On 16^th October 2015 the Supreme court passed a landmark judgement in which it repealed the 99th Constitutional amendment Act and held that the NJAC, which was supposed to replace the present collegium system of appointing judges, was unconstitutional. Although the court relied on a number of constitutional doctrines and various case laws to justify this verdict the most controversial aspects of its reasoning remained the application of the Doctrine of Revival for continuing the collegium system and the Stand that the basic structure would be violated by the NJAC.

1) WHETHER THE DOCTRINE OF REVIVAL COULD JUSTIFY THE COLLEGIUM SYSTEM

This case brought into limelight the Doctrine of revival, and soon after this judgement , a discussion regarding the merits and de-merits of this Doctrine of revival ensued in almost all legal circuits across the nation.

First of all, we need to understand what exactly the Doctrine of Revival is. The accepted common law stand is that when an amending act is struck down the pre-amendment version of the act will not revive solely by virtue of this amendment being struck down. However, the Indian judiciary has recognised three situations in which this common law stand does not apply. These three exceptions collectively form what is known as The Doctrine of revival.

These three exceptional situations are – Firstly when the lack of legislative competence causes an Amendment to be struck down. Secondly when such an amendment violates a Fundamental Right of the citizens of India, which is guaranteed by the constitution itself and thirdly when any amendment corrodes or works against the basic essential values of the constitution. Thus the doctrine of revival holds that if an amendment is struck down on the basis of any of the three

Thus the doctrine of revival holds that if an amendment is struck down on the basis of any of the three above-mentioned grounds then the former UN-AMENDED LAW revives itself and becomes automatically applicable. The first two of these exceptions were very clearly and unambiguously stated By the supreme court in State of Tamil Nadu vs Shyam Sunder–

“Thus, the law on the issues stands crystallized that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be unenforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise.”

The third exception, however, was not arrived at by the Supreme Court but was addressed by the Madhya Pradesh High court in the case of Sharique Ali vs State of Madhya Pradesh. However, it has gained the validity and approval of the Supreme Court which has used it as a standard to apply the Doctrine of Revival on more than one occasion. [1]

In this particular judgement the ,the discussion on this Doctrine started in an attempt to decide whether the striking down of the 99^th constitutional amendment act, on the grounds that it violated the basic structure of the constitution by the Supreme Court also meant that the Collegium system would get revived automatically due to the operation of this doctrine.

In my opinion, the collegium system should not be revived by the application of this doctrine. My Reasons for holding this belief are the following –

• THIS DOCTRINE ITSELF HAS BEEN CHALLENGED IN THE COURT-

In the case of Property owners Association vs The State Of Maharashtra[2],  the validity of the Doctrine of revival itself has been challenged by the supreme court, which is yet to form a proper bench to adjudicate upon the matter. The judges clearly overlooked the fact that the question of revival of the original article post the declaration of the unconstitutionality of the amendment still remains contested and thus using this same doctrine and supporting the legal rationale behind it to justify the revival of the collegium system( which is an issue which would have a long lasting and very significant national consequence) is completely incorrect in my opinion. Many would argue that the doctrine of revival has been applied to a lot of significant cases prior to the Property Owners case in which it was challenged, including the Keshavnanda Bharti case[3], which is supposed to be one of the most landmark judgements of Indian constitutional law. However, it is important to note that all these judgements came before the challenge to this doctrine.  In other words, In all such cases, the final judgements were based on the assumption of revival; the point was never contested before the Court.

• THIS IS A CONSTITUTIONAL LAW CASE NOT A CASE INVOLVING GENERAL LAW-

If one looks at how the doctrine of revival evolved over the years one would realise that these three exceptions, which form the doctrine of revival were all held in the context of ordinary laws and amendments to such laws and not to constitutional amendments. The constitution of India is the heart and soul of Indian Democracy. The very fact that only the Supreme Court which is the Apex court of the country has original jurisdiction over any matter that deals directly with the constitution and any article under it shows the importance of the document. Thus it only seems logical that amendments to the constitution should be treated on a higher footing than amendments to ordinary laws and thus the standards, doctrines and tests that apply to the constitutional matters should also be different and a little more complex and refined than those accepted and applied to ordinary laws.

Another significant fact is that the applicability of the doctrine of revival to constitutional amendments, as opposed to ordinary laws, has never been conclusively pronounced by the Supreme Court. This question was to be decided in the case of Property Owners Association vs State of Maharashtra, which was referred to a 9-judge bench of the Supreme Court. The 9-judge bench is yet to hear the case.

I do not believe that the doctrine of revival has no merits at all. On the contrary, I believe that it is an extremely important legal rationale which saves the legislature an immense amount of time and effort, which would be required to make and pass new laws to cover those subjects, the amendments to which have been disallowed. However, I do believe that in this particular case the revival of a system as arbitrary and prone to misuse as the judicial collegium, should not be based solely on this doctrine.

[1]http://TheTribune/2015/06/15/will-the-collegium-revive-itself-if-the-supreme-court-voids-the-njac-3925/

[2] Property Owners Association vs State of Maharashtra(1996) 4 SCC49

[3]KesavanandaBharati v. State of Kerala, AIR 1973SC 1461

AUTHOR

Simran Bhinder