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RESPONSE TO THE SUBMISSION OF THE
ATTORNEY-GENERAL IN REPLY TO GROUND M(1)
THE WRIT PETITION

I.

In ground M (1) in the Writ Petition it was stated

as follows:
(M)
GROUNDS of challenge to the
National Judicial Appointments Commission
Bill No. 96 of 2014 passed by both Houses of
Parliament in August 2014 and assented by
the President on 31.12.2014 (as the National
Judicial
Appointments
Commission
Act
2014).
M(1) The
National
Judicial
Appointments
Commission Bill No.96C of 2014 was passed by
both Houses of Parliament when Parliament had
no power, authority or jurisdiction to pass such a
Bill in the teeth of Articles 124(2) and 217(1) as
enacted in the Constitution of India, 1950. The
passing of the said Bill was itself unconstitutional,
ultra vires and void and neither the purported
ratification by State Legislatures nor the assent of
the President could give it any validity.

In answer, in the (only) affidavit filed by the Union

of India (in May 2015) Ground (M1) has not been


adverted to.

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BUT in the course of arguments of the Learned
Attorney
submitted

General
that

on

ground

16.6.2015
(M(1)

it

and

was

(orally)

arguments

of

Petitioner is support were not only technical but had


no substance.

II.

The relevant factual position from the record is as

follows:

(i)

On 11.8.2014 the NJAC Bill No.96 of 2014 was


moved by the Minister of Law in the Lok Sabha
(page

145)

The

motion

to

move

the

Bill

adopted;

(ii)

On 11.8.2014 the Law Minister also moved in Lok


Sabha that the Constitution 121st Amendment Bill
2014 be taken into consideration;

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(iii) On 12th August 2014 suspension was sought under
Rule 3881 of the Lok Sabha Rules (and granted) of
the proviso to Rule 662 proviso of the Rules of
Procedure and Conduct of Business in the Lok
Sabha;

(iv)each of the two Bills were then discussed in the Lok


Sabha on 12th and 13th August 2014;

(v)

On 13.8.2014, Constitution 121st Amendment Bill,


2014 (as per Rule 158 of Lok Sabha Rules) was on
a division passed (316:0) (page 104 of Lok Sabha
Debates) and the NJAC Bill was also passed (page
110 of Lok Sabha Debates): on a show of hands;

1 Rule 388 of the Lok Sabha Rules. 388 Any


member may, with the consent of the Speaker, move
that any rule may be suspended in its application to a
particular motion before the House and if the motion is
carried the rule in question shall be suspended for the
time being.
2: Rule 66 of the Lok Sabha Rules. 66. A Bill, which is dependent wholly or
partly upon another Bill pending before the House, may be introduced in the
House in anticipation of the passing of the Bill on which it is
dependent;Provided that the second Bill shall be taken up for consideration
and passed in the House only after the first Bill has been passed by the
Houses and assented to by the President.

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(vi) On 13th August 2014 the Rajya Sabha that
received a message (from the Lok Sabha) of the
passing of both the Bills in the Lok Sabha and a
copy of each of the Bills as passed by Lok Sabha
was

laid

on

the

table

of

the

Rajya

Sabha

(according to rules);

(vii) Discussion on these two Bills took place on 13 th


and 14th August 2014 in the Rajya Sabha, and on
14th

August

2013,

the

Constitution

121 st

Amendment Bill on a division was passed with 180


member present voting in favour of its passing
with one against (page 267 of Rajya Sabha
Debates) and the NJAC Bill.No.96 of 2014 was also
passed by the Rajya Sabha (page 375 of Rajya
Sabha Debates);

(viii) Neither of the two Bills were then presented to the


President for assent since the Constitution (121 st
Amendment) Bill required ratification under the
Proviso to Article 368(1); but after at least onehalf of the State Legislatures had ratified the

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Constitution (121st Amendment) Bill, on 31st
August, 2014 both the Constitution Amendment
Bill as well as the NJAC Bill were presented to the
President and assented to by the President;

(ix) The submission of the Attorney General was that


since the Constitution Amendment Bill had been
first assented to (which was obvious), followed by
the Presidential assent to the NJAC Bill, it must be
also assumed that the Constitution stood amended
on 31st August, 2014 and the NJAC Bill having
then received Presidential assent on the same day
it then became law hence the contention of the
Petitioners was not only technical but also of no
substance.

THE RESPONSE OF THE PETITIONERS TO THE


ABOVE SUBMISSION IS AS FOLLOWS:

1.

First,

assuming

the

Learned

Attorney

Generals

assumption about sequence of assent by the President


to the two Bills be correct as something to be
assumed in natural and normal course, it is clear from

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the recitation of the above events (including the
suspension of Rule 66 of the Lok Sabha Rules) that the
two Bills were inter-dependent [as had been stated in
the forwarding letter of Secretary General of Rajya
Sabha to all State Legislatures (Annexure-A)] and as
was inherent in the motion made and granted for
suspension of the proviso to Rule 66 of the Lok Sabha
Rules. It is also apparent that the provisions made in
the Constitution (99th Amendment) Act, 2014

(along

with the NJAC Act, 2014) (read together) were in


substitution of Articles 124(2) and 217(1) of the
Constitution as originally enacted in 19503; and the
substitution of words in the two Articles along with
insertion of new Article 124A, 124B and 124C was an
integral part of the new scheme (expression used in
Unions affidavit in reply the provisions of each of the
two Acts when enacted comprised a substitution of
the provisions of Article 124(2) and 217(1) as they
existed on and from 1950.

In any case the provisions in Section 5 and 6 of the


Act relating to veto were not procedural they were
substantive since if the constitutional amendment
3 The Amendment and the Act nowhere asserts that it
is to operate respectively.

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stood alone if a majority of (4 members) had
recommended X and Y it could not be shot-down
by any negative vote.

2.To submit a truncated part of the new scheme for


ratification leaving out the NJAC Act, 2014 was not
justified

since

the

proposed

constitutional

amendment in form and substance consisted of


one

integrated

measure

(or

scheme)

for

substitution and insertion for the previously


existing provisions contained in Article 124(2) and
Article 217(1) respectively viz. in the first of which
(Article 124(2)) the words after consultation with
such of the Judges of the Supreme Court and of
the High Courts in the States as the President may
deem

necessary

substituted

for

with

recommendation

of

the

the
the

purpose
words
National

were

on

the

Judicial

Appointments Commission referred to in Article


124A; as also the deletion of the first Proviso to
Article 124(2) (viz. provided that in the case of
appointment of a Judge other the Chief Justice, the
Chief Justice of India shall always be consulted);
and in the second of which (Article 217(1)) the

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words after consultation with the Chief Justice of
India, the Governor of the State and in the case of
appointment of a Judge other than the Chief
Justice, the Chief Justice of the High Court were
substituted

with

recommendation

the
of

words

the

on

National

the
Judicial

Appointments Commission referred to in Article


124A the Constitution amendment having also
provided for insertion of Articles 124A, 124B and
124C.

It is submitted that it was the new scheme (in its


entirety

as

contained

in

Constitution

(99 th

Amendment) Act, 2014 as well as in the NJAC Act,


2014) that had sought to make effective changes
in Chapter IV of Part-5 and Chapter V of Part-6 of
the Constitution and hence the integrated scheme
of substitution (including insertion) not piecemeal but as a whole required ratification under
Proviso to Article 368(2), and not having been in
its entirety ratified there has been no effective
constitutional amendment.

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3.
Although the newly inserted Article 124C read (in
its opening words: Parliament

may, by law

regulate the procedure for the appointment of


..), in fact as the newly inserted Article 124C
stood after

assent of the President on 31 st

December, 2014 it had to be read as: Parliament


has by law regulated the procedure for the
appointment of .

When so read it is clear that the provisions of the


NJAC Act, 2014 were a part and parcel of the new
scheme for appointment of Judges of the Higher
Judiciary, which having already been enacted as
law on 31st December, 2014 and brought into force
on and from 13th April, 2015 it could not be
operate as a constitutional amendment since: (i)
the NJAC Act, (which was the Act mentioned in
Article

124C)

had

not

been

passed

as

constitutional amendment, and (ii) because more


importantly) it had not been got ratified by State
Legislatures under the Proviso to Article 368(2).

As a result of the above it is respectfully submitted


that there has been no effective constitutional

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amendment by way of substitution (and insertion)
since the entire new scheme (especially the law
enacted by Parliament with Presidential assent as
from 31st December, 2014 was not submitted for
ratification nor ratified by State Legislatures under
the Proviso to Article 368.

II(i) If the aforesaid submission be not accepted as


correct and if it be held that the Constitution (99 th
Amendment) Act, 2014 is the only new scheme
for appointment of Judges in the Higher Judiciary in
substitution (with addition) of the old scheme in
Article 124(2) and Article 217(1) as originally
enacted, then again, the new scheme has not
lawfully taken effect since the law (the NJAC Act,
2014) was already passed by both Houses of
Parliament in August 2014 at a time when Articles
124(2) and 217(1) were a part of the Constitution
(Ground M-1 in the Writ Petition)

(ii)

Again with respect to ground M(i) the plea that


Article 122(1) of the Constitution was breached
and if the plea in ground M-1 is upheld - is based
on a misconception.

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It is submitted that this Honble Court in the


Constitution Bench Decision of Babulal Parate vs.
State of Bombay: 1960 (1) SCR 605 (5J) at page
616 has held that Article 122(1) of the Constitution
is inapplicable where there is a violation of a
constitutional provision.

The relevant portion

reads as follows:
It is advisable, perhaps, to add a few more
words
about
Article
122(1)
of
the
Constitution.
Learned counsel for the
appellant has posed before us the question
as to what would be the effect of that Article
if in the Bill, completely unrelated to any of
the matters referred to in Clauses (a) to (e) of
Article 3, an amendment was to be proposed
and accepted changing (for example) the
name of a State. We do not think that we
need answer such a hypothetical question
except merely to say that if an amendment is
of such a character that it is not really an
amendment and is clearly violative of Article
3, the question then will be not the validity of
proceedings in Parliament but the violation of
a constitutional provision. That, however, is
not the position in the present case.
Besides, it has now been held by a Constitution
Bench of the Supreme Court of India in Raja
Rampal vs. The Speaker: 2007 (3) SCC 184, paras
360-363 as follows:
360. The question of extent of judicial
review of parliamentary matters has to be
resolved with reference to the provision
contained in Article 122(1) that corresponds

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to Article 212 referred to in Pandit Sharma
(II)4.
On a plain reading, Article 122(1)
prohibits the validity of any proceedings in
parliament from being called in question in
a court merely on the ground of irregularity
of procedure. In other words, the procedural
irregularities cannot be used by the court to
undo or vitiate what happens within the four
walls of the legislature. But then, procedural
irregularity stands in stark contrast to
substantive illegality which cannot be
found included in the former. We are of the
considered view that this specific provision
with regard to check on the role of the judicial
organ vis-a-vis proceedings in Parliament
uses language which is neither vague nor
ambiguous and, therefore, must be treated as
the constitutional mandate on the subject,
rendering unnecessary search for an answer
elsewhere or invocation of principles of
harmonious construction.
361. Article 122 corresponds to draft Article
101 which was considered by the Constituent
Assembly on 23-05-1949.
Though the
marginal note of the article, courts not to
enquire into proceedings of Parliament
clearly indicates the import of the provision
contained therein, Mr. H.V. Kamath introduced
an amendment that the words in any court
be inserted after the words called in
question in Clause (1).
Answering the
debate that had followed, Dr. B.R. Ambedkar
intervened and clarified as under: (8 CAD
p.200).
The Honourable Dr.B.R. Ambedkar. Sir,
with regard to the amendment of Mr.
Kamath, I do not think it is necessary,
because where can the proceedings of
Parlaiment be questioned in a legal
manner except in a court? Therefore
the only place where the proceedings of
Parliament can be questioned in a legal
manner and legal sanction obtained is
4 M.S.M. Sharma vs. Dr. Shree Krishna Sinha, AIR
1960 SC 1186: (1961) 1 SCR 96 (Eight Judges)

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the court. Therefore it is unnecessary to
mention the words which Mr. Kamath
wants in his amendment.
For the reason I have explained, the only
forum where the proceedings can be
questioned in a legal manner and legal
relief obtained either against the
President or the Speaker or any office or
Member, being the court, it is
unnecessary to specify the forum. Mr.
Kamath will see that the marginal note
makes it clear.
362. The above indeed was a categorical
clarification that Article 122 proceedings.
What the provision intended to prohibit thus
were cases of interference with internal
parliamentary proceedings on the ground of
mere procedural irregularity.
363. That the English cases laying down the
principle
of
exclusive
cognizance
of
5
Parliament, including Bradlaugh , arise out of
a jurisdiction controlled by the constitutional
principle of sovereignty of Parliament cannot
be lost sight of. In contrast, the system of
governance in India is founded on norm of
supremacy of the Constitution which is
fundamental to the existence of the Federal
State. Referring to the distinction between a
written Federal Constitution founded on the
distribution of limited Executive, Legislative
and Judicial authority among bodies which
are coordinate with and independent of each
other on the one hand and the system of
governance in England controlled by a
sovereign Parliament which has the right to
make or unmake any law whatever, this Court
in U.P. Assembly case (Special Reference No.1

5 Bradlaugh v. Gossett, (1884) 12 QBD 271: 53 LJQB


290: 50LT 620.

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of 1964)6 concluded thus in paras 40 and 41:
(AIR pp. 762-63)
40. Our legislatures have undoubtedly
plenary powers, but these powers are
controlled by the basic concepts of the
written Constitution itself and can be
exercised within the legislative fields
allotted to their jurisdiction by the three
Lists under the Seventh Schedule; but
beyond the Lists, the legislatures cannot
travel. They can no doubt exercise their
plenary
legislative
authority
and
discharge their legislative functions by
virtue of the powers conferred on them
by the relevant provisions of the
Constitution; but the basis of the power
is the Constitution itself. Besides the
legislative supremacy of our legislatures
including
Parliament
is
normally
controlled by the provisions contained in
Part III of the of the Constitution. If the
legislatures step beyond the legislative
fields assigned to them, or acting within
their respective fields, they trespass on
the fundamental rights of the citizens in
a manner not justified by the relevant
articles
dealing
with
the
said
fundamental rights, their legislative
actions are liable to be struck down by
courts in India.
Therefore, it is
necessary to remember that though our
legislatures have plenary powers, they
function within the limits prescribed by
the material and relevant provisions of
the Constitution.
41. In a democratic country governed by
a written Constitution, it is the
Constitution which is supreme and
sovereign. It is no doubt to true that the
Constitution itself can be amended by
Parliament, but that is possible because
Article 368 of the Constitution itself
makes a provision in that behalf, and
6 AIR 1965 SC 745: (1965) 1 SCR 413 sub nom Keshav
Singh, In re.

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the amendment of the Constitution can
be validly made only by following the
procedure prescribed by the said article.
That shows that even when Parliament
purports to amend the Constitution, it
has to comply with the relevant
mandate of the Constitution itself.
Legislators, Ministers, and Judges all
take oath of allegiance to the
Constitution, for it is by the relevant
provisions of the Constitution that they
derive their authority and jurisdiction
and it is to the provisions of the
Constitution that they owe allegiance.
Therefore, there can be no doubt that
the sovereignty which can be claimed
by Parliament in England, cannot be
claimed by any legislature in India in the
literal sense.

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page 371431. We may summarise the principles that
can be culled out from the above discussion.
They are:
(a) .................................................................
(n) Article 122(1) and Article 212(1) prohibit
the validity of any proceedings in legislature
from being called in question in a court
merely on the ground of irregularity of
procedure;

(s) The proceedings which may be tainted on


account of substantive or gross illegality or
unconstitutionality are not protected from
judicial scrutiny.

(iii) The reply then to the submission of the Learned


Attorney General in what he (erroneously) has
described

as

technical

question,

respectfully submitted that the

it

is

real question

(howsoever characterised) is:


Whether the National Judicial Appointment
Commission Bill No. 96 of 2014 having been
passed by Parliament (both Houses) at a time
when the Constitution had not yet given
authority to Parliament to set up and
prescribe by law the procedure for a National
Judicial Appointments Commission, the
passage of such Bill by Parliament (though
assented to by the President was illegal
(Article 122(1) being inapplicable to an illegal
Act) the NJAC Act 2014 was ultra vires the
Constitution: Parliament had no competence
or authority to permit introduction of a Bill

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(NJAC Bill) much less passing it as an
ordinary Bill without first amending the
constitution

In Saghir Ahmad Vs. State of U.P. (5J) 1955 (1)


SCR 708 at page 728

Chief Justice Mukherjea

speaking for the Constitution Bench of the Court


categorically held that an amendment of the
Constitution which came later, cannot be invoked
to validate an earlier legislation which must be
regarded as unconstitutional when it was passed;
a statute invalid for unconstitutionality is dead and
cannot be vitalized by a subsequent amendment
removing the constitutional objection but must be
reenacted.

The National Judicial Appointments Commision Bill


of 2014 when purportedly passed in August 2014
by Parliament was dead when purportedly passed
as being directly opposed to Article 124(2) and
Article 217(1) as they then stood.

Consequently

the NJAC Act, could only be validly enacted after


31st December, 2014 when the Constitution (121st
Amendment) Bill, 2014 (after ratification by State

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Legislatures) received Presidential assent and
became

law

the

Constitution

then

stood

amended w.e.f. 31st December, 2014 .

The decision in Saghir Ahmad Vs. State of U.P.


(5J) 1955 (1) SCR 708 has been relied on in
Deepchand (5J) 1959 Supp. (2) SCR 8 at page 3435); as also in Mahendra Lal Jaini v. State of U.P.
1963 Supp. 1 SCR 912 (5J) where (in the latter)
Justice Wanchoo speaking for the Constitution
Bench clearly said:
It is in our opinion absolutely elementary
that the constitutionality of an Act must be
judged on the basis of the Constitution as it
was on the date the Act was passed subject
to any retrospective amendment of the
Constitution.

In Mahendra Lal Jaini the argument that the


constitutionality of the Transfer Act had to be
judged on the basis of the Constitution as it stood
on the date when the writ petition was filed in
Court was firmly rejected.

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Hence, in the present case despite their


togetherness each of the two measures even if
considered separately then as submitted in ground M of
the Writ Petition, Parliament had no competence to pass
the law i.e. the NJAC Act, in August, 2014 since it was
totally inconsistent with the Constitutional provisions
then existing in the Constitution viz. Article 124(2) and
Article 217(1).

It was contended that under Article 122(1) of the


Constitution this plea is barred. It is respectfully
submitted it is not (see above). Article 122(2) is
only limited to procedural irregularities and not an
illegality in the passing of the Bill. The passing of
the Bill in each of the two Houses are governed by
Article 118 that is to say by Rules 93 to 97 of the
Lok Sabha and by Rules 109 to 111 (and 121 to
134) of the Rajya Sabha.

The Legislative Bill (the NJAC Bill), 2014 was


passed by each of the Houses illegally since so
long as Article 124(2) and Article 217(1) remained
in the Constitution it was illegal to have a New
Scheme of appointments radically different from

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the one envisages and provided for in Article
124(2) and Article 217(1).

The Constitution (99th Amendment) Act, 2014


which

substituted

the

National

Judicial

Appointments Commission as the Body to make


recommendations to the President in place of the
Scheme contained in Article 124(2) and Article
217(1) became law only on 31 st December, 2014
after Presidential assent and came into force on
the same day on 13th April, 2015 under two
Government Notifications.

Consequently, the provisions contained in Section


3 of the Constitution (99th Amendment) Act, 2014
became a part of the Constitution of India only on
and from 31st December, 2104 not earlier.

Parliament could not have passed any Legislation


in defiance or inconsistent with the Constitution in
force on the date when the Legislative Bill got
passed. Admittedly on 14th August, 2014 original
Articles 124(2) and Article 217(1) remained in full

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force and effective and had not been replaced till
months later.

Consequently the passing of the NJAC Bill, 2014


which became an Act at the earliest on and after
31st December, 2014 was an illegality and cannot
be supported in principle or in law.

ON

THE

EFFECT

OF

UNCONSTITUTIONALITY

(INVALIDITY)

- Once the Court declares a statute unconstitutional it is


void from its inception. It is regarded as nonest. Thus
the law is ineffectual and nugatory and devoid of any
legal force or binding effect (no doctrine of eclipse for
revival (p-932)

Mahendra lal Jaini Vs. State of UP 1963 (S1) SCR 912


(5J) 939.