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

Per Khehar, J.

For carving out each of the “core” or “basic features/basic structure” of the Constitution, only the provisions of the Constitution are relied upon. It is therefore apparent that the determination of the “basic features” or the “basic structure” is made exclusively from the provisions of the Constitution including the Preamble. The deduction of the concept of “independence of the judiciary” emerged from a collective reading of Articles 12, 36 and 50. It is sometimes not possible to deduce the basic structure from a plain reading of the provisions of the Constitution. And at times, such a deduction is made from the all-important silences hidden within those articles. Thus the “primacy of the judiciary” explained in Samsher Singh case, Sankalchand Himatlal Sheth case and the Second Judges case wherein the Supreme Court while interpreting Articles 12, 36 and 50 on the one hand, and Article 74 along with Articles 124, 217 and 222 in conjunction with the intent of the Framers of the Constitution gathered from the Constituent Assembly Debates, and the conventions adhered to by the political-executive authority in the matter of appointment and transfer of Judges of the higher judiciary, arrived at the conclusion that “primacy of the judiciary” is a constituent of the independence of the judiciary which is a basic feature of the Constitution. Therefore, when a plea is advanced raising a challenge on the basis of the violation of the basic structure with reference to the independence of the judiciary, its rightful understanding is, and has to be, that Articles 12, 36 and 50 on the one hand, and Articles 124, 217 and 222 of the Constitution on the other (read collectively and harmoniously), constitute the basis thereof. Therefore, if the conclusion drawn is that the independence of the judiciary has been transgressed, it is to be understood that the rule/principle collectively emerging from the above provisions had been breached or that the above articles read together had been transgressed.

(Para 380)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), explained and followed

The provisions of Parts V and VI of the Constitution with reference to the Union and the States judiciaries including subordinate courts, have arisen for interpretative determination by the Supreme Court on several occasions. The Supreme Court on no less than five occasions has examined the controversy through Constitution Benches i.e. the manner in which Articles 124, 217 and 222 have been interpreted emerges principally from five Constitution Bench judgments of the Supreme Court:

(i) Samsher Singh v. State of Punjab, (1974) 2 SCC 831 — rendered by a seven-Judge Bench,

(ii) Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 — rendered by a five-Judge Bench,

(iii) S.P. Gupta v. Union of India, 1981 Supp SCC 87 — rendered by a seven-Judge Bench (the First Judges case),

(iv) Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 — rendered by a nine-Judge Bench (the Second Judges case), and

(v) Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 — rendered by a nine-Judge Bench (the Third Judges case).

(Paras 11, 12 and 89)

In Samsher Singh case it was concluded that in all conceivable cases, consultation with the highest dignitary in the Indian judiciary—the Chief Justice of India, will and should be accepted by the Government of India in matters relatable to Parts V and VI of the Constitution. In case it was not so accepted the Court would have an opportunity to examine whether any other extraneous circumstances had entered into the verdict of the Minister concerned or the Council of Ministers (headed by the Prime Minister), whose views had prevailed in ignoring the counsel given by the Chief Justice of India. The Supreme Court accordingly concluded that in practice the “last word” must belong to the Chief Justice of India. The above position was also further clarified, that rejection of the advice tendered by the Chief Justice of India would ordinarily be regarded as prompted by oblique considerations vitiating the order. Thus, the Supreme Court in Samsher Singh case read the term “consultation” expressed in Articles 124 and 217 of the Constitution as conferring primacy to the opinion tendered by the Chief Justice in the matter of appointment of Judges.

(Paras 89.1, 11, 114 to 116, 300 and 301.1)

In Sankalchand Himatlal Sheth case, another Constitution Bench reiterated the conclusion drawn in Samsher Singh case by holding that in all conceivable cases “consultation” with the Chief Justice of India should be accepted by the Government of India. And further, that in the event of any departure, it would be open to a court to examine whether any other circumstances had entered into the verdict of the executive. More importantly, the Supreme Court expressly recorded an ardent hope that the exposition recorded in Samsher Singh case would not fall on deaf ears. No doubt can be entertained that yet again the Supreme Court read the term “consultation” as an expression conveying primacy to the view expressed by the Chief Justice of India in the matter of appointment of Judges.

(Paras 89.2, 11, 300 and 301.1)

The solitary departure from the above interpretation was recorded by the Supreme Court in the First Judges case wherein it came to be concluded that the meaning of the term “consultation” could not be understood as “concurrence”. In other words, it was held that the opinion tendered by the Chief Justice of India would not be binding on the executive. The function of appointment of Judges to the higher judiciary was described as an executive function and it was held by the majority that the ultimate power of appointment unquestionably rested with the President/Council of Ministers.

(Paras 89.3, 11, 300 and 301.1)

The opinion expressed by the Supreme Court in the First Judges case was doubted in Subhash Sharma case, 1991 Supp (1) SCC 574 which led to the matter being re-examined in the Second Judges case, (1993) 4 SCC 441 at the hands of a nine-Judge Bench. By a majority of 7:2, a nine-Judge Bench of the Supreme Court in the Second Judges case overruled the judgment in the First Judges case, 1981 Supp SCC 87 and expressed its opinion in consonance with the judgments rendered in Samsher Singh case and Sankalchand Himatlal Sheth case, (1977) 4 SCC 193 . The Supreme Court expressly concluded in the Second Judges case that the term “consultation” expressed in Articles 124, 217 and 222 of the Constitution had to be read as vesting primacy with the opinion expressed by the Chief Justice of India based on a participatory consultative process. In other words, in matters involving Articles 124, 217 and 222 of the Constitution, primacy with reference to the ultimate power of appointment (or transfer) was held to be vesting with the judiciary.

(Paras 89.4, 11, 18, 300 and 301.1)

The above position came to be reconsidered in the Third Judges case, (1998) 7 SCC 739, by a nine-Judge Bench wherein the then Attorney General for India made a statement (recorded in para 11 therein) that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges case and further that the Union of India had accepted the said judgment and would treat the decision of the Supreme Court in the Second Judges case as binding. It is therefore apparent that the ruling that the judiciary has primacy in matters regulated by Articles 124, 217 and 222 of the Constitution was conceded by the Union of India in the Third Judges case. Thus, after the judgment of the Supreme Court in the Second Judges case was rendered in 1993, and the advisory opinion of the Supreme Court was tendered to the President of India in 1998 in the Third Judges case the term “consultation” in Articles 124(2) and 217(1), relating to appointment (as well as, transfer) of Judges of the higher judiciary, re-commenced to be interpreted as vesting primacy in the matter, with the judiciary. And appointments came to be made thereafter in consonance with the Memorandum of Procedure framed in 1999.

(Paras 19, 20, 89.5 and 301.1)

The views of the Judges recorded in the First Judges case have been delineated in detail in paras 17.1 to 17.7 herein, which was rendered by a majority of 4:3. Not only was the margin extremely narrow but also the views expressed by the Judges were at substantial variance on all the issues canvassed before the Court. The primary reason for recording the view of each of the Judges in the First Judges case herein in detail is to demonstrate differences in the deductions, inferences and the eventual outcome. As against the above, on a reconsideration of the matters by a larger Bench in the Second Judges case the decision was rendered by a majority of 7:2. Not only was the position clearly expressed, there was hardly any variance on the issues canvassed. So was the position with the Third Judges case which was a unanimous and unambiguous exposition of the law.

(Paras 17, 90 and 301.1)

The Second and the Third Judges cases have actually dealt with the issue whether appointment of Judges to the higher judiciary is an essential component of the principle of independence of the judiciary, and finally answered by holding that if the power of appointment of Judges was left to the executive the same would breach the principle of the independence of the judiciary. And also conversely, that providing safeguards after the appointment of a Judge to the higher judiciary would not be sufficient to secure independence of the judiciary. In the above view of the matter, it is necessary to conclude that the manner of selection and appointment of Judges to the higher judiciary is an integral component of independence of the judiciary. Therefore to contend that the subject of “appointment” is irrelevant to the question of the “independence of the judiciary” must be considered as a misunderstanding of a well-recognised position.

(Paras 125, 126 and 124)

It is relevant to note that the mandate of Article 141 of the Constitution obliges every court within the territory of India to honour the interpretation, conclusion, or meaning assigned to a provision by the Supreme Court. It would, therefore be rightful to interpret the provisions of the Constitution relied upon by giving the provisions concerned, the meaning, understanding and exposition assigned to them on their interpretation by the Supreme Court. It would neither be legal nor just to persist on an understanding of the provision(s) concerned merely on the plain reading thereof. This is so because the cause, effect and the width of a provision which is the basis of a challenge may sometimes not be apparent from a plain reading thereof. The interpretation placed by the Supreme Court on a particular provision would most certainly depict a holistic understanding thereof wherein the plain reading would have naturally been considered, but in addition thereto, the vital silences hidden therein, based on a harmonious construction of the provision in conjunction with the surrounding provisions would also have been taken into consideration.

(Paras 297 to 299)

Thus, the term “consultation” used in Articles 124, 217 and 222 of the Constitution (as originally enacted) as interpreted by the Supreme Court has to be read as vesting primacy in the judiciary, generally, and as assigning primacy to the opinion expressed by the Chief Justice of India (based on a decision arrived at by a Collegium of Judges), specifically, with reference to the decision-making process pertaining to the selection and appointment of Judges to the higher judiciary, and also, with reference to the transfer of Chief Justices and Judges of one High Court to another. In the Second and the Third Judges cases, the above provisions were interpreted by the Supreme Court as they existed in their original format i.e. in the manner in which the provisions were adopted by the Constituent Assembly on 26-11-1949 (—which took effect on 26-1-1950).

(Para 300)

Thus viewed, it is reiterated, that in the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court under Articles 124, 217 and 222 of the Constitution, primacy conferred on the Chief Justice of India and his Collegium of Judges is liable to be accepted as an integral constituent of the above provisions (as originally enacted).

(Para 300)

Undoubtedly, it is open to Parliament while exercising its power under Article 368 of the Constitution to provide for some other alternative procedure for the selection and appointment of Judges to the higher judiciary so long as the attributes of separation of powers and independence of the judiciary, which are “core” components of the basic structure of the Constitution, are maintained. Article 368 postulates only a “procedure” for amendment of the Constitution and that the same cannot be treated as a “power” vested in Parliament to amend the Constitution so as to alter the “core” of the Constitution which has also been described as the “basic features/basic structure” of the Constitution. If a constitutional amendment breaches the “core” of the Constitution or destroys its “basic or essential features” in a manner which is patently unconstitutional, it would have crossed over forbidden territory.

(Paras 346, 295 and 296)

Therefore, when a question with reference to the selection and appointment (as also transfer) of Judges to the higher judiciary is raised, alleging that the independence of the judiciary as a basic feature/structure of the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a Collegium of Judges) had been breached. Then alone would it be possible to conclude whether or not the independence of the judiciary as an essential basic feature of the Constitution had been preserved (—and had not been breached).

(Para 300)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench); M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench), followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, overruled

Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, referred to

Supreme Court Advocates-on-Record Assn. (Recusal Matter) v. Union of India, (2016) 5 SCC 808; S.R. Bommai v. Union of India, (1994) 3 SCC 1; Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1; Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540; Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239; Chandra Mohan v. State of U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987; K.M. Nanavati v. State of Bombay, (1961) 1 SCR 497 : AIR 1961 SC 112; All India Judges Assn. (2) v. Union of India, (1993) 4 SCC 288 : 1994 SCC (L&S) 148; Sardari Lal v. Union of India, (1971) 1 SCC 411 (Five-Judge Bench); Jyoti Prokash Mitter v. Chief Justice, Calcutta High Court, (1965) 2 SCR 53 : AIR 1965 SC 961 (Five-Judge Bench); Union of India v. Jyoti Prakash Mitter, (1971) 1 SCC 396 (Five-Judge Bench); Shreya Singhal v. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449; Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1; Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532 : (2014) 4 SCC (Cri) 1; Shashikant Laxman Kale v. Union of India, (1990) 4 SCC 366 : 1990 SCC (Tax) 428; Special Courts Bill, 1978, In re, (1979) 1 SCC 380; Subramanian Swamy v. CBI, (2014) 8 SCC 682 : (2014) 6 SCC (Cri) 42 : (2014) 3 SCC (L&S) 36; Kashinath G. Jalmi v. Speaker, (1993) 2 SCC 703; A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152 (Five-Judge Bench); B. Banerjee v. Anita Pan, (1975) 1 SCC 166; State of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720; Waman Rao v. Union of India, (1981) 2 SCC 362; Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364; State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453; Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Corpn. of the City of Bangalore, (1961) 3 SCR 707 : AIR 1962 SC 562; Khadim Hussain v. State of U.P., (1976) 1 SCC 843; B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658; People's Union for Civil Liberties v. Union of India, (2005) 5 SCC 363; Hindu Women's Rights to Property Act, 1937, In re, 1941 SCC OnLine FC 3 : AIR 1941 FC 72; M.S.M. Sharma v. Shree Krishna Sinha, (1961) 1 SCR 96 : AIR 1960 SC 1186; Janardhan Reddy v. State of Hyderabad, 1951 SCR 344 : AIR 1951 SC 217; Property Owners' Assn. v. State of Maharashtra, (1996) 4 SCC 49; Property Owners' Assn. v. State of Maharashtra, (2001) 4 SCC 455; Property Owners' Assn. v. State of Maharashtra, (2013) 7 SCC 522 : (2013) 3 SCC (Civ) 603; Municipal Committee, Amritsar v. State of Punjab, (1969) 1 SCC 475; K.A. Abbas v. Union of India, (1970) 2 SCC 780; T.N. Seshan v. Union of India, (1995) 4 SCC 611; Raj Narain v. Indira Nehru Gandhi, Election Petition No. 5 of 1971, decided on 12-6-1975 (All); Lily Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 2 SCC (L&S) 811; Chief Election Commr. v. Jan Chaukidar, (2013) 7 SCC 507 : (2013) 3 SCC (Civ) 590 : (2013) 2 SCC (L&S) 907; Jan Chaukidar v. Union of India, (2004) 2 BLJR 988; Madhu Limaye, In re, (1969) 1 SCC 292; Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85; Bidi Supply Co. v. Union of India, AIR 1956 SC 479; State of Madras v. V.G. Row, 1952 SCR 597 : AIR 1952 SC 196; Commonwealth of Australia v. Bank of New South Wales, 1950 AC 235 : (1949) 2 All ER 755 (PC); Bribery Commr. v. Ranasinghe, 1965 AC 172 : (1964) 2 WLR 1301 : (1964) 2 All ER 785 (PC); Attorney General for Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd., 1914 AC 237 (PC); Yates, In re, ex p Walsh, (1925) 37 CLR 36 (Aust); Indira Nehru Gandhi v. Raj Narain, (1976) 3 SCC 321; State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586; B.P. Singhal v. Union of India, (2010) 6 SCC 331; Mineral Area Development Authority v. SAIL, (2011) 4 SCC 450; Jindal Stainless Ltd. v. State of Haryana, (2010) 4 SCC 595; Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 : 2005 SCC (Cri) 546 : 2005 SCC (L&S) 246; Kerala State Science and Technology Museum v. Rambal Co., (2006) 6 SCC 258; Kesho Nath Khurana v. Union of India, 1981 Supp SCC 38 : 1981 SCC (Cri) 674; Samaresh Chandra Bose v. District Magistrate, Burdwan, (1972) 2 SCC 476 : 1972 SCC (Cri) 761; K.C.P. Ltd. v. State Trading Corpn. of India, 1995 Supp (3) SCC 466; State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201; India Cement Ltd. v. State of T.N., (1990) 1 SCC 12; Sub-Committee of Judicial Accountability v. Union of India, (1992) 4 SCC 97; Tika Ramji v. State of U.P., 1956 SCR 393 : AIR 1956 SC 676; Smith v. Allwright, 88 L Ed 987 : 321 US 649 (1944); Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC 56, cited

Supreme But Not Infallible (Oxford University Press, 2000 AD), cited

The judiciary has to be manned by people of unimpeachable integrity who can discharge their responsibility without fear or favour. There is no question of accepting an alternative procedure which does not ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also in the matter of transfer of Chief Justices and Judges of High Courts to other High Courts). In the abovestated position, it is not possible to conclude that the combination contemplated for constitution of NJAC is such that would not be susceptible to an easy breach of the independence of the judiciary.

(Para 307)

The arguments of the respondents that the NJAC scheme has adequate safeguards to protect against abuse and has preserved the primacy of the judiciary in appointment of Judges, may well be justified on paper. However, as a matter of practicality, the impugned constitutional amendment cannot be considered to have sustained primacy of the judiciary in the matter of decision-making under the amended provisions of Articles 124, 217 and 222 in conjunction with the inserted provisions of Articles 124-A to 124-C. The exposition made by the respondents emerges from an oversimplified and narrow approach.

(Paras 303 to 306)

Article 124-A constitutes the edifice of the Constitution (99th Amendment) Act, 2014. The striking down of Article 124-A would automatically lead to the undoing of the amendments relating to Articles 124, 124-B, 124-C, 127, 128, 217, 222, 224, 224-A and 231. This is for the simple reason that the latter articles are sustainable only if Article 124-A is upheld. Article 124-A(1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). Its perusal reveals that it is composed of the following:

(a) the Chief Justice of India — Chairperson, ex officio; (b) two other senior Judges of the Supreme Court, next to the Chief Justice of India — Members, ex officio; (c) the Union Minister in charge of Law and Justice — Member, ex officio; (d) two eminent persons, to be nominated — Members.

If the inclusion of any one of the Members of NJAC is held to be unconstitutional, Article 124-A will be rendered nugatory in its entirety.

(Para 416)

Articles 124-A(1)(a) and (b) as inserted by the 99th Amendment do not provide for an adequate representation in the matter to the judicial component in NJAC to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also transfer of Chief Justices and Judges from one High Court to another), and therefore, the same are set aside and struck down as being violative of the basic structure of the Constitution of India. Thus viewed, the basic structure of the Constitution would be clearly violated if the process of selection of Judges to the higher judiciary was to be conducted in the manner contemplated through NJAC. The impugned constitutional amendment is ultra vires the basic structure of the Constitution is set aside.

(Paras 308 and 416)

It has been independently concluded that Article 124-A(1)(c) is ultra vires the provisions of the Constitution because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of NJAC, as it impinges upon the principles of independence of the judiciary, as well as, separation of powers (see in detail under Shortnotes YN and YP, below). It has also been concluded that Article 124-A(1)(d) which provides for the inclusion of two “eminent persons” as Members of NJAC is ultra vires the provisions of the Constitution for a variety of reasons. The same has also been held as violative of the basic structure of the Constitution (See in detail under Shortnotes X, Y and YA, below).

(Para 416)

Once the constitutional validity of Article 124-A(1) is held to be unsustainable, the impugned Constitutional 99th Amendment would be rendered a nullity. Hence, all sub-clauses (a) to (d) of Article 124-A(1) are struck down. In view of the striking down of Article 124-A(1), the entire Constitution (99th Amendment) Act, 2014 is hereby struck down in its entirety as being ultra vires the provisions of the Constitution.

(Paras 416 and 407)

The National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124-C. It has no independent existence in the absence of NJAC constituted under Article 124-A(1). Since Articles 124-A and 124-C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 would be rendered a nullity and is accordingly hereby struck down. In view of the above, it was not essential to have examined the constitutional vires of individual provisions of the NJAC Act. However, the necessity of dealing with some of the issues was prompted by the consideration that broad parameters should be expressed. Hence, the challenge raised to Sections 5, 6, 7 and 8 of the NJAC Act has been examined. It has been concluded that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution.

(Paras 418 and 407)

So far as the issue of examining the constitutional validity of an ordinary legislative enactment is concerned (the NJAC Act, 2014 in the present case), all the constitutional provisions on the basis whereof the basic feature concerned of the Constitution arises, are available. Breach of a single provision of the Constitution would be sufficient to render the legislation ultra vires the Constitution. In such view of the matter, it would be proper to accept a challenge based on constitutional validity to refer to the particular article(s), singularly or collectively, which the legislative enactment violates. And in cases where the cumulative effect of a number of articles of the Constitution is stated to have been violated, reference should be made to all the articles concerned, including the Preamble, if necessary. The issue is purely technical. Thus, if a challenge is raised to an ordinary legislative enactment based on the doctrine of basic structure, the same cannot be treated to suffer from a legal infirmity. That would only be a technical flaw. That is how it will be possible to explain the observations made by the Supreme Court in the judgments relied upon by the petitioners.

(Para 381)

Therefore, when a challenge is raised to a legislative enactment based on the cumulative effect of a number of articles of the Constitution, it is not always necessary to refer to each of the articles concerned when the cumulative effect of the said articles has already been determined as constituting one of the basic features of the Constitution. Reference to the basic structure while dealing with an ordinary legislation would obviate the necessity of recording the same conclusion which has already been scripted while interpreting the article(s) under reference harmoniously. The basic structure of the Constitution is inviolable and as such the Constitution cannot be amended so as to negate any basic features thereof, and so also, if a challenge is raised to an ordinary legislation based on one of the basic features of the Constitution, it would be valid to do so. If such a challenge is accepted on the ground of violation of the basic structure, it would mean that the bunch of articles of the Constitution (including the Preamble thereof, wherever relevant), which constitute the particular basic feature, had been violated. It would be technically sound to refer to the articles which are violated, when an ordinary legislation is sought to be struck down as being ultra vires the provisions of the Constitution. But that would not lead to the inference that to strike down an ordinary legislative enactment as being violative of the basic structure would be wrong.

(Para 381)

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); State of Karnataka v. Union of India, (1977) 4 SCC 608 (Seven-Judge Bench); Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (Five-Judge Bench); Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (Five-Judge Bench); Madras Bar Assn. v. Union of India, (2014) 10 SCC 1 (Five-Judge Bench); Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 : 2003 SCC (L&S) 400 (Two-Judge Bench); U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC 1 : (2012) 2 SCC (L&S) 289; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench); State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640 : 2000 SCC (L&S) 489; Nawal Kishore Mishra v. High Court of Judicature at Allahabad, (2015) 5 SCC 479 : (2015) 2 SCC (L&S) 168, explained and harmonised

It was not within the realm of Parliament to subject the process of selection of Judges to the Supreme Court as well as to the position of Chief Justice of India to uncertain and ambiguous terms. It was imperative to express the clear parameters of the term “fit” with reference to the seniormost Judge of the Supreme Court under Section 5 of the NJAC Act. The term “fit” can be tailor-made to choose a candidate far below in the seniority list. This has been adequately demonstrated by the petitioners.

(Para 396)

The clear stance adopted by the respondents is that the term “fit” expressed in Section 5(1) of the NJAC Act has been accepted by the Government, to mean and include, only “… mental and physical fitness …”, to discharge the onerous responsibilities of the office of Chief Justice of India, and nothing more. Such a statement cannot, and does not, bind successor Governments or the posterity for all times to come. The present wisdom cannot bind future generations. And, it was exactly for this reason that the respondents could resile from the statement in para 11 thereof made by the then Attorney General before the Bench hearing the Third Judges case that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges case (that, it had accepted to treat as binding, the decision in the Second Judges case). And yet, during the course of hearing of the present case, the Union of India did seek a reconsideration of the Second Judges case. Insofar as the challenge to Section 5(1) of the NJAC Act is concerned, we are satisfied to affirm and crystallise the position adopted by the respondents, namely, that the term “fit” used in Section 5(1) would be read to mean only “… mental and physical fitness …”. If that is done, it would be legal and constitutional. However, if the position adopted breached the independence of the judiciary, in the manner suggested by the petitioners, the same would be assailable in law.

(Paras 397 and 398)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), referred to

Undoubtedly, postulating “seniority” in the first proviso under Section 5(2) of the NJAC Act which provides for the procedure for selection of Supreme Court Judge is a laudable objective. And if seniority is to be supplemented and enmeshed with “ability and merit”, the most ideal approach can be seen to have been adopted. But what appears on paper may sometimes not be correct in practice. Experience shows that Judges to every High Court are appointed in batches, each batch may have just two or three appointees or may sometimes have even ten or more individuals. If appointment of Judges to the Supreme Court is to be made on the basis of seniority (as a primary consideration), then the earlier batch would have priority in the matter of elevation to the Supreme Court. And hypothetically, if the batch had ten Judges (appointed together to a particular High Court), and if all of them have proved themselves able and meritorious as High Court Judges, they will have to be appointed one after the other when vacancies of Judges arise in the Supreme Court. In that view of the matter, Judges from the same High Court would be appointed to the Supreme Court till the entire batch is exhausted. Judges from the same High Court, in the above situation where the batch comprised of ten Judges, will occupy a third of the total Judge positions in the Supreme Court. That would be clearly unacceptable.

(Para 399)

Insofar as Section 5(2) of the NJAC Act is concerned, there cannot be any doubt that consideration of Judges on the basis of their seniority, by treating the same as a primary consideration, would adversely affect the present convention of ensuring representation from as many State High Courts as is possible. The convention in vogue is to maintain regional representation. Thus, the first proviso under Section 5(2) is liable to be struck down and set aside. Section 6(1) applies to appointment of a Judge of a High Court as Chief Justice of a High Court. It has the same seniority connotation as has been expressed hereinabove with reference to the first proviso under Section 5(2). For exactly the same reasons, based on seniority (as a primary consideration), ten High Courts in different States could have Chief Justices drawn from one parent High Court. Section 6(1) of the NJAC Act is therefore liable to meet the same fate as the first proviso under Section 5(2).

(Para 400)

However, it is not possible to accept that Section 7 of the NJAC Act, by providing that the President could require NJAC to reconsider a recommendation made by it, would in any manner violate Articles 124(2) and 217(1) (which mandate that Judges would be appointed by the President on the recommendation of NJAC). It would be improper to infer that the action of the President requiring NJAC to reconsider its proposal amounted to rejecting the proposal made by NJAC. For, if NJAC was to reiterate the proposal made earlier, the President even in terms of Section 7 is bound to act in consonance therewith (as is apparent from the second proviso under Section 7 of the NJAC Act).

(Para 403)

With the setting aside of the impugned 99th Constitution Amendment, the provisions of the Constitution sought to be amended thereby would automatically revive and the status quo ante would stand restored.

(Para 417)

Per Lokur, J.

It is necessary to appreciate the role of the Rule of Law in our constitutional history. It has been said: “Ultimately, it is the Rule of Law, not the Judges, which provides the foundation for personal freedom and responsible Government.” The Rule of Law is recognised as a basic feature of our Constitution. It is in this context that the aphorism, “be you ever so high, the law is above you”, is acknowledged and implemented by the judiciary. If the Rule of Law is a basic feature of our Constitution, so must be the independence of the judiciary since the “enforcement” of the Rule of Law requires an independent judiciary as its integral and critical component.

(Paras 702 and 703)

In Samsher Singh, (1974) 2 SCC 831 the independence of the judiciary was held to be a cardinal principle of the Constitution by Krishna Iyer, J. speaking for himself and Bhagwati, J. That it is a part of the basic structure of the Constitution was unequivocally stated for the first time in the First Judges case. This view has been upheld in several decisions of the Supreme Court thereafter as well as the Second Judges case.

(Paras 518.1, 705 and 706)

The view that the Rule of Law and the independence of the judiciary go hand in hand and are a part of the basic structure of the Constitution has been acknowledged in several decisions of the Supreme Court and is no longer in dispute. One can conclude that the Rule of Law and the independence of the judiciary are intertwined and inseparable and a part of the basic structure of our Constitution.

(Para 712)

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699 (Five-Judge Bench); Union of India v. Madras Bar Assn., (2010) 11 SCC 1 (Five-Judge Bench); State of T.N. v. State of Kerala, (2014) 12 SCC 696 (Five-Judge Bench), followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), followed on this point

Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899 (Five-Judge Bench); Krishna Swami v. Union of India, (1992) 4 SCC 605, view of K. Ramaswamy, J. affirmed on this point

Judicial Independence and the Rule of Law by Jonathan K. Van Patten, Vol. 2, Benchmark, pp. 117, 129 (1986), referred to

Now, independence of the judiciary is a concept developed over centuries to benefit the people against arbitrary exercise of power. If during experimentation, the independence of the judiciary is lost, it is gone forever and cannot be regained by simply concluding that the loss of independence is a failed experiment. The independence of the judiciary is not physical but metaphysical. The independence of the judiciary is not like plasticine that it can be moulded any which way.

(Para 847)

Though new thoughts and ideas are generated with the passage of time and a line of thinking that was acceptable a few decades ago may not be acceptable today and what is acceptable today may not be acceptable a decade hence. But basic concepts like democracy, secularism, rule of law, independence of the judiciary, all of which are constituents of the basic structure of our Constitution are immutable as concepts, though nuances may change. A failed experiment of these basic concepts would lead to disastrous consequences. It is not possible as an experiment to try out a monarchy or a dictatorship or to convert India into a religious State for about ten or fifteen years and see how the experiment works. Nor is it possible to suspend the rule of law or take away the independence of the judiciary for about ten or fifteen years and see how the experiment works. These concepts are far too precious for experimentation.

(Para 848)

The background historical facts from the late 19th-early 20th Century lead to the conclusion that the independence of the judiciary has been always recognised and acknowledged by all concerned. Though primacy was given to the executive in the Government of India Act, 1919 and the Government of India Act, 1935 but under the scheme of the Constitution, primacy of the executive is excluded. The Constituent Assembly felt that such a “supreme and absolute” power should not vest in the President or the Government of the day or the Chief Justice of India (as an individual) and therefore a fetter was placed on that power in the Constitution by requiring the President to mandatorily consult the Chief Justice of India (with the discretion to consult other Judges) for the appointment of a Judge to the Supreme Court. For the appointment of a Judge of the High Court also, consultation with the Chief Justice of India was mandatory. Significantly, there is no mention of consultation with anybody from civil society in the Constitution.

(Paras 536.2, 594.1 and 594.2)

The contention that the appointment of a Judge of the Supreme Court or a High Court is an executive function and that has been taken over by the judiciary by a process of judicial encroachment through a “right to insist” thereby breaking down the separation of power theory, is rejected. The appointment of a Judge is an executive function of the President and it continues to be so. However, the constitutional convention established even before Independence has been that a Judge is appointed only if the Chief Justice gives his/her nod to the appointment. This position continued even after Independence. This appointments position (prevailing prior and up to the First Judges case) has been recorded in the Second Judges case

(Para 682)

Long settled and established practice which has been in place for a long duration on the part of the executive department, acquiesced in by the legislative department, while not absolutely binding on the judicial department, is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning.

(Para 684)

Okanogan v. United States, 1929 SCC OnLine US SC 103 : 73 L Ed 894 : 279 US 655 (1929), relied on

Missouri Pac. Ry. Co. v. Kansas, 1919 SCC OnLine US SC 3 : 63 L Ed 239 : 248 US 276 (1919); Myers v. United States, 1926 SCC OnLine US SC 180 : 71 L Ed 160 : 272 US 52 (1926); State v. South Norwalk, 77 Conn 257 (Conn 1904), cited

The first decision of key importance on this issue is that of the seven-Judge Constitution Bench in Samsher Singh, (1974) 2 SCC 831 , which is important for three key reasons:

(i) It recognised, judicially, the independence of the judiciary. (This was before the First Judges case which recognised that the independence of the judiciary was a basic feature of the Constitution.)

(ii) It cleared the air by concluding that the President was obliged to act on the advice of the Council of Ministers, even on the issue of appointment of Judges. This was formalised by the Constitution (Forty-second Amendment) Act, 1976.

(iii) In a sense, this decision was a precursor to the primacy conclusion in the Second Judges case with the last word on the subject being with the Chief Justice of India.

It was categorically laid down in Samsher Singh case that the last word in matters pertaining to the judiciary should be with the Chief Justice of India. Samsher Singh case was decided by a Bench of seven Judges and no one has said that that decision requires reconsideration or that it does not lay down the correct law. The Constitution being an organic and living document must be and has been interpreted positively and meaningfully. It is this philosophy that is to be found in Samsher Singh case. It is this constructive interpretation read with CAD that made the advice of the Council of Ministers binding on the President and not a “take it or leave it” advice. Similarly, “consultation” with the Chief Justice of India has to be understood in this light and not as a “consulted and opinion rejected” situation. The Second Judges case merely reiterates the “last word” view in a limited sense. The consensus of opinion across the board is quite clear that the Second Judges case has been correctly decided and that the conventions and the principles laid down therein flow from our constitutional history and these do not need any reconsideration.

(Paras 558, 693, 694, 697 and 698)

On the meaning of “consultation” by the President with the Chief Justice of India in the context of Article 222 of the Constitution, it was held in Sankalchand Himatlal Sheth, (1977) 4 SCC 193 , following Samsher Singh case that it has to be full and effective consultation and not formal or unproductive. It was held in Sankalchand case that though “consultation” did not mean “concurrence” yet, as held in Samsher Singh case, consultation with the Chief Justice of India should be accepted and in such a sensitive subject the last word must belong to the Chief Justice of India. It was noted that if there is a departure from the counsel of the Chief Justice of India, the Court would have the opportunity to examine if any extraneous considerations had entered into the decision.

(Paras 561 and 562)

The Constituent Assembly did not accept the “unfettered discretion” theory in the Constituent Assembly Debates but this view was subsequently rejected in the First Judges case which brought in the “ultimate power” theory propounded by Bhagwati, J. and Desai, J. Executive interference in the appointment process (with perhaps an informal method of “take over”) had started around the time of Independence and got aggravated post Independence, peaking towards the end of the 1980s after the ruling in the First Judges case. The “ultimate power” theory propounded in the First Judges case translated into “absolute executive primacy”. The dream of the Constituent Assembly became a nightmare, thanks to the political-executive.

(Paras 594.5 to 594.8, 531, 535)

There are two observations that need to be made at this stage. Firstly, Krishna Iyer, J. penned the decision in Samsher Singh, (1974) 2 SCC 831 on behalf of Bhagwati, J. as well. Surprisingly, Bhagwati, J. did not refer to this decision in the First Judges case. The significance of this failure is that while in Samsher Singh case it was held by Bhagwati, J. that the “last word” must belong to the Chief Justice of India, in the First Judges case it was held by Bhagwati, J. that the “ultimate power” is with the executive. This completely divergent view, though in different circumstances, is inexplicable since the underlying principle is the same, namely, the status of the Chief Justice of India with reference to the affairs concerning the judiciary. The second observation is that the “last word” theory was not and has not been questioned by the executive in any case, even in the Second Judges case. Therefore, the “last word” principle having been accepted, there is now no reason to go back on it or to repudiate it.

(Para 559)

The Second Judges case was the result of an acknowledgment that:

(1) The existing system of appointment of Judges in which the executive had the “ultimate power” needed reconsideration since that “ultimate power” was being abused;

(2) The existing system of appointment of Judges resulted in some appointments in which merit was overlooked due to executive interference or for extraneous considerations.

(Para 531)

The majority view in the First Judges case was overruled in the Second Judges case and it was held that “consultation” in Articles 217 and 124 of the Constitution meant that “primacy” in the appointment of Judges must rest with the Chief Justice of India. However, I entirely agree with Chelameswar, J. when he says that the Second Judges case, (1993) 4 SCC 441 did not hold that “consultation” means “concurrence”. However still, the “ultimate power” theory or the “absolute executive primacy” theory is now diluted and the last word in the appointment of a Judges of the Supreme Court and High Courts is shared between the President and the Chief Justice of India in terms of the Second Judges case and the Third Judges case [Ed.: see the detailed discussion in this regard under Shortnotes YB to YD].

(Paras 520, 594.9 and Footnote No. 213)

For appointing a Judge of the Supreme Court or the High Court, consultation with the Chief Justice of India or the Chief Justice of the High Court is mandatory. The President in Articles 124(2) and 217(1) of the Constitution means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head. The advice given by the Council of Ministers to the President should be in accord with the Constitution. Such advice is binding on the President. Since the opinion of the Chief Justice of India (representing the Judiciary) has finality, the advice of the Council of Ministers to the President must be in accordance with the opinion of the Chief Justice of India. The convention is that the appointment process is initiated by the Chief Justice of India for the appointment of a Judge to the Supreme Court and by the Chief Justice of the High Court for the appointment of a Judge to the High Court. There is no reason to depart from this convention.

(Paras 536.5 to 536.8)

It is trite that the Constitution is a living document. Keeping this in mind, it cannot be said that a strained interpretation has been given to Articles 124(2) and 217(1) of the Constitution, despite the fact that the substitution of “consultation” with “concurrence” in the draft of Article 124 was discussed in the Constituent Assembly and not accepted. This is so particularly if one looks at the context in which “consultation” is used and the purpose for which it is used, namely, to fetter the discretion of the President by someone who knows what is in the best interests of the judiciary.

(Para 773)

In the Second Judges case Pandian, J. was quite explicit and expressed the view that the selection and appointment of a proper and fit candidate to the superior judiciary is inseparable from the independence of the judiciary and a vital condition in securing it. Similarly, Kuldip Singh, J. also held that there cannot be an independent judiciary when the power of appointment of Judges rests with the executive and that the independence of the judiciary is “inextricably linked and connected with the constitutional process of appointment of Judges of the higher judiciary”. Verma, J., speaking for the majority, expressed the view that all constitutional authorities involved in the process of appointing Judges of the superior courts “should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made”. The learned Judge further said that the independence of the judiciary can be safeguarded by preventing the influence of political considerations in making appointment of Judges to the superior judiciary.

(Para 752)

There is, therefore, no doubt that the appointment of a Judge to the Supreme Court or the High Court is an integral part of the independence of the judiciary. It is not possible to agree with the respondents that though the appointment of a Judge is a part of the independence of the judiciary, it is but a small part and certainly not a predominant part. It is really the foundational part of the independence of the judiciary.

(Para 753)

The independence of the judiciary is a part of the basic structure of the Constitution, and the appointment of a Judge to the Supreme Court or a High Court is an integral and foundational part of the independence of the judiciary. There is no doubt or dispute that the independence of the judiciary is a part of the basic structure of the Constitution. It is reiterated that the appointment of a Judge to the Supreme Court and a High Court is an integral part of the independence of the judiciary.

(Paras 775 and 809)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), clarified and followed

The Bangalore Principles of Judicial Conduct, 2002 which lay down six essential values for a Judge (and which are accepted worldwide both in civil law and common law countries) would be totally unworkable if a person appointed as a Judge, at the time of appointment, lacks basic competence and independence. The six values are: independence, impartiality, integrity, propriety, equality, competence and diligence. Given all these considerations, it must be held and is held that the process for appointment and the actual appointment of a Judge to a High Court or the Supreme Court is a predominant part of the independence of the judiciary and, therefore, an integral part of the basic structure of the Constitution. Therefore, the procedure for the appointment of Judges of the Supreme Court or the High Courts can impact on the independence of the judiciary and the basic structure of the Constitution.

(Paras 756 and 757)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); State of Rajasthan v. Union of India, (1977) 3 SCC 592; I.R. Coelho v. State of T.N., (2007) 2 SCC 1; Jindal Stainless Ltd. v. State of Haryana, (2010) 4 SCC 595, followed

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), explained and followed

R. Pushpam v. State of Madras, 1952 SCC OnLine Mad 258 : AIR 1953 Mad 392, held, approved on this point

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, overruled

Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, referred to

David Dyzenhaus: “Judicial Independence, Transitional Justice and the Rule of Law”, (2001-2004) 10 Otago L Rev 345, 345-46, relied on

Frontline, Vol. 25 — Issue 20: 27-9-2008 to 10-10-2008; ; ; Mehr Chand Mahajan: A Pillar of Justice; Granville Austin: Working a Democratic Constitution, 131, referred to

In sum, having had the benefit of reading the draft judgments of Khehar, J., Kurian Joseph, J. and A.K. Goel, J., I am in respectful agreement with the conclusions arrived at by them with regard to the constitutional invalidity of the 99th Constitution Amendment Act but have preferred to supplement them with additional reasons. I am in respectful disagreement with the view of Chelameswar, J.

(Para 422)

Judging constitutionality of the NJAC Act

On this issue, I would prefer to follow the view expressed by a Bench of seven learned Judges in State of Karnataka, (1977) 4 SCC 608 that it is only an amendment of the Constitution that can be challenged on the ground that it violates the basic structure of the Constitution—a statute cannot be challenged on the ground that it violates the basic structure of the Constitution. A different opinion was expressed in Madras Bar Assn., (2014) 10 SCC 1 wherein it was held that the view that an amendment to the Constitution can be challenged on the ground of violation of the basic structure of the Constitution is made applicable to legislation also. The principles for challenging the constitutionality of a statute are quite different.

(Paras 794, 795 and 852)

In the context of a challenge to a statute, the principles for such a challenge are quite different from a challenge to a constitutional amendment. The accepted view is that a parliamentary statute can be struck down only if it is beyond legislative competence or violates Article 13 of the Constitution or the fundamental rights. The basic structure doctrine is not available for striking down a statute.

(Paras 852 and 853)

Strictly speaking, therefore, an amendment to the Constitution can be challenged only if it alters the basic structure of the Constitution and a law can be challenged if:

(1) It is beyond the competence of the Legislature;

(2) It violates Article 13 of the Constitution;

(3) It is enacted contrary to a prohibition in the Constitution; and

(4) It is enacted without following the procedure laid down in the Constitution.

(Para 857)

At the same time, it has been emphasised by the Supreme Court that the possibility of abuse of a provision of a statute is not a ground for striking it down. An abuse of power can always be checked through judicial review of the action complained of.

(Para 858)

Post the 99th Amendment if reliance can be placed on Second and Third Judges cases

It was submitted that Article 124(2) of the Constitution has been amended by the 99th Constitution Amendment Act and, therefore, the basis of the judgment delivered by the Supreme Court in the Second Judges case has been completely taken away or that the Constitution has been amended with the result that that judgment cannot now be used to interpret Article 124(2) of the Constitution as it is today. In other words, the challenge to the 99th Constitution Amendment Act will have to be adjudicated independently and regardless of the law laid down in the Second Judges case or the Third Judges case.

(Para 816)

Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind, for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. The legislature can change the basis on which a decision is given by the court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.

(Paras 817 and 821)

Without commenting on the view canvassed by the respondents that the 99th Constitution Amendment Act has actually removed the basis of the judgment delivered by the Supreme Court in the Second Judges case, the constitutional validity of the said amendment will nevertheless need to be tested on that assumption, keeping in mind the law laid down on this point by the Supreme Court.

(Paras 823 and 944)

Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283 (Five-Judge Bench); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2); State of T.N. v. State of Kerala, (2014) 12 SCC 696 (Five-Judge Bench), followed

K. Sankaran Nair v. Devaki Amma Malathy Amma, (1996) 11 SCC 428; Bhubaneshwar Singh v. Union of India, (1994) 6 SCC 77; Indian Aluminium Co. v. State of Kerala, (1996) 7 SCC 637, affirmed

Consideration of 99th Amendment and NJAC Act as a package

Now, in principle, segregation would be justified, but as far as this case is concerned, the 99th Constitution Amendment Act and the NJAC Act are a “package deal”. Both were discussed and debated in both Houses of Parliament almost at the same time, both were sent to the President for assent at the same time and were in fact assented to at the same time and finally both were notified at the same time. The only difference was that while the 99th Constitution Amendment Act had to undergo the ratification process, the NJAC Act did not. It was, therefore, a “package deal” presented to the country in which the 99th Constitution Amendment Act and the NJAC Act were so interlinked that one could not operate without reference to the other.

(Para 851)

The 99th Constitution Amendment Act and the NJAC Act are a “package deal” and one cannot be appreciated without the other. The package is incomplete. The 99th Constitution Amendment Act and the NJAC Act raise a series of unanswered questions. For example, how is NJAC expected to perform its duties? Will there be any transparency in the working of NJAC, and if so, to what extent? Will privacy concerns of the “candidates” be taken care of? Will issues of accountability of NJAC be addressed? The respondents submitted that a large number of hypothetical issues and questions have been raised not only by the petitioners but also by the Bench and it is not possible to answer all of them in the absence of a composite law and regulations being framed in accordance with the postulates of the 99th Constitution Amendment Act. This submission of the respondents cannot be appreciated particularly in view of the contention, raised on more than one occasion, that what is enacted by the 99th Constitution Amendment Act is a package deal. Unless all eventualities are taken care of, the package deal presented to the country is an empty package with the wrapping paper in the form of the NJAC Act and a ribbon in the form of the 99th Constitution Amendment Act. If it is not possible to answer all the questions in the absence of a composite law, rules and regulations, what was the hurry in bringing the 99th Constitution Amendment Act and the NJAC Act into force as a half-baked measure?

(Paras 877 and 878)

It is true that the Constitution cannot specify and incorporate each and every detail, particularly procedural details. But at the same time, the substantive requirements of the NJAC scheme must be apparent from the 99th Constitution Amendment Act read with the NJAC Act, particularly when it seeks to overthrow an existing method of appointment of Judges that maintains the independence of the judiciary. Vital issues cannot be left to be sorted out at a later date through supplementary legislation or supplementary subordinate legislation, otherwise an unwholesome hiatus would be created, making matters worse. The package deal must survive as whole or fall as a whole—there cannot be piecemeal existence.

(Paras 879 and 880)

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); State of Karnataka v. Union of India, (1977) 4 SCC 608 (Seven-Judge Bench); Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (Five-Judge Bench); Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (Five-Judge Bench); Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 : 2003 SCC (L&S) 400; Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, followed

State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 : (2013) 2 SCC (L&S) 1; State of A.P. v. McDowell & Co., (1996) 3 SCC 709; D.K. Trivedi & Sons v. State of Gujarat, 1986 Supp SCC 20, affirmed

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Madras Bar Assn. v. Union of India, (2014) 10 SCC 1 (Five-Judge Bench); Chhotabhai Jethabhai Patel & Co. v. Union of India, 1962 Supp (2) SCR 1 : AIR 1962 SC 1006 (Five-Judge Bench); Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 (Five-Judge Bench), considered

Collector of Customs v. Nathella Sampathu Chetty, AIR 1962 SC 316; State of Rajasthan v. Union of India, (1977) 3 SCC 592; Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt, AIR 1954 SC 282, cited

Role of the President in NJAC scheme

Article 124(2) of the Constitution (as amended) requires NJAC constituted under Article 124-A thereof to make a recommendation to the President for the appointment of a Judge of the Supreme Court or a High Court. As far as NJAC is concerned, it is not clear whether the President means the President acting in his/her individual capacity or the Council of Ministers. The President certainly cannot mean the individual otherwise the procedure for appointment of Judges postulated by the 99th Constitution Amendment Act and the NJAC Act would be creating an imperium in imperio which the Constituent Assembly deliberately avoided. On the other hand, if the President means the Council of Ministers, then on what basis can the Council of Ministers/President ask NJAC (under the proviso to Section 7 of the NJAC Act) to reconsider its view? The Council of Ministers/President is already represented as a “voting member” in NJAC through the Law Minister. Can the President/Council of Ministers/Prime Minister ask for reconsideration of a recommendation made by NJAC to which the Law Minister (a member of the Cabinet) is a party?

(Para 882)

Article 124(2) of the Constitution as originally framed made it mandatory for the President to consult the Chief Justice of India in the appointment of Judges. The 99th Constitution Amendment Act completely does away with the mandatory consultation. The President is not expected to consult anybody in the appointment process—he/she is expected to act only on the recommendation of NJAC. The authority that the President had to turn down a recommendation made by the Collegium, if it was not unanimous, is now taken away from the President who is obliged to accept a recommendation from NJAC even if it is not unanimous. This is a considerable whittling down of the authority of the President and a drastic change in the appointment process and in a sense reduces the President (as an individual) to a rubber stamp.

(Paras 883, 924 and 964)

Under the NJAC scheme, the President cannot even seek the views of any body (other Judges or lawyers or civil society) which was permissible prior to the 99th Constitution Amendment Act and a part of Article 124(2) of the Constitution prior to its amendment. It may be recalled that Article 124(2) of the Constitution enables the President to consult Judges of the Supreme Court and the High Court but that entitlement is now taken away by the 99th Constitution Amendment Act. The President, in the process, is actually reduced to a dummy.

(Paras 864, 865, 884, 885 and 965)

Thus, there is no clarity on the role of the President. In any event, the discretion available to the President to consult Judges of the Supreme Court in the matter of appointment of Judges is taken away; the decision of the President is subject to the opinion of two eminent persons neither of whom is constitutionally accountable; there is a doubt on the well-established principle of Cabinet responsibility; a statute — the NJAC Act, not the Constitution binds the President contrary to the constitutional framework; the 99th Constitution Amendment Act makes serious and unconstitutional inroads into Article 124(2) of the Constitution, as originally framed.

(Paras 882 to 886)

The 99th Constitution Amendment Act unconstitutionally considerably downsizes the role of the President. This effaces the basic structure of the independence of the judiciary by sufficiently altering the process of appointment of Judges to the Supreme Court and the High Court, or at least alters it unconstitutionally thereby striking at the very basis of the independence of the judiciary.

(Para 928)

Role of Chief Justice of India and Judiciary in NJAC scheme

The 99th Constitution Amendment Act reduces the Chief Justice of India, despite being the head of the judiciary, to one of six in NJAC making a recommendation to the President, thereby denuding him/her of conventional, historical and legitimate constitutional significance and authority and substantially skewing the appointment process postulated by the Constituent Assembly and the Constitution. The opinion of the Chief Justice of India had “graded weight” or the “greatest weight” prior to the 99th Constitution Amendment Act. But now with the passage of the 99th Constitution Amendment Act and the NJAC Act the Chief Justice of India is reduced to a mere voting statistic. Designating the Chief Justice of India as the Chairperson of NJAC is certainly not a solace or a solution to downsizing the head of the Judiciary.

(Paras 543 and 888)

The participation of the judiciary as an institution in NJAC is made farcical. The 99th Constitution Amendment Act does not postulate a “veto” being conferred on any person in NJAC. But the NJAC Act effectively gives that power to all members of NJAC despite the 99th Constitution Amendment Act. This is evident from the provisions of the NJAC Act which enable two persons, one of them being the Law Minister to veto the unanimous opinion of the three participating Judges (including the Chief Justice of India). Therefore, even if the judiciary as a whole and as an institution (that is the three participating Judges) is in favour of a particular appointment, that unanimous opinion can be rendered worthless by any two other members of NJAC, one of whom may very well include the Law Minister representing the political-executive and another having perhaps nothing to do with justice delivery. This is certainly not what the Constitution, as framed, postulated or intended.

(Paras 889 and 892)

It was suggested by the respondents that the unanimous opinion of the three participating Judges should have overriding weight, that is a veto over a veto or a “tie break vote”. This suggestion puts the Supreme Court in a Catch-22 situation. The alternative suggested would clearly amount to judicial overreach and the judiciary rewriting the statute. The only rational course is to interpret the law as it is and if it is constitutionally valid so be it and if it is constitutionally invalid so be it. It is not advisable or possible to rewrite the law when the language of the statute is express.

(Para 890)

Thus, the 99th Constitution Amendment Act unconstitutionally minimises the role of the Chief Justice of India and the judiciary to a vanishing point in the appointment of Judges. This effaces the basic structure of the independence of the judiciary by sufficiently altering the process of appointment of Judges to the Supreme Court and the High Court, or at least alters it unconstitutionally thereby striking at the very basis of the independence of the judiciary.

(Paras 892 and 928)

Mandatory consultation between executive and judiciary effaced in NJAC scheme

The 99th Constitution Amendment Act and the NJAC Act not only reduce the Chief Justice of India to a number in NJAC but also convert the mandatory consultation between the President and the Chief Justice of India to a dumb charade with NJAC acting as an intermediary. Every improper enhancement of its own power by Parliament has been held to be incompatible with the doctrine of basic structure as such enhancements introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded.

(Para 928)

Mandatory consultation between the President and the Chief Justice of India postulated in the Constitution is bypassed—bringing about a huge alteration in the process of appointment of Judges: the 99th Constitution Amendment Act and the NJAC Act have reduced the consultation process to a farce—a meaningful participatory consultative process no longer exists; the shared responsibility between the President and the Chief Justice of India in the appointment of Judges is passed on to a body well beyond the contemplation of the Constituent Assembly; the possibility of having committed Judges and the consequences of having a committed judiciary, a judiciary that might not be independent is unimaginable.

(Para 935)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); I.R. Coelho v. State of T.N., (2007) 2 SCC 1, followed

Carly Van Orman, “Introduction to the Symposium: The Judicial Process Appointments Process”, 10 Wm & Mary Bill Rts J 1 (2001), ; “The Appointment and Removal of Judges” by Sir Anthony Mason AC KBE, formerly Chief Justice of Australia , referred to

High Court Chief Justices' Role effaced in NJAC scheme

As far as the appointment of a Judge of a High Court is concerned, the 99th Constitution Amendment Act and the NJAC Act have made two extremely significant changes in the process of appointment. Firstly, the mandatory requirement for consultation with the Chief Justice of the High Court has been completely dispensed with. Article 217(1) of the Constitution as it was originally enacted made it mandatory for the President to consult the Governor of the State and the Chief Justice of the High Court in the appointment of a Judge of a High Court. The Chief Justice of the High Court has now been left out in the cold. Secondly, the constitutional obligation and constitutional convention that has developed over the last several decades is that a recommendation for the appointment of a Judge of the High Court originates from the Chief Justice of the High Court. This has now been given a go-by by the 99th Constitution Amendment Act and the NJAC Act. The entire initiation of the appointment process has now been overhauled. The Chief Justice of the High Court has been reduced to the role of a nominating officer, whose opinion is taken only for nomination purposes but not taken as a consultant in so vital a matter as the appointment of a Judge; the constitutional importance given to the Chief Justice of a High Court has been completely whittled down virtually to a vanishing point.

(Paras 936 and 946)

In terms of Section 6(2) of the NJAC Act, the recommendation for the appointment of a Judge of a High Court cannot originate from the Chief Justice of the High Court but NJAC will seek a nomination for that purpose from the Chief Justice of the High Court. In other words, the initiative for the appointment of a Judge of the High Court is wrested from the Chief Justice of the High Court by NJAC. There is a qualitative difference between the Chief Justice of a High Court nominating a person for appointment as a Judge of a High Court on the initiative of NJAC [Section 6(2) of the NJAC Act] and the Chief Justice of a High Court recommending a person for appointment as a Judge of a High Court [Article 217(1) of the Constitution]. With such a major departure from the constitutional obligation and the constitutional convention established over the last several decades, the dispensation might encourage canvassing support for a nomination—a somewhat similar occurrence was looked down upon by the Law Commission of India in its 14th Report.

(Para 937)

However, what is more disturbing and objectionable is that the consultation process with the Chief Justice of the High Court after a nomination is made by him/her of a person for appointment as a Judge of that High Court has been done away with. The process of consultation is an integrated and participatory process but by virtue of the 99th Constitution Amendment Act and the NJAC Act only a nomination is sought from the Chief Justice of a High Court by NJAC. Thereafter, the Chief Justice has no role to play. This is clear from Section 6(7) of the NJAC Act which mandates NJAC to elicit in writing the views of the Governor and the Chief Minister of the State before recommending a person for appointment as a Judge of the High Court, but not the views of the Chief Justice, who is reduced to a mere nominating officer, whose assigned task is over as soon as the nomination is made. This drastic change in the process of appointment of a Judge of a High Court obviously has a very long-term impact since it is ultimately from the “cadre” of the High Court Judges that most Supreme Court Judges would be appointed, if the existing practice is followed. This in turn will obviously have a long-term impact on the independence of the judiciary apart from completely altering the process for appointment of a Judge of a High Court.

(Paras 938 and 939)

Shimon Shetreet: Judges on Trial (North-Holland Publishing Co., Amsterdam 1976) 46; Akkas, Sarkar Ali: “Appointment of Judges: A Key Issue of Judicial Independence” (2004), Bond Law Review; Vol. 16, Issue 2, Article 8. , referred to

Overall conclusion on invalidity of 99th Amendment and NJAC Act

The independence of the judiciary took up so much discussion time of several committees, the Constituent Assembly and various other bodies and institutions. Several legal luminaries have also devoted considerable effort and given a thoughtful study to the independence of the judiciary. There was a purpose to it, namely, that the independence should not be subverted via external or internal pressures. Through the medium of the 99th Constitution Amendment Act and the NJAC Act, this independence is subtly put to jeopardy. Justice O'Connor of the United States Supreme Court said: “Judicial independence doesn't happen all by itself…. It's tremendously hard to create, and easier than most people imagine to destroy.” The 99th Constitution Amendment Act and the NJAC Act put us face to face with this truism in respect of the fragile bastion. The 99th Constitution Amendment Act and the NJAC Act lead to the clear possibility of a committed judiciary being put in place, which violates the basic structure of the Constitution.

(Paras 891 and 934)

Justice Sandra Day O'Connor of the U.S. Supreme Court at the Graduation Ceremony of William & Mary Law School in 2006 — See , referred to

Thus, working within the parameters suggested by the respondents namely, the presumption of constitutionality of the 99th Constitution Amendment Act, that the basis of the judgment in the Second Judges case has been removed, the wisdom of Parliament and the needs of the people cannot be questioned and that the Supreme Court must recognise that society and its requirements have changed with the passage of time, it is not possible to uphold the constitutional validity of the 99th Constitution Amendment Act. The recipe drastically alters the process of appointment of Judges of the Supreme Court and the High Courts by taking away its essential ingredients leading to a constitutional challenge that must be accepted.

(Para 944)

Through the 99th Constitution Amendment Act, NJAC takes away the responsibility not only of the executive but also the shared responsibility of the judiciary and the executive, completely decapitating the appointment system given to us by the Constituent Assembly—a system that ensures the independence of the judiciary. While there might be a need for a more efficient or better system of appointment of Judges, the NJAC scheme incorporates a host of features that severely impact on the appointment of Judges and thereby on the independence of the judiciary and thereby on the basic structure of the Constitution.

(Paras 421, 942 to 945 and 968)

Thus, it is held that Article 124-A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014 impinges on the independence of the judiciary and in the matter of appointment of Judges (which is a foundational and integral part of the independence of the judiciary) and alters the basic structure of the Constitution. It is accordingly declared unconstitutional. The other provisions of the Constitution (Ninety-ninth Amendment) Act, 2014 are not severable and hence cannot stand by themselves and are therefore also declared unconstitutional.

(Paras 421, 945 and 968)

Similarly, the National Judicial Appointments Commission Act, 2014 confers arbitrary and unchartered powers on various authorities under the statute enabling substantive arbitrariness in the appointment of Judges to the Supreme Court and the High Courts, thus it violates Article 14 of the Constitution and is declared unconstitutional. Even otherwise, since the 99th Constitution Amendment Act is unconstitutional, the National Judicial Appointments Commission Act, 2014 (the NJAC Act) which is the child of the 99th Constitution Amendment Act cannot independently survive on the statute book.

(Paras 421 and 968)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), followed

Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 : 1992 SCC (L&S) 561; Supreme Court Act, R.S.C. 1985, Sections 5 and 6, In re, 2014 SCC OnLine Can SC 22 : (2014) 1 SCR 433, considered

The result of this declaration is that the Collegium System postulated by the Second Judges case and the Third Judges case gets revived.

(Para 969)

99th Amendment and NJAC Act and Right to Know and Right to Privacy

The people have a right to know. The right to know has recognised as a fundamental principle of the freedom of expression and the freedom of discussion. The right to know is a basic right which citizens of a free country aspire to in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution.

(Paras 950 and 952)

However, the balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual. This is important because it was submitted by the respondents that the proceedings of NJAC will be completely transparent and any one can have access to information that is available with NJAC. This is a rather sweeping generalisation which obviously does not take into account the privacy of a person who has been recommended for appointment, particularly as a Judge of the High Court or in the first instance as a Judge of the Supreme Court. The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy. The balance between the two implied fundamental rights is difficult to maintain, but the 99th Constitution Amendment Act and the NJAC Act do not even attempt to consider, let alone achieve that balance.

(Para 953)

It is possible to argue that information voluntarily supplied by a person who is recommended for appointment as a Judge might not have a right to privacy, but at the same time, since the information is supplied in confidence, it is possible to argue that it ought not to be disclosed to third party unconcerned persons. Also, if the recommendation is not accepted by the President, does the recommended person have a right to non-disclosure of the adverse information supplied by the President? These are difficult questions to which adequate thought has not been given and merely on the basis of a right to know, the reputation of a person cannot be whitewashed in public.

(Para 954)

Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641; Attorney General v. Times Newspapers Ltd., 1974 AC 273 : (1973) 3 WLR 298 : (1973) 3 All ER 54 (HL); State of U.P. v. Raj Narain, (1975) 4 SCC 428; Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd., (1988) 4 SCC 592, considered

Renu v. District & Sessions Judge, (2014) 14 SCC 50 : (2015) 3 SCC (L&S) 406, cited

Per Kurian Joseph, J.

While wholly agreeing with the historic, textual, prudential and doctrinal approaches made by Khehar and Lokur, JJ., my additional stress is on the structural part. The three Constitutional wings, their powers and functions under the Constitution, and their intra relationship being the key issues to be analysed in the present case, I am of the view that the “structural tool” is to be prominently applied for resolving the issues arising in the case. Once the Supreme Court has addressed an issue on a substantial question of law as to the structure of the Constitution and has laid down the law, a request for revisit shall not be welcomed unless it is shown that the structural interpretation is palpably erroneous.

(Paras 986, 981, 978, 979 and 976)

Separation of powers or say distribution of powers, as learned Lokur, J. terms it, is the tectonic structure of the Constitution of India. The various checks and balances are provided only for maintaining a proper equilibrium amongst the structures and that is the supreme beauty of our Constitution. Under our constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch. The permissible areas of interference are the checks and balances. But there are certain exclusive areas for each branch which learned Khehar, J. has stated as “core functions” and which I would describe as powers central. [Ed.: see paras 295, 296, 346 and 380 in Khehar, J.'s opinion; and under Shortnotes A, B, R and YV.] There shall be no interference on powers central of each branch. What the Constitution is, is only for the court to define; whereas what the constitutional aspirations are for the other branches to detail and demonstrate.

(Para 987)

The core issue before this Bench is the validity of the Constitution 99th Amendment. It is to be tested on the touchstone of the theory of basic structure. The 99th Amendment has introduced a new constitutional scheme for appointment of Judges to the High Courts and the Supreme Court. During the first phase of the working of the Constitution, the executive claimed an upper hand in the appointment and the Chief Justice of India or the Chief Justices of the High Courts concerned were only to be “consulted”, the expression often understood in its literal sense. In other words, the decision was taken by the executive with the participation of the Chief Justice.

(Para 971)

In Samsher Singh, (1974) 2 SCC 831 , a seven-Judge Bench of the Supreme Court, in unmistakable terms, held that the independence of the judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.

(Para 972)

This principle, settled by a Bench of seven Judges, should have been taken as binding by the Bench dealing with the First Judges case, 1981 Supp SCC 87, which had a coram only of seven. Unfortunately, it held otherwise, though with a majority of four against three. Strangely, the Presiding Judge in the First Judges case and author of the majority view therein, was a member who concurred with the majority in Samsher Singh, (1974) 2 SCC 831 and yet there was not even a reference to that judgment in the lead judgment! Had there been a proper advertence to Samsher Singh case, probably there would not have been any need for the Second Judges, (1993) 4 SCC 441. It appears, the restlessness on the incorrect interpretation of the constitutional structure and position of judiciary in the matter of appointments with the super voice of the executive, as endorsed in the First Judges case, called for a serious revisit leading to the Second Judges case.

(Para 972)

The nine-Judge Bench in the Second Judges case overruled the First Judges case, after a threadbare analysis of the relevant provisions “in the light of the letter and spirit of the Constitution”, held that appointment of Judges to the High Courts and the Supreme Court forms an integral part of the independence of the judiciary, which is part of the basic structure of the Constitution of India, and therefore, the executive cannot interfere with the primacy of the judiciary in the matter of appointments. The Third Judges case, in 1998, is only an explanatory extension of the working of the principles in the Second Judges case by institutionalising the procedure of appointment, introducing the Collegium. Thus, the structural supremacy of the judiciary in the constitutionally allotted sphere was restored by the Second and the Third Judges cases.

(Paras 973 and 974)

As held in Samsher Singh case and the Second and the Third Judges cases, selection of Judges for appointment in High Courts and the Supreme Court belongs to the powers central of the judiciary and the permissible checks and balances are provided to other branches lie in the sphere of appointment. If the alignment of tectonic plates on distribution of powers is disturbed, it will quake the Constitution. Once the constitutional structure is shaken, democracy collapses. That is our own painful history of the Emergency. It is Parliament, post-Emergency, which corrected the constitutional perversions and restored the supremacy of the rule of law which is the cornerstone of our Constitution. As the guardian of the Constitution, the Supreme Court should vigilantly protect the pristine purity and integrity of the basic structure of the Constitution. Direct participation of the Executive or other non-judicial elements would ultimately lead to structured bargaining in judicial appointments, if not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary, however remote be the possibility, is to be nipped in the bud. Parliament has no power to gerrymander the Constitution. The Constitution 99th Amendment impairs the structural distribution of powers, and hence, it is impermissible.

(Para 988)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, per incuriam and held, overruled

None before us could blur the graphic picture on the scheme of appointment of Judges and its solid structural base in the Constitution portrayed in the Second Judges case. This Bench is bound by the ratio that independence of the judiciary is part of the basic structure of the Constitution and that the appointment of Judges to the High Courts and the Supreme Court is an integral part of the concept of independence of the judiciary. And for that simple reason, the Constitution 99th Amendment is bound to be declared unconstitutional and I do so. Thus, I wholly agree with the view taken by Khehar, Lokur and Goel, JJ., that the 99th Amendment is unconstitutional and I respectfully disagree with the view taken by Chelameswar, J. in that regard. Since it is being held by the majority that the 99th Amendment itself is bad, there is no point in dealing with the validity of the creature of the 99th Amendment viz. the National Judicial Appointments Commission Act, 2014. It does not exist under law. Why then write the horoscope of a stillborn child!

(Para 976)

Per A.K. Goel, J.

Primacy of judiciary in appointment of Judges is certainly a part of the basic feature of the Constitution. If primacy of judiciary in the appointment of Judges is held to be not a part of basic features, Parliament may be free to confer the said power on the executive or the legislature or to any other authority which can certainly compromise the independence of the judiciary. It will also in turn disturb the doctrine of separation of powers and other basic features like the rule of law, democracy and federalism and working of the Constitution as a whole. Independence of the judiciary is the key element in the entire functioning of the Constitution and such independence is integrally linked with the appointment of Judges free from executive interference. The power of appointment of Judges cannot be exercised by the executive as the same will affect the independence of the judiciary. Even after the original provisions of the Constitution are amended, this principle is still applicable.

(Para 1067)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), explained and followed

It can hardly be doubted that the Constitution is a dynamic document and has to be interpreted to meet the felt needs of the times and cannot bind all future generations. At the same time, it is also now well settled that the amending power is limited to non-essential/non-basic features and does not extend to altering the basic features and framework of the Constitution. Thus the change of time does not justify greater role for the executive in the appointment of Judges. The plea of overlapping roles of different departments of the Government is against the basic structure as far as appointment of Judges is concerned.

(Paras 1067 and 1066)

Even by constitutional amendment primacy of the judiciary in appointment of Judges cannot be excluded. Such primacy exists not merely by the word “consultation” but by virtue of the role of judiciary in the working of the Constitution, by the CJI being better suited to assess the merit of the candidate and on account of the executive being the major litigant. There is no change in these factors even after the 99th Amendment. It is not thus a question of change of model or of available choices with Parliament. Plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged. Similarly, the plea that Parliament is best equipped to assess the needs of the people is not enough reason to extend the power of Parliament to amend the basic features of the Constitution.

(Para 1066)

While it is true that the legislature can even retrospectively clarify its intention and thereby bring about a change in law, in the present context meaning of the unamended provisions concerned i.e. Articles 124, 217 and 222 was not based merely on the words used but also the entire scheme of the Constitution particularly the independence of the judiciary. It has been held that in the context of the Indian Constitution, having regard to the consistent past practice and to avoid political interference in appointment of Judges, and also on account of the CJI/CJ being better equipped to assess the merit of a candidate, the proposal must always be initiated by the CJI/CJ and the CJI must also have the final word on the subject.

(Para 1067)

It remains undisputed that the power of judicial review, the independence of the judiciary, broad separation of powers in three departments of the State, federalism and democracy are the basic features of the Constitution. The term “consultation” in Article 124 of the Constitution should not be literally construed. It has to be construed in the constitutional background of its purpose and to maintain and uphold the independence of the judiciary. So interpreted, it has been held that in the event of conflicting opinions of the constitutional functionaries, the opinion of the judiciary as symbolised by the view of the CJI and formed in the manner indicated, would have primacy. The word “consultation”, on account of the scheme of the Constitution, has been held to carry special meaning, on a purposive interpretation. The interpretation is not based solely on the word “consultation” but on the scheme of the independence of judiciary.

(Paras 1036, 1040, 1065 and 1054)

The contention that the independence of the judiciary is not affected even when the executive made the appointment of Judges, is contrary to the expert studies and well-considered decisions of the Supreme Court. The acknowledged scheme of the Constitution and its working is not to allow domination of the executive in the appointment of Judges. Such domination affects the independence of the judiciary, public faith in its impartiality (when the Government is the major litigant), brings in extraneous considerations, compromises merit, weakens the principles of checks and balances and separation of the judiciary from the executive. Thus, Parliament cannot interfere with the primacy of the judiciary in appointment of Judges and thereby interfere with the basic feature of the Constitution. It is also essential to uphold balance of powers between legislature, executive and judiciary which by itself is key to the functioning of the entire Constitution. The judiciary is entrusted the power to control the power of the executive and the legislature whenever it is alleged that the said organs have exceeded their constitutionally assigned authority. This is the essence of democracy.

(Paras 1036, 1040, 1065 and 1054)

The primacy of judiciary in appointment of Judges as always understood in binding judicial precedents comprises of initiation of name of prospective Judges and taking a final call in who is to be recommended for appointment as a Judge to the President. These two core features constitute identity of the primacy of judiciary in appointment of Judges. Subject to these two features, any amendment could have been made and if these two features are compromised, the basic identity of the Constitution can be held to have been altered or damaged.

(Para 1093)

The earlier decisions in the Second and the Third Judges cases have to be taken as binding precedents. Once it is so, it has to be held that primacy of the judiciary in appointment of Judges is part of the basic structure of the Constitution. Appointment of Judges is part of independence of the judiciary. Thus it is concluded that primacy of the judiciary and limited role of the executive in appointment of Judges is part of the basic structure of the Constitution. The primacy of the judiciary is in initiating a proposal and finalising the same. The CJI has the last word in the matter. The executive is at liberty to give suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment for disclosed reasons as held in the Second and the Third Judges cases.

(Paras 1054 and 1071)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench), followed

Manoj Narula v. Union of India, (2014) 9 SCC 1 (Five-Judge Bench), relied on

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, overruled

Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1; Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532 : (2014) 4 SCC (Cri) 1, Rameshwar Prasad (6) v. Union of India, (2006) 2 SCC 1; M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, referred to

I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench); Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603 : (2013) 1 SCC (Civ) 173 : (2013) 2 SCC (Cri) 202 : (2013) 1 SCC (L&S) 76; Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC 56, cited

I have perused the erudite opinions of my esteemed Brothers. While I respectfully agree with the conclusions arrived at by Khehar, J., Lokur, J. and Kurian Joseph, J., and respectfully disagree with the view of Chelameswar, J. I have preferred to record my own reasons.

(Para 993)

The claim that the 99th Amendment improves the system has to be tested by applying the “identity test” and the “impact test”. It is not merely the text of the amendment but also its impact and potential which has to be kept in mind on the “identity” of the original scheme and the “width” of the power under the new scheme. The impugned amendment should not affect the identity of an essential feature of the Constitution. The impact of the amendment on the working of the scheme of the Constitution has to be taken into account. This brings to some extent subjective element which is unavoidable even while testing any legislation which is alleged to be violative of the fundamental rights and justified on the concept of “reasonable restrictions”. In this regard, the effect of executive interference in the appointment of Judges which has been documented by expert studies cannot be held to be irrelevant or ignored on the ground that this is a subject of wisdom of Parliament. As already mentioned, the working of the judiciary has affected the executive and legislature on several occasions.

(Paras 1084 and 1085)

The 99th Amendment is not an insignificant amendment and is not within the basic framework of the working of the Constitution. The very premise and object of the 99th Amendment as reflected in the Statement of Objects and Reasons and the stand of the Union of India in its pleadings and during the course of arguments, is that the primacy of the judiciary in the appointment of Judges was evolved by erroneous interpretation which is sought to be corrected. It is stated that the primacy of judiciary in the appointment of Judges is undemocratic and denied the executive a meaningful role. These contentions are untenable.

(Para 1091)

Under the impugned 99th Amendment the basic feature of primacy of judiciary in appointment of Judges has been altered or damaged. It is obvious that the predominant role of the judiciary, as it exists in the light of the original constitutional scheme in taking a final decision on the issue of appointment of Judges of the Supreme Court and appointment and transfer of Judges of the High Courts, has been given a go-by. Under the unamended scheme of appointment of Judges which is a basic feature of the Constitution, the President is to make appointment, after consultation with the CJI representing the judiciary. Disregarding the views of the CJI is permissible in exceptional situations for recorded reasons having a bearing on the character and antecedents of a candidate and if such reasons are found to be acceptable to the CJI. Under the amended scheme, no such final view can be taken by the CJI. Without giving any reason, the Minister or the nominated members can reject the unanimous view of the Judges. The Chief Justice of the High Court is not a member of NJAC and has no constitutional role in appointment/transfer of the Judges of the High Courts. The mere fact that without the Judges, the Minister and the nominated members cannot make an appointment is not on a par with the situation where a decision itself is taken by the CJI representing the judiciary. The constitutional power of the Chief Justice of the High Court to initiate proposal for appointment as Judge of the High Court has been done away with, at least as far as the constitutional provisions are concerned. In the new scheme, the Chief Justices of the High Courts have not been provided any constitutional say. The Chief Justice of the High Court is in a better position to initially assess the merit of a candidate for appointment as Judge of the High Court. The constitutional amendment does not provide for any role to the Chief Minister of the State. This may affect the quality of the candidate selected and thereby the independence of the judiciary.

(Paras 1072, 1079 and 1105)

The new structure envisaged under the NJAC scheme provides for a decisive voice with NJAC which apart from Judges comprises of the Law Minister and two eminent persons to be nominated by a specified committee. But the concept of the rule of law requires that the new mechanism should, as nearly as possible, have the same standards. The new scheme may iron out the creases but the mechanism should be comparable to the substituted scheme.

(Para 1085)

As regards the plea of transparency and accountability, the same has to be achieved without compromising the independence of the judiciary. If on the perceived plea of transparency and accountability, the independence of the judiciary is sought to be adversely affected by the 99th Amendment, this will cause severe damage to the functioning of the Constitution. The primacy of judiciary in appointment of Judges is integral to the independence of the judiciary, separation of powers, federalism and democracy, rule of law and supremacy of the Constitution. The 99th Amendment does away with the primacy of even unanimous opinion of the judicial members in appointment of Judges, as such opinion is not enough to finalise an appointment.

(Para 1092)

Even assuming the best of intentions, the power of judicial review by the constitutional courts cannot be subjected to scrutiny by any “eminent persons” on the ground that working of the judiciary was perceived to be unsatisfactory. Obviously it will be clear interference with the independence of the judiciary. In the same way, constitutionally conferred judicial primacy in appointment of Judges cannot be whittled down or sought to be controlled by those who are not given or allowed to take over such functions. Even granting the best of intentions, Parliament cannot act beyond the authority conferred on it by the Constitution. Thus, taking away primacy of judiciary or conferring such primacy on a body in judicial appointments which is not on a par with the said concept is certainly not a choice available with Parliament.

(Paras 1093 and 1094)

There is also no merit in the contention that in the present case mere alteration in a constitutional provision does not amount to damage of a basic feature. It is not a case of simple amendment to iron out creases. Its impact clearly affects the independence of the judiciary. As already mentioned, appointment of Judges has always been considered in the scheme of the working of the Indian Constitution to be integral to the independence of the judiciary. It is for this reason that primacy in appointment of Judges has always been intended to be of the judiciary. Predominant role of the executive is not permissible. Such primacy comprises of initiating the proposal by the judiciary and final word being normally with the CJI (in representative capacity). The NJAC scheme is beyond the power of amendment available to Parliament.

(Para 1104)

Consistent with the view that primacy of the judiciary in the appointment of Judges cannot be compromised and on that ground not only Section 2 of the 99th Amendment dispensing with the mandatory consultation with the judiciary as contemplated under the unamended provisions, Section 3 conferring power on NJAC (under Article 124-B) and providing for composition of the Commission under Article 124-A giving a role to the Law Minister and two eminent persons equal to the CJI in recommending appointments as CJI, Judges of the Supreme Court, the Chief Justices and other Judges of the High Courts and recommending transfer of Chief Justices and Judges of the High Courts are unconstitutional but also Article 124-C giving power to Parliament to regulate the procedure and to lay down the manner of selection is also unconstitutional, the impugned NJAC Act has to be struck down. It goes far beyond the procedural aspects.

(Para 1109)

The plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged. It is held that the new NJAC scheme damages the basic feature of the Constitution under which primacy in appointment of Judges has to be with the judiciary. Under the new scheme such primacy has been given a go-by. Thus the impugned 99th Amendment cannot be sustained. In view of this conclusion about the 99th Amendment being beyond the competence of Parliament, it is not necessary to discuss the validity of the NJAC Act in great detail as the said Act cannot survive once the 99th Amendment is struck down.

(Paras 1066, 1108 and 1109)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Maneka Gandhi v. Union of India, (1978) 1 SCC 248; State of Madras v. V.G. Row, 1952 SCR 597 : AIR 1952 SC 196; Union of India v. Madras Bar Assn., (2010) 11 SCC 1; Madras Bar Assn. v. Union of India, (2014) 10 SCC 1; Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); P. Sambamurthy v. State of A.P., (1987) 1 SCC 362; Union of India v. Madras Bar Assn., (2010) 11 SCC 1; Madras Bar Assn. v. Union of India, (2014) 10 SCC 1; Powers, Privileges and Immunities of State Legislatures, In re, Special Reference No. 1 of 1964, (1965) 1 SCR 413 : AIR 1965 SC 745 (Seven-Judge Bench), followed

Amrik Singh Lyallpuri v. Union of India, (2011) 6 SCC 535, affirmed

Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248; Bennett Coleman & Co. Ltd. v. Union of India, (1972) 2 SCC 788; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 (Seven-Judge Bench); Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); L. Chandra Kumar v. Union of India, (1997) 3 SCC 261; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench); I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench); S.R. Bommai v. Union of India, (1994) 3 SCC 1, referred to

Bhim Singhji v. Union of India, (1981) 1 SCC 166 (Five-Judge Bench); Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (Five-Judge Bench); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536; Collector of Customs v. Nathella Sampathu Chetty, AIR 1962 SC 316; T.N. Education Deptt. Ministerial and General Subordinate Services Assn. v. State of T.N., (1980) 3 SCC 97 : 1980 SCC (L&S) 294; State of Rajasthan v. Union of India, (1977) 3 SCC 592; Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt, AIR 1954 SC 282; Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356 : (2007) 1 SCC (L&S) 444; Lily Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 2 SCC (L&S) 811; Chief Election Commr. v. Jan Chaukidar, (2013) 7 SCC 507 : (2013) 3 SCC (Civ) 590 : (2013) 2 SCC (L&S) 907, cited

Even if the doctrine of basic structure is not applied in judging the validity of a parliamentary statute, independence of the judiciary and rule of law are parts of Articles 14, 19 and 21 of the Constitution and absence of independence of the judiciary affects the said fundamental rights. The provisions of the NJAC Act impinge upon the independence of the judiciary. The NJAC Act is thus liable to be struck down.

(Para 1109)

In Section 5(2) of the NJAC Act which deals with the selection of the Supreme Court Judges, “suitability criteria” is left to be worked out by regulations. The second proviso to Section 5(2) and Section 6(6) give veto to two members of the Commission which is not contemplated by the 99th Amendment. Section 5(3) and Section 6(8) provide for conditions for selection to be laid down by regulations which are not mere procedural matters. Section 6 authorises the recommendations for appointment as Judges of the High Courts without the proposal being first initiated by the Chief Justice of the High Court. Section 6(1) provides for recommendation for appointment of Chief Justice of a High Court on the basis of inter se seniority of High Court Judges. This may affect giving representation to as many High Courts as viable as, in inter se seniority, many Judges of only one High Court may be seniormost. Section 6(2) provides for seeking nomination from the Chief Justices of High Courts, but Section 6(3) empowers the Commission itself to make recommendation for appointment as Judge of the High Court and seek comments from Chief Justice after shortlisting the candidates by itself. Section 8 enables the Central Government to appoint officers and employees of the Commission and to lay down their conditions of service. The Secretary of the Government is the Convenor of the Commission. Section 13 requires all regulations to be approved by Parliament.

(Para 1109)

The impugned 99th Amendment and the NJAC Act are struck down as unconstitutional, and the pre-existing scheme of appointment of Judges stands revived.

(Paras 1108, 1109 and 1112)

Per Chelameswar, J. (dissenting)

The 99th Amendment made far-reaching changes in the scheme of the Constitution, insofar as it relates to the selection process of Judges of the constitutional courts. The President is no more obliged for making appointments to the constitutional courts to consult the CJI, the Chief Justices of High Courts and Governors of the States but is obliged to consult NJAC.

(Para 1122)

The challenge to the 99th Amendment is principally on the ground that such substitution undermines the independence of the judiciary. It is contended that independence of judiciary is a part of the basic structure of the Constitution and the 99th Amendment is subversive of such independence. Hence, it is beyond the competence of Parliament in view of the law declared by the Supreme Court in Kesavananda Bharati, (1973) 4 SCC 225

(Para 1123)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench), referred to

Fortunately there is no difference of opinion between the parties to this lis regarding the proposition that existence of an independent judiciary is an essential requisite of a democratic republic. Nor is there any difference of opinion regarding the proposition that an independent judiciary is one of the basic features of the Constitution of India. The only issue is: what is the permissible procedure or mechanism which would ensure establishment of an independent judiciary. The resolution of the issue requires examination of the following questions:

(i) Whether the mechanism established by the Constituent Assembly for the appointment of Judges of the constitutional courts is the only permissible mode for securing an independent judiciary or can there be alternatives?

(ii) If there can be alternatives, whether the mechanism (NJAC) sought to be established by the 99th Amendment transgresses the boundaries of the constituent power?

(Paras 1124 and 1125)

Judiciary is the watchdog of the Constitution and its fundamental values. Independence of such fora rests on two integers—independence of the institution and of individuals who man the institution. It can be said without any fear of contradiction that all modern democratic societies strive to establish an independent judiciary and by and large recognise the necessity of protections for the judiciary and its members.

(Paras 1129 to 1133)

Marbury v. Madison, 2 L Ed 60 : 5 US (1 Cr) 137 (1803); Valente v. R., (1985) 2 SCR 673 (Can SC), referred to

Sir William Blackstone: Commentaries on the Laws of England, Vol. I (1765) 269, referred to

The Makers of the Indian Constitution after a study of the various models mentioned above among others, provided that in making appointment of the Judges of the constitutional courts, the CJI and the Chief Justices of the High Court concerned are required to be consulted by the President who is the appointing authority of Judges of these Courts. The text of the Constitution clearly excluded any role either for Parliament or for the State Legislatures.

(Para 1146)

Till 1977, the true meaning and amplitude of the expression consultation occurring in Articles 124 and 217 of the Constitution of India troubled neither the executive nor the judiciary. There had always been a consultation between the constitutional functionaries. Appointments were made without much controversy. Only when there was mass transfer of 16 High Court Judges that the true meaning of the expression consultation occurring under Article 222(1) fell for the consideration of the Supreme Court in Sankalchand Himatlal Sheth, (1977) 4 SCC 193 . Pertinently on change in party in power within a year at the Centre those 16 High Court Judges were sent back to their parent High Courts. This fact is significant in the context of the argument that permitting the executive to have any say in the matter of appointment of Judges to the constitutional courts would be destructive of the independence of the judiciary.

(Paras 1149, 1150 and 1155)

It was held in Samsher Singh case and Sankalchand case that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India: In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. It was hoped that these words will not fall on deaf ears and since normalcy has now been restored, the differences, if any, between the executive and the judiciary will be resolved by mutual deliberation, each party treating the views of the other with respect and consideration. It was held that although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government with a caveat: that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India. Of course, the Chief Justice had no power of veto, as Dr Ambedkar explained in the Constituent Assembly.

(Paras 1150 to 1153)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench), referred to

Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC 56, cited

There was a turmoil with regard to the appointment of Judges of the constitutional courts in 1970s and 1980s. Senior Judges were superseded for appointment to the office of CJI. Perhaps, emboldened by the judgments of the Supreme Court in Sankalchand, (1977) 4 SCC 193 and S.P. Gupta, 1981 Supp SCC 87 the executive (at the National as well as the State level) resorted to unhealthy manipulation of the system. On whatever anomalies that happened though the basic facts are verifiable, inferences therefrom are perhaps contestable. Unfortunately, the correspondence between the Government and the CJI and the record of the consultation process are some of the best guarded secrets of this country! Ultimately the matter was referred by Subhash Sharma, 1991 Supp (1) SCC 574, to a nine-Judge Bench in Second Judges case, (1993) 4 SCC 441 which was unanimous that that under the scheme of the Constitution, independence of the judiciary is indispensable. Verma, J. (as he then was) speaking for five of the Judges categorically held that it is a part of the basic structure of the Constitution.

(Paras 1158 and 1160)

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574; Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), referred to

Abhinav Chandrachud: The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India (Oxford University Press, United Kingdom 2014) 113 to 120, referred to

Nonetheless, textually, provisions which indicate that the judiciary is required to be independent of the executive are Article 50 and the form of oath required to be taken by the Judges of Constitutional Courts prescribed in Forms IV and VIII under the Third Schedule to the Constitution of India.

(Para 1161)

However, structurally there are many indications in the scheme of the Constitution which lead to an unquestionable inference that the Framers of the Constitution desired to have a judiciary which is absolutely independent of the Executive and insulated from vagaries of transient and shifting majoritarian dynamics. Under the scheme of the Constitution, State Legislatures have absolutely no role in matters pertaining to the establishment of the constitutional courts of this country. Parliament alone is authorised to deal with certain aspects of the establishment of the constitutional courts and their administration such as fixation of the strength of the courts, salaries and other service conditions of the Judges, etc. Termination of an appointment made to a constitutional court can be done only through the process of impeachment by Parliament, the only legislative body authorised to impeach by following a distinct legislative process only on the ground of “proved misbehaviour or incapacity”.

(Para 1162)

Independence of the judiciary is one of the basic features of the Constitution. And the text of the Constitution bears ample testimony for the proposition that the Constitution seeks to establish and nurture an independent judiciary. The makers of the Constitution were eloquent about it. Various articles of the Constitution seek to protect independence of the judiciary by providing appropriate safeguards against unwarranted interference either by the legislature or the executive, with the Judges conditions of service and privileges incidental to the membership of the constitutional courts, such as salary, pension, security of tenure of the office, etc. Articles 124 and 217 deal with one of the elements necessary to establish an independent judiciary—the appointment process. The Constituent Assembly was fully conscious of the importance of such an element in establishing and nurturing an independent judiciary. The Constituent Assembly was fully appraised of the dangers of entrusting the power of appointment of members of the constitutional courts exclusively to the Executive. At the same time, the Constituent Assembly was also sensitised to the undesirability of entrusting such a power exclusively to the CJI or allowing any role to Parliament in the matter of the judicial appointments. The legislative history clearly indicates that the members of the Constituent Assembly clearly refused to vest an absolute and unfettered power to appoint Judges of the constitutional courts in any one of the three branches of the Constitution. The Constituent Assembly declined to assign any role to Parliament. It declined to vest an unbridled power in the executive. At the same time did not agree with the proposal that the CJI's concurrence is required for any appointment.

(Paras 1176 and 1177)

In the backdrop of such scheme, a question arose whether the appointment process, in any way, impacts independence of the judiciary, which, admittedly, formed a part of the basic structure of the Constitution. The said question was addressed in the Second Judges case, (1993) 4 SCC 441, and majority of the Judges opined that it does. Their Lordships drew support for such conclusion from history and debates in the Constituent Assembly apart from the observations made in Samsher Singh case, Sankalchand case and First Judges case. Their Lordships also took note of the fact that the Constituent Assembly consciously excluded any role to Parliament in the process of appointments, a conscious departure from the American Constitutional model where federal judicial appointments are subject to the consent of the Senate.

(Paras 1163 and 1176)

In the background of such an analysis, consultation with the Chief Justice of India in Articles 124 and 217 was interpreted as conferring primacy to the opinion of CJI. Consultation with the CJI was part of a design of the Constituent Assembly to deny unfettered authority (to the Union Executive) to appoint Judges of the constitutional courts. The Constituent Assembly did not choose to vest such controlling power in Parliament to which the Executive is otherwise accountable under the scheme of the Constitution. The Supreme Court in the Second Judges case, therefore, concluded that without primacy to the opinion of CJI the whole consultation process contemplated under Articles 124 and 217 would only become ornamental enabling the executive to make appointments in its absolute discretion, most likely based on considerations of political expediency. Such a process would be antithetical to the constitutional goal of establishing an independent judiciary. However, it was clarified that the debate on primacy is intended to determine, who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner's prize at the end of the debate. The indication was, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process was reduced to the minimum and any political influence was eliminated. It was for this reason that the word ‘consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to anyone, not even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts. The Supreme Court also indicated the circumstances in which the President of India would be constitutionally justified in not acting in accordance with the opinion expressed by the CJI. The Supreme Court never held that consultation means concurrence as is sought to be interpreted in some quarters and I regret to say even in the stated Objects and Reasons for the 99th Amendment.

(Paras 1164 and 1165)

After some 20 years of the working of the regime created under the Second Judges case, (1993) 4 SCC 441, serious questions arose whether the regime emanating as a consequence of the interpretation made by the Supreme Court in the Second Judges case, yielded any constitutionally aspired result of the establishment of an independent and efficient judiciary—the constitutional courts. Answer regarding the independence can be subjective and efficiency perhaps may not be very pleasant. Within a few years doubts arose regarding the true purport of the Second Judges case. The President of India invoked Article 143 and sought certain clarifications on the judgment of the Second Judges case leading to the opinion of the Supreme Court in the Third Judges case, (1998) 7 SCC 739, which recorded that “We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case and this opinion.” From this the only logical inference that can be drawn is that the law laid down by the Second Judges case was not faithfully followed by the successive Chief Justices, if not in all, at least in some cases attracting comments. Instead of Ministers, Judges patronised. In the next one-and-a-half decade after the decision in the Third Judges case, this nation has witnessed many unpleasant events connected with judicial appointments, events which lend credence to the speculation that the system established by the Second and the Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary. Some such events led to the decisions in Shanti Bhushan, (2009) 1 SCC 657, P.D. Dinakaran (1), (2011) 8 SCC 380 and P.D. Dinakaran (2), (2011) 8 SCC 474. True, a few bad examples of the improper exercise of the power do not determine the character of the power. The impugned 99th Amendment came in the backdrop of the abovementioned experience.

(Paras 1167 to 1171 and 1175)

Shanti Bhushan v. Union of India, (2009) 1 SCC 657; P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380; P.D. Dinakaran (2) v. Judges Inquiry Committee, (2011) 8 SCC 474 : (2012) 1 SCC (L&S) 246, referred to

Supreme But Not Infallible (Oxford University Press, 2000 AD); Iyer, V.R. Krishna, “Judiciary: A reform agenda — II”, The Hindu (online Edn.) 15-8-2002; “An Independent Judiciary” — Speech delivered by Ms Ruma Pal, J. at the 5th V.M. Tarkunde Memorial Lecture on 10-11-2011; Mehta, Pratap Bhanu, “Whom do you trust”, The Indian Express, 14-5-2015; Granville Austin: The Indian Constitution : Cornerstone of a Nation, Oxford University Press, 1972, referred to

The system of Collegium, the product of an interpretative gloss on the text of Articles 124 and 217 undertaken in the Second and the Third Judges case may or may not be the best to establish and nurture an independent and efficient judiciary. There are seriously competing views expressed by eminent people, both on the jurisprudential soundness of the judgments and the manner in which the Collegium System operated in the last two decades. Neither the jurisprudential correctness of the concept of Collegium nor how well or ill the Collegium System operated in the last two decades is the question before us. The question is: whether such a system is immutable or is Parliament competent to amend the Constitution and create an alternative mechanism for selection and appointment of the members of Constitutional Courts of this country? The basic objection for the impugned 99th Amendment is that it is destructive of the Constitutional objective of establishment of an independent judiciary, and consequently the basic structure of the Constitution. Therefore, it falls foul of the law laid down by the Supreme Court in Kesavananda Bharati, (1973) 4 SCC 225.

(Paras 1176 and 1178 to 1180)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, relied on

Now, it is not very clear from Kesavananda Bharati, (1973) 4 SCC 225 whether the expressions basic structure, basic features and essential elements convey the same idea or different ideas. And the cases decided after Kesavananda Bharati case are really of no help for determining the case on hand as they do not lay down any general principle by which it can be determined as to when can a constitutional amendment be said to destroy the basic structure of the Constitution. In the case on hand, the identity of the basic feature is not in dispute. The question is whether the 99th Amendment is abrogative of the independence of judiciary—(a basic feature) resulting in the destruction of the basic structure of the Constitution. By the very nature of the basic feature with which we are dealing, it does not confer any fundamental or constitutional right in favour of individuals. It is only a means for securing to the People of India, justice, liberty and equality. It creates a collective right in favour of the polity to have a judiciary which is free from the control of the Executive or the Legislature in its essential function of decision making.

(Paras 1185 and 1196 to 1202)

Golak Nath v. State of Punjab, (1967) 2 SCR 762 : AIR 1967 SC 1643 (Eleven-Judge Bench); Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); Waman Rao v. Union of India, (1981) 2 SCC 362; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); S.R. Bommai v. Union of India, (1994) 3 SCC 1; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench); I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench), referred to

The challenge to the 99th Amendment is required to be examined in the light of the preceding discussion and the pleas of the petitioners, viz. (i) Independence of the judiciary is a basic feature (component) of the basic structure of the Constitution; (ii) the process of appointment of members of the constitutional courts is an essential ingredient (element) of such component; (iii) the process prescribed under the unamended Articles 124 and 217, as interpreted by the Supreme Court in the Second and the Third Judges cases, is a basic feature and was so designed by the Framers of the Constitution for ensuring independence of the judiciary, by providing for primacy of the opinion of the C.J. (Collegium); and not of the opinion of the President (the Executive); (iv) the 99th Amendment dilutes such primacy and tilts the balance in favour of the Executive, thereby abrogating a basic feature, leading to destruction of the basic structure. It is further argued that the principles laid down in the Second and the Third Judges cases are not based purely on the interpretation of the text of the Constitution as it stood prior to the impugned 99th Amendment but also on the basis of a fundamental constitutional principle that an independent judiciary is one of the basic features of the Constitution. The procedure for appointment of the Judges of the constitutional courts is an important element in the establishment and nurturing of an independent judiciary. Such conclusion not only flows from the text of Articles 124 and 217 as they stood prior to the impugned 99th Amendment but flow from a necessary implication emanating from the scheme of the Constitution as evidenced by Articles 32, 50, 112(3)(d), 113(1), 203(1), 125(2), 221(2), etc.

(Paras 1203 and 1205)

On the other hand it was argued by the Respondents that: (i) Parliament's power to amend the Constitution is plenary subject only to the limitation that it cannot abrogate the basic structure of the Constitution. The 99th Amendment in no way abrogates the basic structure of the Constitution; (ii) Independence of judiciary is not the only objective envisaged by the Constitution, it also envisages an efficient judiciary. So Parliament in its wisdom thought that the selection process of the members of the constitutional courts as it existed prior to the 99th Amendment required modification. The wisdom of Parliament is not amenable to the scrutiny of the Supreme Court, much less in the case of a Constitutional amendment; (iii) where the goal sought to be achieved by Parliament is constitutionally legitimate, the legislation by which such a goal is sought to be achieved can be questioned only on limited grounds which in do not govern Constitutional amendments; (iv) Absolute independence of any one of the three branches is inconsistent with core democratic values and the scheme of our Constitution which is sought to be restored by 99th Amendment; (v) The Second and Third Judges cases relate to pre-99th Amendment provisions is no more good law. Even if deemed relevant they need reconsideration by a larger Bench, being contrary to the text of Constitution as it then stood; (vi) Independence of the judiciary does not imply primacy for the opinion of the CJI. Under the 99th Amendment, President has no discretion and is bound by recommendation of the NJAC which includes representatives of civil society as well; (vii) Judiciary still has predominant role under the NJAC scheme and cannot be superseded; and (viii) the NJAC model chosen by Parliament cannot be assailed for not adopting Justice M.N. Venkatachaliah's model. Mechanism expounded in Second and Third Judges cases is not the best.

(Paras 1207.1 to 1207.4)

Now, any appointment process established under the Constitution must necessarily be conducive for establishment of not only an independent judiciary but also ensure its efficiency by having Judges who decide causes brought before them expeditiously and consistent with applicable principles of jurisprudence, generate confidence in litigants and the polity that they indeed dispense justice. Whether the appointment process prior to the 99th Amendment yielded such appointments has been deeply contentious. Parliament representing the majoritarian will was satisfied that the existing process warrants change and acted in exercise of its constituent power and concomitant discretion. Such constituent assessment of the need is clearly off limits to judicial review. Whether the curative ushered in by the 99th Amendment transgresses the permissible limits of amendatory power is certainly amenable to judicial review because of the law declared in Kesavananda case and followed consistently thereafter. The text and scheme of the 99th Amendment excludes discretion to the President in making appointments to the Constitutional Courts and the President is required to accept recommendations by NJAC. The amended Articles stipulate that Judges of the Constitutional Courts shall be appointed by the President … on the recommendation of NJAC. Prior to the 99th Amendment, there were only two parties to the appointment process, the Executive and the Judiciary. The relative importance of their roles varied from time to time. The 99th Amendment makes three important changes: (i) primacy of judiciary is whittled down; (ii) role of the executive is also curtailed; and (iii) representatives of civil society are made part of the mechanism.

(Paras 1208 to 1211 and 1122)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench), referred to

Primacy of the opinion of judiciary in the matter of judicial appointments is not the only means for the establishment of an independent and efficient judiciary. There is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary. Such an assumption has been proved to be of doubtful accuracy. It is Parliament's asserted assumption that induction of civil society representation will bring about critically desirable transparency, commitment and participation of the ultimate stakeholders—the People. The fountain of all constitutional authority, to ensure appointment of the most suitable persons with due regard to legitimate aspirations of the several competing interests. Various democratic societies have and are experimenting with models involving association of civil society representation in such selection process. Assessment of the product of such experiments are however inconclusive. The question is not whether the model conceived by the 99th Amendment would yield a more independent and efficient judiciary. The question is whether Parliament's wisdom and authority to undertake such an experiment by resort to constituent power is subject to curial audit.

(Para 1212)

As rightly pointed out by the respondents, the basic feature of the Constitution is not primacy of the opinion of the CJI (Collegium) but lies in non-investiture of absolute power in the President (Executive) to choose and appoint Judges of the Constitutional Courts. That feature is not abrogated by the 99th Amendment. The executive may at best only make a proposal through its representative in NJAC i.e. the Law Minister. Such proposal, if considered unworthy, can still be rejected by the other members of NJAC. The worth of a candidate does not depend upon who proposes the name nor the candidate's political association, if any, should be a disqualification. Even party men can be fiercely independent after being appointed Judges, as has been proved by some Judges who were active in politics.

(Para 1213)

Sudhanshu Ranjan: Justice, Judocracy and Democracy in India : Boundaries and Breaches, 185-86, referred to

A critical analysis of Articles 124, 217 and 124-A and 124-B leads to the position that the executive branch of the Government cannot push through an “undeserving candidate” so long as at least two members representing the judicial branch are united in their view as to unsuitability of that candidate. Even one eminent person and a single judicial member of NJAC could effectively stall entry of an unworthy appointment. Similarly, the judicial members also cannot push through persons of their choice unless at least one other member belonging to the non-judicial block supports the candidate proposed by them.

(Para 1214)

A democratic form of Government is perhaps the best institution invented for preservation of liberties. At least that is the belief of societies which adopt this model of governance. Under any constitutional model, primary responsibility to preserve liberties of the people is entrusted to the legislative and executive branches. Such entrustment is predicated on the structural and empirical assumption that legislators chosen periodically would strive to protect the liberties of their “only masters—the people”. This is for two reasons operating in tandem. They are the obligation to discharge the trust reposed and the fear of losing the glory of being the chosen representative. An in-built possibility in the system of periodic elections.

(Para 1215)

To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved. In difficult times when political branches cannot be counted upon, neither can the judiciary. The judiciary is not the only constitutional organ which protects liberties of the people. Accordingly, primacy to the opinion of the judiciary in the matter of judicial appointments is not the only mode of securing independence of judiciary for protection of liberties. Consequently, the assumption that primacy of the Judicial Branch in the appointments process is an essential element and thus a basic feature is empirically flawed without any basis either in the constitutional history of the Nation or any other, and is normatively fallacious apart from being contrary to political theory.

(Paras 1216 and 1217)

Korematsu v. United States, 1944 SCC OnLine US SC 135 : 89 L Ed 194 : 323 US 214 (1944); West Coast Hotel Co. v. Parrish, 1937 SCC OnLine US SC 58 : 81 L Ed 703 : 300 US 379 (1937); A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 (Six-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521, referred to

Laurence H. Tribe: God Save this Honorable Court (1st Edn.) 10-11; Laurence H. Tribe: American Constitutional Law, IInd Edn., p. 2 of Chapter 1; Federalist No. 51 — Hamilton or Madison (1788), referred to

Furthermore, the submission that the presence of the Law Minister in NJAC which confers 1/6 of the voting power per se undermines the independence of the judiciary is untenable. Exclusion of the Executive Branch is destructive of the basic feature of checks and balances—a fundamental principle in constitutional theory.

(Para 1218)

Laurence H. Tribe: American Constitutional Law, IInd Edn., p. 2 of Chapter 1— “Approaches to Constitutional Analysis”, referred to

Regarding Article 124-A(1)(d) which stipulates that NJAC should consist of two eminent persons, it may be said that transparency is a vital factor in constitutional governance. So one beneficial purpose the induction of representatives of civil society would hopefully serve is that it acts as a check on unwholesome trade-offs within the Collegium and incestuous accommodations between Judicial and Executive Branches. To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society.

(Paras 1219, 1220 and 1222)

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1; Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench), referred to

“An Independent Judiciary” — Speech delivered by Ms Ruma Pal, J. at the 5th V.M. Tarkunde Memorial Lecture on 10-11-2011, referred to

There is a possibility that the apprehension expressed by the petitioners (see para 1219) might come true. But the possibility of abuse of a power conferred by the Constitution is no ground for denying the authority to confer such power. In the final analysis, all power could be misused including judicial power. The remedy is not to deny grant of power but to structure it so as to eliminate the potential for abuse. Safeguards can be built in process of nomination of eminent persons.

(Paras 1223 to 1225)

Golak Nath v. State of Punjab, (1967) 2 SCR 762 : AIR 1967 SC 1643 (Eleven-Judge Bench); I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench), referred to

Webb v. Outrim, 1907 AC 81 (PC), cited

The fiasco created in P.D. Dinakaran (1), (2011) 8 SCC 380, P.D. Dinakaran (2), (2011) 8 SCC 474 and Shanti Bhushan, (2009) 1 SCC 657 would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved in the process pointed out by Ruma Pal, J. The abovementioned two are not the only cases where the system failed. It is a matter of public record that in the last 20 years, after the advent of the Collegium System, a number of recommendations made by the Collegia of the High Courts came to be rejected by the Collegium of the Supreme Court. There are also cases where the Collegium of this Court quickly retraced its steps having rejected the recommendations of a particular name made by the High Court Collegium giving scope for a great deal of speculation as to the factors which must have weighed with the Collegium to make such a quick volte face. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the Judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.

(Para 1236)

Shanti Bhushan v. Union of India, (2009) 1 SCC 657; P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380; P.D. Dinakaran (2) v. Judges Inquiry Committee, (2011) 8 SCC 474 : (2012) 1 SCC (L&S) 246, referred to

Thomas Babington Macaulay's address on 2-3-1831 in the House of Commons on Parliamentary Reforms, referred to

Article 124-B(c), which obligates NJAC to ensure that the person recommended is of ability and integrity is challenged on the ground that the 99th Amendment does not lay down any guidelines to be followed by NJAC for assessing ability and integrity. Even in the absence of any express declaration, such an obligation is inherent and implied, having regard to functional responsibilities entrusted to NJAC. The precision is only an abundanti cautela. Perhaps prompted by certain bad experiences of the past, both pre-and post-the Second Judges case. Having regard to the nature: (i) of the document by which such obligation is created; (ii) the composition of the body (NJAC) upon which the obligation is cast; and (iii) the nature of the assignment, the argument is required to be rejected. NJAC is a constitutional authority created to perform an important constitutional function. Its charter is the Constitution itself. Notwithstanding the prolixity of our Constitution, a constitution is not expected or required to spell out every minute detail regarding administration of the State.

(Paras 1226 and 1227)

Three members of the highest judicial body of this country, a member of the Union Cabinet and two eminent persons chosen by a Committee consisting of three exalted office holders under the Constitution constitute NJAC. To suggest that NJAC requires detailed guidelines expressly spelt out in the text of the Constitution amounts to judicially mandating inflexible standards for constitutional drafting. The task of expounding a Constitution is crucially different from that of construing a statute. Provisions of the Constitution are not to be interpreted in a broad and liberal way. They are not to be construed in the manner in which a piece of subordinate legislation or, for that matter, even a statute is required to be interpreted.

(Paras 1228 and 1229)

The functioning of any constitutional body is only disciplined by appropriate legislation. The Constitution does not lay down any guidelines for the functioning of the President and Prime Minister nor the Governors or the Chief Ministers. Performance of constitutional duties entrusted to them is structured by legislation and constitutional culture. The provisions of the Constitution cannot be read like a last will and testament lest it becomes one. Even prior to the 99th Amendment, the constitutional text had no express guidelines for the President and the CJI to follow. It is however nobody's case that the pre-99th Amendment selection scenario conferred any uncanalised discretion and therefore resulted in some undesirable judicial appointments. If in practice, occasionally personal preferences outweighed concerns of public interest resulting in undesirable appointments, it is not because of constitutional silences in this area but because of shortcomings in the ethical standards of the participants in the selection process. After the 99th Amendment, the obligation is unvaried. The only change is in the composition of the players to whom the task is entrusted and the mode of performing the task is altered with a view to achieve greater degree of transparency in the selection process. To contend that the 99th Amendment is destructive of the basic structure since it does not lay down any guidelines tantamounts to holding that the design of the Constitution as originally enacted is defective!

(Paras 1229 and 1230)

S.R. Bommai v. Union of India, (1994) 3 SCC 1, referred to

Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, cited

The question whether the content of Section 6(6) confers a power of veto or prescribes a special majority is only of semantic relevance. Whatever name we call it, the result is the same. The two members of NJAC can override the opinion of the other four and stall the recommendation. There is nothing inherently illegal about such a prescription.

(Para 1233)

Bhim Singhji v. Union of India, (1981) 1 SCC 166 (Five-Judge Bench), referred to

Thus, I would uphold the 99th Amendment. However, in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the NJAC Act.

(Para 1237)

Only an independent and efficient judicial system can create confidence in the society which it serves. The ever increasing pendency of matters before various constitutional courts of this country is clearly not a certificate of efficiency. The frequency with which the residuary jurisdiction of this Court under Article 136 is invoked seeking correction of errors committed by the High Courts, some of which are trivial and some profound coupled with bewildering number of conflicting decisions rendered by the various Benches of this Court only indicate that a comprehensive reform of the system is overdue. Selection process of the Judges to the constitutional courts is only one of the aspect of such reforms. An attempt in that direction, unfortunately, failed to secure the approval of this Court leaving the Supreme Court with the sole responsibility and exclusive accountability of the efficiency of the legal system.

(Para 1238)

Order of the Court

[Ed.: Signed by all five Judges constituting the Bench.]

1. The prayer for reference to a larger Bench, and for reconsideration of the Second and the Third Judges cases, is rejected.

2. The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void.

3. The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.

4. The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “Collegium System”), is declared to be operative.

5. To consider introduction of appropriate measures, if any, for an improved working of the Collegium System, list on 3-11-2015.

(Para 1239)

3. General Rulings on Basic Structure/Basic Features of the Constitution

Q. Constitution of India — Arts. 368 and 141 — Basic structure or basic features or essential elements or core structure or core features of the Constitution — Manner of ascertainment and deduction of — If to be gathered only from a plain reading of the articles — Silences hidden in the articles concerned, deduction from — Role of court — Mandate of Art. 141 — Impact of — Application of structural arguments in ascertaining the basic structure — Instances of constituents of the basic structure of the Constitution and how they have been ascertained and deduced, given

— Held (per Khehar, J.), basic structure of the Constitution is truly a set of foundational principles drawn from provisions of the Constitution itself — To be ascertained not only by plain reading of provision(s) of the Constitution as originally enacted but also from the silences hidden therein, and additionally from interpretation placed on the provisions concerned by the Supreme Court — Under the mandate of Art. 141 the true effect and intent of provisions of the Constitution and ordinary legislation are to be understood in the manner they are interpreted and declared by the Supreme Court — Thus, it is not always possible to deduce basic structure only from a plain reading of provisions of the Constitutions — Deduction is then made from the vital silences hidden within the articles concerned, based on a harmonious construction of the provisions concerned in conjunction with related provisions, intention of Framers of the Constitution gathered from Constituent Assembly Debates and constitutional conventions and understanding and exposition given by the Supreme Court — Thus, if a conclusion is drawn that a particular basic feature or part of the basic structure of the Constitution has been transgressed, it is to be understood that the rule/principle collectively emerging from the provisions concerned of the Constitution had been breached or that the articles concerned read together had been transgressed — Explained with the instance of independence of judiciary

— Held (per Lokur, J.), arriving at a pragmatic and workable interpretation of the Constitution, is the task only of the judiciary — There is no doubt that the Constitution has entrusted to the judiciary the task of construing provisions of the Constitution — If there is an interpretation error, it can be corrected only by the judiciary, or by suitable amendment to the Constitution which does not violate its basic structure

— Held (per Kurian, J.), what the Constitution is, is only for the court to define and this is a core function or power central of the judiciary and it is impermissible for the other branches to interfere therewith — Whereas what the constitutional aspirations are, is for the executive and legislature to detail and demonstrate — Of seven archetypes of constitutional arguments: historical, textual, structural, prudential, doctrinal, episodic and ethical, all the tools are to be appropriately used, and quite often, in combination too, though the episodic tool is least advisable or even wholly undesirable — However, for deducing the basic structure of the Constitution in relation to the three constitutional wings, their powers and functions and their intra relationship, the structural tool is to be prominently applied — All seven archetypes explained and structural arguments, explained in detail

— Held (per Goel, J.), for determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country's governance — Whether or not the basic structure was violated has to be finally determined by the Supreme Court from case to case

— Held (per Chelameswar, J., partly concurring on this point), most of the basic features identified in judgments of the Supreme Court are concepts emanating from a combination of a number of articles — Explained with instances — Articles from which democracy and secularism emanate, discussed

R. Constitution of India — Art. 368 — Power of Parliament to amend the Constitution — Scope of — Limits placed thereon by the basic structure doctrine — Extent to which basic structure or basic features or essential elements or core structure or core features of the Constitution must be affected, before a constitutional amendment is rendered ultra vires the Constitution — Use of absolute words such as “abrogate”, “emasculate”, “destroy” vis-à-vis relative words such as “alter” and “damage” in this context in various judgments beginning with Kesavananda Bharati, (1973) 4 SCC 225 — Import of, explained — Held (per majority), mere alteration of, or, damage to basic structure or basic features or essential elements or core structure or core features of Constitution would be enough to render a constitutional amendment ultra vires the Constitution

— Held (per Khehar, J.), Article 368 postulates only a “procedure” for amendment of the Constitution and that the same cannot be treated as a “power” vested in Parliament to amend the Constitution so as to alter the “core” of the Constitution which has also been described as the “basic features/basic structure” of the Constitution — [Ed.: it is further implicit in the opinion of Khehar, J. taken as a whole, that mere alteration of any basic feature or of basic structure of Constitution would be enough to render a constitutional amendment ultra vires]

— Held (per Lokur, J.), if a principle, imperative rule or postulate of the basic structure of the Constitution is violated or contravened (it does not need to be completely changed or its very foundations destroyed) then the constitutional amendment loses its immunity from attack, and it makes no difference whether contravention relates to one case or a large number of cases — Ratio of Kesavananda Bharati, (1973) 4 SCC 225 as summarised in the summary signed by nine learned Judges who constituted the Bench therein, is that “Art. 368 does not enable Parliament to alter the basic structure or framework of the Constitution” — Words “alter”/“damage” and “destroy” are used interchangeably — Thus, if a constitutional amendment alters the basic structure of the Constitution, then it can and should be declared unconstitutional — Moreover, though lexicographically “basic structure of Constitution” and “basic features of Constitution” may be different, constitutionally speaking there is no difference

— Held (per Goel, J.), ratio of Kesavananda Bharati, (1973) 4 SCC 225 as summarised in the summary signed by nine learned Judges is that “Art. 368 does not enable Parliament to alter the basic structure or framework of the Constitution” — Whether or not basic structure was violated has to be finally determined by the Supreme Court from case to case

— [Ed.: Kurian, J. has not expressedly ruled on this issue but it is implicit from the opinion of Kurian, J. that the mere alteration of or damage to a basic feature or element of the Constitution is enough to declare it unconstitutional — There is no need to show that it abrogates or completely destroys the basic feature concerned]

— Per Chelameswar, J. (dissenting), it is not very clear from Kesavananda Bharati, (1973) 4 SCC 225 whether the expressions “basic structure”, “basic features” and “essential elements” convey the same idea — They convey different ideas though some of the Judges have used these expressions interchangeably — Basic structure of Constitution is the sum total of basic features of Constitution — Abrogation of any one of the basic features results normally in destruction of the basic structure of the Constitution subject to some exceptions — As to when the abrogation of a particular basic feature can be said to destroy the basic structure of the Constitution depends upon the nature of the basic feature sought to be amended and the context of the amendment — There is no universally applicable test vis-à-vis all the basic features — Explained with instances

S. Constitution of India — Art. 368 — “Basic structure of the Constitution”, “basic features of the Constitution” or “essential elements of the Constitution” — If convey different ideas — Held (per Lokur, J.), lexicographically they may be different, but constitutionally speaking there is no difference — [Ed.: of Khehar, Lokur, Kurian and Goel, JJ. only Lokur, J. has expressedly ruled on this issue as above; however, it is implicit from the opinions of Khehar, Kurian and Goel, JJ. that they use the expressions “basic structure” or “basic features” or “essential elements” or “core structure” or “core features” of the Constitution, interchangeably] — Per Chelameswar, J. (dissenting), expressions “basic structure” and “basic features” convey different ideas

T. Constitution of India — Art. 368 — Test to see if a constitutional amendment violates/alters the basic structure or basic features or essential elements or core structure or core features of the Constitution — Burden of proof — Principles and tests applicable — “Width of power test” or “Direct impact and effect test” — Principles of presumption of constitutionality, wisdom of constitutional amendment/legislation being beyond judicial scrutiny, and possibility of abuse being no ground to deny the power

— Held (per Lokur, J.), “width of power test” or “direct impact and effect test” is that the form of an amendment is not relevant, but its consequence would the determinative factor — Presumption of constitutionality is available in respect of constitutional amendment as well — It would be for petitioners concerned to conclusively show that the constitutional amendment concerned alters the basic structure of the Constitution — Furthermore, it is not wisdom of alternative model brought in by the amendment concerned which is relevant, but whether it is constitutionally valid or not

— Held (per Goel, J.), plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged — So also, plea that Parliament is best equipped to assess the needs of the people, or that an existing constitutional arrangement has shortcomings, are not enough reason to extend power of Parliament to amend the basic features of the Constitution — Examining whether a basic feature was sought to be altered, held, is different from questioning the wisdom of Parliament: it is examining the power conferred on Parliament to amend the Constitution — So also, with the question of possibility of abuse of the power conferred by the constitutional amendment concerned

U. Constitution of India — Art. 368 — Basic structure or basic features or essential elements or core structure or core features of the Constitution — Not changeable with time — Extent of experimentation permissible

— Held (per Lokur, J.), though rest of the Constitution has to be interpreted as a living organic document for years and years to come, this does not apply to its basic structure, which is immutable and cannot be experimented with — For instance, basic concepts like democracy, secularism, rule of law, independence of the judiciary, all of which are part of the basic structure, are immutable as concepts, though nuances may change — An experiment with the nuances is permissible, but only if it is possible without altering the basic structure — The Constitution is not a simple document that can be experimented with or changed through a cut and paste method — A failed experiment of these basic concepts would lead to disastrous consequences — These concepts are far too precious for experimentation

— Held (per Goel, J.), it can hardly be doubted that the Constitution is a dynamic document and has to be interpreted to meet the felt needs of the times and cannot bind all future generations — However, it is also now well settled that the amending power is limited to non-essential/non-basic features and does not extend to altering the basic features and framework of the Constitution

V. Constitution of India — Art. 368 and Pt. III — Fundamental rights as part of the basic structure of the Constitution — View of Khanna, J. in Kesavananda, (1973) 4 SCC 225 and its clarification by Khanna, J. in Indira Nehru Gandhi, 1975 Supp SCC 1, discussed (per Lokur, J.)

W. Constitution of India — Arts. 50, 124 & 217, Preamble and 368 — Independence of the judiciary — Nature of rights and obligations created by concept of — Per Chelameswar, J., the same does not confer any fundamental or constitutional right in favour of individuals — It only means securing to the People of India, justice, liberty and equality — It creates a collective right in favour of the polity to have a judiciary which is free from the control of the executive or legislature in its essential function of adjudication of disputes — Jurisprudence

Held :

Per Khehar, J.

Clearly, the basic structure of the Constitution is truly a set of fundamental foundational principles drawn from the provisions of the Constitution itself. These are not fanciful principles carved out by the judiciary of its own. It was the submission of the respondents that the basic features/basic structure of the Constitution should only be gathered from a plain reading of the provision(s) of the Constitution as it/they was/were originally enacted. In this behalf, it was acknowledged by the petitioners that the scope and extent of the basic features/basic structure of the Constitution is to be ascertained only from the provisions of the Constitution as originally enacted and additionally from the interpretation placed on the provisions concerned by the Supreme Court. The above qualified assertion made on behalf of the petitioners was unacceptable to the respondents.

(Paras 380 and 297)

It is sometimes not possible to deduce the basic structure concerned from a plain reading of the provisions of the Constitution. And at times, such a deduction is made from the all-important silences hidden within those articles. That is to say, the cause, effect and the width of a provision which is the basis of a challenge may sometimes not be apparent from a plain reading thereof. The interpretation placed by the Supreme Court on a particular provision would most certainly depict a holistic understanding thereof wherein the plain reading would have naturally been considered, but in addition thereto, the vital silences hidden therein, based on a harmonious construction of the provision in conjunction with the surrounding provisions would also have been taken into consideration.

(Paras 380 and 299)

Under Article 141 of the Constitution the pronouncement of the Supreme Court is the law of the land. The true effect and intent of the provisions of the Constitution, and all other legislative enactments made by Parliament, and the State legislatures, are understood in the manner they are interpreted and declared by the Supreme Court under Article 141 of the Constitution. Thus, the mandate of Article 141 of the Constitution obliges every court within the territory of India to honour the interpretation, conclusion, or meaning assigned to a provision by the Supreme Court. It would, therefore be rightful to interpret the provisions of the Constitution relied upon by giving the provisions concerned, the meaning, understanding and exposition assigned to them on their interpretation by the Supreme Court. In the above view of the matter, it would neither be legal nor just to persist on an understanding of the provision(s) concerned merely on the plain reading thereof as was suggested on behalf of the respondents. Even on a plain reading of Article 141 of the Constitution, the Court is obligated to read the provisions of the Constitution in the manner they have been interpreted by the Supreme Court.

(Paras 11, 298 and 299)

The basic structure of the Constitution, presently inter alia includes the supremacy of the Constitution, the republican and democratic form of government, the federal character of distribution of powers, secularism, separation of powers between the legislature, the executive, and the judiciary, and independence of the judiciary. Article 368 postulates only a “procedure” for amendment of the Constitution and that the same cannot be treated as a “power” vested in Parliament to amend the Constitution so as to alter the “core” of the Constitution which has also been described as the “basic features/basic structure” of the Constitution. If a constitutional amendment breaches the “core” of the Constitution or destroys its “basic or essential features” in a manner which is patently unconstitutional, it would have crossed over forbidden territory.

(Paras 380, 295 and 296)

The Supreme Court while carving out each of the above basic features placed reliance on one or more articles of the Constitution (sometimes, in conjunction with the Preamble of the Constitution). It goes without saying that for carving out each of the “core” or “basic features/basic structure” of the Constitution, only the provisions of the Constitution are relied upon. It is therefore apparent that the determination of the basic features or the basic structure is made exclusively from the provisions of the Constitution.

(Para 380)

Thus, the deduction of the concept of “independence of the judiciary” emerged from a collective reading of Articles 12, 36 and 50. It is sometimes not possible to deduce the basic structure from a plain reading of the provisions of the Constitution. And at times, such a deduction is made from the all-important silences hidden within those articles. Thus, the “primacy of the judiciary” was deduced in Samsher Singh case, Sankalchand Himatlal Sheth case and the Second Judges case wherein the Supreme Court while interpreting Articles 12, 36 and 50 on the one hand, and Article 74 along with Articles 124, 217 and 222 in conjunction with the intent of the Framers of the Constitution gathered from the Constituent Assembly Debates, and the conventions adhered to by the political-executive authority in the matter of appointment and transfer of Judges of the higher judiciary, arrived at the conclusion that “primacy of the judiciary” is a constituent of the independence of the judiciary which is a basic feature/structure of the Constitution. Therefore, when a plea is advanced raising a challenge on the basis of the violation of the basic structure with reference to the independence of the judiciary, its rightful understanding is, and has to be, that Articles 12, 36 and 50 on the one hand, and Articles 124, 217 and 222 of the Constitution on the other (read collectively and harmoniously), constitute the basis thereof. Therefore, if the conclusion drawn is that the independence of the judiciary has been transgressed, it is to be understood that the rule/principle collectively emerging from the above provisions had been breached or that the above articles read together had been transgressed. Separation of powers and independence of the judiciary, are “core” components of the basic structure of the Constitution.

(Paras 380, 346 and 300)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), explained and followed

Per Lokur, J.

Arriving at a pragmatic and workable interpretation of the Constitution, is the task only of the judiciary and there can be no doubt about this. There is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. If there is an interpretational error, it can be corrected only by the judiciary, or by a suitable amendment to the Constitution that does not violate its basic structure.

(Paras 679 and 680)

Powers, Privileges and Immunities of State Legislatures, In re, Special Reference No. 1 of 1964, (1965) 1 SCR 413 : AIR 1965 SC 745 (Seven-Judge Bench); Marbury v. Madison, 2 L Ed 60 : 5 US (1 Cr) 137 (1803), followed

Article 368 of the Constitution provides for the “Power of Parliament to amend the Constitution and procedure therefor”. While the power is vast, empowering Parliament to add, vary or repeal any provision of the Constitution, the breadth of that power has inherent limitations as explained in Kesavananda Bharati, (1973) 4 SCC 225, which is that the basic structure of the Constitution cannot be altered. The sum and substance of the decision in Kesavananda Bharati case is that it recognised that the Constitution has a basic structure and that the basic structure of the Constitution is unalterable. Perhaps to avoid any doubts and since as many as nine judgments were delivered by the thirteen Judges constituting the Bench, a summary of the conclusions (see p. 1007 thereof) was prepared, which was signed by nine of the thirteen Judges including two learned Judges who were in the minority. One of the conclusions agreed upon by the nine learned Judges who signed the summary was: “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.”

(Paras 776 and 785 to 789)

What constitutes the basic structure of the Constitution has been considered in several decisions of the Supreme Court for example democracy or free and fair elections or judicial review of legislative action or separation (or distribution) of powers between the legislature, the executive and the judiciary have all been held to be a part of the basic structure of the Constitution. There is no doubt, and no one has disputed it, that the independence of the judiciary is also a part of the basic structure of the Constitution.

(Para 776)

Khanna, J. dwelt on the basic structure of the Constitution and expressed the view that “amendment” postulates the survival of the “old” Constitution without loss of its identity and the retention of the basic structure or framework of the “old” Constitution. Thereafter, Khanna, J. travelled much further than necessary and held that as long as the basic structure and framework of the Constitution is retained, the plenary power of amendment “would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights”. It may be mentioned en passant that the aforesaid view expressed by Khanna, J. generated much controversy. That was adverted to by the learned Judge in Indira Nehru Gandhi, 1975 Supp SCC 1 and it was clarified in paras 251 and 252 of the Report that the “offending” passages were in the context of the extent of the amending power and not in the context of the basic structure of the Constitution. The learned Judge clarified that fundamental rights were a part of the basic structure of the Constitution but the right to property was not.

(Paras 785 to 789)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench), clarified and followed

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench), considered

It was submitted that a Constitution Amendment Act can be challenged as violating the basic structure of the Constitution within limited parameters, that is, only if it “emasculates” the Constitution, or “abrogates” it or completely changes its fundamental features so as to destroy its identity or personality or shakes the pillars on which it rests. While accepting that the independence of the judiciary is one such pillar, it was submitted that a change in the method and procedure in the appointment of a Judge of the Supreme Court or a High Court does not emasculate, abrogate or shake the foundations or the pillars of the independence of the judiciary. Consequently, the 99th Constitution Amendment Act does not fall foul of the basic structure of the Constitution.

(Para 796)

This argument fails to appreciate that a majority of the learned Judges constituting the Bench that decided Kesavananda Bharati case were of the opinion that it is enough to declare a constitutional amendment as violating the basic structure if it alters the basic structure. Undoubtedly, some of the learned Judges have used very strong words in the course of their judgment—emasculate, destroy, abrogate and substantially change the identity, etc. but when it came to stating what is the law actually laid down, the majority decided that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution” This was reiterated and explained by Khanna, J. in Indira Nehru Gandhi case.

(Paras 797 and 798)

The words “destroy” and “abrogate”, etc. were used with reference to the words “amendment” and “amendment of the Constitution” which is to say that “amendment” and “amendment of the Constitution” cannot be interpreted expansively as meaning “destroy” or “abrogate”, etc. but have a limited meaning. The words “destroy” and “abrogate”, etc. were not used in the context of destroying or abrogating the basic structure of the Constitution. It has been clearly laid down that “the power of amendment under Article 368 [of the Constitution] does not enable Parliament to alter the basic structure of [or] framework of the Constitution….” The ratio decidendi in Kesavananda Bharati case was that “the power of amendment [in Article 368 of the Constitution] cannot be exercised so as to damage or destroy the essential elements or basic structure of the Constitution.

(Paras 798 and 801)

If a principle, imperative rule or postulate of the basic structure of the Constitution is violated, then the constitutional amendment loses its immunity from attack. What has to be seen in such a matter is whether the amendment contravenes or runs counter to an imperative rule or postulate which is an integral part of the basic structure of the Constitution. If so, it would be an impermissible amendment and it would make no difference whether it relates to one case or a large number of cases.

(Para 799)

It appears from the above exposition of the ratio decidendi in Kesavananda Bharati case that the words “alter” and “damage” are used interchangeably. Similarly, “damage the basic features” and “destroy the basic structure” are used interchangeably with “damage the basic structure” and “destroy the basic features”. The bottom line is what is contained in the “summary” of Kesavananda Bharati case, namely: Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. There are two reasons for this. Firstly, it is a contemporaneous exposition of the views of the majority in Kesavananda Bharati case and there is no other or different exposition; and secondly, the exposition is by the majority of Judges themselves (including two in the minority) and by no other. I am unable to agree with Chelameswar, J. (in paras 1185 and 1196 to 1200) when he says that the “basic structure” and “basic features” convey different ideas. Lexicographically — yes, but constitutionally speaking — no. They are two dimensions of the same picture. In any event, for the present discussion, the distinction, if any, is not relevant.

(Para 803)

Thus, if a constitutional amendment alters the basic structure of the Constitution, then it can and should be declared unconstitutional. What is of importance is the “width of power” test propounded by Mr Palkhivala in Kesavananda Bharati case and adopted in M. Nagaraj, (2006) 8 SCC 212 and now rechristened in I.R. Coelho, (2007) 2 SCC 1 as the direct impact and effect test which means that the form of an amendment is not relevant, its consequence would be the determinative factor.

(Paras 808 and 933)

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench); I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench), followed

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench), clarified and followed

Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147 (Five-Judge Bench), considered

Bhim Singhji v. Union of India, (1981) 1 SCC 166 (Five-Judge Bench), distinguished

A statute or a constitutional amendment must always be deemed to be constitutionally valid and it is for those challenging the validity to demonstrate a violation of the Constitution or an alteration of the basic structure of the Constitution, as the case may be. As far as the petitioners are concerned, it is for them to conclusively show that the 99th Constitution Amendment Act alters the basic structure of the Constitution in that it replaces a well thought-out and fully-discussed method of appointment of Judges with another wherein the constitutional role giving significant value to the opinion of the Chief Justice of India is substantively diminished or perhaps eliminated and substituted by NJAC. The question is not whether the alternative model is good or not good but whether it is constitutionally valid or not.

(Para 815)

Charanjit Lal Chowdhury v. Union of India, 1950 SCR 869 : AIR 1951 SC 41 (Five-Judge Bench); Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279 : AIR 1958 SC 538 (Five-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30 (Five-Judge Bench), followed

There is no doubt that with the passage of time changes take place in society and in the development of the law. In fact, the only constant is change. Good faith and knowledge of existing conditions on the part of the Legislature has to be presumed. Yes, it is also true that the Constitution has to be interpreted as a living organic document for years and years to come, but within accepted parameters. Though the Constitution is also intended for the future and must contain ample provision for experiment and trial but this does not extend to its basic structure.

(Paras 843 to 850)

If the basic structure of the Constitution is to be changed, through experimentation or otherwise, then its overthrow is necessary. It is not a simple document that can be experimented with or changed through a cut and paste method. Even though the independence of the judiciary is a part of the basic structure of the Constitution and being a pillar of democracy it can be experimented with, but only if it is possible without altering the basic structure.

(Para 847)

This is not to say that the Constitution must recognise only physical changes with the passage of time—certainly not. New thoughts and ideas are generated with the passage of time and a line of thinking that was acceptable a few decades ago may not be acceptable today and what is acceptable today may not be acceptable a decade hence. But basic concepts like democracy, secularism, rule of law, independence of the judiciary, all of which are constituents of the basic structure of our Constitution are immutable as concepts, though nuances may change. A failed experiment of these basic concepts would lead to disastrous consequences. It is not possible as an experiment to try out a monarchy or a dictatorship or to convert India into a religious State for about ten or fifteen years and see how the experiment works. Nor is it possible to suspend the rule of law or take away the independence of the judiciary for about ten or fifteen years and see how the experiment works. These concepts are far too precious for experimentation.

(Para 848)

State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 (Seven-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Abrams v. United States, 1919 SCC OnLine US SC 213 : 63 L Ed 1173 : 250 US 616 (1919); R. v. Beauregard, 1986 SCC OnLine Can SC 49 : (1986) 2 SCR 56 (Can SC), explained and followed

Per Kurian Joseph, J.

Professor Philip Bobbit in his famous book Constitutional Fate Theory of the Constitution, has dealt with a typology of constitutional arguments. To him, there are five archetypes: historical, textual, structural, prudential and doctrinal. Historical argument is argument that marshals the intent of the draftsmen of the Constitution and the people who adopted the Constitution. Such arguments begin with assertions about the controversies, the attitudes, and decisions of the period during which the particular constitutional provision to be construed was proposed and ratified. The second archetype is textual argument, argument that is drawn from a consideration of the present sense of the words of the provision. At times textual argument is confused with historical argument, which requires the consideration of evidence extrinsic to the text. The third type of constitutional argument is structural argument. Structural arguments are claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments. The fourth type of constitutional argument is prudential argument. Prudential argument is self-conscious to the reviewing institution and need not treat the merits of the particular controversy (which itself may or may not be constitutional), instead advancing particular doctrines according to the practical wisdom of using the courts in a particular way. Finally, there is doctrinal argument, argument that asserts principles derived from precedent or from judicial or academic commentary on precedent.

(Para 977)

Professor (Dr) Upendra Baxi has yet another tool — “episodic”, which according to him, is often wrongly used in interpreting the Constitution. To Dr Baxi, “structural” is the most important argument while interpreting the Constitution.

(Para 978)

What a structural argument is, is further explained in Chapter 6 by Prof. Bobbit as follows: structural arguments are inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures. They are to be distinguished from textual and historical arguments, which construe a particular constitutional passage and then use that construction in the reasoning of an opinion. Structural arguments are largely factless and depend on deceptively simple logical moves from the entire constitutional text rather than from one of its parts. At the same time, they embody a macroscopic prudentialism drawing not on the peculiar facts of the case but rather arising from general assertions about power and social choice. Notice that the structural approach, unlike much doctrinalism, is grounded in the actual text of the Constitution. But, unlike textualist arguments, the passages that are significant are not those of express grants of power or particular prohibitions but instead those which, by setting up structures of a certain kind, permit us to draw the requirements of the relationships among structures. Professor Bobbit has also dealt with a sixth approach—“ethical”, which according to him, is seldom used in constitutional law.

(Paras 979 and 980)

In interpreting the Constitution, all the tools are to be appropriately used, and quite often, in combination too. The three constitutional wings, their powers and functions under the Constitution, and their intra relationship being the key issues to be analysed in the present case, I am of the view that the “structural tool” is to be prominently applied for resolving the issues arising in the case.

(Para 981)

Arizona State Legislature v. Arizona Independent Redistricting Commission, 2015 SCC OnLine US SC 41 : 576 US _ (2015), minority view considered

Immigration and Naturalization Service v. Chadha, 1983 SCC OnLine US SC 145 : 77 L Ed 2d 317 : 462 US 919 (1983), Vieth v. Jubelirer, 2004 SCC OnLine US SC 31 : 541 US 267 (2004), cited

Separation of powers or say distribution of powers, as learned Lokur, J. terms it, is the tectonic structure of the Constitution of India. The various checks and balances are provided only for maintaining a proper equilibrium amongst the structures and that is the supreme beauty of our Constitution. Under our constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch. The permissible areas of interference are the checks and balances. But there are certain exclusive areas for each branch which learned Khehar, J. has stated as “core functions”, and which I would describe as powers central. There shall be no interference on powers central of each branch. What the Constitution is, is only for the court to define; whereas what the constitutional aspirations are for the other branches to detail and demonstrate.

(Para 987)

Per A.K. Goel, J.

In the concluding paragraph (see p. 1007 thereof) signed by nine Judges in Kesavananda Bharati, (1973) 4 SCC 225 it was held that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. The basic structure or framework was not exhaustively defined but some of the features of the Constitution were held to be the illustrations of the basic structure by the majority of seven Judges. Whether a feature of the Constitution is basic feature or part of basic structure is to be determined having regard to its place in the scheme of the Constitution and consequence of its denial on the working of the Constitution. For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country's governance.

(Paras 1017, 1018, 1026 and 1033)

Thus, a constitutional amendment has to pass the test of basic structure. Whether or not the basic structure was violated has to be finally determined by the Supreme Court from case to case.

(Para 1032)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench), followed

Judicial review by constitutional courts has been held to be part of the basic structure. Fundamental Rights under Articles 14, 15, 19 and 21 have been held to be part of the basic structure.

(Paras 1029 and 1030)

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261; I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench), followed

Plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged. The plea that Parliament is best equipped to assess the needs of the people is not enough reason to extend the power of Parliament to amend the basic features of the Constitution. The shortcomings in working of every institution may need to be removed by constant efforts constitutionally permissible but cannot justify the altering of the framework of the Constitution or the same being damaged.

(Paras 1066 and 1096)

There can be no doubt about the propositions forcefully canvassed by the respondents that the legislative wisdom of the choice of Parliament is not open to question and that possibility of abuse of power could not affect the existence and exercise of power but these submissions cannot ignore the limitation of basic features. Examining whether a basic feature was sought to be altered, is different from questioning the wisdom of Parliament. It is testing the power of Parliament conferred by the Constitution. Similarly, determining whether the new mechanism complied with the framework of the Constitution is different from the issue of possibility of abuse. In the present case, the question is of independence of the judiciary which implies having the appointment of Judges not influenced by any political consideration as per the intention of the Framers of the Constitution.

(Para 1094)

It can hardly be doubted that the Constitution is a dynamic document and has to be interpreted to meet the felt needs of the times and cannot bind all future generations. At the same time, it is also now well settled that the amending power is limited to non-essential/non-basic features and does not extend to altering the basic features and framework of the Constitution.

(Para 1067)

Per Chelameswar, J. (dissenting)

It is not very clear from Kesavananda case whether the expressions basic structure, basic features and essential elements convey the same idea or different ideas.

(Para 1185)

An analysis of the judgments of the Supreme Court dealing with this issue, commencing from Kesavananda case yields the following propositions:

(i) Article 368 enables Parliament to amend any provision of the Constitution.

(ii) The power under Article 368 however does not enable Parliament to destroy the basic structure of the Constitution.

(iii) None of the cases referred to above specified or declared what is the basic structure of the Constitution.

(iv) The expressions “basic structure” and “basic features” convey different ideas though some of the Judges used those expressions interchangeably.

(v) The basic structure of the Constitution is the sum total of the basic features of the Constitution.

(vi) Some of the basic features identified so far by the Supreme Court are democracy, secularism, equality of status, independence of judiciary, judicial review and some of the fundamental rights.

(vii) The abrogation of any one of the basic features results normally in the destruction of the basic structure of the Constitution subject to some exceptions.

(viii) As to when the abrogation of a particular basic feature can be said to destroy the basic structure of the Constitution depends upon the nature of the basic feature sought to be amended and the context of the amendment. There is no universally applicable test vis-à-vis all the basic features.

(Para 1196)

Most of the basic features identified so far in the judgments cited are not emanations of any single article of the Constitution. They are concepts emanating from a combination of a number of articles each of them creating certain rights or obligations or both (for the sake of easy reference I call them “ELEMENTS”). For example,

(a) when it is said that the democracy is a basic feature of our Constitution, such a feature, in my opinion, emerges from the various articles of the Constitution which provide for the establishment of the legislative bodies (Parliament and the State Legislatures) and the articles which prescribe a periodic election to these bodies based on adult franchise; the role assigned to these bodies, that is, to make laws for the governance of this country in their respective spheres; and the establishment of an independent machinery for conducting the periodic elections, etc.;

(b) the concept of secularism emanates from various articles contained in the fundamental rights chapter like Articles 15 and 16 which prohibit the State from practising any kind of discrimination on the ground of religion and Articles 25 to 30 which guarantee certain fundamental rights regarding the freedom of religion to every person and the specific mention of such rights with reference to minorities.

On the other hand, such a result may not ensue in the context of some basic features. For example, Article 326 of the Constitution prescribes that election to Lok Sabha and the Legislative Assemblies shall be on the basis of adult suffrage. One of the components is the prescription of the minimum age-limit of 18 years. Undoubtedly, the right created under Article 326 in favour of citizens of India to participate in the election process of the Lok Sabha and the Legislative Assemblies is an integral part (for the sake of convenience, I call it an “ELEMENT”) of the basic feature i.e. democracy. However, for some valid reasons, if Parliament were to amend Article 326 fixing a higher minimum age-limit, it is doubtful whether such an amendment would be abrogative of the basic feature of democracy thereby resulting in the destruction of the basic structure of the Constitution. It is worthwhile remembering that the minimum age of 18 years occurring under Article 326 of the Constitution as on today came up by way of the Constitution (Sixty-first Amendment) Act, 1988. Prior to the amendment, the minimum age-limit was 21 years.

(Paras 1197 and 1199)

As held by the Supreme Court in Minerva Mills, (1980) 3 SCC 625, the amendment of a single article may result in the destruction of the basic structure of the Constitution depending upon the nature of the basic feature and the context of the abrogation of that article if the purpose sought to be achieved by the article constitutes the quintessential to the basic structure of the Constitution.

(Paras 1198 and 1200)

In the case on hand, the identity of the basic feature is not in dispute. The question is whether the 99th Amendment is abrogative of the independence of judiciary—(a basic feature) resulting in the destruction of the basic structure of the Constitution. By the very nature of the basic feature with which we are dealing, it does not confer any fundamental or constitutional right in favour of individuals. It is only a means for securing to the People of India, justice, liberty and equality. It creates a collective right in favour of the polity to have a judiciary which is free from the control of the executive or the legislature in its essential function of decision making.

(Paras 1201 and 1202)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Waman Rao v. Union of India, (1981) 2 SCC 362; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench); S.R. Bommai v. Union of India, (1994) 3 SCC 1; I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench), referred to

Fali S. Nariman, Before Memory Fades — An Autobiography, referred to

4. Primacy of judiciary extends not only to rejecting unworthy candidates, but also to ensuring appointment of worthy candidates

X. Constitution of India — Arts. 124(2), 217(1) & 222(1) and 368 — Appointment of Judges of Supreme Court and High Courts and transfer of Judges/Chief Justices of High Courts — Primacy of judiciary in matters of, as part of basic structure of the Constitution — Nature and extent of — Held (per majority), extends to not only rejection of unworthy candidates, but also to ensure appointment of worthy candidates — Hence, NJAC scheme which vide Art. 124-A(1)(d) r/w S. 5(2) second proviso & S. 6(6) of NJAC Act, 2014 provides veto power to any two members of the NJAC, who could be the lay “eminent persons”, or Law Minister or one “eminent person”, to even veto unanimous opinion of three Judicial Members of the NJAC is clearly unsustainable in the scheme of independence of the judiciary — Hence, Art. 124-A(1)(d) (introduced by 99th Amendment) and Ss. 5(2) second proviso and 6(6) of NJAC Act, per majority, are struck down as being violative of basic structure of the Constitution — However, advisory non-binding role of such persons in selection of Judges, held, would be permissible

— Reservation in selection of such advisory persons — If permissible

— Held (per Khehar, J.), primacy vested in the CJI based on collective wisdom of Collegium of Judges needs a holistic approach — Such primacy is not sustained merely by ensuring that judicial component in membership of NJAC is sufficiently capable to reject unworthy candidates, but only if judicial component of NJAC can also by itself ensure appointment of worthy candidates as well — Veto power conferred on any two members of NJAC, who may be the two lay “eminent persons” is outrightly obnoxious to primacy of judicial component, as it is quite possible that lay persons having no connection with judiciary or even to profession of advocacy and would have collective authority to override collective wisdom of the CJI and two Supreme Court Judges, and even when Union Law Minister supports unanimous view of judicial component — It is difficult to appreciate in any case what inputs such lay “eminent persons” would render in matter of selection and appointment of Judges — Absurdity of including two “eminent persons” in NJAC can be appreciated if one were to visualise participation of such “lay persons” in selection of CAG, Finance Commission, UPSC, CEC/ECs and the like — The position would be disastrous — It is imprudent to ape a system prevalent in an advanced country with an evolved civil society — At best, to start with, one or more “eminent persons” (perhaps even a committee of “eminent persons”) can be assigned an advisory/consultative role by allowing them to express their opinion about the nominees under consideration — Final selecting body would not be bound by opinion tendered, but be obliged to keep it in mind while finalising names of nominated candidates

— Held (per Lokur, J.), in appointment of Judges, it is not only (negatively expressed) that a “wrong person” should not be appointed but (positively expressed) the best talent, amongst lawyers and judicial officers should be appointed as Judges of High Court and best amongst Judges of High Courts or amongst advocates or distinguished jurists should be appointed to Supreme Court — Hence, conferment of veto on any member of NJAC, eminent person or otherwise, and that too without having to assign any reason, is clearly an unconstitutional check on authority of President and CJI — It is a very significant constitutional change which not only impinges upon but radically alters process of appointment of Judges — Participation of the CJI as an individual and of judiciary as an institution in NJAC is made farcical — It cannot be said that presence of “eminent persons” with a voting right in NJAC would have no impact on the independence of the judiciary, but would be beneficial in terms of bringing about diversity — Two eminent persons can paralyse appointment process for reasons that might have nothing to do with judicial potential or fitness and suitability of the nominee(s) concerned for appointment as Judge — Moreover, nomination process for eminent persons has such weaknesses that there is a real possibility that committee concerned could make (see Shortnote Y) nomination without consulting the CJI and nominate such persons to NJAC would could influence its decisions to accept a committed judiciary rather than an independent judiciary — The same result could very well be achieved, by persons from all walks of life having a consultative role, without altering the basic structure of the Constitution, without conferring a veto on the consultants

— However, on the issue of the “eminent persons” having some background of law and the judiciary, several members of Constituent Assembly had no training or background in law and yet they contributed in giving us a glorious Constitution — Therefore, it cannot be said that an eminent person in NJAC (or as an outside consultant) must have some connection with the law or justice delivery — If the eminent person does have that “qualification” it might be useful, but it certainly need not be absolutely necessary — Lastly, categories of eminent persons ought not to be limited to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women but that is a matter of policy, and nothing more can be said about this, except that a rethink is necessary

— Held (per Goel, J.), concept of primacy of judiciary in appointment of Judges which is a part of basic structure of Constitution the role of, comprises of initiating proposal and taking a final decision in case any adverse feedback is received after proposal is initiated — This primacy is compromised if judiciary is unable to initiate a proposal in the first instance or if such proposal can be effectively rejected as is possible under NJAC scheme, the impact of which being that appointment of Judges could be under the influence of executive represented by Union Law Minister or non-Judge members in whose appointment also predominant voice is not of the judiciary — The eminent persons on NJAC will play not merely a supporting but predominant role in the appointment process which will not be congenial to the independence of the judiciary — Veto power with Law Minister or non-Judge members as against the judicial component, namely the CJI and two seniormost Judges, is not conducive to independence of judiciary — Impact of such appointments will be that Judges appointed will owe their appointments to executive which may be destructive of public confidence and impartiality of judiciary and adversely affect role of the judiciary as an important impartial constitutional organ — Constitutionally conferred judicial primacy in appointment of Judges cannot be whittled down or sought to be controlled by those (like Law Minister and non-Judge members of NJAC) who are not give or allowed to take over such functions — Thus, taking away primacy of judiciary or conferring such primacy on a body in judicial appointments which is not on a par with the said concept is certainly not a choice available with Parliament — If 99th Amendment had merely provided for an advisory or recommendatory role to Law Minister or non-judicial members with the professed object of transparency and accountability, situation may have been different

— Moreover, there is no justification for reservation for one of the nominated members being from specified categories — Such provision is against the scheme of the Constitution and contrary to the object of selecting Judges purely by merit — Nature of appointment does not justify any affirmative action for advancement of any socially and educationally backward classes or for SCs or STs or women — Appointment of Judges has to be on evaluation of merits and suitability of the candidates — Religion, caste or sex of the evaluator has no relevance

— Per Chelameswar, J. (dissenting), primacy of judiciary in judicial appointments is not the only means for the establishment of an independent and efficient judiciary — After the 99th Amendment the primacy of the judiciary is whittled down, but under NJAC scheme, the executive cannot push through an “undeserving candidate” so long as at least two members representing judiciary are united in their view as to unsuitability of that candidate — Even one eminent person and a single judicial member of NJAC could effectively stall entry of an unworthy appointment — Similarly, judicial members also cannot push through persons of their choice unless at least one other member belonging to the non-judicial block supports the candidate proposed by them — Clearly, any two members of NJAC can override opinion of the other four and stall the recommendation — There is nothing inherently illegal about such a prescription as it would act as a check on unwholesome trade-offs within Collegium and incestuous accommodations between judiciary and executive, which are not unknown — Transparency is a vital factor in constitutional governance — Need for transparency is more in case of appointment process of Judges — Proceedings of Collegium have been absolutely opaque and inaccessible both to public and history, barring occasional leaks — Thus, induction of representatives of civil society would hopefully serve to bring about transparency and valuable inputs to appointment process — To believe that judiciary alone could bring valuable inputs to appointment process requires great conceit and disrespect for civil society — The present system has failed several times

Y. Constitution of India — Art. 124-A(1)(d) — “Eminent persons” to be nominated under, by committee of PM, CJI and Leader of Opposition/Single Largest Opposition Party in Lok Sabha — Absence of qualifications/disqualifications for nomination of such persons, if renders Art. 124(1)(d) liable to be struck down — Minimum quorum for meetings of or decisions by said committee not stipulated — Decision-taking process vis-à-vis decision-making process of said committee — Decision-making process in present case if vitiates nomination system, even though decision-taking process does not

— Per Khehar, J., description of the qualifications/disqualifications of “eminent persons” is of utmost importance and cannot be left to free will and choice of the nominating authorities irrespective of high constitutional positions held by them, especially since the two “eminent persons” comprise 1/3rd strength of NJAC, and double that of political-executive component, and as such, will have a supremely important role in decision-making process of NJAC — Thus, Art. 124-A(1)(d) is struck down and set aside

— Per Lokur, J., absence of a definition per se does not always render provision concerned ultra vires, since there are expressions which inherently comprehend such an infinite variety of situations that definitions, instead of lending to them a definite meaning, can only succeed either in robbing them of their intended amplitude or in making it necessary to frame further definitions of the terms defined — Thus, arbitrariness in exercise of discretion available in such a situation can be minimised through a collective consultative process — Thus, in present case, High-Powered Committee of PM, CJI and Leader of Opposition/Single Largest Opposition Party cannot be trusted to nominate “eminent” persons, perhaps no other committee can — Trust placed in said Committee is not a simple or statutory trust but a constitutional trust — Fanciful possibilities, freak exercise and speculative aberrations in the exercise of power by such a body are not realistic enough for constitutional invalidation

— However, as no procedure in functioning of said Committee is prescribed, nomination of eminent persons will be through a majority decision of members of the Committee — In the absence of a quorum or unanimity in nomination of eminent persons, there is a real possibility that the Committee could make the nomination without consulting the CJI and nominate eminent persons to NJAC who could influence its decisions to accept a committed judiciary rather than an independent judiciary

— Per Goel, J., even if in appointing two eminent members, the CJI is also a member of the Committee, the fact remains that PM and Leader of Opposition have a significant role in appointing such members

— Per Chelameswar, J., in the final analysis, all power could be misused including judicial power — The remedy is not to deny grant of power but to structure it so as to eliminate the potential for abuse — The power to nominate two eminent persons is conferred upon three high constitutional functionaries: PM, Leader of Opposition and the CJI — Though presence of CJI in Committee should normally be a strong deterrent, possibility of the CJI failing to perceive a political compromise or helplessness in the event of such compromise, cannot be ruled out — It is incontestable that nomination of eminent persons is not immune to judicial review — There is thus possibility of delay in functioning of NJAC and inevitably process of appointments — Hence, it is essential that there must be an entrenched process of nomination of eminent persons which eliminates risk of possible bipartisan compromises — Only conceivable curative is to incorporate another tier of scrutiny in the process of nomination — Scheme for such additional tier/safeguard, posited

YA. Constitution of India — Arts. 124-A, 124-B and 124-C r/w Ss. 5, 6 and 9 of NJAC Act — Recommendation for appointment as Supreme Court or High Court Judge or for transfer of High Court Judge by NJAC — Minimum quorum for meetings of or decisions by six-member NJAC not stipulated — If rendered NJAC scheme invalid only on this ground — Veto power conferred on any two members of NJAC under S. 5(2) second proviso & S. 6(6) of NJAC Act — Effect of

— Held (per Khehar, J.), when statutory provision vests decision-making authority in a body of persons without stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision-making — Hence, a valid decision by such a body will necessitate a decision by a simple majority of all members of the body — Thus a valid meeting of NJAC must have at least four Members participating in a six-Member NJAC — Likewise, a valid decision of NJAC can only be taken by a simple majority, namely, by at least four Members of NJAC — Said veto power of any two members of NJAC is not in violation of the rule/principle expressed above and there is nothing in law to consider or treat the aforesaid veto power under S. 5(2) second proviso & S. 6(6) of NJAC Act as unacceptable only on the issue of quorum or validity of a meeting or decision by NJAC — However, said veto power held to violate basic structure of Constitution on other grounds (see Shortnote X, above)

— Held (per Lokur, J.), where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid — Courts, Tribunals and Judiciary — Judiciary — National Judicial Appointments Commission Act, 2014, Ss. 5, 6 and 9

Held :

Per Khehar, J.

The primacy vested in the Chief Justice of India based on the collective wisdom of a Collegium of Judges needs a holistic approach. It is not possible to accept that the primacy of the judiciary would be considered to have been sustained merely by ensuring that the judicial component in the membership of NJAC was sufficiently capable to reject the candidature of an unworthy nominee. In the matter of primacy, the judicial component of NJAC should be competent by itself to ensure the appointment of a worthy nominee as well.

(Para 306)

In case a statutory provision vests a decision-making authority in a body of persons without stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision-making. On the same analogy therefore, a valid decision by such a body will necessitate a decision by a simple majority of all the members of the body. If the aforesaid principles are made applicable to NJAC, the natural outcome would be that a valid meeting of NJAC (no minimum quorum is stipulated) must have at least four Members participating in a six-Member NJAC. Likewise, a valid decision of NJAC can only be taken (in the absence of any prescribed prerequisite), by a simple majority, namely, by at least four Members of NJAC (three Members on either side would not make up the simple majority). The provisions of the NJAC Act which mandate that NJAC would not make a recommendation in favour of a person for appointment as a Judge of the High Court or of the Supreme Court if any two Members thereof did not agree with such recommendation cannot be considered to be in violation of the rule/principle expressed above. As a matter of fact, the NJAC Act expressly provides that if any two Members thereof did not agree to any particular proposal, NJAC would not make a recommendation. There is nothing in law to consider or treat the aforesaid stipulations in the second proviso to Section 5(2) and Section 6(6) of the NJAC Act as unacceptable.

(Para 395)

However, under the substituted scheme under NJAC, even if the Chief Justice of India and the two other seniormost Judges of the Supreme Court (next to the Chief Justice of India) who are to be three of the six members of NJAC, consider a nominee to be worthy for appointment to the higher judiciary, the individual concerned may still not be appointed if any two Members of NJAC opine otherwise. This would be outrightly obnoxious to the primacy of the judicial component. The magnitude of the instant issue is apparent from the fact that the two “eminent persons” (—lay persons, according to the respondents) could defeat the unanimous recommendation made by the Chief Justice of India and the two seniormost Judges of the Supreme Court favouring the appointment of an individual under consideration. It is obnoxious because — according to the respondents “eminent persons” had to be lay persons having no connection with the judiciary or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualification: such lay persons would have the collective authority to override the collective wisdom of the Chief Justice of India and two Judges of the Supreme Court of India. The instant issue is demonstrably far more retrograde when the Union Minister in charge of Law and Justice also supports the unanimous view of the judicial component because still the dissenting voice of the “eminent persons” would prevail. It is apparent that primacy of the judiciary has been rendered a further devastating blow by making it extremely fragile.

(Paras 305 and 306)

It is imperative to conclude that the issue of description of the qualifications (— perhaps, also the disqualifications) of “eminent persons” is of utmost importance and cannot be left to the free will and choice of the nominating authorities irrespective of the high constitutional positions held by them. Specially so, because the two “eminent persons” comprise of 1/3rd strength of NJAC, and double that of the political-executive component, and as such, will have a supremely important role in the decision-making process of NJAC. Thus, Article 124-A(1)(d) is set aside and struck down for having not laid down the qualifications of eligibility for being nominated as “eminent persons” and for having left the same vague and undefined.

(Paras 331 to 333)

It is even otherwise difficult to appreciate the logic of including two “eminent persons” in the six-Member NJAC. That “eminent persons” have been included in NJAC to infuse inputs which were hitherto not available with the prevailing selection process for appointment of Judges to the higher judiciary, is really a submission with all loose ends and no clear meaning. It is difficult to appreciate what inputs the “eminent persons” who are “lay persons” having no connection with the judiciary or even with the profession of advocacy, perhaps individuals who do not even have any law related academic qualification, would render in the matter of selection and appointment of Judges to the higher judiciary. The absurdity of including two “eminent persons” in NJAC can perhaps be appreciated if one were to visualise the participation of such “lay persons” in the selection of the Comptroller and Auditor-General, the Chairman and Members of the Finance Commission, the Chairman and Members of the Union Public Service Commission, the Chief Election Commissioner and the Election Commissioners and the like. The position would be disastrous. It is imprudent to ape a system prevalent in an advanced country with an evolved civil society.

(Para 334)

The sensitivity of selecting Judges is so enormous and the consequences of making inappropriate appointments so dangerous that if those involved in the process of selection and appointment of Judges to the higher judiciary make wrongful selections, it may well lead the Nation into a chaos of sorts. The role of “eminent persons” cannot be appreciated in the manner expressed through the impugned constitutional amendment and legislative enactment. At best, to start with, one or more “eminent persons” (perhaps even a committee of “eminent persons”) can be assigned an advisory/consultative role by allowing them to express their opinion about the nominees under consideration. Perhaps, under the judicial component of the selection process. And possibly, comprising of eminent lawyers, eminent jurists, and even retired Judges, or the like having an insight into the working and functioning of the judicial system. And by ensuring that the participants have no conflict of interest. Obviously, the final selecting body would not be bound by the opinion tendered, but would be obliged to keep in mind while finalising the names of the nominated candidates.

(Para 335)

It is also difficult to appreciate the wisdom of Parliament to introduce two lay persons in the process of selection and appointment of Judges to the higher judiciary and to simultaneously vest with them a power of veto. The second proviso under Section 5(2) and Section 6(6) of the NJAC Act clearly mandate that a person nominated to be considered for appointment as a Judge of the Supreme Court and persons being considered for appointment as Chief Justices and Judges of High Courts cannot be appointed if any two Members of NJAC do not agree to the proposal. In the scheme of the selection process of Judges to the higher judiciary contemplated under the impugned constitutional amendment read with the NJAC Act, the two “eminent persons” are sufficiently empowered to reject all recommendations just by themselves. Not just that, the two “eminent persons” would also have the absolute authority to reject all names unanimously approved by the remaining four Members of NJAC. That would obviously include the power to reject the unanimous recommendation of the entire judicial component of NJAC.

(Para 336)

The vesting of such authority in “eminent persons” is clearly unsustainable in the scheme of independence of the judiciary. Vesting of such authority in persons who have no nexus to the system of administration of justice is clearly arbitrary, and it is held to be so. The inclusion of “eminent persons” in NJAC would adversely impact primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also their transfer). Thus, Article 124-A(1)(d) is struck down as being violative of the basic structure of the Constitution.

(Para 336)

The power of veto vested in any two Members of NJAC would adversely impact primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also their transfer). Section 6(6) of the NJAC Act has the same connotation as the second proviso under Section 5(2) both of which provide for the above veto, and Section 6(6) of the NJAC Act would therefore meet the same fate as Section 5(2). Thus, Sections 5(2) and 6(6) of the NJAC Act also breach the basic structure of the Constitution with reference to the independence of the judiciary and the separation of powers. Sections 5(2) and 6(6) are therefore declared as ultra vires the Constitution.

(Para 401)

Per Lokur, J.

The independence of the judiciary is vital to democracy and begins with the appointment of a Judge. Who appoints what calibre of Judges is important. It must be appreciated and acknowledged that methodological independence, namely, the recommendation and appointment of Judges to a superior court is an important facet of the independence of the judiciary. If a person of doubtful ability or integrity is appointed as a Judge, there is a probability of his/her succumbing to internal or external pressure and delivering a tainted verdict. This will strike at the root of the independence of the judiciary and destroy the faith of the common person in fair justice delivery. Therefore, there is a great obligation and responsibility on all constitutional functionaries, including the Chief Justice of India and the President, to ensure that not only are deserving persons appointed as Judges, but that deserving persons are not denied appointment.

(Para 740)

The appointment of Judges—by whom, according to what standards and process, and with what outcome—is of critical importance. To maintain a judiciary that is independent, which makes good decisions, and in whom the public can continue to have confidence, we need to appoint the most meritorious candidates and secure a judiciary that is as reflective as possible of the society it is serving. And we need to get it right the first time, every time, because, once appointed to a full-time salaried position, Judges may not be removed from office other than in the most extreme of circumstances. Therefore, in the appointment of a Judge, it is not only (negatively expressed) that a “wrong person” should not be appointed but (positively expressed) the best talent, amongst lawyers and judicial officers should be appointed as Judges of the High Court and the best amongst the Judges of the High Courts or amongst advocates or distinguished jurists should be appointed to the Supreme Court. It has been stated in the 14th Report of the Law Commission of India that the selection of Judges is of pivotal importance to the progress of the nation and that responsibility must be exercised with great care.

(Paras 748 and 749)

The decision of the President is, in one sense, made to depend upon the opinion of two members of NJAC, who may in a given case be the two eminent persons nominated to NJAC in terms of Article 124-A(1)(d) of the Constitution. These two eminent persons can actually stymie a recommendation of NJAC for the appointment of a Judge by exercising a veto conferred on each member of NJAC by the second proviso to Section 5(2) of the NJAC Act, and without assigning any reason. In other words, the two eminent persons (or any two members of NJAC) can stall the appointment of Judges without reason. That this may not necessarily happen with any great frequency is not relevant—that such a situation can occur is disturbing. As a result of this provision, the responsibility of making an appointment of a Judge effectively passes over, in part, from the President and the Chief Justice of India to the members of NJAC, with a veto being conferred on any two unspecified members, without any specific justification. This is a very significant constitutional change brought about by the 99th Constitution Amendment Act which not only impinges upon but radically alters the process of appointment of Judges, by shifting the balance from the President and the Chief Justice of India to NJAC.

(Para 884)

The Chief Justice of India is undoubtedly the Chairperson of NJAC. However, the participation of the Chief Justice of India as an individual and the participation of the judiciary as an institution in NJAC is made farcical by the 99th Constitution Amendment Act and the NJAC Act. Even though the opinion of the Chief Justice of India, a pre-eminent constitutional authority in the judiciary, regarding the suitability of a person for appointment as a Judge is acceptable to a majority of members of NJAC, it can be thumbed down by two of its other members in terms of Section 5 of the NJAC Act. These two persons might be the Law Minister (representing the President) and an eminent person or two eminent persons neither of whom represents or purports to represent the President, the other pre-eminent constitutional authority in the appointment process under Article 124(2) of the Constitution prior to its amendment.

(Para 887)

Thus, it is not possible to accept the contention that the presence of eminent persons with a voting right in NJAC would have no impact on the independence of the judiciary, but would be beneficial in terms of bringing about diversity. The same result could very well be achieved, as suggested by Justice Verma without altering the basic structure of the Constitution, without conferring a veto on the consultants.

(Para 903)

Article 124-A(1)(d) of the Constitution provides for two eminent persons to be nominated as members of NJAC. The nomination is by a Committee. The apprehension expressed by the petitioners is that since no guidelines have been laid down for the nomination of the two eminent persons, there is a possibility that persons who are not really eminent may be nominated to NJAC or that their appointment will be politically motivated. So also, acknowledged eminent persons might not be nominated to NJAC. But then, who is an eminent person?

(Para 894)

The impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature. But the point to note is that there are expressions which inherently comprehend such an infinite variety of situations that definitions, instead of lending to them a definite meaning, can only succeed either in robbing them of their intended amplitude or in making it necessary to frame further definitions of the terms defined. Thus, it has been held that arbitrariness in the exercise of discretion can be minimised through a collective decision. A collective consultative process has been held to be an inbuilt mechanism against any arbitrariness in such a situation.

(Paras 895, 896 and 900)

Parliament has put its faith in a High-Powered Committee to select the two “eminent persons” and it is presumed that the High-Powered Committee entrusted with wide discretion would exercise its powers in accordance with the Act objectively and in a fair and reasonable manner. Under these circumstances, there can be little objection to the participation by eminent persons as consultants in the appointment process. In fact, Justice Verma acknowledged that he had sought the views of eminent lawyers while considering recommendations for the appointment of Judges. If the High-Powered Committee cannot be trusted to nominate “eminent” persons, perhaps no other committee can. The trust placed on the Committee is not a simple or statutory trust but a constitutional trust. The confusion between the power and its oblique exercise is an intellectual fallacy we must guard against. Fanciful possibilities, freak exercise and speculative aberrations are not realistic enough for constitutional invalidation. The legislature cannot be stultified by the suspicious improvidence or worse of the Executive.

(Paras 898 and 901)

It is, therefore, not advisable to be alarmist, as some of the petitioners were, but at the same time possible abuse of power cannot be wished away, as our recent history tells us. Perhaps far better and precise legislative drafting coupled with a healthy debate is a solution, but, what is of significance is the decision-taking (as distinguished from decision-making) process of the Committee.

(Para 902)

Where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid. In a situation such as the present, where no procedure in the functioning of the Committee is laid out, the nomination of eminent persons will be through a majority decision of the members of the Committee. What this means is that the Chief Justice of India would have a subsidiary role in the nomination process if he/she is in the minority. What this also means is that an executive-cum-legislative influence would sneak in the process of nomination of eminent persons. In other words, from the word “go” the Chief Justice of India is sidelined, directly or indirectly, in the process of appointment of Judges of the High Courts and the Supreme Court.

(Paras 902 and 904)

What makes matters worse is that in the absence of a quorum or unanimity in the nomination of eminent persons, the Committee could make the nomination without consulting the Chief Justice of India. Therefore, if for some valid reason, the Chief Justice of India is unable to attend a meeting, the Committee could nominate eminent persons (perhaps believing in the concept of a committed judiciary) to NJAC and influence its decisions to accept a committed judiciary rather than an independent judiciary. It is unlikely that this would happen, but if the political-executive is determined, at some point of time, to have a committed judiciary, the nomination of politically active eminent persons to NJAC disregarding the view of the Chief Justice of India is a real possibility.

(Para 904)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152 (Five-Judge Bench); Bhim Singhji v. Union of India, (1981) 1 SCC 166 (Five-Judge Bench), followed

High Court of Madras v. R. Gandhi, (2014) 11 SCC 547; Centre for PIL v. Union of India, (2011) 4 SCC 1 : (2011) 1 SCC (L&S) 609; Ishwar Chandra v. Satyanarain Sinha, (1972) 3 SCC 383, affirmed

It was submitted that the eminent person must have some background of law and the judiciary. In principle this argument is quite attractive, but really has little substance. Several members of the Constituent Assembly had no training or background in law and yet they contributed in giving us a glorious Constitution. Therefore, it would not be correct to say that an eminent person in NJAC (or as an outside consultant) must have some connection with the law or justice delivery. If the eminent person does have that “qualification” it might be useful, but it certainly need not be absolutely necessary.

(Para 905)

Finally, it was argued that the requirement that one eminent person should be from amongst persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities or women as mentioned in the first proviso to Article 124-A(1)(d) of the Constitution is discriminatory and serves no purpose at all. Which category should or should not be represented in NJAC through an eminent person is essentially a matter of policy and that policy does not appear to be perverse in any manner, but does require a rethink.

(Paras 906 and 893)

The real cause for unhappiness is the second proviso to Section 5(2) of the NJAC Act which effectively confers a veto on each member of NJAC. What is objectionable about the veto (a part of the package deal referred to by the respondents) is that it can also be exercised by two eminent persons whose participation in the appointment process was not even imagined by the Constituent Assembly. Article 124(2) of the Constitution (prior to its amendment) had only two constitutional authorities involved in the appointment process—the President and the Chief Justice of India. The 99th Constitution Amendment Act has introduced a third and a previously non-constitutional “authority”, namely, an eminent person. Two eminent persons who had no role to play in the appointment process prior to the 99th Constitution Amendment Act have suddenly assumed Kafkaesque proportions and together they can paralyse the appointment process, reducing the President and the Chief Justice of India to ciphers for reasons that might have nothing to do with the judicial potential or fitness and suitability of a person considered for appointment as a Judge. That they might not do so is another matter altogether but in a constitutional issue as grave as the appointment of Judges, all possibilities require to be taken into consideration since it affects the independence of the judiciary and eventually the rights, including the fundamental rights, of the people. The conferment of a veto to any member of NJAC, eminent person or otherwise, is clearly an unconstitutional check on the authority of the President and the Chief Justice of India.

(Para 907)

Hence, in principle, there can be no objection to consultation with eminent persons from all walks of life in the matter of appointment of Judges, but that these eminent persons can veto a decision that is taken unanimously or otherwise by the Chief Justice of India (in consultation with other Judges and possibly other eminent persons) is unthinkable—it confers virtually a monarchical power on the eminent persons in NJAC, a power without any accountability; the categories of eminent persons ought not to be limited to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women but that is a matter of policy and nothing more can be said about this, except that a rethink is necessary; there can be no guidelines for deciding who is or is not an eminent person for the purposes of nomination to NJAC, but that the choice is left to a High-Powered Committee is a sufficient check, provided the decision of the Committee is unanimous.

(Para 908)

Per A.K. Goel, J.

The contention of the respondents that there is a presumption that the Law Minister and the nominated members will conduct themselves independently and will make value addition in selecting the Judges in a better way, cannot be accepted. The views of the Constitution-Makers and eminent expert committees clearly show that the role of the executive in appointment of Judges has to be minimum and by and large limited to check the character and antecedents of the candidates and not to finally assess the merit and suitability of such candidates. In this view of the matter, even if the contention that no guideline was required for criteria for appointment of eminent persons when the Committee will be comprised of high dignitaries, is accepted, the fact remains that such persons will play not merely a supporting but predominant role in appointing the Supreme Court and the High Court Judges, which will not be congenial to the independence of the judiciary. Further, there is no justification for reservation for one of the nominated members being from specified categories. Such provision is against the scheme of the Constitution and contrary to the object of selecting Judges purely by merit. The nature of appointment does not justify any affirmative action for advancement of any socially and educationally backward classes or for the Scheduled Castes or Scheduled Tribes or women. The appointment of Judges has to be on evaluation of merits and suitability of the candidates. Religion, caste or sex of the evaluator has no relevance.

(Paras 1081 and 1082)

P. Vaikunta Shenoy and Co. v. P. Hari Sharma, (2007) 14 SCC 297; V.C. Shukla v. State (Delhi Admn.), 1980 Supp SCC 249 : 1980 SCC (Cri) 849, cited

The contention that the 99th Amendment strengthens the independence of the judiciary or the democracy or brings about transparency or accountability is not shown to be based on any logic beyond the words. Even if in appointing two eminent members, the CJI is also a member of the Committee, the fact remains that the PM and the Leader of the Opposition have a significant role in appointing such members, who will have power not only equal to the CJI and two seniormost Judges of the Supreme Court in making appointment of Judges of the Supreme Court and appointment/transfer of Judges of the High Courts, but also the right to reject the unanimous proposal of the CJI and the two seniormost Judges. Such composition of NJAC cannot be held to be conducive to the independence of the judiciary. Appointment of Judges of the Supreme Court and appointment/transfer of Judges of the High Courts, can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting the independence of the judiciary.

(Paras 1080 and 1090 to 1093)

The plea that the Law Minister and the nominated members will provide feedback also does not provide any justification for their being members of the Commission and thereby participating in evaluation and suitability of a candidate for appointment as Judge of the Supreme Court or High Courts and having the power to overrule unanimous view of Judges.

(Para 1083)

Under the new NJAC scheme, the Law Minister has been given a role equal to the CJI. Right from the commencement of the Constitution, this role of the Law Minister was never envisaged while initiating the process and finalising it. The Law Minister, in a participatory scheme, could at best suggest a name or give his comments on the names proposed but the proposal could and was always initiated by the CJI. At the stage of initiation, if equal authority is conferred, this will erode the primacy of the judiciary in appointment of Judges as declared by the Supreme Court authoritatively. Any deviation in the past was always adversely commented upon and held to be undesirable amounting to interference with the independence of the judiciary. The other two persons to be nominated by a committee which also has predominant political voice to be placed on a par with the CJI in initiating and finalising a proposal destroys the original scheme beyond its identity. If an appointment is perceived as being influenced by political consideration or any other extraneous influence, faith in impartiality, which is the hallmark of independence of the judiciary, will be eroded. Any suggestion before initiation of a name or feedback even after initiation may be useful and may not affect the independence of the judiciary but equal participation by the Law Minister and two outsiders in the final decision for initiation or appointment can be detrimental to the independence of the judiciary. It cannot be wished away by presuming that the Law Minister and the two persons will not be influenced by any extraneous consideration. Such a presumption will be contrary to the acknowledged factual experience. It will also be against the concept of separation of the judiciary from the executive. Moreover, this will be contrary to the basic intention of the Constitution Makers.

(Paras 1090 and 1083 and 1092)

Even assuming the best of intentions, the power of judicial review by the constitutional courts cannot be subjected to scrutiny by any “eminent persons” on the ground that working of the judiciary was perceived to be unsatisfactory. Obviously it will be clear interference with the independence of the judiciary. In the same way, constitutionally conferred judicial primacy in appointment of Judges cannot be whittled down or sought to be controlled by those who are not given or allowed to take over such functions. Even granting the best of intentions, Parliament cannot act beyond the authority conferred on it by the Constitution. Thus, taking away primacy of judiciary or conferring such primacy on a body in judicial appointments which is not on a par with the said concept is certainly not a choice available with Parliament.

(Para 1094)

The concept of primacy of judiciary in appointment of Judges comprises of initiating the proposal and taking a final decision in case any adverse feedback is received after the proposal is initiated. This concept of primacy is compromised if the judiciary is unable to initiate a proposal in the first instance or if such proposal can be effectively rejected. The impact thereof being that the appointment of Judges could be made under the influence of the executive represented by the Law Minister or the non-Judge members in whose appointment the predominant voice is not of the judiciary. The impact of such appointments will be that the Judges appointed will owe their appointments to the executive which may be destructive of the public confidence and impartiality of the judiciary and adversely affect the role of the judiciary as an important impartial constitutional organ. The role of the judiciary is to define and regulate working of other constitutional authorities within the scope of roles assigned to them.

(Paras 1095 and 1093)

If the 99th Amendment had merely provided for an advisory or recommendatory role to the Law Minister or the non-judicial members with the professed object of transparency and accountability, the situation may have been different. It may not have, in that case, interfered with the primacy of the judiciary in appointment of Judges which is the mandate of the Constitution. Such power cannot be justified under the doctrine of wisdom of Parliament nor on the principles of trust, once such power is in violation of the principle of primacy of judiciary in appointment of Judges. No individual instance either of working of the executive or the legislature or the existing system of appointment of Judges need be discussed as the issue involved here is of interpretation of the Constitution and not of success or failure of any individual or persons. The shortcomings in working of every institution may need to be removed by constant efforts constitutionally permissible but cannot justify the altering of the framework of the Constitution or the same being damaged.

(Para 1096)

The role of the Law Minister and the non-Judge members cannot be placed on a par with the Chief Justice and Judges of the Supreme Court. They cannot be compared for obvious reasons. The veto power with the Law Minister or with non-Judge members, as against a Supreme Court Judge who is the member of the Collegium, will involve interference with the independence of the judiciary. Similarly, requirement of special majority in any other ordinary situation is not comparable with the scheme of appointment of Judges which is sui generis. Similarly, the plea of giving vital inputs does not justify participation of the non-Judge members with the Chief Justice and the Judges in discharging their functions of initiating a proposal or taking a final view. Though, the formal act of appointment of Judges may be an executive function, there is a unique judicial element in the process of appointment of Judges of the constitutional courts.

(Para 1107)

Thus, The 99th Amendment is not an insignificant amendment and is not within the basic framework of the working of the Constitution.

(Para 1091)

Per Chelameswar, J. (dissenting)

Prior to the 99th Amendment, there were only two parties to the appointment process, the executive and the judiciary. The relative importance of their roles varied from time to time. The 99th Amendment makes three important changes: (i) primacy of judiciary is whittled down; (ii) role of the executive is also curtailed; and (iii) representatives of civil society are made part of the mechanism.

(Para 1211)

Primacy of the opinion of judiciary in the matter of judicial appointments is not the only means for the establishment of an independent and efficient judiciary. There is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary. Such an assumption has been proved to be of doubtful accuracy. The question is not whether the model conceived by the 99th Amendment would yield a more independent and efficient judiciary. The question is whether Parliament's wisdom and authority to undertake such an experiment by resort to constituent power is subject to curial audit.

(Para 1212)

Pursuant to the mandate of Article 124-C, Parliament made the NJAC Act. For the present, suffice it to note that though the amended text of the Constitution does not so provide, Section 5(2) second proviso and Section 6(6) of the NJAC Act provide that NJAC shall not recommend a person for appointment, if any two members of the Commission do not agree for such recommendation.

(Para 1121)

Critical analysis of Articles 124, 217 and 124-A and 124-B (as amended/inserted by the 99th Amendment) leads to the position that the executive branch of the Government cannot push through an “undeserving candidate” so long as at least two members representing the judicial branch are united in their view as to unsuitability of that candidate. Even one eminent person and a single judicial member of NJAC could effectively stall entry of an unworthy appointment. Similarly, the judicial members also cannot push through persons of their choice unless at least one other member belonging to the non-judicial block supports the candidate proposed by them.

(Para 1214)

Transparency is a vital factor in constitutional governance. The Supreme Court in innumerable cases has noted that constitutionalism demands rationality in every sphere of State action. Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the Collegium have been absolutely opaque and inaccessible both to the public and history, barring occasional leaks. Justice Ruma Pal, J. is on record: “Consensus within the Collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.” One beneficial purpose the induction of representatives of civil society would hopefully serve is that it acts as a check on unwholesome trade-offs within the Collegium and incestuous accommodations between the judicial and executive branches.

(Paras 1220 to 1222)

To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for civil society. Krishna Iyer, J. cautioned that the spirit of liberty is the spirit which is not too sure that it is right. The possibility of abuse of a power conferred by the Constitution is no ground for denying the authority to confer such power.

(Para 1223)

The fiasco created in Dinakaran cases, (2011) 8 SCC 380 and (2011) 8 SCC 474, and Shanti Bhushan, (2009) 1 SCC 657, would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved in the process pointed out by Ruma Pal, J. (See in detail under Shortnote YF).

(Para 1236)

Bhim Singhji v. Union of India, (1981) 1 SCC 166, Krishna Iyer, J.:; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench); Shanti Bhushan v. Union of India, (2009) 1 SCC 657; P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380; P.D. Dinakaran (2) v. Judges Inquiry Committee, (2011) 8 SCC 474 : (2012) 1 SCC (L&S) 246; Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1; Webb v. Outrim, 1907 AC 81 (PC); Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd., (1920) 28 CLR 129 (Aust), referred to

“An Independent Judiciary” — speech delivered by Ms Ruma Pal, J. at the 5th V.M. Tarkunde Memorial Lecture on 10-11-2011, referred to

The question whether the content of Section 6(6) and Section 5(2) second proviso of the NJAC Act confer a power of veto or prescribes a special majority is only of semantic relevance. Whatever name we call it, the result is the same. The two members of NJAC can override the opinion of the other four and stall the recommendation. There is nothing inherently illegal about such a prescription.

(Para 1233)

In the final analysis, all power could be misused including judicial power. The remedy is not to deny grant of power but to structure it so as to eliminate the potential for abuse. The power to nominate two eminent persons is conferred upon three high constitutional functionaries—the Prime Minister, the Leader of the Opposition and the CJI. It is elementary political knowledge that the Prime Minister and the Leader of Opposition would always have conflicting political interests and would rarely agree upon any issue. Nonetheless, the possibility of a bipartisan compromise cannot be ruled out. Though the presence of CJI in the Committee should normally be a strong deterrent, the possibility of the CJI failing to perceive a political compromise or helplessness in the event of such compromise, cannot be ruled out.

(Para 1224)

It is incontestable that nomination of eminent persons is not immune to judicial review. There is thus possibility of delay in functioning of NJAC and inevitably the process of appointments to the constitutional courts. It is, therefore, essential that there must be an entrenched process of nomination of eminent persons which eliminates risk of possible bipartisan compromises. The only conceivable curative is to incorporate another tier of scrutiny in the process of nomination. The following safeguard would bring this process within permissible contours of the basic feature simultaneously eliminating the “delay factor”. The Committee contemplated under Article 124-A(1)(a) should prepare a panel of three members for each of the two categories of the nominees (for eminent persons)—in all a panel of six persons. Such panel should be placed before the full house of the Supreme Court for voting. Nominees securing the highest vote in each of the two categories should eventually be nominated as eminent members of NJAC. Such procedure would still preserve the choice of eminent persons primarily with the Committee contemplated under Article 124-A, while incorporating sufficient safeguards against possible abuse of the power by the Committee.

(Para 1225)

5. Integrated Institutional Participatory Consultative Process between Judiciary and Executive — Participatory but not Definitive Role of the Executive

YB. Constitution of India — Arts. 124(2), 217(1) & 222(1), 50 & 74 and 368 — Appointment of Judges of Supreme Court and High Courts and transfer of Judges/Chief Justices of High Courts — Collegium System laid down in Second and Third Judges cases, held (per curiam), is an integrated institutional participatory consultative process with determinative role and ultimate primacy of unanimous Collegium of Judges headed by the CJI, with executive having a crucial collaborative role but with no role in the final determination, unless Collegium of Judges headed by the CJI is not unanimous (see also Shortnote YE, below)

— As far as professional skills, judicial potential, suitability and temperament of a person to be a good Judge are concerned, most appropriate body to make that assessment would be the Collegium of Judges headed by the CJI and not somebody from outside the legal fraternity — As to personal strengths, weaknesses, habits and traits of that person, appropriate inputs can come only from the executive, since Collegium of Judges and other Judges may not be aware of them — It is for this reason that Constituent Assembly made it mandatory for consultation between judiciary having vital inputs on judicial potential and executive being best judge to assess antecedents and personal traits — But cautioned, there can be a situation where personal traits of a person may be such as to disqualify that person from being appointed as a Judge and there can be a situation where personal traits, though objected to by executive, would not have any impact whatsoever on the potential of that person becoming a good Judge — Hence, ultimate primacy on appointment of Judges has been given to Collegium of Judges with the CJI as its head, to make this assessment and to make the final recommendation for appointment as Judge or not

— Functioning of this integrated institutional participatory consultative process and precise roles, responsibilities and powers of judiciary and political-executive therein, explained in detail — Provisions to ensure transparency and provide checks and balances in existing Collegium System, highlighted

— Given dual participation of judiciary and the political-executive in the Collegium System, further held, they bear joint and equal responsibility for any failures thereof — [See also under Shortnote YF, below]

— Held (per Khehar, J.), upon a detailed examination of summary of conclusions in Second and Third Judges cases, and the two Memoranda of Procedure for appointment of Judges to Supreme Court and High Courts drawn based thereon drawn by Law Ministry, it is clear that they provide for a participatory role to the judiciary as well as the political-executive — Judiciary and political-executive are both responsible for contributing information, material and data with reference to the individual under consideration — While judicial component is responsible for evaluating individual's professional ability, political-executive is tasked with obligation to provide details about the individual's character and antecedents — Extensive involvement of political-executive in providing such inputs at numerous stages in appointment process of both Supreme Court and High Court Judges, has often led to High Court Collegium and Supreme Court Collegium to revise their views — Shows that there is a complete comity of purpose between judiciary and political-executive in matter of selection and appointment, and between them there is clear transparency also — As views are exchanged in writing, views and counter-views are in black and white — Nothing happens secretly without the knowledge of the participating constitutional functionaries — Thus, it is not possible to accept that under the Collegium System, Judges at their own select Judges or a system of imperium in imperio has been created, nor that Collegium System curtails participatory role of executive in the constitutional scheme of checks and balances, in view of role of the executive as fully described

— In fact, it is imperative to point out that if there have been failures of Collegium System, executive is jointly and equally responsible for such failures and not just the judicial component — This is because not in a single of the instances referred to by the respondents of Judges who ought not to have been appointed, did the political-executive object to elevation of the Judges referred to — In fact political-executive chose to grant post-retirement assignments to three of the four instances of the Judges referred to — Equally importantly, no allegation whatsoever was made by respondents with reference to Judges who were appointed at the insistence of the judiciary upon disregarding objections to their appointment by the political-executive

— Held (per Lokur, J.), under Collegium System, President is expected to act on the advice of Council of Ministers — Initial recommendation for appointment of Judge of High Court is to originate from Chief Justice of High Court and for appointment of Judge of Supreme Court from the CJI — Consultation between President and the CJI is an integrated participative process with the result that President has the final say in appointment of a Judge under certain circumstances and unanimous Collegium of Judges headed by the CJI has the final say under certain circumstances

— Quite clearly, the CJI (in an individual capacity) cannot recommend a person for appointment as a Judge, but must do so in consultation with the appropriate Collegium Judges (and, if necessary, with non-Judges) — Such recommendation of the CJI, if made unanimously by the Collegium, ought normally to be accepted by the President/Council of Ministers — However, President/Council of Ministers can return such recommendation for reconsideration for strong and cogent reasons — If the Collegium unanimously reiterates the recommendation, it should be accepted — On the other hand, a recommendation made by the CJI/Collegium, which is initially not unanimous, or upon reiteration is non unanimous, may not be accepted by the President — Path taken by Supreme Court in Second and Third Judges cases is wholly in consonance with views of the Constituent Assembly, in that in appointment of Judges, no constitutional functionary could act in an individual capacity but the CJI and other Judges were well qualified to give correct advice to the President in a matter of this sort, and that ought to be accepted as long as it was unanimous

— There are two crucial factors to be carefully considered before a person is appointed as Judge of Supreme Court or a High Court: (1) Professional skills, judicial potential, suitability and temperament of a person to be a good Judge, and (2) Personal strengths, weaknesses, habits and traits of that person — As far as Factor (1) is concerned, most appropriate person to make that assessment would be the Collegium of Judges and not somebody from outside the legal fraternity — As far Factor (2) is concerned, appropriate inputs can come only from the executive, since Collegium of Judges and other Judges may not be aware of them — It is for this reason that Constituent Assembly made it mandatory for consultation between judiciary having vital inputs on Factor (1) and executive being best judge to assess Factor (2) — Thus, Collegium of Judges is as it were, the “expert” with regard to potential while executive is the “expert” with regard to antecedents and personal traits

— There can be a situation where personal traits of a person may be such as to disqualify that person from being appointed as a Judge and there can be a situation where personal traits, though objected to, would not have any impact whatsoever on the potential of that person becoming a good Judge — It is possible that executive might have an objection to sexual orientation of a prospective Judge but Collegium of Judges may opine that that would have no impact on his/her ability to effectively discharge judicial functions or be a good Judge — Australia and South Africa have had a gay Judge on the Bench — Then opinion of Collegium of Judges that should have greater weight and the last word should be with the CJI, unanimously expressed

— It is impossible and undesirable to remove the political executive entirely from the appointments process — Indeed, ‘political’ considerations, in the sense of responsibility and accountability for appointments, need to be intensified rather than obscured — What an appointments model should attempt to do is attenuate direct influence of the political branch on appointment process and subject its involvement in appointment process to greater transparency and accountability, while preserving all the existing constitutional arrangements for ensuring decisional independence — There is a distinction between executive providing inputs to the Collegium and it having a say in the final decision — Executive should be a part of decision-making process but ought not to be a part of decision-taking process — This distinction is quite crucial

— Where executive rejects the recommendation of Collegium of Judges with CJI at its head even after its unanimous reiteration, the same would be subject to judicial scrutiny [See Shortnote YC below]

— Opinion of executive is weightier in area of antecedents and personal character and conduct of the candidate — Power of non-appointment on this ground is expressly with the executive, so long as recommendation of Collegium is not unanimous — However, President/Council of Ministers have occasionally failed to exercise this particular constitutional power, for reasons unknown or due to a misunderstanding of the law laid down by Supreme Court — This misunderstanding continues even today, especially by the political-executive — Thus, Collegium cannot be blamed for all the ills in appointment of Judges — Political-executive has to share the blame equally if not more, since it failed in its constitutional responsibility of maintaining a check on erroneous decisions of the Collegium — All that was needed to keep the Collegium System on the rails was unstinted cooperation of the executive and an effective implementation strategy, with serious and meaningful introspection and perhaps some fine tuning and tweaking to make it more effective

— Held (per Kurian, J.), present Collegium System lacks transparency, accountability and objectivity — However, fault is not wholly of the Collegium — The active silence of the executive in not preventing unworthy appointments has actually been one of the major problems — Second and Third Judges cases have provided effective tools to the executive to prevent such aberrations — Whether subversion of Collegium System was a “joint venture” between judiciary and executive, as observed by Chelameswar, J., or not, the executive seldom effectively used those tools

— Held (per Goel, J.), under the scheme of the Constitution, proposals for appointments are to be always initiated by judiciary and appointments are to be made with concurrence of unanimous Collegium headed by CJI — Judiciary is better equipped to select the best Judges and to ensure that appointments are free from executive domination to inspire public confidence in impartiality, consistent with principle of separation of judiciary from executive and also consistent with the spirit of Constitution-Makers — Principle of primacy of judiciary in appointment of Judges is recognised, but to check arbitrary exercise of power by any individual, it is mandatory that the Chief Justices consult Collegium Judges/senior Judges — Thus, primacy of judiciary in appointment of Judges is recognised in initiating proposal as well as in taking final decision — However, participation of executive in giving inputs by suggesting names before proposal is initiated or giving feedback even after proposal is initiated is permissible — Executive with a vast administrative machinery under its control is capable of making enormous and valuable contribution to the selection process — Constituent Assembly emphatically declined to repose exclusive trust even in CJI — To wholly eliminate executive from process of selection of Judges would be inconsistent with the foundational premise that Government in a democracy is by chosen representatives of the people — Such exclusion has no parallel in any other democracy — In fact, exclusion of the executive branch completely from selection process of Judges would be destructive of the basic feature of checks and balances—a fundamental principle in constitutional theory

— Even assuming that there is a scope for improvement in working of the Collegium System, it cannot be held that under the existing system there is no transparency or checks and balances — All proceedings in initiating a proposal are in writing and are forwarded to constitutional functionaries — Chief Minister, Governor, Law Minister, PM and President have opportunity to give their views on appointment of Chief Justices and Judges of High Courts, apart from Judges and non-Judges involved in the process — Law Minister, PM and President have opportunity to give their inputs on appointment of CJI and Judges of Supreme Court — There is also an opportunity for the executive to suggest names before initiation of the proposal — There is no bar to an expert feedback from civil society through the constitutional functionaries involved — Thus, there is transparency as well as checks and balances

— Held (per Chelameswar, J. concurring on the pre-99th Amendment position), though it was held in Second Judges case that without primacy to the opinion of CJI the whole consultation process contemplated under Arts. 124 and 217 would only become ornamental enabling the executive to make appointments in its absolute discretion, most likely based on considerations of political expediency, it is necessary to reiterate Verma, J.'s admonition in Second Judges case that the debate on primacy is intended to determine, who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and not a win-lose debate — The indication is, that in the choice of a candidate suitable for appointment, opinion of CJI as head of Collegium of Judges should have the greatest weight — Selection should be made as a result of a participatory consultative process in which executive should have power to act as a mere check on exercise of power by CJI/Collegium of Judges, to achieve the constitutional purpose — Thus, executive element in appointment process is reduced to the minimum and any political influence is eliminated — It was for this reason that ‘consultation’ instead of ‘concurrence’ was used in Arts. 124, 217 and 222, to indicate that absolute discretion was not given to anyone, not even to the CJI as an individual, much less to the executive, which earlier had absolute discretion under the Government of India Act — Supreme Court in Second Judges case also indicated circumstances in which President of India would be constitutionally justified in not acting in accordance with opinion expressed by CJI/Collegium of Judges — [See Shortnote YE therefor]

YC. Constitution of India — Arts. 32 & 226 and 124(2), 217(1) & 222(1), 74 & 50 and 368 — Recommendation for appointment as Judge of High Court or Supreme Court by Collegium of Judges, unanimously reiterated by Collegium of Judges, but still not accepted by executive — Remedy against — Availability of judicial review — Held, in such a situation decision of executive is open to judicial scrutiny — Of course, no one has a right to be appointed as a Judge, but certainly if unanimous recommendation of judiciary through the CJI is not accepted by the President/Council of Ministers, if nothing else, at least the record will be put straight and possible damage to dignity, reputation and honour of person who was unanimously recommended by Collegium of Judges will be restored, at least to some extent

YD. Words and Phrases — “Consult” — Meaning of — Requisites of meaningful and effective consultation — What are — Held, for a meaningful consultation, both parties must have for consideration full and identical facts — “Consult” implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution — In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision

Held :

Per Khehar, J.

The respondents contended that despite the clear intent expressed during the Constituent Assembly Debates not to create an imperium in imperio, the Second and the Third Judges cases had done just that. It was submitted that in the process of selection and appointment of Judges to the higher judiciary being followed since 1993, Judges alone had been appointing Judges. It was also contended that the Constitution contemplates a system of checks and balances where each pillar of governance is controlled by checks and balances exercised by the other two pillars. It was repeatedly emphasised that in the present system of selection and appointment of Judges to the higher judiciary, the executive has no role whatsoever.

(Para 93)

The conclusions drawn by the majority view: in the Second Judges case are:

“(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.

(2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made.

(3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary “symbolised by the view of the Chief Justice of India”, and formed in the manner indicated, has primacy.

(4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.

(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made, as a healthy convention.

(6) Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office.

(7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices.

(8) Consent of the transferred Judge/Chief Justice is not required for either the first or any subsequent transfer from one High Court to another.

(9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground.

(10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in anyone.

(11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.

(12) The initial appointment of a Judge can be made to a High Court other than that for which the proposal was initiated.

(13) Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated.

(14) The majority opinion in S.P. Gupta insofar as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us.”

(Para 18)

The final summary of conclusions expressed in the Third Judges case, is:

“(1) The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles.

(2) The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.

(3) The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with two seniormost puisne Judges of the Supreme Court.

(4) The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment.

(5) The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the High Court concerned does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.

(6) “Strong cogent reasons” do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.

(7) The views of the Judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.

(8) The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India.

(9) Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of India.”

(Para 20)

Thus, in light of the above conclusions, it is not possible to accept the contention advanced at the hands of the respondents. Consequent upon the pronouncement of the judgments in the Second and the Third Judges cases, a Memorandum of Procedure for Appointment of Judges and Chief Justices to the Higher Judiciary was drawn by the Ministry of Law, Justice and Company Affairs on 30-6-1999. The Memorandum of Procedure aforementioned is available on the website of the above Ministry. The above Memorandum of Procedure has been examined, the Memorandum of Procedure provides for a participatory role to the judiciary as well as the political-executive. Each of the above components are responsible for contributing information, material and data with reference to the individual under consideration. While the judicial contribution is responsible for evaluating the individual's professional ability, the political-executive is tasked with the obligation to provide details about the individual's character and antecedents.

(Para 94)

(Memorandum of Procedure for High Court Judges); (Memorandum of Procedure for Supreme Court Judges), referred to

Our analysis of the Memorandum of Procedure reveals that the same contemplates inter alia the following steps for selection of High Court Judges:

(i) Step 1: The Chief Justice of the High Court concerned has the responsibility of communicating to the Chief Minister of the State names of persons concerned to be selected for appointment. Details are furnished to the Chief Minister in terms of the format appended to the Memorandum. Additionally, if the Chief Minister desires to recommend name(s) of person(s) for such appointment he must forward the same to the Chief Justice for his consideration.

(ii) Step 2: Before forwarding his recommendations to the Chief Minister, the Chief Justice must consult his senior colleagues comprised in the High Court Collegium regarding the suitability of the names proposed. The entire consultation must be in writing and these opinions must be sent to the Chief Minister along with the Chief Justice's recommendation.

(iii) Step 3: Copies of recommendations made by the Chief Justice of the High Court to the Chief Minister of the State concerned require to be endorsed to the Union Minister for Law and Justice, to the Governor of the State concerned and to the Chief Justice of India.

(iv) Step 4: Consequent upon the consideration of the names proposed by the Chief Justice, the Governor of the State concerned as advised by the Chief Minister would forward his recommendation along with the entire set of papers to the Union Minister for Law and Justice.

(v) Step 5: The Union Minister for Law and Justice would, at his own, consider the recommendations placed before him in the light of the reports as may be available to the Government in respect of the names under consideration. The proposed names would be subject to scrutiny at the hands of the Intelligence Bureau through the Union Ministry of Home Affairs. The Intelligence Bureau would opine on the integrity of the individuals under consideration.

(vi) Step 6: The entire material as is available with the Union Minister for Law and Justice would then be forwarded to the Chief Justice of India for his advice. The Chief Justice of India would in consultation with his senior colleagues comprised in the Supreme Court Collegium form his opinion with regard to the persons recommended for appointment.

(vii) Step 7: Based on the material made available and additionally the views of the Judges of the Supreme Court (who are conversant with the affairs of the High Court concerned), the Chief Justice of India in consultation with his Collegium of Judges would forward his recommendation to the Union Minister for Law and Justice. The abovenoted views of the Judges of the Supreme Court conversant with the affairs of the High Court are to be obtained in writing and are to be part of the compilation incorporating the recommendation.

(viii) Step 8: The Union Minister for Law and Justice would then put up the recommendation made by the Chief Justice of India to the Prime Minister who would examine the entire matter in consultation with the Union Minister for Law and Justice and advise the President in the matter of the proposed appointments.

(Para 95)

The actual consideration at the hands of the executive in the process of selection and appointment of High Court Judges in terms of the Memorandum of Procedure as well as the actual prevailing practice is as follows:

Steps 1 to 3 of the Memorandum of Procedure reveal that names of persons to be selected for appointment are forwarded to the Chief Minister and the Governor of the State concerned. On receipt of the names, the Chief Minister discharges the onerous responsibility to determine the suitability of the recommended candidate(s). Specially the suitability of the candidate(s) pertaining to integrity, social behaviour, political involvement and the like. Needless to mention that the Chief Minister of the State concerned has adequate machinery for providing such inputs. It would also be relevant to mention that the consideration at the hands of the Governor of the State concerned is also not an empty formality. For it is the Governor through whom the file processed by the Chief Minister is forwarded to the Union Minister for Law and Justice. There have been occasions when Governors of the State concerned have recorded their own impressions on the suitability of a recommended candidate in sharp contrast with the opinion expressed by the Chief Minister. Whether or not the Governors participate in the above exercise is quite a separate matter. All that needs to be recorded is that there are instances where Governors have actively participated in the process of selection of Judges to High Courts by providing necessary inputs. The record also bears testimony to the fact that the opinion expressed by the Governor had finally prevailed on a few occasions.

(Para 97)

The participation of the executive with reference to the consideration of a candidate recommended by the Chief Justice of the High Court continues further at the level of the Government of India. The matter of suitability of a candidate is also independently examined at the hands of the Union Minister for Law and Justice. The Ministry of Law and Justice has a standard procedure of seeking inputs through the Union Ministry of Home Affairs. Such inputs are made available by the Union Ministry for Home Affairs by having the integrity, social behaviour, political involvement and the like examined through the Intelligence Bureau. After the receipt of such inputs and the examination of the proposal at the hands of the Union Minister for Law and Justice, the file proceeds to the Chief Justice of India along with the details received from the quarters referred to above.

(Para 98)

After the Chief Justice of India in consultation with his Collegium of Judges recommends the candidate concerned for elevation to the High Court, the file is processed for a third time by the executive. On this occasion, at the level of the Prime Minister of India. During the course of the instant consideration also the participation of the executive is not an empty formality. Based on the inputs available to the Prime Minister, it is open to the executive to yet again return the file to the Chief Justice of India for a reconsideration of the proposal by enclosing material which may have escaped the notice of the Chief Justice of India and his Collegium of Judges. There have been occasions when the file returned to the Chief Justice of India for reconsideration has resulted in a revision of the view earlier taken by the Chief Justice of India and his Collegium of Judges. It is therefore clear that there is a complete comity of purpose between the judiciary and the political-executive in the matter of selection and appointment of High Court Judges. And between them there is clear transparency also. As views are exchanged in writing, views and counter-views are in black and white. Nothing happens secretly without the knowledge of the participating constitutional functionaries.

(Para 99)

It is not necessary to delineate the participation of the judiciary in the process of selection and appointment of Judges to the High Courts. The same is apparent from the steps contemplated in the Memorandum of Procedure as have been recorded above. Suffice it to state that it does not lie in the mouth of the respondents to contend that there is no executive participation in the process of selection and appointment of Judges to High Courts.

(Para 100)

The Memorandum of Procedure for selection of the Supreme Court Judges provides for a similar participatory role to the judiciary and the political-executive. The same is not being analysed herein for reasons of brevity. Suffice it to state that the same is also a joint exercise with a similar approach.

(Para 101)

Thus, it is not possible to accept that in the procedure contemplated under the Second and the Third Judges cases, Judges at their own select Judges to the higher judiciary or that the system of imperium in imperio has been created for appointment of Judges to the higher judiciary. It is also not possible to accept that the judgment in the Second Judges case has interfered with the process of selection and appointment of Judges to the higher judiciary by curtailing the participatory role of the executive in the constitutional scheme of checks and balances in view of the role of the executive fully described above. However, primacy in the matter of appointment of Judges to the higher judiciary remains with the Chief Justice of India and the same is based on the collective wisdom of a Collegium of Judges. There is no merit in the instant contention advanced at the hands of the respondents.

(Paras 102 and 301.5)

It is clearly erroneous for the respondents to contend that the consultative process postulated between the President with the other Judges of the Supreme Court or the High Courts in the States at the discretion of the President had been done away with by the Second and the Third Judges cases. Nothing of the sort. It has been and is still open to the President in his unfettered wisdom to resort to the consultation indicated in Article 124. Additionally, it is open to the President to rely on the same during the course of the mandatory “consultation” with the Chief Justice of India. The above further demonstrates the executive role in the selection of Judges to the higher judiciary, quite contrary to the submission advanced on behalf of the respondents.

(Para 110)

In fact, it is imperative, while taking into consideration the submissions advanced by the respondents to highlight that the role of appointment of Judges in consonance with the judgment rendered in the Second Judges case envisages the dual participation of the members of the judiciary as also the members of the executive. Therefore, in case of any failure, it is not only the judicial component but also the executive component which is jointly and equally responsible. Therefore, to single out the judiciary for criticism may not be a rightful reflection of the matter, as not in a single one of the instances referred to by the respondents of Judges who ought not to have been appointed had the political-executive objected to the elevation of the Judges referred to. Further, no allegation whatsoever was made by the respondents with reference to the Judges against whom objections were raised by the political-executive, and yet, they were appointed at the insistence of the Chief Justice under the Collegium System. The political-executive disposition despite the allegations levelled by the respondents in fact chose to grant post-retirement assignments to three of the four instances referred to above by the political-executive. In the above factual scenario, either the respondents had got it all wrong, and if they are right, the political-executive got it all wrong because it faltered despite being aware of the factual position highlighted.

(Paras 341 and 342.3 to 342.5)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), clarified and followed

Per Lokur, J.

In the appointment of Judges in our country, the first step is a recommendation (or nomination) of persons for appointment as Judges. Historically, the recommendation is made by the Chief Justice of India for the appointment of a Judge of the Supreme Court and by the Chief Justice of a High Court for appointment of a Judge to the High Court. Occasionally, the Chief Minister of a State also makes a recommendation, but that is required to be routed through the Chief Justice of the High Court. There is no instance of the President recommending any person for appointment as a Judge of the Supreme Court. A reading of the Memorandum of Procedure issued in compliance with the Second and Third Judges cases for the appointment of High Court Judges makes it explicit that a proposal recommending the appointment of a Judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend the name of any person he should forward the same to the Chief Justice for his consideration. Although it is not clearly spelt out, it is implicit that the Chief Justice is not obliged to accept the suggestion of the Chief Minister.

(Paras 742 and 567)

The second step is the appointment of a Judge and this is possible only through a consultative participatory process between the President and the Chief Justice of India. It is in this process that there has been some interpretational disagreement, but the Second Judges case and the Third Judges case have laid that to rest with a shared primacy and responsibility between the President and the Chief Justice of India.

(Para 743)

The third step is the issuance of a warrant of appointment (or commission). It is quite clear that the warrant of appointment can be issued only by the President. There is not and cannot be any dispute about this. Under the circumstances it is clear that the executive function of the President remains intact, and there is no scope for the recitation of the “Judges appointing Judges” mantra. It is perhaps this simple three-step process that the Constituent Assembly intended. But this got distorted over the years, thanks to the interference by the political-executive in the first and second steps.

(Paras 744 and 745)

What did the Second Judges case and the Third Judges case decide that should lead the political-executive to misunderstand the views expressed and misunderstand the law interpreted or call for a reconsideration of the law laid down? In essence, all that was decided was that the Chief Justice of India (in an individual capacity) could not recommend a person for appointment as a Judge, but must do so in consultation with the other Judges (and, if necessary, with non-Judges). Such a recommendation of the Chief Justice of India, if made unanimously, ought normally to be accepted by the President. However, the President can return the recommendation for reconsideration for strong and cogent reasons. If the Chief Justice of India (in consultation with the other Judges and unanimously) reiterates the recommendation, it should be accepted. On the other hand, a recommendation made by the Chief Justice of India, which is initially not unanimous, may not be accepted by the President. As pointed out by Justice Verma in an article, the President occasionally failed to exercise this particular constitutional power, for unknown reasons or due to a misunderstanding of the law laid down by the Supreme Court. The path taken by the Supreme Court in the Second and Third Judges cases was in consonance with the views of the Constituent Assembly, in that in the appointment of Judges, no constitutional functionary could act in an individual capacity but the Chief Justice of India and other Judges were well qualified to give the correct advice to the President in a matter of this sort, and that ought to be accepted as long as it was unanimous.

(Para 686)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), explained

The misunderstanding of the decision in the Second Judges case continues even today, especially by the political-executive. The misunderstanding is not due to any lack of clarity in the decision rendered by the Supreme Court but due to the discomfort in the “working of the judgment”. I say this because it was submitted by the respondents that the Second Judges case left the executive with no role (or no effective role) to play in the appointment of a Judge of the Supreme Court or the High Court particularly since the opinion of the executive is now rendered meaningless. Nothing can be further from the truth. The executive continues to have a vital role to play and in some cases, the final say in the appointment of a Judge—the misunderstanding of the judgment is due to the completely and regrettably defeatist attitude of the Union of India and the States or their view that in the matter of appointment of Judges, it is their way or the highway. The Constitution of India is a sacred document and not a Rubik's cube that can be manipulated and manoeuvred by the political-executive any which way only to suit its immediate needs.

(Para 545)

In an article found on the website of Tamil Nadu State Judicial Academy, Justice Verma adverted to the appointment process in the Second Judges case and the role of the executive and said that: “The clear language of the decision leaves no room for any doubt that the executive has a participatory role in these appointments; the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents, etc. are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial Collegium, if not unanimous, does not bind the executive to make the appointment. Some reported instances in the recent past of the executive failing to perform its duty by exercise of this power even when the recommendation of the judicial Collegium was not unanimous and the then President of India had returned it for reconsideration, are not only inexplicable but also a misapplication of the decision, which the CJI, Balakrishnan rightly says is binding during its validity. Such instances only prove the prophecy of Dr Rajendra Prasad that the Constitution will be as good as the people who work it. Have any system you like, its worth and efficacy will depend on the worth of the people who work it! It is, therefore, the working of the system that must be monitored to ensure transparency and accountability.”

(Para 546)

A little later in the article, Justice Verma says that: “The recent aberrations are in the application of the Second Judges case in making the appointments, and not because of it. This is what I had pointed out in my letter of 5-12-2005 to CJI, Y.K. Sabharwal with copy to the two seniormost Judges, who included the present CJI, K.G. Balakrishnan.”

(Para 546)

The misunderstanding is, therefore, of the political-executive and no one else. The political-executive has completely misunderstood the scope and impact of the Second Judges case and the working of the Collegium System.

(Para 547)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), clarified and followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, overruled

The Frontline, Vol. 25, Issue 20, 27-9-2008 to 10-10-2008; , referred to

Strangely, the Statement of Objects and Reasons of the Constitution (One Hundred and Twentieth Amendment) Bill, 2013 completely overlooked the fact that there already was “equal participation of the judiciary and the executive in the appointment of Judges to the superior judiciary”. In the Second Judges case it has been clearly, explicitly and unequivocally stated that:

“(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated “participatory consultative process” for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.”

However, in the event of a difference of opinion, one of the constitutional authorities must have the final say and given the constitutional convention over the decades, the final say ought to be with the Chief Justice of India, the head of the judiciary in India under certain circumstances and with the President under certain circumstances. Otherwise, a stalemate or deadlock situation could arise which the Constituent Assembly obviously did not anticipate from two constitutional functionaries. The Second Judges case and the Third Judges case gave this shared responsibility to the President and the Chief Justice of India. I am somewhat uncomfortable with the word “primacy” while dealing with the President and the Chief Justice of India. In the context of the appointment of Judges, the word “responsibility” used by the Law Commission of India in its 14th Report seems more appropriate.

(Para 588)

Following up on the decision and opinion rendered in the Second Judges case and the Third Judges case, the Minister for Law in the Government of India framed and prepared one Memorandum of Procedure for the appointment of Judges of the Supreme Court and another for the appointment of Judges of the High Court. These were shared with the Chief Justice of India. None of each of the successive Chief Justices of India have complained or criticised any of the Memoranda or adversely commented on them. No one, including any successive Law Minister of the Government of India, complained that the Memoranda were unworkable or caused any hindrance or delay in the appointment of Judges or did not correctly reflect the views of the Supreme Court in the Second Judges case and Third Judges case or that they did not conform to any provision of the Constitution, either in letter or in spirit or even otherwise. These Memoranda remained operational and the appointment of Judges to the superior judiciary made subsequent thereto has been in conformity with them. No one complained about the inability to effectively work any Memorandum of Procedure. The Memorandum of Procedure for the appointment of Judges of the Supreme Court and the High Court are available on the website of the Department of Justice of the Government of India and therefore it is not necessary to make a detailed mention of the procedure. Similar Memoranda have been referred in the Second Judges case by Pandian, J.

(Paras 565 and 566)

Therefore, during the evolution of the system of appointment of Judges four cobwebs were cleared in the Second and Third Judges cases. They were:

(i) The role of the President — he/she was expected to act on the advice of the Council of Ministers even in the appointment of Judges;

(ii) The initial recommendation for the appointment of a Judge of a High Court was to originate from the Chief Justice of the High Court and for the appointment of a Judge of the Supreme Court from the Chief Justice of India;

(iii) Consultation between the President and the Chief Justice of India is an integrated participative process with the result that the President has the final say in the appointment of a Judge under certain circumstances and the Chief Justice of India (in consultation with and on the unanimous view of the other Judges consulted by him/her) has the final say under certain circumstances; and

(iv) The Union of India accepted these propositions without hesitation in the Third Judges case.

(Para 569)

(Memorandum of Procedure for High Court Judges); (Memorandum of Procedure for Supreme Court Judges), referred to

For the appointment of a Judge of the Supreme Court, the Collegium of 5 (five) Judges must make a unanimous recommendation. The President is entitled to turn down a 4-1 or 3-2 recommendation. If the unanimous recommendation does not find favour with the President for strong and cogent reasons and is returned to the Collegium for reconsideration, and it is unanimously reiterated, then the President is obliged to accept the recommendation. However, if the reiteration is not unanimous, then the President is entitled to turn down the recommendation. The theory which the Constitution (One Hundred and Twentieth Amendment) Bill, 2013 [and subsequently the Constitution (One Hundred and Twenty-first Amendment) Bill, 2014] sought to demolish that “Judges appoint Judges” is non-existent.

(Para 588)

To say, as was conveyed during the hearing of this case, that the Collegium System has failed and that it needs replacement would not be a correct or a fair post-mortem. It is true that there has been criticism (sometimes scathing) of the decisions of the Collegium, but it must not be forgotten that the executive had an equally important participative role in the integrated process of the appointment of Judges. That the executive adopted a defeatist or an I-don't-care attitude is most unfortunate. The Collegium cannot be blamed for all the ills in the appointment of Judges—the political-executive has to share the blame equally if not more, since it mortgaged its constitutional responsibility of maintaining a check on what may be described as the erroneous decisions of the Collegium.

(Para 599)

To say that the executive had no role to play (as was suggested) is incorrect to say the least, as is clear from a close reading of the Second Judges case and the Third Judges case. Even the President did not think so. In fact, the President was clearly of the opinion that the executive or at least the Head of State had a role to play in the appointment of Judges. This is evident from an article titled “‘Merit’ in the Appointment of Judges” which quotes from an issue of India Today magazine of 25-1-1999.

(Para 600)

All that was needed to keep the Collegium System on the rails was the unstinted cooperation of the executive and an effective implementation strategy, with serious and meaningful introspection and perhaps some fine tuning and tweaking to make it more effective. Unfortunately, the executive did not respond positively, perhaps due to its misunderstanding of the decisions of the Supreme Court.

(Para 601)

How can the President ensure that the most deserving persons are appointed as Judges or that they are not denied appointment? This is the nub of the controversy and this is the problem that has vexed the executive, the judiciary, academia, the legal fraternity and civil society over several decades. Since justice delivery is undoubtedly the responsibility of the judiciary, therefore, the judiciary (symbolised as it were by the Chief Justice of India) is obliged to ensure that only the most deserving persons are considered for appointment as Judges.

(Para 758)

The word “consultation” has been used in Articles 124, 217 and 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India. For a meaningful consultation, both parties must have for consideration full and identical facts. The word “consult” implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision.

(Paras 563 and 564)

The process of consideration of a person for appointment as a Judge is important both at a stage prior to the recommendation being made by the Chief Justice of India in consultation with his/her colleagues, constituting a Collegium and also after the recommendation is sent by the Chief Justice of India to the executive. At both stages, the process is participatory. In the pre-recommendation stage, it is a participatory process involving the Chief Justice of India and his/her colleagues, constituting the Collegium. It is at this stage that the Chief Justice of India takes the opinion of the other Judges and anybody else, if deemed necessary. This stage also includes the participation of the executive because it is at this stage that the Chief Justice of India receives inputs from the executive about the frailties, if any, of a person who may eventually be appointed a Judge. In the post-recommendation stage also the process is participatory but primarily with the executive: in the event the executive has some objection to the appointment of a particular person for strong and cogent reasons to be recorded in writing. Therefore, when a person is considered for appointment as a Judge, there is extensive and intensive participatory consultation within the judiciary before the Chief Justice of India actually recommends a person for appointment as a Judge; and after the recommendation is made, there is consultation between the executive and the judiciary before the process is carried further. What can be a more meaningful “consultation” postulated by Article 124(2) of the Constitution?

(Para 759)

If a person is not recommended for appointment by the Chief Justice of India or the Chief Justice of a High Court, the chapter of his/her appointment closes at that stage. And, if there is no difference of opinion between the constitutional functionaries about the suitability of a person for appointment then, of course, there are no hurdles to the issuance of a warrant of appointment. The difficulty in considering and accepting a recommendation arises only if there is a difference of opinion during consultations between the executive and the judiciary. The Second Judges case effectively resolves this controversy.

(Paras 760 and 761)

At the pre-recommendation stage, it is quite possible that the executive is in possession of material regarding some personal trait or weakness of character of a lawyer or a Judge that is not known to the Chief Justice of India or the Chief Justice of the High Court and which may potentially disentitle that person from being appointed a Judge. It is then for the executive, as a consultant, to bring this information or material in its entirety, to the notice of the Chief Justice of India. Since the judiciary has the responsibility of recommending an appropriate candidate for appointment as a Judge, primacy is accorded to the view of the judiciary (symbolised by the view of the Chief Justice of India) that will weigh and objectively consider the material or information and take a final decision on the desirability of the appointment. The Chief Justice of India may, for good reason, accept the view of the executive or may, also for good reason, not accept the view of the executive. It is in this sense that “consultation” occurring in Articles 124(2) and 217(1) of the Constitution has to be understood. If the Chief Justice of India and others with whom he/she has discussed the matter conclude—unanimously—that the person ought to be appointed as a Judge of a High Court or the Supreme Court despite the antecedents, peculiarities and angularities, there can be no earthly reason why that collective view should not be accepted.

(Paras 762 and 692)

It is for the Chief Justice of India as the head of the judiciary to manage the justice-delivery system and it is for him/her to take the final call whether the antecedents or personal traits of a person will or will not interfere in the discharge of functions as a Judge or will, in any manner, impact on the potential of becoming a good Judge. As stated by Jack Straw when he was Lord Chancellor in the United Kingdom, what is important is that it is necessary to get it right the first time and every time. There can be a situation where the personal traits of a person may be such as to disqualify that person from being appointed as a Judge and there can be a situation where the personal traits, though objected to, would not have any impact whatsoever on the potential of that person becoming a good Judge. For example, in the recent past, there has been considerable debate and discussion, generally but not relating to the judiciary, with regard to issues of sexual orientation. It is possible that the executive might have an objection to the sexual orientation of a person being considered for appointment as a Judge but the Chief Justice of India may be of the opinion that that would have no impact on his/her ability to effectively discharge judicial functions or the potential of that person to be a good Judge. Australia and South Africa have had a gay Judge on the Bench. The present political-executive in India would perhaps not permit the appointment of a gay person to the Bench. In situations such as this, it is the opinion of the Chief Justice of India that should have greater weight since, as mentioned earlier, it is for the Chief Justice of India to efficiently and effectively manage the justice-delivery system and, therefore, the last word should be with the Chief Justice of India, unanimously expressed.

(Para 927)

The Chief Justice of India and the Chief Justice of the High Court are in the words of Verma, J. in the Second Judges case (SCC para 450), “best equipped to know and assess the worth of a candidate, and his suitability for appointment as a superior Judge”. In the event of a difference of opinion between the executive and the judiciary, the opinion of the Chief Justice of India should have the greatest weight. (This echoes Dr Ambedkar's view that consultation would be between persons who are well qualified to give advice in matters of this sort.) Therefore, since primacy is not with the executive, then in such a situation, it must lie with the Chief Justice of India. This certainly does not exclude the executive from the appointment process. The executive might be aware (unlike a Chief Justice) of some antecedents or some information relatable to the personal character or traits of a lawyer or a Judge which might have a bearing on the potential of a person becoming a good Judge. This might form the basis for rejecting a recommendation for the appointment of a person as a Judge by the Chief Justice of India.

(Paras 536.3 and 692)

By claiming absolute executive primacy, the respondents are, in effect, propagating the view that the President can exercise a veto on the proposal to appoint a Judge, even if that proposal has the approval of all other constitutional authorities. Such a view was not acceptable to Dr Ambedkar and the Constituent Assembly and it is impermissible to introduce it through the back door. The Chief Justice of India has no “right to insist” on an appointment nor does the President have the “right to reject” or a veto. The Constitution postulates a consultative and participatory process between the constitutional functionaries for appointing the “best” possible person as a Judge of a High Court or the Supreme Court. In this consultative process the final word is given, by a constitutional convention and practice developed over the years, to the Chief Justice of India since that constitutional functionary is best equipped to appreciate the requirements of effective justice delivery, to maintain the independence of the judiciary, to keep at bay external influences, “eliminate political influence even at the stage of initial appointment of a Judge” and as the head of the judiciary, his/her judgment ought to be trusted in this regard. That this could be characterised as a “right to insist” is not at all justified, nor can any voice of disagreement by the executive be construed as a “right to reject” or a veto. These expressions do not gel with the constitutional scheme or the responsibilities of constitutional functionaries.

(Para 685)

Why is it that limited primacy has been accorded to the judiciary? That the judiciary is the best suited to take a decision whether a person should be appointed a Judge or not is implicit in Articles 124(2) and 217(1) of the Constitution. In Article 124(2) of the Constitution, the President is mandated to consult the Chief Justice of India and “such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary”. That the President may choose to consult eminent persons from the legal fraternity or civil society is another matter, but the President is not required to do so. One of the possible reasons for this could be that the Constitution Framers were of the opinion that ultimately what is important is the opinion of Judges and not necessarily of others. Similarly, for the appointment of a Judge of the High Court under Article 217(1) of the Constitution, the President is required to consult the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court—again not anybody else from the legal fraternity or civil society.

(Para 763)

Similarly, limited primacy is accorded to the political-executive. In the event the judiciary does not make a unanimous recommendation for the appointment of a Judge of the Supreme Court or the High Courts, the President is entitled to turn down the recommendation. But if the recommendation is unanimous but returned for reconsideration by the President and thereafter unanimously reiterated by the judiciary, then the Council of Ministers is bound by the decision of the judiciary and must advise the President accordingly.

(Para 764)

It is inescapable that politics will have a role to play in the appointment process. However, if appointments are perceived to be made on the basis of political patronage there is a threat to (at least the appearance of) decisional independence. It is impossible—and undesirable—to remove the political entirely from the appointments process. Indeed, ‘political’ considerations, in the sense of responsibility and accountability for appointments, need to be intensified rather than obscured. What an appointments model should attempt to do is attenuate the direct influence of the political branch on the appointment process and subject its involvement in the appointment process to greater transparency and accountability, while preserving all the existing constitutional arrangements for ensuring decisional independence.

(Para 917)

The struggle for the independence of the judiciary has always been pivoted around the exclusion of the executive in decision-taking: there is a distinction between the Law Minister providing inputs to the Chief Justice of India and the Law Minister having a say in the final decision regarding the appointment of a Judge of a High Court or the Supreme Court. While the former certainly cannot be objected to and in fact would be necessary, it is the participation in the decision-taking process that is objectionable. In other words, the Law Minister might be a part of the decision-making process (as the position was prior to the 99th Constitution Amendment Act) but ought not to be a part of the decision-taking process. This distinction is quite crucial. The voting participation of the Law Minister in the decision-taking process goes against the grain of the debates in the Constituent Assembly and clearly amounts to an alteration of the basic structure of the Constitution.

(Para 921)

Since the Constitution is a flexible document, neither is the President nor the Chief Justice of India precluded from taking the advice of any person, lay or professional. It is also significant and important to note that in the Memoranda, consultation by the Judges in the Collegium with “non-Judges” for making an appointment to the Supreme Court is postulated and it is not prohibited for making an appointment to the High Court. That is to say, a Collegium Judge is not prohibited from taking the opinion of any person, either connected with the legal profession or otherwise for taking an informed decision regarding the suitability or otherwise of a person for appointment as a Judge of the High Court or the Supreme Court. That this is not unknown is clear from a categorical statement of Justice Verma in an interview that during his tenure as the CJI, he consulted senior lawyers belonging to the top level and even middle level.

(Paras 568 and 765)

The importance of the mandatory consultation is that there are two crucial factors to be carefully considered before a person is appointed as a Judge of the Supreme Court or a High Court. These are: (1) The professional skills, judicial potential, suitability and temperament of a person to be a good Judge, and (2) The personal strengths, weaknesses, habits and traits of that person. As far as the professional skills, judicial potential, suitability and temperament of a person being a good judge is concerned, the most appropriate person to make that assessment would be the Chief Justice of India (in consultation with the other Judges) and not somebody from outside the legal fraternity. On the other hand, as far as the personal strengths, weaknesses, habits and traits of a person are concerned, appropriate inputs can come only from the executive, since the Chief Justice of India and other Judges may not be aware of them. It is for this reason that the Constituent Assembly made it mandatory for consultation between the Chief Justice of India (as the Head of the Judiciary) having vital inputs on the potential of a person being a good Judge and the President (as the Head of State acting through the Council of Ministers with the Prime Minister as the Head of the Executive) being the best judge to assess the personal traits of a person being considered for appointment as a Judge. In other words, the Chief Justice of India is the “expert” with regard to potential while the executive is the “expert” with regard to the antecedents and personal traits. Since these two facets of the personality of a would-be Judge are undoubtedly distinct, there cannot be a difference of opinion between the judiciary and the executive in this regard since they both express an opinion on different facets of a person's life. The Chief Justice of India cannot comment upon the “expert opinion” of the executive nor can the executive comment upon the “expert opinion” of the Chief Justice of India.

(Para 926)

It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so. Article 124(2) of the Constitution placed the President and the Chief Justice of India on an equal pedestal. It is this that made the consultation between these two constitutional authorities meaningful and made one constitutional authority act as a check on the other. This was the “partnership approach” that the Constituent Assembly had in mind and this was given flesh and blood through “institutional participation” in the Second Judges case. The importance of the Second Judges case lies not so much in the shared responsibility but the “institutional participation” of the judiciary in the appointment process integrated with the participation of the President. This is now missing under the NJAC scheme.

(Paras 766 and 925)

The issue may be looked at from yet another angle. Assuming, the executive rejects the recommendation of the Chief Justice of India even after its unanimous reiteration, what is the solution to the impasse that is created? The answer is to be found in Samsher Singh case and reiterated in Sankalchand Sheth case. That in such an event, the decision of the executive is open to judicial scrutiny. It was held in Samsher Singh case that in all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. Of course, it is another matter that no one has a right to be appointed as a Judge, but certainly if the unanimous recommendation of the judiciary through the Chief Justice of India is not accepted by the President, if nothing else, at least the record will be put straight and the possible damage to the dignity, reputation and honour of the person who was recommended by the Chief Justice of India will be restored, at least to some extent.

(Para 769)

Moreover, though no one has a right to be appointed a Judge either of the Supreme Court or a High Court, it does not mean that the President can decline to appoint a person as a Judge without any rhyme or reason nor does it mean that the President can appoint any eligible person as a Judge. Under the Government of India Act, 1919 and the Government of India Act, 1935 the Crown had the unfettered discretion to do both or either. The Constituent Assembly did not give this unfettered power to the President and, therefore, mandated consultation between the President and the Chief Justice of India for the appointment of a Judge of the Supreme Court.

(Para 864)

Per Kurian Joseph, J.

The present Collegium System lacks transparency, accountability and objectivity. However, the fault is not wholly of the Collegium. The active silence of the executive in not preventing unworthy appointments has been actually one of the major problems. The Second and the Third Judges cases had provided effective tools in the hands of the executive to prevent such aberrations. Whether “Joint venture”, as observed by Chelameswar, J., or not, the executive seldom effectively used those tools.

(Paras 990 and 991)

Per A.K. Goel, J.

The Second Judges case took care of the ground realities in the light of the constitutional convention. Under the scheme of the Constitution a proposal for appointment to the Supreme Court must emanate from the CJI and for appointment to the High Court it should emanate from the Chief Justice of the High Court and the last word on appointment must rest with the CJI, by convention, proposals for appointments were always initiated by the judiciary and appointments were made with the concurrence of the CJI. It held that the CJI was better equipped to select the best Judges and to ensure that appointments were free from executive domination to inspire public confidence in impartiality, consistent with the principle of separation of the judiciary from the executive and also consistent with the spirit of the Constitution-Makers. The principle of primacy of the judiciary in the appointment of Judges was recognised and appointment of Judges was held to be integral to the independence of the judiciary. To check arbitrary exercise of power by any individual, it was made mandatory that the Chief Justices consult senior Judges. Thus, primacy of the judiciary in the appointment of Judges was recognised in initiating proposal as well as in taking final decision. However, participation of the executive in giving inputs by suggesting names before the proposal was initiated or giving feedback even after the proposal was initiated was permissible. It was noted that right from beginning of the Constitution, all the proposals for appointments were always initiated by the Chief Justices.

(Paras 1000 and 1064)

The scheme of appointment and transfer of Judges in force prior to the 99th Amendment is set out in two Memoranda dated 30-6-1999 issued by the Government of India — first for appointment of the Chief Justice of India (CJI) and Judges of the Supreme Court and second for appointment and transfer of Chief Justices and the Judges of the High Courts. The above Memoranda were issued by the Government of India in the light of unamended constitutional provisions and the Second and Third Judges cases.

(Paras 994 and 1000)

Broadly, the procedure laid down in the first Memorandum is that appointment to the office of CJI should be of the seniormost Judge of the Supreme Court considered fit to hold the office. For this purpose, recommendation is sought from the outgoing CJI and if there is doubt about the fitness of the seniormost Judge, consultation is made with the other Judges under Article 124(2). Thereafter, the Law Minister puts up the matter to the Prime Minister (PM) who advises the President. After approval of the President, the appointment is notified. For appointment as Judges of the Supreme Court, the CJI initiates the proposal and forwards his recommendation to the Union Minister of Law who puts up the matter to the PM, who in turn advises the President. Opinion of the CJI is formed in consultation with four seniormost Judges and if the successor CJI is not in the said four seniormost Judges, he is also made part of the Collegium. CJI also ascertains the views of the seniormost Judge in the Supreme Court who hails from the High Court from where a person recommended comes. Opinions in respect of the recommendation are in writing and are transmitted to the Government of India for record. If the views of non-Judges are solicited, a memorandum thereof and its substance is conveyed to the Government of India. Once appointment is approved by the President of India, certificate of physical fitness is obtained and after the warrant of appointment is signed by the President, the appointment is announced and a notification issued in the Gazette of India.

(Para 995)

The procedure laid down in the second Memorandum deals with the appointments to the High Courts and transfers. The Chief Justices of the High Courts are appointed from outside. Inter se seniority in a particular High Court is considered for appointment as Chief Justice from that High Court. Initiation of proposal for appointment of Chief Justice of a High Court is by the CJI. The CJI consults two seniormost Judges of the Supreme Court and also ascertains the views of his seniormost colleague in the Supreme Court who is conversant with the affairs of the High Court in which the recommendee has been functioning and whose opinion is likely to be significant in adjudging the suitability of the candidate. The views of the Judges are sent along with the proposal of the Union Minister of Law who obtains the views of the State Government concerned and then submits the proposal to the PM who advises the President. As soon as appointment is approved by the President, notification is issued in the Gazette of India.

(Para 996)

As regards the appointment of a Judge of the High Court, the Chief Justice of the High Court communicates to the Chief Minister his views, after consulting two of his seniormost colleagues regarding suitability of the person to be selected. All consultations must be in writing and these opinions are sent to the Chief Minister, along with the recommendation. If the Chief Minister desires to recommend a name, he has to forward the same to the Chief Justice for his consideration. A copy of the recommendation is also sent to the CJI and the Union Law Minister. The Chief Minister advises the Governor who forwards his recommendation to the Law Minister. The Law Minister considers the recommendation in the light of such other reports (such as IB report) as may be available to the Government and then forwards the material to the CJI. CJI consults two seniormost Judges and also takes into account the views of the Chief Justice and Judges of the High Court (consulted by the Chief Justice) and those Judges of the Supreme Court who are conversant with the affairs of the candidate. Thereafter the CJI sends the recommendation to the Union Law Minister along with the correspondence with his colleagues. If the Law Minister considers it expedient to refer back the name for opinion of the State constitutional authorities, opinion of the CJI must be obtained. The Law Minister then puts up the recommendation to the PM who advises the President. The correspondence between the Chief Justice, the Chief Minister and Governor inter se is in writing. As soon as the appointment is approved by the President, physical fitness is ascertained and as soon as warrant of appointment is signed by the President, notification is issued in the Gazette of India.

(Para 997)

Proposal for transfer is initiated by the CJI. Consent of the Judge concerned is not necessary. The CJI consults four seniormost Judges of the Supreme Court and takes into account the views of the Chief Justice of the High Court from which the Judge is to be transferred and Chief Justice of the High Court to which the transfer is to be effected. CJI also takes into account the views of one or more Supreme Court Judges who are in a position to offer his/their views. The views are expressed in writing, and are considered by the CJI and four seniormost Judges. The personal facts relating to the Judge and his response to the proposal are invariably taken into account. The proposal is then referred to the Government. The Law Minister submits the recommendation to the PM who advises the President. After the President approves the transfer, a notification is issued in the Official Gazette.

(Para 998)

Even assuming that there is a scope for improvement in the working of the Collegium System, it cannot be held that under the existing system there is no transparency or checks and balances. The procedure laid down in Memoranda issued by the Central Government has been noted above. All proceedings in initiating a proposal are in writing and are forwarded to the constitutional functionaries. The Chief Minister, the Governor, the Law Minister, the PM and the President have opportunity to give their views in the matter of appointment of Chief Justices and Judges of High Courts, apart from Judges and non-Judges involved in the process. The Law Minister, the PM and the President also have opportunity to give their comment on appointment of CJI and the Judges of the Supreme Court. There is also an opportunity to suggest names before initiation of proposal. There is no bar to an expert feedback from civil society through the constitutional functionaries involved. Thus, there is transparency as well as checks and balances. These considerations do not justify interference with the final initiation of proposal by the judiciary or in taking a final view in the matter by the judiciary, consistent with the mandate of the Constitution.

(Para 1106)

Per Chelameswar, J.

Consultation with the Chief Justice of India in Articles 124 and 217 was interpreted in the Second Judges case as conferring primacy to the opinion of CJI. Consultation with the CJI was held to be a part of a design of the Constituent Assembly to deny unfettered authority (to the Union Executive) to appoint Judges of the constitutional courts. The Constituent Assembly did not choose to vest such controlling power in Parliament to which the executive is otherwise accountable under the scheme of the Constitution. The Supreme Court, therefore, concluded that without primacy to the opinion of CJI the whole consultation process contemplated under Articles 124 and 217 would only become ornamental enabling the executive to make appointments in its absolute discretion, most likely based on considerations of political expediency. Such a process would be antithetical to the constitutional goal of establishing an independent judiciary. However, Verma, J. categorically declared (Second Judges case & 692-93, paras 438 & 450) that the debate on primacy is intended to determine, who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner's prize at the end of the debate. The indication was, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word ‘consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to anyone, not even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts.

(Para 1164)

The Supreme Court in the Second Judges case also indicated the circumstances in which the President of India would be constitutionally justified in not acting in accordance with the opinion expressed by the CJI. The Supreme Court never held that consultation means concurrence as is sought to be interpreted in some quarters and even in the stated Objects and Reasons for the 99th Amendment!

(Para 1165)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), clarified

The executive with a vast administrative machinery under its control is capable of making enormous and valuable contribution to the selection process. The Constituent Assembly emphatically declined to repose exclusive trust even in the CJI. To wholly eliminate the executive from the process of selection would be inconsistent with the foundational premise that the Government in a democracy is by chosen representatives of the people. Under the scheme of our Constitution, the executive is chartered clear authority to administer critical areas such as defence of the realm, internal security, maintenance of public order, taxation, management of fiscal policies and a host of other aspects, touching every aspect of the administration of the Nation and lives of its people. In this context, to hold that it should be totally excluded from the process of appointing Judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy. Such exclusion has no parallel in any other democracy whose models were examined by the Constituent Assembly and none other were brought to our notice either. Established principles of constitutional government, practices in other democratic constitutional arrangements and the fact that the Constituent Assembly provided a role for the executive clearly prohibit the inference that Executive participation in the selection process abrogates a basic feature. The respondents are right in their submission that exclusion of the Executive Branch is destructive of the basic feature of checks and balances—a fundamental principle in constitutional theory.

(Para 1218)

6. Primacy only of the Unanimous Collegium of Judges

YE. Constitution of India — Arts. 124(2), 217(1) & 222(1) — Appointment of Judges of Supreme Court and High Courts and transfer of Judges/Chief Justices of High Courts — Opinion of Collegium of Judges headed by the CJI when binding on President/Council of Ministers and when not binding — Under Collegium System laid down in Second and Third Judges cases, held, it is only the unanimous opinion of the Collegium of Judges i.e. the CJI and four seniormost Judges for appointment of Supreme Court Judges, and the CJI and two seniormost Judges for appointment of High Court Judges, which binds the President/Council of Ministers — An opinion of the Collegium of Judges which is not unanimous, does not bind the President/Council of Ministers — Further held, failure of President/Council of Ministers to exercise this power of non-acceptance of recommendation/reiteration of recommendation by Collegium of Judges when it is not unanimous, is a big reason that Collegium System has not worked as well as it might have [see also in detail under Shortnotes YB and YF]

Held :

Per Khehar, J.

In the matter of appointment of Judges to the higher judiciary as also in the matter of their transfer, primacy in the decision-making process inevitably rests with the Chief Justice of India, as expressed on the basis of the collective wisdom of a Collegium of Judges.

(Paras 126, 302 and 301.5)

It is surprising that the Chief Justice of India on account of the position he holds as paterfamilias of the judicial fraternity, and on account of the serious issues that come up for judicial adjudication before him, which have immeasurable political and financial consequences, besides issues of far-reaching public interest, was suspected by none other than Dr B.R. Ambedkar during the course of the Constituent Assembly Debates when he declined to accept the suggestions made by some Members of the Constituent Assembly that the selection and appointment of Judges to the higher judiciary should be made with the “concurrence” of the Chief Justice of India, by observing that even though the Chief Justice of India was a very eminent person, he was after all just a man with all the failings, all the sentiments, and all the prejudices, which common people have. And therefore, the Constituent Assembly did not leave it to the individual wisdom of the Chief Justice of India but required consultation with a plurality of Judges by including in the consultative process (at the discretion of the President of India) not only Judges of the Supreme Court of India but also Judges of the High Courts (in addition to the mandatory consultation with the Chief Justice of India).

(Para 309)

This has been crystallised into law in the Second Judges case, which was then clarified in the Third Judges case, at Ed.: Paras (1) to (9), already quoted above on pp. 98b to 99a below Shortnote YD..

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), clarified and followed

Per Lokur, J.

The Constituent Assembly was opposed to the concurrence of the Chief Justice of India (as an individual) in respect of every appointment of a Judge. The Second Judges case made it mandatory for the Chief Justice of India to take the opinion of other Judges and also left it open to the Chief Justice of India to consult persons other than Judges in this regard. The opinion of the Chief Justice of India ceased to be an individual opinion but became a collective or institutional opinion, there being a great deal of difference between the two. The Constituent Assembly was not prepared to accept the opinion of the Chief Justice of India (as an individual) as the final word in the appointment of Judges. This is because the Chief Justice of India has frailties like all of us. The apprehension of the Constituent Assembly was allayed by the Second Judges case and the Third Judges case which make it mandatory for the Chief Justice of India to express a collective opinion and not an individual opinion. The collective and unanimous opinion (duly reiterated if necessary) would bind the President being the collective and unanimous opinion of persons who are ex hypothesi “well qualified to give proper advice in matters of this sort”.

(Paras 538, 539, 543, 966 and 967)

The Collegium was broadened in the Third Judges case to consist of the Chief Justice of India and four seniormost Judges rather than the two seniormost Judges as concluded in the Second Judges case, wherein it was inter alia held:

“(1) The expression ‘consultation with the Chief Justice of India’ in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of the said articles.

***

(3) The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two seniormost puisne Judges of the Supreme Court.

(4) The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment.

***

(9) Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of India.”

These conclusions, especially Conclusion (9), are important, but seem to have been ignored or overlooked by the President.

(Paras 549 to 551)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), explained and followed

The Chief Justice of India and other Judges are undoubtedly well qualified to give proper advice with regard to the knowledge, ability, competence and suitability of a person to be appointed as a Judge of a High Court of the Supreme Court. There is no reason, therefore, why the opinion of the Chief Justice of India taken along with the opinion of other Judges should not be accepted by the executive, which is certainly not better qualified to make an assessment in this regard. However, it is possible that the executive may be in possession of some information about some aspect of a particular person which may not be known to the Chief Justice of India and the entire material should be made available to the Chief Justice of India leaving it to him/her to decide whether the person recommended for appointment meets the requirement for being appointed a Judge or not, despite any antecedents, peculiarities and angularities. If the Chief Justice of India and others with whom he/she has discussed the matter conclude—unanimously—that the person ought to be appointed as a Judge of a High Court or the Supreme Court despite the antecedents, peculiarities and angularities, there can be no earthly reason why that collective view should not be accepted.

(Para 692)

From the debates of the Constituent Assembly it is evident that the Constituent Assembly's objection was to the suggestion that only the Chief Justice of India (as an individual) should have the final say in the matter. There is nothing to suggest that the Constituent Assembly had any objection to an integrated consultative participatory process as laid down in the Second Judges case and the Third Judges case or, what may be termed “institutional participation” in the matter of appointment of Judges. The objection only was to one person (the President or the Chief Justice of India) having a final say in the matter and that one person (the Chief Justice of India) could possibly suffer from the same frailties as any one of us and this is what Dr Ambedkar sought to emphasise in his objection. If the thinking at that time was that the President was to act only on the advice of the Council of Ministers (and not as an individual having unfettered discretion) there can today possibly be no objection to the Chief Justice of India acting institutionally on the views of his/her colleagues and not, as desired by the Constituent Assembly, as an individual. Thus, the President cannot act in an individual capacity (except to a limited extent), and the Chief Justice of India cannot act in an individual capacity (except to a limited extent).

(Para 693)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench); Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench), followed

Article 124(2) of the Constitution placed the President and the Chief Justice of India on an equal pedestal. It is this that made the consultation between these two constitutional authorities meaningful and made one constitutional authority act as a check on the other. This was the “partnership approach” that the Constituent Assembly had in mind and this was given flesh and blood through “institutional participation” in the Second Judges case. The importance of the Second Judges case lies not so much in the shared responsibility but the “institutional participation” of the judiciary in the appointment process integrated with the participation of the President. This is now missing under the NJAC scheme.

(Para 925)

Primacy of the opinion of the Chief Justice of India is not to his/her individual opinion but to the collective opinion of the Chief Justice of India and his/her senior colleagues or those who are associated with the function of appointment of Judges. Therefore, the President may not accept the recommendation of a person for appointment as a Judge, if the recommendation of the Chief Justice of India is not supported by the unanimous opinion of the other senior judges. The President may return for reconsideration a unanimous recommendation for good reasons. However, in the latter event, if the Chief Justice of India and the other Judges consulted by him/her, unanimously reiterate the recommendation “with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made”. (The key word here is unanimous—both at the stage of the initial recommendation and at the stage of reiteration.)

(Para 536.4)

Thus, to conclude, Second Judges case and the Third Judges case decided that the Chief Justice of India (in an individual capacity) could not recommend a person for appointment as a Judge, but must do so in consultation with the other Judges (and, if necessary, with non-Judges). Such a recommendation of the Chief Justice of India, if made unanimously, ought normally to be accepted by the President. However, the President can return the recommendation for reconsideration for strong and cogent reasons. If the Chief Justice of India (in consultation with the other Judges and unanimously) reiterates the recommendation, it should be accepted. On the other hand, a recommendation made by the Chief Justice of India, which is initially not unanimous, may not be accepted by the President. However, the President occasionally failed to exercise this particular constitutional power, for unknown reasons or due to a misunderstanding of the law laid down by the Supreme Court. The path taken by the Supreme Court was in consonance with the views of the Constituent Assembly, in that in the appointment of Judges, no constitutional functionary could act in an individual capacity but the Chief Justice of India and other Judges were well qualified to give the correct advice to the President in a matter of this sort, and that ought to be accepted as long as it was unanimous.

(Para 686)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), explained

Per Kurian Joseph, J.

The Third Judges case, in 1998, is only an explanatory extension of the working of the principles in the Second Judges case by institutionalising the procedure of appointment, introducing the Collegium. Thus, the structural supremacy of the judiciary in the constitutionally allotted sphere was restored by the Second and the Third Judges cases.

(Paras 973 and 974)

7. Deficiencies in and improving the Collegium System and Consequential orders for drafting of revised Memoranda of Procedure for Appointment of Judges

YF. Constitution of India — Arts.. 124(2), 217(1) & 222(1) — Appointment of Judges of Supreme Court and High Courts and transfer of Judges/Chief Justices of High Courts — Collegium System laid down in Second and Third Judges cases — Criticism and fault-finding allegations made against the working of, considered — Views of experts both praising Collegium System and finding fault with it, shortcomings in and suggestions for reform of, taken on record

— As Collegium System envisages dual participation of the judiciary as also the executive, joint and equal responsibility of executive along with that of judiciary, posited — A lot depends on the kind of people who work the Constitution

— Matter listed for further hearing on how Collegium System may be reformed — Further hearings held from 3-11-2015 until final order on 16-12-2015 — Suggestions invited for reform from the Bar and the public — Approximately 11,000 pgs. of suggestions received — Finally, in light of directions and practice commenced in Second Judges case itself that the Memorandum of Procedure and introduction of amendments therein, had always been formulated by the Government of India in consultation with the President of India and the CJI, directed that Government of India may finalise the existing Memorandum of Procedure by supplementing it in consultation with the CJI — The CJI will take a decision based on the unanimous view of the Collegium comprising the four seniormost puisne Judges of the Supreme Court — Certain guidelines given, but held, said guidelines are only broad suggestions for consideration and supplementing the Memorandum of Procedure for the faithful implementation of the principles laid down in Second and Third Judges cases — [For detailed working of Collegium System see Shortnotes C and X to YE] [For Orders of the Court See p. 131; paras 1255 to 1257]

Held :

Per Khehar, J.

During the course of hearing, the respondents made some references to past appointments to the Supreme Court so as to trumpet the accusation that the Collegium System had not functioned efficiently inasmuch as persons of the nature referred to by the respondents came to be selected and appointed as Judges of the Supreme Court. In a manner as would be in tune with the dignity of the Supreme Court, the respondents had not referred to any of the Judge(s) by name. Their reference was by deeds. Each and every individual present in the court-hall was aware of the identity of the Judge concerned in the manner the submissions were advanced. The projection by the respondents was joyfully projected by the print and electronic media, extensively highlighting the allusions canvassed by the respondents.

(Para 337)

If our memory serves us right, the respondents had made a reference to the improper appointment of three Judges to the Supreme Court. One would have felt, without going into the merits of the charge, that finding fault with just three Judges despite the appointment of over a hundred Judges to the Supreme Court since the implementation of the judgment rendered in the Second Judges case (pronounced on 6-10-1993) — M.K. Mukherjee, J., being the first Judge appointed under the Collegium System on 14-12-1993, and B.N. Kirpal, C.J., the first Chief Justice thereunder, having been appointed as Judge of the Supreme Court on 11-9-1995 under the Collegium System should be considered as no mean achievement.

(Para 338)

The first on the list of the respondents was a Judge who, according to him, had hardly delivered any judgments, both during the period he remained a Judge and Chief Justice of different High Courts in the country, as also, the period during which he remained a Judge of the Supreme Court. The failure of the Collegium System was attributed to the fact that such a person would have been weeded out if a meaningful procedure had been in place. And despite his above disposition, the Judge concerned was further elevated to the Supreme Court. The second instance was in respect of a Judge who did not abide by any time schedule. It was asserted that the Judge was inevitably late in commencing court proceedings. It was the respondents' contention that past experience with reference to the said Judge indicated a similar demeanour as a Judge of different High Courts and as Chief Justice of one High Court. It was lamented that the above behaviour was not sufficient in the process adopted under the Collegium System to reject the Judge from elevation to the Supreme Court. The third Judge was described as an individual who was habitually tweeting his views on the internet. The respondents described him as an individual unworthy of the exalted position of a Judge of the Supreme Court and yet the Collegium System had supported his appointment to the Supreme Court.

(Para 339)

Other pointed assertions include those of wrongful appointments including a reference to a Judge of the Supreme Court who had allegedly taken on his board a case which was not assigned to his roster. It was alleged that he had disposed of the case wrongfully. Before the above contention is considered, it is necessary to notice that the charge levelled does not relate to an allegedly improper selection and appointment. The accusation is limited to the wrongful determination of “one” case. Insofar as the instant aspect of the matter is concerned, it is necessary to notice that a review petition came to be filed against the alleged improper order passed by the said Judge. The same was dismissed. After the Judge demitted office, a curative petition was filed wherein the alleged improper order passed by the Judge concerned was assailed. The same was also dismissed. Even thereafter, a petition was filed against the Judge concerned by impleading him as a party-respondent. The said petition was also dismissed. No more needs to be said with reference to the particular case allegedly wrongly decided by the Judge concerned.

(Para 340)

It is imperative, while taking into consideration the submissions advanced by the respondents to highlight that the role of appointment of Judges in consonance with the judgment rendered in the Second Judges case envisages the dual participation of the members of the judiciary as also the members of the executive. Therefore, in case of any failure, it is not only the judicial component but also the executive component which is jointly and equally responsible. Therefore, to single out the judiciary for criticism may not be a rightful reflection of the matter.

(Para 341)

It is not within our realm to express our agreement or disagreement with the contentions advanced at the hands of the respondents. The respondents may well be right in their own perception, but the misgivings pointed out by them may not be of much significance in the perception of others, specially those who fully appreciate the working of the judicial system. The misgivings pointed out by the respondents need to be viewed in the background of the following considerations:

(i) Firstly, the allegations levelled against the Judges in question do not depict any lack of ability in the discharge of judicial responsibility. Surely, that is the main consideration to be taken into account at the time of selection and appointment of an individual as a Judge at the level of the higher judiciary.

(ii) Secondly, none of the misgivings expressed on behalf of the respondents are referable to integrity and misdemeanour. Another aspect which cannot be compromised at the time of selection of an individual as a Judge at the level of the higher judiciary. Nothing wrong on this front also.

(iii) Thirdly, not in a single of the instances referred to above, had the political-executive objected to the elevation of the Judges referred to. This is said because on our asking we were furnished with the details of those who had been elevated, despite objections at the hands of the Union-executive. None of the Judges referred to figured in that list.

(iv) Fourthly, no allegation whatsoever was made by the respondents with reference to the Judges against whom objections were raised by the political-executive, and yet, they were appointed at the insistence of the Chief Justice under the Collegium System.

(v) Fifthly, that the political-executive disposition despite the allegations levelled by the respondents chose to grant post-retirement assignments to three of the four instances referred to above by the political-executive. In the above factual scenario, either the respondents had got it all wrong, and if they are right, the political-executive got it all wrong because it faltered despite being aware of the factual position highlighted.

(vi) Lastly, it has not been possible to comprehend how and why a Judge who commenced to tweet his views after his retirement can be considered to be unworthy of elevation. The fact that the Judge concerned started tweeting his views after his retirement is not in dispute. The inclusion of this instance may well demonstrate that all in all the functioning of the Collegium System may well not be as bad as it is shown to be.

(Paras 342.1 to 342.6)

The submissions advanced by the respondents were not limited just to the instance of Judges of the Supreme Court. They expressed strong views about persons like Maya Kodnani, a former Gujarat Minister, convicted in a riots case for having been granted relief while an allegedly renowned activist Teesta Setalvad had to run from pillar to post to get anticipatory bail. They also made a reference to convicted politicians and film stars who had been granted relief by two different High Courts as also by the Supreme Court. It was their lament that whilst film stars and politicians were being granted immediate relief by the higher judiciary, commoners suffered for years. They attributed all this to the defective selection process in vogue which had resulted in the appointment of “bad Judges”. They repeatedly emphasised that victims of the 1984 anti-Sikh riots in Delhi and the 2002 anti-Muslim riots in Gujarat had not got any justice. It was their contention that Judges selected and appointed through the process presently in vogue were to blame. They also expressed the view that the appointed Judges were oblivious of violations of human rights. It was submitted that it was shameful that courts of law could not deliver justice to those whose fundamental and human rights had been violated.

(Para 343)

It is necessary to emphasise that under every system of law there are two sides to every litigation. Only one of which succeeds. The question of how a matter has been decided would always be an issue of debate. The party who succeeds would feel justice had been done. While the party that loses would complain that justice had been denied. In the judicial process, there are a set of remedies that are available to the parties concerned. The process contemplates culmination of proceedings at the level of the Supreme Court. Once the process has run the full circle, it is indeed futile to allege any wrongdoing except on the basis of adequate material to show otherwise. Not that the Supreme Court is always right, but that there has to be a closure.

(Para 344)

Most of the instances illustratively mentioned above pertained to criminal prosecutions. The adjudication of such controversies is dependent on the adequacy of evidence produced by the prosecution. The nature of the allegations (truthful, or otherwise) have an important bearing on the interim relief(s) sought by the parties. The blame for passing (or not passing) the desired orders does not therefore per se rest on the will of the adjudicating Judge but the quality and authenticity of the evidence produced and the nature of the allegations. Once all remedies available stand exhausted, it does not lie in the mouth of either the litigant or the counsel concerned to imply motives without placing on record any further material. It also needs to be recorded that while making the above insinuations, the respondents did not make a pointed reference to any High Court Judge by name nor was it possible to identify any such Judge merely on the basis of the submissions advanced unlike the instances with reference to the Judges of the Supreme Court. In the above view of the matter, it is not possible to infer that there are serious infirmities in the matter of selection and appointment of Judges to the higher judiciary under the prevailing Collegium System on the basis of the submissions advanced before this Bench.

(Para 344)

It is apparent that the respondents had their say without any limitations. That was essential to appreciate the misgivings in the prevailing procedure of selection and appointment of Judges to the higher judiciary. All their submissions have been recorded (hopefully) in terms of the contentions advanced, even in the absence of supporting pleadings. We will be failing in discharging our responsibility if we do not refer to the parting words of the respondents' counsel, who having regained his breath after his outburst, did finally concede that still a majority of the Judges appointed to the High Courts and the Supreme Court were/are outstanding and a miniscule minority were “bad Judges”. All in all, a substantial emotional variation from how he had commenced. One can only conclude by observing that individual failings of men who are involved in the actual functioning of the executive, the legislature and the judiciary, do not necessarily lead to the inference that the system which selects them and assigns to them their role is defective.

(Para 345)

Per Lokur, J.

The National Commission to Review the Working of the Constitution as well as a responsible Judge from the House of Lords were of the opinion that the procedure for appointment of Judges as laid down in the Second Judges case and the Third Judges case broadly serves the purpose of maintaining the independence of the judiciary and providing a suitable method for appointment of Judges of the superior courts. This is not to say that the Collegium System is perfect. Hardly so. During the course of hearing, some critical comments were made with regard to the appointment of some Judges to the Supreme Court which, it was submitted by the respondents would not have been possible were it not for the failure of the Collegium System. Even the petitioners were critical of the Collegium System. However, anguish must be expressed at the manner in which an “attack” was launched by some learned counsel appearing for the respondents. It was vitriolic at times, lacking discretion and wholly unnecessary. But personal opinions do not matter.

(Paras 594.10, 595 and 836)

Denigrating Judges is the easiest thing to do—they cannot fight back—and the surest way to ensure that the judiciary loses its independence and the people lose confidence in the judiciary, which is hardly advisable. The Bar has an equal (if not greater) stake in the independence of the judiciary and the silence of the Bar at relevant moments is inexplicable. The solution, in the larger canvas, is a democratic audit, an audit limited to the judiciary and the Rule of Law. If some positive developments can be incorporated in the justice delivery system (in the larger context) they should be so incorporated.

(Para 595)

In this context, it is interesting to recall the words of Dr Ambedkar on the working of the Constitution (CAD Vol. 11, p. 975) that however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution.

(Para 596)

Both the “absolute executive primacy” system or the “ultimate power” theory and the Collegium System of appointment of Judges of the Supreme Court and the High Courts were acceptable systems in their time. The “executive primacy” system was, unfortunately, abused by the executive and the judiciary could do precious little about it, bound as the Judges are by the Rule of Law. It is because of this abuse that the constitutional provisions were revisited at the instance of the Bar of the Supreme Court and the revisit gave the correct interpretational insight into our constitutional history and the constitutional provisions. It is this insight that resulted in the Second Judges case and a meaningful and pragmatic interpretation of the Constitution. That the Second Judges case was correctly decided by the majority was accepted in the Third Judges case by the then Attorney General and, what is more important, by the President (aided and advised by the Council of Ministers) who did not seek a reversal of the dicta laid down in the Second Judges case.

(Paras 597 and 598)

In fact, an independent and impartial jurist, Lord Templeman (of the British House of Lords) praised the integrated consultative Collegium System and recommended it as a method that the British could follow with advantage—but there are other eminent persons who are critical of the Second Judges case. The learned Judge wrote:

“However, having regard to the earlier experience in India of attempts by the executive to influence the personalities and attitudes of members of the judiciary, and having regard to the successful attempts made in Pakistan to control the judiciary, and having regard to the unfortunate results of the appointment of the Supreme Court Judges of the United States by the President subject to approval by Congress, the majority decision of the Supreme Court of India in the Second Judges case marks a welcome assertion of the independence of the judiciary and is the best method of obtaining appointments of integrity and quality, a precedent method which the British could follow with advantage.”

While others shower praise on our system of appointment of Judges, we can only heap scorn!

(Paras 601, 602 and 836)

; M.P. Singh, “‘Merit’ in the appointment of Judges”, (1999) 8 SCC J-1; B.N. Kirpal, Supreme But Not Infallible, Essays in Honour of the Supreme Court of India (Oxford University Press, 2000) 48, 53, referred to

This is not to say that the Second Judges case and the Third Judges case do not leave any gaps. Perhaps better institutionalisation and fine tuning and filling in the gaps of the scheme laid down in these decisions is required, but nothing more.

(Para 699)

On 22-2-2000 the Government of India issued a notification setting up a National Commission to Review the Working of the Constitution (NCRWC), including the procedure for the appointment of Judges of the superior judiciary. On 26-9-2001 an Advisory Panel of NCRWC issued a Consultation Paper on Superior Judiciary. The Consultation Paper acknowledged that the Second Judges case and the Third Judges case “speaking broadly” served the purpose of the Constitution (Sixty-seventh Amendment) Bill and that “much of the expectations from a National Judicial Commission (NJC) have been met”. The shortfalls in expectations were not specified in the Paper except that of the disciplinary jurisdiction which did not arise and was not dealt with in the Second Judges case or the Third Judges case. However, it is important to note that a dispassionate jurist Lord Templeman, a member of the House of Lords held the view that the system of appointment of Judges in India ought to be followed in England as well. Apart from him, the system of appointment of Judges laid down by these decisions “has been hailed by several jurists and is held out as a precedent worthy of emulation”. Pursuant to the recommendations of NCRWC, the Constitution (Ninety-eighth Amendment) Bill, 2003 was introduced in Parliament on or about 8-5-2003. Which proposed the insertion of Chapter IV-A in the Constitution consisting of one article, namely, Article 147-A. This Article related to the establishment of NJC.

(Paras 575 to 578, 580 and 582)

The Consultation Paper can be found on the website of the Law Ministry. last accessed 2-5-2015, referred to

The result of the declaration herein of the constitutional invalidity of the NJAC scheme in its entirety, is that the Collegium System postulated by the Second Judges case and the Third Judges case gets revived. However, the procedure for appointment of Judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning. Under the circumstances, there is a need to have a “consequence hearing” to assist this Bench in the matter for steps to be taken in the future to streamline the process and procedure of appointment of Judges, to make it more responsive to the needs of the people, to make it more transparent and in tune with societal needs, and more particularly, to avoid a fifth Judges case! Hence, the petitions are allowed but they are to be listed for a “consequence hearing” on an appropriate date.

(Para 969)

Per Kurian Joseph, J.

All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium System lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium System, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons; social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the Collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the Framers of the Constitution. Though one would not like to go into a detailed analysis of the reasons, it is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system. It is a curable situation yet.

(Para 990)

There is no healthy system in practice. No doubt, the fault is not wholly of the Collegium. The active silence of the executive in not preventing unworthy appointments was actually one of the major problems. The Second and the Third Judges cases had provided effective tools in the hands of the executive to prevent such aberrations. Whether “Joint venture”, as observed by Chelameswar, J., or not, the executive seldom effectively used those tools. Therefore, the Collegium System needs to be improved requiring a “glasnost” and a “perestroika”, and hence the case needs to be heard further in this regard.

(Para 991)

Per A.K. Goel, J.

Any perceived shortcoming in the working of the existing mechanism of appointment of Judges cannot by itself justify alteration or damage of the existing scheme once it is held to be part of the basic features of the Constitution. Even a good system may have shortcomings in its working on account of individual failures. It may be mentioned that criticism of working may be levelled against working of every organ of the Constitution including the executive and the legislature, and while all efforts must be continuously made to bring about improvement in every sphere, the basic scheme set up by the Constitution cannot be given a go-by on that ground. It is not necessary to comment upon how good or bad any constitutional authorities have performed in discharge of their duties or how good or bad the judiciary has performed, as the limited question for consideration of the Court is to identify and retain the basic structure of the Constitution in appointment of Judges. The improvement in working of the existing system of appointment of Judges can be the subject-matter of separate consideration which is being proposed but certainly without giving a go-by to the basic feature of the Constitution of independence of the judiciary.

(Paras 1068 and 1069)

The shortcomings in working of every institution may need to be removed by constant efforts constitutionally permissible but cannot justify the altering of the framework of the Constitution or the same being damaged. The criticism against perceived shortcomings in the working of the Collegium System also does not justify the impugned provisions of the NJAC Scheme. There may be criticism even against discharging of judicial functions by the aggrieved parties or otherwise. But that does not justify interference with the judicial decisions. Needless to say that criticism can be against the working of any system but the systems can be changed only as per the Constitution. Efforts to improve all systems have to be continuously made.

(Paras 1096 and 1107)

P. Sambamurthy v. State of A.P., (1987) 1 SCC 362, relied on

Amrik Singh Lyallpuri v. Union of India, (2011) 6 SCC 535, affirmed

Since the Collegium System existing prior to the amendment will stand revived on the 99th Amendment being struck down and grievances have been expressed about its functioning, such grievances ought to be considered. It is made clear that grievances have not been expressed by the petitioners about the existence of the pre-existing Collegium System of appointment but about its functioning in practice. It has been argued that the Supreme Court can go into this aspect without revisiting the earlier decisions of the larger Benches. The matter is to be listed for consideration of the surviving issue of grievances as to working of the pre-existing Collegium System.

(Paras 1111 and 1112)

Per Chelameswar, J.

Judges who can decide causes brought before them expeditiously and consistent with applicable principles of jurisprudence, generate confidence, in litigants and the polity that they indeed dispense justice. Whether the appointment process prior to the 99th Amendment yielded such appointments has been deeply contentious. As submitted by the respondents, the history of appointments to the constitutional courts in our Republic could be divided into two phases— pre and post-the Second Judges case. No doubt during both phases, the appointment process yielded mixed results, on the index of both independence and efficiency of the resulting judiciary. Some outstanding and some not so outstanding persona came to be appointed in both phases. Allegations of seriously unworthy appointments abound but our system provides for no mechanism for audit or qualitative analysis. Such systemic deficit has pathological consequences.

(Para 1208)

We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy? Are we nearing such ethical and constitutional disorder that frightened civil society runs back to Mother Nature or some other less wholesome authority to discipline us? Has all the independence acquired by the judicial branch since 6-10-1993 been a myth — a euphemism for nepotism enabling inter alia promotion of mediocrity or even less occasionally—are questions at the heart of the debate in this batch of cases.

(Para 1113)

There are conflicting opinions (see the articles of Lord Templeman's favourable opinion and the critical view of Lord Cooke of Thorndon published in the book titled Supreme But Not Infallible (Oxford University Press — 2000 AD) regarding the jurisprudential soundness of the judgment of the Second Judges case. However, it is not necessary to examine that aspect of the matter for the purpose of determining the present controversy. After some 20 years of the working of the regime created under the Second Judges case, serious questions have arisen whether the regime emanating as a consequence of the interpretation placed by the Supreme Court in the Second Judges case, yielded any constitutionally aspired result of the establishment of an independent and efficient judiciary—the constitutional courts. The answer regarding the independence can be subjective and efficiency perhaps may not be very pleasant. Within a few years doubts arose regarding the true purport of the Second Judges case. The President of India invoked Article 143 and sought certain clarifications on the judgment of the Second Judges case leading to the opinion of the Supreme Court in Special Reference No. 1 of 1998, In re (the Third Judges case). Unfortunately, the factual matrix on which doubts were entertained by the Government of India are not recorded in the opinion. But para 41 of the Third Judges case records:

“41. … We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case and this opinion.”

(Paras 1166 to 1168)

No wonder, gossip and speculations gather momentum and currency in such a state of affairs. If a nine-Judge Bench of the Supreme Court takes an optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case, the only logical inference that can be drawn is that the law laid down by the Second Judges case was not faithfully followed by the successive Chief Justices, if not in all, at least in some cases attracting comments. Instead of Ministers, Judges patronised. In the next one-and-a-half decade, this Nation has witnessed many unpleasant events connected with judicial appointments, events which lend credence to the speculation that the Collegium System established by the Second and the Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary.

(Paras 1169 and 1170)

Two events are part of the record of the Supreme Court and can be quoted without attracting the accusation of being irresponsible and unconcerned about the sanctity of the institution. These events led to the decisions in Shanti Bhushan, (2009) 1 SCC 657 and in P.D. Dinakaran (1), (2011) 8 SCC 380 and P.D. Dinakaran (2), (2011) 8 SCC 474. While the first of the said two events pertains to the appointment of a Judge of the Madras High Court, the second pertains to the recommendation made by the CJI (Collegium) regarding elevation of the Chief Justice of a High Court to the Supreme Court. The dispute in Shanti Bhushan case was regarding appointment of a permanent Judge to the Madras High Court. The allegation appears to be that the procedure indicated in the Second and the Third Judges cases had not been followed. The expression appears to be is used because it is difficult to identify what was the exact pleading in the case. It is only by inference that such a conclusion can be reached. Even the conclusion recorded by the Supreme Court does not really throw any light. In para 22 of the judgment of the Supreme Court it is recorded as follows: (Shanti Bhushan case)

“22. The position is almost undisputed that on 17-3-2005 the then Chief Justice of India recommended for extension of term of 8 out of 9 persons named as Additional Judges for a further period of four months w.e.f. 3-4-2005. On 29-4-2005 the Collegium including the then Chief Justice of India was of the view that name of Respondent 2 cannot be recommended along with another Judge for confirmation as permanent Judge. Since it is crystal clear that the Judges are not concerned with any political angle if there be any in the matter of appointment as Additional Judge or permanent Judge; the then Chief Justice should have stuck to the view expressed by the Collegium and should not have been swayed by the views of the Government to recommend extension of the term of Respondent 2 for one year; as it amounts to surrender of primacy by jugglery of words.”

(Paras 1171 and 1172)

Even if the controversial statements made (in the recent past) with regard to the appointment in question in the case, by persons who held high constitutional offices and played some role in the appointment process including former Members of the Supreme Court, are ignored, the judgment leaves sufficient scope for believing that all did not go well with the appointment. It appears to have been a joint venture in the subversion of the law laid down by the Second and the Third Judges cases by both the executive and the judiciary, which neither party is willing to acknowledge. The grievance of the petitioners in that case appears to be that “… the Collegium was not consulted. …” Unfortunately, there is no precise finding in this regard in the said judgment. On the other hand, the content of para 22 of the judgment leaves an uncomfortable feeling that there was some departure from the law perhaps under some political pressure. I wish that I were wrong.

(Paras 1172 and 1173)

The second event is a recommendation made by the then CJI apparently with the concurrence of the Collegium for elevation of the petitioner. [See P.D. Dinakaran (1) case and P.D. Dinakaran (2) case.] The recommendation did not fructify. Serious allegations of unsuitability of the candidate whose name was recommended/surfaced leading to a great deal of public debate. It is unpleasant to recount those allegations. They are recorded in the abovementioned two judgments. There is no allegation of any failure on the part of the Collegium to comply with the procedure laid down in the Second and the Third Judges cases in making the ill-fated recommendation. But, the recommendation certainly exposed the shallowness (at least for once) of the theory propounded by the Supreme Court in the trilogy of cases commencing from S.P. Gupta case (the First Judges case) and ending with the Third Judges case that the CJI and the Collegium are the most appropriate authorities to make an assessment of the suitability of the candidates for appointment as the Judges of the constitutional courts in this country. A few more instances were mentioned at the Bar during the course of hearing to demonstrate not only the shallowness of the theory but also that the recommendations by the Collegium have not necessarily always been in the best interests of the institution and the nation. It is not really necessary to place on record all the details but it is sufficient to mention that the earlier mentioned two cases are not certainly the only examples of the inappropriate exercise of the power of the Collegium.

(Para 1174)

Furthermore, it is recorded in “An Independent Judiciary” — Speech delivered by Ms Justice Ruma Pal (a former Supreme Court Judge) at the 5th V.M. Tarkunde Memorial Lecture on 10-11-2011:

“As I have said elsewhere the process by which a Judge is appointed to a superior court is one of the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a Judge. A chance remark, a rumour or even third-hand information may be sufficient to damn a Judge's prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus within the Collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”

(Para 1170)

It is true that a few bad examples of the improper exercise of the power does not determine the character of the power. Such inappropriate exercise of the power was resorted to also by the executive (as already noticed earlier). Both branches of Government are accusing each other of not being worthy of trust. At least a section of the civil society believes that both are right. The impugned 99th Amendment came in the backdrop of the abovementioned experience.

(Paras 1170 and 1175)

Shanti Bhushan v. Union of India, (2009) 1 SCC 657; P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380; P.D. Dinakaran (2) v. Judges Inquiry Committee, (2011) 8 SCC 474 : (2012) 1 SCC (L&S) 246, relied on

Iyer, V.R. Krishna, “Judiciary: A reform agenda — II”, The Hindu (online Edn.) 15-8-2002; “An Independent Judiciary” — Speech delivered by Ms Ruma Pal, J. at the 5th V.M. Tarkunde Memorial Lecture on 10-11-2011; Mehta, Pratap Bhanu, “Whom do you trust”, The Indian Express, 14-5-2015, relied on

The fiasco created in Dinakaran case and Shanti Bhushan case and the maladies involved in the process pointed out by Justice Ruma Pal in the 5th Tarkunde Lecture on 10-11-2011, are not the only cases where the system failed. It is a matter of public record that in the last 20 years, after the advent of the Collegium System, a number of recommendations made by the Collegia of the High Courts came to be rejected by the Collegium of the Supreme Court. There are also cases where the Collegium of the Supreme Court quickly retraced its steps having rejected the recommendations of a particular name made by the High Court Collegium giving scope for a great deal of speculation as to the factors which must have weighed with the Collegium to make such a quick volte face. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the Judges of the Supreme Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.

(Para 1236)

Bhim Singhji v. Union of India, (1981) 1 SCC 166; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 (Five-Judge Bench), referred to

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1; Webb v. Outrim, 1907 AC 81 (PC); Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd., (1920) 28 CLR 129 (Aust), referred to

“An Independent Judiciary” — speech delivered by Ms Ruma Pal, J. at the 5th V.M. Tarkunde Memorial Lecture on 10-11-2011, referred to

Only an independent and efficient judicial system can create confidence in the society which it serves. The ever increasing pendency of matters before various constitutional courts of this country is clearly not a certificate of efficiency. The frequency with which the residuary jurisdiction of the Supreme Court under Article 136 is invoked seeking correction of errors committed by the High Courts, some of which are trivial and some profound coupled with bewildering number of conflicting decisions rendered by the various Benches of the Supreme Court only indicate that a comprehensive reform of the system is overdue. Selection process of the Judges to the constitutional courts is only one of the aspect of such reforms. An attempt in that direction, unfortunately, has failed to secure the approval of the Supreme Court leaving the Supreme Court with the sole responsibility and exclusive accountability of the efficiency of the legal system. I only part with this case recollecting the words of Macaulay — “reform that you may preserve”. The future alone can tell whether I am rightly reminded of those words or not.

(Para 1238)

Orders of the Court for drafting of revised Memoranda of Procedure for Appointment of Judges dated 3-11-2015, 5-11-2015, 19-11-2015 and 16-12-2015

Directed :

Per curiam

Though initially this Bench took it upon itself to draft the revised Memoranda, but in light of directions in and practice which had commenced after the Second Judges case, that the Memorandum of Procedure and introducing amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India, it is directed that the Government of India may finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the Collegium comprising the four seniormost puisne Judges of the Supreme Court. They shall take the following factors into consideration:

(i) Eligibility criteria: The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the Collegium (both at the level of the High Court and the Supreme Court) for the appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time.

(ii) Transparency in the appointment process: The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the Collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges.

(iii) Secretariat: In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities.

(iv) Complaints: The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge.

(v) Miscellaneous: The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the Collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.

It is made clear that the guidelines mentioned above are only broad suggestions for consideration and supplementing the Memorandum of Procedure for the faithful implementation of the principles laid down in Second Judges case and Third Judges case.

(Paras 1239; 1255 to 1257)

8. Primacy of Judiciary in Appointment of Judges, is completely in consonance with views of the Constituent Assembly

YG. Constitution of India — Arts. 124(2), 217(1) and 222(1) — “Consultation” with the CJI mandated upon President/Council of Ministers for appointment and transfer of Judges, under Arts. 124(2), 217(1) and 222(1) — Meaning and nature of — Intention of Constituent Assembly — Express refusal of Constituent Assembly to adopt word “concurrence”, instead finally adopting word “consultation” — Import of — Ruling in Second and Third Judges cases that “consultation” with CJI meant that final unanimous opinion of Collegium of Judges headed by CJI is binding on President/Council of Ministers, held (per majority), is completely in accord with intention of Constituent Assembly in this regard, as is evident particularly from concluding remarks of Dr Ambedkar in his speech dt. 24-5-1949 in Constituent Assembly on what was finally enacted as Art. 124

YH. Constitutional Interpretation — Aids to Construction — External Aids — Constituent Assembly Debates — Extent to which may be relied on to interpret the Constitution — Law summarised (per Lokur, J.)

Held :

Per Khehar, J.

It is not essential to refer to individual views of the members of the Constituent Assembly and the view expressed at the end of the debate on the draft Article 124 by Dr B.R. Ambedkar would be sufficient to understand what had prevailed, and why. Suffice it to state that during the course of the Constituent Assembly Debates it was expressly proposed that the term “consultation” employed in what are now Articles 124 and 217 be substituted by the word “concurrence”. The proposed amendment was however rejected by Dr B.R. Ambedkar. Despite the above, it was contended by the respondents that the Supreme Court in the Second and the Third Judges cases has interpreted the word “consultation” in clause (2) of Article 124 and clause (1) of Article 217 as vesting primacy in the judiciary, something that was expressly rejected during the Constituent Assembly Debate. Therefore, the contention advanced on behalf of the respondents is that the Supreme Court had interpreted the above provisions by turning the Constituent Assembly's intent and resolve on its head. It was submitted that the erroneous interpretation recorded in the Second Judges case was writ large even on a cursory examination of the Debates.

(Para 104)

It would suffice for examining the above contention to extract a relevant part of the response of Dr B.R. Ambedkar in his speech dated 24-5-1949 to the abovenoted amendments in the provisions noted above: (CAD Vol. 8, p. 258)

“[1] Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. The first is, how are the Judges of the Supreme Court to be appointed? Now, grouping the different amendments which are related to this particular matter, I find three different proposals. The first proposal is that the Judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. That is one view. The other view is that the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament; and the third suggestion is that they should be appointed in consultation with the Council of States. With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, offices of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.

[2] With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.”

(Para 105) (emphasis supplied)

Dr B.R. Ambedkar had further stated thus: (CAD Vol. 8, p. 397)

“[3] Finally, B.R. Ambedkar said.—Mr President, Sir, I would just like to make a few observations in order to clear the position. Sir, there is no doubt that the House in general has agreed that the independence of the Judiciary from the Executive should be made as clear and definite as we could make it by law. At the same time, there is the fear that in the name of the independence of the Judiciary, we might be creating, what my Friend Mr T.T. Krishnamachari very aptly called an ‘imperium in imperio’. We do not want to create an imperium in imperio, and at the same time we want to give the Judiciary ample independence so that it can act without fear or favour of the Executive. My friends, if they will carefully examine the provisions of the new amendment which I have proposed in place of the original Article 122, will find that the new article proposes to steer a middle course. It refuses to create an imperium in imperio, and I think it gives the Judiciary as much independence as is necessary for the purpose of administering justice without fear or favour.”

(Para 42) (emphasis supplied)

It can be seen that Dr B.R. Ambedkar in the above extracts expressed in unequivocal terms that the unanimous opinion of the Constituent Assembly was that “our judiciary must be independent of the executive”. The same sentiment was expressed by Dr B.R. Ambedkar while responding to K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar and Anathasayanam Ayyangar (in extracted para [3], above) wherein he emphasised, that “… there is no doubt that the House in general, has agreed that the independence of the judiciary, from the executive should be made as clear and definite as we could make it by law…”. The above assertion made while debating the issue of appointment of Judges to the Supreme Court effectively acknowledges that the appointment of Judges to the higher judiciary has a direct nexus to the issue of “independence of the judiciary”. It therefore, does not lie in the mouth of the respondents to assert that the subject of “appointment” would not fall within the domain/realm of “independence of the judiciary”.

(Paras 106 and 301.2)

It is important to notice that Dr Ambedkar rejected both the systems where appointments to the higher judiciary were made by the executive as well as by the legislature. Dr B.R. Ambedkar therefore, very clearly concluded the issue by expressing that it would be improper to leave the appointments of Judges to the Supreme Court to be made by the President— the executive (i.e. on the aid and advice of the Council of Ministers, headed by the Prime Minister). In the words of Dr B.R. Ambedkar it would be dangerous to leave such appointments in the hands of the executive of the day without any kind of reservation and limitation. Hence, the word “consultation” expressed in what are now Articles 124 and 217 was contemplated by the Constituent Assembly to curtail the free will of the executive. If that was the true intent, the word “consultation” could never be assigned its ordinary dictionary meaning, and Article 124 (or Article 217) could never be meant to be read with Article 74. It is therefore not possible to accept that the main voice in the matter of selection and appointment of Judges to the higher judiciary is that of the President (expressed in the manner contemplated under Article 74). Nor is it possible to accept that primacy in the instant matter rests with the executive. Nor that the judiciary has been assigned a role in the matter which was not contemplated by the provisions of the Constitution. It is misconceived for the respondents to assert that the determination of the Supreme Court in the Second and the Third Judges cases was not interpretative in nature but was factually legislative. Dr B.R. Ambedkar, therefore rejected for the same reasons the proposal that appointments of Judges to the Supreme Court should be made by the legislature. But the reason he expressed in this behalf was most apt, namely, the procedure of appointing Judges, by seeking a vote of approval by one or the other (or both) House(s) of Parliament would be cumbersome. More importantly, Dr B.R. Ambedkar was suspicious and distrustful of the possibility of the appointments being directed and impacted by “political pressure” and “political consideration”, if the legislature was involved. Thus, when the Constituent Assembly used the term “consultation” in the above provisions its intent was to limit the participatory role of the political-executive in the matter of appointments of Judges to the higher judiciary.

(Paras 107 and 301.2)

It was the view of Dr B.R. Ambedkar that the draft Articles 124 and 217 had adopted a middle course by not making the President—the executive “the supreme and absolute authority in the matter of making appointments” of Judges. And also by keeping out the legislators for their obvious political inclinations and biases which render them unsuitable for shouldering the responsibility. Thus, that the judgments in the Second and the Third Judges cases cannot be blamed for not assigning a dictionary meaning to the term “consultation”. If the real purpose sought to be achieved by the term “consultation” is to shield the selection and appointment of Judges to the higher judiciary from executive and political involvement, certainly the term “consultation” is meant to be understood as something more than a mere “consultation”.

(Para 108)

It is clear from the observations of Dr B.R. Ambedkar that the President—the executive is required by the provisions of the draft Article 124 to consult “… persons, who were ex hypothesi, well qualified to give proper advice on the matter of appointment of Judges to the Supreme Court”. The response of Dr B.R. Ambedkar in a singular paragraph [extracted para [1], above], leaves no room for any doubt that what became Article 124, in the manner it was debated, was clearly meant to propound, that the matter of appointments of Judges was an integral part of the independence of the judiciary. The process contemplated for appointment of Judges therefore has to be understood to be such as would be guarded/shielded from political pressure and political considerations.

(Para 109)

Extracted para [3] from the speech of Dr Ambedkar, above also leaves no room for any doubt that the Constituent Assembly did not desire to confer the Chief Justice of India with a veto power to make appointments of Judges. It is therefore that a consultative process was contemplated under Article 124 as it was originally drafted. The same mandated consultation not only with the Chief Justice of India but with other Judges of the Supreme Court and the High Courts. Viewed closely, the judgments in the Second and the Third Judges cases were rendered in a manner as would give complete effect to the observations made by the Constituent Assembly with reference to what became Article 124 (as originally incorporated).

(Para 110)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), clarified and followed

Thus the entire discussion and logic expressed during the debates of the Constituent Assembly can be given effect to by reading the term “consultation” as vesting primacy with the judiciary in the appointment of Judges. Further, the Constituent Assembly Debates support the conclusions drawn in the Second and Third Judges cases of which review is being sought.

(Para 110)

Per Lokur, J.

It is quite clear that the overwhelming view in different decisions rendered by the Supreme Court and in other jurisdictions as well is that:

(i) A reference may be made to CAD or to Parliamentary Debates (as indeed to any other “relevant material”) to understand the context in which the constitutional or statutory provisions were framed and to gather the intent of the law-makers but only if there is some ambiguity or uncertainty or incongruity or obscurity in the language of the provision. A reference to CAD or the Parliamentary Debates ought not to be made only because they are there;

(ii) CAD or Parliamentary Debates ought not to be relied upon to interpret the provisions of the Constitution or the statute if there is no ambiguity in the language used. These provisions ought to be interpreted independently—or at least, if reference is made to CAD or Parliamentary Debates, the Court should not be unduly influenced by the speeches made. Confirmation of the interpretation may be sought from CAD or the Parliamentary Debates but not vice versa.

(Para 647)

A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 (Six-Judge Bench); State of Travancore-Cochin v. Bombay Co. Ltd., 1952 SCR 1112 : AIR 1952 SC 366 (Five-Judge Bench); Golak Nath v. State of Punjab, (1967) 2 SCR 762 : AIR 1967 SC 1643 (Eleven-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Union of India v. H.S. Dhillon, (1971) 2 SCC 779; Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 (Nine-Judge Bench); Manoj Narula v. Union of India, (2014) 9 SCC 1 (Five-Judge Bench); Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., 1975 AC 591 : (1975) 2 WLR 513 : (1975) 1 All ER 810 (HL); Special Reference No. 1 of 2002, In re (Gujarat Assembly Election Matter), (2002) 8 SCC 237 (Five-Judge Bench); State v. Makwanyane, 1995 ZACC 3 : (1995) 3 SA 391 (CC) (Eleven-Judge Bench), followed

S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126, affirmed

Administrator General of Bengal v. Prem Lal Mullick, 1895 SCC OnLine PC 3 : (1894-95) 22 IA 107; T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (Eleven-Judge Bench), considered

United States v. Trans-Missouri Freight Assn., 1897 SCC OnLine US SC 83 : 41 L Ed 1007 : 166 US 290 (1897); Pepper v. Hart, 1993 AC 593 : (1992) 3 WLR 1032 : (1993) 1 All ER 42 (HL), cited

It is quite clear that the Constituent Assembly was of the view that constitutional obligations and constitutional conventions must be respected, unwritten though they may be. And, one of these constitutional obligations and constitutional conventions is that the view of the judiciary must be respected by the executive not only with respect to judicial decisions but also in other matters that directly impact the independence of the judiciary.

(Paras 459 and 460)

In the extracted paras [2] and [3], above [see under opinion of Khehar, J.], Dr Ambedkar in his speech dated 24-5-1949 was quite clear that there could be no difference of opinion that the judiciary should be independent of the executive, yet competent. He was of the view that it would be “dangerous” to leave the appointment of Judges to the President without any reservation or limitation, that is to say, merely on the advice of the executive of the day. He was quite clear that the executive was not to have primacy in the appointment process nor did he want the President to have unfettered discretion to accept or reject the advice of the executive or act on his/her own. As far as the concurrence of the Legislature is concerned, Dr Ambedkar felt that the process would be cumbrous with the possibility of political pressure and considerations. It is in this context that Dr Ambedkar said that he was steering a middle course and was not prepared to grant a veto to the President (rejecting the advice of the executive or acting on his/her own) in the appointment of Judges, executive primacy having already been rejected by him. Under the circumstances, he felt that “this sort of provision (consultation with the Chief Justice of India) may be regarded as sufficient for the moment”. With regard to the “concurrence” of the Chief Justice of India (as against “consultation” with the Chief Justice of India) in the appointment of a Judge of the Supreme Court, Dr Ambedkar was of the opinion that the Chief Justice, despite his eminence, had all the failings, sentiments and prejudices of common people and to confer on him a power of veto, which is not vested in the President or the Government of the day (that is the executive), would be a “dangerous proposition”. Dr Ambedkar was of the view that neither the President nor the Government of the day (the executive) nor the Chief Justice of India should have the final word in the matter of the appointment of Judges. Who then would have the final say in the event of a difference of opinion between the President or the Government of the day or the Chief Justice of India on the appointment of a particular person as a Judge? Dr Ambedkar did not directly address this question since he did not visualise a stalemate arising in this regard.

(Paras 466 to 469)

The Constituent Assembly was well aware of the misuse and abuse of power by the executive, having fought for our freedom and knew and understood the value of an independent judiciary. It is for this reason that the Constituent Assembly gave prime importance to the independence of the judiciary and perhaps spent more time debating it than any other topic. Granville Austin points out that the subjects that loomed largest in the minds of Assembly members when framing the judicial provisions were the independence of the courts and two closely related issues, the powers of the Supreme Court and judicial review. The Assembly went to great lengths to ensure that the courts would be independent, devoting more hours of debate to this subject than to almost any other aspect of the provisions. If the beacon of the judiciary was to remain bright, the courts must be above reproach, free from coercion and from political influence.

(Paras 727 and 932)

It is quite clear from the observations of Dr Ambedkar in the Constituent Assembly Debates that the endeavour of Dr Ambedkar was to ensure the independence of the judiciary from the executive without creating any power imbalance and this, therefore, needed steering a middle course whether in the appointment of Judges or the officers of the Supreme Court. There can be no doubt about this at all.

(Para 652)

Dr Ambedkar and the Constituent Assembly did not accept the “unfettered discretion” theory in the Constituent Assembly Debates but this view was subsequently rejected in the First Judges case which brought in the “ultimate power” theory propounded by Bhagwati, J. and Desai, J. Executive interference in the appointment process (with perhaps an informal method of “take over”) had started around the time of Independence and got aggravated post Independence, peaking towards the end of the 1980s after the ruling in the First Judges case.

(Paras 594.5 and 594.6)

It is trite that the Constitution is a living document. Keeping this in mind, it cannot be said that a strained interpretation has been given to Articles 124(2) and 217(1) of the Constitution in the Second and Third Judges cases, despite the fact that the substitution of “consultation” with “concurrence” in the draft of Article 124 was discussed in the Constituent Assembly and not accepted. This is so particularly if one looks at the context in which “consultation” is used and the purpose for which it is used, namely, to fetter the discretion of the President by someone who knows what is in the best interests of the judiciary.

(Para 773)

Dr Ambedkar was of the view that the President should have some discretion but not unfettered discretion in the appointment of Judges. The Second Judges case acknowledged that the President has the discretion to turn down a recommendation made by the Chief Justice of India, but only under certain circumstances. This was the fetter on the discretion of the President. Dr Ambedkar was of the view that the President should have the discretion to consult Judges of the Supreme Court and the High Courts in respect of a recommendation for appointment by the Chief Justice of India. The President was presented, by the Second Judges case and the Third Judges case, with the result of the consultation exercise carried out by the Chief Justice of India which the Chief Justice of India was mandated to do. It is over and above this that the President was entitled to consult other Judges of the Supreme Court or the High Courts.

(Paras 964 and 965)

By claiming absolute executive primacy, the respondents are, in effect, propagating the view that the President can exercise a veto on the proposal to appoint a Judge, even if that proposal has the approval of all other constitutional authorities. Such a view was not acceptable to Dr Ambedkar and the Constituent Assembly and it is impermissible to introduce it through the back door. The Chief Justice of India has no “right to insist” on an appointment nor does the President have the “right to reject” or a veto. The Constitution postulates a consultative and participatory process between the constitutional functionaries for appointing the “best” possible person as a Judge of a High Court or the Supreme Court. In this consultative process the final word is given, by a constitutional convention and practice developed over the years, to the Chief Justice of India since that constitutional functionary is best equipped to appreciate the requirements of effective justice delivery, to maintain the independence of the judiciary, to keep at bay external influences, “eliminate political influence even at the stage of initial appointment of a Judge” and as the head of the judiciary, his/her judgment ought to be trusted in this regard. That this could be characterised as a “right to insist” is not at all justified, nor can any voice of disagreement by the executive be construed as a “right to reject” or a veto. These expressions do not gel with the constitutional scheme or the responsibilities of constitutional functionaries.

(Para 685)

Per A.K. Goel, J.

As regards the contention that there was a patent error in the earlier decisions, the Second Judges case shows that the Constituent Assembly Debates were exhaustively quoted and considered therein. Neither the Constituent Assembly Debates nor the text adopted by the Constitution show that the power of appointment of Judges was intended to be conferred on the executive or the legislature. The word “consultation” as interpreted and understood meant that the final word on the subject of appointment of Judges is with the CJI. The practice and convention ever since the commencement of the Constitution shows that the proposal for appointment has always been initiated by the judiciary and the last word on the subject belongs to the CJI. This scheme is consistent with the intention of the Constitution-Makers.

(Para 1052)

Per Chelameswar, J.

Members of the Constituent Assembly in general and the Drafting Committee in particular were men and women of great political experience, deep insight into human nature, and a profound comprehension of the complex problems of Indian society. They spearheaded the Freedom Movement. They were well versed in history, law, political sciences and democratic practices. They examined the various constitutional systems in vogue in different democratic societies, inter alia, American, Australian, British and Canadian and adopted different features from different constitutional systems after suitably modifying them to the needs of Indian society. The Framers of the Constitution had the advantage of an intimate knowledge of the functioning of the Federal Court, the High Courts and the subordinate courts of this country under the Government of India Act, 1935. Though there are several distinctions in the architecture of the judicial systems under each of the abovementioned regimes, one feature common to all of them is that appointment of Judges is by the executive. Such constitutional design is essentially a legacy of the British constitutional system where the executive had (till 2006) the absolute authority to appoint Judges.

(Para 1136)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), relied on

Sir William Blackstone, Commentaries on the Laws of England, Vol. I (1765) 269, referred to

The Makers of the Indian Constitution after a study of the various models mentioned above among others, provided that in making appointment of the Judges of the constitutional courts, the CJI and the Chief Justices of the High Court concerned are required to be consulted by the President who is the appointing authority of Judges of these Courts. The text of the Constitution clearly excluded any role either for Parliament or for the State Legislatures.

(Para 1146)

The following are the salient features of Dr Ambedkar's statement made in his speech dated 24-5-1949 [see in extracted paras [1] to [3], above, under opinion of Khehar, J.]:

(1) That the judiciary must be both independent and competent.

(2) It is dangerous to confer an unchecked power of choosing or appointing Judges on the executive. The concurrence of the legislature is also not desirable as it leads to a possibility of appointments being influenced by political considerations or under political pressure.

(3)(a) Requiring concurrence of the Chief Justice is also a dangerous proposition.

(b) That, the Chief Justice is also a human being and is a man with all the failings, sentiments and prejudices which common people are supposed to have.

(c) Providing for the concurrence of CJI would be conferring a power of veto on the CJI which in substance means transferring the power of appointment to the CJI without any limitation, which the Constituent Assembly thought it imprudent to confer on the President.

(4) That, the Drafting Committee thought the arrangements, specified under what became Articles 124 and 217 (as they stood prior to the 99th Amendment), would ensure requisite independence and competence of the judiciary and such arrangements would be sufficient for the “moment”.

(Para 1148)

Sacher v. United States, 1952 SCC OnLine US SC 40 : 96 L Ed 717 : 343 US 1 (1952), relied on

Constituent Assembly Debates, 24-5-1949 (Vol. 8, p. 258), relied on

Articles 124 and 217 deal with one of the elements necessary to establish an independent judiciary—the appointment process. The Constituent Assembly was fully conscious of the importance of such an element in establishing and nurturing an independent judiciary. It examined various models in vogue in other countries. Dr Ambedkar's speech dated 24-5-1949 (quoted supra) is proof of such awareness. The Constituent Assembly was fully appraised of the dangers of entrusting the power of appointment of members of the constitutional courts exclusively to the executive. At the same time, the Constituent Assembly was also sensitised to the undesirability of entrusting such a power exclusively to the CJI or allowing any role to Parliament in the matter of the judicial appointments. The probable consequences of assigning such a role were also mentioned by Dr Ambedkar. The Constituent Assembly was informed of the various models and institutional mechanisms in vogue under various democratic Constitutions for appointment of the members of the superior judiciary. The Constituent Assembly was told by Dr Ambedkar that the model, such as the one contained in what became Articles 124 and 217 (as they stood prior to the 99th Amendment) — may be regarded as sufficient for the moment. Various alternative models suggested by the members were not accepted. The legislative history clearly indicates that the members of the Constituent Assembly clearly refused to vest an absolute and unfettered power to appoint Judges of the constitutional courts in any one of the three branches of the Constitution. The Constituent Assembly declined to assign any role to Parliament. It declined to vest an unbridled power in the executive. At the same time did not agree with the proposal that the CJI's concurrence is required for any appointment.

(Para 1177)

9. Meaning of “consultation” in Articles 124, 217 and 222 — Comparison with other provisions of the Constitution

YI. Constitution of India — Arts. 124(2), 217(1) & 222(1) and Art. 74 — “Consultation” with the CJI mandated upon President/Council of Ministers for appointment and transfer of Judges under Arts. 124(2), 217(1) & 222(1) and requirement under Art. 74 that President act on “aid and advice” of Council of Ministers — Synonymity between “consultation” and “aid and advice” and by parity of reasoning why both should be mandatory, though couched in directory language out of courtesy for exalted position of President and the CJI in constitutional scheme

— Held (per Khehar, J. and Goel, J.), since both expressions “aid and advice” and “consultation”, deserve the same interpretation, if any one of them is considered to be mandatory and binding, the same import with reference to the other must follow — Constitution (Forty-second Amendment) Act, 1976 amending Art. 74 is clarificatory in nature — Thus, there is no room for any doubt that under Arts. 124, 217 and 222, the “aid and advice” (— the “consultation”) tendered by the CJI, is mandatory in nature and entitled to primacy — Words and Phrases — “Consultation”, “aid and advice”

(Paras 130 and 131; and 1066)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench), relied on

YJ. Constitution of India — Arts. 124(2), 217(1) & 222(1) and Arts. 148, 155, 280, 316, 324, 338, 338-A, 344 & 350-B — “Consultation” with the CJI mandated upon President/Council of Ministers for appointment and transfer of Judges, under Arts. 124(2), 217(1) & 222(1) contrasted with absence of any such requirement of consultation or deliberation with any authority, for appointment of CAG, Governors of States, CEC/ECs, Chairmen and Members of Finance Commission, UPSC, National Commissions for SCs and for STs, Commission of Parliament on Official Languages and Special Officer for Linguistic Minorities under Arts. 148, 155, 280, 316, 324, 338, 338-A, 344 & 350-B

— Held (per Khehar, J. and Lokur, J.), process of “consultation” contemplated under Arts. 124, 217 and 222 has to be meaningfully understood otherwise they could have been similarly worded as Arts. 148, 155, 280, 316, 324, 338, 338-A, 344 and 350-B — This contrast between the two sets of articles leaves no room for any doubt that “consultation” under Arts. 124, 217 and 222 is not a simpliciter “consultation” — There would be no worth in the mandatory “consultation” with the CJI if his advice could be rejected without any justification — Thus, in all conceivable cases consultation with the CJI will and should be accepted, and, in case it is not so accepted, it would be permissible to examine whether such non-acceptance was prompted by any oblique consideration — Moreover, interpretation of “consultation” cannot be such would result in an interpretation of Arts. 124, 217 and 222 on a par with Arts. 148, 155, 280, 316, 324, 338, 338-A, 344 and 350-B wherein the term “consultation” has not been used

(Paras 128 to 131; 770 to 772 and 929)

YK. Constitution of India — Arts. 124, 217 & 222 and Art. 233 — “Consultation” of President with Collegium/CJI under Arts. 124, 217 & 222 to appoint Judges to higher judiciary and “consultation” of Governor with High Court for appointment of District Judges — Held (per majority), both are mandatory in nature and President and Governor, are bound by advice of Collegium/CJI and High Court, respectively

(Paras 127 to 133)

10. Primacy of judiciary in appointment of Judges is a constituent part of basic feature of separation of powers in Constitution

YL. Constitution of India — Arts. 124, 217 & 222 and 50; Arts. 125(1) & (2), 130, 134(2), 135, 137 to 140, 142, 145 and 146(2) — Independence of judiciary — Separation of judiciary from the executive as contemplated under Art. 50 — Intention of Constituent Assembly in this regard — Appointment of Judges of Supreme Court and High Courts and transfer of Judges/Chief Justices of High Courts — Primacy of judiciary in matters of, and exclusion of the executive from having a determinative role in, though a participatory role for executive is permissible, held (per majority), is in accord with scheme of separation of powers or distribution of powers under the Constitution — Separation of powers is an essential feature of the Constitution and constitutes its tectonic structure — Principle that overlaps are permissible so long as they do not impinge on essential or core functions of any branch or its powers central — System of checks and balances is in place to maintain the equilibrium

— Held (per majority), primacy of judiciary in appointment of Judges is a core function or power central of the judiciary which is contemplated by separation of powers in the Constitution, and which cannot be impinged upon by the executive or legislature — What the Constitution is, is only for the Courts to define — Law laid down in Second Judges case according primacy to judiciary in appointment of Judges, held, fully took into account doctrine of separation of powers — See also in detail under Shortnotes B to D and YN to YS

— Independence of judiciary and permissible checks and balances on judiciary in the hands of legislature under Arts. 124(1), (4), (5), 125(1), (2), 130, 134(2), 135, 137 to 140, 142, 145 and 146(2) — Held (per Lokur, J.), all these checks being on administrative functioning of the judiciary are a permissible overlap, but none of them curb decisional independence of judiciary, which is impermissible as that would be impinging upon its essential function

— Held (per Khehar, J.), Framers of the Constitution while drafting Art. 50 were clear and unanimous in their view that there needs to be a judiciary separated from the influences of the executive — Thus, Art. 50 leads to the conclusion that if power of appointment of Judges is left to executive, the same would breach principles of independence of judiciary and separation of powers — Second Judges case thus concluded that the principle of separation of powers is expressly ingrained in the Constitution which removes the executive from any role in the judiciary, and thus the right of the executive to have the final word in the appointment of Judges to the higher judiciary was clearly ruled out — And therefore, Supreme Court on a harmonious construction of the provisions of the Constitution in Second and Third Judges cases rightfully held that primacy in the above matter vests with the judiciary leading to the inference that the term “consultation” in the provisions under reference should be understood as giving primacy to the view expressed by the judiciary through CJI

— Held (per Lokur, J.), debates on Art. 50 in the Constituent Assembly make it clear that the Constituent Assembly recognised clearly that there should be no interference by the executive in the administration of justice and that it was not necessary to provide for every detail in the draft Constitution — Hence, it cannot be held that Art. 50 only required the subordinate judiciary to be independent and separate from the executive but it was not necessary for the superior judiciary to be independent or separate — Such an obvious anachronism cannot be attributed to the Constituent Assembly

— There is no violation of principle of separation of powers with every overlap of the function of one branch of governance with another, but if one branch takes over an essential function of another branch, then there is a violation of the principle — There is quite clearly an entire host of parliamentary and legislative checks placed on the judiciary whereby its administrative functioning can be and is controlled, but these do not violate the separation of powers or infringe independence of judiciary as far as decision-making is concerned — 99th Constitution Amendment Act however is ultra vires the basic structure of Constitution since it impacts on the basic or essential element of independence of the judiciary, namely, its decisional independence

— Law laid down in Second Judges case according primacy to judiciary in appointment of Judges fully takes into account doctrine of separation of powers, and has to be appreciated as part of larger constitutional scheme relating to independence of the judiciary — It is a pragmatic and workable interpretation of the Constitution, which is the task only of the judiciary and there can be no doubt about this

— Held (per Kurian, J.), separation of powers or say distribution of powers is tectonic structure of the Constitution — Various checks and balances are provided only for maintaining a proper equilibrium amongst the structures — However, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch — Permissible areas of interference are the checks and balances — But there are certain exclusive areas for each branch, “core functions” or powers central with which there shall be no interference — Primacy of judiciary in appointment of Judges is a core function or power central of judiciary which cannot be impinged upon by the executive or legislature

— Held (per Goel, J.), it is essential to uphold balance of powers between legislature, executive and judiciary which by itself is key to functioning of entire Constitution — Plea of overlapping roles of different departments of Government in the present case, that thus role assigned to the executive in NJAC scheme is justified, is against the basic structure as far as appointment of Judges is concerned wherein judiciary has primacy

[Ed.: To save space only the most direct observations on the doctrine of separation of powers and in relation to the independence of the judiciary and the judicial appointments process, by the learned Judges have been given here, since the said doctrine and its relationship with the independence of the judiciary and the judicial appointments process is all pervasive. Hence, reference may also be made to observations under Shortnotes B to D and YN to YS.]

Held :

Per Khehar, J.

A perusal of the statements made before the Constituent Assembly which resulted in the adoption of Article 50 of the Constitution reveals that the first Prime Minister of this country was entirely in favour of the separation of judicial and executive “functions”. On the subject of separation, it was pointed out that it was a directive which the Government itself wanted. The statement of Dr Bakshi Tek Chand in the Constituent Assembly projects the position that the idea of separating the judiciary from the executive was mooted for the first time as far back as in 1852 and that thereafter, the political leadership and also public opinion were directed towards ensuring separation of judicial and executive functioning. He pointed out that “year in and year out”, the late Man Mohan Ghosh and Bapu Surendranath Banerji had raised the instant question in all public meetings. And when the Congress first met in Bombay in 1885, the matter of separating the judiciary from the executive was placed above all other issues under consideration. Thereafter, not only the politicians of all schools of thought, but even retired officers who had actually spent their lives in administration had supported the issue of separation of powers. He also highlighted that in 1899 Romesh Chunder Dutt had devoted a large part of his presidential address to the issue. And that retired High Court Judges and Englishmen like Sir Arthur Hobhouse and Sir Arthur Wilson (both of whom subsequently became Members of the Judicial Committee of the Privy Council) also supported the above reform. The debate, it was pointed out had been ongoing to accept the principle of “separation of powers” whereby the judiciary would be kept apart from the executive. He also pointed to instances indicating interference by Ministers and members of the administration which necessitated a complete separation of powers between the judiciary and the executive. Loknath Misra fully supported the above amendment as a matter of principle. It is, therefore, imperative to conclude that the Framers of the Constitution while drafting Article 50 of the Constitution were clear and unanimous in their view that there needs to be a judiciary separated from the influences of the executive.

(Paras 119 and 120)

Article 50 leads to the conclusion that if the power of appointment of Judges was left to the executive, the same would breach the principles of independence of the judiciary and separation of powers.

(Para 301.6)

High Court of Orissa v. Sisir Kanta Satapathy, (1999) 7 SCC 725 : 1999 SCC (L&S) 1373, followed

The Supreme Court in the Second Judges case thus concluded that the principle of separation of powers is expressly ingrained in the Constitution which removes the executive from any role in the judiciary, the right of the executive to have the final word in the appointment of Judges to the higher judiciary was clearly ruled out. And therefore, the Supreme Court on a harmonious construction of the provisions of the Constitution in the Second and the Third Judges cases rightfully held that primacy in the above matter vests with the judiciary leading to the inference that the term “consultation” in the provisions under reference should be understood as giving primacy to the view expressed by the judiciary through the Chief Justice of India.

(Para 121)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), clarified and followed

Per Lokur, J.

The issue of the separation of powers has been the subject-matter of discussion in several cases. Broadly, the consistent view of the Supreme Court has been that while the Constitution recognises the separation of powers, it is not a rigid separation and there is some overlap. The separation of powers in our Constitution is not as rigid as in the United States. One of the elements of the separation of powers is the system of checks and balances. This too is recognised by our Constitution and Articles 226 and 32 (judicial review) is one of the features of checks and balances. The doctrine of separation of powers is a part of the basic structure of the Constitution. Separation of powers is an essential feature of the Constitution and in modern governance strict separation is neither possible nor desirable. There is no violation of the principle of separation of powers if there is an overlap of the function of one branch of governance with another, but if one branch takes over an essential function of another branch, then there is a violation of the principle.

(Paras 605, 607, 612 and 613)

It is quite clear that there is a distribution of power through a system of checks and balances rather than a classical separation of power between the Legislature, the Executive and the Judiciary. These three organs of the State are not in a silo and therefore there is an occasional overlap—but every overlap does not necessarily lead to a violation of the separation of powers theory. In his concluding speech, Dr Rajendra Prasad used the expression “distribution of powers” and not “separation of powers”.

(Para 676)

There are several examples of this “overlap” in the various provisions of the Constitution in this regard: Article 124(1) enables Parliament to pass a law prescribing the composition of the Supreme Court as consisting of more than seven Judges. Article 124(4) provides for the impeachment process for the removal of a Judge; Article 124(5) enables Parliament to legislate for regulating the procedure for the presentation of an address in the impeachment process and in the investigation and proof of the misbehaviour or incapacity of a Judge; Article 125(1) enables Parliament by law to determine the salary of a Judge while Article 125(2) enables Parliament to pass a law with regard to the privileges, allowances, etc. of a Judge. Article 134(2) enables Parliament to confer on the Supreme Court by legislation, further powers to entertain and hear appeals and criminal proceedings. Article 135 enables Parliament to make a law with regard to the jurisdiction and power of the Supreme Court with respect of any matter to which the provisions of Articles 133 and 134 do not apply; Article 137 provides that subject to any law made by Parliament the Supreme Court shall have the power to review any judgment pronounced or order made by it; Article 138 enables Parliament by law to enlarge the jurisdiction of the Supreme Court and Article 139 enables Parliament to make a law to issue writs other than those mentioned in Article 32; Article 140 enables Parliament to make a law conferring upon the Supreme Court supplementary powers; Article 142 enables Parliament to make a law for the enforcement of a decree or order of the Supreme Court and the exercise of power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt; Article 145 enables Parliament to make any law for regulating the practice and procedure of the Supreme Court while Article 146(2) enables Parliament to lay down the conditions of service of officers and servants of the Supreme Court. Article 130 of the Constitution permits the Supreme Court to sit at any place other than Delhi with the approval of the President while Article 145 enables the Supreme Court to make rules for regulating the practice and procedure of the Court with the approval of the President.

(Para 677)

There is quite clearly an entire host of parliamentary and legislative checks placed on the judiciary whereby its administrative functioning can be and is controlled, but these do not necessarily violate the theory of separation of powers or infringe the independence of the judiciary as far as decision-making is concerned. As has been repeatedly held, the theory of separation of powers is not rigidly implemented in our Constitution, but if there is an overlap in the form of a check with reference to an essential or a basic function or element of one organ of State as against another, a constitutional issue does arise. It is in this context that the 99th Constitution Amendment Act has to be viewed—whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional independence.

(Para 678)

Article 50 was incorporated in the Constitution in the chapter on directive principles of State policy at the instance of Dr Ambedkar. It was Article 39-A in the Draft Constitution. Dr Ambedkar said that it had been the desire for a long time that there should be a separation of the judiciary from the executive and a demand for this had been continuing ever since the Congress (party) was founded.

(Paras 729, 732 to 736)

The Constituent Assembly was clear that there should be no interference by the executive in the administration of justice and that it was not necessary to provide for every detail in the draft Constitution. That constitutional conventions existed prior to Independence were known, but that they were required to be continued after Independence was of equal significance. Separation between the judiciary and the executive with the intention of having an independent judiciary was a desirable objective.

(Paras 735 to 737)

The respondents are not right in their submission that the Second Judges case overlooked the separation of powers and the Constituent Assembly Debates, and incorrectly interpreted the provisions of the Constitution particularly Article 124(2) thereof. This is a rather narrow understanding of the Second Judges case which, amongst others, considered the interpretation of Article 50 of the Constitution, constitutional history and conventions, the entire spectrum of issues relating to the appointment of Judges in the context of the independence of the judiciary, transparency and sharing of information between the constitutional authorities, the primacy of the President or the judiciary in the appointment process (depending on the circumstances), the importance of the President in the integrated consultative process derived from the debates in the Constituent Assembly and several other related aspects. All this involved a pragmatic and workable interpretation of the Constitution, which is the task only of the judiciary and there can be no doubt about this. As was pithily stated in Marbury v. Madison: (L Ed p. 73):

“It is emphatically the province and duty of the Judicial Department to say what the law is.”

There is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens.

(Para 679)

Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225 : AIR 1955 SC 549 (Five-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench); Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Five-Judge Bench); I.R. Coelho v. State of T.N., (2007) 2 SCC 1 (Nine-Judge Bench); Bhim Singh v. Union of India, (2010) 5 SCC 538 (Five-Judge Bench); State of T.N. v. State of Kerala, (2014) 12 SCC 696 (Five-Judge Bench); Powers, Privileges and Immunities of State Legislatures, In re, Special Reference No. 1 of 1964, (1965) 1 SCR 413 : AIR 1965 SC 745 (Seven-Judge Bench); Marbury v. Madison, 2 L Ed 60 : 5 US (1 Cr) 137 (1803), followed

Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643, referred to

Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283 (Five-Judge Bench); Janapada Sabha, Chhindwara v. Central Provinces Syndicate Ltd., (1970) 1 SCC 509; Municipal Corpn. of the City of Ahmedabad v. New Shrock Spg. & Wvg. Co. Ltd., (1970) 2 SCC 280; State of T.N. v. M. Rayappa Gounder, (1971) 3 SCC 1, Panama Refining Co. v. Ryan, 1935 SCC OnLine US SC 3 : 79 L Ed 446 : 293 US 388 (1935), Municipal Council of Sydney v. Commonwealth, (1904) 1 CLR 208 : 1904 HCA 50, United States v. Wong Kim Ark, 1898 SCC OnLine US SC 56 : 42 L Ed 890 : 169 US 649, 699 (1898), cited

Harold Joseph Laski, A Grammar of Politics (Yale University Press, 1925) 297, referred to

The respondents are also not right in reducing the Second Judges case to only one aspect—the decision of the Supreme Court has to be appreciated as a part of the larger constitutional scheme relating to the independence of the judiciary. The respondents may or may not agree with the interpretation given by the Supreme Court to the constitutional scheme but that is no indication that the theory of the separation of powers has broken down. If there is an interpretational error, it can be corrected only by the judiciary, or by a suitable amendment to the Constitution that does not violate its basic structure.

(Para 680)

It is not correct to suggest that the theory of separation of powers in the Constitution has been torpedoed by the interpretation given to Article 124(2) of the Constitution in the Second Judges case. On the contrary, the constitutional convention, the constitutional scheme and the constitutional practice recognise the responsibility of the judiciary in the appointment of Judges and this was merely formalised in the Second Judges case. The theory of the separation of powers or the distribution of powers was maintained by the Second Judges case rather than thrown overboard. The Constitution enjoins upon its branches “separateness but interdependence, autonomy but reciprocity” and the Second Judges case has effectively maintained this equilibrium between the judiciary and the political-executive, keeping the independence of the judiciary in mind, including the appointment of Judges.

(Para 695)

Youngstown Sheet & Tube Co. v. Sawyer, 1952 SCC OnLine US SC 75 : 96 L Ed 1153 : 343 US 579 at p. 635 (1952), relied on

Per Kurian Joseph, J.

Separation of powers or say distribution of powers, as Brother Lokur, J. terms it, is the tectonic structure of the Constitution of India. The various checks and balances are provided only for maintaining a proper equilibrium amongst the structures and that is the supreme beauty of our Constitution. Under our constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch. The permissible areas of interference are the checks and balances. But there are certain exclusive areas for each branch which Khehar, J. has stated as “core functions”, and which I would describe as powers central. There shall be no interference on powers central of each branch. What the Constitution is, is only for the court to define; whereas what the constitutional aspirations are for the other branches to detail and demonstrate.

(Para 987)

The structural supremacy of the judiciary in the constitutionally allotted sphere was restored by the Second and the Third Judges cases.

(Paras 973 and 974)

As held in Samsher Singh case and the Second and the Third Judges cases, selection of Judges for appointment in High Courts and the Supreme Court belongs to the powers central of the judiciary and the permissible checks and balances are provided to other branches, lie in the sphere of appointment. If the alignment of tectonic plates on distribution of powers is disturbed, it will quake the Constitution. Once the constitutional structure is shaken, democracy collapses. That is our own painful history of the Emergency. It is Parliament, post-Emergency, which corrected the constitutional perversions and restored the supremacy of the rule of law which is the cornerstone of our Constitution. As the guardian of the Constitution, the Supreme Court should vigilantly protect the pristine purity and integrity of the basic structure of the Constitution. Direct participation of the Executive or other non-judicial elements would ultimately lead to structured bargaining in judicial appointments, if not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary, however remote be the possibility, is to be nipped in the bud. Parliament has no power to gerrymander the Constitution. The Constitution 99th Amendment impairs the structural distribution of powers, and hence, it is impermissible.

(Para 988)

Per A.K. Goel, J.

It is essential to uphold balance of powers between legislature, executive and judiciary which by itself is key to the functioning of the entire Constitution. The Judiciary is entrusted the power to control the power of the Executive and the Legislature whenever it is alleged that the said organs have exceeded their constitutionally assigned authority. This is the essence of the democracy. The plea of overlapping roles of different departments of the Government in the present case, that thus the role assigned to the executive in the NJAC scheme is justified, is against the basic structure as far as appointment of Judges is concerned wherein judiciary has primacy.

(Paras 1054 and 1066)

11. Constitutional Convention of according Primacy to Judiciary in Appointment of Judges

YM. Constitution of India — Arts. 124(2), 217(1) & 222(1) — Primacy of judiciary in matters of appointment and transfer of Judges — Constitutional convention regarding — Held (per majority), there exists an unbroken constitutional convention in this regard, at least from 1935 if not from 1919 to the present day, except for the period when the First Judges case dispensation was in operation — Constitutional Law — Conventions of the Constitution — Legal effect of — Constitutional convention if as binding as constitutional law

Held :

Per Khehar, J.

The consideration in hand also has a historic perspective which would be examined from experiences gained after the Constitution became operational i.e. after the People of this country came to govern themselves in terms of the defined lines and the distinctiveness of functioning set forth by the arrangement and allocation of responsibilities expressed in the Constitution.

(Para 111)

The actual practice and manner of appointment of Judges to the higher judiciary emerging from the parliamentary debates clearly depict that absolutely all Judges (except in one case) appointed since 1950 had been appointed on the advice of the Chief Justice of India. It is therefore clear that the political-executive has been conscious of the fact that the issue of appointment of Judges to the higher judiciary mandated the primacy of the judiciary expressed through the Chief Justice of India. In this behalf, even the respondents had conceded that the supersession of senior Judges of the Supreme Court at the time of the appointment of the Chief Justice of India in 1973, the mass transfer of Judges of the higher judiciary during the emergency in 1976, and the second supersession of a Supreme Court Judge at the time of the appointment of the Chief Justice of India in 1977 were executive aberrations. Thus, the historical record (apart from the aberrations) reveals that the executive while giving effect to the procedure for appointment of Judges to the higher judiciary (and also in the matter of transfer of Chief Justices and Judges from one High Court to another), while acknowledging the participation of the other constitutional functionaries (referred to in Articles 124, 217 and 222), adopted a procedure wherein primacy in the decision-making process was consciously entrusted with the judiciary. This position was followed from the very beginning after the promulgation of the Constitution by the executive at its own.

(Paras 117 and 301.3)

The Memorandum of Procedure for appointment of Judges and Chief Justices to the higher judiciary drawn in 1950 soon after India became independent as also the Memorandum of Procedure for appointment of Judges and Chief Justices to the higher judiciary re-drawn in 1999 after the decision in the Second Judges case manifest that the executive had understood and accepted that selection and appointment of Judges to the higher judiciary would emanate from and would be made on the advice of the Chief Justice of India.

(Para 301.4)

Insofar as the legislature is concerned, it is apparent that the issue came up for discussion in a responsive manner when the Fourteenth Report of the Law Commission on Judicial Reforms (1958) was discussed by Parliament as far back as in 1959 on 24-11-1959/25-11-1959, just a few years after the country came to be governed by the Constitution. It is apparent that when the two Houses of Parliament reflected inter alia on Articles 124, 217 and 222, in the matter of appointment of Judges to the higher judiciary, the unanimous feeling which emerged was that “… the advice of the most competent, dependent and eminent person …” — the Chief Justice of India had been followed rightfully. Two aspects of the parliamentary discussion which were kept in mind when the issue was deliberated need to be highlighted. First, that the President meant (for all practical purposes), the Minister concerned or the Council of Ministers headed by the Prime Minister. And second, that the provisions in question envisaged only a participatory role of the other constitutional authorities. Therefore, the above affirmation to the primacy of the judiciary in the matter of appointment of Judges to the higher judiciary was consciously recorded after having appreciated the gamut of the other participating constitutional authorities.

(Paras 113 and 117)

In the matter of judicial determination, the issue was examined by a seven-Judge Constitution Bench of the Supreme Court as far back as in 1974 in Samsher Singh case wherein keeping in mind the cardinal principle—the “independence of the judiciary”, it was concluded that consultation with the highest dignitary in the judiciary—the Chief Justice of India, in practice meant that the last word must belong to the Chief Justice of India i.e. the primacy in the matter of appointment of Judges to the higher judiciary must rest with the judiciary. The above position was maintained in Sankalchand Himatlal Sheth case in 1977 by a five-Judge Bench, only to be altered in the First Judges case by a seven-Judge Bench in 1981 wherein it was held that the term “consultation” could not be read as “concurrence”. The position expounded even in this case by P.N. Bhagwati, J. (as he then was) as per the corrigendum issued by him (set out in para 116 herein) must necessarily also be kept in mind. The earlier position was restored in 1993 by a nine-Judge Bench in the Second Judges case (which overruled the First Judges case). The position was again reaffirmed by a nine-Judge Bench through the Third Judges case.

(Paras 113 to 117)

Historically, therefore, all the three wings of governance have uniformly maintained that while making appointments of Judges to the higher judiciary independence of the judiciary is an integral component of the spirit of the Constitution and thereby the term “consultation” used in the provisions under consideration had to be understood as vesting primacy with the judiciary with reference to the subjects contemplated under Articles 124, 217 and 222.

(Paras 111 to 117)

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), referred to

Per Lokur, J.

George Santayana, philosopher, essayist, poet and novelist is believed to have said something to the effect that: “Those who do not remember their past are condemned to repeat their mistakes.” Keeping this in mind, it is essential to appreciate the evolution of the process for the appointment of Judges in the Indian judiciary, the various alternatives discussed and debated and then to consider and analyse the solution given by the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014.

(Paras 423, 424 and 426)

Al-Jehad Trust v. Federation of Pakistan, PLD 1996 SC 324 (Five-Judge Bench), relied on

(i) The independence and integrity of the judiciary was of the highest importance.

(ii) A tendency had developed in the executive to whittle down the power and authority of the judiciary.

(iii) It was noted that recommendations for the appointment of a Judge of a High Court originate from the Chief Justice of the High Court. Occasionally, such recommendations are suppressed by the executive at the provincial level. It was proposed that recommendations made by the Chief Justice ought to be forwarded directly to the President for being processed so that the political-executive at the provincial level cannot suppress it.

(iv) It was acknowledged that the political-executive at the provincial level also makes recommendations (though not always on merits) directly to the Central Government, without the knowledge of the Chief Justice of the High Court. Such recommendations ought to be accepted only with the concurrence of the Chief Justice of India, and this should be taken care of in the Draft Constitution.

(v) It was acknowledged that a recommendation for the appointment of a Judge of a High Court (or the Supreme Court) could be made by the President (personally — ‘Both are officers of the highest responsibility’). This would normally be accepted by the Chief Justice of India and therefore no provision for the concurrence of the Chief Justice of India was required to be made in this regard in the Draft Constitution. However, if the Chief Justice of India were to refuse to accept the recommendation, the situation could be met by the President making a different proposal. This is because, it was noted, that “a convention now exists that such appointments should be made after referring the matter to the Chief Justice of India and obtaining his concurrence”.

(Para 445)

The historical background (discussed in paras 423 to 454) has an impact on understanding the subsequent debate in the Constituent Assembly that took place on 23-5-1949 and 24-5-1949 when Article 103 of the Draft Constitution (corresponding to Article 124 of the Constitution of India) was considered and debated in the Constituent Assembly.

(Paras 423 to 455)

The discussion leading up to the Constituent Assembly Debates and relating to the appointment of Judges clearly brings out that:

(i) The independence of the judiciary was unflinchingly accepted by all policy and decision-makers.

(ii) The appointment of Judges of the Supreme Court and the High Courts was to be through a consultative process between the President and the Chief Justice of India, neither of whom had unfettered discretion in the matter.

(iii) In any event, the political-executive had no role or a very little role to play in the decision-taking process. Notwithstanding this, the political-executive did interfere in the appointment process as evidenced by the Memorandum prepared in the Conference of Chief Justices by, inter alia, recommending persons for appointment as Judges of the High Court. Resultantly, the appointment of Judges to the High Courts was not always on merit and sometimes without the recommendation of the Chief Justice of the High Court.

(iv) A constitutional convention existed that the appointment of Judges should be made in conformity with the views of the Chief Justice of India.

(v) The proposal for the appointment of a Judge of the Supreme Court or a High Court could originate from the President (although it never did) or the Chief Justice of India and regardless of the origin, it would normally be accepted. However, the possibility of the President giving in to political or party pressures was not outside the realm of imagination.

(vi) Historically, the Chief Justice of India was always consulted in the matter of appointment of Judges, and conventionally his concurrence was always taken regardless of whether a recommendation for appointment originated from the Chief Justice of the High Court or the political-executive. It is in this light that the discussion in the Constituent Assembly on the issue of appointment of Judges to the Supreme Court and the High Courts deserves to be appreciated.

(vii) It remained a grey area whether in the appointment of Judges, the President was expected to act on his/her own or on the advice of the political-executive.

(Para 474)

The issue of the appointment of Judges of the Supreme Court and the High Courts was first addressed, after Independence, in the 14th Report of the Law Commission of India (LCI), then in the 80th Report and finally in the 121st Report. (A reference was made in the 214th Report and the 230th Report but they are of no immediate consequence). It was also the subject-matter of three Constitution amendment Bills and five pronouncements of the Supreme Court rendered by Constitution Benches. This is mentioned only to highlight the complexity of the issue and the constant search for some stability and certainty in the appointment process in relation to the independence of the judiciary. It has been said with regard to the selection of Judges in the United States, and this would equally apply to our country:

“It is fairly certain that no single subject has consumed as many pages in law reviews and law-related publications over the past 50 years as the subject of judicial selection.”

(Para 475)

To submit its 14th Report dated 26-9-1958 titled Reform of Judicial Administration, the Law Commission of India (LCI) travelled through the length and breadth of the country for about one year and examined as many as 473 witnesses from a cross-section of society before giving its 14th Report. It also adopted a novel procedure of co-opting two members from the States that were visited so as to understand the local problems. The monumental and authoritative work can only be admired. The Law Commission of India observed that the Constitution endeavoured to put Judges of the Supreme Court “above executive control”. It very specifically acknowledged the importance of safeguarding the independence of the judiciary and observed that:

“5. Proper selection imperative.—It is obvious that the selection of the Judges constituting a court of such pivotal importance to the progress of the nation must be a responsibility to be exercised with great care.”

Thereafter three central issues were adverted to — (1) Communal and regional considerations had prevailed in making the selection of Judges. (2) The general impression was that executive influence was exerted now and again from the highest quarters in respect of some appointments to the Bench. (3) The best talent among the Judges of the High Courts did not find its way to the Supreme Court. Similarly, Chapter 6 of the Report concerning the appointment of Judges to the High Courts makes for equally sad reading. The inadequacies in the appointments made were pointed out as:

(1) The selections have been unsatisfactory and induced by executive influence.

(2) There is no recognisable principle for making the appointments and considerations of political expediency or regional or communal sentiments have played a role.

(3) Merit has been ignored in making appointments.

It was said that these inadequacies were well founded and there was acute public dissatisfaction with the appointments made. Unlike in the appointment of Judges to the Supreme Court, the Law Commission of India suggested, for the High Courts, that Article 217 of the Constitution ought to be amended to incorporate the concurrence of the Chief Justice of India to the appointment. This recommendation was made so that, in future, no appointment could be made without the concurrence of the Chief Justice of India. The Report was considered in Parliament on 23-11-1959, 24-11-1959 and 25-11-1959 wherein it was stated by Shri Govind Ballabh Pant, Hon'ble Minister of Home Affairs on 24-11-1959 that since 1950, as many as 211 Judges were appointed to the High Courts and out of these except one “were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by the Government had the support of all persons who were connected with this matter.” On the next day, that is, 25-11-1959, Shri A.K. Sen, Minister of Law reiterated the statement made by the Home Minister. He clarified that in one case where there was a difference of opinion, the Government accepted the advice of the Chief Justice of the High Court (not the Chief Minister) rather than the advice of the Chief Justice of India. The discussion ended with an Hon'ble Member suggesting that the recommendations of the Law Commission of India be taken note of and implemented as quickly as possible. What is of importance in this Report (apart from several other conclusions) is that there had been instances where a recommendation for appointment as a Judge of the High Court was made by the Chief Minister without the knowledge of the Chief Justice and that canvassing had begun to take place for appointment as a Judge of the High Court. But in all cases, except one, the concurrence of the Chief Justice of India was taken.

(Paras 476 to 478, 481, 486 to 489)

Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection Systems, 10 William and Mary Bill of Rights Law Journal 7, n.9 (2001) (quoting Philip Dubois); Reform of Judicial Administration, Law Commission of India, 14th Report, Chapter 5, para 5; Reform of Judicial Administration, Law Commission of India, 14th Report, Chapter 5, para 6; Reform of Judicial Administration, Law Commission of India, 14th Report, Chapter 6, para 8; Reform of Judicial Administration, Law Commission of India, 14th Report, Chapter 6, para 11; Reform of Judicial Administration, Law Commission of India, 14th Report, Chapter 6, para 14; Reform of Judicial Administration, Law Commission of India, 14th Report, Chapter 6, paras 14 and 15; Reform of Judicial Administration, Law Commission of India, 14th Report, Chapter 6, para 82, referred to

A survey of the historical facts clearly indicates that at least since 1935, if not earlier, the appointment of Judges was made in accordance with the view of the Chief Justice of India or the Chief Justice of the High Court as the case may be. There were aberrations but these appear to have mainly taken place only after Independence. But even in those cases where there were aberrations pre-1959 (with the Chief Justice of the High Court having been bypassed) the concurrence of the Chief Justice of India was taken. The executive, therefore, never had real primacy in the matter of appointment of Judges. But, post the First Judges case the executive exerted its newly given absolute primacy in the appointment of Judges and the aberrations increased. Surely, the executive cannot take advantage of the aberrations caused at its instance and then employ them as an argument that no constitutional convention existed regarding the concurrence of the Chief Justice of India. On the contrary, the aberrations indicate the stealthy attempt of the political-executive to subvert the independence of the judiciary through appointments that were not necessarily merit based, and the submissions advanced suggest that henceforth the independence of the judiciary may not necessarily be sacrosanct. It is for this reason that the Bar has fought back to preserve and protect the existing conventions and practices and will, hopefully maintain its vigil.

(Para 683)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), explained

Leaving aside the discussion on the textual interpretation of the constitutional provisions and the Constituent Assembly Debates, a constitutional convention has evolved over the last more than seven decades of accepting the opinion of the Chief Justice in the appointment of a person as a Judge of a superior court. This constitutional convention has existed, if not from the days of the Government of India Act, 1919 then certainly from the days of the Government of India Act, 1935. This constitutional convention has been exhaustively dealt with by Kuldip Singh, J. in the Second Judges case and it was concluded that a constitutional convention is as binding as constitutional law. In any event, there is no cogent reason to discard a constitutional convention if it is working well.

(Para 767)

Constitutional practice and convention become so interlinked with or attached to constitutional provisions and are often so important and vital for grasping the real purpose and function of constitutional provisions that the two cannot often be viewed apart. This is precisely what has happened in the present case where constitutional conventions and practices are so interlinked to the constitutional provisions that they are difficult to disassemble. It is this constitutional interpretation and constitutional convention that results in binding the recommendation of the Chief Justice of India on the executive that is objected to by the respondents as being contrary to the Constitution as framed and it is this that is sought to be “corrected” by the 99th Constitution Amendment Act.

(Paras 767 and 768)

Per A.K. Goel, J.

The practice and convention ever since the commencement of the Constitution showed that the proposal for appointment was always initiated by the Judiciary and the last word on the subject belonged to the CJI.

(Paras 1052 and 1086)

12-A. Post appointment safeguards are not enough to ensure independence of the Judiciary — Power of Reciprocity and Loyalty to the Appointer — Conflict of interest with State as major litigant — Hence primacy of Judiciary in appointment of Judges is the only safeguard

12-B. Dimensions and attributes of an independent judiciary — Fragility of — Essential values of a Judge

YN. Constitution of India — Arts. 124(2), 217(1) & 222(1), 50 & 74 and 368 — Independence of the judiciary — Insufficiency of post appointment safeguards — Power of Reciprocity and Loyalty to Appointer — Held (per majority), if primacy is not vested in the judiciary, the executive and legislature could exert political pressure in appointment of Judges and continue to unduly influence Judges even after appointment through the psychological mechanism of Power of Reciprocity and Loyalty to Appointer, coupled with fact that executive is by far the biggest litigant — Such a conclusion cannot be avoided as historical experience shows how executive interference in appointment of Judges has continually undermined independence of judiciary, which got particularly exacerbated when executive had “ultimate power” of appointment and transfers under First Judges case dispensation — Same opinion expressed by eminent Judges like M.C. Chagla, J., H.R. Khanna, J. and eminent jurist H.M. Seervai and senior politicians — Such a conclusion cannot further be avoided due to weak moral fibre of Indian civil society and polity as evidenced until now, and existence of veritable spoils system in Indian polity

— Psychological studies explaining and providing proof of subtle interplay of doctrines of Reciprocity and Loyalty to Appointer in making Judges susceptible to influence from those who appoint them even after appointment, preventing them from acting without fear or favour, and thus destroying independence of the judiciary, discussed — Realisation of these principles by Constituent Assembly and their Operation in appointment of Federal Judges in United States, and in supersession of Judges of Indian Supreme Court who were in the line of succession to Chief Justiceship, and consequent loyalty of and reciprocation by the then beneficiaries concerned to the benefactor Government, explicated, as reasons for why political-executive as far as possible should have no role in ultimate/final selection and appointment and transfer of Judges — Thus according primacy to the judiciary is the only safeguard

— Weak moral fibre of Indian polity and insufficient strength of civil society in being unable to manoeuvre its leaders towards national interest and incapacity to deter overreach by political-executive, implies that it is higher judiciary alone which must continue to act as protector of civil society — Views of senior political leaders from across the political spectrum judicially noticed, as to possibility of even extreme abuse of power by political-executive reminiscent of Emergency in 1975 and existence of a veritable “spoils system” in regard even to constitutional offices like that of Governor, abused by every political party when it came to power

YO. Constitution of India — Arts. 14 and 156(3) — Spoils system or patronage system — Not envisaged under the Indian Constitution, but existence of, in practice, judicially noticed — Held, Constitution does not envisage the “spoils system” or “patronage system” wherein political party which wins an election gives Government positions to its supporters, friends and relatives as a reward for working towards victory and as an incentive to keep the party in power — However, an examination of how the Indian polity works in practice shows the existence of a spoils system in place, even in respect of high constitutional offices like that of Governors of States — This is followed by every political party, without exception — Words and Phrases — “Spoils system”, “patronage system”

YP. Constitution of India — Arts. 124(2), 217(1) & 222(1), 50 & 74 and 368 and Art. 124-A(1)(c) [as inserted vide 99th Constitution Amendment] — Primacy of judiciary in matters of appointment and transfer of Judges — Further justification for — Executive is the biggest litigant in courts — Violation of rule against bias — When Law Minister as one of six members of NJAC scheme has essential participatory role in appointment of Judges in the decision-taking process — Untenability of — Secretary, Government of India as convenor of NJAC is also objectionable

— Executive is the biggest litigant in courts, be it taxation, allocation of natural resources, telecom, electricity, environment, service and criminal matters, and not the least, high-profile scams involving former and incumbent Prime Ministers/Chief Ministers and Union and State Ministers, only to list a few major areas where executive is a major litigant

YQ. Constitution of India — Arts. 50, 124, 125, 129, 121, 141, 142, 144, 145, 146, 215, 217, 221, 211, 225 & 229 — Independence of the judiciary — Dimensions and attributes of an independent judiciary and essential values of a Judge — Fragility of independence of judiciary — Broad underlying concepts explicated and how they are constitutionally protected and otherwise protected, explained in detail: (1) Methodological independence, namely, recommendation and appointment of Judges is an important facet of the independence of the judiciary (See also in detail under Shortnotes B, C, G, X, YG, YL, YN, YP and YT); (2) Decisional independence or independence of an individual Judge once appointed, to decide a case without fear or favour; (3) Institutional independence or independence of judiciary as an institution or an organ of the State i.e. functional independence; and (4) Financial independence or adequacy of proper infrastructure to meet all requirements of judicial system — Judges (Inquiry) Act, 1968 — Supreme Court Judges (Conditions of Service) Act, 1958 — High Court Judges (Conditions of Service) Act, 1954 — Penal Code, 1860 — S. 77 — Judges (Protection) Act, 1985, S. 3

YR. Constitution of India — Arts. 50, 124, 125, 129, 215, 217 and 221 — Independence of the judiciary — Decisional independence of Judge — Extent of — Action against a Judge for doing something within his jurisdiction, but doing it maliciously and contrary to good faith, held (per Lokur, J.), following English law, not maintainable — Principle underlying this rule is that if one Judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest Judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction — Penal Code, 1860, S. 77

YS. Constitution of India — Arts. 50, 121 & 211 and 368 — Independence of the judiciary — Institutional independence of judiciary — Complete immunity is conferred on conduct of Judges and words spoken or written in discharge of judicial duties, from discussion in any legislature under Arts. 121 & 211, and from civil and criminal liability (per Lokur, J.) — Tort Law — Defamation — Penal Code, 1860 — Ss. 77, 499 and 500 — Judges (Protection) Act, 1985 — S. 3 — Evidence Act, 1872, S. 121

Held :

Per Khehar, J.

The contention that since there are sufficient safeguards to secure the independence of Judges of the higher judiciary after their appointment, and therefore, there is no need to postulate that in the matter of appointment also primacy must be in the hands of the judiciary, is not acceptable.

(Paras 126 and 302)

The concept of the “legitimate power of reciprocity” is highly relevant to deal with various psychological reasons which influence the personality of an individual. The reciprocity norm envisages that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate (“I helped you when you needed it, so you should feel obliged to do this for me.”) The inherent need of power is universally available in the subconscious of the individual. On the satisfaction and achievement of the desired power, there is a similar unconscious desire to reciprocate the favour. There is sufficient evidence to establish that favours do generate feelings of obligation and the desire to reciprocate. The available data suggests that a favour would lead to reported feelings of obligation on the part of its recipient.

(Paras 310 and 311)

Possibly one of the most potent compliance techniques is the rule of reciprocation which prompts one to repay what someone has given to him. When a gift is extended, the recipient feels indebted to the giver, often feels uncomfortable with this indebtedness, and feels compelled to cancel the debt, often against his/her better judgment. The rule of reciprocation is widespread across human cultures, suggesting that it is fundamental to creating interdependencies on which societies, cultures, and civilisations are built. In fact, the rule of reciprocation assures that someone who has given something away first has a relative assurance that this initial gift will eventually be repaid. In the above view of the matter nothing would be lost. There is an obligation to give, an obligation to receive, and an obligation to repay. It is in the above network of indebtedness that the first giver could exploit the favour and would rightfully assume the role of a compliance practitioner. And accordingly although the obligation to repay constitutes the essence of the reciprocity rule, it is the obligation to receive that makes the rule so easy to exploit. The person who gives first remains in control: and the person who is the recipient, always remains in debt. The above situation is often deliberately created and psychologically maintained. The more valuable, substantial and helpful the original favour, the more indebted the recipient would continue to feel. There is no human society on earth that does not follow the rule of reciprocity and humans live in a “web of indebtedness”. Therefore, reciprocity is a debt and a powerful psychological tool which is all but impossible to resist.

(Para 312)

Under the constitutional scheme in place in the United States of America, Federal Judges are nominated by the President and confirmed by the Senate. The issue being debated, namely, the concept of “the legitimate power of reciprocity”, therefore directly arises in the United States in the matter of appointment of Federal Judges. The first favour to the Federal Judge is extended by the President who nominates his name and further favours are extended by one or more Member(s) of the Senate, with whose support the Judge believes he won the vote of confirmation. An article on this issue reveals that on the issue of impartiality, an individual undertaking a federal judgeship confronts a difficult task. Contemporary lawyers commonly agree that the law is not wholly the product of neutral principles and that a Judge must choose among values as she shapes the law. Yet, the standards governing impartiality in Federal Courts largely assume that total judicial neutrality and dispassion are possible. The process of mapping out a personal framework for decision-making is therefore apt to create considerable discordance for the Judge. Added to this burden are the special pulls of gratitude and loyalty toward the individuals who made possible the Judge's job. It is sought to be shown that gratitude and loyalty can have a powerful influence for a Federal Judge undertaking to decide a case. The problem is complex because loyalty and gratitude pose a greater potential problem for some Judges than for others. This complexity emerges to a great degree from the process of nomination and confirmation, which often generates, or at least reinforces, a Judge's sense of loyalty and gratitude to her benefactors. It is concluded that thus, in studying any new selection procedure, the procedure's potential for creating and invigorating a Judge's feelings of loyalty and gratitude to her benefactors must be contemplated. The foregoing should, therefore, not only shed light on the process of Federal Court decision-making in general, but also give much needed guidance for evaluating proposed changes to judicial selection.

(Para 313)

Bertram Raven: “The Bases of Power and the Power/Interaction Model of Interpersonal Influence”, Analyses of Social Issues and Public Policy, Vol. 8, No. 1, 2008, pp. 1-22); Dennis T. Regan: “Effects of a Favour and Liking on Compliance”; Robert Cialdini, Regent's Professor Emeritus of Psychology and Marketing at Arizona State University: Influence: The Psychology of Persuasion, Chapter II titled — “Reciprocation”; Laura E. Little (Associate Professor of Law, Temple University School of Law: “Loyalty, Gratitude, and the Federal Judiciary” (1995), relied on

It is however pertinent to mention that it has also been has expressed, and what most moral philosophers believe, that gratitude has significant moral components. And further, that gratitude has a ready place in utilitarian moral systems which are designed to ensure the greatest good for the greatest number of individuals. The concept of gratitude is however intertwined with loyalty, as gratitude and loyalty are closely related. A beneficiary could show gratitude to a benefactor through an expression of loyalty. The point sought to be made is that in understanding loyalty one understands who we are in our friendships, loves, family bonds, national ties, and religious devotion. Insofar as the patterns of behaviour in the Indian cultural system are concerned, a child is always obligated to his parents for his upbringing, and it is the child's inbuilt moral obligation to reciprocate to his parents by extending unimpeachable loyalty and gratitude. The above position finds replication in relationships of teacher and taught, master and servant, and the like. In the existing Indian cultural scenario, an act of not reciprocating towards a benefactor would more often than not be treated as an act of grave moral deprivation. When the favour extended is as important as the position of Judgeship in the higher judiciary, one would best leave it to the individual imagination to determine the enormity of the reciprocal gratitude and loyalty. Eminent Indian Judges and jurists have this to say on the issues of gratitude, reciprocity and loyalty when it comes to appointment (and particularly supersession) of Judges:

(Para 314)

Justice M.C. Chagla in Roses in December — An Autobiography observed:

“The effect of these supersessions was most deleterious on the Judges of the Supreme Court who were in the line of succession to the Chief Justiceship. Each eyed the other with suspicion and tried to outdo him in proclaiming his loyalty to the Government either in their judgments or even on public platforms. If a Judge owes his promotion to the favour of Government and not to his own intrinsic merit, then the independence of the judiciary is inevitably lost.”

(Para 388) (emphasis supplied)

Justice H.R. Khanna in Neither Roses Nor Thorns observed:

“A couple of days before the pronouncement of judgment the atmosphere of tension got aggravated because all kinds of rumours started circulating and the name of the successor of the Chief Justice was not being announced. The announcement came on the radio after the judgment was pronounced and it resulted in the supersession of the three Senior Judges.

I felt extremely perturbed because in my opinion it was bound to generate fear complex or hopes of reward and thus undermine the independence of the judiciary. Immediately on hearing the news I went to the residence of Justice Hegde. I found him somewhat tense, as anyone in that situation would be, but he was otherwise calm. He told me that he, as well as Justice Shelat and Justice Grover who had been superseded, were tendering their resignations.

After the resignation of Shelat, Hegde and Grover, JJ. the court acquired a new complexion and I found perceptible change in the atmosphere. Many things happened which made one unhappy and I thought the best course was to get engrossed in the disposal of judicial work. The judicial work had always an appeal for me and I found the exclusive attention paid to it to be rewarding as well as absorbing.

One of the new trends was the change in the approach of the Court with a view to give a tilt in favour of upholding the orders of the Government. Under the cover of highsounding words like social justice the court passed orders, the effect of which was to unsettle settled principles and dilute or undo the dicta laid down in the earlier cases.”

(Para 389) (emphasis supplied)

H.M. Seervai in Constitutional Law of India — A Critical Commentary, observed:

“In Sankalchand Sheth case, Bhagwati, J. after explaining why the Chief Justice of India had to be consulted before a Judge could be transferred to the High Court of another State, said: ‘I think it was Mr Justice Jackson who said “Judges are more often bribed by their ambition and loyalty rather than by money”.’ In my submission in quoting the above passage Bhagwati, J. failed to realise that his only loyalty was to himself for, as will appear later, he was disloyal, inter alia, to his Chief, Chandrachud, C.J. in order to fulfil his own ambition to be the Chief Justice of India as soon as possible. That Bhagwati, J. was bribed by that ambition will be clear when I deal with his treatment in the Judges' case of Chief Justice Chandrachud's part in the case of Justice Kumar and Singh, C.J. It will interest the reader to know that the word ‘ambition’ is derived from ‘ambit, canvass for votes’…. Whether Bhagwati, J. canvassed the votes of one or more of his Brother Judges that they should disbelieve Chief Justice Chandrachud's affidavit-in-reply to the affidavit of Singh, C.J. is not known; but had he succeeded in persuading one or more of his Brother Judges to disbelieve that affidavit, Chandrachud, C.J. would have resigned, and Justice Bhagwati's ambition to be the next Chief Justice of India, would, in all probability, have been realised. However, his attempt to blacken the character and conduct of Chandrachud, C.J. proved futile because four of his Brother Judges accepted and acted upon the Chief Justice's affidavit and held that the transfer of Singh, C.J. to Madras was valid.”

(Para 390) (emphasis supplied)

Justice M.C. Chagla: Roses in December — An Autobiography; Justice H.R. Khanna: Neither Roses Nor Thorns; H.M. Seervai: Constitutional Law of India — A Critical Commentary, relied on

These considerations endorse the view that the political-executive as far as possible should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary, specially keeping in mind the enormity of the participation of the political-executive in actions of judicial adjudication. Reciprocity and feelings of pay back to the political-executive would be disastrous to independence of the judiciary. In this, we are only reiterating the position adopted by Dr B.R. Ambedkar. He feared that with the participation of the political-executive, the selection of Judges would be impacted by “political pressure” and “political considerations”. His view finds support from established behavioural patterns expressed by psychologists. It is in this background that it needs to be ensured that the political-executive dispensation has the least nexus with the process of finalisation of appointments of Judges to the higher judiciary.

(Para 315)

One would also ordinarily feel that the President of India and/or the Prime Minister of India in the discharge of their onerous responsibilities in running the affairs of the country, practically all the time take decisions having far-reaching consequences not only in the matter of internal affairs of the country on the domestic front but also in the matter of international relations with other countries. One would expect that vesting the authority of appointment of Judges to the higher judiciary with any one of them should not ordinarily be suspect of any impropriety. Yet the Constituent Assembly did not allow any of them any defined participatory role. In fact, the debate in the Constituent Assembly removed the participation of the political-executive component because of fear of being impacted by “political-pressure” and “political considerations”. Was the view of the Constituent Assembly, and the abovenoted distrust, legitimate?

(Para 309)

It cannot be overlooked that the respondents had conceded that there were certain political upheavals which had undermined the independence of the judiciary including an executive overreach at the time of appointment of the Chief Justice of India in 1973 followed by the mass transfer of Judges of the higher judiciary during the Emergency in 1976, and thereafter a second supersession at the time of appointment of another Chief Justice of India in 1977. And further, the interference by the executive in the matter of appointment of Judges to the higher judiciary during the 1980s.

(Para 347)

An important issue that will need determination before the organic structure of the Constitution is altered in the manner contemplated by the impugned constitutional amendment would be: whether civil society has been able to manoeuvre its leaders towards national interest? And whether the strength of civil society is of a magnitude as would be a deterrent for any overreach by any of the pillars of governance? At the present juncture, it seems difficult to repose faith and confidence in civil society to play any effective role in that direction. For the simple reason that it is not yet sufficiently motivated nor adequately determined to be in a position to act as a directional deterrent for the political-executive establishment. It is therefore, that the higher judiciary which is the saviour of the fundamental rights of the citizens of this country by virtue of the constitutional responsibility assigned to it under Articles 32 and 226 of the Constitution, must continue to act as the protector of civil society. This would necessarily contemplate the obligation of preserving the Rule of Law by forestalling the political-executive from transgressing the limits of their authority as envisaged by the Constitution.

(Para 348)

Lest one is accused of having recorded any sweeping inferences, it will be necessary to record the reasons for the above conclusion. The Indian Express, on 18-6-2015, published an interview with L.K. Advani, a veteran BJP Member of Parliament in the Lok Sabha under the caption “Ahead of the 40th Anniversary of the Imposition of the Emergency on 25-6-1975”. His views were dreadfully revealing. In his opinion, forces that could crush democracy were now stronger than ever before. He asserted, “I do not think anything has been done that gives me the assurance that civil liberties will not be suspended or destroyed again. Not at all”!! It was also his position that the Emergency could happen again. While acknowledging that the media today was more alert and independent as compared to what it was when Emergency was declared by the then Prime Minister Indira Gandhi forty years ago, in his perception, the media did not have any real commitment to democracy and civil liberties. With reference to civil society, he pointed out that hopes were raised during the Anna Hazare mobilisation against corruption, which according to him, ended in a disappointment even with reference to the subject of corruption. This when the poor and downtrodden majority of this country can ill afford corruption. Of the various institutions that could be held responsible for the proper functioning of democracy in this country, he expressed that the judiciary was more responsible than the other institutions.

(Para 349)

On the above interview, Mani Shankar Aiyar, a veteran Congress Member of Parliament in the Rajya Sabha, while expressing his views noticed that India could not be “Emergency proof” till the Constitution provided for the declaration of Emergency at the discretion of an elected Government. He pointed out that it should not be forgotten that in 1975 Emergency had been declared within the framework of the Constitution. It was therefore suggested that one of the solutions to avoid a declaration of Emergency could be to remove Part XVIII of the Constitution or to amend it and “to provide for only an external Emergency”. He however raised a poser, whether it would be practical to do so? One would venture to answer the same in the negative. And in such situation to trust that the elected Government would act in the interest of the Nation. The stance of L.K. Advani was affirmed by Sitaram Yechury, a veteran CPI (Marxist) Member of Parliament in the Rajya Sabha, who was arrested, like L.K. Advani, during the Emergency in 1975.

(Paras 350 and 351)

The present NDA Government was sworn in on 26-5-2014. One believes that thereafter thirteen Governors of different States and one Lieutenant Governor of a Union Territory tendered their resignations in no time. Some of the Governors demitted their office shortly after they were appointed by the previous UPA dispensation. That is despite the fact that a Governor under the constitutional mandate of Article 156(3) of the Constitution has a term of five years from the date he enters upon his office. A Governor is chosen out of persons having professional excellence and/or personal acclaim. Each one of them would be eligible to be nominated to NJAC as an “eminent person” under Article 124-A(1)(d). One wonders whether all these resignations were voluntary. The above depiction is not to cast any aspersion. As a matter of fact, its predecessor — the UPA Government had done just that in 2004.

(Para 352)

It is necessary to appreciate that the Constitution does not envisage the “spoils system” (also known as the “patronage system”) wherein the political party which wins an election gives Government positions to its supporters, friends and relatives as a reward for working towards victory and as an incentive to keep the party in power.

(Para 353)

It is also relevant to indicate the images of the spoils system are reflected from the fact that a large number of persons holding high positions in institutions of significance likewise resigned from their assignments after the present NDA Government was sworn in. Some of them had just a few months before their tenure would expire — and some, even less than a month. Those who left included bureaucrats from the All India Services occupying coveted positions at the highest level, Directors/Chairmen of academic institutions of national acclaim, constitutional authorities (other than Governors), Directors/Chairmen of National Research Institutions, and the like. Seriously, the instant narration is not aimed at vilification, but of appreciation of the ground reality, how the system actually works.

(Para 354)

What emerges is, trappings of the spoils system, and nothing else. None of the above parameters can be adopted in the matter of appointment of Judges to the higher judiciary. For the judiciary, the best out of those available have to be chosen. Considerations cannot be varied with a change in Government. Demonstrably, that is exactly what has happened (repeatedly?) in the matter of non-judicial appointments. It would be of utmost importance therefore, to shield judicial appointments from any political-executive interference to preserve the independence of the judiciary from the regime of the spoils system. Preserving primacy in the judiciary, in the matter of selection and appointment of Judges to the higher judiciary would be a safe way to do so.

(Para 355)

In conclusion, it is difficult to hold, in view of the factual position expressed above, that the wisdom of appointment of Judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary to safeguard the rights of the citizens of this country can only be ensured by keeping it absolutely insulated and independent from the other organs of governance. In our considered view, the present status of the evolution of “civil society” in India does not augur the participation of the political-executive establishment in the selection and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court to another.

(Para 356)

Furthermore, not only the above, but the jurisdictions that have to be dealt with by Judges of the higher judiciary are large and extensive. Within the above jurisdictions, there are a number of jurisdictions in which the executive is essentially a fundamental party to the lis. This would inter alia include cases arising out of taxing statutes which have serious financial implications. The executive is singularly engaged in the exploitation of natural resources, often through private entrepreneurs. The sale of natural resources which also have massive financial ramifications, is often subject to judicial adjudication, wherein also the executive is an indispensable party. Challenges arising out of orders passed by tribunals of the nature of the Telecom Disputes Settlement and Appellate Tribunal and the Appellate Tribunal for Electricity, and the like are also dealt with by the higher judiciary where also the executive has a role. Herein also, there could be massive financial implications. The executive is also a necessary party in all matters relating to environmental issues including appeals from the National Green Tribunals. Not only in all criminal matters, but also in high-profile scams, which are no longer a rarity, the executive has an indispensable role. In these matters, sometimes accusations are levelled against former and incumbent Prime Ministers and Ministers of the Union Cabinet and sometimes against former and incumbent Chief Ministers and Ministers of the State Cabinets. Even in the realm of employment issues, adjudication rendered by the Central Administrative Tribunal and the Armed Forces Appellate Tribunal come up before the Judges of the higher judiciary. These adjudications also sometimes include high-ranking administrators and armed forces personnel. Herein too, the executive is an essential constituent. This is only a miniscule part of the extensive involvement of the political-executive in litigation before the higher judiciary.

(Para 316)

Since the executive has a major stake in a majority of cases which arise for consideration before the higher judiciary, the participation of the Union Minister in charge of Law and Justice as an ex officio Member of NJAC would be clearly questionable. In today's world, people are conscious and alive to the fact that their rights should be adjudicated in consonance with the rules of natural justice. One of the rules of natural justice is that the adjudicator should not be biased. This would mean that he should neither entertain a prejudice against either party to a lis nor should he be favourably inclined towards any of them. Another component of the rule of bias is that the adjudicator should not have a conflict of interest with the controversy he is to settle. What needs to be highlighted is that bias, prejudice, favour and conflict of interest are issues which repeatedly emerge. Judges are careful to avoid adjudication in such matters. Judges are not on one or the other side of the adjudicatory process. The political-executive in contrast, in an overwhelming majority of cases, has a participatory role. In that sense, there would/could be an impact/effect of a decision rendered one way or the other. A success or a defeat — a win or a loss. The plea of conflict of interest would be available against the executive, if it has a participatory role in the final selection and appointment of Judges, who are then to sit in judgment over matters, wherever the executive is an essential and mandatory party.

(Para 317)

Consequent upon the participation of the Union Minister in charge of Law and Justice, a Judge approved for appointment with the Minister's support may not be able to resist or repulse a plea of conflict of interest raised by a litigant in a matter when the executive has an adversarial role. In NJAC, the Union Minister in charge of Law and Justice would be a party to all final selections and appointments of Judges to the higher judiciary. It may be difficult for Judges approved by NJAC to resist a plea of conflict of interest (if such a plea was to be raised, and pressed) where the political-executive is a party to the lis. The above would have the inevitable effect of undermining the independence of the judiciary even where such a plea is repulsed. Therefore, the role assigned to the political-executive can at best be limited to a collaborative participation, excluding any role in the final determination. Therefore, merely the participation of the Union Minister in charge of Law and Justice in the final process of selection as an ex officio Member of NJAC would render the amended provision of Article 124-A(1)(c) as ultra vires the Constitution as it impinges on the principles of independence of the judiciary and separation of powers.

(Paras 319 and 406)

Madras Bar Assn. v. Union of India, (2014) 10 SCC 1 (Five-Judge Bench), explained and applied

Supreme Court Advocates-On-Record Assn. v. Union of India, (2015) 6 SCC 408, 410 (para 11), referred to

Per Lokur, J.

What are the attributes of an independent judiciary? It is impossible to define them, except illustratively. The Bangalore Principles of Judicial Conduct, 2002 lay down six essential values for a Judge (and which are accepted worldwide both in civil law and common law countries) are: independence, impartiality, integrity, propriety, equality, competence and diligence. At this stage, it is worth recalling the words of Sir Ninian Stephen, a former Judge of the High Court of Australia who memorably said an independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed. It is this fragile bastion that needs protection to maintain its independence and if this fragile bastion is subject to a challenge, constitutional protection is necessary.

(Paras 713 and 756)

Independence of the judiciary under the Constitution has to be interpreted within the framework and the parameters of the Constitution. The framework and parameters of the law are also required to be taken into consideration. The concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong.

(Para 725)

The independence of the judiciary takes within its fold the following broad concepts: (1) Independence of an individual Judge, that is, decisional independence i.e. the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is “decisional independence”; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. A comprehensive and composite definition of the “independence of the judiciary” is elusive but it is easy to perceive.

(Paras 714 and 726)

What is essential is that decisional independence be guaranteed to judicial officers. The core of judicial independence is freedom from influence in the central judicial task of adjudicating disputes about legal rights that arise between private parties, between the State and private parties, and (in a federation) between components of the State. The core is protected through institutional arrangements such as tenure, remuneration and the jurisdictional separation of powers.

(Para 917)

As far as individual independence or decisional independence is concerned, the Constitution provides security of tenure of office till the age of 65 years for a Judge of the Supreme Court. However, the Judge may resign earlier or may be removed by a process of impeachment on the ground of proved misbehaviour or incapacity. To give effect to this, Parliament has enacted the Judges (Inquiry) Act, 1968. The procedure for the impeachment of a Judge is that a motion may be passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than 2/3rd members of that House present and voting in the same session. To maintain the integrity and independence of the judiciary, the impeachment process is not a cake walk.

(Para 715)

A Judge's salary, privileges, allowances, leave of absence and pension and such other privileges, allowances and rights mentioned in the Second Schedule of the Constitution are protected and will not be varied to his/her disadvantage after appointment. To give effect to this, Parliament has enacted the Supreme Court Judges (Conditions of Service) Act, 1958. The salary, allowances and pension payable to or in respect of a Judge of the Supreme Court is charged to the Consolidated Fund of India. The estimate of this expenditure may be discussed but shall not be submitted to the vote of Parliament. As far as this subject is concerned in respect of a Judge of the High Court, there is an extensive reference in Sankalchand Himatlal Sheth, (1977) 4 SCC 193 (Five-Judge Bench). Broadly, the constitutional protections and provisions for a Judge of the High Court are the same as for a Judge of the Supreme Court.

(Para 716)

A Judge of the High Court has security of tenure till the age of 62 years and the removal process is the same as for a Judge of the Supreme Court. The salary, privileges, allowances, right of leave of absence and pension, etc. are protected by Article 221 of the Constitution. While the salary and allowances are charged to the Consolidated Fund of the State, the pension payable is charged to the Consolidated Fund of India. As in the case of the Supreme Court, the estimate of this expenditure may be discussed but shall not be submitted to the vote of the Legislative Assembly. The conditions of service of a High Court Judge are governed by the High Court Judges (Salaries and Conditions of Service) Act, 1954 in terms of Article 221 of the Constitution.

(Para 717)

This entire package of rights and protections ensures that a Judge remains independent and is free to take a decision in accordance with law unmindful of the consequences to his/her continuance as a Judge. This does not mean that a Judge may take whatever decision he/she desires to take. The parameters of decision-making and discretion are circumscribed by the Constitution, the statute and the Rule of Law. This is the essence of decisional independence, not that Judges can do as they please. Judicial independence is not conferred so Judges can do as they please. Judicial independence is conferred so Judges can do as they must.

(Paras 718 and 719)

As far as decisional independence is concerned, a good example of the protection is to be found in Anderson, (1895) 1 QB 668 (CA) where it was said by Lord Esher M.R. (QB p. 670) that the question arises whether there can be an action against a Judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie. Explaining this, Lord Bridge of Harwich said in McC. (A Minor), In re, 1985 AC 528 (AC p. 541) that the principle underlying this rule is clear. If one Judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest Judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.

(Para 720)

[Ed.: This statement of English law appears to hold good in India as well, since Section 77 IPC provides that: “nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law”. Section 77 IPC has also been referred to below as protecting institutional independence of the judiciary as well.]

It is inescapable that politics will have a role to play in the appointment process. However, if appointments are perceived to be made on the basis of political patronage there is a threat to (at least the appearance of) decisional independence. It is impossible—and undesirable—to remove the political entirely from the appointments process. Indeed, ‘political’ considerations, in the sense of responsibility and accountability for appointments, need to be intensified rather than obscured. What an appointments model should attempt to do is attenuate the direct influence of the political branch on the appointment process and subject its involvement in the appointment process to greater transparency and accountability, while preserving all the existing constitutional arrangements for ensuring decisional independence.

(Para 917)

As far as institutional independence is concerned, our Constitution provides for it as well. For the Supreme Court, institutional independence is provided for in Article 129 which enables the institution to punish for contempt of itself. A similar provision is made for the High Court in Article 215. The law declared by the Supreme Court shall be binding on all courts within the territory of India. All authorities, civil and judicial are obliged to act in aid of the Supreme Court. The Supreme Court is entitled to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and such decree or order shall also be enforceable throughout the territory of India. Subject to a law made by Parliament, the Supreme Court is entitled to frame rules to regulate its practice and procedure. The Chief Justice of India is empowered to appoint officers and “servants” of the Supreme Court but their conditions of service shall be regulated by rules made by the Supreme Court (subject to approval by the President) or by law made by Parliament. The administrative expenses of the Supreme Court, including expenses related to its officers and “servants” shall be charged upon the Consolidated Fund of India.

(Para 721)

Significantly, no discussion shall take place in Parliament with respect to the conduct of a Judge of the Supreme Court or the High Court, except in proceedings for impeachment. Similarly, the Legislature of a State shall not discuss the conduct of a Judge of the Supreme Court or the High Court in the discharge of his or her duties.

(Para 722)

In addition to the above, there are other general protections available to an individual Judge or to the institution as such. Through Article 50 which is a provision in Part IV of the Constitution (Granville Austin in The Constitution: Cornerstone of a Nation describes Part III and Part IV of the Constitution as “the conscience of the Constitution”) the judiciary shall be insulated from executive interference.

(Para 723)

Under the general law of civil liability (Tort Law), words spoken or written in the discharge of his judicial duties by a Judge of the High Court are absolutely privileged and no action for defamation can lie in respect of such words. This absolute immunity is conferred on the Judges on the ground of public policy, namely, that they can thereby discharge their duty fearlessly. Similarly, Section 3 of the Judges (Protection) Act, 1985 provides, inter alia, that no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. This is in addition to the protection given by Section 77 of the Penal Code, 1860 which provides that: “nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.”

(Paras 723 and 724)

Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench), followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), followed on this point

Anderson v. Gorrie, (1895) 1 QB 668 (CA); McC. (A Minor), In re, 1985 AC 528 : (1984) 3 WLR 1227 : (1984) 3 All ER 908 (HL), considered

Southey Memorial Lecture, 1981; Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and Wales; ; Granville Austin: Indian Constitution: Cornerstone of a Nation, 164, referred to

Financial independence of the judiciary is one area which is also critical to the independence of the judiciary but is among the least discussed. In a letter of 15-6-2008 forwarding the Report of the Task Force on “Judicial Impact Assessment” it was pointed out by Justice M. Jagannadha Rao (Retired) to the Minister for Law and Justice that “the Planning Commission and Finance Commission must make adequate provision in consultation with the Chief Justice of India, for realisation of the basic human rights of ‘access to justice’ and ‘speedy justice’ both civil and criminal. The present allocation of 0.071%, 0.078% and 0.07% of the Plan outlay in the 9th, 10th and 11th Plan are wholly insufficient.”

(Para 739)

; ; ; ; J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice (Report of Research Undertaken by Bingham Centre for the Rule of Law) para 0.2.9, referred to

Providing for an independent judiciary is not enough—access to quality justice achieved through the appointment of independent Judges is equally important i.e. methodological independence. One of the important features of the Rule of Law and the independence of the judiciary is the appointment process. In fact, the appointment of a Judge is a serious business and is recognised as a very vital component of the independence of the judiciary. The independence of the judiciary is vital to democracy and there ought to be a separation between the executive and the judiciary. The independence of the judiciary begins with the appointment of a Judge. An independent judiciary begins with who appoints what calibre of Judges. It must be appreciated and acknowledged that methodological independence, namely, the recommendation and appointment of Judges to a superior court is an important facet of the independence of the judiciary. If a person of doubtful ability or integrity is appointed as a Judge, there is a probability of his/her succumbing to internal or external pressure and delivering a tainted verdict. This will strike at the root of the independence of the judiciary and destroy the faith of the common person in fair justice delivery. Therefore, there is a great obligation and responsibility on all constitutional functionaries, including the Chief Justice of India and the President, to ensure that not only are deserving persons appointed as Judges, but that deserving persons are not denied appointment.

(Paras 515, 516, 518.2 and 740)

The appointment of Judges—by whom, according to what standards and process, and with what outcome—is of critical importance. To maintain a judiciary that is independent, which makes good decisions, and in whom the public can continue to have confidence, we need to appoint the most meritorious candidates and secure a judiciary that is as reflective as possible of the society it is serving. And we need to get it right the first time, every time, because, once appointed to a full-time salaried position, Judges may not be removed from office other than in the most extreme of circumstances. Therefore, in the appointment of a Judge, it is not only (negatively expressed) that a “wrong person” should not be appointed but (positively expressed) the best talent, amongst lawyers and judicial officers should be appointed as Judges of the High Court and the best amongst the Judges of the High Courts or amongst advocates or distinguished jurists should be appointed to the Supreme Court. It has been stated in the 14th Report of the Law Commission of India that the selection of Judges is of pivotal importance to the progress of the nation and that responsibility must be exercised with great care.

(Paras 748 and 749)

The Constituent Assembly was well aware of the misuse and abuse of power by the executive, having fought for our freedom and knew and understood the value of an independent judiciary. It is for this reason that the Constituent Assembly gave prime importance to the independence of the judiciary and perhaps spent more time debating it than any other topic.

(Paras 727 and 932)

Independence of the judiciary has to be safeguarded not only by providing security of tenure and other conditions of service, but also by preventing political considerations in making appointments of Judges to the superior judiciary. No one can doubt and, indeed, even the respondents did not doubt that the independence of the judiciary is absolutely necessary. But, the independence of the judiciary is not an end in itself. Instead, the aim is to secure an independent judiciary that will discharge its fundamental responsibilities, which include a crucial role in upholding the rule of law. In addition, the judiciary should clearly be separate from the executive.

(Paras 536.1 and 738)

Underscoring the importance of the appointment of independent Judges (to Americans, and this would equally apply to Indians) it has been said that judicial appointments are important because Judges matter, not just to academics, politicians, and practitioners, but to all Americans. Judges play an increasingly significant role in everyday life decisions. It follows that the process by which they are selected matters. It likewise follows that because of the perceived importance of appointing Judges, the appointments process breeds contention. Without an independent judiciary, not only are “everyday life decisions” affected but a dominant executive can ensure that the statutory rights would have no meaning and the fundamental rights of the people of the country can be easily trampled upon. Highlighting the impact of the judiciary (generally) on the Rule of Law and particularly on the rights and interests of individuals, Mason, C.J. of Australia had this to say: another factor relevant to the mode of selection of Judges is the judiciary's position as an important branch or institution of Government. The Judges exercise public power in a way that has substantial impact upon the rights and interests of individuals and upon the making of important decisions by Government, Government agencies and other organisations.

(Paras 930 and 931)

The issue of how Judges are appointed is important in two respects. First, appointment procedures impact directly upon the independence and impartiality of the judiciary. Since the legitimacy and credibility of any judicial institution depends upon public confidence in its independence, it is imperative that appointment procedures for judicial office conform to—and are seen to conform to—international standards on judicial independence. Second, without the effective implementation of objective and transparent criteria based on proper professional qualification, there is the very real possibility that the Judges selected will not have the requisite skills and abilities to discharge their mandate. Declining standards will ultimately impact negatively on the standing of the court.

(Para 750)

Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932, referred to

Granville Austin — “Working a Democratic Constitution: The Indian Experience”, p. 124; 14th Report of the Law Commission of India, Chapter 5; “Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights”; Contributors: Professor Dr Jutta Limbach, Professor Dr Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr Andrzej Zoll. , Commonwealth Principles on the Accountability of and the Relationship Between the Three Branches of Government, As agreed by Law Ministers and endorsed by the Commonwealth Heads of Government Meeting, Abuja, Nigeria, 2003; Jack Straw, Lord Chancellor in United Kingdom (2007 to 2010): 64th series of Hamlyn Lectures in 2012 titled Aspects of Law Reform — An Insider's Perspective, 3rd lecture on 4-12-2012 on “Judicial Appointments”; Judges on Trial: The Independence and Accountability of the English Judiciary, Chapter 4, “Judicial Appointments” (Second Edn., Cambridge University Press 2013) 102; Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, As amended at Manila on 28-8-1997, referred to

Tragically, almost all the appointments made during the period the executive had the “ultimate power” under the First Judges case dispensation, had the concurrence (as a constitutional convention) of the Chief Justice of India and yet, there was criticism of some of the appointments made. While the independence of the judiciary was maintained at law, it was being slowly eroded both from within and without through the appointment of “unsuitable” Judges with merit occasionally taking a side seat. The discussion in the historical perspective (in paras 490 to 511) indicates that the appointment of Judges plays a crucial and critical role in the independence of the judiciary in the real sense of the term. If Judges can be influenced by political considerations and other extraneous factors, the judiciary cannot remain independent only by securing the salary, allowances, conditions of service and pension of such Judges. The meat lies in the calibre of the Judges and not their perks. The malaise of executive interference in appointing Judges to the superior judiciary, first highlighted in the Memorandum emanating from the Chief Justices Conference and then by the Law Commission of India in its 14th Report, continued in some form or the other through the entire period from Independence till the early 1990s. Well-established and accepted constitutional conventions were sought to be disregarded by the political-executive. If the independence of the judiciary was to be maintained and parliamentary democracy was to be retained, the First Judges case and the appointment process needed a fresh look.

(Paras 490 to 513, 529 and 530)

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), referred to

Far from disputes “very rarely” arising between citizens and the Government as envisaged by Dr Ambedkar, today the Government is unashamedly the biggest litigant in the country. It is true that the Union of India is the largest litigant in the country and that was recognised in the Second Judges case and noticed that the role of the executive being the largest single litigant before the courts, was one of the vital aspects which were not adverted to by the Supreme Court in the First Judges case while interpreting the constitutional provisions. In England too the executive is the “most frequent litigator” and the position seems to be no better than in our country. Principally, it was contended that the Union of India is the biggest litigant in the courts and to have the Law Minister as a member of NJAC might prove detrimental to a fair selection, if not counterproductive.

(Paras 471, 473 and 909 to 911)

Can there be an independent judiciary when the power of appointment of Judges vests in the executive? To say yes, would be illogical. The independence of judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the higher judiciary. Independence of judiciary is basic feature of our Constitution and the Framers of the Constitution could have never intended to give this power to the executive. Even otherwise the Governments — Central or the State — are parties before the Courts in large number of cases. The Union Executive have vital interests in various important matters which come for adjudication before the Apex Court. The executive — in one form or the other — is the largest single litigant before the courts. In this view of the matter the judiciary being the mediator — between the people and the executive — the Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the executive. In view of this, there can be no doubt that the Government of India is a major litigant and for a Cabinet Minister to be participating (and having a veto) in the actual selection of a Judge of a High Court or the Supreme Court is extremely anomalous.

(Para 912)

Historically, and I have quoted chapter and verse from virtually every relevant committee in this regard, the executive was always intended to be kept out of the decision-taking process in the matter of appointment of Judges. What is sought to be achieved by including the Law Minister in NJAC is to cast a doubt on the wisdom of legal luminaries, Dr Ambedkar and the Constituent Assembly in keeping the executive out of the decision-taking process in the appointment of Judges.

(Para 913)

Nevertheless, it is true that inputs from the executive are important in the process of taking a decision whether a person should or should not be appointed as a Judge of a High Court or the Supreme Court. But providing inputs by the executive is quite different from the process of taking a decision by the executive or the executive being involved in the process of taking a decision. While it must be acknowledged that the Law Minister is only one of six in NJAC but being a Cabinet Minister representing the entire Cabinet and the Government of India in NJAC, the Law Minister is undoubtedly a very important and politically powerful figure whose views can, potentially, have a major impact on the views that other members of NJAC may hold. Since the Law Minister is, by virtue of the office held, potentially capable of influencing the decision of a member of NJAC, it would be inappropriate for the Law Minister to be a part of the decision-taking process. The selection process must not only be fair but must appear to be fair.

(Para 914)

There is a distinction between the Law Minister providing inputs to the Chief Justice of India and the Law Minister having a say in the final decision regarding the appointment of a Judge of a High Court or the Supreme Court. While the former certainly cannot be objected to and in fact would be necessary, it is the participation in the decision-taking process that is objectionable. In other words, the Law Minister might be a part of the decision-making process (as the position was prior to the 99th Constitution Amendment Act) but ought not to be a part of the decision-taking process. This distinction is quite crucial. The voting participation of the Law Minister in the decision-taking process goes against the grain of the debates in the Constituent Assembly and clearly amounts to an alteration of the basic structure of the Constitution.

(Para 921)

The struggle for the independence of the judiciary has always been pivoted around the exclusion of the executive in decision-taking, but the inclusion of the Law Minister in NJAC is counter-productive, historically counter-majoritarian and goes against the grain of various views expressed in various committees—more so since the Law Minister can exercise a veto in the decision-taking body; the presence of the Law Minister in NJAC is totally unnecessary and ill-advised; the presence of the Law Minister in NJAC casts a doubt on the principle of Cabinet responsibility.

(Para 923)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, overruled

“Appointing Australian Judges: A New Model by Simon Evans and John Williams”, 2008 Sydney Law Review, Vol. 30, p. 295. See ; , referred to

The involvement of the executive in NJAC does not stop with the Law Minister being one of its members. The Secretary to the Government of India in the Department of Justice is the Convenor of NJAC in terms of Section 8(3) of the NJAC Act. The duties and responsibilities of the Convenor have not been delineated in the NJAC Act and, as mentioned above, the rules and regulations under the Act have not been framed. It is, therefore, difficult to appreciate the functions that the Convenor is expected to perform.

(Para 947)

That apart, the Secretary is an officer of the Government and is not answerable to NJAC. The Secretary is paid a salary and allowances from the government coffers. This is quite unlike officers of the High Courts or the Supreme Court who are directly answerable to their respective Chief Justice. Moreover, their salary and allowances are charged upon the Consolidated Fund of India. The “independence” of these officers is maintained while that of the Secretary to the Government of India in the Department of Justice is not. Moreover, the Secretary holds a transferable position and can be changed at the whims and fancies of the executive, depriving NJAC of continuity and, in a sense, leaving it high and dry whenever it pleases the executive. This is clearly objectionable.

(Para 948)

Per A.K. Goel, J.

The concept of primacy of judiciary in appointment of Judges comprises of initiating the proposal and taking a final decision in case any adverse feedback is received after the proposal is initiated. This concept of primacy is compromised if the judiciary is unable to initiate a proposal in the first instance or if such proposal can be effectively rejected. The impact thereof being that the appointment of Judges could be made under the influence of the executive represented by the Law Minister or the non-Judge members in NJAC, in whose appointment the predominant voice is not of the judiciary. The impact of such appointments will be that the Judges appointed will owe their appointments to the executive which may be destructive of the public confidence and impartiality of the judiciary and adversely affect the role of the judiciary as an important impartial constitutional organ. The role of the judiciary is to define and regulate working of other constitutional authorities within the scope of roles assigned to them.

(Para 1095)

The judiciary has an apolitical commitment in its functioning. The judiciary has been assigned the role of determining powers of every constitutional organ as also the rights of individuals. The disputes may arise between the Government of India and the States, between a citizen and the State or between a citizen and a citizen. Disputes relating to the powers of the Union Legislature and the State Legislature or the exercise of the executive power may involve issues of constitutionality or legality. It may involve allegations of mala fides even against the highest constitutional dignitaries. This requires an impartial and independent judiciary. The judiciary is required to be separate from the executive control. The judiciary has to inspire confidence of the people for its impartiality and competence. It has not been disputed that independence of the judiciary is part of the basic structure. It is also undisputed that judicial review is part of basic structure. Broad separation of powers between the three departments of the State is a part of the doctrine of checks and balances. It is also a part of democracy. Independence of the judiciary is integral to the entire scheme of the Constitution without which neither primacy of the Constitution nor federal character, social democracy nor rights of equality and liberty can be effective.

(Paras 1035 and 1034)

At times exercise of powers of judicial review by the constitutional courts may not be to the liking of the executive or the legislature. Particular instances have been given of decisions of the Supreme Court in 2G Spectrum case and Coal Scam case where actions of the executive were found to be violative of constitutional obligations causing huge loss to the public exchequer. Arbitrary distribution of State largesse by way of giving scarce resources or contracts or jobs or positions of importance akin to the “spoils system” have been held by the Supreme Court to be in violation of the Constitution. Policies of the State for arbitrary acquisition of land or in violation of environmental laws have been struck down by the Supreme Court. Dissolution of State Assemblies and dismissal of State Governments have also been struck down by the Supreme Court. The Supreme Court also had to deal with the issues arising out of decisions of Speakers in recognising or otherwise the defections in the Central or State Legislatures. There are innumerable instances when the courts have to deal with validity of legislative or executive decisions of far-reaching nature. It is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of Judges, which is integral to functioning of judiciary is influenced or controlled by the executive, it will certainly affect impartiality of Judges and their functioning. Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded.

(Para 1054)

The contention that the 99th Amendment strengthens the independence of the judiciary or the democracy or brings about transparency or accountability is not shown to be based on any logic beyond the words. Even if in appointing two eminent members, the CJI is also a member of the Committee, the fact remains that the PM and the Leader of the Opposition have a significant role in appointing such members, who will have power not only equal to the CJI and two seniormost Judges of the Supreme Court in making appointment of Judges of the Supreme Court and appointment/transfer of Judges of the High Courts, but also the right to reject the unanimous proposal of the CJI and the two seniormost Judges. Such composition of NJAC cannot be held to be conducive to the independence of the judiciary. Appointment of Judges of the Supreme Court and appointment/transfer of Judges of the High Courts, can certainly be influenced to a great extent by the Law Minister and two nominated members who are part of NJAC, thereby affecting the independence of the judiciary.

(Paras 1080 and 1090 to 1093)

The plea that the Law Minister and the nominated members will provide feedback also does not provide any justification for their being members of the Commission and thereby participating in evaluation and suitability of a candidate for appointment as Judge of the Supreme Court or High Courts and having the power to overrule unanimous view of Judges. The appointment of a Judge of the Supreme Court is normally made out of Chief Justices of High Courts or senior Judges or eminent lawyers or eminent jurists whose merit is better known to senior Judges. Their evaluation has to be impartial and free from any political or other considerations. Persons making the selection are required to be best placed to assess their merit and suitability. Predominant and decisive role of the judiciary is a requirement not only of independence of the judiciary and separation of powers but also for inspiring confidence of the people at large necessary for strength of the democracy. Citizens having a grievance of violation of their fundamental and legal rights against the executive or the legislature expect that their grievance is considered by persons whose appointments are not influenced by the executive or the legislature. If an appointment is perceived as being influenced by political consideration or any other extraneous influence, faith in impartiality, which is the hallmark of independence of the judiciary, will be eroded.

(Para 1083)

Under the new NJAC scheme, the Law Minister has been given a role equal to the CJI. Right from the commencement of the Constitution, this role of the Law Minister was never envisaged while initiating the process and finalising it. The Law Minister, in a participatory scheme, could at best suggest a name or give his comments on the names proposed but the proposal could and was always initiated by the CJI. At the stage of initiation, if equal authority is conferred, this will erode the primacy of the judiciary in appointment of Judges as declared by the Supreme Court authoritatively. Any deviation in the past was always adversely commented upon and held to be undesirable amounting to interference with the independence of the judiciary. The other two persons to be nominated by a committee which also has predominant political voice to be placed on a par with the CJI in initiating and finalising a proposal destroys the original scheme beyond its identity. Any suggestion before initiation of a name or feedback even after initiation may be useful and may not affect the independence of the judiciary but equal participation by the Law Minister and two outsiders in the final decision for initiation or appointment can be detrimental to the independence of the judiciary. It cannot be wished away by presuming that the Law Minister and the two persons will not be influenced by any extraneous consideration. Such a presumption will be contrary to the acknowledged factual experience. It will also be against the concept of separation of the judiciary from the executive. Moreover, this will be contrary to the basic intention of the Constitution Makers.

(Para 1090)

If the 99th Amendment had merely provided for an advisory or recommendatory role to the Law Minister or the non-judicial members with the professed object of transparency and accountability, the situation may have been different. It may not have, in that case, interfered with the primacy of the judiciary in appointment of Judges which is the mandate of the Constitution. Such power cannot be justified under the doctrine of wisdom of Parliament nor on the principles of trust, once such power is in violation of the principle of primacy of judiciary in appointment of Judges. No individual instance either of working of the executive or the legislature or the existing system of appointment of Judges need be discussed as the issue involved here is of interpretation of the Constitution and not of success or failure of any individual or persons. The shortcomings in working of every institution may need to be removed by constant efforts constitutionally permissible but cannot justify the altering of the framework of the Constitution or the same being damaged.

(Para 1096)

Per Chelameswar, J.

Independence of the judiciary is one of the basic features of the Constitution and the power of judicial review of legislative action by the constitutional courts is part of the basic structure of the Constitution and the exercise of such important function demands the existence of an independent judiciary. The text of the Constitution bears ample testimony for the proposition that the Constitution seeks to establish and nurture an independent judiciary. The Makers of the Constitution were eloquent about it. Various articles of the Constitution seek to protect independence of the judiciary by providing appropriate safeguards against unwarranted interference either by the legislature or the executive, with the Judges' conditions of service and privileges incidental to the membership of the constitutional courts, such as salary, pension, security of tenure of the office, etc. Such protections are felt necessary not only under our Constitution, but also several other democratic Constitutions (the details of some of them have been noticed in paras 1132 to 1134). Such protections are incorporated in the light of the experience and knowledge of history. Various attempts made by the Governments to subvert the independence of the judiciary were known to the makers of those Constitutions and also the Makers of our Constitution.

(Para 1176)

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, relied on

The masses and litigants only want that their cases should be decided quickly by the Judges who generate confidence. The question is—what is the formula by which the Judges—who can decide cases quickly and also generate confidence in the masses and litigants—be produced? What are the qualities which make a Judge decide cases quickly and also generate confidence?

(Para 1126)

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), relied on, on this point

Deep learning in law, an incisive and alert mind to quickly grasp the controversy, energy and commitment to resolve the problem, are critical elements which make a Judge efficient and enable him to decide cases quickly. However, every Judge who has all the abovementioned qualities need not automatically be a Judge who can generate confidence in the litigants unless the litigant believes that the Judge is absolutely fair and impartial. Belief regarding the impartiality of a Judge depends upon the fact that the Judge shares no relationship with either of the parties to the litigation. Relationship in the context could be personal, financial, political or even philosophical, etc. When one of the parties to the litigation is either the State or one of its instrumentalities, necessarily there is a relationship. Because, it is the State which establishes the judiciary. Funds required to run the judicial system including the salaries and allowances of the Judges necessarily flow from the State exchequer.

(Paras 1127 and 1128)

Democratic societies believe that the State not only has the authority to govern but also certain legally enforceable obligations to its citizens. The authority of judicial fora to command the State to discharge its obligations flows from the existence of such enforceable obligations. To generate confidence that the judicial fora decide controversies brought to their consideration impartially, they are required to be independent. Notwithstanding the fact that they are established and organised by the State as a part of its larger obligation to govern.

(Para 1129)

Judiciary is the watchdog of the Constitution and its fundamental values. It is also said to be the lifeblood of constitutionalism in democratic societies. At least since Marbury v. Madison, 2 L Ed 60, the authority of courts functioning under a written democratic constitution takes within its sweep the power to declare unconstitutional even laws made by the legislature. It is a formidable authority necessarily implying an awesome responsibility. A wise exercise of such power requires an efficient and independent Judge (Judicial System). In the context, wisdom is to perceive with precision whether the legislative action struck the constitutionally demanded balance between the larger interests of society and liberties of citizens.

(Para 1130)

Independence of such fora rests on two integers—independence of the institution and of individuals who man the institution.

(Para 1131)

Valente v. R., (1985) 2 SCR 673 (Can SC), relied on

It is not necessary to trace the entire history of development of the concept of independence of the judiciary in democratic societies. It can be said without any fear of contradiction that all modern democratic societies strive to establish an independent judiciary. The following are among the most essential safeguards to ensure the independence of the judiciary—certainty of tenure, protection from removal from office except by a stringent process in the cases of Judges found unfit to continue as members of the judiciary, protection of salaries and other privileges from interference by the executive and the legislature, immunity from scrutiny either by the executive or the legislature of the conduct of Judges with respect to the discharge of judicial functions except in cases of alleged misbehaviour, immunity from civil and criminal liability for acts committed in discharge of duties, protection against criticism to a great degree. Such safeguards are provided with a fond hope that so protected, a Judge would be absolutely independent and fearless in discharge of his duties. Democratic societies by and large recognise the necessity of the abovementioned protections for the judiciary and its members. Such protections are either entrenched in the Constitution or provided by legislation.

(Paras 1132 and 1133)

Judges, in any country, are expected to maintain a higher degree of rectitude compared to the other public office-holders. The expectation with respect to the Indian judiciary is no different. The Constitution therefore provides extraordinary safeguards and privileges for the Judges of the constitutional courts to insulate them substantially from the possibility of interference by the political-executive as well as elected majorities of the people's representatives.

(Para 1137)

Textually, provisions which indicate that the judiciary is required to be independent of the executive are Article 50 and the form of oath required to be taken by the Judges of constitutional courts prescribed in Forms IV and VIII under the Third Schedule to the Constitution of India. However, structurally there are many indications in the scheme of the Constitution which lead to an unquestionable inference that the Framers of the Constitution desired to have a judiciary which is absolutely independent of the executive and insulated from vagaries of transient and shifting majoritarian dynamics. Under the scheme of the Constitution, State Legislatures have absolutely no role in matters pertaining to the establishment of the constitutional courts of this country. Parliament alone is authorised to deal with certain aspects of the establishment of the constitutional courts and their administration such as fixation of the strength of the courts, salaries and other service conditions of the Judges, etc. Termination of an appointment made to a constitutional court can be done only through the process of impeachment by Parliament, the only legislative body authorised to impeach by following a distinct legislative process only on the ground of “proved misbehaviour or incapacity”. Such a process is made more stringent by a constitutional stipulation under Article 124(5) that the procedure for investigation and proof of misbehaviour or incapacity of a Judge must be regulated by law. Even after misbehaviour or incapacity is established removal of a Judge is not automatic but subject to voting and approval by a special majority of Parliament specified under Article 124(4).

(Paras 1161 and 1162)

Thus:

I. A Judge's appointment and continuance in office is not subject to any election process;

II. The termination of judicial appointment (during subsistence of the tenure) is made virtually impossible. The Constitution prescribes that a Judge of the constitutional court shall not be removed from office except by following an elaborate procedure of impeachment prescribed under Article 124(4) which is applicable even for High Court Judges by virtue of Article 217(1)(b).

III. The salaries, privileges, allowances and rights in respect of leave of absence and pension of Judges of the constitutional courts may be determined by or under law made by Parliament. But, they cannot be varied to the disadvantage of the Judge after the appointment.

IV. The salary, allowances and pension payable to the Judges of constitutional courts are charged on the Consolidated Fund of India or the Consolidated Fund of the State concerned. Further under Articles 113(1) and 203(1), the expenditure charged upon the Consolidated Fund of India or the State as the case may be shall not be submitted to vote.

(Para 1137)

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577, relied on

Unscrupulous litigants constantly keep searching for ways to influence Judges. Attitude of the State or its instrumentalities (largest litigants in modern democracies) would be no different. Such temptation coupled with the fact that the State has the legal authority to make laws including the laws that determine the process of selection of Judges and their service conditions can pose the greatest threat to the independence of the judiciary if such law-making authority is without any limitations. Therefore, extraordinary safeguards to protect the tenure and service conditions of the members of the judiciary are provided in the Constitution: with a fond hope that men and women, who hold judicial offices so protected will be able to discharge their functions with absolute independence and efficiency.

(Para 1138)

Fali S. Nariman, Before Memory Fades: An Autobiography [First Edn., Hay House (2010)] 348, referred to

However, any amount of legal and institutional protection will not supply the necessary independence and efficiency to individuals if inherently they are lacking in them. Where every aspect of Judge's service is protected by the Constitution, the only way Governments can think of gaining some control over the judiciary is by making an effort to appoint persons who are inherently pliable. There are various factors which make a Judge pliable. Some of the factors are—individual ambition, loyalty—based on political, religious or sectarian considerations, incompetence and lack of integrity. Any one of the abovementioned factors is sufficient to make a Judge pliable. A combination of more than one of them makes a Judge more vulnerable. Combination of incompetence and ambition is the worst. The only way an ambitious incompetent person can ascend a high public office is by cringing before men in power. It is said that men in power promote the least of mankind with a fond hope that those who lack any accomplishment would be grateful to their benefactor. History is replete with examples—though proof of the expected loyalty is very scarce. Usually such men are only loyal to power but not to the benefactor.

(Para 1139)

In order to ensure that at least in the matter of appointment of Judges, such aberrations are avoided, democracies all over the world have adopted different strategies for choosing the “right people” as Judges. The procedures adopted for making such a choice are widely different.

(Para 1140)

Any appointment process established under the Constitution must necessarily be conducive for establishment of not only an independent judiciary but also ensure its efficiency. Two qualities essential for preservation of liberty as observed in the Federalist No. 51 — Hamilton or Madison (1788) are that in order to lay a due foundation for that separate and distinct exercise of the different powers of Government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Some difficulties, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications.

(Para 1208)

Judges who could decide causes brought before them expeditiously and consistent with applicable principles of jurisprudence, generate confidence, in litigants and the polity that they indeed dispense justice. Whether the appointment process prior to the 99th Amendment yielded such appointments has been deeply contentious. The history of appointments to the Constitutional Courts in our Republic could be divided into two phases— pre and post-the Second Judges case. No doubt during both phases, the appointment process yielded mixed results, on the index of both independence and efficiency. Some outstanding and some not so outstanding persona came to be appointed in both phases. Allegations of seriously unworthy appointments abound but our system provides for no mechanism for audit or qualitative analysis. Such systemic deficit has pathological consequences.

(Para 1208)

Korematsu v. United States, 1944 SCC OnLine US SC 135 : 89 L Ed 194 : 323 US 214 (1944); West Coast Hotel Co. v. Parrish, 1937 SCC OnLine US SC 58 : 81 L Ed 703 : 300 US 379 (1937); A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 (Six-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench); ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521, referred to

Sudhanshu Ranjan: Justice, Judocracy and Democracy in India : Boundaries and Breaches, 185-86; Laurence H. Tribe: God Save this Honorable Court (1st Edn.) 10-11; Laurence H. Tribe: American Constitutional Law, IInd Edn., p. 2 of Chapter 1, referred to

13. Trend in other countries towards Primacy of Judiciary in appointment of Judges and reduction in role of Executive

YT. Constitution of India — Arts. 124, 217, 222 and 233 — Appointment of Judges — Merit as the only criterion for — Primacy of judiciary in, or, at least reduction of role of executive as much as possible in, the appointment process to ensure selection of Judges on merit — Clear evolution of the trend, in major Common Law and Civil Law jurisdictions in this regard, judicially noticed on extensive survey of literature on the subject — Beijing Statement of Principles of the “Independence of the Judiciary”, affirmed — In any case, ideas and concepts cannot simply be lifted from other countries without considering their compatibility with the basic structure of Indian Constitution and suitability to Indian conditions — Hence, held, participation of Law Minister in NJAC as member, and role of PM and Leader of Opposition in nominating “eminent persons” to NJAC is a retrograde step

Held :

Per Khehar, J.

The Beijing Statement of Principles of the “Independence of the Judiciary” issued at the 6th Conference held in Beijing in 1997 of the Supreme Court Chief Justices from the Asia-Pacific region, separately deals with appointment of Judges. The position expressed in the said Statement with reference to “appointment” of Judges is extracted hereunder:

“Appointment of Judges

11. To enable the judiciary to achieve its objectives and perform its functions, it is essential that Judges be chosen on the basis of proven competence, integrity and independence.

12. The mode of appointment of Judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.

13. In the selection of Judges there must be no discrimination against a person on the basis of race, colour, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status, except that a requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory.

14. The structure of the legal profession, and the sources from which Judges are drawn within the legal profession, differ in different societies. In some societies, the judiciary is a career service; in other, Judges are chosen from the practising profession. Therefore, it is accepted that in different societies, different procedures and safeguards may be adopted to ensure the proper appointment of Judges.

15. In some societies, the appointment of Judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means of ensuring that those chosen as Judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representatives of the higher Judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.

16. In the absence of a Judicial Services Commission, the procedures for appointment of Judges should be clearly defined and formalised and information about them should be available to the public.

17. Promotion of Judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.”

(Para 124) (emphasis supplied)

Therefore to contend that the subject of appointment is irrelevant to the question of the independence of the judiciary must be considered as a misunderstanding of a well-recognised position.

(Para 124)

Insofar as the manner of judicial appointments in about fifteen countries referred to by the respondents is concerned, the same was examined in the Second Judges case and the submission of the nature advanced by the respondents was rejected with the following observations:

The outcry of some of the critics is when the power of appointment of Judges in all democratic countries, far and wide, rests only with the executive, there is no substance in insisting that the primacy should be given to the opinion of the CJI in selection and appointment of candidates for judgeship. This proposition that we must copy and adopt the foreign method is a dry legal logic, which has to be rejected even on the short ground that the Constitution of India itself requires mandatory consultation with the CJI by the President before making the appointments to the superior judiciary. It has not been brought to our notice by any of the counsel for the respondents that in other countries the executive alone makes the appointments notwithstanding the existence of any existing similar constitutional provisions in their Constitutions.”

(Paras 320 and 321)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), followed

Contrary to the submission of the respondents, there is a clear trend in various countries referred to, towards primacy of the judiciary in appointments of Judges or at least reduction of the role of the executive as much as is possible. As per the literature, France established the first High Council of the Judiciary in 1946. Italy's Judicial Council was created in 1958. Italy was the first to fully insulate the entire judiciary from political control. The Italian model was thereupon followed in other countries. The model established in Spain and Portugal comprised of a significant proportion of members who were Judges. These models were established after the fall of dictatorship in these countries. Councils created by these countries are stated to be vested with final decision-making authority in matters pertaining to judicial promotion, tenure and removal. The French model came into existence as a consequence of concerns about excessive politicisation. Naturally, the process evolved into extensive independence of judicial power. Yet, judicial concern multiplied manifolds in the judiciary's attempt to give effect to the European Convention of Human Rights. And the judiciary's involvement in the process of judicial review in the backdrop of surmounting political scandals. The pattern in Italy is said to be similar. In Italy also, prominent scandals led to investigation of businessmen, politicians and bureaucrats (during the period from 1992 to 1997) which resulted in extensive judicial participation in political activity. The composition of the Council in Italy was accordingly altered in 2002 to increase the influence of Parliament.

(Paras 322 and 323)

The French-Italian models had been adopted in Latin America and other developing countries. World Bank and other similar multilateral donor agencies insist upon Judicial Councils to be associated with judicial reform for enforcement of the rule of law. The Elements of European Statute on the Judiciary is considered as a refinement of the Judicial Council model. The perceived Supreme Council of Magistracy requires that at least half of the members are Judges even though some of the members of the Supreme Council are drawn from Parliament. The motivating concern for adoption of the Supreme Councils in the French-Italian tradition appears to be aimed at ensuring “independence of the judiciary” after periods of undemocratic rule. Perhaps because of concerns over structural problems, external accountability had emerged as a second goal for these Supreme Councils. In Germany, Austria and Netherlands, their Councils were limited to playing a role in selection (rather than promotion and discipline) of Judges. In the Dutch model, recent reforms were introduced to ensure more transparency and accountability.

(Para 324)

Judicial Councils in Civil Law jurisdictions had a nexus to the Supreme Court of the country. In Costa Rica and Austria, the Judicial Councils in these countries were a subordinate organ of the Supreme Court. In some countries like Brazil, Judicial Councils were independent bodies with constitutional status while in others Judicial Councils governed the entire judiciary. And in some others, like Guatemala and Argentina, they only governed lower courts.

(Para 325)

As far as recruitment to the judiciary in Common Law countries is concerned, in the United Kingdom, the Constitutional Reform Act, 2005 created a Judicial Appointments Commission which was responsible for appointments solely based on merit, had no executive participation. New Zealand and Australia were debating whether to follow the same. The above legislation, postulated a statutory duty on Government Members not to influence judicial decisions, and also excluded the participation of the Lord Chancellor in all such activities by transferring his functions to the President of the Courts of England and Wales (formerly designated as Lord Chief Justice of England and Wales).

(Para 326)

In America concern over traditional methods of judicial selection (either by politicians or by election) had given way to “Merit Commissions” so as to base selection of Judges on merit. Merit Commissions, are analogous to Judicial Councils. The system contemplated therein was non-partisan. The Judicial Selection Commission comprised of Judges, lawyers and political appointees.

(Para 327)

In today's world there was a strong consensus that of all the procedures, the merit plan insulated the judiciary from political pressure though may be impossible to eliminate political pressure on the judiciary. Judicial Commissions/Councils created in different countries were, measures to enhance judicial independence and to minimise political influence. Once given independence, Judges were more useful for resolving a wider range of more important disputes, which were considered essential, given the fact that more and more tasks were now being assigned to the judiciary.

(Para 328)

On the basis of the above analysis of the literature, one is constrained to conclude that in the process of evolution of societies across the globe the trend is to free the judiciary from executive and political control and to incorporate a system of selection and appointment of Judges based purely on merit. For it is only then that the process of judicial review will effectively support nation building. In the subject-matter which falls for consideration in the present case, it would be imperative to keep in mind that the progression of the concepts of independence of the judiciary and judicial review is now being recognised the world over. The diminishing role of executive and political participation in the matter of appointments to the higher judiciary is an obvious reality. In recognition of the above trend, there cannot be any greater and further participation of the executive, than that which existed hitherto before, and in the Indian scenario, as is presently conceived, through the judgments rendered in the Second and the Third Judges cases. It is therefore imperative to conclude that the participation of the Union Minister in charge of Law and Justice in the final determinative process vested in NJAC, as also, the participation of the Prime Minister and the Leader of the Opposition in the Lok Sabha (and in case of there being none — the Leader of the single largest Opposition Party in the House of the People) in the selection of “eminent persons” would be a retrograde step and cannot be accepted.

(Para 329)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), followed

Nuno Garoupa and Tom Ginsburg of Law School, University of Chicago: “Guarding the Guardians: Judicial Councils and Judicial Independence”, relied on

Per Lokur, J.

In a report entitled “Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights” the interplay between the Rule of Law, the independence of the judiciary and the appointment of Judges is commented upon and in a reference to international standards, it is said that the appointment of Judges plays a key role in safeguarding the independence of the judiciary.

(Para 746)

It must be realised and appreciated that the tectonic shift in several countries towards constituting a Judicial Appointments Commission is taking place only to ensure that the executive does not have a role in the appointment of Judges. If the trend is to be taken seriously, the Law Minister can have no place in any commission or, as in the present case, in NJAC. Therefore, while the 99th Constitution Amendment Act and the NJAC Act attempt to set up a body intended to be independent of the executive, NJAC that has been set up has an important member of the political-executive as a part of this body, which is rather anachronistic.

(Para 915)

But merely because these and other countries are looking towards a Judicial Appointments Commission is no reason for India to do so. The considerations in different countries are, to put it simply, different. We need to have our own indigenous system suited to our environment and our own requirements. It is, therefore, odious to compare the judicial appointment systems in other countries with our country and to lift ideas and concepts that might be workable in those countries without considering whether they could be adopted or adapted in our country.

(Paras 916 and 918)

While considering the constitutional validity of the 99th Constitution Amendment Act and the NJAC Act it is necessary to deal with a submission made with reference to the Constitutional Reform Act, 2005 (CRA) passed by the British Parliament. CRA and its working was adverted to by Jack Straw, the Lord Chancellor from 2007 to 2010. At that time the Lord Chief Justice was the head of the judiciary in the UK but the Lord Chancellor was nevertheless responsible “for upholding the independence of the judiciary”. In the 3rd lecture on “Judicial Appointments” delivered on 4-12-2012 of the 64th series of Hamlyn Lectures titled Aspects of Law Reform — An Insider's Perspective. Adverting to this lecture and the actual working of CRA, it is said that for making senior level judicial appointments, it is “impossible for the Lord Chancellor to go against the wishes of the judiciary”. Judicial appointments are the next biggest change, responsibility for which has shifted from the executive in the form of the Lord Chancellor, to the judiciary. Formally the process is managed by the independent Judicial Appointments Commission (JAC), but in practice the process is heavily influenced by the judiciary at every stage. So much for the appointment process in the UK and the “Judges appointing Judges” criticism in India!

(Paras 872, 873 and 875)

Public Law (2015): Judicial Independence and Accountability in the UK have both emerged stronger as a result of the constitutional Reform Act, 2005 by Robert Hazell, referred to

It is not possible for any one of us to comment (one way or another) on CRA except to say that it is not advisable to rely on values of judicial independence and conventions and systems of the appointment of Judges in other countries without a full understanding of their problems and issues. We ought to better understand the situation in our country (and the decisions rendered by the Supreme Court) and how best to protect and preserve judicial independence in the circumstances that exist in our country and not have grand illusions of the systems in place in other countries.

(Para 876)

Essentially, the 99th Constitution Amendment Act replaces or substitutes the Collegium System of appointment of Judges by NJAC. It must be realised that a Judicial Appointments Commission (by whatever name called) is a worldwide reaction to the executive taking over and appointing Judges. No system following the Rule of Law would like to retain a system of appointment of Judges where the executive plays a major role or has the last word on the subject, hence the occasional clamour for a Judicial Appointments Commission. As the above Hamlyn lecture of Jack Straw illustrates, the executive desires greater control in the appointment of Judges but the judiciary eventually has the upper hand, as it should—but not so with NJAC.

(Para 941)

Per A.K. Goel, J.

Needless to say that the Constitution of India is unique. While reference to other Constitutions can be made for certain purposes, the basic features of the Indian Constitution (which may be distinctly different from other Constitutions) have to be retained and cannot be given a go-by. In the context of working of the Indian Constitution, the role of the executive and the legislature in appointment of Judges cannot be predominant. Even in the Constituent Assembly, models of other countries were not found to be suitable to be followed in India. The Judicial Commissions in other countries and provisions of Constitutions of other countries conferring power on the executive to appoint Judges may also not call for reconsideration of the Second Judges case as many of such and similar provisions were duly considered in the Second Judges case.

(Paras 1053 and 1061)

The scheme in other countries cannot be mechanically followed when it is in conflict with the basic scheme of the Indian Constitution. The Constitution of India has its own background and personality. Models of other countries cannot be blindly followed so as to damage the identity and personality of the Indian Constitution. The Judicial Commissions referred to by the respondents do not show the trend of reducing the pre-existing role of the judiciary. In fact, the trend is for reducing the pre-existing role of the executive. In the impugned 99th Amendment it is the reverse. Thus, the contention of working of other Constitutions or setting up of Judicial Commissions with varying compositions in other countries does not justify the impugned 99th Amendment which is contrary to the basic structure of the Indian Constitution.

(Paras 1083 and 1103)

R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324, relied on

14. Effect of invalidation of a constitutional amendment—Revival of the Collegium System

YU. Constitution of India — Arts. 368, 367 & 142 and Arts. 124, 127, 128, 217, 222, 224, 224-A & 231 — Pre-amendment provisions, held (per majority), revive if impugned constitutional amendment is set aside as being violative of basic structure of Constitution — Totality of circumstances, context and effect of non-revival — Relevance — Situation when provisions of legislation are repealed, substituted or amended by legislature and the repealing/substituting/amending provision concerned is repealed by legislature, distinguished from situation where repealing/substituting/amending provision is found to be void/set aside by a court — Inapplicability of Ss. 6, 7 & 8 of General Clauses Act, 1897, explained in context of invalidation of legislation by a court

— Thus, held (per majority), once 99th Constitution Amendment is held to be violative of basic structure of Constitution, as it has been, then Arts. 124, 127, 128, 217, 222, 224, 224-A and 231, as they existed prior to said amendment, and the Collegium System of appointment of Judges based thereupon, would stand restored and revive — Power of the Supreme Court to declare the effect of its order — Extent of [See Order of Court para 1239(4)]

Held :

Per Khehar, J.

The amended provisions of the Constitution shall revive, if the impugned constitutional amendment is to be set aside as being violative of the basic structure of the Constitution. The instant issue was not adverted to by the petitioners, possibly on the assumption that if on a consideration of the present controversy, the Supreme Court would strike down the Constitution (99th Amendment) Act, then Articles 124, 127, 128, 217, 222, 224, 224-A and 231, as they existed prior to the impugned Amendment, would revive. And on such revival, the judgments rendered in the Second and the Third Judges cases would again regulate selections and appointments as also transfer of Judges of the higher judiciary.

(Para 408)

Article 367 postulates that the provisions of the General Clauses Act, 1897 have to be applied for an interpretation of the articles of the Constitution in the same manner as the provisions of the General Clauses Act are applicable for an interpretation of ordinary legislation. Unless the context requires otherwise, the provisions of the General Clauses Act can be applied for a rightful and effective understanding of the provisions of the Constitution.

(Para 409)

Under the English Common Law when a repealing enactment is repealed by another law, the repeal of the second enactment would revive the former ab initio. In the above view of the matter based exclusively on the English Common Law, on the setting aside of the impugned constitutional amendment, the unamended provision would stand revived. However, this principle does not deal with an exigency where the provision enacted by legislation had been set aside by a court order.

(Para 412.1)

In the present case the impugned constitutional amendment was promulgated independently of the original provisions of the Constitution. In fact, the amended provisions introduce a new scheme of selection and appointment of Judges to the higher judiciary, directionally different from the prevailing position. And therefore, the original provisions of the Constitution would have been made inoperative, only if the amended provisions were valid.

(Para 412.4)

Mere use of words denoting a substitution does not ipso facto or automatically repeal a provision until the provision, which is to take its place becomes legally effective. Ordinarily, unless the substituted provision is there to take its place, in law and in effect, the pre-existing provision continues. There is no question of a “revival”. The legal effect on an earlier law when the later law enacted in its place is declared invalid does not depend merely upon the use of words like, “substitution”, or “supersession”. It depends upon the totality of circumstances and the context in which they are used.

(Paras 412.6 and 412.7)

If the contention that the striking down of the impugned constitutional amendment would not result in the revival of the provisions which had been amended by Parliament is accepted, it would lead to a constitutional breakdown. The tremors of such a situation are already being felt. The retiring Judges of the higher judiciary are not being substituted by fresh appointments. On consideration of the “… totality of circumstances and the context …” the instant contention is just not acceptable.

(Paras 412.7 and 409)

An enactment purported to be an amendment has the same qualitative effect as a repeal of the existing statutory provision. However, we are not confronted with the effect of an amendment or a repeal. We are dealing with the effect of the striking down of a constitutional amendment and a legislative enactment through a process of judicial review.

(Para 412.8)

The issue canvassed in the judgments relied upon is the effect of a voluntary decision of a legislature in amending or repealing an existing provision. That position would arise, if Parliament had validly amended or repealed an existing constitutional provision. Herein, the impugned constitutional amendment has definitely the effect of substituting some of the existing provisions of the Constitution, and also, adding to it some new provisions. Naturally, substitution connotes that the earlier provision ceases to exist and the amended provision takes its place. The present situation is one where the impugned constitutional amendment by a process of judicial review has been set aside. Such being the position, whatever be the cause and effect of the impugned constitutional amendment, the same will be deemed to be set aside and the position preceding the amendment will be restored. It does not matter what the stages or steps of the cause and effect of the amendment are, all the stages and steps will stand negated, in the same fashion as they were introduced by the amendment, when the amended provisions are set aside.

(Para 412.10)

In the facts and circumstances of the present case, it would have to be kept in mind that if the construction suggested by the respondents is to be adopted, it would result in the creation of a void. This is because if neither the impugned constitutional provision nor the amended provisions of the Constitution would survive, it would lead to a breakdown of the constitutional machinery inasmuch as there would be a lacuna or a hiatus insofar as the manner of selection and appointment of Judges to the higher judiciary is concerned. Such a position cannot be the result of any sound process of interpretation. The clear intent of Parliament while enacting the Constitution (99th Amendment) Act, was to provide for a new process of selection and appointment of Judges to the higher judiciary by amending the existing provisions. Naturally therefore, when the amended provision postulating a different procedure is set aside, the original process of selection and appointment under the unamended provisions would revive. It is not possible to accept the inferential contentions advanced at the hands of the respondents by placing reliance on Sections 6, 7 and 8 of the General Clauses Act. This is because the contention of the respondents is based on the assumption that a judicial verdict setting aside an amendment has the same effect as a repeal of an enactment through a legislation. This is an unacceptable assumption. When a legislature amends or repeals an existing provision, its action is of its own free will and is premised on well-founded principles of interpretation including the provisions of the General Causes Act. Not so when an amendment/repeal is set aside through a judicial process. When a judgment sets aside an amendment or a repeal by the legislature, it is but natural that the status quo ante, would stand restored. Thus, in case of setting aside of the impugned Constitution (99th Amendment) Act, the provisions of the Constitution sought to be amended thereby would automatically revive and the status quo ante would stand restored.

(Paras 413 to 415 and 417)

; Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641, affirmed

Koteswar Vittal Kamath v. K. Rangappa Baliga & Co., (1969) 1 SCC 255; State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd., (1977) 1 SCC 643 : 1977 SCC (Tax) 211, clarified and relied on

Ameer-un-Nissa Begum v. Mahboob Begum, AIR 1955 SC 352; Bhagat Ram Sharma v. Union of India, 1988 Supp SCC 30 : 1988 SCC (L&S) 404, clarified and distinguished

Firm A.T.B. Mehtab Majid & Co. v. State of Madras, AIR 1963 SC 928 (Five-Judge Bench); B.N. Tewari v. Union of India, AIR 1965 SC 1430 (Five-Judge Bench); Mulchand Odhavji v. Rajkot Borough Municipality, (1971) 3 SCC 53; Mohd. Shaukat Hussain Khan v. State of A.P., (1974) 2 SCC 376; State of Rajasthan v. Mangilal Pindwal, (1996) 5 SCC 60; India Tobacco Co. Ltd. v. CTO, (1975) 3 SCC 512 : 1975 SCC (Tax) 49; Kolhapur Canesugar Works Ltd. v. Union of India, (2000) 2 SCC 536; West U.P. Sugar Mills Assn. v. State of U.P., (2002) 2 SCC 645; Gammon India Ltd. v. Chief Secy., (2006) 3 SCC 354; State of U.P. v. Hirendra Pal Singh, (2011) 5 SCC 305 : (2011) 2 SCC (L&S) 73; Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation, (2011) 5 SCC 435; State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737, distinguished

T. Devadasan v. Union of India, AIR 1964 SC 179; Kay v. Goodwin, (1830) 6 Bing 576, 582 : 130 ER 1403; Surtees v. Ellison, (1829) 9 B&C 750, 752 : 109 ER 278; State of Orissa v. M.A. Tulloch & Co., AIR 1964 SC 1284; Mount v. Taylor, (1868) LR 3 CP 645; Mohinder Singh v. Harbhajan Kaur, AIR 1955 Punj 141, cited

Per Lokur, J.

There appears to be a doubt (if not a subtle conflict of views) that needs to be resolved in the sense that if a statute is repealed and obliterated from the statue book, under what circumstances does the obliteration vanish, if at all. However, none of the cited decisions make any reference to an amendment of the Constitution, and for the present it is not necessary to delve into that controversy. This is for the simple reason that the issue requires considerable debate, of which this Bench did not have the benefit. Khehar, J. has elaborately dealt with this issue in his draft judgment but I would like to leave the question open for debate on an appropriate occasion.

(Paras 956 to 960)

West U.P. Sugar Mills Assn. v. State of U.P., (2002) 2 SCC 645; B.N. Tewari v. Union of India, AIR 1965 SC 1430 (Five-Judge Bench); Firm A.T.B. Mehtab Majid & Co. v. State of Madras, AIR 1963 SC 928 (Five-Judge Bench); Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641; State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737, considered

State of U.P. v. Hirendra Pal Singh, (2011) 5 SCC 305 : (2011) 2 SCC (L&S) 73; Ameer-un-Nissa Begum v. Mahboob Begum, AIR 1955 SC 352; India Tobacco Co. Ltd. v. CTO, (1975) 3 SCC 512 : 1975 SCC (Tax) 49; Zile Singh v. State of Haryana, (2004) 8 SCC 1; State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46; Firm A.T.B. Mehtab Majid & Co. v. State of Madras, AIR 1963 SC 928 (Five-Judge Bench); Behram Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123; Mahendra Lal Jaini v. State of U.P., AIR 1963 SC 1019, cited

However, if the above contention of the respondents is accepted, then on the facts of this case, the result would be calamitous. The simple reason is that if the 99th Constitution Amendment Act is struck down as altering the basic structure of the Constitution and if Article 124(2) in its original form is not revived then Article 124(2) of the Constitution minus the words deleted (by the 99th Constitution Amendment Act) and minus the words struck down (those inserted by the 99th Constitution Amendment Act) would read as follows “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years.” This would give absolute power to the President to appoint a Judge to the Supreme Court without consulting the Chief Justice of India (and also to appoint a Judge to a High Court). The result of accepting his submission would be to create a tyrant.

(Para 962)

It must, therefore, be held that the constitutional provisions amended by the 99th Constitution Amendment Act spring back to life on the declaration that the 99th Constitution Amendment Act is unconstitutional. Thus, the result of the declaration of the NJAC scheme as unconstitutional in its entirety, is that the Collegium System postulated by the Second Judges case and the Third Judges case gets revived.

(Paras 963 and 969)

Per Kurian Joseph, J.

Though elaborate arguments have been addressed that even if the constitutional amendment is struck down, the Collegium does not resurrect, does not appeal even to common sense. The 99th Amendment sought to “substitute” a few provisions in the Constitution and “insert” a few new provisions. Once the process of substitution and insertion by way of a constitutional amendment is itself held to be bad and impermissible, the pre-amended provisions automatically resurface and revive. That alone can be the reasonably inferential conclusion. Legal parlance and common parlance may be different but there cannot be any legal sense of an issue which does not appeal to common sense.

(Para 989)

Per A.K. Goel, J.

The contention that even if the amendment is held to be void, the pre-existing system cannot be restored has no logic. In exercise of power of judicial review, a provision can be declared void in which case the legal position as it stands without such void provision can be held to prevail. It is not a situation when the position has not been made clear while deciding an issue. Power of the Supreme Court to declare the effect of its order cannot be doubted nor the decisions relied upon by the respondents show otherwise. It is thus held that on amendment being struck down, the pre-existing system stands revived.

(Para 1110)

15. Constitution is the will of the People while Parliament only represents will of transient majority of the day

YV. Constitution of India — Arts. 368 and 245 — Primacy of the Constitution — Mere passage of constitutional amendment or legislation as per legislative procedure, not enough if they do not conform to the Constitution — Nor does extent of majority by which Bill was passed, matter — Judicial review of constitutional amendments or ordinary legislation has nothing to do with wisdom thereof, nor strength of majority by which Bill concerned was passed, but has only to do with testing them on whether they infringe basic structure of Constitution or the relevant provisions of the Constitution, respectively

— Constitutional amendments satisfying requirements of Art. 368 and and/or ordinary legislation upon satisfying requirements of relevant provisions of Constitution, held, do not automatically become immune from judicial review based on the theory that the legislature represents the will of the People — Rather, will of the People is the Constitution while Parliament represents will of the majority at a given point in time which is subordinate to the Constitution, that is, the will of the People — This is because the Constitution is supreme and there are declared limitations on amending power of Parliament and equally on ordinary legislative power of Parliament and State Legislatures, and last word on validity of either is of the Supreme Court — Even if judiciary is not an elected body, it discharges constitutional functions as per will of the People reflected in the Constitution

— Moreover, scope of judicial review of constitutional amendment and/or an ordinary legislation cannot vary taking into consideration strength of Members of the legislature concerned which had approved and passed the Bill concerned

— Thus, impugned constitutional amendment as also NJAC Act are subject to judicial review on touchstone of basic structure of the Constitution even though impugned constitutional amendment may have been approved and passed unanimously or by an overwhelming majority in Parliament, and notwithstanding ratification thereof by as many as twenty-eight State Assemblies

Held :

Per Khehar, J.

It is essential to hold that every constitutional amendment passed by Parliament either by following the ordinary procedure contemplated under Article 368(2) or the special procedure contemplated in the proviso to Article 368(2) could in a sense of understanding, by persons not conversant with the legal niceties of the issue, be treated as the will of the People for the simple reason that parliamentarians are considered as representatives of the People. As long as the stipulated majority supports a constitutional amendment, it would be treated as a constitutional amendment validly passed. Having satisfied the above benchmark, it may be understood as an expression of the will of the People in the sense noticed above. The strength and enforceability of a constitutional amendment would be just the same, irrespective of whether it was passed by the bare minimum majority postulated therefor or by a substantial majority or even if it was approved unanimously. What is important is to keep in mind that there are declared limitations on the amending power conferred on Parliament which cannot be breached.

(Para 293)

An ordinary legislation enacted by Parliament with reference to subjects contained in the Union List or the Concurrent List, and likewise, ordinary legislation enacted by State Legislatures on subjects contained in the State List and the Concurrent List, in a sense of understanding noticed above, could be treated as enactments made in consonance with the will of the People by lay persons not conversant with the legal niceties of the issue. Herein also, there are declared limitations on the power of legislation which cannot be violated.

(Para 294)

In almost all challenges raised on the ground of violation of the “basic structure” to constitutional amendments made under Article 368 and more particularly those requiring the compliance with the special and more rigorous procedure expressed in the proviso under Article 368(2), the repeated assertion advanced at the hands of the Union has been the same. It has been the contention of the Union of India that an amendment to the Constitution passed by following the procedure expressed in the proviso to Article 368(2) constituted the will of the People and the same was not subject to judicial review. The same argument had been repeatedly rejected by the Supreme Court by holding that Article 368 postulates only a “procedure” for amendment of the Constitution and that the same cannot be treated as a “power” vested in Parliament to amend the Constitution so as to alter the “core” of the Constitution which has also been described as the “basic features/basic structure” of the Constitution.

(Para 295)

Therefore, even though Parliament may have passed the Constitution (121st Amendment) Bill with an overwhelming majority inasmuch as only 37 Members from AIADMK had consciously abstained from voting in Lok Sabha and only one Member of Rajya Sabha had consciously abstained from voting in favour thereof, it cannot be accepted that the same is exempted from judicial review. The scope of judicial review with reference to a constitutional amendment and/or an ordinary legislation whether enacted by Parliament or a State Legislature cannot vary so as to adopt different standards by taking into consideration the strength of the Members of the legislature concerned which had approved and passed the Bill concerned. If a constitutional amendment breaches the “core” of the Constitution or destroys its “basic or essential features” in a manner which is patently unconstitutional, it would have crossed over forbidden territory. This aspect undoubtedly falls within the realm of judicial review. In the above view of the matter, it is imperative to hold that the impugned constitutional amendment as also the NJAC Act are subject to judicial review on the touchstone of the basic structure of the Constitution and the parameters laid down by the Supreme Court in that behalf, even though the impugned constitutional amendment may have been approved and passed unanimously or by an overwhelming majority, and notwithstanding the ratification thereof by as many as twenty-eight State Assemblies. Accordingly, there is no merit in the contention advanced by the respondents that the impugned constitutional amendment is not assailable through the process of judicial review.

(Para 296)

Per Lokur, J.

One may or may not agree with the content or wisdom of a legislation, but that has nothing to do with the correctness or otherwise of the majority decision taken by a Legislature. The courts in our country do not question the wisdom or expediency of the Legislature enacting a statute, let alone a constitutional amendment.

(Paras 825 and 826)

The constitutional validity of the 99th Constitution Amendment Act has to be tested on its own merit. The question of any court substituting its opinion for that of the Legislature simply cannot and does not arise. A Judge may have a view one way or the other on the Collegium System of appointment of Judges and on the manner of its implementation—but that opinion cannot colour the application and interpretation of the law or the reasoning that a Judge is expected to adopt in coming to a conclusion whether the substitute introduced by the 99th Constitution Amendment Act is constitutionally valid or not. Similarly, a Judge may have an opinion about the National Judicial Appointments Commission—but again that view cannot replace a judicial interpretation of the 99th Constitution Amendment Act or the NJAC Act.

(Para 835)

In the final analysis, therefore, the courts must defer to the wisdom of the Legislature and accept their views, as long as they are within the parameters of the law, nothing more and nothing less. The constitutional validity of the 99th Constitution Amendment Act cannot be tested on opinions, however strong they may be or however vividly expressed.

(Para 837)

A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 (Six-Judge Bench); Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha, (1967) 1 SCR 15 : AIR 1967 SC 691 (Five-Judge Bench); Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (Five-Judge Bench), followed

Karnataka Bank Ltd. v. State of A.P., (2008) 2 SCC 254, affirmed

Lochner v. New York, 1905 SCC OnLine US SC 100 : 49 L Ed 937 : 198 US 45 (1905), considered

Apart from the presumption that an enactment is constitutionally valid, there is also a presumption that the Legislature understands and correctly appreciates the needs of the people. But, the legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and non-partisanship. Public opinion, manifested through Parliament or otherwise, really pales into insignificance over the law that is interpreted impartially and in a non-partisan manner. It must be appreciated that the debate cannot be reduced to the acceptance of an unconstitutional but popular decision versus a constitutional but unpopular decision. All of us are bound by the Constitution and Judges have to abide by the oath of office to uphold the Constitution and the laws, even if the decision is unpopular or unacceptable to Parliament. This is the essence of judicial review otherwise no law passed by Parliament (obviously having a popular mandate) could be struck down as unconstitutional.

(Paras 839 to 841)

Charanjit Lal Chowdhury v. Union of India, 1950 SCR 869 : AIR 1951 SC 41 (Five-Judge Bench); Middleton v. Texas Power and Light Co., 1919 SCC OnLine US SC 50 : 63 L Ed 527 : 249 US 152 (1919); Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279 : AIR 1958 SC 538 (Five-Judge Bench); Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629 : AIR 1958 SC 731 (Five-Judge Bench); State v. Makwanyane, 1995 ZACC 3 : (1995) 3 SA 391 (CC) (Eleven-Judge Bench); Mistretta v. United States, 1989 SCC OnLine US SC 9 : 102 L Ed 2d 714 : 488 US 361 (1989), followed

Furman v. Georgia, 1972 SCC OnLine US SC 171 : 33 L Ed 2d 346 : 408 US 238 (1972); West Virginia State Board of Education v. Barnette, 1943 SCC OnLine US SC 134 : 87 L Ed 1628 : 319 US 624 (1943), cited

Per A.K. Goel, J.

The plea that Parliament is best equipped to assess the needs of the people is not enough reason to extend the power of Parliament to amend the basic features of the Constitution. The change of time does not justify greater role for the executive in appointment of Judges.

(Para 1066)

The claim of the respondents that Parliament represents the will of the People or that the 99th Amendment represents the will of the People and interference therewith will be undesirable is contrary to the law laid down in Kesavananda Bharati case. The will of the People is the Constitution while Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution, that is, the will of the People. The Constitution is supreme and even Parliament has no unlimited amending power. The last word on the validity of a constitutional amendment is of the Supreme Court. Even if the judiciary is not an elected body, it discharges the constitutional functions as per the will of the People reflected in the Constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary.

(Para 1070)

There can be no doubt about the propositions forcefully canvassed by the respondents that the legislative wisdom of the choice of Parliament is not open to question and the possibility of abuse of power cannot affect the existence and exercise of power but these submissions cannot ignore the limitation of basic features. Examining whether the basic feature was sought to be altered, is different from questioning the wisdom of Parliament. It is testing the power of Parliament conferred by the Constitution. Similarly, determining whether the new mechanism complied with the framework of the Constitution is different from the issue of possibility of abuse. In the present case, the question is of independence of the judiciary which implies having the appointment of Judges not influenced by any political consideration as per the intention of the Framers of the Constitution.

(Para 1094)

16. Validity of simultaneous passage of 99th Constitution Amendment Act and NJAC Act

YW. Constitution of India — Arts. 118, 122, 107, 111, 245 and 368 r/w Rr. 66 and 388 of Lok Sabha Rules of Procedure and Conduct of Business — Bill dependent wholly or partly (dependent enactment) on another Bill (foundational enactment) — Introduction and consideration of dependent enactment even before passing of foundational enactment, held, is permissible as per scheme of Rr. 66 and 388 of Lok Sabha Rules or even on first principles — However, dependent enactment cannot be given effect to, till foundational enactment is given effect to, or both can be given effect to simultaneously, as in present case — In any case, even if the above amounts to an irregularity, the same cannot be assailed due to the bar under Art. 122, as nothing could be shown by way of any substantive illegality in passage of the NJAC Act while the ratification of the 99th Constitutional Amendment was in process and had not been completed — Parliament and State Legislatures — Lok Sabha Rules of Procedure and Conduct of Business of Lok Sabha, Rr. 66 and 388

(Paras 357 to 364; 589, 590, 779 and 860 to 863)

YX. Constitution of India — Arts. 122 and 212 — Immunity from judicial scrutiny conferred by, on proceedings in Parliament and State Legislatures — Held, limited to procedural irregularities and not proceedings that are substantively illegal or unconstitutional

(Para 862)

YY. Courts, Tribunals and Judiciary — Judiciary — National Judicial Appointments Commission Act, 2014 — Held, ordinary legislation which fell within purview of Art. 124-C, and hence could have been enacted by following procedure applicable for enacting ordinary legislation — There was no requirement to follow procedure contemplated under Art. 368 of Constitution — Constitution of India, Arts. 107, 111, 124-C and 368

(Para 364)

Hammond v. Clark, 136 Ga 313 : 71 SE 479 (1911); Fahey v. Hackmann, 291 Mo 351 : 237 SW 752 (1922); Associated Industries of Oklahoma v. Oklahoma Tax Commission, 176 Okla 120 : 55 P 2d 79 (1936); Wisconsin v. Gonzales, 253 Wis 2d 134 : 645 NW 2d 264 (2002); State v. Swift, 69 Ind 505 (1880), relied on

Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184 (Five-Judge Bench); Babulal Parate v. State of Bombay, (1960) 1 SCR 605 : AIR 1960 SC 51 (Five-Judge Bench), followed

17. Reconsideration of Second and Third Judges cases neither permissible nor warranted

YZ. Constitution of India — Arts. 141, 137 and 368 — Reconsideration/Review — When permissible of decision of Supreme Court — Importance and sensitivity of issue involved — Issue concerning basic structure of the Constitution and consequential validity of a constitutional amendment — Contention that unless judgments in question were not referred for review by a Bench of appropriate strength, it would not be possible to properly determine the above questions — In such cases, held, technical reasons may not be a proper ground to reject prayer for review outright — In present case, though technically prayer for review the Second Judges case, (1993) 4 SCC 441, and Third Judges case, (1998) 7 SCC 739 could not be entertained, and Union of India in the Third Judges case, sought to be reviewed, had undertaken that it accepted the Second Judges case as binding, yet arguments on merits of prayer for reconsideration/review exhaustively considered, but rejected on merits

Z. Constitution of India — Arts. 141, 137 and 145(3) proviso — Prayer for reconsideration/review of two nine-Judge Constitution Bench decisions — Five-Judge Constitution Bench, held, competent to consider said prayer — Though, if prayer for reconsideration/review is accepted, actual reconsideration/review would have to be ultimately considered by a Bench of appropriate strength of nine or more Judges

ZA. Constitution of India — Arts. 124, 217 & 222 and 137 — Appointment of Judges of Supreme Court and High Courts and transfer of Judges/Chief Justices of High Courts — Primacy of judiciary in matters of — Review or reconsideration of nine-Bench decisions in Second Judges case, (1993) 4 SCC 441, and Third Judges case, (1998) 7 SCC 739 which had finally affirmed this position — Held, not warranted [For Order of the Court See para 1239(1)]

— Held, position of law as to primacy of judiciary in said matters was laid down by seven-Judge Constitution Bench for the first time in Samsher Singh, (1974) 2 SCC 831 , followed in Sankalchand, (1977) 4 SCC 193 , was restored in Second Judges case, (1993) 4 SCC 441, and Third Judges case, (1998) 7 SCC 739 — First Judges case, 1981 Supp SCC 87, which failed to follow the binding decision in Samsher Singh was overruled in Second Judges case — Prayer for a relook/reconsideration of this settled position of law not made out — Supreme Court having already devoted so much time to the same issue should ordinarily not agree to re-examine the matter yet again and spend more time for an issue already well thrashed out, particularly when Union of India had conceded in para 11 of the Third Judges case that it had accepted as binding the decision in Second Judges case — The remedy of review must have some limitations

— Moreover, considering each ground for review on merits, prayer for review of Second and Third Judges cases can simply not be accepted

— Furthermore, even applying all the principles when a previous decision of the Supreme Court may be reconsidered, it is difficult to conclude that Second and Third Judges cases should be reconsidered only because there could be a change of opinion or a change of circumstances, particularly if the system is one which is functioning as per intention of Constitution Makers, and when such change will be contrary to the basic structure of the Constitution, which is not constitutionally permissible — There are no exceptional circumstances, nor any clear and compelling reasons for reconsideration, nor can it be said that Second and Third Judges cases are plainly or palpably erroneous or that they have a baneful effect on the public — On the contrary, they restored the independence of the judiciary in real terms and eliminated the baneful effect of executive control on the judiciary

ZB. Constitution of India — Arts. 141 and 137 — Reconsideration or overruling of previous decisions of Supreme Court — Case law surveyed and principles summarised, per Lokur, Kurian, and Goel, JJ.

ZC. Constitution of India — Art. 141 — Strength of Bench overruling a previous decision — Reckoning of — Current rule of taking entire Bench strength of latter larger Bench rather than actual number of Judges who opine that previous judgment should be overruled, when there is a split verdict of the latter larger Bench — Possible anomalies pointed out, per Lokur, J.

Held :

Per Khehar, J.

It was submitted that till the respondents were not permitted to air their submissions with reference to the unacceptability of the judgments rendered in the Second Judges case, (1993) 4 SCC 441 and the Third Judges case, (1998) 7 SCC 739, it would not be in the fitness of matters for the Supreme Court to dispose of the present controversy relating to the validity of the 99th Constitution Amendment by placing reliance on the said judgments. Keeping in mind the importance and the sensitivity of the controversy being debated, as also, the vehemence with which the respondents pressed for a re-examination of the judgments rendered by the Supreme Court in the Second and the Third Judges cases, arguments in this regard were permitted to be raised.

(Paras 1 to 5)

Before embarking on the issue, namely, whether the judgments rendered by the Supreme Court in the Second and the Third Judges cases, needed to be revisited, first of all, it needs to be determined whether or not it would be justified, in the peculiar facts and circumstances of this case, keeping in view the technical parameters laid down by the Supreme Court, to undertake the task. In case the conclusion is in the negative, and it is held that the prayer seeking a review of the two judgments is not justified, that would render a quietus to the matter. However, even if the proposition canvassed at the behest of the respondents is not accepted, the submissions canvassed at their behest would still be examined, as in a matter of such extreme importance and sensitivity, it may not be proper to reject a prayer for review, on a mere technicality. It shall then be endeavoured to determine whether the submissions canvassed at the hands of the respondents, demonstrate clear and compelling reasons for a review of the conclusions recorded in the Second and the Third Judges cases. It shall also be examined whether respondents have been able to prima facie show that the earlier judgments could be seen as manifestly incorrect. For such preliminary adjudication, the present Bench strength satisfies the postulated requirement expressed in the proviso under Article 145(3) of the Constitution.

(Para 6)

Consequent upon the above examination, if the judgments rendered in the Second and the Third Judges cases are shown to prima facie require a relook, the merits of the main controversy would be delved into without permitting the petitioners to place reliance on either of the aforesaid two judgments. In case the submissions advanced at the hands of the petitioners on merits with reference to the main controversy are not accepted, that too in a sense would conclude the matter, as the earlier regime governed by the Second and the Third Judges cases would become a historical event of the past, as the new scheme contemplated under the impugned Constitution (99th Amendment) Act, along with the NJAC Act, would replace the earlier dispensation. In the above eventuality, the question of re-examination of the Second and the Third Judges cases would be only academic, and therefore uncalled for. However, if the submissions advanced at the hands of the petitioners are accepted, resulting in the revival of the earlier process, and simultaneously it is concluded in favour of the respondents, that the Second and the Third Judges cases need a relook, this Bench would be obliged to refer this matter to a nine-Judge Bench (or even, to a larger Bench), for re-examining the judgments rendered in the Second and the Third Judges cases.

(Paras 7 to 9, 22 and 78)

In order to record the facts truthfully, it was emphasised that the submissions advanced by the respondents, could not be canvassed on behalf of the Union of India as in the Third Judges case, the Union had consciously (in para 11 thereof) accepted as binding the judgment rendered in the Second Judges case. Despite the above, the respondents were emphatic that the Union of India could not be debarred from seeking reconsideration of the judgment rendered by the Supreme Court in the Second Judges case. In order to dissuade the respondents from the course he insisted to pursue, it was suggested that the determination by the Supreme Court in the Second Judges case would not prejudice the claim of the Union of India, if the Union could establish that the basic structure of the Constitution, namely, the independence of the judiciary would not stand compromised by the Constitution (99th Amendment) Act. Despite the instant suggestion, the respondents pleaded that they be allowed to establish that the determination rendered by the nine-Judge Bench in the Second Judges case was not sustainable in law. At their insistence, they were permitted to advance their submissions.

(Para 22)

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, overruled

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench); Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574; Suraz India Trust v. Union of India, (2012) 13 SCC 497 (Two-Judge Bench); Suraz India Trust v. Union of India, WP (C) No. 204 of 2010, order dated 7-1-2013 (SC), referred to

The issue of primacy of the judiciary in the matter of appointment and transfer of Judges of the higher judiciary has been repeatedly examined from Samsher Singh case to the Third Judges case.

(Para 91)

In Samsher Singh case rendered in 1974 by a seven-Judge Bench wherein keeping in mind the cardinal principle—the independence of the judiciary, it was concluded that consultation with the highest dignitary in the judiciary—the Chief Justice of India in practice meant that the last word must belong to the Chief Justice of India i.e. the primacy in the matter of appointment of Judges to the higher judiciary must rest with the judiciary. The above position was maintained in Sankalchand Himatlal Sheth case in 1977 by a five-Judge Bench wherein it was held that in all conceivable cases advice tendered by the Chief Justice of India (in the course of his “consultation”) should principally be accepted by the Government of India and that if the Government departed from the counsel given by the Chief Justice of India, the courts would have an opportunity to examine if any other extraneous circumstances had entered into the verdict of the executive. In Sankalchand case so as to emphasise the seriousness of the matter, the Supreme Court also expressed that it expected that the above words would not fall on deaf ears. The same position was adopted in the Second Judges case rendered in 1993 by a nine-Judge Bench, by a majority of 7:2, which also arrived at the conclusion that the judgment rendered in the First Judges case did not lay down the correct law. Finally, the Third Judges case rendered in 1998 by another nine-Judge Bench reiterated the position rendered in the Second Judges case, that primacy in the decision-making process in selection and appointment of Judges to the High Courts and the Supreme Court unquestionably rests with the judiciary.

(Paras 90, 91 and 301.1)

Thus, the prayer for a relook/reconsideration of the same is just not made out. The Supreme Court having already devoted so much time to the same issue should ordinarily not agree to re-examine the matter yet again and spend more time for an issue already well thrashed out. But time has not been the constraint while hearing the present cases for as this Bench allowed a free debate and took it upon itself the task of examining the issues canvassed. Yet the remedy of review must have some limitations.

(Para 91)

The power of review was exercised and stood expended when the First Judges case was reviewed by a larger Bench in the Second Judges case. And for sure it is wholly unjustified for the Union of India, which had conceded during the course of hearing of the Third Judges case that it had accepted as binding the decision rendered in the Second Judges case, to try and reagitate the matter all over again. The matter having been revisited and the position having been conceded by the Union of India, it does not lie in the mouth of the Union of India to seek reconsideration of the judicial declaration in the Second and the Third Judges cases. Therefore, as a proposition of law, the prayer of the Union of India and the other respondents for a relook or review of the judgments rendered in the Second and the Third Judges cases cannot be accepted. All the same, because the matter is of extreme importance and sensitivity, the merits of the prayer for review shall be considered. Even then, on merits, for all the reasons given in paras 10 to 133, the prayer made at the hands of the respondents for revisiting or reviewing the judgments rendered by the Supreme Court in the Second and the Third Judges cases cannot be acceded to. The prayer is, accordingly, hereby declined.

(Paras 91 and 134)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), affirmed and prayer for reference to larger Bench for review rejected

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 (Seven-Judge Bench); Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 (Five-Judge Bench), followed

S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven-Judge Bench), held, overruled

Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, referred to

Per Lokur, J.

If the Supreme Court is convinced of its error and “baneful effect” on the general interests of the public of an erroneous interpretation of a provision of the Constitution, then there is nothing in the Constitution that prevents the Supreme Court in departing from its earlier decision. It could also depart from a previous decision if it is vague or inconsistent or plainly erroneous. There is a distinction between reconsideration of a previous decision concerning the interpretation of a provision of a legislative enactment and the interpretation of a provision of the Constitution. While an erroneous interpretation of the former by the court can be corrected by the Legislature, it is not easy to amend the Constitution to correct its erroneous interpretation by the court. If the previous decision interpreting the provisions of the Constitution is “manifestly wrong or erroneous” and “public interest” demands its reconsideration then the court should have no hesitation in doing so.

(Paras 654 and 656)

Where a matter is of “great importance”, the Supreme Court may refer the issue to a larger Bench to reconsider an earlier decision of the Supreme Court. An earlier decision rendered by the Supreme Court may be reconsidered if, amongst others, “exceptional and extraordinarily compelling” circumstances so warrant. In exceptional and extraordinarily compelling circumstances or under a new set of conditions, the court is on a fresh outlook and in the light of the development of innovative ideas, principles and perception grown along with the passage of time, is obliged by legal and moral forces to reconsider its earlier ruling or decision and if necessitated even to overrule or reverse the mistaken decision by the application of the principle of retroactive invalidity. Otherwise even the wrong judicial interpretation that the Constitution or law has received over decades will hold the field for ages to come without that wrong being corrected. Indeed, no historic precedent and long-term practice can supply a rule of unalterable decision.

(Paras 671 and 672)

There is absolutely no dispute or doubt that the Supreme Court can reconsider (and set aside) an earlier decision rendered by it. The Supreme Court has debated and discussed the issue on several occasions and the broad principles that can be culled out from the various decisions suggest that:

(i) If the decision concerns an interpretation of the Constitution, perhaps the bar for reconsideration might be lowered a bit [as in Kesavananda Bharati, (1973) 4 SCC 225]. Although the remedy of amending the Constitution is available to Parliament, not all amendments are easy to carry out. Some amendments require following the procedure of ratification by the States. Nevertheless, where a constitutional issue is involved, the necessity of reconsideration should be shown beyond all reasonable doubt, the remedy of amending the Constitution always being available to Parliament.

(ii) If the decision concerns the imposition of a tax, then too the bar might be lowered a bit since the tax burden would affect a large section of the public. However, the general principles for requiring reconsideration do not necessarily fall by the wayside.

(iii) If the decision concerns the fundamental rights of the people, then too the bar might be lowered for obvious reasons. However again, the general principles for requiring reconsideration must be adhered to.

(iv) In other cases, the Court must be convinced that the earlier decision is plainly erroneous and has a baneful effect on the public; that it is vague or inconsistent or manifestly wrong.

(v) If the decision only concerns two contending private parties or individuals, then perhaps it might not be advisable to reconsider it. Each and every error of law cannot obviously be corrected by the Supreme Court.

(vi) The power to reconsider is not unrestricted or unlimited, but is confined within narrow limits and must be exercised sparingly and under exceptional circumstances for clear and compelling reasons. Therefore, merely because a view different from or contrary to what has been expressed earlier is preferable is no reason to reconsider an earlier decision. The endeavour of the Supreme Court must always be to ensure that the law is definite and certain and continuity in the interpretation of the law is maintained. Uncertainty and absence of continuity in the law is required to be avoided.

(vii) An earlier decision may be reconsidered if a material provision of law is overlooked or a fundamental assumption is found to be erroneous or if there are valid and compulsive or compelling reasons or if the issue is of fundamental importance to national life. However, it might not be wise to overrule a decision if people have changed their position on the basis of the existing law. This is because it might upset the legitimate expectation of persons who have made arrangements based on the earlier decision and also because the consequences of such a decision might not be foreseeable.

(viii) Whether a decision has held the field for a long time or not is not of much consequence.

(ix) Significantly, the Supreme Court has taken note of and approved the view that the changing times might require the interpretation of the law to be readjusted keeping in mind the “infinite and variable human desires” and changed conditions due to “development with the progress of years”. The interpretation of the law, valid for one generation may not necessarily be valid for subsequent generations. This is a reality that ought to be acknowledged. Similarly, the social context or “contemporary social conditions or modern conceptions of public policy” cannot be overlooked.

(Para 673)

It is trite that the Constitution is a living document and it is also wise to remember that in the interpretation of a constitutional document, words are but the framework of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that the intention of a Constitution is rather to outline principles than to engrave details.

(Para 674)

R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324, followed

Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 : AIR 1955 SC 661 (Seven-Judge Bench); State of Bombay v. United Motors (India) Ltd., 1953 SCR 1069 : AIR 1953 SC 252 (Five-Judge Bench); Attorney General for New South Wales v. Perpetual Trustee Co. Ltd., (1952) 85 CLR 237; Lt. Col. Khajoor Singh v. Union of India, (1961) 2 SCR 828 : AIR 1961 SC 532 (Seven-Judge Bench); Keshav Mills Co. Ltd. v. CIT, (1965) 2 SCR 908 : AIR 1965 SC 1636 (Seven-Judge Bench); Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, (1974) 2 SCC 402 (Seven-Judge Bench); Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90 (Five-Judge Bench); Union of India v. Raghubir Singh, (1989) 2 SCC 754 (Five-Judge Bench); Gannon Dunkerley and Co. v. State of Rajasthan, (1993) 1 SCC 364; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Thirteen-Judge Bench); Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); R. v. Beauregard, 1986 SCC OnLine Can SC 49 : (1986) 2 SCR 56 (Can SC), explained and followed

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : 2002 SCC (L&S) 633 (Seven-Judge Bench), considered

K. Kamalajammanniavaru v. Land Acquisition Officer, (1985) 1 SCC 582, held, restored

Bhag Singh v. UT of Chandigarh, (1985) 3 SCC 737, held, overruled

Northern India Caterers (P) Ltd. v. State of Punjab, AIR 1967 SC 1581; Builders' Assn. of India v. Union of India, (1989) 2 SCC 645 : 1989 SCC (Tax) 317; Sabhajit Tewary v. Union of India, (1975) 1 SCC 485 : 1975 SCC (L&S) 99 (Five-Judge Bench), referred to

New Jehangir Vakil Mills Ltd. v. CIT, (1960) 1 SCR 249 : AIR 1959 SC 1177; Petlad Turkey Red Dye Works Co. Ltd. v. CIT, 1963 Supp (1) SCR 871 : AIR 1963 SC 1484, cited

Reference was made to Dr Alan Paterson's Law Lords. This reference is not at all clear and is simply stated as “1982 at pp. 156-57”; “Learning and Science”, speech at a dinner of the Harvard Law School Association in honor of Professor C.C. Langdell (25-6-1895); reported in Speeches by Oliver Wendell Holmes (1896), pp. 67-68, referred to

On the issue of how many Judges of a later Bench overrule an earlier decision, one of the more interesting aspects of Pradeep Kumar Biswas case, (2002) 5 SCC 111 is that out of the 7 learned Judges constituting the Bench, 5 learned Judges overruled the unanimous decision of another set of 5 learned Judges in Sabhajit Tewary, (1975) 1 SCC 485 . Two of the learned Judges in Pradeep Kumar Biswas case found that Sabhajit Tewary case had been correctly decided. In other words, while a total of 7 learned Judges took a particular view on an issue of fact and law, that view was found to be incorrect by 5 learned Judges, whose decision actually holds the field today. Is the weight of numbers irrelevant? Is it that only the numbers in a subsequent Bench are what really matters? What would have been the position if only 4 learned Judges in Pradeep Kumar Biswas case had decided to overrule Sabhajit Tewary case while the remaining 3 learned Judges found no error in that decision? Would a decision rendered unanimously by a Bench of 5 learned Judges stand overruled by the decision of 4 learned Judges in a subsequent Bench of 7 learned Judges? Pradeep Kumar Biswas case presents a rather anomalous situation which needs to be addressed by appropriate rules of procedure. If this anomaly is perpetuated then the unanimous decision of 9 learned Judges in the Third Judges case can be overruled (as sought by the respondents) by 6 learned Judges in a Bench of 11 learned Judges, with 5 of them taking a different view, bringing the total tally of Judges having one view to 14 and having another view to 6, with the view of the 6 learned Judges being taken as the law!

(Para 669)

No one thought that the Supreme Court, in the Second Judges case, had erroneously interpreted or misunderstood the constitutional scheme concerning the appointment of Judges and the independence of the judiciary. There were some problem areas and these were referred to the Supreme Court in the form of questions raised by the President seeking the advisory opinion of the Supreme Court in the Third Judges case. The correctness of the decision rendered in the Second Judges case was not in doubt and to remove any misunderstanding in this regard the respondents categorically stated (in para 11) in the Third Judges case that “the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case”. Therefore, neither the President nor the Union of India nor anybody else for that matter sought a reconsideration of the Second Judges case. There is no reason (apart from an absence of a reason at law) why such a request should be entertained at this stage, except on a fanciful misunderstanding of the law by the Union of India.

(Para 681)

It is difficult to accept the contention that the Second Judges case requires reconsideration on merits. While the various decisions referred to dealt with the issue of reconsideration of an earlier decision of the Supreme Court, it is difficult to conclude that a decision rendered by 8 out of 9 Judges who decided the Second Judges case (Punchhi, J. also concurred on the primacy of the Chief Justice of India) ought to be rejected only because there could be a change of opinion or a change of circumstances. The Second Judges case was accepted by the Attorney General as mentioned in the Third Judges case and also by the President who did not raise any question about the interpretation given to Articles 124(2) and 217(1) of the Constitution. These constitutional authorities having accepted the law laid down in the Second Judges case, there is no reason to reconsider that decision on the parameters repeatedly laid down by the Court. There are no exceptional circumstances, clear and compelling reasons for reconsideration, nor can it be said that the Second Judges case was plainly erroneous or that it has a baneful effect on the public. On the contrary, the decision restored the independence of the judiciary in real terms and eliminated the baneful effect of executive controls.

(Para 696)

Thus, it is not necessary to reconsider the Second Judges case or the Third Judges case. This is apart from the fact that reconsideration is not warranted at law, even on merits.

(Para 700)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), affirmed

Per Kurian Joseph, J.

Though I generally agree with the analysis and statement of law, in the matter of discussion and summarisation of the principles on reconsideration of judgments made by Lokur, J. at paras 673.1 to 673.9, (set out abovee to 199f) I would like to add one more, as the tenth. Once the Supreme Court has addressed an issue on a substantial question of law as to the structure of the Constitution and has laid down the law, a request for revisit shall not be welcomed unless it is shown that the structural interpretation is palpably erroneous. The respondents could not blur the graphic picture on the scheme of appointment of Judges and its solid structural base in the Constitution portrayed in the Second Judges case. This Bench is bound by the ratio that independence of the judiciary is part of the basic structure of the Constitution and that the appointment of Judges to the High Courts and the Supreme Court is an integral part of the concept of independence of the judiciary. And for that simple reason, the Constitution 99th Amendment is bound to be declared unconstitutional and I do so.

(Para 976)

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench), affirmed

Per A.K. Goel, J.

Parameters for determining as to when earlier binding decisions ought to be reopened have been repeatedly laid down by the Supreme Court. The settled principle is that the Court should not, except when it is demonstrated beyond all reasonable doubt that its previous ruling given after due deliberation and full hearing was erroneous, revisit earlier decisions so that the law remains certain. In exceptional circumstances or under new set of conditions in the light of new ideas, earlier view, if considered mistaken, can be reversed. While the march of law continues and new systems can be developed whenever needed, it can be done only if earlier systems are considered unworkable.

(Para 1051)

No such situation has arisen. On settled principles, no case for revisiting earlier decisions by larger Benches in the Second and Third Judges cases is made out. All the points now sought to be raised by the have been exhaustively considered in the Second Judges case. The contention that earlier situation of Executive interference has now changed also does not justify reconsideration of the earlier view. If the situation has changed, there can be no reason for change of the system which is functioning as per the intention of the Constitution-Makers when such change will be contrary to the basic structure, which is not constitutionally permissible. No case is thus made out for revisiting the earlier decisions in the Second and the Third Judges cases.

(Paras 1052 and 1053)

Gannon Dunkerley and Co. v. State of Rajasthan, (1993) 1 SCC 364; followed on this point

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) (Nine-Judge Bench); Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739 (Third Judges case) (Nine-Judge Bench), affirmed

D-M/55564/C