The Special Dimensions of the Judicial Process

In one line

Deciding whether a law made by an elected legislature may stand is a different exercise from deciding whether a contract was broken, and Module II is about the ways in which it is different.

In the wording a student can write in an exam: the special dimensions of the judicial process in constitutional adjudication are the respects in which a court deciding a constitutional question does something different in kind from a court deciding an ordinary dispute. They are: the subject matter, which is public power rather than private right; the effect, which is to invalidate the act of another organ of the State rather than to give relief between parties; the material, which is an open-textured text stating values rather than a detailed rule; the method, which admits considerations of principle and consequence that ordinary adjudication excludes; the parties, since the decision governs people who were never before the court; and the finality, since a constitutional ruling can ordinarily be undone only by amendment.

The six dimensions

1. The subject matter is public power. An ordinary suit asks whether A wronged B. A constitutional case asks whether an organ of the State acted within the authority the Constitution gave it. The question is about the validity of power, not the breach of an obligation.

2. The effect is invalidation. An ordinary decree binds the parties. A declaration that a statute is void removes it from the statute book for everybody. In Supreme Court Advocates-on-Record Association v. Union of India, decided on 16 October 2015, a constitutional amendment passed by Parliament and ratified by the States was declared void.

Facts. The Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 replaced the collegium with a commission of the Chief Justice of India, the two next senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons, with a veto exercisable by any two members. Both were challenged, and the Union asked for the Second and Third Judges cases to be reconsidered by a larger Bench.

Held. By four to one the prayer for reconsideration was rejected; the Constitution (Ninety-ninth Amendment) Act 2014 was declared unconstitutional and void; the National Judicial Appointments Commission Act 2014 was declared unconstitutional and void; and the collegium system as it existed before the amendment was declared operative. Chelameswar J. dissented.

Why it matters here. Nothing in ordinary adjudication resembles this. A court set aside the considered decision of Parliament, of the State legislatures that ratified it, and of the President who assented, and restored an arrangement of its own earlier making.

3. The material is a text of a different kind. Section 73 of the Indian Contract Act tells a court what to do. Article 14 says "equality before the law". The words state a value and leave the rule to be worked out, which is why constitutional adjudication is far more creative than ordinary adjudication and why Module I's methods matter most here.