Should parliamentary committees consult sitting judges on pending legislation? Discuss in light of the doctrine of separation of powers.

The Joint Parliamentary Committee (JPC) on the Constitution (129th Amendment) Bill, 2024 recently dropped its planned 6 October visit to the Supreme Court. An Opposition MP had warned that consulting sitting judges on a Bill the same Court may later have to judge would blur the separation of powers [1]. Expert input improves laws, but sitting judges are the wrong people to give it.

Case for consultation

• Better drafting: Expert review has already found flaws. The Bill lets the ECI defer a State's poll with no time limit and a lower threshold than Article 356 [2]. Fixing this before the Bill passes is better than the Court striking it down later.
• Interpretive expertise: Judges know how courts read constitutional text. Wider consultation also improves the quality of the committee's debate.
• Functional separation: India's separation of powers is not rigid. Some dialogue between the organs is normal.

Case against: separation of powers

• Basic structure: Separation of powers is part of the basic structure (Kesavananda Bharati, 1973; Indira Gandhi v. Raj Narain, 1975). The Bill cuts short State Assembly terms [2], so a challenge is likely. A judge who gives a view now may have to recuse later. If several judges are consulted, forming a neutral bench becomes hard.
• No constitutional channel: Under Article 143, only the President can seek the Court's opinion. That opinion is given openly, in writing, by a bench. An informal meeting with a committee has none of these safeguards.
• Mutual restraint: Under Arts. 121/211, legislatures may not discuss judges' conduct. Under Arts. 122/212, courts may not question legislative proceedings. The insulation works both ways.
• Transparency gap: The Chair officially cited "scheduling difficulties", not the constitutional objection [1].

Better alternatives

• Retired judges: Former CJIs J.S. Khehar and D.Y. Chandrachud already gave presentations before the JPC [3]. They will never sit on the bench that decides the case.
• A formal Article 143 reference for real doubts, plus written submissions from the Bar, academics and the ECI.

Committees need expert legal input, but asking sitting judges for it risks the Court's neutrality for little gain. Retired judges, legal experts and the Article 143 route give the same insight without that risk. Using them keeps each organ within its role, as the basic structure requires, and protects public trust in the Court.