Should parliamentary committees consult sitting judges on Bills that may later be challenged in court? Critically analyse.

A Joint Parliamentary Committee (JPC) is examining the Constitution (129th Amendment) Bill, 2024, the "One Nation, One Election" Bill. It planned a study tour to hear the views of the Chief Justice of India (CJI). The tour was cancelled after critics said it breached the separation of powers [1]. In India the organs of State are not sealed off from each other. Even so, consulting sitting judges on a Bill that is likely to reach their own Court carries more risk than benefit.

Arguments for consultation

• Separation is functional, not watertight: no constitutional provision expressly bars such a meeting. MP P. Wilson argued that Article 143 (advisory jurisdiction) itself assumes the legislature and judiciary can interact [1].
• Historical precedent: Federal Court judges and High Court Chief Justices gave their views on the Draft Constitution in March 1948 [1].
• Better drafting: judges could flag practical flaws early. One example is the Election Commission's new power to recommend postponing Assembly polls [2]. Catching such flaws early would spare the courts years of litigation.

Arguments against consultation

• Judicial independence and recusal: a judge who gave views in private may later sit on the Bench hearing a challenge. Either side could then demand that the judge step aside, which weakens the Court's neutrality.
• Challenge is likely: PRS flags a postponement threshold lower than Article 356, Assembly terms shorter than a year, and the risk of a State being left without an Assembly [2]. All of these touch federalism, which is part of the basic structure.
• The precedents do not fit: the 1948 meeting came before the Supreme Court existed. Article 143 is a formal, on-record route that only the President can start. An informal study tour has none of these safeguards [1].
• Alternatives exist: the Kovind Committee invited 4 former CJIs and 12 former High Court Chief Justices to meet it [3]. The JPC itself has met former CJI B.R. Gavai [4].

Way forward

• Seek expertise from retired judges.
• Where a formal judicial view is needed, the Union should use an Article 143 reference, whose answer is public and reasoned.
• The Presiding Officers should frame written rules, e.g. "only former judges on pending Bills".
• The 38-member JPC [4] should concentrate on fixing the drafting gaps PRS has flagged.

Contact between the organs of State is legitimate, but the timing and the channel matter. Committees can draw on judicial experience through retired judges and Article 143 without using the sitting bench. That way they get well-drafted laws and also protect the Court's impartiality, which the separation-of-powers part of the basic structure, read with the spirit of Article 50, is meant to secure.