Shaan Munshaw 20131171

BA.LLB SECTION-E
NJAC REFLECTION PAPER

The Supreme Court Advocates-on-record v. Union of India popularly termed as the

NJAC case is one of the landmark cases which, held the new system for appointment
of judges under the NJAC act void and revived the collegium system. This refection
paper will be magnified to 2 issues discussed in the cases. Namely the “doctrine of
revival of the Constitutional amendments “ and the “test for violation of the basic
structure”.

1) Doctrine of Revival of the Constitutional Amendments.

This case discusses in detail about the revival of Constitutional Amendments, which
were struck down by judicial review. In this instant case the NJAC the court struck
down act and the collegium system for the appointment of Judges was revived.

The respondents in the instant case contended that striking down the impugned
constitutional amendment would not result into revival of the provisions that had
been amended by the parliament. They based their reliance on Article 367, which
postulates the General Clauses Act, 1897. The relevant sections of this Act that were
relied upon were Section 6, 7 and 8. The respondents also relied on many cases
namely, Kolhapur Canesugar Works Ltd. case, West U.P. Sugar Mills Association v.
State of U.P, Gammon India Ltd. v. Special Chief Secretary, the Hirendra Pal Singh
case, the Joint Action Committee of Air Line Pilots’ Associations of India case, and the
K. Shyam Sunder case. These cases were looked into minutely and the court held
most of the contentions that were raised by the respondent irrelevant.

The court observed this instant issue was about an amendment struck down by
judicial review and if the contentions raised by the respondents were held to be
relevant from the conclusions of the Central Provinces Manganese Ore Co. Ltd and
other cases above, there would be a certain void that would be created. The reason
being, if neither the impugned provisions nor the amended provisions of the
constitution would survive, there would be a breakdown and failure of the
Constitutional Machinery in the matter of appointment of Judges and such a
situation would be absolutely unwanted.

The Court also relied on Indian Express Newspaper Pvt. Ltd. Case, to form a clear
intention of the Parliament while enacting the 99th Amendment. It was to provide a
new process for selection and appointment of Judges of the higher Judiciary by
amending the existing provisions. Thus when this new procedure was set aside, it
was natural for the original process for the same to revive. This contention was also
substantiated in Koteswar Vitthal Kamat case.
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Also Sections of the General Clauses Act were held irrelevant in this case because
those contentions were based on an assumption that a judicial verdict setting aside
an amendment has the same effect as a repeal of an enactment through a
legislation. This assumption would be unacceptable because “When a legislature
amends or repeals an existing provision, its action is of its own free will, and is
premised on well founded principles of interpretation, including the provisions of the
General Causes Act. Not so when an amendment/repeal is set aside through a
judicial process. When a judgment sets aside, an amendment or a repeal by the
legislature, it is but natural that the status quo ante, would stand restored.” Thus the
court concluded that the original provisions would stand restored.

This case extensively discussed the Doctrine of Revival of Constitutional

Amendments that were struck down through judicial Verdict. I feel the opinion
adopted by the court is just and fair. The reason being that if there is a void created
in the constitutional machinery, there is a very high chance that the basic doctrine
structure as discussed in Keshavnanda Bharti might be violated. Thus when a Judicial
verdict strikes down an amendment, the original provision need to be restored.
However I feel there is a need of reform in this particular aspect considering validity
of the original provisions. The need/object to create new provisions would be
substantially because of some issue that the original provisions had, thus in that
respect I feel that a body for compulsory review process is required. This body would
review the original provision and compare them to the new provisions to know the
object behind its amendment. The body should look into the judgment of the court
and try to incorporate the object of the new amendment into the old one without it
violating the laws that the new one did, if it deems fit. Otherwise they could declare
the old amendment fit and proper. This would look after 2 aspects. Firstly, the
objects of the new amendment would be fulfilled if they were homogenous with the
laws. Secondly, the issues that the original provisions might have would stand
solved.

Otherwise, I feel that the stand taken by the court is noteworthy because it has
identified the constitution to be of the highest regard and made sure that no
damage has been caused to the Constitutional Machinery.
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2) The test for violation of Basic Structure

In the instant case, it was seen that the NJAC violated the Basic Structure of the
Constitution and hence was considered invalid. To hold the same the “width of
power” test was propounded as stated in Keshavnanda Bharti case, which was also
adopted by the M. Nagraj case. This test was later rechristened in the I.R. Coelho
case as the “direct Impact” test. Also the “identity” test was stated along with the
width test for checking the violation of the Basic Doctrine Structure.

The width and the identity test check whether a constitutional amendment
obliterates or alters the Basic Structure of the Constitution. This was worded as the
Impact test in the I.R. Coelho case. It was stated that this test is the one that should
be used to determine if the Basic Structure has been violated. It was also stated that
the Court should take a synoptic view of Part III of the Constitution while applying
the “rights” test and “essence of rights test”, after which they should use the impact
test to invalidate an amendment. This ideally would be the test for violation of the
Basic Structure.

In this case, they held that the primacy of the Judiciary is a part of the Basic
Structure because violating it would alter the nature of the Constitution. In other
words it would lead the loss of the identity of the Constitution if the identity test was
applied. Hence NJAC being violative of the Basic Structure was held unconstitutional.

According to me, the court has not applied a satisfactory test but has just applied
various tests that were used in the past judgments. They looked into previous
judgments and tried to fill in the gaps to determine the test for violation of the basic
doctrine structure. The test they used is very ambiguous and as it may be seen that
all the judgments they referred to didn’t have a clear-cut test for the same. Also I
feel that the interpretation of the Basic Structure itself is very ambiguous at
instances thus weight and attention needs to be paid for it.

As seen after so many judgments, I feel the court had an opportunity again to join all
the ambiguous tests in the earlier judgments and make a clear indicative test for the
violation of the Basic Structure but it has failed. The tests that are being used for the
violation of the basic structure are not satisfactory because they are ambiguous and
not clear-cut in terms of their subject matter and ambit. Also these tests refer to
Articles 13, 14, 15, 19 and 21 along with certain Parts of the Constitution, thus it
creates a chance for ambiguous interpretation and grey area. Ideally I feel a
satisfactory test would be one, which is not objective but elaborate and defined. The
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reason is it would help curb the ambiguity as given by the objective tests and would
set parameters for interpretation. This would also assure that the interpretations are
just and in the ambit. It would also lead to uniformity of the interpretation of the
Basic Doctrine structure, as these parameters would define the limits of its ambit. It
would also avoid long discussions as given in this Judgment and interpretation of all
such past cases.

I feel the court has done a noteworthy job in using the earlier precedents to identify
different tests and link them to give their judgment but they shredded away an
opportunity to come up with a test that would clear all the confusion for the
violation of Basic Structure. I also feel that the need of an elaborate test for the
determination of the violation of the Basic Structure is required and not different
tests that link up to give a judgment in a case, this is where I feel the court could
have done a better job. I feel they should have objectified these tests into a
nutshell, done essential modifications that it deemed and have created a step-by-
step guided test. I feel they did all the groundwork to identify the tests but couldn’t
combine them into a nutshell, which could be considered as a definitive elaborate
test for the “Violation of the Basic Structure”.