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Citation Codes
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citation codes
Case Number
Disposition
Judges
Acts
  • Article 145(3) of the Constitution of India
  • Constitution (Ninety-ninth Amendment) Act, 2014
  • National Judicial Appointments Commission Act, 2014
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Disposition
Judges
Acts
  • Article 145(3) of the Constitution of India
  • Constitution (Ninety-ninth Amendment) Act, 2014
  • National Judicial Appointments Commission Act, 2014
Smart Summary

Factual and Procedural Background

The petitions challenge the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (“the Act”) on the ground that they alter the basic structure of the Constitution. A series of interim orders were passed:

  • 25-8-2014: Earlier writ petitions were treated as premature and disposed of with liberty to approach the Court at an appropriate stage.
  • 11-3-2015: Stay granted on further proceedings in W.P. (MD) No. 69 of 2015 pending before the Madras High Court, as the same issue was before the Supreme Court.
  • 7-4-2015: The Court recorded that substantial questions of constitutional interpretation arose and directed that the matters be placed before a larger Bench.
  • 15-4-2015: Ordered listing before a Bench that did not include Justice Anil R. Dave.
  • 22-4-2015: A five-Judge Bench constituted; a preliminary objection seeking recusal of Justice J. S. Khehar was rejected.
  • 23-4-2015: Attorney-General informed the Court that the NJAC would be constituted soon; the matter was adjourned for further interim directions.
  • 12-5-2015: The Court declined to treat the question of revisiting the 1993 and 1998 “Judges’ Cases” as a preliminary issue, and, by way of interim relief, directed continuation of existing Additional Judges for three months or until superannuation.

Legal Issues Presented

  1. Whether the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 violate the basic structure of the Constitution of India.
  2. Whether the writ petitions are maintainable or premature because the Act had not yet been brought into force.
  3. Whether the matters must be heard by a Constitution Bench of five or more Judges under Article 145(3).
  4. Whether Justice Jagdish Singh Khehar should recuse himself from the Bench owing to his membership of the Collegium.
  5. Whether the Court should first decide, as a preliminary issue, if the two earlier “Judges’ Cases” (1993 & 1998) need to be revisited.

Arguments of the Parties

Petitioners’ Arguments

  • The 99th Amendment and the Act damage the basic structure by altering the method of judicial appointments.
  • Substantial constitutional questions mandate reference to a Bench of at least five Judges.
  • Pending final decision, the existing Collegium system should continue and the Act should not be operationalised.
  • Justice Khehar should recuse because of his position in the Collegium.

Respondents’/Opposing Counsel’s Arguments

  • The petitions are premature as the Act has not come into force; hence, no cause of action exists.
  • The Court should first consider whether earlier precedents (1993 & 1998) require reconsideration before addressing the merits.
  • There is no legal ground for the recusal of Justice Khehar.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Supreme Court Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441 Established the primacy of the Collegium in judicial appointments (“Second Judges’ Case”). The Attorney-General sought its reconsideration; the Court declined to take that up as a preliminary issue.
Special Reference No. 1 of 1998, In re (1998) 7 SCC 739 Clarified and reinforced the 1993 ruling on Collegium functioning (“Third Judges’ Case”). Also proposed for reconsideration; the Court refused to separate it as a threshold question.

Court's Reasoning and Analysis

  • The initial petitions (August 2014) were dismissed as premature because the impugned legislation had not yet come into force.
  • Upon fresh petitions, the Court found that substantial questions regarding constitutional interpretation were indeed involved, triggering Article 145(3) and necessitating a larger Bench.
  • On the recusal request, the Bench unanimously reasoned that mere membership in the Collegium did not create a conflict of interest warranting recusal; no legal basis was shown.
  • The request to first revisit the 1993 and 1998 precedents was rejected; the Court held that separating that issue would not serve the interests of justice at this stage.
  • An interim protective measure was adopted to ensure continuity in the judiciary by extending the tenure of existing Additional Judges while the constitutional challenge remained pending.
  • A stay was imposed on parallel proceedings in the Madras High Court to prevent conflicting adjudications.

Holding and Implications

Interim Orders: The matters are referred to an enlarged Bench; Justice Khehar’s recusal request is rejected; reconsideration of the “Judges’ Cases” is not treated as a preliminary issue; appointment of existing Additional Judges is continued for three months or until superannuation; proceedings in a related Madras High Court writ petition are stayed.

Implications: The core constitutional challenge remains to be decided by a Constitution Bench, while judicial functioning is protected through interim extensions of sitting Additional Judges. No final precedent is set on merits, but the orders clarify procedural aspects for high-profile constitutional litigation.

    Supreme Court Advocates-On-Record Association And Another v. Union Of India .

    Order dated 25-8-2014

    (Before Anil R. Dave, J. Chelameswar and A.K. Sikri, JJ.)

    1. Looking at the facts of these cases, we are of the view that we should not entertain these petitions at this stage as they are premature. Needless to say that it would be open to the petitioners to approach this Court at an appropriate stage and make all submissions on merits as the petitions have been disposed of as premature. The writ petitions are disposed of with the above observations.

    Order dated 11-3-2015

    (Before Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ.)

    TP (C) No. 391 of 2015

    2. Issue notice, returnable on 17-3-2015. Mr B.V. Balaram Das, learned counsel, accepts notice on behalf of the Union of India. In view of the fact that the matter involving the same issue is pending before the High Court of Madras, we direct that there shall be stay of further proceedings in Writ Petition (MD) No. 69 of 2015 titled as Y. Krishnan v. Union of India pending before the High Court of Judicature of Madras, Bench at Madurai and the abovesaid matter shall not be taken up for hearing by the High Court till further orders.

    3. List all the matters on 17-3-2015 at 10.30 a.m. (for whole day).

    Order dated 7-4-2015

    (Before Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ.)

    The Order of the Court was delivered by

    Anil R. Dave.— In this group of petitions, validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (hereinafter referred to as “the Act”) has been challenged. The challenge is on the ground that by virtue of the aforestated amendment and enactment of the Act, basic structure of the Constitution of India has been altered and therefore, they should be set aside.

    5. We have heard the learned counsel appearing for the parties and the parties appearing in person at length.

    6. It has been mainly submitted for the petitioners that all these petitions should be referred to a Bench of five Judges as per the provisions of Article 145(3) of the Constitution of India for the reason that substantial questions of law with regard to interpretation of the Constitution of India are involved in these petitions. It has been further submitted that till all these petitions are finally disposed of, by way of an interim relief it should be directed that the Act should not be brought into force and the present system with regard to appointment of Judges should be continued.

    7. The sum and substance of the submissions of the counsel opposing the petition is that all these petitions are premature for the reason that the Act has not come into force till today and till the Act comes into force, cause of action cannot be said to have arisen. In the circumstances, according to the learned counsel, the petitions should be rejected.

    8. The learned counsel as well as parties in person have relied upon several judgments to substantiate their cases.

    9. Looking at the facts of the case, we are of the view that these petitions involve substantial questions of law as to the interpretation of the Constitution of India and therefore, we direct the Registry to place all the matters of this group before the Hon'ble the Chief Justice of India so that they can be placed before a larger Bench for its consideration.

    10. As we are not deciding the cases on merits, we do not think it appropriate to discuss the submissions made by the learned counsel and the parties in person. It would be open to the petitioners to make a prayer for interim relief before the larger Bench as we do not think it appropriate to grant any interim relief at this stage.

    Order dated 15-4-2015

    (Before Anil R. Dave, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.)

    11. List the matters before a Bench of which one of us (Justice Anil R. Dave) is not a member.

    Order dated 22-4-2015

    (Before Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.)

    12. A preliminary objection, whether Justice Jagdish Singh Khehar should preside over this Bench, by virtue of his being the fourth seniormost Judge of this Court, also happens to be a member of the Collegium, was raised by the petitioners. Elaborate submissions were made by the learned counsel for the petitioners and the respondents. After hearing all the learned counsel, we are of the unanimous opinion that we do not see any reason in law requiring Justice Jagdish Singh Khehar to recuse himself from hearing the matter. Reasons will follow.

    13. Issue rule.

    14. Mr Mishra Saurabh, Advocate waives service on behalf of the State of Madhya Pradesh.

    15. The general consensus of the learned counsel representing the rival parties was that Writ Petition (C) No. 13 of 2015 should be treated as the lead case. We accept the aforesaid recommendation. The Secretary General of the Supreme Court shall issue notice in the abovenoted lead case, returnable on 23-4-2015, on all Standing Counsel in this Court, representing all the States. The Secretary General shall also upload the paper book of Writ Petition (C) No. 13 of 2015, on the Supreme Court website, so that it can be downloaded and accessed by the learned counsel representing different States, and by others impleaded therein.

    16. The copies of the other petitions shall be served by the learned counsel appearing for the petitioners, in the office of the learned Attorney General for India. Each of the counsel representing the connected cases, shall file written briefs to indicate the additional issues (if any) arising therein, so as to enable this Court to determine, whether individual hearing is required in such connected matters.

    17. List again on 23-4-2015 at 2.00 p.m.

    Order dated 23-4-2015

    (Before Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.)

    18. Mr Mukul Rohatgi, the learned Attorney General, having obtained instructions, states that the constitution of the National Judicial Appointments Commission will be completed by nomination of two eminent persons, at the earliest. He further states, that consequent upon the nomination of two eminent persons, the National Judicial Appointments Commission shall presently deal with appointments of existing Additional Judges only. For further interim directions, the matter will be taken up on 11-5-2015. List again on 27-4-2015 at 10.30 a.m.

    Order dated 12-5-2015

    (Before Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.)

    19. The prayer made by the learned Attorney General for India for disposing of the issue with reference to the need of revisiting the two judgments rendered by this Court in Supreme Court Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441 and Special Reference No. 1 of 1998, In re (1998) 7 SCC 739 to be decided first, as a preliminary issue, before hearing the main case on merits, is declined.

    20. As an interim measure, we direct the appointment of Additional Judges in High Courts, already in office, to be continued for a period of three months or till the date of their superannuation, whichever is earlier, during the pendency of the matters in hand, till their disposal.

    21. With the consent of the learned counsel for the parties, hearing of the case is deferred to 8-6-2015. To be listed on 8-6-2015 as part-heard at 10.30 a.m.

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    Supreme Court Advocates-On-Record Association And Another v. Union Of India .
    (May 12, 2015)