Topic 6 of 20
GS Paper 2 Separation of Powers Simultaneous elections Bill, JPC and the limits of judicial consultation

The Visit That Could Not Happen: Why Article 143 Leaves No Room for a JPC to Consult Sitting Judges

Source The Hindu, Indian Express, Legacy IAS, Times of India, The Squirrels

Can a court advise on a law it may one day have to strike down? That was the question underneath the Joint Parliamentary Committee's planned October 6 visit to the Supreme Court. The visit was quietly called off, but the question remains open.

Summary

The 39-member Joint Parliamentary Committee examining the Constitution (129th Amendment) Bill, 2024 and the Union Territories Laws (Amendment) Bill, 2024 has dropped its proposed October 6 visit to the Supreme Court. An agenda circulated earlier described the visit as an informal discussion with the Chief Justice of India and other judges.

Committee chairman P.P. Chaudhary said it was only a familiarisation trip and was put off because of scheduling. Opposition members argued it would breach the separation of powers, because only the President can seek the Court's opinion, under Article 143.

WHY IN NEWS FOR UPSC & STATE PCS

The Lok Sabha Secretariat informed members on October 1 that the JPC's "Local Study Visit" to the Supreme Court, scheduled for October 6, was cancelled. The official communication gave no reason. The decision followed a letter from an Opposition MP warning that interacting with sitting judges on a pending law would blur institutional boundaries.

Committee members Randeep Surjewala and Kapil Sibal publicly objected on separation-of-powers grounds.

Standard News

ONE DOOR TO THE COURT, AND ONLY THE PRESIDENT HOLDS THE KEY

Under Article 143, the President may refer a question of law or fact of public importance to the Supreme Court and the Court may report its opinion. This is the only route the Constitution provides for the Court to give its views outside an actual case.

It belongs to the President, which in practice means the Union Cabinet acting through the President. It does not belong to Parliament, to a House or to a committee of either. That is why the JPC's planned "informal discussion" with the CJI and other judges on simultaneous elections had no legal basis to stand on.

Why the

text puts the key with one office The Constitution could have let Parliament seek judicial advice on its Bills and it chose not to. Even the presidential route is formal and visible. Article 145(3) requires at least five judges to hear a reference under Article 143.

The questions are framed in writing, parties are heard and the opinion is published. This route has been used even for a Bill not yet in force. In In re Kerala Education Bill (1958), the Court gave its opinion on a pending Bill through a presidential reference.

The lesson is that pre-legislative advice is possible only through the formal channel. In the Ismail Faruqui case (1994), the Court declined to answer a reference, which confirms that the Court keeps control even over this channel.

An informal, closed-door discussion has none of these safeguards: no framed question, no bench of five, no record and no right to decline in open court.

Retired

CJIs yes, sitting judges no: the line is the future bench The committee has already heard former CJIs U.U. Lalit, Ranjan Gogoi, J.S. Khehar and D.Y. Chandrachud. Justices Khehar and Chandrachud reportedly said simultaneous elections would not by themselves violate the basic structure, while flagging the powers proposed for the Election Commission.

Justice Lalit reportedly warned that cutting short an Assembly's tenure could invite legal challenge. None of this is improper, because a retired judge will never sit in judgment on the Act. Their views are expert evidence, much like a constitutional scholar's.

A sitting judge is in a different position. Once enacted, the 129th Amendment is almost certain to be challenged as violating the basic structure doctrine from Kesavananda Bharati (1973). Federalism and the tenure of elected Assemblies are exactly the kind of features such a challenge would invoke.

The judges who would hear that challenge come from the same Court the JPC planned to visit. Any view they shared informally would either:

  • bind them in advance, compromising their neutrality or - force them to step aside later, shrinking the pool of judges available for a Constitution Bench.
Advice given today becomes a reason for recusal tomorrow. The Court cannot advise on a law and then judge it fairly. The chairman's explanation, that this was only a familiarisation visit to the Court and its library, may well be sincere. But the circulated agenda described an informal discussion on simultaneous elections and in matters of institutional boundaries, the agenda is what counts. For Mains, the takeaway is that India's separation of powers is not strict, but it is channelled. Contact between Parliament and the Court on a Bill is allowed only through the one procedure the Constitution provides and that procedure is the President's.

Quick Facts

Key numbers & takeaways — revise these first

  • The JPC on the simultaneous elections Bills has 39 members and is headed by BJP MP P.P.

  • Chaudhary, a former Union Minister of State for Law.

  • 2.

  • Bills under examination: the Constitution (129th Amendment) Bill, 2024 and the Union Territories Laws (Amendment) Bill, 2024.

  • 3.

  • The Bills follow the recommendations of the high-level committee headed by former President Ram Nath Kovind.

  • 4.

  • The amendment Bill proposes a new Article 82A to align the terms of state Assemblies with the Lok Sabha after an "appointed date".

  • 5.

  • If a House is dissolved early, the newly elected House would serve only the remainder of the five-year term.

  • 6.

  • Article 143 empowers the President to seek the Supreme Court's opinion on questions of law or fact of public importance.

  • 7.

  • Former CJIs U.U.

  • Lalit, Ranjan Gogoi, J.S.

  • Khehar and D.Y.

  • Chandrachud have already appeared before the JPC as experts.

  • 8.

  • India held simultaneous Lok Sabha and Assembly elections from 1952 to 1967.

Beyond The Headlines
GS Paper 2 Simultaneous elections Bill, JPC and the limits of judicial consultation

Connect the dots for your UPSC preparation.

Standard news covers the event. Log in to read our comprehensive analysis and uncover the hidden constitutional, structural, and ethical dimensions of this topic:

1

Why Article 143 is a deliberately narrow channel and what the Kerala Education Bill and Ismail Faruqui references reveal about its built-in safeguards

2

The recusal trap: how an informal discussion today could shrink the Constitution Bench that may hear the 129th Amendment challenge tomorrow

3

A precise test that separates legitimate expert evidence from retired CJIs from improper consultation with sitting judges

4

A way forward for parliamentary committees that need constitutional expertise without crossing the separation-of-powers line

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