Of reference to larger bench and NJAC challenge petitions – some points for consideration
The constitution bench comprising of Hon’ble Mr. Justice A. R. Dave, Mr. Justice J. Chelameswar, Mr. Justice M.B. Lokur, Mr. Justice Kurian Joseph and Mr. Justice Adarsh Goel, J.J is all set to hear the matter relating to the appointment of judges in High Courts and Supreme Court of India from 15 April 2015. These set of writ petitions challenge the constitutional validity of Constitution (Ninety –Ninth Amendment) Act, 2014 and National Judicial Appointments Commission Act, 2014 – through which the Parliament of India has sought to alter the prevailing collegium system for judicial appointments. The Constitution (Ninety–Ninth Amendment) Act, 2014 and National Judicial Appointments Commission Act, 2014 got the assent of President of India on 31st December 2014 and were notified to be in force on 13 April 2015. The collegium system of judicial appointment, which remained in vogue since the decision of Supreme Court of India in Supreme Court Advocate on Record Association vs. Union of India reported as (1993) 4 SCC 441 could be aptly described as ‘judicial coup of power’ from the executive; contrary to the original constitutional scheme through the process of interpretation (one can refer Arohan Barack’s Purposive Interpretativism), where Supreme Court of India read and attributed meaning to the word ‘Consultation’ as ‘Concurrence’.
However, this piece is not a comment or analysis which examines the legal position on judicial appointments, but, rather seeks to highlight few of the points from the point of practice and procedure of the Supreme Court of India. It mainly focuses on the practice of ‘referring the matter to a larger bench’ and their subsequent listing before such larger bench.
Reference to Larger Bench
Normally Appeals (civil or criminal), Writ Petitions (civil or criminal) and Special Leave Petitions under Article 136 of Constitution are heard by a Division Bench or full bench in Supreme Court of India. As a matter of practice, convention backed by the theory of precedent, such division bench refers the matter to constitute larger bench normally in two set of circumstances:
- When a substantial question of law as to the interpretation of Constitution arises; or
- When there is apparent conflict in the ratio laid down by the equal strength of benches of the Supreme Court of India on the same point of law/ legal issues.
However, there is no policy/guidelines/framework available in the public domain as how these matter referred to larger bench would get listed for final hearing and when the appropriate bench would be constituted by the Supreme Court of India. It is purely in the administrative domain of the Chief Justice of India to constitute such larger bench and list the matter for hearing.
It is interesting to note that the NJAC petition was referred to larger bench by an order dated 7 April 2015 and the notification to constitute larger bench to hear the same was in public domain on 9 April 2015; the hearing for which is supposed to commence from 15 April 2015. This is perhaps the quickest constitution of larger bench of a referred matter by the Chief Justice of India.
Furthermore, to cite few more examples, there was another case titled as Rohtas Bhankhar vs. Union of India reported as (2014) 8 SCC 872 which got finally decided by a Constitution Bench on 15 July 2014 by a bench headed by then Chief Justice R.M. Lodha. However, this petition was referred by a bench of three judges to the Constitution Bench by an order passed long before on 2 December 1999. As a matter of fact, it took almost 15 years to constitute an appropriate bench and finally get the matter decided under the stewardship of then Chief Justice of India.
Although, an account of all such referred matter to larger bench is impossible to give; but to cite another matter which is of constitutional as well as of general importance, which has been referred to larger bench would bring home the point of having a uniform policy: the correctness of Secretary, State of Karnataka vs. Uma Devi reported as (2006) 4 SCC 1 has been doubted and the matter has been referred to larger bench by an order dated 14 March 2011 by the division bench of the Supreme Court of India. However, till date there has been no progress on the listing of this matter and constitution of appropriate bench.
Similarly, there are other matters (Civil Appeal, Criminal Appeals, Writ Petitions and Special Leave Petitions) pending before Supreme Court of India, which has been referred for the constitution of larger bench to lay down the authoritative pronouncement on legal issues. However, in absence of a uniform policy and guidelines – the present practice impinges upon the ‘Equality Clause’ as enshrined in the Article 14 of the Constitution of India as the action/ decision of the Supreme Court of India to list one set of petitions quickly and other delayed (although, same may not be intentional) has the potential to discriminate between two set of litigants.
Furthermore, it is not the first time a PIL challenging the ‘Collegium System of appointment’ as established through a decision of Supreme Court of India in Supreme Court Advocate on Record Association vs. Union of India reported as (1993) 4 SCC 441 has been referred to larger bench. Earlier a division bench of Supreme Court of India in Suraz India Trust v. Union of India (another PIL) reported as (2012) 13 SCC 497 has referred the core legal issues surrounding the ‘Collegium System’ for the constitution of larger bench to the Chief Justice of India. However, the matter when got placed before a bench of three judges (comprising of J. Altamas Kabir, CJI, Justice J. Chelameswar and Justice Vikramjit Sen), was by an order dated 7 January 2013 was dismissed on the issue of maintainability itself. The relevant operative order reads as under:
“Having considered the submissions made by Mr. A.K. Ganguli, learned senior counsel, with regard to the maintainability of the writ petition and the prayers made therein, we are not inclined to entertain the writ petition, which is accordingly dismissed”.
It is further stretched out as how a PIL then titled as ‘Suraz India Trust vs. Union of India’ initially referred by a division bench raising and pointing a set of substantial question of law of Constitutional importance gets dismissed by a subsequent three judge bench on the issue of maintainability of such writ petition in form of PIL. Whereas, the present set of petitions (all PILs) challenging the constitutionality of Constitution (Ninty–Ninth Amendment) Act, 2014 and NJAC Act, 2014 gets referred to larger bench without a discussion on its maintainability and that also through a non- reportable order. (Kindly see the order of Supreme Court dated 07 April 2015 which has been marked as ‘Non- Reportable’).
Ravi Prakash is an advocate at the Supreme Court of India.