVIATION

iii

2.

INDEX OF AUTHORITIES

iv-v

Cases

iv

Reports

v

Statutes

v

Websites

v

3.

STATEMENT OF JURISDICTION

vi

4.

STATEMENT OF FACTS

vii

5.

ARGUEMENTS PRESENTED

viii

6.

SUMMARY OF ARGUEMENTS

ix

7.

ARGUEMENTS ADVANCED

1-21

1.

WHETHER OR NOT THE PARLIAMENT HAS THE POWER TO AMEND THE CONSTITUTION? 1-5

a. That the Intention of Drafters was clear on separation of powers and laws regarding it b. That 2nd , 3rd and 4th Judges case also has to be taken into consideration c. That the parliament has transcended the ambit of legislative power

1-3 3-4 4-5

2. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 TRANSGRESS THE BASIC STRUCTURE OF THE CONSTITUTION? 6-11 a. Basic Structure Doctrine 7 b. That the amendment takes away the power of judicial review thereby violating the basic structure 8 c. That Independence of Judiciary forms a part of the basic structure of constitution 8-10 d. International Standards

10-11

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

3. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 ULTRA VIRES THE CONSTITUTION?

12-21

a. That excessive power has been delegated to the Parliament via the NJAC Act 12-17 b. That the present Amendment and NJAC Act is arbitrary 17-20 c. That the present amendment and Act suffers from the vice of vagueness 20-21 8.

PRAYER

22

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

LIST OF ABBREVIATIONS A.I.R.

All India Reporter

A.P.

Andhra Pradesh

Art.

Article

Assn.

Association

Cl.

Clause

Const.

Constitution

Civ.

Civil

Cri.

Criminal

Ed.

Edition

E.M.L.R.

Entertainment and Media Law Reports (UK)

E.W.C.A.

The court of Appeal of England and Wales

E.W.H.C.

High Court of England and Wales

E.C.H.R.

European Court of Human Rights

Hon’ble

Honourable

Ltd.

Limited

M.P.

Madhya Pradesh

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.J.

Supreme Court Journal

S.C.R.

Supreme Court Reports

V.

Versus

W.B.

West Bengal

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

INDEX OF AUTHORITIES CASES 1. A.K. Kraipak v. Union of India, A.I.R. 1970 S.C. 150.-------------------------------------17 2. All India Judges’ Association and Ors. v. Union of India and Ors. (1993) 4 SCC 288---8 3. Central Public Information Officer, Supreme Court of India v. Subhash Chandra Aggrawal (2011) 1 SCC 496.---------------------------------------------------------------------8 4. Dr. Ram Krishna Bharadwaj vs State of Delhi, A.I.R. 1953 S.C. 318---------------------20 5. Harakchand vs Union of India, A.I.R. 1970 S.C. 1453--------------------------------------20 6. I. R. Coelho v. State of Tamil Nadu, 2007 (2) SCC 1 at page 111.---------------------------7 7. Indira Gandhi case---------------------------------------------------------------------------------4 8. Jasbir Singh v. State of Punjab (2006) 8 SCC 294---------------------------------------------8 9. Keshvananda Bharati v. State of Kerala-----------------------------------------------------4, 7 10. Kihoto Hollohan v. Zachillhu, 1992 (Supp.2) SCC 651 at 692-693 (paras 63 to 65).----8 11. L Chandra Kumar v. Union of India, 1997 (2) SCR 1186.-----------------------------------8 12. Lakshmanrao vs Judicial Magistrate, A.I.R. 1971 S.C. 186--------------------------------20 13. M. Nagaraj case------------------------------------------------------------------------------------5 14. Madras Bar Association v. Union of India, (2014) 10 SCC 1.----------------------------7, 8 15. Manak lal v. Dr. Prem Chand, A.I.R. 1957 S.C. 425.----------------------------------------17 16. Metropolitan Properties ltd v. Lannon, (1968) 3 All E.R. 304.----------------------------17 17. Minerva Mills Ltd. v. Union of India------------------------------------------------------------4 18. N. Kannadasan v. Ajayghosh, 2009 (7) SCC 1.------------------------------------------------7 19. Nandlal vs State of Haryana, A.I.R. 1980 S.C. 2097----------------------------------------20 20. Naresh Chandra Ganguly vs State of W.B., A.I.R. 1959 S.C. 133.------------------------20 21. P.A. Inamdar vs State of Maharashtra, A.I.R. 2005 S.C.3226------------------------------20 22. Re: Presidential Reference 1 of 1998, AIR 1999 SC 1.------------------------------------3, 6 23. RK Jain v. Union of India and Ors.(1993) 4 SCC 119----------------------------------------8 24. S.P.Gupta Vs Union of India, AIR 1982 SC 149-----------------------------------------------3 25. Sawai Singh vs State of Rajasthan, A.I.R. 1986 S.C. 995-----------------------------------20 26. Shamsher Singh v. State of Punjab, (1974) 2 SCC 831------------------------------------3, 6 27. State of A.P. vs Shree Ramarao, A.I.R. 1963 S.C. 1723-------------------------------------20 28. State of Bihar vs. Balmukund Shah: 2000 (4) SCC 640---------------------------------------9 29. Supreme Court Advocates-on-Record Association vs. Union of India: 1993 (4) SCC 441 ------------------------------------------------------------------------------------------1,2, 3, 4, 6, 9

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

30. Surath Chandra Chakraborthy vs State of West Bengal, A.I.R. 1971 S.C. 752-----------20 31. Union of India v. Sankal chand Himatlal Sheth, AIR 1977 SC 2328--------------2, 3, 6, 9 32. Union of India vs. Madras Bar Association: 2010 (11) SCC 1-----------------------------10 33. Shreya Singhal v. Union of India, 2015 (4) SCALE 1.--------------------------------------21 34. P. Sambamurthy vs. State of A.P. [(1994) 3 SCC 1]----------------------------------------- 8 35. Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535 ----------------------------------------8

REPORT 

14th Law Commission Report on “Reform of Judicial Administration”--------------------2



LAW COMMISSION OF INDIA ONE HUNDRED TWENTY -- FIRST REPORT ON A NEW FORUM FOR JUDICIAL APPOINTMENTS JULY, 1987.----------------------20



80th Law Commission Report------------------------------------------------------------------11

Statutes  

The Constitution of India National Judicial Appointment Commission Act, 2014

Websites  

parliamentofindia.nic.in/ls/debates/debates.htm http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444997560.pdf

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF JURISDICTION The instant writ petitions have been filed by the petitioner under Article 32 of the Constitution of Valston which states: 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to EXERCISE within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF FACTS Valston, a democratic country had adopted its own Constitution exactly similar to that of India, after its colonial independence. The enacted Constitution has exactly similar provisions for amendments, it pledges and practices the separation of power among the legislative, executive and judiciary with the absolute independence of judiciary from legislature and the executive and also subjects the legislative laws to judicial review as far as they are inconsistent with the basic structure of the Constitution and are held ultra vires for infringing the same. It also follows and adopt the amendments made by the Republic of India in their Constitution. The Constitution of Valston states that the judges of the Supreme Court and the High Courts shall be appointed by the President of Valston by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Court in the States. In the past, conflict between the legislature and the judiciary with regard to appointments had, many a times, been brought before the Supreme Court. In one of the case, the Supreme Court stated that “the ‘primacy’ of the Chief Justice of Valston ‘recommendation’ to the President can be refused for the ‘cogent reason’.” In another case the Supreme Court held that the role of the Chief Justice of Valston is primal in nature because this being a topic within judicial family, the executive cannot have an equal say in the matter. After this a new Collegium system was formed for the appointment and transfer of judges of High Courts and the Supreme Court. In 2014, the Parliament of Valston passed a ‘Constitutional Amendment Bill’ and ‘National Judicial Appointment Commission Bill, 2014’ (the NJAC Act, 2014) proposing the amendment in the procedure for the transfer and appointment of judges in High Courts and Supreme Court of Valston, which also received assent of the President. The NJAC Act, 2014 replaced the previous collegium system for the transfer and the appointment of Judges. The NJAC Act 2014, got displeasure from some people amongst legal fraternity and judiciary, while on the other hand, the action got welcoming response from political parties and legislative bodies claiming. Now the Advocates-on-Record Association has brought this matter before the Supreme Court through a writ petition under the original jurisdiction of Supreme Court, questioning the legality of the said amendment and its Constitutional validity along with that of NJAC Act, 2014.

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

ARGUEMENTS PRESENTED 4. WHETHER OR NOT THE PARLIAMENT HAS THE POWER TO AMEND THE CONSTITUTION? d. That the Intention of Drafters was clear on separation of powers and laws regarding it e. That 2nd , 3rd and 4th Judges case also has to be taken into consideration f. That the parliament has transcended the ambit of legislative power

5. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 TRANSGRESS THE BASIC STRUCTURE OF THE CONSTITUTION? e. Basic Structure Doctrine f. That the amendment takes away the power of judicial review thereby violating the basic structure g. That Independence of Judiciary forms a part of the basic structure of constitution h. International Standards

6. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 ULTRA VIRES THE CONSTITUTION? d. That excessive power has been delegated to the Parliament via the NJAC Act e. That the present Amendment and NJAC Act is arbitrary f. That the present amendment and Act suffers from the vice of vagueness

MEMORIAL FOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

SUMMARY OF ARGUEMENTS 1. WHETHER OR NOT THE PARLIAMENT HAS THE POWER TO AMEND THE CONSTITUTION? It is submitted that the Parliament, while enacting the NJAC Constitutional Amendment Act and the NJAC Act has gone beyond the purview of amending power bestowed on it by the Constitution of India. The Acts transgress the concept of separation of powers as contained in the Constitution. The procedure of Amendment as contained in Article 368 is not a plenary power and the legislature has transcended the ambit of legislative power. The Parliament cannot violate the basic structure of the Constitution while exercising its powers. 2. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 TRANSGRESS THE BASIC STRUCTURE OF THE CONSTITUTION? It is humbly submitted before the Hon’ble Apex Court that the Constitutional Amendment, 2014 and the National Judicial Appointment Commission Act 2014 is ultra vires of the Constitution and is liable to be struck down as null and void. Article 124A(2) takes away the power of judicial review thereby violating the basic structure. Also, the amendment infringes the independence of judiciary which constitutes part of the basic structure. An amendment to the constitution which violates the basic structure is liable to be struck down. 3. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NJAC ACT, 2014 ULTRA VIRES THE CONSTITUTION? It is humbly submitted that excessive delegation of power has been conferred to the Parliament. The primacy of judiciary has been completely eroded by the amendment. The amendment is arbitrary as no criteria for appointment of eminent persons has been laid down. The amendment suffers from the vice of vagueness. Through this amendment the primacy of the Chief Justice of Volston has sought to be done away by giving veto powers to any two members of the NJAC.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

ARGUMENTS ADVANCED 1. WHETHER OR NOT THE PARLIAMENT HAS THE POWER TO AMEND THE CONSTITUTION? It is humbly submitted that the Parliament, while enacting the NJAC Constitutional Amendment Act and the NJAC Act has gone beyond the purview of amending power bestowed on it by the Constitution of India. a. That the Intention of Drafters was clear on separation of powers and laws regarding it: [¶ 1] Going by the seriousness of the matter the debates occupied full two days, the 24th November 19491 and the next day i.e. 25th November 19492 when Dr.Ambedkar moved the amendment of the amendment. In these two days it was unanimously resolved that Judiciary and the Executive must be separated as early as possible. [¶ 2] In the case of Supreme Court Advocates-on-Record Association v. Union of India3, while discussing the intent of the drafters with regard to appointments referred to the Constituent Assembly Debates whereby Dr. B.R Ambedkar stated that it would be dangerous to leave such appointments in the hands of the executive of the day, without any kind of reservation and limitation.4 The Apex Court further held that. – “If that was the true intent, the word “consultation” could never be assigned its ordinary dictionary meaning. And Article 124 (or Article 217) could never be meant to be read with Article 74. It is therefore not possible for us to accept, that the main voice in the matter of selection and appointment of Judges to the higher judiciary was that of the President (expressed in the manner contemplated under Article 74). Nor is it possible to accept that primacy in the instant matter rested with the executive. Nor that, the judiciary has been assigned a role in the matter, which was not contemplated by the provisions of the Constitution… More importantly, Dr. B.R. Ambedkar was suspicious and distrustful of the 1http://parliamentofindia.nic.in/ls/debates/vol7p12.htm. 2http://parliamentofindia.nic.in/ls/debates/vol7p13.htm. 3Supreme Court Advocates-on-Record Association v. Union of India C.W.P. No. 13 of 2015, 16.10.2015 4 The Constituent Assembly Debates Vol. VIII Part II 24.11.1949

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

possibility of the appointments being directed and impacted by “political pressure” and “political consideration”, if the legislature was involved. We are therefore satisfied, that when the Constituent Assembly used the term “consultation”, in the above provisions, its intent was to limit the participatory role of the political-executive in the matter of appointments of Judges to the higher judiciary.” [¶ 3] Moreover, the 14th Law Commission Report on “Reform of Judicial Administration”5 in Paragraph 46 also debated that by enacting Articles 124 and 217, the framers had endeavoured to put the judges of the Supreme Court “above executive control”. [¶ 4] Article 50 of our Constitution is the most important Article as was pointed out by the debates on Separation of the Judiciary and the Executive when the Constituent Assembly considered Draft Article numbered as Article 39-A. Separation of the two i.e. Judiciary and the Executive means the Executive possessing no power or role in appointing judges but only to provide data which they think relevant for the competent appointing authority to evaluate. [¶ 5] Referring to Sankalchand's Case7 it is pointed out that even Bhagwati J was impressed by the brooding omnipresence of Article 50, whereby he held that. – “And hovering over all these provisions like a brooding omnipresence is Article 50 which lays down, as a Directive Principle of State Policy, that the State shall take steps to separate the judiciary from the executive in the public services of the State. This provision, occurring in a chapter which has been described by Granville Austin as "the conscience of the Constitution" and which embodies the social philosophy of the Constitution and its basic underpinnings and values, plainly reveals, without any scope for doubt or debate, the intent of the Constitution makers to immunise the judiciary from any form of executive control or interference.”

[¶ 6]Reliance on the Second Judges case8 can be put, and to draw the attention of the Court to the following observations recorded by S. RatnavelPandian, J.: “Having regard to the 5 14th Law Commission Report, September 26, 1958. 6 Paragraph 4: Realizing the importance of safeguarding the independence of the judiciary, the Constitution has provided that a Judge of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India and after consultation with such of the other Judges of the Supreme Court and the High Courts as he may deem necessary. He holds office till he attains the age of 65 years and is irremovable except on the presentation of an address by each House of Parliament passed by a specified majority on the ground of proved misbehavior or incapacity. Thus has the Constitution endeavored to put Judges of the Supreme Court above executive control.”

7Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328. 8 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

importance of this concept[independence of judiciary] the Framers of our Constitution having before them the views of the Federal Court and of the High Court have said in a memorandum: “We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high-handed exercise of power by the executive …” [¶ 7]The executive – in one form or the other - is the largest single litigant before the courts. In this view of the matter the judiciary being the mediator - between the people and the executive - the Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the executive. Such control in the hands of the executive would cause immense inroads, in the decision making process. And could result in, Judges trying to placate and appease the executive, for personal gains and rewards and maintaining their office. b. That 2nd , 3rd and 4th Judges case also has to be taken into consideration: [¶ 8] The provisions of Parts V and VI of the Constitution, with reference to the Union and the States judiciaries including Subordinate-courts, have arisen for interpretative determination of the Supreme Court on no less than five occasions- Samsher Singh’s case 9, Sankalchand’s case10 and the Three Judges case11. Except for the decision in the First Judges case, in all other cases, it was emphatically stated that the judiciary would have primacy in matters regulated by Articles 124, 217 and 222 of the Constitution and this was also conceded by the Union of India during the Third Judges case. The First Judges case was rendered by a majority of 4:3. Not only, that the margin was extremely narrow, but also, the views expressed by the Judges were at substantial variance, on all the issues. As against the above, on a reconsideration of the matters by a larger Bench in the Second Judges case, the decision was rendered by a majority of 7:2. Not only was the position clearly expressed, there was hardly any variance, on the issues canvassed. So was the position with the Third Judges case, which was a unanimous and unambiguous exposition of the controversy. The matter having been revisited, and the position having been conceded by the Union of India, 9 Shamsher Singh v. State of Punjab, (1974) 2 SCC 831 10 Union of India v. Sankal chand Himatlal Sheth, AIR 1977 SC 2328 11 S.P.Gupta Vs Union of India, AIR 1982 SC 149, Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441 and in Re: Presidential Reference 1 of 1998, AIR 1999 SC 1.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

it does not lie in the mouth of the Union of India, to seek reconsideration of the judicial declaration, in the Second and Third Judges cases. [¶ 9] The correctness of the decision rendered in the Second Judges case is not in doubt and to remove any misunderstanding in this regard it is humbly submitted that it has been categorically stated in the Third Judges case that ‘the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case.’ Therefore, neither the President nor the Union of India nor anybody else for that matter sought a reconsideration of the Second Judges case. There is no reason (apart from an absence of a reason at law) why such a request should be entertained at this stage, except on a fanciful misunderstanding of the law by the Union of India. [¶ 10] In the latest case law of Supreme Court Advocates-on-Record v. Union of India 12, the Hon'ble Supreme Court of India striking down the NJAC marked that the this Judicial Appointment Commission is violating the independence of the judiciary, which is a cardinal principle of the Constitution. Inclusion of Eminent persons and Union law minister was taking away the primacy of Judiciary. It was observed that the “manner of selection and appointment” of Judges to the higher judiciary, is an integral component of “independence of the judiciary”, which NJAC is taking away from the Judicial wing of democracy. c. That the parliament has transcended the ambit of legislative power [¶ 11] It is humbly submitted that the amending the Constitution based on the procedure provided for in Article 368, is not a plenary power. It is pointed out; that the above power was limited, inasmuch as the power of amendment did not include the power of amending the “core” or the “basic structure” of the Constitution. In this behalf, learned counsel placed reliance on Minerva Mills Ltd. v. Union of India13 , wherein majority view was expressed through Y.V. Chandrachud, CJ., as under: “17. Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.

12 Supreme Court Advocates-on-Record Association v. Union of India C.W.P. No. 13 of 2015, 16.10.2015. 13 Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.” [¶ 12] Also Article 368 (5) opens with the words "for the removal of doubts" and proceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368. It is difficult to appreciate the meaning of the opening words "for the removal of doubts" because the majority decision in Kesavananda Bharati case 14 clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the amendatory power of Parliament and in Indira Gandhi case 15, all the judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329-A(4) was to be judged. Therefore, after the decisions in Kesavananda Bharati case and Indira Gandhi case, there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not exist. What clause (5), really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one. This was clearly and indubitably a futile exercise on the part of Parliament. [¶ 13] It is humbly submitted that the Parliament which has only a limited power of amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basic structure. That would clearly be in excess of the limited amending power possessed by Parliament. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. It is difficult to appreciate how Parliament having a limited power of amendment can get rid of the limitation by exercising that very power and convert it into an absolute power. [¶ 14] In the M. Nagaraj case16, wherein this Court held: “9.. The power of amendment under Article 368 is a “constituent” power and not a “constituted power”; that, that there are no implied limitations on the constituent power under Article 368; 14 Keshvananda Bharati v. State of Kerala AIR 1973 SC 1461. 15 Indira Gandhi case [1976] 2 SCR 341. 16 M Nagaraj case (2006) 8 SCC 212.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

that, the power under Article 368 has to keep the Constitution in repair as and when it becomes necessary and thereby protect and preserve the basic structure. In such process of amendment, if it destroys the basic feature of the Constitution, the amendment will be unconstitutional. [¶ 15] Law has to change. It requires amendments to the Constitution according to the needs of time and needs of society. It is an on-going process of judicial and constituent powers, both contributing to change of law with the final say in the judiciary to pronounce on the validity of such change of law effected by the constituent power by examining whether such amendments violate the basic structure of the Constitution. However, an amendment will be invalid, if it interferes with or undermines the basic structure. The validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic structure of the Constitution.”

2. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 TRANSGRESS THE BASIC STRUCTURE OF THE CONSTITUTION? [¶ 16] It is humbly submitted before the Hon’ble Apex Court that the Constitutional Amendment, 2014 and the National Judicial Appointment Commission Act 2014 is ultra vires of the Constitution and is liable to be struck down as null and void. [¶ 17] The power of judicial review vested with the higher judiciary (to examine the validity of executive and legislative actions), bestowed superiority to the judiciary over the other two pillars of governance. This position, it is pointed out, was critical to balance the power surrendered by the civil society, in favour of the political and the executive sovereignty. The immunity of judiciary from intervention of Executive or Legislative wings of government has been upheld in plethora of cases17. [¶ 18] The judgment in the Second Judges case, should be accepted as the touchstone, by which the validity of the impugned constitutional amendment (and the NJAC Act), must be examined. It is submitted, that the power exercised by the Parliament under Article 368, in giving effect to the impugned constitutional amendment (and by enacting the NJAC Act), will have to be tested in a manner, that will allow an organic adaptation to the changing times, and at the same time ensure, that the “basic structure” of the Constitution was not violated. 17 Shamsher Singh v. State of Punjab, (1974) 2 SCC 831, Union of India v. Sankal chand Himatlal Sheth, AIR 1977 SC 2328 and the Supreme Court Advocates-on Record Association v. Union of India, AIR 1994 SC 268 and in Re: Presidential Reference 1 of 1998, AIR 1999 SC 1.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

[¶ 19] It is submitted that at present, there is already a procedure adopted and approved by the Hon’ble Supreme Court for the appointment of the Judges of the High Courts and Supreme Court. The very naming of Act of 2014 is a violation of the dictum laid down by the Honourable Supreme Court in 2nd Judge’s case and in 3rd Judge’s case. The domain of Declaration of Law by the Supreme Court is the basic feature of the Constitution of India. The basic structure of the Constitution cannot be tiltered, altered, modified or cannot be amended even by the Parliament. The Parliament has only a limited mandate for 5 years which cannot alter the long settled position through an amendment in the Constitution. [¶ 20] It is submitted that the law declared by Supreme Court is the law of the land (Article 141) and all authorities in India civil as well as Legislature and Executive should act in aid of the Supreme Court (Article 144). The Hon’ble Supreme Court has held that judge made laws is part of the constitution18. a. Basic Structure Doctrine [¶ 21] It is submitted that as held by the majority in the Full Bench decision of 13 Hon’ble Judges in Keshvananda Bharati v. State of Kerala19 and reiterated and reaffirmed in the case of I. R. Coelho v. State of Tamil Nadu20 that Article 368 does not enable Parliament to alter the basic structure of the Constitution. Recently, in Madras Bar Association v. Union of India21, it was laid down that: “The “basic structure” of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.” [¶ 22] An independent judiciary free from the clutches and control of legislature and executive is a constitutional right and independent judiciary is one of the Basic Structure of the Constitution of India. [¶ 23] It is submitted, that any action which would have the result of making appointment of the Judges to the Supreme Court, and to the High Courts, subservient to an agency other than the judiciary itself, namely, by allowing the executive or the legislature to participate in their selection and appointment, would render the judiciary subservient to such authority, 18 N. Kannadasan v. Ajayghosh, 2009 (7) SCC 1. 19 Keshvananda Bharati v. State of Kerala, 1973 (4) SCC 225 at 1007. 20 I. R. Coelho v. State of Tamil Nadu, 2007 (2) SCC 1 at page 111. 21Madras Bar Association v. Union of India, (2014) 10 SCC 1.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

and thereby, impinge on the “independence of the judiciary”. [¶ 24] The “basic structure” of the Constitution would stand violated if, in amending the Constitution and/or enacting legislation, Parliament does not ensure, that the body newly created, conformed to the salient characteristics and the standards of the body sought to be substituted. It is asserted, that the salient features of the existing process of appointment of Judges to the higher judiciary, which had stood the test of time, could validly and constitutionally be replaced, but while substituting the prevailing procedure, the salient characteristics which existed earlier, had to be preserved. b. That the amendment takes away the power

of

judicial

review

thereby

violating the basic structure [¶ 25] It is humbly contended that the Constitutional amendment is doing away with the right of judicial review. It is contended with reference to clause (2) of Article 124A, whereby judicial review is barred, with reference to actions or proceedings of the NJAC, on the ground of the existence of a vacancy or defect in the constitution of the NJAC. The Counsel, in order to draw an analogy with L Chandra Kumar v. Union of India22 invites the Hon’ble Court’s attention to the exclusion of the power of judicial review, contemplated under Articles 323A (2) (d) and 323B (3) (d), wherein the power of judicial review was similarly excluded. It is submitted, that this Court struck down a similar provision in the aforesaid Articles, holding that the same were violative of the “basic structure” of the Constitution. [¶ 26] In this behalf, the counsel places reliance on the decision of this Court in the Kihoto Hollohan vs. Zachillhu23, where the legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure." It was held that the basic structure of the Constitution cannot be altered nor can basic features of the Constitution be destroyed – which imposes a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of this

22 L Chandra Kumar v. Union of India, 1997 (2) SCR 1186. 23 Kihoto Hollohan v. Zachillhu, 1992 (Supp.2) SCC 651 at 692-693 (paras 63 to 65).

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limitation goes beyond the amending power. Thus the power of judicial review being the part of basic structure of the Constitution cannot be taken away. [¶ 27] It is contended, that the Constitution (99th Amendment) Act, and the NJAC Act, are truthfully a political-executive device, to rein in the power of judicial review, to avoid such discomfiture that have taken place in the past in relation to judiciary coming in the way. c. That Independence of Judiciary forms a part

of

the

basic

structure

of

constitution [¶ 28] RK Jain v. Union of India and Ors. ; All India Judges’ Association and Ors. v. Union of 24

India and Ors.25; Jasbir Singh v. State of Punjab26;Central Public Information Officer, Supreme Court of India v. Subhash Chandra Aggrawal27; Union of India v. R. Gandhi, President, Madras Bar Association28, identified independence of the judiciary as part of the basic structure of the Constitution. [¶ 29] In the words of Justice Krishna Iyer, “Independence of the judiciary is not genuflexion, nor is it opposition of Government”. At one point of time he characterised this concept as a “Constitutional Religion”. [¶ 30] “Independence of the judiciary” had been held to mean and include insulation of the higher judiciary from executive and legislative control. In this behalf, reference was made to Union of India v. Sankalchand Himatlal Sheth29 , wherein the Court had observed: “50. Now the independence of the judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document. It is indeed a part of our ancient 24 RK Jain v. Union of India and Ors.(1993) 4 SCC 119;see also P. Sambamurthy vs. State of A.P. [(1994) 3 SCC 1]; Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535; Union of India vs. Madras Bar Asson. (2010) 11 SCC 1; Madras Bar Asson. vs. UOI (2014) 10 SCC 1. 25 All India Judges’ Association and Ors. v. Union of India and Ors. (1993) 4 SCC 288 26 Jasbir Singh v. State of Punjab (2006) 8 SCC 294 27 Central Public Information Officer, Supreme Court of India v. Subhash Chandra Aggrawal (2011) 1 SCC 496. 28 Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1. 29 Union of India v. Sankal Chand Himatlal Sheth &Anr: 1977 (4) SCC 193.

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tradition which has produced great Judges in the past. Judicial independence is prized as a basic value and so natural and inevitable that it has come to be regarded and so ingrained in the life and thought of the people.” [¶ 31] In the context of the appointment of Judges of the Higher Judiciary the expression ‘independence of the Judiciary’ as a constitutional concept and one that has been consistently regarded as a basic feature of the Constitution means (and has been consistently held to mean): (i) “Insulating the Judiciary from executive or legislative control”.30 (ii) “Inextricably linked and connected with the constitutional process of appointment of Judges of the Higher Judiciary. Independence of the Judiciary is a basic feature of our constitution….”31 (iii) ‘In the matter of appointment of Judges to the High Courts and the Supreme Court ‘primacy of the Higher Judiciary must be secured and protected’32 (iv) ‘the conditions for appointment of Judges to the Supreme Court and the High Courts may not be amendable even by a constitutional amendment as the same is likely to tamper with the independence of the judiciary and thereby adversely affect the basic features of the Constitution’33 (v) The ‘executive element in the appointment of Judges must be reduced to a minimum’34 [¶ 32] “We have assumed that it is recognized on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the Judges but to the citizens at large who may have to seek redress in the last resort in the courts of law against any illegal acts or the high-handed exercise of 30Union of India v. Sankal Chand Himatlal Sheth &Anr: 1977 (4) SCC 193 at page 236-237 para 50) (5 Judges). 31 Supreme Court Advocates-on-Record Association vs. Union of India: 1993 (4) SCC 441 at page 649 para 335); (Bench of nine Judges). 32First affirmed in Supreme Court Advocates-on-Record Association vs. Union of India: 1993 (4) SCC 441 at page 522 para 56); (Bench of Nine Judges); re-affirmed in Special Reference No.1 of 1998 (Nine Judges) reported in 1998 (7) SCC 739) (unanimous). 33 State of Bihar vs. Balmukund Shah: 2000 (4) SCC 640 para 97 at page 747); (Bench of five Judges). 34Union of India vs. Madras Bar Association: 2010 (11) SCC 1 at page 37 paras 50-52); (Bench of five Judges); Justice Raveendran speaking for the Court said: “50. The Framers of the Constitution stated in a memorandum (see The Framing of India’s Constitution, B. Shiva Rao, Vol. I-B, p. 196).

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power by the executive…. in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent and efficient the judiciary has been steadily kept in view.” [¶ 33] It is submitted that the primacy and independence of the judiciary has been totally eroded through the impugned constitutional amendment. It is submitted, that the NJAC contemplated under Article 124A would comprise of six Members, namely, the Chief Justice of India, two senior Judges of the Supreme Court (next to the Chief Justice), the Union Minister in charge of Law and Justice, and two “eminent persons”. The judges component, which had the primacy (and in a manner of understanding – unanimity), under the erstwhile procedure, had now been reduced to half-strength, in the selecting body – the NJAC. [¶ 34] In this even CJI would have an equivalent voting right, as the other Members of the NJAC. Also, that even though the Chief Justice of India would be the Chairman of the NJAC, he has no casting vote, in the event of a tie. Thus the primacy vested with the Chief Justice of India had been fully and completely eroded thereby violating the basic structure of constitution. [¶ 35] Article 50 says that the Government shall strive to keep the Judiciary separate from the Executive. The purpose of this article is to ensure that in the appointment of Judges, the Executive has no role to play, except the advisory role. In other words, the doctrine of primacy of the Executive in the appointment process was irksome to us because the whole nation of India has been the victim of the Judges appointed in the earlier system. d. International Standards [¶ 36] The attention of this Hon'ble Court is invited to the approach adopted by United Nations on the independence of Judiciary as part of 'Human Rights in administration of Justice' envisaged by the Seventh United Nations Congress at Milan and endorsed by the U.N. General Assembly in 1985, which provide inter alia as under: "...Basic Principles on the Independence of the Judiciary 1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have

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exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. 4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. 5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 7. It is the duty of each member state to provide adequate resources to enable the judiciary to properly perform its function. [¶ 37] The Supreme Court and High Courts are the guardians of Indian Constitution. Article 50 of the Constitution of India postulates separation of powers among executive, legislature and judiciary. The Constitution of India is the supreme law in the democratic fabric of India. The Judges are accountable only to the Constitution of India and not to the NJAC. Also in the 80th Law Commission Report, It was observed that an independent judiciary is absolutely indispensible for ensuring the Rule of Law. Generally in regard to appointment of judges, it was observed that wrong appointments have affected the image of the Courts and have undermined the confidence of the people in them. Further, it was observed that an appointment not made on merit but because of favouritism or other ulterior considerations can hardly command real and spontaneous respect of the Bar and that the effect of an improper appointment is felt not only for the time being but its repercussions are felt long thereafter.

3. WHETHER OR NOT THE CONSTITUTIONAL AMENDMENT, 2014 AND NJAC ACT, 2014 ULTRA VIRES THE CONSTITUTION? a. That excessive power has been delegated to the Parliament via the NJAC Act [¶ 38] Counsel on behalf of Petitioner invite the Court’s attention to the 1st Law Commission Report on “Reform of Judicial Administration” (14th Report of the Law Commission of India, chaired by M.C. Setalvad), wherein it was debated, that by enacting Articles 124 and 217, the framers of the Constitution had endeavoured to put the Judges of

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the Supreme Court “above executive control”. Paragraph 4 of the said Report is being extracted hereunder: “(Appointment and removal of Judges) 4. Realizing the importance of safeguarding the independence of the judiciary, the Constitution has provided that a Judge of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India and after consultation with such of the other Judges of the Supreme Court and the High Courts as he may deem necessary. He holds office till he attains the age of 65 years and is irremovable except on the presentation of an address by each House of Parliament passed by a specified majority on the ground of proved misbehaviour or incapacity. Thus has the Constitution endeavoured to put Judges of the Supreme Court above executive control.” [¶ 39] The executive – in one form or the other - is the largest single litigant before the courts. In this view of the matter the judiciary being the mediator - between the people and the executive - the Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the executive. [¶ 40] It is submitted that the primacy of the judiciary has been totally eroded through the impugned constitutional amendment. It is submitted, that the NJAC contemplated under Article 124A would comprise of six Members, namely, the Chief Justice of India, two senior Judges of the Supreme Court (next to the Chief Justice), the Union Minister in charge of Law and Justice, and two “eminent persons”. The judges component, which had the primacy (and in a manner of understanding – unanimity), under the erstwhile procedure, had now been reduced to half-strength, in the selecting body – the NJAC. [¶ 41] The counsel contests not only the constitutional validity of clauses (c) and (d) of Article 124A(1), but also the first proviso under Article 124A(1)(d), which postulates, that one of the “eminent persons” should belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities or Women. It is submitted, that these sort of populistic measures, ought not to be thought of, while examining a matter as important as the higher judiciary. It was submitted, that it was not understandable, what the choice of including a person from one of the aforesaid categories was aimed at. In the opinion of learned counsel, the above proviso was farcical, and therefore, totally unacceptable. While members of a particular community may be relevant for protecting the interest of their community, yet it could not be conceived, why such a measure should be adopted, for such an important constitutional responsibility. [¶ 42] Article 124B introduced by the Constitution (99th Amendment) Act, whereunder, the authority to initiate the process, had now been vested with the NJAC. Under the new

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dispensation, the NJAC alone would recommend persons for appointment as Judges to the higher judiciary. [¶ 43] Article 124C introduced by the Constitution (99th Amendment) Act, was wholly unnecessary. It is pointed out, that in the absence of Article 124C; the NJAC would have had the inherent power to regulate its own functioning. It is submitted, that Article 124C is a serious intrusion into the above inherent power. Now that, the Parliament had been authorized to regulate the procedure for appointments by framing laws, it would also result in the transfer of control over the appointment process (–of Judges to the higher judiciary), to the Parliament. It was submitted, that there could not be any legislative control, with reference to appointment of Judges to the higher judiciary. Such legislative control, according to the counsel for petitioner, would breach “independence of the judiciary”. [¶ 44] It is contended, that the Constitution (99th Amendment) Act, and the NJAC Act, are truthfully a political-executive device, to rein in the power of judicial review, to avoid such discomfiture that have taken place in the past in relation to judiciary coming in the way. [¶ 45] It is also pointed out, that in the three-Member Committee authorised to nominate “eminent persons” included the Prime Minister and the Leader of the Opposition in the Lok Sabha, besides the Chief Justice of India. It is therefore submitted, that in the six-Member NJAC, three Members would have political-executive lineage. This aspect of the matter, according to the counsel, will have a devastating effect. It will negate primacy of the higher judiciary, and the same would result in undermining the “independence of the judiciary”. [¶ 46] Parliament having exercised its authority in that behalf, by framing the NJAC Act, and having provided therein, the ultimate control with the Parliament, must be deemed to have crossed the line, and transgressed into forbidden territory, exclusively reserved for the judiciary. The counsel submits that the duties and responsibilities vested in a constitutional authority could only be circumscribed by the Constitution, and not by the Parliament through legislation. It is submitted, that the NJAC was a creature of the Constitution, as the NJAC flows out of Article 124A. Likewise, the Parliament was also a creature of the Constitution. It is submitted, that one entity which was the creation of the Constitution, could not regulate the other, owing its existence to the Constitution. It is submitted, that if the impugned provisions were to be declared as constitutionally valid, there would be no means hereafter, to restore the “independence of the judiciary”. [¶ 47] In addition, Article 124C leaves open enormous scope for the Parliament, by ordinary legislation, to give primacy to the Executive or Veto powers to the Executive or other unchecked powers to the Executive for the appointment of Judges to the higher Judiciary.

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Thus for instance, the second proviso to Sub-section 2 of Section5 35 and Sub-Section6 of Section6 of the National Judicial Appointments Commission Act, 2014, which has been purported to be passed by both Houses of Parliament as an ordinary Bill (and not as a Constitution Amendment Bill), provides that 'the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation'. Not only does this very provision open possibilities for erosion of Independence of the Judiciary but such an ordinary law can be also amended to substitute for the words 'two members' the words 'one member' - thus completely negating any effective role of the three senior most members of the Higher Judiciary in appointment of Judges to the Supreme Court and the High Courts, and thus wholly transferring the power of appointment of Judge, of the Higher Judiciary to the Executive. [¶ 48] According to the counsel, the politicization of the process of selection and appointment of Judges to the higher judiciary, would lead to a dilution of the “independence of the judiciary”. It is submitted, that the inclusion of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, had the effect of politicization of the process of appointment of Judges to the higher judiciary. Even though the Union Minister had been assigned only one vote, it was submitted, that he could paralyse the whole system, on the basis of the authority he exercised. [¶ 49] Referring to the second proviso under Section 5(2), as well as, Section 6(6) 36 of the NJAC Act, it is submitted, that a recommendation for appointment of a Judge, cannot be carried out, if the two “eminent persons” did not accede to the same. In case they choose to disagree with the other Members of the NJAC, the proposed recommendation could not be given effect to, even though the other four Members of the NJAC including all the three representatives of the Supreme Court approved of the same. It is pointed out, that the two “eminent persons”, therefore would have a decisive say. [¶ 50] It is further submitted, that the impact of the determination of the two “eminent persons”, would be such, as would negate the primacy hitherto before vested in the Chief Justice of India. It is pointed out, that a positive recommendation by the Chief Justice of 35 Second proviso to Section 5(2) of the NJAC Act, 2014:Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation. 36 Section 6(6) of the NJAC Act, 2014: The Commission shall not recommend a person for appointment under this section if any two members of the Commission do not agree for such recommendation.

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India, supported by two other senior Judges of the Supreme Court (next to the Chief Justice of India), could be frustrated by an opposition at the hands of the two “eminent persons”. [¶ 51] The above power of veto exercisable by two lay persons, or alternatively one lay person, in conjunction with the Union Minister in charge of Law and Justice, would cause a serious breach in the “independence of the judiciary”. [¶ 52] It is the contention of the learned counsel, that the delegation of power contemplated under Article124C, amounted to vesting the NJAC, with what was earlier vested with the Chief Justice of India. In this behalf, reference was also made to Sections 1137, 1238 and 1339 of the NJAC Act. The power to make rules, has been vested with the Central Government under Section 11, and the power to make regulations has been entrusted to the NJAC under Section 12. The aforementioned rules and regulations, as drawn by the Central Government/NJAC, are required to be placed before the Parliament under Section 13, and only thereafter, the rules and regulations were to be effective (or not to have any effect, or 37 Section 11 of the NJAC Act, 2014: (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:–– (a) the fees and allowances payable to the eminent persons nominated under sub-clause (d) of clause (1) of article 124A of the Constitution; (b) the terms and other conditions of service of officers and other employees of the Commission under subsection (2) of section 8; (c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules.

38 Section 12 of the NJAC Act, 2014:(1) The Commission 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. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:— (a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court under sub-section (2) of section 5; (b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court under subsection (3) of section 5; (c) the criteria of suitability with respect to appointment of a Judge of the High Court under sub-section (3) of section 6; (d) other Judges and eminent advocates who may be consulted by the Chief Justice under sub-section (4) of section 6; (e) the manner of eliciting views of the Governor and the Chief Minister under sub-section (7) of section 6; (f) other procedure and conditions for selection and appointment of a Judge of the High Court under sub-section (8) of section 6; (g) the procedure for transfer of Chief Justices and other Judges from one High Court to any other High Court under section 9; (h) the procedure to be followed by the Commission in the discharge of its functions under sub-section (1) of section 10; (i) the rules of procedure in regard to the transaction of business at the meetings of Commission, including the quorum at its meeting, under sub-section (2) of section 10; (j) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be made by regulations.

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to have effect as modified). It was submitted, that the entrustment of the procedure of appointment of Judges to the higher judiciary, and also, the action of assigning the manner in which the NJAC would discharge its functions (of selecting Judges to the higher judiciary), with either the executive or the legislature, was unthinkable, if “independence of the judiciary” was to be maintained. It was pointed out, that the intent behind Article 124C, in the manner it had been framed, stood clearly exposed, by the aforesaid provisions of the NJAC Act. [¶ 53] Reference is also made to Section 12 of the NJAC Act, the highlight, that the NJAC had been authorized to notify in the Official Gazette, regulations framed by it, with the overriding condition, that the regulations so framed by the NJAC were to be consistent with the provisions of the NJAC Act, as also, the rules made thereunder (i.e., under Section 11 of the NJAC Act). Having so empowered the NJAC (under Sections 11 and 12 referred to above), and having delineated in Section 12(2), the broad outlines with reference to which the regulations could be framed, it was submitted, that the power to delegate the authority to frame regulations clearly stood exhausted. In that, the Parliament had no jurisdiction thereafter, to interfere in the matter of framing regulations. In fact, according to the learned counsel, consequent upon the empowerment of the NJAC to frame regulations, the Parliament was rendered functus officio, on the issue of framing regulations. [¶ 54] It is also submitted that the ‘Primacy’ of the Opinion of Chief Justice of India is sought to be done away with by passing the National Judicial Appointments Commission Act of 2014, by giving ‘Veto’ powers to any two members of the National Judicial Appointments Committee (being either the Eminent Person or the Law Minister) thereby overruling the recommendation of the Chief Justice of India and other two Senior Most Judges of Hon’ble Supreme Court of India. Such provision is contrary to the observation of this Hon’ble Court in decision reported as (1993) 4 SCC 441, wherein the Bench of 9 Judges of this Hon’ble Court (by Majority of 5:4) has observed that (Para 432):-

39 Section 13 of the NJAC Act, 2014: 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 in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

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[¶ 55]

“The question of primacy of the role of the Chief Justice of India in the context of

appointment of Judges in the Supreme Court and the High Courts must be considered to achieve the Constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts.” b. That the present Amendment and NJAC Act is arbitrary [¶ 56] The Apex Court of India in A.K. Kraipak v. Union of India40 following the test laid down in Manak lal v. Dr. Prem Chand41 observed that, the test was not actual bias but a reasonable apprehension of bias. [¶ 57] Democracy does not include the power of the legislature to destroy Democracy. Appointment of Superior Judges is a sacred duty and any lesser interest political, economic or a reasonable suspicion of its existence should be strictly excluded. A law Minister who has to retain power is more interested in securing votes, serving a limited constituency and doing or not doing things according to the exigencies of vote bank politics. He cannot possibly be allowed to participate and pollute this holy task. [¶ 58] The landmark on the subject of biasness Metropolitan Properties ltd v. Lannon42 where Lord Denning has laid down the test of bias is whether there is “Real Likelihood” of bias or not in the facts of the case and this has to be ascertained with reference to the “right minded persons”. [¶ 59] The Executive having any role in the appointment process of the Judges creates a reasonable suspicion in the mind of the Litigant fighting against the State that Judges appointed by the Executive cannot be totally impartial. Appointment of a Judge by a Minister or some bureaucrat under him prosecuting a citizen in a criminal case may well lead the accused to entertain a reasonable suspicion of judicial bias. This violates Article 21 of the Constitution which has been held to be part of basic structure of the Constitution and is subject to no restriction. [¶ 60] Having an ex-officio body would lead to arbitrary appointments which violates Article 14 and 21 of the Constitution of India. The said Articles are part of the basic structure of the Constitution and guarantee non-arbitrariness and rule of law. [¶ 61] Further it is contended that the said Act does not lay down any standard of transparency, which is a sine qua non for appointments to high offices as held by this Hon’ble Court in various judgments. The said Act also does not lay down any objective 40 A.K. Kraipak v. Union of India, A.I.R. 1970 S.C. 150. 41 Manak lal v. Dr. Prem Chand, A.I.R. 1957 S.C. 425. 42 Metropolitan Properties ltd v. Lannon, (1968) 3 All E.R. 304.

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criteria for the selection of judges. It does not also state how the NJAC would evaluate the candidates for final selection. Therefore, the said Act gives unguided discretion to the NJAC to make arbitrary selection in an opaque manner. The said Act is thus violative of Article 14 and 21 of the Constitution, which guarantee non-arbitrariness and rule of law, and is therefore unconstitutional and void. [¶ 62] Section 6 Sub Section 4 of The National Judicial Appointments Commission Act, 2014 stipulate that the Chief Justice of the High Courts shall consult two eminent Advocates of the High Courts before making recommendation of appointment of Judges of High Court. After the selection of High Court Judges, the two eminent Advocates of the High Court who recommended the names can appear before the Judges and argue cases. This is arbitrary and seems to be a personal bias which may affect the impartiality and independent judiciary enunciated under the basic structure of the Constitution of India. Thus, the Advocates can make recommendation for the appointment of Judges in High Courts by Section 6 Sub Section 4 43 of Act 40 of 2014 and the same advocate can argue cases before them. [¶ 63] The term “any other criteria of suitability” mentioned in Sub Section 1 of Section 6 of the Act is vague which may lead to shake the independence of the judiciary. Section 6 Sub Section 4 stipulates that consultation of eminent Advocates of that High Court is to be taken before selection. The law is trite that an Advocate cannot be consulted for appointment of Judges of High Court. If it is allowed, the same Advocate who recommended for the selection of High Court Judge can appear before the High Court Judge for arguing cases by none other than one of the Advocates who had recommended the name of that Judge. Thus Sub Section 4 of Section 6 is also arbitrary and biased and will destroy the basic structure of the Constitution of India and an independent judiciary. Sub Section 6 of Section 6 states that if any two members of the Commission do not agree for the recommendation of a member to be appointed as Judge of the High Court, the recommendation will fail leading to a futile effort. If there is no valid recommendation, no appointment of Judges of the High Court can be done, which is against the provisions of the Constitution of India with regard to the appointment of Judges in the Higher Judiciary. Thus, at any rate Sub section 6 of Section 6 is arbitrary and violative of the provisions of the Constitution of India, with regard to the selection and appointment of High Court Judges. 43 Section 6(4)of the NJAC Act, 2014: Before making any nomination under sub-section (2) or giving its views under sub-section (3), the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such other Judges and eminent advocates of that High Court as may be specified by regulations.

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[¶ 64]

An unjust law is not a true law and the same is not worthy of being followed. An

unreasonable, unjust, arbitrary, mala fide, and oppressive law is not true law and same needs to be struck down. [¶ 65] The question was of the purity of the justice delivery system. The question was about the maintenance of judicial standards. All these questions emerged from the fountainhead, namely, the manner of appointment of Judges to the higher judiciary. The provisions of Article 124, it was pointed out, as it existed prior to the impugned amendment, had provided for a system of trusteeship, wherein institutional predominance of the judiciary was the hallmark. It was submitted, that the aforesaid trusteeship should not be permitted to be shared by those, whose rival claims arose for consideration before Courts of law. The judicial responsibility in the matter of appointment of Judges, according to learned counsel, being the most important trusteeship, could not be permitted to be shared, with either the executive or the legislature. [¶ 66] In accord with all this the Chief Justice of the Australia stated "... The Chief Justice of Australia on being dissatisfied with the Australian system for selection and appointment of Judges which provides an opportunity for political influence, advocated in July 1977 that the time is now ripe for a Judicial Appointments Committee to be set up in Australia composed of Judges, lawyers and, indeed laymen likely to be knowledgeable in the achievements of possible appointee. "44. It on the same principle that the British Parliament has in its legislation which came into force on 3rd April 2006 created a Commission from which politicians have been totally excluded. Every Minister in the government is party to most disputes in Court and he must not be allowed to have a vote in the matter of Judicial Appointments. [¶ 67] The Government of the day decided that only those judges who are committed to the ideology of the government should be appointed. The saying, that in order to become a judge, it was not important to know the law, but more important to know the law Minister, became the prevailing wisdom. The subversion of the independence of the judiciary by the appointment of convenient judges became a major issue, especially with increasing corruption within the executive. c.That the present amendment and Act suffers from the vice of vagueness [¶ 68] The Supreme Court of India has invalidated laws on the ground of “vagueness” in a plethora of cases since.45

44 LAW COMMISSION OF INDIA ONE HUNDRED TWENTY -- FIRST REPORT ON A NEW FORUM FOR JUDICIAL APPOINTMENTS JULY, 1987.

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[¶ 69]

The inclusion of two “eminent persons” in the six-Member NJAC, as provided for,

under Article 124A (1) of the Constitution (99th Amendment) Act, is also clearly unconstitutional. It is contended, that there necessarily had to be, an indication of the positive qualifications required to be possessed by the two “eminent persons”, to be nominated to the NJAC. Additionally, it is necessary to stipulate disqualifications. Illustratively, it is pointed out, that an individual having a conflict of interest should be disqualified. And such conflict would be apparent, when the individual had a political role. A politician has to serve his constituency, he has to nourish and sustain his vote bank, and above all, he has to conform with the agenda of his political party. Likewise, a person with ongoing litigation, irrespective of the nature of such litigation, would render himself ineligible for serving as an “eminent person” within the framework of the NJAC, because of his conflict of interest. [¶ 70] Attention to Article 124A is to be drawn where under, the above two “eminent persons” are to be nominated by a committee comprising of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of People, or, where there is no such Leader of Opposition, then, leader of the single largest opposition party in the House of the People. Learned counsel submitted, that neither Article 124A, nor any other provision, and not even the provisions of the NJAC Act, indicate the qualifications, of the two “eminent persons”, who have been included amongst the six-Member NJAC. It is sought to be asserted, that in approximately 70 Statutes and Rules, the expression “eminent person” has been employed. Out of the 70 Statutes, in 67, the field in which such persons must be eminent, has been clearly expressed. Only in three statutes, the term “eminent person” was used without any further qualification. It is asserted, that the term “eminent person” had been left vague and undefined, in Article 124A. It is submitted, that the vagueness of the term “eminent person” was itself, good enough to justify the striking down of the provision. It is emphasized, that the determinative role assigned to the two “eminent persons”, included amongst the six-Member NJAC, was so important, that the same could not be left to the imagination of the nominating committee, which comprised of just men

45 Harakchand vs Union of India, A.I.R. 1970 S.C. 1453, P.A. Inamdar vs State of Maharashtra, A.I.R. 2005 S.C.3226, Nandlal vs State of Haryana, A.I.R. 1980 S.C. 2097, Lakshmanrao vs Judicial Magistrate, A.I.R. 1971 S.C. 186, Sawai Singh vs State of Rajasthan, A.I.R. 1986 S.C. 995, Surath Chandra Chakraborthy vs State of West Bengal, A.I.R. 1971 S.C. 752, State of A.P. vs Shree Ramarao, A.I.R. 1963 S.C. 1723, Dr. Ram Krishna Bharadwaj vs State of Delhi, A.I.R. 1953 S.C. 318, Naresh Chandra Ganguly vs State of W.B., A.I.R. 1959 S.C. 133.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

“…with all the failings, all the sentiments and all prejudices which we as common people have…” (relying on the words of Dr. B.R. Ambedkar). [¶ 71] Statement of “Objects and Reasons”, as were projected for the instant legislation, indicated inter alia, that the NJAC would provide “a meaningful role to the judiciary”. [¶ 72] It is contended, that the enactments under reference, amounted to commission of a fraud by Parliament, on the people of the country. As it was not possible to understand, how and who was to be made accountable – the executive, – the “eminent persons”, – the judiciary itself. It was accordingly sought to be asserted, that the Parliament seemed to be asserting one thing, while it was doing something else. Counsel placing reliance on Shreya Singhal v. Union of India46contends that such a vague law should be struck down. [¶ 73] The NJAC is an ex-officio body of people who would have little time to devote to appointments and does not lay down any standards of transparency in the appointments. Selecting more than 100 judges of the higher judiciary every year (from amongst thousands of potential candidates) in a rational and fair manner is an onerous task requiring a full-time and not an ex-officio body. Before making a selection, the candidates have to be evaluated for their competence, integrity, judicial temperament and their sensitivity for the concerns of common persons. The same cannot be done by an ex-officio body. An ex-officio body of sitting judges and ministers cannot devote the kind of time required for this task. Therefore, the said Amendment does not create a body that can fulfil the onerous task of appointing Supreme Court and High Court judges by finding out the best available talent. The Amendment does not ensure judicial integrity and thus violates the Basic Structure of the Constitution.

46 Shreya Singhal v. Union of India, 2015 (4) SCALE 1.

MEMORIALFOR PETITIONERS RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2016

Prayer for Relief In view of the aforementioned facts and circumstances of the present case, the petitioners most respectfully pray that this Hon’ble Court may kindly be pleased to:(a) That it be declared by issuance of appropriate order or direction that the Constitution 99th Amendment Act, 2014 violates the basic structure of the Constitution and is invalid, void and unconstitutional; (b) That it be declared by issuance of appropriate order or direction that the National Judicial Appointments Commission Bill of 2014 passed by both the houses of Parliament in August 2014 was beyond the legislative competence of the Parliament and was in violation of Articles 124(2) and 217(1) of the Constitution of India as enacted and in force in August 2014 and as such is invalid and void; (c) That it be declared by issuance of an appropriate order or direction that the assent of the President to the National Judicial Appointments Bill cannot confer any validity on the said National Judicial Appointments Bill of 2014, since the Parliament was not competent to pass the National Judicial Appointments Bill of August 2014; (d) That it be declared by issuance of an appropriate writ, order or direction that the Article 124(2) and Article 127(1) of the Constitution of India, 1950 as enacted continue to remain in force and the interpretation placed upon these articles by the larger Constitution Bench Judgments of this Hon’ble Court to remains unaffected by the Constitution 99th Amendment Act, 2014 and by the purported passing of the National Judicial Appointments Commission Bill of 2014 (and consequently National Judicial Appointments Commission Act, 2014) ; (e) That appropriate writ, order or consequential directions be issued so that the Basic Structure of the Constitution is preserved; (f) For that such further and other order / orders be passed as may be necessary and deemed fit and proper in the facts and circumstances of the case to sub serve the interest of justice and protect the independence of the Judiciary; AND FOR THIS ACT OF KINDESS THE PETITIONER SHALL AS IN DUTY BOUND EVER PRAY.