Battle of power: Collegium vs NJAC
The tweet by the Vice President of India on 7 December 2022 stating that “the historic NJAC Bill, passed unanimously by the Parliament, was undone by the Supreme Court using the judicially evolved doctrine of ‘Basic Structure’ of Constitution. There is no parallel to such a development in democratic history of the world”, has exposed the rift between the government and judiciary over the mechanism of appointing judges through the Collegium system of the Supreme Court.
The SC’s Collegium system for appointing and transferring judges has gradually evolved from three judgments known as the judge’s case. In SP Gupta v. UOI [First Judges Case, (1981) Supp SCC 87], Justice Venkataramiah, in his verdict, penned that under Article 217, the President is vested with the power to appoint a High Court Judge. While the President is bound to consult and consider the opinions of the authorities mentioned therein, he is not bound by their opinions. SC suggested that a collegium must recommend the President to appoint an SC or a High Court Judge and ruled that the CJI was not entitled to primacy in case of a difference of opinion, thus giving the executive primacy in the appointment of judges. However, in SC Advocates-on Record Association vs Union of India, [Second Judges Case, (1993) 4 SCC 441], the 9-judge bench of SC partly overruled the Gupta’s judgment and held that the CJI had primacy in case of difference of opinion and introduced the collegium system, holding that “consultation” really meant “concurrence”. In re Special Reference 1 of 1998, [Third Judges Case, (1998) 7 SCC 739], the 9-judge bench of SC further explained the meaning of the expression “consultation with the CJI” under Articles 217(1) and 222(1) by holding that it requires consultation with a plurality of judges in the formation of the opinion of the CJI and not his sole individual opinion. Upon President’s reference, SC expanded the Collegium to a five-member body comprising the CJI and four of his senior-most colleagues. Since then, the recommendation for appointment and transfer of judges across High Courts by the collegium of five seniormost judges of SC has been the law of the land.
Nevertheless, the mechanism of appointment by the Collegium of SC has been marred by allegations of opacity, lack of transparency and social diversity in their recommendations. To overcome criticisms, the government promulgated the National Judicial Appointments Commission Bill, 2014 [NJAC], in conjunction with the Constitutional (121st Amendment) Bill, 2014. The NJAC comprising six persons [CJI, Two senior judges of the SC next to CJI, Union Minister of Law, and Two eminent persons], was to replace the Collegium system.
Since the provisions of NJAC stipulated sharing of wisdom of appointment of judges with the political executive and further sought to give politicians and civil society a final say in the appointment of judges to the highest courts, SC struck down the NJAC and the Constitutional amendment in 2014 by holding that the judiciary could not risk being caught in a “web of indebtedness” towards the government.
The striking down of NJAC created a wedge between the judiciary and the government, leading to a phase where the names recommended by the Collegium were either sent back by the government for reconsideration or a stoic silence was maintained without accepting or rejecting the recommendations, contributing to large vacancies across India.
Recently, an unhealthy debate erupted in the public domain wherein the government accused the Collegium system of being opaque and unaccountable, while the SC criticized the government for delaying and ignoring the Collegium’s recommendations. The argument reached a stage where the VP’s office tweeted the above statement and also tweeted that “we need to bear in mind that in a democracy, basic of any ‘Basic Structure’ is the primacy of the mandate of the people reflected in the Parliament” on the same day.
Whilst the government is entitled to an opinion concerning striking down the NJAC, care should be taken that such an opinion does not undermine the SC’s power of judicial review by drawing parallels with the democratic history of the world without naming any specific country. It has to be borne in mind that India is not governed by parliamentary supremacy like the UK, which lacks a written constitution.
The vacuum created by the absence of a written constitution in a country like the UK is filled by the doctrine of parliamentary supremacy. In such countries, the courts do not have the power to amend or repeal any law questioning the validity of the laws made by the parliaments. Thus, comparing the power of judicial review by SC with the courts in countries without a written constitution is like comparing apples and oranges.
Even in the absence of a written constitution, the seeds of judicial review in the UK were sowed long back in 1610 in Bonham’s Case, wherein Sir Edward Coke, Chief Justice of England’s Court of Common Pleas, declared that “when an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.”
In the US, a democracy governed by constitutional supremacy, the courts have exercised powers of judicial review to strike down a law inconsistent with constitutional values. In Marbury v. Madison, the US Supreme Court established the principle of judicial review in the United States, confirming the powers of American courts to strike down laws and statutes inconsistent with the constitution.
The power to strike down a law if it does not conform with the constitutional principles cannot be distinguished by narrowing down the expression ‘basic structure’ of the constitution, which includes the supremacy of the constitution and the independent judiciary as an essential part. Therefore, the SC is well within its powers to declare a law unconstitutional if it interferes with that structure. Similarly, the law settled by the SC in the judge’s case cannot be considered beyond the powers granted to the SC by the constitution itself under Articles 141 and 142.
The conflict over the mechanism of appointment of judges can be resolved by mutual understanding and consultation, which should take place at the earliest, failing which not only the vacancies will soar, but brilliant minds will also be discouraged from accepting judicial appointments. Until legislation to replace the Collegium system is enacted, the recommendations made by the Collegium should be respected by deliberating and deciding upon them at the earliest. Also, steps should be taken to avoid public confrontation, which undermines the authority of both the SC and the government.
Conundrum over attachment proceedings under the anti-money laundering law
The challenge to the constitutional validity of various sections of The Prevention of Money Laundering Act 2002 (PMLA) in Vijay Madanlal Choudhary versus Union of India is done and dusted. The Supreme Court has spoken and spoken in a manner which gives more supremacy to the ED in its investigation and attachment proceedings under the PMLA.
As implied in the statement of objects and reasons, the primary objective of PMLA, 2002 is to confiscate the proceeds of crime generated out of scheduled offences and projected as untainted money so that no criminal can benefit from his crime. The said objective is achieved by adopting procedures for the identification, provisional attachment, confirmation of attachment and finally, confiscation of the “proceeds of crime” after conviction of the offender by a Special Court set up under the PMLA. Chapter III of the PMLA relates to attachment and confiscation. Section 5 empowers the authorised officer under the PMLA to provisionally attach the properties derived from “proceeds of crime” based on reasons to believe that the same is likely to be concealed, transferred, or dealt with in any manner resulting in frustration of the confiscation procedure. Thereafter, the officer shall forward a complaint to Adjudicating Authority (AA) (appointed under Section 6) to confirm the said provisional attachment, who will issue notice to the parties concerned under Section 8(1) and only after hearing the parties and considering the relevant materials on record, confirm the provisional attachment under Section 8(2).
Considering the provisions above, the Supreme Court held that Sections 5 and 8 provide sufficient safeguards as preconditions and, therefore, cannot be termed unconstitutional. Be that as it may, the Supreme Court may be correct to affirm the purport of the sections, as the same is only in the nature of attachment, confined to a limited period and subject to confirmation by the AA or the Special Court as the case may be.
However, the safeguards enunciated under PMLA have a glaring breach, where the conundrum starts. Admittedly, Section 8 also provides for various inbuild safeguards. Some of them are in the form of confining the period of final attachment order so that a person is not deprived of his constitutional right to property without following the due process of law. For example, Section 8(3)(a) stipulates that the attachment of the seized property shall continue during the pendency of the proceedings relating to any scheduled offence before a court and 8(3)(b) provides that the attachment shall become final only after the guilt of the person is established in the trial court. And the order of such trial court attains finality.
However, the subsequent provision, i.e., Section 8(4), contradicts the said safeguard under Section 8(3)(a) and 8(3)(b) by stipulating that as soon as the provisional attachment order under sub-section (1) of Section 5 has been confirmed under Section 8(3), the authorised officer shall forthwith take the possession of the attached property. The word “shall” in the section, in a way, makes it mandatory. Therefore, on the one hand, Section 8(3)(a) and 8(3)(b) ensures that property will remain under attachment subject to either conviction or acquittal of the person by the special court. However, on the other hand, Section 8(4) mandates the authorised officer to take possession of the property as soon as the order under Section 8(3) is passed, disregarding the overall safeguards and that too without any confirmation of the guilt by the Special Court.
It is not as if the legislature or the courts are oblivious to the said concern. This issue was raised before the Supreme Court in Choudhary’s case, and the Supreme Court, while refusing to strike down the said provision, accepted the problem by observing that “it is unfathomable as to how the action of confiscation can be resorted to in respect of property in the event of his acquittal or discharge in connection with the scheduled offence”. However, the provision was still not struck down by providing a via media that the provision under Section 8(4) could be resorted to only by way of an exception and not as a rule. The issue was again raised before the Supreme Court, and the erstwhile CJI N.V. Ramana observed that the interpretation of Section 8(4) of the anti-money laundering law in Choudhary’s case had left much scope for arbitrary application. The interpretation, as it stands now, upon confirmation of the attachment order under Section 8(3), gives discretion to the ED to decide whether to take possession of the property under Section 8(4) or not. The factors guiding such discretion are prone to misuse.
The misuse of Section 8(4) is not a fanciful exaggeration, and the reality is felt on the ground. Recently, in a case before the High Court of J&K and Ladakh in the matter of one Syed Akeel Shah (LPA No.203/2022), the appellants were being evicted from the attached property by taking action under Section 8(4) even before their statutory appeal under Section 26 could be heard. However, while relying on Choudhary’s case, the court refused to protect the parties by observing that there is no scope to interpret the provisions, to hold that the authorised officer has to wait till the expiry of the limitation period before acting under Section 8(4) of the PMLA.
Apart from other lacunae, it seems that the safeguards provided under Section 8 protect a person only on paper and miserably fail for practical purposes. There is an urgent need to look into this issue at legislative and judicial levels and rectify the lacuna by making necessary amends, or it will keep providing arbitrary power to the authorities, which is prone to misuse.
