Saturday, August 30, 2014

Excessive Delegation in the Judicial Appointments Bill?

We bring you a guest post from Aradhya Sethia, a very bright third year student of the National Law School, Bangalore.

The Vice of Excessive Delegation in the NJAC Bill, 2014: The Devil is in Details

The reforms on judicial appointment in India have largely focussed on the question: ‘who should select the judges?’ However, they have largely ignored the two equally, or probably, even more important questions: ‘how should the judges be selected?’ and, ‘who should be selected as a judge?’ The hastily passed NJAC Bill in the Parliament has indeed sought to substantially answer the first question i.e. who should select? The other two questions have been left completely to the Central Government and the Commission. The tussle between the judiciary and the executive has been the cornerstone of the ‘Separation of Powers’ debates surrounding the Bill. However, the Bill also poses serious questions with respect to separation between legislative and executive functions, which is manifested in the delegation of legislative powers, an issue at the heart of the separation of powers between executive and legislative. In this post, I will analyse, if such wide delegation of powers in the Bill is constitutionally sustainable.

Doctrine of Excessive Delegation

According to the doctrine of excessive delegation, if the legislature excessively delegates its legislative function to any other authority, such delegation will be held unconstitutional. This doctrine fulfils two objectives: first, it ensures democratic accountability in the laws through which the people are governed and, second, minimum delegation provides the courts with some discernible standard to judge if the rule/regulation is ultra vires the parent statute. 

However, the question that arises is: where exactly do we draw the line for ‘permissible limits’ of delegation? In Re: Delhi Laws Act [AIR 1951 SC 332], Kania C.J. stated that though legislature can confer powers to make rules and regulations for carrying the enactment into “operation and effect”, it should lay down the “policy and principles providing the rule of conduct”. The wide latitude in rule-making power to any non-legislative authority can be left only in “cases of emergency like war”. In Ajoy Kumar Banerjee v. Union of India [1984) 3 SCC 127], the court held that “declaring the legislative policy and laying down the standard with sufficient clarity” constitutes ‘essential legislative function’, which cannot be delegated. In Agricultural Market Committee v. Shalimar Chemical Works Ltd. [(1997) 5 SCC 516], the permissibility of delegation was further restricted only to ‘mode of implementation’. This brief survey of loci classici on permissibility of delegation makes it clear that the function of subordinate legislation is merely an ancillary one to make the policy functional rather than making policy choices. 

Determining Suitability Criteria is not a “procedural or administrative” function

In the NJAC Bill, there are two types of powers delegated to the Commission: The first one pertains to determining suitability criteria, which includes mainly the criteria of suitability with respect to appointment of the Judges [s. 5(2) and s. 6 (3)]. The second type pertains to procedural and administrative issues including the ‘manner of eliciting views from Chief Ministers and Governors’[s. 12(2)(e)], ‘procedure for conducting the meetings of the commission’ [s.12(2)(i)] etc. The delegation of the second type, being merely procedural and administrative in nature, can be tolerated. The problem arises specifically with respect to the first type of delegation dealing with suitability criteria. 

The ‘Memorandum Regarding Delegated Legislation’ of the Bill states that the delegation is merely ‘procedural or administrative’ in nature, and hence of normal character. The factors for selection of Judges not only reflect the kind of duties that the judiciary is expected to perform, but also embody the vision of judiciary that we envisage. Therefore, the delegation vis-à-vis determination of suitability criteria is not merely a procedural or administrative function, but necessarily involves making policy choices in tune with our vision of the higher judiciary. Therefore, such delegation falls beyond the scope of the memorandum, which is only restricted to procedural or administrative. Since the delegation in the Bill actually extends beyond procedural or administrative functions, it cannot be said to be of normal character. 

There is no policy guidance for determining Suitability Criteria

The delegation of legislative functions in the Bill is indeed very broad. However, such a broad delegation may not be problematic if the legislation itself contains sufficient principles to guide the Commission. The Statements of Objects and Reasons of the NJAC Bill seem to focus mainly on the shift of power of selection from the existing system to the Commission. There doesn’t seem to be any policy which may guide the determination of selection criteria. The only guidance in the statement of objects and reasons is that the recommendation procedure should have greater ‘transparency, accountability and objectivity’. Further, in the provision itself, the only other policy guideline is the phrase ‘ability and merit’. Any judicial attempt to construe these vague phrases as sufficient policy guideline for laying down selection criteria would result into what Mathew J., in his dissenting opinion once put as: “the hunt by court for legislative policy or guidance in the crevices of a statute or the nook and cranny of its preamble”, which, “is not an edifying spectacle” [Gwalior Rayon Co. v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660]. 

Subject matter of the legislation does not necessarily require such delegation

There have been rare cases where the courts have upheld a skeletal legislation such as this one. However, the rare cases dealt with those subject matters where, due to the element of emergency situation, leaving such broad powers to subordinate authorities was necessary. For example supply of essential commodities [Harishankar Bagla v. State of M.P., AIR 1954 SC 465] and control of import and export [Bhatnagars & Co. v. Union of India AIR 1957 SC 478]. In the landmark case of D.S. Garewal v. Union of India [AIR 1959 SC 512], the court upheld the delegation of power to lay down the selection criteria for All India Services for two reasons: the exigencies of the subject matter i.e. public services, where rules may have be changed frequently and, the Act adopted the pre-existing rules till the new rules are framed. None of these justifications apply to the Bill, as unlike public services, there are no such exigencies involved in judicial appointments. Additionally, there are no pre-existing rules or any adoption of such in the Bill. 

Unlike the cases discussed above, the NJAC Bill deals with the appointment of the Higher Judiciary, which does not involve any emergency situation. It is only in the interest of the Constitution that it is carried out after proper democratic deliberation and not in haste. 

Does the ‘Laying’ Procedure Prescribed in the Bill Provide Sufficient Procedural Safeguard? 

‘Laying’ before the legislation is an important check on the exercise of delegated powers. There are three types of ‘laying’ procedures: Simple laying, laying subject to negative resolution and, laying subject to affirmation. Simple laying is a mere formality where the parliament does not have any control over the delegated legislation, except for subjecting it to a parliamentary debate. In negative laying, the Parliament has the power to annul or modify the rules once it is put before it under this procedure. However, the actions already taken under the rules will not be affected by Parliamentary modification or annulment. In the third type of laying procedure, the draft rules are put for the Parliamentary scrutiny and they do not come into force, until the Parliament affirms them. 

Out of all the three types of laying procedures, only the third type of laying procedure (i.e. affirmative laying) is mandatory, while the others are merely directory in nature [Atlas Industries Ltd. v. State of Haryana,AIR 1979 SC 1149]. The laying procedure prescribed in the Bill [Section 13] is of the second type. It is submitted that since the Bill performs an important function of appointing the Constitution’s gatekeepers, it should have adopted the third type of laying procedure. 

Instead of passing the Bill in haste, the Parliament should have cared to include those details in the Bill itself, rather than leaving it completely to a six-member body, which is comfortably shielded from democratic accountability. It seems apt to say that this haste has lost us an opportunity of creating a definite God in detail. Instead, what we are left with is an indefinite devil in the details. 
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