The Supreme Court has said it is “premature” to interrupt the ongoing legislative process and examine the constitutionality of the Constitution amendment and National Judicial Appointments Commission Bills before they were made law.
A Supreme Court bench of Justices Anil R. Dave, J. Chelameswar and A.K. Sikri refused to entertain a bunch of PILs that termed the six-member NJAC a threat to judicial independence and a violation of the basic structure of the Constitution.
“We are of the view that the petitions are premature. It is open for the petitioners to approach the court at a later stage on the same ground,” the court said while dismissing the PILs after a hearing which extended over an hour.
‘Review only after ratification as law’
Instead, the court chose to respect the Parliament’s prerogative to pass laws by agreeing with Attorney General Mukul Rohatgi’s submission that judicial review of the Bills can be done only after they are notified as law and not now, when they are still “exclusively within the legislative domain” and awaiting ratification by at least 15 States.
The Bills, now passed by Parliament, if made into law after ratification by State legislatures and subsequent assent of the President, arm politicians with an equal role in the appointment of judges to the highest judiciary,
The hearing started with senior advocate Fali Nariman, representing the Supreme Court Advocates-on Record Association, said there was no hard and fast rules as to when a court can examine a challenge to the constitutionality of a Bill.
He said it was better to raise a challenge at an “initial stage” rather than after the President gives his assent and the Bill was made a law.
“It is all a matter of prudent judicial policy since there is no prescription as to at what stage the court can challenge,” Mr. Nariman submitted. Former Additional Solicitor General Bishwajit Bhattacharya also argued that the apex court is well within its rights to check the constitutional validity of a Bill.
But Mr. Rohatgi countered them, saying their PILs were nothing more than “academic”.
“The Bill is undergoing legislative process. The legislative process is not complete. The Bill has to be first ratified by the States, then receive the assent of the President and finally notified in the gazette as law of the land. Then, if someone is affected by that law, that person can come for judicial review of the law. Now this Bill is exclusively in the legislative domain, it within the legislative hold,” the Attorney General argued.
He said the legislature would be reduced to “absolute chaos” if someone was allowed to challenge a Bill at every stage.
“So for now whatever is happening with the Bills in the House should be decided by the House,” Mr. Rohatgi said.