SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHERversusUNION OF INDIA

                    [2015] 13 S.C.R. 1


        SUPREME COURT ADVOCATES-ON-RECORD                    A
           ASSOCIATION AND ANOTHER
                             v.
                    UNION OF INDIA
           (Writ Petition (Civil) No. 13 of 2015)            B

                  OCTOBER 16, 2015
     [JAGDISH SINGH KHEHAR, J. CHELAMESWAR,
          MADAN B. LOKUR, KURIAN JOSEPH,
                ADARSH KUMAR GOEL, JJ.]                      c
      Constitution (Ninety-ninth Amendment) Act, 2014 -
Collegium system of appointment of Judges to the Supreme
Cowt, 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- New scheme contemplated D
for replacing the Collegium system - Six-member National
Judicial Appointments Commission (NJAC) set up under the
aegis of Constitution (Ninety-ninth Amendment) Act, 2014
read with the National Judicial Appointments Commission E
Act, 2014-NJAC composed of: (a) the Chief Justice of India,
Chairperson, ex officio; ·(b) two other senior Judges of
Supreme Court, next to the Chief Justice of India as
Members, ex officio; (c) the Union Minister in charge of Law
and Justice as Member, ex officio; (d) two eminent persons, F
to be nominated as Members - Constitution (Ninety-ninth
Amendment) Act, 2014 - Va/idjty of- Held (per order of the
 Court): It is unconstitutional and void - National Judicial
Appointments Commission Act, 2014 - Judiciary- Higher
Judiciary- Constitutional Courts -Appointment and transfer G
of Judges - Procedure .
      National Judicial Appointments Commission Act, 2014
- Collegium system of appointment of Judges to the Supreme
Court, and Chief Justices and Judges to the High Courts;
                                                             h
2        SUPREME COURT REPORTS               [2015] 13 S.C.R.


A and transfer of Chief Justices and Judges of High Courts
  from one High Court, to another- New scheme contemplated
  for replacing the Col/egium system - Six-member National
  Judicial Appointments Commission (NJAC) set up under the
  aegis of Constitution (Ninety-ninth Amendment) Act, 2014
B read with the Nationai Judicial Appointments Commission
  Act, 2014- NJAC composed of: (a) the Chief Justice of India, ·
  Chairperson, ex officio; (b} two other senior Judges of
  Supreme Court, next to the Chief Justice of India as
  Members, ex officio; (c) the Union Minister in charge of Law
C and Justice as Member, ex officio; (d} two eminent persons,
  to be nominated as Members - National Judicial
  Appointments Commission Act, 2014 - Validity of - Held
  (per order of the Court): It is unconstitutional and void -
  Constitution (Ninety-ninth Amendment) Act, 2014- Judiciary
0
  - Higher Judiciary - Constitutional Courts - Appointment
  and transfer of Judges- Procedure.
        Judiciary - Higher Judiciary- Constitutional Courts -
  Appointment and transfer of Judges- Procedure- Col/egium
E 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- New scheme contemplated for replacing
  the Collegium system - Six-member National Judicial
F Appointments Commission (NJAC) set up under the aegis
  of Constitution (Ninety-ninth Amendment) Act, 2014 read with
  the National Judicial Appointments Commission Act, 2014
  - NJAC composed of: (a) the Chief Justice of India,
  Chairperson, ex officio; (b) two other senior Judges of
G Supr~me Court, next to the Chief Justice of India as
  Members, ex officio; (c) the Union Minister in charge of Law
  and Justice as Member, ex officio; (d) two eminent persons,
  to be nominated as Members- Held (per order of the Court):
  The collegium system, as existing prior to the Constitution
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     SUPREME COURT ADVOCATES-ON-RECORD                            3
              ASSOCIATION v. U.0.1.

(Ninety-ninth Amendment) Act, 2014, declared to be               A
operative - However, to consider introduction of appropriate
measures, if any, for an improved working of the "collegium
system", matter listed on a subsequent date ..:. Constitution
(Ninety-ninth Amendment) Act, 2014 - National Judicial
Appointments Commission Act, 2014.                               B
      Judiciary ~ Higher judiciary - Constitutional Courts -
Selection and appointment of Judges - Parliament, if
empowered to provide for an alternative procedure - Held
(per Khehar, J.): It is open to the Parliament, while exercising C
its power under Article 368, 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 D
Constitution, are maintained.
      Constitution of India -Amendment to - Scope - Held
(per Khehar, J.): The "basic structure" of the Constitution is
inviolable ~ The Constitution cannot be amended so as to
negate any "basic features" thereof-Also, if a challenge is       E
raised to an ordinary legislation based on one of the "basic
features" of the Constitution, it would be valid to do so.
       Constitution of India - Art. 368 - Constitutional
Amendments - Will of the People and Judicial Review -
Limitations on the amending power - Appointment and F
 transfer of Judges in higher judiciary- Broad based Judicial
Appointment Commission comprising of members of the
judiciary, the executive and eminent! important persons from
public life 'proposed to be constituted, to replace the prevailing G
procedure, contemplated under Articles 124(2) and 217(1)-
 To achieve the purported objective, Articles 124 and 217 inter
 a/ia amended, and Articles 124A, 1248 and 124C inserted
 in the Constitution, through the Constitution (99th
Amendment) Act, by following the procedure contemplated H
4         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A   under Article 368(2), more particularly, the proviso thereunder
    - Simultaneously therewith, the Parliament enacted the
    NJACAct- Said Constitutional amendment and legislative
    enactment, challenged before Supreme Court - Held (per
    Khehar, J.): There are declared limitations, on the amending
B . power conferred on the Parliament, which cannot be breached
    - If a constitutional amendment breaches the "core" of the
     Constitution or destroys its "basic or essential features" in a
    manner which was patently unconstitutional, it would have
    crossed over forbidden territory - This aspect, would
C undoubtedly fall within the realm of judicial review - In the
    above view of the matter, the impugned constitutional
    amendment, as a/so, the NJAC Act, would be subject to
    judicial review on the touchstone of the "basic structure" of
    the Constitution, and the parameters laid down by the
0
     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-
E eight State Assemblies - Constitution (Ninety-ninth
    Amendment) Act, 2014 - National Judicial Appointments·
     Commission Act, 2014 .
        .Judiciary- Higher Judiciary- Constitutional Courts -
  Appointment and transfer of Judges - Independence of
F judiciary - Primacy conferred on the Chief Justice of India
   and his col/egium of Judges - Held (per Khehar, J.): 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
G 124, 217 and 222, 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) - Therefore, when a question with
   reference to the selection and appointment (as also, transfer)
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     SUPREME COURT ADVOCATES-ON-RECORD                         5
              ASSOCIATION v. U.0.1.

of Judges to the higher judiciary is raised, alleging that the A
"independence of the judiciary" as a "basic feature/structure"
o~ 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 B
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}- Constitution of India -Articles 124, 21 land 222.
      Judiciary - Higher Judiciary - Constitutional Courts -
                                                              c
Appointment and transfer of Judges - Procedure - New
scheme contemplated for replacing the Col/egium system -
National Judicial Appointments Commission (NJAC) set up
under the aegis of Constitution (Ninety-ninth Amendment) D
Act, 2014 read with the National Judicial Appointments
Commission Act, 2014 - NJAC to comprise of members of
the judiciary, the executive and eminent/important persons
from public life - Whether as a matter of practicality, the
impugned constitutional amendment can be consi.dered to E
have sustained, primacy in the matter of decision making,
under the amended provisions of Articles 124, 217 and 222,
in conjunction with the inserted provisions of Articles 124A to
 124C, with the judiciary- Held (per Khehar, J.): Primacy of
the judiciary would not be considered to have been sustained, F
merely by ensuring that the judicial component in the
membership of the NJAC, was sufficiently capable, to reject
the candidature of an unworthy nominee - In the matter of
primacy, the judicial component of the·NJAC, should be
competent by itself, to ensure the appointment of a worthy· G
nominee, as well - Under the substituted scheme, even if
the Chief Justice of India and the two other senior most Judges
of the Supreme Court (next to the Chief Justice of India),
consider a nominee to be worthy for appointment to the higher
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6         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A  judiciary, the concerned individual may still not be appointed,
   if any two Members of the NJAC. opine otherwise- This would
    be out-rightly 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,
B according to the Attorney General), could defeat the
    unanimous recommendation made by the Chief Justice of
    India and the two senior most Judges of the Supreme Court,
    favouring the appointment of an individual under
    consideration - Without any doubt, demeaning primacy of
C the judiciary, in the matter of selection and appointment of
    Judges to the higher judiciary - 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
0
    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 - Articles
     124A(1)(a) and (b) do not provide for an adequate
E' representation in the matter, to the judicial component, to
    ensure primacy of the judiciary in the matter of selection and
    appointment of Judges to the higherjudiciary, and therefore,
    the same are liable to be set aside and struck down as being
     violative of the "basic structure" of the Constitution of lndia-
F 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 the NJAC - The impugned
     constitutional amendment, being ultra vires the "basic
G structure" of the Constitution, is liable to be set aside -
     Constitution of India -Arts. 124A (1 )(a) and (b).
         Judiciary - Higher Judiciary - Constitutional Courts -
    Appointment of Judges - Procedure - New scheme
    contemplated - National Judicial Appointments Commission
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      SUPREME COURT ADVOCATES-ON-RECORD                                7
               ASSOCIATION v. U.0.1.

 (NJAC) set up - NJAC to comprise of members of the                    A
judiciary, the executive and eminenVimportant persons from
public life - Participation of the political-executive - Ifjustified
- Presence of Union Minister in charge of Law and Justice,
as an ex officio Member of the NJA C - Challenge to - Held
 (per Khehar, J.): The political-executive, as far as possible,        B
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-                C
 executive, would be disastrous to "independence of the
judiciary" - 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
                                                                       0
 charge of Law and Justice, as an ex officio Member of the
NJAC, would be clearly questionable - 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      E
 of interest, raised by a litigant, in a matter when the executive
 has an adversarial role- In the NJAC, the Union Minister in
 charge of Law and Justice would be a party to all final
 selections and appointments of Judges to the higherjudiciary
- It may be difficult for Judges approved by the NJAC, to              F
 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 /is - The above, would have the inevitable effect of
 undermining the "independence of the judiciary", even where
 such a plea is repulsed - Therefore, the rote· assigned to the        G
 political-executive, can at best be limited to a collaborative
 participation, excluding any role in the final determination -
 Mere participation of the Union Minister in charge of Law and
 Justice, in the final process of selection, as an ex officio
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8         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A Member of the NJA C, would render the amended provision
  of Article 124A(1 )(c) as ultra vires the Constitution, as it
  impinges on the principles of "independence of the judiciary"
  and "separation of powers" - In the process of evolution of
  societies across the globe, the trend is to free the judiciary
B 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 ofjudicial review
  will effectively support nation building - Progression of the
  concepts of "independence of the judiciary" and 'Judicial
C review" were now being recognized the world over - The
  diminishing role of executive and political participation, on
  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
D executive, than that which existed hitherto before -And in
  the Indian scenario, as is presently conceived, through the
  judgments rendered in the Second and Third Judges cases
  - It is therefore imperative to conclude, that the participation
E of the Union Minister in charge of Law and Justice in the final
   determinative process vested in the 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
  - Leader of the single largest Opposition Party in the House
F of the People), in the selection of"eminent persons", would
   be a retrograde step, and cannot be accepted - Constitution
   of India -Art. 124A(1)(c).
          Judiciary- Higher Judiciary- Constitutional Courts -
  Appointment and transfer of Judges - Procedure -
G Composition and structure of NJAC- NJAC to comprise of
   members of the judiciary, the executive and two "eminent
   persons""- Issue arising out of non-description of
   qualifications and disqualifications of "eminent persons" -
   Two "eminent persons" to be nominated to the NJA C vested
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      SUPREME COURT ADVOCATES-ON-RECORD                           9
               ASSOCIATION v. U.0.1.

with a power of veto - Propriety of- Held (per Khehar, J.):       A
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      B
the two "eminent persons" comprise of 1/3rd strength of the
NJA C, and double that of the political-executive component,
and as such, will have a supremely important role in the
decision making process of the NJAC-Article 124A(1 )(d) is
liable to be set aside and struck down, for having not laid       C
down the qualifications of eligibility for being nominated as
"eminent persons", and for having left the same vague and
undefined - It is even otherwise difficult to appreciate the
logic of including two "eminent persons': in the six-Member
                                                                  0
NJAC - It is difficult to appreciate what inputs the "eminent
persons", satisfying the qualification depicted by the Attorney
General, would render in the matter of selection and
appointment of Judges to the higherjudiciary- The sensitivity
of selecting Judges is so enormous, and the consequences          E
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 we/I lead the nation into a chaos of sorts - It is also
difficult to appreciate the wisdom of the Parliament, to          F
introduce two Jay 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 s.5(2), and s.6(6) of the NJAC Act, clearly
mandate, that a person nominated to be considered for             G
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 the NJA C do not agree to the proposal - In the
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10        SUPREME COURT REPORTS                [2015] 13 S.C.R


A   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
B two "eminent persons" would also have the absolute authority
    to reject all names unanimously approved by the remaining
    four Members of the NJAC - That would obviously include
    the power to reject, the unanimous recommendation of the
    entire judicial component of the NJA C - The vesting of such
C authority in the "eminent persons", is clearly unsustainable,
    in the scheme of ."independence of the judiciary" -Article
    124A(1)(d) is liable to be set aside and struck down as being
    violative of the "basic structure" of the Constitution -
D Constitution of India-Art. 124A(1)(d)- Constitution (Ninety-
    ninth Amendment) Act, 2014 - National Judicial
 . Appointments Commission Act, 2014 - Second proviso u/s.
    5(2) ands. 6(6).
         Judiciary - Higher judiciary - Constitutional Courts -
E Appointment and transfer of Judges - Participation of the
  political-executive establishment- Role of the "civil society"
   in India - Held (per Khehar, J.): The Constitution does not
  .envisage the "spoils system" (also known as the "patronage
   system'?, wherein the political party which wins an election,
F 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- It would be of utmost
   importance to shield judicial appointments, from any political-
   executive interference, to preseNe the "independence of the
G judiciary", from the regime of the spoils system - PreseNing
   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 - It is difficult to hold that the wisdom of
   appointment of Judges, can be shared with the political-
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      SUPREME COURT ADVOCATES-ON-RECORD                         11
               ASSOCIATION v. U.0.1.

executive- In India, the organic development of civil society, · A
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- The present status ofthfj evolution of the "civil B
society" in India, does not augur the participation of the
political-executive establishment, in the selec;tion and
appointment of Judges to the higherjudiciary, or in the matter
of transfer of Chief Justices and Judges of one High Court,
to another - Higher judiciary, ·which is the savior of the C
fundamental rights of the citizens of this country, by virtue of
the constitutional responsibility assigned to it under Articles
32 and 226, must continue to act as the protector of the civil
society- Constitution of India-Arts. 32 and 226.
                                                                D
        National Judicial Appointments Commission Act, 2014
  - Functioning of the NJAC- Quorum for- Meeting of National
  Judicial Appointments Commission (NJAC), when valid -
  Strength required for valid decision making - Held (per
. Khehar, J): In case a statutory provision vests a decision E
  making authority in a body of persons witho_ut 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 F
  by a simple majority of all the members of the body - If the
. aforesaid principles are made applicable to the NJAC, the
  natural outcome would be, that a valid meeting of the NJA C
  must have at least four Members participating in a six-
  Member NJAC - Likewise, a valid decision of the NJAC can G
  only be taken (in the absence of any prescribed prerequisite),
  by a simple majority, namely, by at least four Members of
·the NJAC (three Members on either side, would not make
  up the simple majority) - Judiciary - Higher Judiciary -
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12         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A Constitutional Courts -Appointment and transfer of Judges
  - Procedure.
        National Judicial Appointments Commission Act, 2014
  - ss. 5(2) and 6(6) - Validity- Judiciary- Higher Judiciary-
  Constitutional Courts -Appointment and transfer of Judges
B - Power of veto vest~d in any two Members of the NJA C - .
  Held (per Khehar, J.): The power of veto vested in any two
  Members of the NJAC, would adversely impact primacy of
  the judiciqry, in the matter of selection and appointment of
C Judges to the higherjudiciary (as also theirtransfer)-ss.5(2)
  and 6(6) breach the "basic structure" of the Constitution, with
  reference to the "independence of the judiciary" and the
  "separation of powers" - ss. 5(2) and 6(6), therefore, liable to
  be declared as ultra vires the Constitution.
o          National Judicial Appointments Commission Act, 2014
     - s. 5(1) - Appointment of the Chief Justice of India -
     Procedure - s.5(1) provided that the NJAC would
     recommend the senior most Judge of the Supreme Court,
     for being appointed as Chief.Justice of India, subject to the
E    condition, that he was considered "fit" to hold the office -
     Contention that the term "fit" had not been elaborately
     described and it was always open to the Parliament to
     purposefully define fitness, in a manner as would sub-serve
     the will of the executive and this could/would seriously affect
F    the "independence of the judiciary" - Held (per Khehar, J.): 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, in uncertain and
     ambiguous terms - It was imperative to express, the clear
G    parameters of the term "fit", with reference to the senior most
     Judge of the Supreme Court under s.5 - The term "fit" can
     be tailor-made, to choose a candidate far below in the
     seniority list- The position adopted by the Attorney General,
H    namely, that the term "fit" used in s.5(1) would be read to
      SUPREME COURT ADVOCATES-ON-RECORD                            13
               ASSOCIATION v. U.0.1.

mean only "... mental and physical fitness ... " is affirmed       A
and crystalised - If that is done, it would be legal and
constitutional - However, if the position adopted ~reached
the "independence of the judiciary'; in the manner suggested
by the petitioners, the same would be assailable in Jaw.
       National Judicial Appointments Commission Act, 2014         8
- s. 5(2), first proviso - Validity of -Appointment of a High
Court Judge - First proviso to s.5(2) providing that while
making recommendation for appointment of a High Court
Judge, apart from seniority, the ability and merit of such Judge   C
shall be considered by NJAC - Held (per Khehar,
J.):Undoubtedly, postulating "seniority" in the first proviso
under s.5(2), 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 -            0
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-A group of Judges appointed to one High           E
Court, will be separated from the lot of Judges appointed to
another High Court, byjust a few days, or by just a few weeks,
and sometimes by just a few months- In the all India seniority
of Judges, the complete batch appointed on the same day,
to one High Court, will be placed in a running serial order (in    F
seniority) above the other Judges appointed to another High
Court, just after a few days or weeks or months - Judges
appointed later, will have to be placed en masse below the
earlier batch, in seniority- If appointment of Judges to the
Supreme Court, is to be made on the basis of seniority (as a       G
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
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14        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A   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 -
B Judges from the same High Court, in the above situation
    where the batch comprised often Judges, will occupy a third
    of the total Judge positions in the Supreme Court- That would
    be clearly unacceptable - Consideration of Judges on the
    basis of their seniority, by treating the same as a primary
C consideration, would adversely affect the present convention
    of ensuring represeritation from as many State High Courts,
    as is possible - The convention in vogue is, to maintain
    regional representation -Accordingly, the first proviso under
    s. 5(2) is liable to be struck down and set aside.
0
           National Judicial Appointments Commission Act, 2014
    - s.6(1) - Validity of-Appointment of a Judge of a High
    Court as Chief Justice of a High Court- s. 6(1) providing that
    NJAC shall recommend on the basis of inter se seniority of
E High Court Judges and ability, merit and any other criteria of
    suitability as may be specified- Held (per Khehar, J.): s. 6(1)
  . has the same seniority connotation as expressed with
    reference to the first proviso under s.5(2) - For exactly the
    same reasons as noticed in the case of the first proviso under
F s.5(2), based on seniority (as a primary consideration), ten
    High Courts in different States could have Chief Justices
    drawn from one parent High Court- s. 6(1) therefore liable to
    meet the same fate, as the first proviso under s.5(2); and is
     liable to be struck down and set aside.
G          National Judicial Appointments Commission Act, 2014
  - s. 7 - Validity of- Appointment of Chief Justice of India or
  a Judge of the Supreme Court or, the Chief Justice of a High
  Court or the Judge of a High Court - s. 7 providing that the
H President would make such appointments on
       SUPREME COURT ADVOCATES-ON-RECORD                           15
                ASSOCIATION v. U.0.1.

· recommendations made by NJAC - The first proviso to s. 7 A
  providing that the President may require NJA C to reconsider
  recommendation made by it- Held (per Khehar, J.): It is not
  possible to accept that s. 7 by providing that the President
   could requite the NJAC to reconsider a recommendation
  made by it, would in any manner violate Articles 124(2) and B
   217(1) (which mandate, that Judges would be appointed by
   the President on the recommendation of the NJAC)- It would
  .be improper to infer, that the action of the President, requiring
   the NJAC to reconsider its proposal, amounted to rejecting
   the proposal made by the NJAC - For, if the NJAC was to C
   reiterate the proposal made earlier, the President even in
   terms of Section 7, was bound to act in consonance therewith
   (as is apparent from the second proviso under s. 7 of the
   NJACAct).
                                                                   D
        National Judicial Appointments Commission Act, 2014
  - s. 8- Validity of- Functions of the Convener, with reference
  io NJA C - s. 8 provides for the Secretary to the Government
  of India, in the Department of Justice, to be the convener of
  NJA C- It was contended that such an onerous responsibility, E
· could not be left to the executive alone.it was imperative to
  exclude all executive participation in the proceedings of the
  NJAC-Held (per Khehar, J.): It has already been concluded,
  that the participation of the Union Minister in charge of L?W ·
  and Justice, as a Member of the NJAC, as contemplated F
  under Article 124A(1), in the matter of appointment of Judges
   to the higher judiciary, would breach the concepts of
   "separation of powers" and the "independence of the
  judiciary", which are both undisputedly components of the
   "basic structure" of the Constitution of/ndia - For exa<?tlY the G
  same reasons, s. 8 is not sustainable in law - In a body like
   the NJAC, the administrative functioning cannot be under
   executive or legislative control - The only remaining
  alternative, is to vest the administrative control of such a body,
                                                                   H
16         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A    with the judiciary.
            Constitution of India - Amendment to, set aside by a
     process of judicial review - Consequence - Impugned
     Constitution (99th Amendment) Act set aside by five-Judge
     Bench of Supreme Court, as being violative of the "basic
8    structure" of the Constitution- Effect of- Would Articles 124,
      127, 128, 217, 222, 224, 224A and 231, as they existed prior
     to the impugned amendment, would revive; and on such
     revival, the judgments rendered in the Second and Third
C    Judges cases, would again regulate selections and
     appointments, as also, transfer of Judges of the higher
     judiciary- Held (per Khehar, J.): The present situation is one
      where, the impugned constitutional amendment by a process
     of judicial review, has been set aside - Such being the
0    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 are the stages or steps of
      the cause and effect of the amendment, all the stages and
E     steps will stand negated, in the same fashion as they were
     introduced by the amendment, when the amended provisions
      are set aside - If neither the impugned constitutional
     provision, nor the amended provisions of the Constitution
      would survive, it would lead to a breakdown of the constitutional
F     machinery, inasmuch as, there would be a lacuna or a hiatus,
      insofar as the manner of selection and appointment of Judges
      to the higherjudiciary is concerned - Such a position cannot
      be the result of any sound process of interpretation - The
      clear intent of the Parliament, while enacting the Constitution
G     (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
H
      SUPREME COURT ADVOCATES-ON-RECORD                            . 17
               ASSOCIATIONv. U.0.1.

appointment under the unamended provisions would revive A
-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 - With the setting aside of the impugned
Constitution (99th Amendment) Act, 2014, the provisions of
the Constitution sought to be amended thereby, would B
automatically revive, and the status quo ante would stand
restored - Constitution (Ninety-ninth Amendment) Act, 2014
- Judiciary - Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges.
       Constitution of India - Art. 124A - Validity of -
                                                                   c
Constitution and composition of National Judicial
Appointments Commission (NJAC) - Held (per Khehar, J.):
Article 124A constitutes the edifice of the Constitution (99th
Amendment) Act, 2014- The striking down of Article 124A             D
would automatically lead to the undoing of the amendments
made to Articles 124, 1248, 124C, 127, 128, 217, 222, 224,
224A and 231 - This, for the simple reason, that the latter
Articles are sustainable only if Article 124A is upheld - If the
inclusion of anyone of the Members of the NJAC is held to           E
be unconstitutional, Article 124A will be rendered nugatory,
in its entirety- Clauses (a) and (b) of Article 124A(1) do not
provide an adequate representation, to the judicial
 component in the NJAC, clauses (a) and (b) ofArticle 124A(1)
are insufficient to preserve the primacy of the judiciary, in       F
 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) - The same are
accordingly, violative of the principle of"independence of the
judiciary" - Clause (c) of Article 124A(1) is ultra vires the       G
provisions of the Constitution, because of the inclusion of
 the Union Minister in charge of Law and Justice as an ex
 officio Member of the NJAC- Clause (c) of Article 124A(1)
 impinges upon the principles of "independence of the
                                                                    H
18        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A judiciary", as well as, "separation of powers'' -Also, clause
  (d) of Article 124A(1) which provides for the inclusion of two
  "eminent persons" as Members of the NJAC is ultra vires
  the provisions of the Constitution, for a variety of reasons -
  The same is violative of the "basic structure" of the Constitution
B - In the above view of the matter, all the clauses (a) to {d) of
  Article 124A(1) are liable to be set aside - The same are,
  accordingly struck down - In view of the striking down ofArticle
   124A(1), the entire Constitution (99th Amendment) Act, 2014
  is liable to be set aside - The same is accordingly hereby
C struck down in its entirety, as being ultra vires the provisions
  of the Constitution - Constitution (99th Amendment) Act,
  2014 - Judiciary- Higher Judiciary- Constitutional Courts
  -Appointment and transfer of Judges'- Procedure.

D       Constitution oflndia-Art. 124C- Validity of- Held (per
  Khehar, J.): The National Judicial Appointments
  Commission Act, 2014 inter alia emanates from Art. 124C -
  It has no independent existence in the absence of the NJAC,
  constituted under Art. 124A(1)- Since Arts. 124A and 124C
E have been set aside, as a natural corollary, the National
  Judicial Appointments Commission Act, 2014 is also liable
  to be set aside, and the same is accordingly hereby struck
  down - In view of the above, it was not essential to have
  examined the constitutional vires of individual provisions of
F the NJACAct-Allthe same, the challenge raised to Sections
  5, 6, 7 and 8 thereof have been examined - ss. 5, 6 and 8 of
  the NJAC Act found to be ultra vires the provisions of the
  Constitution - National Judicial Appointments Commission
  Act, 2014 - ss.5, 6 and 8- Judiciary- Higher Judiciary-
G Constitutional Courts -Appointment and transfer of Judges
  - Procedure .
        Judiciary - Higher Judiciary - Constitutional Courts -
  Appointment and transfer of Judges - Constitutional History
H in regard to Appointment of Judges in India - Discussed -
      SUPREME COURT ADVOCATES-ON-RECORD                             19
               ASSOCIATION v. U.0.1.

Held (per Lokur, J.): The conclusions that can be drawn from        A
the background histo1ical facts are as follows: (1) The
independence of the judiciary has been always recognized
and acknowledged by all concerned - (2) Prior to
Independence, the appointment of a judge to a superior court
was entirely the discretion of the Crown - The Constituent          B
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 by requiring the President to
 mandatorily consult the Chief Justice of India (with the           C
 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-In addition, consultation with the Chief
                                                                    0
 Justice of the High Court and the Governor of the State was
 mandatory-Significantly, there is no mention of consultation
 with anybody from civil society - (3) Any doubt about the
 individual role of the President in the process of appointment
 ofjudges came to rest and it was clear that the President was      E
 expected to act only on the advice of the Council of Ministers
- (4) Similarly, the Chief Justice of India is not expected to
 act in an individual or personal capacity but must consult
 his/her senior judges before making a recommendation for
 the appointment of a judge - (5) Dr. Ambedkar and the              F
 Constituent Assembly did not accept the 'unfettered discretion'
 theory in the Constituent Assembly Debates (CAD) but this
 view was subsequently rejected in the First Judges case which
 brought in the 'ultimate power' theory propounded by Justice
 Bhagwati and Justice Desai - (6) Executive interference in         G
 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 - (7) Not a single instance given where the
                                                                    H
20         SUPREME COURT REPORTS                  [2015) 13 S.C.R.


A    President recommended a person for appointment as a judge
     of the Supreme Court or the High Court- The Chief Minister
     of a State might have made a recommendation (although
     no instance was given) but that was required to be routed
     through the Chief Justice of the High Court, as per the
B    Memorandum of Procedure - (8) Only one instance was
     given, pre the First Judges case where an appointment as a
     judge of the High Court was made without the concurrence
      of the Chief Justice of India - Post the First Judges case as
     many as seven such appointments were made - This is a
C    clear indication that the 'ultimate power' theory propounded
     in the First Judges case translated into 'absolute executive
     primacy' - The dream of Dr. Ambedkar became a nightmare,
     thanks to the political executive - (9) The 'ultimate power'
     theory or the 'absolute executive primacy' theory is now diluted
0
     and the last word in the appointment of a judge of the
      Supreme Court is shared between the President and the Chief
     Justice of India in terms of the Second Judges case and the
      Third Judges case - Historically, giving the last word to the
E     executive has been criticized by no less than the Attorney-
      General Shri M. C. Setalvad who chaired the Law
      Commission of India when the 141h Report was given - That
     system has not worked well at all as noted from time to time
     - (10) The National Commission to Review the Working of
F    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
G    providing a suitable method for appointment ofjudges of the
      superior Courts.
         Judiciary- Higher Judiciary - Constitutional Courts -
     Appointment and transfer of Judges- Procedure- 'Absolute
     executive primacy' system or the 'ultimate power' theory and
H
                    .
      SUPREME COURT ADVOCATES-ON-RECORD                        21
               ASSOCIATION v. U.0.1.

the 'col/egium system' of appointment of fudges postulated A
by the Second Judges case and the Third Judges case -
Discussed- Held (per Lokur, J.): Both the 'absolute executive
primacy' system or the 'ultimate power' theory and the
'col/egium system' of appointment ofjudges of the Supreme
Court and the High Courts were acceptable systems in their B
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 Supreme Court- C
It is this insight that resulted in the Second Judges case and
a meaningful and pragmatic interpretation of the Constitution
- To say that the col/egium system has failed and that it needs
replacement would not be a correct or a fair post mortem.
                                                               D
       Judiciary - Higher Judiciary- Constitutional Courts -
Appointment and transfer of Judges - Procedure - Process
 of consideration - Col/egium system - Two stages - Pre-
 recommendation stage and post-recommendation stage -
 Impact and effect of Second Judges case - 'Consultation' E
 occurring in Article 124(2) and Article 217(1) of the
 Constitution - Meaning of- Held (per Lokur, J.): 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/ F
 her colleagues, constituting a 'col/egium' 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, G
 constituting the collegiums - 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 a/so
 includes the participation of the executive because it is at
                                                               H
22         SUPREME COURT REPORTS                  [2015) 13 S.C.R.


A 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
B    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 tor appointment as
     a judge, there is extensive and intensive participatory
     consultation within the judiciary before the Chief Justice of
C    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 - Difficulty in considering and
     accepting a recommendation arises only if there is a
0
     difference of opinion during consultations between the
     executive and the judiciary - The Second Judges case
     effectively resolves this controversy - At the pre-
     recommendation stage, it is quite possible that the executive
E    is in possession of material regarding some personal trait or
      weakness of cha racier 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
F     consultant, to bring this information or material 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 (symbolized by the view of the Chief Justice of
G     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
H
      SUPREME COURT ADVOCATES-ON-RECORD                            23
               ASSOCIATION v. U.0.1.

sense that 'consultation' occurring in Article 124(2) and Article A
217(1) of the Constitution has to be understood- Constitution
oflndia-Articles 124(2) and 217(1).
      Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - 991h Constitution Amendment Act
inter alia amended Article 124(2) and introduced Article 124A      B
- Article 124(2) of the Constitution required the NJAC
constituted. under Article 124A to make recommendation to
the President for the appointment of a judge of the Supreme
Court or a High Court- NJAC and the role of the President-         C
piscussed - Held (per Lokur, J.): 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         D
eminent persons neither of whom is constitutionally
accountable - There is a doubt on the well established
principle of Cabinet responsibility-A statute- the NJA C Act,
not the Constitution binds the President contrary to the
constitutional framework- The ggrh Constitution Amendment          E
Act makes serious and unconstitutional inroads into Article
 124(2) of the Constitution, as originally framed - Constitution
(Ninety-ninth Amendment) Act, 2014.
      Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - Role of the Chief Justice of India F
and the Judiciary- In context to ggth Constitution Amendment
Act and the NJAC Act- Discussed - Held (per Lokur, J.):
The unanimous opinion of the Judiciary can be rejected by
two eminent persons or one eminent person and the Law
Minister (whose opinion is subject to the opinion of the G
Council of Ministers, whom he/she represents) - The
unanimous opinion of the judiciary as an institution, an
opinion that was respected (and deservedly so) counts for
virtually nothing with the passage of the ggrh Constitution H
24        SUPREME COURT REPORTS                [2015] 13S.C.R.


A Amendment Act and the NJAC Act- The Chief Justice of
  India is rendered, by the ggih Con.stitution Amendment Act to
  a mere voting statistic and one among six in the NJAC
  virtually stripping him/her of the constitutional responsibility
  of appointing judges to the superior courts and denuding him/
B her of the authority conferred by history, constitutional
  convention and the Constitution- The Chief Justice of India
  and the institution of the judiciary is now subject to a veto by
  civil society in its decisions - The entire scheme of
  appointment of judges postulated by the Constituent
C Assembly is _made topsy-turvy by the ggrh Constitution
  Amendment Act and the NJAC Act - Constitution (Ninety-·
  ninth Amendment) Act, 2014 - National Judicial
  Appointments Commission Act, 2014.

D        Judiciary - Higher judiciary - Constitutional Courts -
   Appointment of Judges - Presence of eminent persons in
   NJAC- Challenged- Held (per Lokur, J.): 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
E 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 the NJA C, a power without
F 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
G deciding who is or is not an eminent person for the purposes
   of nomination to the NJAC, but that the choice is left to a
   high powered committee is a sufficient check, provided the
   decision of the committee is unanimous.
         Judiciary - Higher judiciary - Constitutional Courts -
H
     SUPREME COURT ADVOCATES-ON-RECORD                        25
              ASSOCIATION v. U.0.1.

Appointment of Judges - Presence of the Law Minister in A
NJAC- Challenge to, on ground that the Union of India is
the biggest litigant in the courts and to have the Law Minister
as a member of the NJAC might prove detrim~ntal to a fair
selection, if not counter-productive- Held (per Lokur, J.): The
struggle for the independence of the judiciary has always B
been pivoted around the exclusion of the executive in
decision-taking, but the inclusion of the Law Minister in the
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 C
exercise a veto in the decision-taking body - Presence of
the Law Minister in the NJAC is totally unnecessary and ii/-
advised - Presence of the Law Minister in the NJA C casts a
doubt on the principle of Cabinet responsibility.
                                                              D
      Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - 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 ofjudges
- NJAC and impact on mandatory consultation - Held (per E
Lokur, J.): The ggth 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 F
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.                                                 G
     Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges- NJAC and the appointment of High
Court judges - Held (per Lokur, J.): The combined effect of
the ggth Constitution Amendment Act and Section 6 of the
                                                              H
26         SUPREME COURT REPORTS                [2015] 13 S.C.R.


A    NJAC Act is that the entire control over the appointment of a
     judge of a High Court is taken over by the NJAC and the
     paradigm is completely altered with the Chief Justice of a
      High Court downgraded from a mandatory consultant, and
      the originator of a recommendation for appointment as
B    postulated by Article 217(1) of the Constitution as
     conventionally understood, to someone who merely makes
      a nomination and thereafter is not required to be consulted
      one way or the other with respect to the nomination made -
      Process of initiating a recommendation for the appointment
C     of a judge, generally accepted since Independence, has
      been radically changed, with well entrenched constitutional
      conventions being given short shrift - 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
0
      but not taken as a consultant in so vital a matter as the
      appointment of a judgf! - The constitutional importance given
      to the Chief Justice of a High Court has been completely
      whittled down virtually to a vanishing point- Constitution of
E     India -Art. 217(1) - Constitution (Ninety-Ninth} Amendment
      Act, 2014 - National Judicial Appointments Commission Act,
      2014-s.6. .
         Judiciary - Higher judiciary - Constitutional Courts -
   Appointment of Judges - Convenor of the NJAC - The
F Secretary to the Government of India in the Department of
   Justice is the convenor of the NJAC in terms of Section 8(3)
  ·of the NJAC Act - Held (per Lokur, J.):. The duties and
   responsibilities of the convenor have not been delineated in
   the NJAC Act and, the rules and regulations under the Act
G have not been framed - It is therefore difficult to appreciate
   the functions that the convenor is expected to perform- That
   apart, the Secretary is an officer of the· government and is
   not answerable to the NJA C - The Secretary is paid a salary
   and allowances from the government coffers - This is quite
H
       SUPREME COURT ADVOCATES-ON-RECORD                              27
                ASSOCIATfON v. U.0.1.

 unlike officers of the High Courts or the Supreme Court who A
 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 - B
 Moreover, the Secretary holds a transferable position and
 can be changed at the whims and fancies of the executive,
 depriving the NJAC of continuity and, in a sense, leaving it
 high and dry whenever it pleases the executive ~ This is
 clearly objectionable - National Judicial Appointments C
 Commission Act, 2014 - s. 8(3).
         Judiciary - Higher judiciary - Constitutional Courts -
  Appointment of Judges - Confidentiality requirements -
· Functioning of the NJAC-Held (per Lokur, J.): The balance           D
  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 ggth Constitution Amendment
  Act and the NJAC Act have not taken note of the privacy             E
  concerns of an individual - This is important because it was
  submitted by the Attorney-Genera/ that the proceedings of
  the NJAC wi/I be completely transparent and any one can
  have access to information that is available with the NJA C -
  This is a rather sweeping generalization which obviously does       F
  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   G
  the implicit fundamental right to privacy that all people enjoy
  - The balance between the two implied fundamental rights
  is difficult to maintain, but the ggth Constitution Amendment
  Act and the NJAC Act do not even attempt to consider, Jet
                                                                      H
28         SUPREME COURT REPORTS                  [2015) 13 S.C.R.


A    alone achieve that balance - Constitution (Ninety-ninth
     Amendment) Act, 2014 - National Judicial Appointments
     Commission Act, 2014.
       Judiciary - Higher judiciary - Constitutional Courts -
  Appointment of Judges - 991h Constitution Amendment Act
8
  declared as altering the basic structure of the Constitution -
  Effect of- Held (per Lokur, J.): The constitutional provisions
  amended by the 991h Constitution Amendment Act spring
  back to life on the declaration that the ggrh Constitution
C Amendment Act is unconstitutional - Constitution (Ninety-
  Ninth) Amendment Act, 2014.
           Constitution (Ninety-ninth Amendment) Act, 2014 -
     Validity of- Held (per Lokur, J.): It alters the basic structure
     of the Constitution by introducing substantive changes in the
D    appointment of judges to the Supreme Court and the High
     Courts and rewriting Art.124(2) and Art.217(1) of the
     Constitution, thereby seriously compromising the
     independence of the judiciary - Consequently, the ggrh
     Constitution Amendment Act is unconstitutional - The
E    99th Constitution Amendment Act has completely changed
     the constitutional position and changed the role of the
     President in the appointment process as a/so substantially
     modified the mandatory consultation with the Chief Justice
     of India and substituted or replaced the entire process by a
F    recommendation of the NJAC - The 99th Constitution
     Amendment Act and the NJAC Act raise a series of
     unanswered questions- It is true that the Constitution cannot
     specify and incorporate each and every detail, particularly
     procedural details - But the same time, the substantive
G    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
H    of the judiciary- Vital issues cannot be left to be sorted out
      SUPREME COURT ADVOCATES-ON-RECORD                          29
               ASSOCIATION v. U.0.1.

at a later date through supplementary legislation or A
supplementary subordinate legislation, otherwise an
unwholesome hiatus would be created, making matters worse
- Constitution oflndia'-Arts. 124(2) and 217(1).
       National Judicial Appointments Commission Act, 2014
- Validity of - Held (per Lokur, J.): Since the 99th Constitution B
Amendment Act is unconstitutional, the National Judicial
Appointments Commission Act, 2014 which is the child of
the 99th Constitution Amendment Act cannot independently
survive on the statute books - Even otherwise, it violates C
Article 14 of the Constitution by enabling substantive
arbitrariness in the appointment of judges to the Supreme
Court and the High Courts - Judiciary - Higher judiciary -
Constitutional Courts -Appointment and transfer of Judges
- Constitution of India -Art. 14.                                 D
       Judiciary - Higher judiciary - Constitutional Courts -
Appointment of Judges - Independence of the judiciary and
the appointment process - Held (per Lokur, J.): The
independence of the judiciary begins with the appointment
of a judge - There is no doubt that the appointment of a judge E
to the Supreme Court or the High Court is an integral part of
the independence of the judiciary- However, it is not possible
to agree with the Attorney-General when he says 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 F
predominant part - It is really the foundational part of the
independence of the judiciary- 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 G
structure of the Constitution.
      Constitution of India - Amendment to - Grounds of
challenge - Difference from grounds for challenging a
Parliamentary statue - Held (per Lokur, J.): An amendment H
30         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A to the Constitution can be challenged only if it alters the basic
  structure of the Constitution - Whereas 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
B    (4) It is enacted without following the procedure laid down in
     the Constitution - Doctrines I Principles - Basic structure
     doctrine.
           Judiciary - Higher judiciary - Constitutional Courts -
C Appointment of Judges - Factors to be considered - Held
    (per Lokur, J.): There are two crucial factors- (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 the
0   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-
E 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 - Chief Justice of India is the 'expert' with regard to
F 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
G 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.
           Judiciary - Higher judiciary - Constitutional Courts -
H
      SUPREME COURT ADVOCATES-ON-RECORD                              31
               ASSOCIATION v. U.0.1.

Appointment of Judges - Constitution (Ninety-ninth                   A
Amendment) Act, 2014 - National Judicial Appointments
Commission Act, 2014 - Validity of - Held (per Lokur, J.):
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                   B
circumstances - This was the fetter on the discretion of the
President - However, the ggrh Constitution Amendment Act
and the NJAC Act have completely taken away the discretion
of the President to turn down a recommendation for the
appointment of a judge, reducing the constitutional                  C
significance of the President - The ggrh Constitution
Amendment Act and the NJAC Act have taken away this
freedom of consultation from the President, who has no option
but to take into account only the recommendation of the NJAC
                                                                     0
and not travel beyond that - Once again, the constitutional
significance and importance of the President is considerably
reduced, if not taken away- The 99'h Constitution Amendment
Act and the NJACAct have considerablylimited and curtailed
the authority of the Chief Justice of India (both individually       E
as well as institutionally) and the Chief Justice of India is now
precluded from taking the opinion of other judges or of any
person outside the NJAC - The Chief Justice of India has
been reduced to an individual figure from an institutional head
- The ggrh Constitution Amendment Act and the NJAC Act               F
reversed the process well thought out in the Second Judges
case and the Third Judges case and have taken away the
constitutional authority of the Chief Justice of India and placed
it on a platter for the NJA C to exploit- Given our constitutional
history, the established conventions, the views of various           G
committees over the last seventy years and the views of
scores of legal luminaries beginning with Mr. Motilal Setalvad,
the throes through which the judiciary has gone through over
several decades and the provisions of our Constitution,
                                                                     H
32         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A    Article 124A 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
B    structure of the Constitution - It is accordingly declared
     unconstitutional - The other provisions of the Constitution
     (Ninety-ninth Amendment) Act, 2014 cannot stand by
     themselves and are therefore also declared unconstitutional
     - Similarly, the National Judicial Appointments Commission
C    Act, 2014 confers arbitrary and unchartered powers on
     various authorities under the statute and it violates Article 14
     of the Constitution and is declared unconstitutional - Even
     otherwise, the National Judicial Appointments Commission
     Act, 2014 cannot stand alone in the absence of the
0
     Constitution (Ninety-ninth Amendment) Act, 2014 - The
     result of this declaration is that the 'co/legium system'
     postulated by the Second Judges case and the Third Judges
     case gets revived - However, the procedure for appointment
E    of judges as laid down in these decisions read with the
      (Revised) Memorandum of Procedure definitely needs fine
     tuning- There is a need to have a 'consequence hearing' to
     assist in the matter for steps to be taken in the future to
     streamline the process and procedure of appointment of
F    judgf!S, 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 -
      Constitution (Ninety-ninth Amendment) Act, 2014- National
      Judicial Appointments Commission Act, 2014.
G          Constitution (Ninety-ninth Amendment) Act, 2014 -
     Validity of - Appointment and transfer of Judges in
     Constitutional Courts - Scheme and structure - Discussed
     - Held (per Kurian, J.): During the first phase of the working
     of the Constitution, the Executive claimed an upper hand in
H
      SUPREME COURT ADVOCATES-ON-RECORD                               33
               ASSOCIATION v. U.0.1.

the appointment and the Chief Justice of India or the Chief           A
Justices of the High Courts concerned were only to be
'consulted', the expression often understood in its literaf
sense - The decision was taken by the Executive with the
participation of the Chief Justice - This process fell for scrutiny
in the decision of Supreme Court in Samsher Singh case                B
wherein a seven-Judge Bench, inter alia held that
"independence of the Judiciary" is a cardinal principle of the
Constitution which "is guarded by the relevant article making
consultation with the Chief Justice of India obligatory" and
that "in all conceivable cases consultation with that highest         C
dignitary of Indian justice will and should be accepted by the
Government of India''- The Bench dealing with the First
Judges Case, which had a coram only of seven, however,
held otherwise, though with a majority of four against three -        D
 The nine-Judges Bench in the Second Judges Case
overruled the First Judges Case, holding that appointment
of Judges to the High Courts and the Supreme Court forms
an integral part of the independence of judiciary, that
independence of judiciary is part of the basic structure of the       E
 Constitution of India, and therefore, the Executive cannot
interfere with the primacy of the judiciary in the matter of
 appointments - Third Judges Case, in 1998, is only an
 explanatory extension of the working of the principles in the
 Second Judges Case by institutionalizing the procedure of            F
 appointment, introducing the Collegium- Thus, the structural
 supremacy of the judiciary in the constitutionally allotted
 sphere was restored by the Second and Third Judges Cases
- This Bench is bound by the ratio that independence of
judiciary is part of the basic structure of Constitution and that     G
 the appointment of Judges to the High Courts and the
 Supreme Court is an integral part of the concept of
 independence of judiciary-And for that simple reason, the
 Constitution 99rh Amendment is declared unconstitutional -
                                                                      H
34         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A    Judiciary- Higher Judiciary- Constitutional Courts.
           National Judicial Appointments Commission Act, 2014
     - ,Validity of- Held (per Kurian, J.): Since it is being held by
     the majority that the amendment itself i.e. Constitution 99th
     amendment is bad, there is no point in dealing with the validity
8    of the creature of the amendment, viz., the National Judicial
     Appointments Commission Act, 2014- It does not exist under
     law- Judiciary- Higher Judiciary- Constitutional Courts -
     Appointment and transfer of Judges.
c           Constitutional Law - Interpretation of Constitution -
     Typology of constitutional arguments- "Historical': "textual",
     "structural", "prudential", "doctrinal" and "ethical" - Effect of
     Constitution 991h amendment - Held (per Kurian, J.): In
     interpreting the Constitution, all the tools are to be
o    appropriately used, and quite often, in combination too - In
     the present case, the Constitution 99th amendment has
     introduced a new constitutional scheme for appointment of
     Judges to the High Courts and the Supreme Court - The
     three constitutional wings, their powers and functions under
E    the Constitution, and their intra relationship being the key
     issues to be analysed in the present case, the 'structural tool'
     is to be prominently applied for resolving the issues- Validity
     of the Constitution 99th amendment is to be tested on the
     touchstone of the theory of the basic structure - Separation
F    of powers is the tectonic structure of the Constitution of India
     - Under the 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
G    are certain exclusive areas for each branch which can be
     described as powers central~ There shall be no interference
     on powers central of each branch -Any attempt by diluting
     the basic structure to create a committed judiciary, however
H    remote be the possibility, is to be nipped in the bud - The
     SUPREME COURT ADVOCATES-ON-RECORD                            35
              ASSOCIATION v. U.0.1.

 Parliament has no power to gerrymander the Constitution - A
 The Constitution ggth amendment impairs the structural
 distribution of powers, and hence, it is impermissible - .
·Constitution (Ninety-ninth Amendment) Act, 2014.
     Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges - New scheme 8
envisaged in terms of the Constitution (Ninety-ninth
Amendment) Act, 2014 for replacing the Collegium system
- Whether even if the said Constitutional amendment is
struck down, the Collegium does not resurrect - Held (per C
Kurian, J.): The argument does not appeal even to common
sense - The 991h 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 D
impermissible, the pre-amended provisions automatically
resurface and revive - Constitution (Ninety-ninth
Amendment) Act, 2014.
      Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges - Collegium system -           E
Need for improvement therein - Held (per Kurian, J.): 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 a/legations and many a        F
time not unfounded too, have been raised that its approach
has been highly subjective - The allegations certainly call
for a deep introspection - It is a curable situation yet - No
doubt, the fault is not wholly of the Collegium - The Second
and Third Judges Case had provided effective tools in the         G
/)ands of the Executive to prevent aberrations - Executive
seldom effectively used those tools - Therefore, the
Co/legium system needs to be improved requiring a
'glasnost' and a 'perestroika', and hence the case needs to       H
36         SUPREME COURT REPORTS               [2015] 13 S.C.R.


A    be heard further in this regard.
        Constitution of India - Art.368 - Amendment of
  Constitution - Limitation on Power of the Parliament to
  amend the Constitution - Test of basic"Structure - Held (per
  Goel, J.): Article 368 of the Constitution provides for power to
8 amend the Constitution and procedure therefor - 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
C tocase.
       ·Constitution of India - Basic structure I feature - What
  is- Held (per Goel, J.): 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
o and consequence of its denial on the working of the
  Constitution.
        Judiciary- Judiciary and democracy- Held (per Goel,
  J.): It is the faith of the people in the impartiality and
  competence of judiciary which sustains democracy - The
E 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.
F       Judiciary- Higher Judiciary- Constitutional Courts -
  Appointment and transfer of Judges- Scheme and structure
  - Whether primacy of Judiciary in Appointment of Judges is
  part of basic structure:; Held (per Goel, J.): The decisions of
  the Supreme Court expressly lay down that independence
G of judiciary and judicial review are part of basic structure -
  Broad separation of powers between the three departments
  of the State is a part of doctrine of checks and balances- It is
  also a part of democracy - Independence of judiciary is
  integral to the entire scheme of the Constitution without which
H
      SUPREME COURT ADVOCATES-ON-RECORD                              37
               ASSOCIATION v. U.0.1.

neither primacy of the Constitution nor Federal character,           A
Social Democracy nor rights of equality and liberty can be
effective - The earlier decisions in Second and Third Judges'
case 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 - Appointment of            B
judges is part of independence ofjudiciary- It is the faith of
 the people in the impartiality and competence of judiciary
 which sustains democracy- If appointment ofjudges, which
is integral to functioning ofjudiciary is influenced or controlled
by the Executive, it will certainly affect impartiality ofjudges     C
 and their functioning - The acknowledged scheme of the
 Constitution and its working is not to allow domination of the
 Executive in appointment of Judges - Even by amendment
primacy of judiciary in appointment of judges cannot be              D
 excluded - 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                   E
 Parliament to amend the basic feature of the Constitution -
 The change of time does not justify greater role for the
 Executive in appointment of judges - Independence of
judiciary is key element in the entire functioning of the
 Constitution and such independence is integrally linked with        F
 the appointment of judges free from Executive interference
- Any perceived shortcoming in the working of 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 basic feature - Primacy of judiciary and limited      G
 role of the Executive in appointment of judges is part of the
 basic structure of the Constitution - The primacy of judiciary
 is in initiating a proposal and finalising the same - The CJ/
 has the last word in the matter- The Executive is at liberty to
                                                                     H
38         SUPREME COURT REPORTS                [2015] 13 S.C.R.


A    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 Second and Third Judges' cases.
            Judiciary - Higher Judiciary - Constitutional Courts -
8    Appointment and transfer of Judges - Amendment in
     scheme and structure - National Judicial Appointments
     Commission (NJAC) set up under the aegis of Constitution
     (Ninety-ninth Amendment) Act, 2014 read with the National
C    Judicial Appointments Commission Act, 2014 - NJAC to
     comprise the Chief Justice of India, Chairperson, ex officio;
     two other senior Judges of Supreme Court, next to the Chief
     Justice of India as Members, ex officio; the Union Minister in
     charge of Law and Justice as Member, ex officio; and two
D    eminent persons, to be nominated by a Committee
     consisting of the Prime Minister, the Chief Justice of India
     and the Leader of Opposition in the House of the People -
     Whether under the impugned amendment the basic feature
     of primacy of judiciary in appointment of judges has been
E    altered or damaged - Held (per Goel, J.): Under the un-
     amended scheme of appointment ofjudges, which is a basic
     feature of the Constitution, the President is to make
     appointment, after consultation with the CJ/ representing the
     judiciary- Dfsregarding the views of the CJ/ is permissible
F    in exceptional situations for recorded reasons having bearing
     on character and antecedents of a candidate and if such
     reasons are found to be acceptable to the CJ/ - Under the
     amended scheme, no such final view can be taken by the
      CJ/ - Without giving any reason, the Minister or the
G    nominated members can reject the unanimous view of the
     judges - Chief Justice of the High Court is not a member of
      the Commission and has no Constitutional role in
     appointment/transfer of the judges of the High Courts- Mere
      fact that without the judges, the Minister and the nominated
H
      SUPREME COURT ADVOCATES-ON-RECORD                             39
               ASSOCIATION v. U.0.1.

members cannot make an appointment is not at par with the           A
situation where a decision itself is taken by the CJ/
representing the judiciary- Even if in appointing two eminent
members CJ/ is a/so a member of the Committee, the fact
remains that the PM and the Leader of the Opposition have
significant role in appointing such members, who will have          B
power not only equal to the CJ/ and two senior most 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 right to reject the unanimous
proposal of the CJ/ and the two senior most judges - Such           C
 composition of the Commission cannot be held to be
 conducive to the independence of judiciary - Appointment
ofjudges of the Supreme Court and appointment/transfer of
judges of the High Courts, can certainly be influenced to a         D
 great extent by the Law Minister and two nominated members,
 thereby affecting the independence of judiciary - The
 amendment does away with the primacy of even unanimous
 opinion of the judicial members as such opinion is not
 enough to finalise an appointment-The primacy ofjudiciary          E
 as always understood in binding judicial precedents
 comprises of initiation of name and taking a final call- These
 two core features constitute identity of the primacy ofjudiciary
- This concept of primacy is compromised if the judiciary is
 unable to initiate a proposal in the first instance or if such     F
 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 pre-
 dominant voice is not of the judiciary - The impact of such        G
 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 judiciary a.nd
 adversely affect the role of the judiciary as an important
                                                                    H
40         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A    impartial constitutional organ - Constitutionally conferred
     judicial primacy in appointment ofjudges 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, the Parliament could not act beyond the
B    authority conferred on it by the Constitution - Thus, taking
     away primacy of judiciary or conferring such primacy on a
     body which is not at par with the said concept is certainly not
      a choice available with the Parliament- The Constitution of
      India has its own background and personality - Models of
C     other countries could not be blindly followed so as to damage
      the identity and personality of the Indian Constitution - The
      Judicial Commissions referred to by the Attorney General
      do not show the trend of reducing the pre-existing role of
     judiciary- In fact, the trend is for reducing the pre-existing
0
      role of the Executive - In the impugned 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
E     impugned amendment which is contrary to the basic structure
      of the Indian Constitution - There is 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
F     impact clearly affects the independence of judiciary - Pre-
      dominant role of the Executive is not permissible - The new
      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
G     given a go-bye- Thus the impugned amendment cannot be
      sustained - Constitution (Ninety-ninth Amendment) Act,
      2014.
         Judiciary - Higher Judiciary - Constitutional Courts -
     Appointment and transfer of Judges - Amendment in
H
     SUPREME COURT ADVOCATES-ON-RECORD                        41
              ASSOCIATION v. U.0.1.

scheme and structure - National Judicial Appointments A
Commission (NJAC) set up under the aegis of Constitution
(Ninety-ninth Amendment) Act, 2014 read with the National
Judicial Appointments Commission Act, 2014- NJAC apart·
from Judges comprising of Law Minister and two eminent
persons to be nominated by a specified Committee- One of B
the eminent person was to be nominated from amongst the
persons belonging to the Scheduled Castes, the Scheduled
Tribes, Other Backward Classes, Minorities or Women -
Such reservation for one of the nominated members
challenged- Held (per Goel, J.): The views of the Constitution C
makers and eminent expert committees clearly show that role
of the Executive in appointment ofjudges has to be minimum
and by and large limited to check the character and
antecedents of the candidates and not to finally assess the D
merit and suitability of such candidates - In this view of the
matter, even ifthe 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 E
supporting but pre-dominant role in appointing Supreme
Court and High Court judges which will not be congenial to
the independence of judiciary - There is no justification for
reservation for one of the nominated members being from ·
specified categories- Such provision is against the scheme F
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 G
appointment ofjudges has to be on evaluation of merits and
suitability of the candidates - Religion, caste or sex of the
evaluator has no relevance.
      Judiciary - Higher Judiciary - Constitutional Courts -
                                                              H
42        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


·A  Appointment and transfer of Judges - Evaluation and
    suitability of a candidate for appointment as judge of the
    Supreme Court or High Courts - Held (per Goel, J.): The
  · appointment of a judge of the Supreme Court is normally
    made out of Chief Justices of High Courts or senior judges
B 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 selection are required to be best placed to assess
     their merit and suitability - Pre-dominant and decisive role
C of the judiciary is a requirement not only of independence of
    judiciary and separation of powers but also for inspiring
     confidence of the people at large necessary for strength of
     the Democracy- The citizens having a grievance of violation
     of their fundamental and legal rights against the Executive
0
     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
E extraneous influence, faith in impartiality, which is hall mark
     of independence of judiciary, will be eroded - The scheme
     in other countries cannot be mechanically followed when it is
     in conflict with the basic scheme of the Indian Constitution.
         Constitutional Law - Amendment of Constitution -
 F 'Identity test' and the 'impact test' - Held (per Goel, J.): The
   word amendment literally means betterment or improvement
   and sponsor of amendment may always claim improvement
   - Such claim has to be tested by applying the 'identity test'
   and the 'impact test' - The amendment should not affect the
 G 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
 H
     SUPREME COURT ADVOCATES-ON-RECORD                         43
              ASSOCIATION v. U.0.1.

of fundamental rights and justified on the concept of A
'reasonable restrictions' - In this regard, effect of Executive
interference 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- It is not merely the
text of the amendment but also its impact and potential which B
has to be kept in mind on 'identity' of the original scheme
and the 'width' of the power under the new scheme- The new
scheme may iron out the creases but the mechanism should
be comparable to the substituted scheme - Words and
Phrases - "amendment" - Meaning of.                             C
       Judiciary - Higher Judiciary - Constitutional Courts -
Appointment and transfer of Judges - Procedure - New
scheme and structure - Six-member National Judicial
Appointments Commission (NJAC) set up - NJAC apart D
from Judges comprising of Union Law Minister and two
eminent persons to be nominated by a specified Committee
- Presence of Law Minister and two eminent persons - If
proper- Held (per Goel, J.): Under the new scheme, the Law
Minister has been given role equal to the CJ/ - Right from E
the commencement of the Constitution, this role of the Law
Minister was never envisaged while initiating the process and
finalizing it - Law Minister, in 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 F
the CJ/ - At the stage of initiation, if equal authority is
conferred, this will erode the primacy ofjudiciary- Other two
persons to be nominated by a Committee which also has
predominant political voice to be placed at par with the CJ/
in initiating and finalizing a proposal destroys the original G
scheme beyond its identity-Any suggestion before initiation
of a name or feedback even after initiation may be useful
and may not affect independence of judiciary but equal
participation by the Law Minister and two outsiders in final
                                                                H
44         SUPREME COURT REPORTS                   [2015] 138.C.R.


A    decision for initiation or appointment can be detrimental to
     the independence ofjudiciary- It cannot be wished away by
     presuming that the Law Minister and the two distributors will
     not be influenced by any extraneous consideration - Such a
     presumption will be contrary to the acknowledged factual
B    experience - It will also be against the concept of separation
     ofjudiciary from the Executive- More over this will be contrary
     to the basic intention of the Constitution makers.
            National Judicial Appointments Commission Act, 2014
C    - ss.2, 3, 5(2), Second proviso to s.5(2), 5(3), 6(1), 6(2), 6(3),
     6(6), 6(8), 8 & 13- Validity of the NJACAct-Held (per Goel,
     J.): In view of the conclusion about the Constitution (Ninety-
     ninth Amendment) Act being beyond the competence of the
     Parliament, it is not necessary to discuss the validity of the
     NJAC Act as the said Act cannot survive once the amendment
0
     is struck down - However, consistent with the view that primacy
     of judiciary in appointment of judges cannot be
     compromised, and on that ground not only s.2 of the
     Amendment dispensing with the mandatory consultation with
E    the judiciary as contemplated under the unamended
     provisions, s.3 conferring power on the NJAC (under Article
      1248) and providing for composition of the Commission
     under Article 124A giving a role to the Law Minister and two
     eminent persons equal to the CJ/ in recommending
F    appointments as CJ/, Judges of Supreme Court, 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 124C giving
     power to the Parliament to regulate the procedure and to lay
G     down the manner of selection was also unconstitutional, the
     impugned Act has to bf) struck down - It goes far beyond the
     procedural aspects- In s.5(2) 'suitability criteria' is left to be
      worked out by regulations - Second proviso to s.5(2) and

H
     SUPREME COURT ADVOCATES-ON-RECORD                         45
              ASSOCIATION v. U.0.1.

s. 6(6) give veto to two members of the Commission which is A
not contemplated by the Amendment - s.5(3) and s.6(8)
provide for conditions for selection to be laid down by
regulations which are not mere procedural matters - s. 6
authorises the recommendations for appointment as judges
of the High Courts without the proposal being first initiated B
by the Chief Justice of the High Court- s.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 C
one High Court may be senior most - s. 6(2) provides for
seeking nomination from Chief Justices of High Courts, but
s.6(3) empowers the Commission itself to make
recommendation for appointment as Judge of the High Court D
and seek comments from Chief Justice after short listing the
candidates by itself- s.8 enables the Central Government
to appoint officers and employees of the Commission and
to lay down their conditions of service - The Secretary of tf1e
Government is the Convenor of the Commission - s. 13 E
requires all regulations to be approved by the Parliament -
These provisions in the Act impinge upon the independence
of judiciary - Even if the doctrine of basic structure is not
applied in judging the validity of a parliamentary statute,
independence ofjudiciary and rule of law are parts ofArticles F
 14, 19 and 21 of the ConsUtuUon and absence of
independence of judiciary affects the said Fundamental ·
Rights - The NJAC Act is thus liable to be struck down -
 Constitution of India -Arts. 124A, 1248 and 124C.
      Judiciary- Higher Judiciary - Constitutional Courts - G
Appointment and transfer of Judges - Procedure -
Amendment in - Effect of Amendment being struck down -
Held (per Goel, J.): The contention that even (f Amendment
is held to be void, the pre-existing system cannot be restored
                                                               H
46       SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A 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 position has not been made clear
  while deciding an issue- On amendment being struck down,
B the pre-existing system stands revived- Constitution (Ninety-
  ninth Amendment) Act, 2014.
        Judiciary- Higher Judiciary- Constitutional Courts -
  Appointment and transfer of Judges - Procedure - Review
C of Working of the Existing System- Held (per Goel, J.): Since
  the system existing prior to amendment will stand revived
  on the amendment being struck down and grievances have
  been expressed about its functioning, such grievances ought
  to be considered - Such grievances ought to be gone into
0 for which the matter needs to be listed for hearing - The
  impugned Constitution Amendment and the NJAC Act are
  struck down as unconstitutional - Pre-existing scheme of
  appointment ofjudges stands revived- The matter be listed
  for consideration of the surviving issue of grievances as to
E working of pre-existing system - Constitution (Ninety-ninth
  Amendment) Act, 2014 - National Judicial Appointments
  Commission Act, 2014.
        Judiciary - Higher judiciary - Constitutional Courts -
   Appointment and transfer of Judges - Scheme of the
F Constitution - History and debates in the Constituent
 · Assembly- Consultation with the Chief Justice of India -
   Interpretation of - Role of the Parliament - Held (per
   Chelameswar, J.) (Minority opinion): The legislative history
   clearly indicates that the members of the Constituent
G Assembly clearly refused to vest an absolute and unfettered
   power to appoint Judges of the constitutional courts in any
   one of the 3 branches of the Constitution - Constituent
   Assembly declined to assign any role to the Parliament - It
H declined to vest an unbridled power in the executive -At the
     SUPREME COURT ADVOCATES-ON-RECORD                         47
              ASSOCIATION v. U.0.1.

same time did not agree with the proposal that the CJl's A
concurrence is required for any appointment - Word
'consultation' instead of 'concurrence' was used, but that was
done merely to indicate that absolute discretion was not given
to any one, not even to the Chief Justice of India as individual,
much less to the executive, which earlier had absolute B
discretion under the Government of India Acts - The 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 Amendment.
      Constitution of India -Amendment to- Effect of- Held C
(per Chelameswar, J.) (Minority opinion): Amendment of one
or some of the Articles constituting a basic feature may or
may not result in the destruction of the basic structure of the
Constitution - It all depends on the context-Amendment of D
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 E
Constitution.
      Judiciary - Higher judiciary - Constitutional Courts -
Appointment and transfer of Judges - Held (per
 Chelameswar, J.) (Minority opinion): Any appointment
process established under the Constitution must necessarily    F
be conducive for establishment of not only an independent
judiciary but also ensure its efficiency- the two qualities
essential for preservation of liberty.
      Judiciary - Higher judiciary - Constitutional Courts - G
Appointment of Judges - Whether primacy to the opinion of
the judiciary in the matter ofjudicial appointments is essential
- Held (per Chelameswar, J.) (Minority opinion): There is
abundance of opinion (in discerning and responsible
quarters of the civil society in the legal fraternity, jurists, H
48        SUPREME COURT REPORTS                [2015] 13 S.C.R.


A 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-
  The basic feature of the Constitution is not primacy of the
  opinion of the CJ/ (Collegium) but lies in non- investiture of
B absolute power in the President (Executive) to choose and
  appoint judges of Constitutional Courts -- 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
C disproved - 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
0
  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.
       Judiciary - Higher judiciary - Constitutional Courts -
E Selection of Judges - Scheme envisaged in terms of six-
  member National Judicial Appointments Commission
  (NJAC) - Whether the presence of the Law Minister in the
  NJAC, which confers 116 of the voting power per se
  undermines the independence of the judiciary - Held (per
F Chelameswar, J.) (Minority opinion): No- The Executive with
  a vast administrative machinery under its control is capable
  of making enormous and valuable contribution to the
  selection process - The objection is justified to some extent
  on the trust deficit in the Executive Branch in the
G constitutional sense, to be a component of the NJA C - The
  same logic applies a fortiari to the Judicial branch,
  notwithstanding the belief that it is the least dangerous branch
  - The Constituent Assembly emphatically declined to repose
  exclusive trust even in the CJ/ - To wholly eliminate the
H
      SUPREME COURT ADVOCATES-ON-RECORD                              49
               ASSOCIATION v. U.0.1.

Executive from the process of selection would be inconsistent A
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
whose models were examined by the Constituent Assembly
- Established principles of constitutional government B
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-Exclusion of the Executive Branch is destructive of C
the basic feature of checks and balances- a fundamental
principle in constitutional theory.
      Constitution of India-Art. 124A(1)(d)- Stipulation in
Article 124A(1 )(d) that the National Judicial Appointments          D
Commission (NJAC) should also consist of two eminent
persons nominated by a Committee consisting of the Prime
Minister, the Chief Justice of India and the Leader of
Opposition - Legality of - Held (per Chelameswar, J.)
(Minority opinion): To believe that members of the judiciary         E
alone could bring valuable inputs to the appointment process
requires great conceit and disrespect for the civil society -
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         F
two eminent persons is conferred upon three high
constitutional functionaries - the Prime Minister, the Leader
of the Opposition and the CJ/ - It is elementary political
knowledge that the Prime Minister and the Leader of
Opposition would always have conflicting political interests         G
and would rarely agree upon any issue - Nonetheless,
possibility of a bipartisan compromise cannot be ruled out -
Though, the presence of CJ/ in the Committee should
normally be a strong deterrent, the possibility of the CJ/ failing
                                                                     H
50        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A 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 the process of
B appointments to 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/n the process
C of nomination - 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
0
  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
E eventually be nominated as eminent members of the NJAC
  - Such procedure would still preserve the choice of eminent
  persons primarily with the Committee contemplated under
  Art. 124-A, while incorporating sufficient safeguard against
  possible abuse of the power by the Committee.
F       Constitution of India - Art. 1248(c) - Article 1248 set
  forth the duties of the National Judicial Appointments
  Commission (NJAC) - Art. 124B(c) obligating NJAC to
  ensure that the person recommended is of ability and
  integrity- Contention that the amendment does not lay down
G any guidelines to be followed by the NJAC for assessing
  ability and integrity - Held (per Chelameswar, J.) (Minority
  opinion): Even in the absence of any express declaration,
  such an obligation is inherent and implied, having regard to
  functional responsibilities entrusted to the NJAC - The
H
      SUPREME COURT ADVOCATES-ON-RECORD                              51
               ASSOCIATION v. U.0.1.

precision is only an abundanti cautela - Having regard to            A
the nature (i) of the document by which such obligation is
created; (ii) fhe 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             B
constitutional function - Its charter is the Constitution itse/f-
Notwithstanding, the prolixity of our Constitution, a constitution
is not expected or required to spell out every minute detail
regarding administration of the State - Three members of
the highest judicial body of this country, a member of the           C
Union Cabinet and two eminent persons chosen by a
Committee consisting of three exalted office holders under
the Constitution constitute the NJAC- To suggest that the
NJAC requires detailed guidelines expressly spelt out in the
                                                                     0
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 - Even prior to the amendment, the
constitutional text had no express guidelines for the President      E
and the CJ/ to follow-After the 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          F
that the 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! ·
      National Judicial Appointments Commission Act, 2014 G
- s.6(6) - Stipulation under s.6(6) of the Act that if any two
members of the NJAC do not agree with the
recommendation proposed by the NJAC, the NJAC shall not
recommend such candidate - Legality of - Held (per
                                                               H
52         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A    Chelameswar, J.) (Minority opinion): The question whether
     the content of s. 6(6) confers a power of veto or prescribes a
     special majority is only of semantic relevance - Whatever
     name one calls it, the result is the same - The two members
     of the NJAC can override the opinion of the other four and
B    stall the recommendation - There is nothing inherently illegal
     about such a prescription.
            Judiciary - Higher judiciary - Constitutional Courts -
     Appointment and transfer of Judges- Collegium system - If
C    appropriate for assessment of the suitability of candidates
     for appointment as Judges of Constitutional Courts - Held
     (per Chelameswar, J.) (Minority opinion): The fiasco created
     in Dinakaran case and Shanti Bhushan case would justify the
     participation of the members of the civil society in the process
0    to eliminate from the selection process the maladies
     involved in the process - 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, number of recommendations made
E    by the collegia of High Courts came to be rejected by the
     col/egium 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
F    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
G    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 enhance the credibility of the institution
     and is not good for the people of this country.
           Constitution (Ninety-ninth Amendment) Act, 2014 -
H
      SUPREME COURT ADVOCATES-ON-RECORD                           53
               ASSOCIATION v. U.0.1.

Validity of - Held (per Chelameswar, J.) (Minority opinion):      A
The amendment is upheld.
      National Judicial Appointments Commission Act, 2014
- Validity of- Held (per Chelameswar, J.) (Minority opinion):
In view of the majority decision holding the Constitution
(Ninety-ninth Amendment) Act to be unconstitutional and           8
void, there is no useful purpose in examining the
constitutionality of the National Judicial Appointments
Commission Act, 2014 - Constitution (Ninety-ninth
Amendment) Act, 2014.
                                                                  c
      Constitution of India - "Basic Features" and "Basic
Structure" - Held (per Chelameswar, J.) (Minority opinion):
The expressions 'basic structure' and 'basic features' convey
two different ideas - The basic structure of the Constitution
is the sum total of the basic features of the Constitution -      o
The basic features are components of basic structure- Either
a particular Article or set of Articles can constitute a basic
feature of the Constitution - Amendment of one or some of
the Articles constituting a basic feature may or may not result
in the destruction of the basic structure of the Constitution.    E
     Practice and Procedure - Supreme Court - Recusal
of Judge at the asking of a litigating party- If proper - New
scheme contemplated for replacing the Collegium system
of appointment and transfer of Judges in Constitutional
Courts - National Judicial Appointments Commission set            F
up under the aegis of Constitution (Ninety-ninth Amendment)
Act, 2014 read with the National Judicial Appointments
Commission Act, 2014 - Constitutional validity of the said
two enactments challenged in writ petitions filed before the      G
Supreme Court of India- Matter originally listed before three-
Judge Bench - Later referred to a five-Judge Bench,
comprising of Ani/ R. Dave, Chelameswar, Madan B. Lokur,
Kurian Joseph and Adarsh Kumar Goel, JJ. - Subsequently,
Hon'ble CJ/ reconstituted the Bench with J.S. Khehar, J.          H
54         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A    Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh
     Kumar Goel, JJ. - Hon'ble Mr. Justice J. S. Khehar, Presiding
     Judge on the reconstituted Bench, at that time was a member
     of the Collegium of five H<?n'ble Judges - When the
     reconstituted Bench commenced hearing, prayer made for
B    recusal of Hon'ble Mr. Justice J. S. Khehar from the Bench -
     Prayer for recusal on ground that the position of Hon'ble Mr.
     Justice J.S. Khehar as the Presiding Judge on the Bench
     was not consistent with (and apparently at conflict with) his
     position as a member of the 'Collegium' which exercises
C    significant constitutional power; and that it was inappropriate
     if a sitting member of a Collegium sat in judgment over a
     scheme that sought to replace it- Held: Not tenable- Held
     (per Khehar, J.): There is no doubt about the fact, that I have
     been a member of the 1+4 collegium, and it is likely that I
0
     would also shortly become a Member of the NJAC, if the
     present challenge raised by the petitioners was not to
     succeed - I would therefore remain a part of the selection
     procedure, irrespective of the process which prevails- That
E    however is the position with reference to four of the instant
     five-Judge Bench - Besides me, my colleagues on the
     Bench- J. Chelameswar, Madan B. Lokur and Kurian Joseph,
     JJ. would in due course be a part of the collegium (if the writ-
     petitioners were to succeed), or alternatively, would be a part
F    of the NJAC (if the writ-petitioners were to fail) - In such
     eventuality, the averment of conflict of interest, ought to have
     been raised not only against me, but also against my three
     colleagues - But, that was not the manner in which the issue
     has been canvassed- The prayer for my recusal is thus not
G    well founded- If I were to accede to the prayer for my recusal,
     I would be initiating a wrong practice, and laying down a wrong
     precedent - A Judge may recuse at his own, from a case
     entrusted to him by the Chief Justice - That would be a matter

H
      SUPREME COURT ADVOCATES-ON-RECORD                             55
               ASSOCIATION v. U.0.1.

of his own choosing- But recusal atthe asking of a litigating       A
party, unless justified, must never to be acceded to - For
that would give the impression, of the Judge had been scared
out of the case, just by the force of the objection -A Judge
before he assumes his office, takes an oath.to discharge his
duties without fear or favour- He would breach his oath of          B
office, if he accepts a prayer for recusal, unless justified - It
is my duty to discharge my responsibility with absolute
earnestness and sincerity- It is my duty to abide by my oath
of office, to uphold the Constitution and the laws - My
decision to continue to be a part of the Bench, flows from the      C
oath which I took, at the time of my elevation to this Court -
Held (per Chelameswar, J.) (for himself and Goel, J.): It is
one of the settled principles of a civilised legal system that a
Judge is required to be impartial - It is said that the hallmark    D
of a democracy is the existence of an impartial Judge - From
earlier decisions, the following principles emerge; (1) If a
Judge has a financial interest in the outcome of a case, he is
automatically disqualified from hearing the case; (2) In cases
where the interest of the Judge in the case is other than           E
financial, then the disqualification is not automatic but an
enquiry is required whether the existence of such an interest
disqualifies the Judge tested in the light of either on the
principle of "real danger" or "reasonable apprehension" of
bias; and (3) The Pinochet case added a new category i.e            F
that the Judge is automatically disqualified from hearing a
case where the Judge is interested in a cause which is being
promoted by one of the parties to the case - It is nobody's
case that, in the case at hand, Justice Khehar had any
pecuniary interest or any other interest falling under the          G
second of the above-mentioned categories - By the very
nature of the case, no such interest can arise at all- Insofar
as the principle of law laid down in Pinochet case is concerned,
all the parties to these proceedings claim to be promoting
                                                                    H
56         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A    the cause of ensuring the existence of an impartial and
     independent judiciary - The only difference of opinion
     between the parties is regarding the process by which such a
     result is to be achieved - Therefore, it cannot be said that
     Justice Khehar shares any interest which any one of the
B    parties to the proceeding is seeking to promote - The
     implication of submission made by the petitioners is that
     Justice Khehar would be pre-determined to hold the
     impugned legislation to be invalid - One fails to understand
     the stand of the petitioners - If such apprehension of the
C    petitioners comes true, the beneficiaries would be the
     petitioners only- The grievance, if any, on this ground should
     be on the part of the respondents - Only a party who has
     suffered or likely to suffer an adverse adjudication because
     of the possibility of bias on the part of the adjudicator can
0
     raise the objection - The significant power as described by
     the petitioners does not inhere only to the members of the
      Collegium, but inheres in every Judge of the Supreme Court
      who might be called upon to express his opinion regarding
E    the proposals of various appointments of the High Court
     Judges, Chief Justices or Judges of Supreme Court- While
     the members of the Collegium are required to exercise such
      "significant power" with respect to each and every
     appointment of the above-mentioned categories, the other
F    Judges of the Supreme Court are required to exercise such
      "significant power'', at least with respect to the appointments
     to or from the High Court with which they were earlier
     associated with either as judges or Chief Justices - The
     argument of the petitioners, if accepted would render all the
G    Judges of this Court disqualified from hearing the present
      controversy-A result not legally permitted by the "doctrine
      of necessity" - For the above-mentioned reasons, the
      submission that Justice Khehar should recuse from the
     proceedings is liable to be rejected - Held (per Kurian, J.):
H
       SUPREME COURT ADVOCATES-ON-RECORD                               57
                ASSOCIATION v. U.0.1.

  There is no situation warranting recusal of Justice Khehar in        A
  this case - However, it is appropriate also to deal with the
  other side of the coin, whether a Judge should state reasons
  for his recusal in a particular case- Being an institution whose
  hallmark is transparency, it is only proper that the Judge
  discharging high and noble duties, at least broadly indicate         B
  the reasons for recusing from the case so that the litigants or
  the well-meaning public may not entertain any
  misunderstanding that the recusa/ was for a/together
  irrelevant reasons like the cases being very old, involving
  detailed consideration, decision on several questions of law,        C
  a situation where the Judge is not happy with the roster, a
  Judge getting unduly sensitive about the public perception
  of his image, Judge wanting not to cause displeasure to
· anybody, Judge always wanting not to decide any sensitive            D
  or contro_versial issues, etc. - Once reasons for recusa/ are
  indicated, there will not be any room for attributing any motive
  for the recusal - This would help to curb the tendency for
  forum shopping - Impartiality of a Judge is the sine qua non
  for the integrity institution- Transparency in procedure is one      E
  of the major factors constituting the integrity of the office of a
  Judge in conducting his duties and the functioning of the court
  - The litigants would always like to know though they may
  not have a prescribed right to know, as to why a Judge has
  recused from hearing the case or despite request, has not            F
  recused to hear his case - Reasons are required to be
  indicated broadly- Of course, in case the disclosure of the
  reasons is likely to affect prejudicially any case or cause or
  interest of someone else, the Judge is free to state that on
  account of personal reasons which the Judge does not want            G
  to disclose, he has decided to recuse himself from hearing
  the case- Held (per Lokur, J.): When an application is made
  for the recusal of a judge ftom hearing a case, the application
  is made to the concerned judge and not to the Bench as a
                                                                       H
58        SUPREME COURT REPORTS                   [2015] 13 S.C.R.

A whole - Therefore, Justice Khehar is absolutely correct in
  stating that the decision is entirely his - As far as the view
  expressed by Justice Kurian Joseph that reasons.should be
  given while deciding an application for recusal, I would prefer
  not to join that decision - In the first place, giving or not giving
B reasons was not an issue herein- That reasons are presently
  being given is a different matter a/together- Secondly, the
  giving of reasons is fraught with some difficulties - The issue
  of recusal from hearing a case is not as simple as it appears
  - The questions thrown up are quite significant and since it
C appears that such applications are gaining frequency, it is
  time that some procedural and substantive rules are framed
  in· this regard - If appropriate rules are framed, then, in a
  given case, it would avoid embarrassment to other judges
  on the Bench - Judiciary- Higher Judiciary- Constitutional
0
  Courts-Appointment and transfer of Judges.
         Judiciary- Higher Judiciary - Constitutional Courts -
  Appointment and transfer of Judges - Primacy of the
  judiciary- Earlier decisions of Supreme Court in First Judges
E case, Second Judges case and Third Judges case - In the
  First Judges case (S.P. Gupta v. Union of India), the function
  of appointment of Judges to the higher judiciary, was
  described as an executive function, and it was held by a
  seven-Judge Bench per majority, that the ultimate power of
F appointment, unquestionably rested with the President- The
  judgment was overruled in the Second Judges case
   (Supreme Court Advocates-on-Record Association v. Union
   of India), wherein it was held by a nine-Judge Bench that
  primacy with reference to the ultimate power of appointment
G (or transfer) vested with the judiciary - Exposition of law
   declared in the Second Judges case, was reaffirmed by a
  nine-Judge Bench in the Third Judges case (In Re: Special
   Reference No. 1 of 1998) - The Union of India, then framed
  a Memorandum of Procedure on 30.6.1999, for the
H
      SUPREME COURT ADVOCATES-ON-RECORD                            59
               ASSOCIATION v. U.0.1.

appointment of Judges and Chief Justices to the High Courts        A
and the Supreme Court, in consonance with the Second
Judges case and Third Judges case - And appointments
 came to be made thereafter, in consonance with the
Memorandum of Procedure - New scheme now
 contemplated under the ambit of the National Judicial             B
Appointments Commission set up under the aegis of the
 Constitution (Ninety-ninth Amendment) Act, 2014 read with
National Judicial Appointments Commission Act, 2014- But
 constitutional validity of these two enactments directly
 challenged in the instant proceedings- Petitioners inter alia     C
relied on the judgment in the Second Judges case, and the
judgment in the Third Judges case whereas Respondents,
inter alia relied on the judgment rendered in the First Judges
 case, and sought reconsideration of the decisions rendered        D
in the Second and Third Judges cases- Prayer for reference
 to a larger Bench, and for reconsideration of the Second and
 Third Judges cases - Held (per order of the Court): Not
 tenable - Held (per Khehar, J.): The power of review was
 exercised and stood expended when the First Judges case           E
 was reviewed by a larger Bench in the Second Judges case
-And for sure, it was 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 re-agitate          F
 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
 Third Judges cases - Further, there is a complete comity of       G
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
                                                                   H
60          SUPREME COURT REPORTS                   [2015] 13 S.C.R.


.A   in black and white - It is not possible to accept, that in the
     procedure contemplated under the Second and Third Judges
     cases, Judges at their own select Judges to the higher
     judiciary, or that, the system of lmperium in lmperio has been
     created for appointment of Judges to the higher judiciary -
B     Viewed closely, the judgments in the Second and Third
      Judges cases, were rendered in a manner as would give
      complete effect to the observations made by Dr. B.R.
     Ambedkar with reference to Article 124 (as originally
      incorporated) - It is cleady erroneous for the respondents to
C     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 Third Judges
      cases - Nothing of the sort- It has been, and is still open to
0
      the President, in his unfettered wisdom, 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
 E    above, further demonstrates the executive role in the
      selection of Judges to the higherjudiciary- Historically also,
      all the three wings of governance, have uniformally
      maintained, that while making appointments of Judges to the
      higherjudiciary, "independence of the judiciary" was accepted
 F    as 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 - In view of the above
 G    historical exposition, there is really no legitimate reason for
      the respondents to seek a review of the judgments in the
       Second and Third Judges cases - Also the framers of the
       Constitution while drafting Article 50 of the Constitution, were
      clear and unanimous in their view, that there need to be a
 H
      SUPREME COURT ADVOCATES-ON-RECORD                             61
               ASSOCIATION v. U.0.1.

judiciary, separated from the influences of the executiv.e -        A
 Supreme Court on a harmonious construction of the
provisions of the Constitution, in the Second and Third
Judges cases, rightfully held, that primacy in the above matter,
 vested with the judiciary, leading to the inference, that the
 term "consultation" in the provisions under reference, should      B
be understood as giving primacy to the view-expressed by
 the judiciary, through the Chief Justice of India - Further, the
 Supreme Court, through a five-Judge Bench, in Sisir Kanta
 Satapathy case, has held, that recommendations made by
 the High Court in the consultative process envisaged under         C
Article 233, is binding on the Governor - In the face of the
 aforestated binding precedent, on a controversy, which is
 startlingly similar to the one in hand, and has never been
 questioned, it is quite ununderstandab/e how the Union of          D
 India, desires to persuade this Court, to now examine the
 term "consultation" differently with reference to Articles 124
 and 217, without assailing the meaning given to the aforesaid
 term, with reference to a matter also governing the judiciary
- Held (per Lokur, J.): At least since 1935, if not earlier, the    E
 appointment ofjudges 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 - But even in those cases where
 there were aberrations pre-1959 (with the Chief Justice of the
 High Court having been by-passed) the concurrence of the           F
 Chief Justice of India was taken - The executive, therefore,
 never had real primacy in the matter of appointment ofjudges
 - The Constitution postulates a consultative and participatory
 process between the constitutional functionaries for
 appointing the 'best' possible person as a judge of a High         G
 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 equippe.d
                                                                    H
62         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A    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
B    regard - Dr. Ambedkar was of the confirmed view that the
     judiciary should be independent and impartial and ifthe Chief
     Justice of India does not have the final say in the matter then
     the judiciary is, in a sense, under some other authority and'
     therefore not independent to that extent- The constitutional
C     convention, the constitutional scheme and the constitutional
     practice recognize the responsibility of the judiciary in the
     appointment ofjudges and this was merely formalized in the
      Second Judges case- The theory of the separation of powers
      or the distribution of powers was maintained by the Second
0
     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
E     between the judiciary and the political executive, keeping the
      independence of the judiciary in mind, including the
      appointment ofjudges- Taking all these factors and the CAD
      into account, all of which were discussed in the Second
      Judges case it is difficult to accept the contention that the
F     Second Judges case requires reconsideration on merits -
      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 Article 124(2) and Article 217(1) of the
G     Constitution - These constitutional authorities having
      accepted the law laid down in the Second Judges case, there
      is no reason to reconsider that decision - There are no
      exceptional circumstances, clear and compelling reasons
      for reconsideration, nor can it be said that the Second Judges
H
      SUPREME COURT ADVOCATES-ON-RECORD                             63
               ASSOCIATION v. U.0.1.

case was plainly erroneous or that it has a baneful effect on       A
the public - On the contrary, the decision restored the
independem;e of the judiciary in real terms and eliminated
the baneful effect of executive controls - Also, it was
categorically laid down in Samsher Singh case that the last
word in matters pertaining to judiciary should be with the Chief    B
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 Second Judges case merely reiterates the
'last word' view in a limited sense- The Second Judges case         C
has been correctly decided and the conventions and the
principles laid down therein flow from our constitutional history
and these.do not need any reconsideration - The only
question now is whether the 991h Constitution Amendment
Act violates the basic structure of the Constitution and to         D
decide this question 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 - Held (Kurian, J.): Once the Supreme Court has           E
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- None
before this Bench could blur the graphic picture on the             F
scheme of appointment of Judges and its solid structural
base in the Constitution portrayed in the Second Judges
Case - Held (per Goel, J.): The settled principle is that court
should not, except when it is demonstrated beyond all
reasonable doubts that its previous ruling given after due          G
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
                                                                    H
64         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A    reversed - While march of law continues and new systems
     can be developed whenever needed, it can be done only if
     earlier systems are considered unworkable - No such
     situation has arisen - On settled principles, no case for
     revisiting earlier decisions by larger Benches is made out -
B    As regards the contention that there was patent error in the
     earlier decisions, the Second Judges' case shows that the
     Constituent Assembly Debates were exhaustively quoted and
     considered - Neither the debates nor the text adopted by
     the Constitution show that the power of appointment of Judges
C    was intended to be conferred on the Executive or the
     Legislature - The practice and convention ever since the
     commencement of the Constitution showed that proposal for
     appointment was always initiated by the Judiciary and the
     last word on the subject belonged to the CJ/ - This scheme
D    was consistent with the intention of the Constitution makers
     - The Judicial <:;ommissions in other countries and
     provisions of Constitutions of other countries conferring power
     on the Executive to appoint Judges may also not call for
E    reconsideration of the Second Judges' case as many of such
     and similar provisions were duly considered in the Second
     Judges' case - No case thus made out for revisiting the
     earlier decisions in Second and Third Judges' cases - Held
     (Chelameswar, J.) (Minority opinion): This nation has
F    witnessed many unpleasant events connected with judicial
     appointments - events which lend credence to the
     speculation that the system established by
     the Second and Third Judges cases in its operational reality
     is perhaps not the best system for securing an independent
G    and efficient judiciary - There are conflicting opinions
     regarding the jurisprudential soundness of the judgment of
     Second Judges case - It is not necessary to examine that
     aspect of the matter for the purpose of determining the present
     controversy.
H
SUPREME COURT ADVOCATES-ON-RECORD                    65
         ASSOCIATION v. U.0.1.

In the judgment of Khehar. J.:                       A
S.P. Gupta v. Union oflndia 1981 (Supp) SCC 87
: 1982 SCR 365; Supreme CourtAdvocates-on-
Record Association v. Union of India (1993) 4
sec 441 : 1993 (2) Suppl. scR 659; Re:
Special Reference No.1 of 1998 (1998) 7 SCC          B
739 : 1998 (2) Suppl. SCR 400; Subhash
Sharma v. Union oflndia1991 Supp (1) SCC 574:
1990 (2) Suppl. SCR 433; Supreme Court in
Union of India v. Sankalchand Himatlal Sheth
(1977) 4 sec 193: 1978 (1) SCR 423; T.M.A.           c
Pai Foundation v. State of Karnataka (2002) 8
SCC 481 : 2002 (3) Suppl. SCR 587; Re: Special
Reference No. 1 of 2002 (2002) 8 SCC 237 : 2002
(3) Suppl. SCR 366; S.R. Chaudhuri v. State of
Punjab (2001) 7 SCC 126 : 2001 (1) Suppl.
                                                     D
  SCR 621; Indra Sawhney v. Union of India 1992
Supp (3) sec 211: 1992 (2) Suppl. SCR 454;
Kesavananda Bharati v. State of Kera/a (1973) 4
SCC 225 : 1973 (0) Suppl. SCR 1; Samsher
Singh v. State of Punjab (197 4) 2 SCC 831 : 1975
(1) SCR 814; Manoj Narula v. Union of India          E
(2014) 9 SCC 1; Bhim Singh v. Union of India
(2010) 5 SCC 538: 2010 (6) SCR 218; State of
 U.P. v. Jeet s. Bisht (2007) 6 sec 586 : 2001 (7)
  SCR 705; Suraz India Trust v. Union of India
(2012) 13 sec 497: 2011 (4) SCR 224; Jindal          F
Stainless Limited v. State of Haryana (2010) 4
SCC 595: 2010 (4) SCR 743; Re: Cauvery Water
 Disputes Tribunal 1993 Supp (1) SCC 96: 1991
 (2) Suppl. SCR 497; Kera/a State Science and
 Technology Museum v. Rambal Co. (2006) 6            G
 SCC 258 : 2006 (4) Suppl. SCR 243; Bengal
 Immunity Co. Ltd. v. State of Bihar (1955) 6 SCR
 603; Magan/al Chhaganlal (P) Ltd. v. Municipal
 Corpn. of Greater Bombay (1974) 2 SCC 402:
                                                     H
66   SUPREME COURT REPORTS               [2015] 13 S.C.R.


A     1975 (1) SCR 1; Union of India v. Raghubir Singh
     (1989) 2 SCC 754: 1989 (3) SCR 316; Pradeep
     Kumar Biswas v. Indian Institute of Chemical
     Biology (2002) 5 sec 111 : 2002 (3) SCR 100;
     Mineral Area Development Authority v. Steel
B    Authority of India (2011) 4 SCC 450 : 2011 (4)
     SCR 19; State of West Bengal v. Kesoram
     Industries Ltd. (2004) 10 SCC 201 : 2004 (1)
     SCR 564; India Cement Ltd. v. State of Tamil
     Nadu (1990) 1 SCC 12 : 1989 (1) Suppl. SCR
     692; ·Sub-Committee of Judicial Accountability
c    v. Union of India (1992) 4 SCC 97; State of
     Bombay v. United Motors (India) Ltd. (1953) SCR
     1069; Keshav Mills Co. Ltd. v. Commissioner of
     Income-tax, Bombay North (1965) 2 SCR 908;
     Lt. Col. Khajoor Singh v. Union oflndia (1961) 2
D    SCR 828; Ganga Sugar Corporation Ltd. v. State
     of Uttar Pradesh (1980) 1 SCC 223 : 1980 (1)
     SCR 769; Gannon Dunkerley and Co. v. State of.
     Rajasthan (1993) 1 SCC 364 : 1992 (3) Suppl.
     SCR 103; Registrar(Admn.), High Court of Prissa,
E    Cuttack v. Sisir Kanta Satapathy (1999) 7 SCC
     725 : 1999 (2) Suppl. SCR 473; Minerva Mills
     Ltd. v. Union of/ndia (1980) 3 SCC 625: 1981 (1)
      SCR 206; Kihoto Hollohan v. Zachil/hu 1992
     Supp (2) SCC 651 : 1992 (1) SCR 686; Madras
F    Bar Association v. Union of/ndia (2014) 10 SCC
     1: M. Nagaraj v. Union of India (2006) 8 SCC 212:
     2006 (7) Suppl. SCR 336; Sardari Lal v. Union
     of India AIR 1971 SC 1547 : 1971 (3) SCR 461;
     Union of India v. R. Gandhi (2010) 11 SCC 1 :
G    2010 (6) SCR 857; Shreya Singhal v. Union of
     India (2015) 4 SCALE 1; State of Madras v. V. G.
     Row (1952) SCR 597; I. C. Golak Nath v. State of
     Punjab AIR (1967) SC 1643 : 1967 SCR 762;
      Scindia Bahadur v. Union of India (1971) 1 SCC
     85 : 1971 (3) SCR 9; Centre for Public Interest
H
SUPREME COURT ADVOCATES-ON-RECORD                    67
         ASSOCIATION v. U.0.1.
                     ~




Litigation v. Union of India (2012) 3 SCC 1 : 2012   A
(3) SCR 147; Manohar Lal Sharma v. Principal
Secretary{2014) 2 SCC 532; Shashikant Laxman
Kale v. Union of/ndia (1990) 4 SCC 366 : 1990
(3) SCR 441; Re: the Special Courts Bill, 1978
(1979) 1 SCC 380; Subramanian Swamy v.               B
Director, Central Bureau of Investigation (2014) 8
SCC 682: 2014 (6) SCR 873; Dr. Kashinath G
Jalmi v. The Speaker AIR 1993 SC 1873; A.K.
Roy v. Union of India (1982) 1 SCC 271: 1982
(2) SCR 272; Charanjit Lal Chowdhury v. Union
oflndia Ram AIR (1951) SC 41 : 1950 SCR 869;
                                                     c
Krishna Dalmia v. Justice S.R. Tendolkar AIR
(1958) SC 538: 1959 SCR 279; B. Banerjee v.
Anita Pan (1975) 1SCC166: 1975 (2) SCR 774;
Government of Andhra Pradesh v. P. Laxmi Devi
                                                     D
(2008) 4 sec 120 : 2008 (3) SCR 330; Mohd.
HanifQuareshiv. State of BiharAIR 1958 SC 731:
1959 SCR 629; State of West Bengal v. Anwar Ali
Sarkar1952 SCR 284; Indira Nehru Gandhi v. Raj
Narain (1975) Supp SCC 1 : 1976 SCR 347;
Waman Rao v. Union of India (1981) 2 SCC 362         E
: 1981 (2) SCR 1; Asif Hameed v. State of Jammu
and Kashmir1989 Supp (2) SCC 364: 1989 (3)
SCR 19 ; State of Bihar v. Bihar DisW/ery Limited
(1997) 2 sec 453 : 1996 (9) suppl. scR 479;
Bangalore Woollen, Cotton and Silk Mills Co. Ltd.    F
v. Corporation of the City of Bangalore (1961) 3
SCR 707; Khadim Hussain v. State of U.P. (1976)
1 SCC 843 : 1976 (3) SCR 1; B.K. Srinivasan v.
State of Karnataka (1987) 1 SCC 658: 1987 (1)
SCR 1054; People's Union for Civil Liberties v.      G
 Union of India (2005) 5 SCC 363; In re: Hindu
 Women's Rights to Property Act, 1937 AIR 1941
FC 72; Pandit M.S.M. Sharma v. Dr. Shree
Krishna Sinha 1961 (1) SCR 96; R. C. Poudyal v.
 Union of India 1994 Supp (1) SCC 324 : 1993
                                                     H
68   SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A    (1) SCR 891; Property Owners' Association v.
     State of Maharashtra (1996) 4 SCC 49 : 1996 (2)
     Suppl. SCR 230; Property Owners'Association v.
     State of Maharashtra (2001) 4 SCC 455; Property
     Owners'Association v. State of Maharashtra (2013)
8    7 SCC 522; State of Maharashtra v. Central
     Provinces Manganese Ore Co. Ltd. (1977) 1 SCC
     643: 1977 (1) SCR 1002; India Tobacco Co. Ltd.
     v. Commercial Tax Officer, Bhavanipore (1975) 3
     SCC 512 : 1975 (2) SCR 612; Ko/hapur
     Canesugar Works Ltd. v. Union of India (2000) 2
c    sec 536 : 2000 (1) SCR 518; State of U.P. v.
     Hirendra Pal Singh (2011) 5 SCC 305: 2010 (15)
     SCR 854; Joint Action Committee of Air Line
     Pilots' Association of India v. Director Gen.era/ of
     Civil Aviation (2011) 5 SCC 435 : 2011 (5)
·o   SCR 1019; State of Tamil Nadu v. K. Shyam
     Sunder(2011) 8 SCC 737: 2011 (11) SCR 1094;
     Municipal Committee, Amritsar v. State of Punjab
     (1969) 1 sec 475 : 1969 (3) SCR 447; K.A
     Abbas v. Union of India (1970) 2 SCC 780 : 1971
 E   (2) SCR 446; T.N. Seshan v. Union oflndia (1995)
     4 sec 611 : 1995 (2) Suppl. scR 106; t.R.
     Coelho v. State of Tamil Nadu (2007) 2 SCC 1:
     2007 (1) SCR 706; Lily Thomas v. Union of India;
     (2013) 1 sec 653: 2013 (10) SCR 1130; Chief
 F   Election Commissioner v. Jan Chaukidar (2013)
     7 SCC 507; State of Karnataka v. Union of India
     (1977) 4 SCC 608 : 1978 (2) SCR 1; Ku/dip Nayar
     v. Union of India (2006) 7 SCC 1 : 2006 (5)
      Suppl. SCR 1; Ashoka Kumar Thakur v. Union
 G   of India (2008) 6 SCC 1 : 2008 (4) SCR 1; Public
     Services Tribunal Bar Association v. State of U.P.
     (2003) 4 sec 104 : 2003 (1) SCR 666; Uttar
     Pradesh Power Corporation Limited v. Rajesh
     Kumar(2012) 7SCC1: 2012 (4) SCR 118; State
 H   of Bihar v. Bal Mukund Sah (2000) 4 SCC 640:
SUPREME COURT ADVOCAJES-ON-RECORD                   69
      . ASSOCIATION v.. U.0.1.

2000 (2) SCR 299; Nawal Kishore Mishra v. High      A
Court of Judicature of Allahabad (2015) 5 SCC
479 : 2015 (3) SCR 107; West U.P. Sugar Mills
Association v. State of U.P. (2002) 2 SCC 645:
2002 (1) SCR 897; Gammon India Ltd. v. Special ,·
Chief Secretary (2006) 3 SCC 354: 2006 (2)          B
 SCR 304 - referred to.
Ameer-un-Nissa Begum v. Mahboob Begum AIR
1955 SC 352; Firm A. T.B. Mehtab Majid & Co. v.
State of Madras AIR 1963 SC 928 : 1963 Suppl.
SCR 435; B.N. Tewari v. Union of India AIR 1965     c
SC 1430 : 1965 SCR 421; Koteswar Vittal
Karnath v. K. Rangappa Baliga & Co. (1969) 1
SCC 255: 1969 (3) SCR 40; Mulchand Odhavji
v. Rajkot Borough Municipality (1971) 3 SCC 53;
Mohd. Shaukat Hussain Khan v. State of Andhra
                                                    D
Pradesh (1974) 2 SCC 376: 1975 (1) SCR 429;
Indian Express Newspapers (Bombay) Pvt. Ltd.
v. Union of India (1985) 1 SCC 641 : 1985 (2)
 SCR 287; Bhagat Ram Sharma v. Union of India
1988 (Supp) sec 30 : 1988 SCR 1034; and
State of Rajasthan v. Mangilal Pindwal (1996) 5     E
sec 60 : 1996 (3) Suppl. SCR 98 - held
inapplicable.
Speech by Sardar Vallabhbhai Patel on
15.7.1947; "Constitutional Law of India", 4 1h
edition, by H.M. Seervai; Fourteenth Report of      F
the Law Commission on Judicial Reform
(1958); The Beijing Statement of Principles of
the "Independence of the Judiciary"; Speech
of Dr. B.R. Ambedkar (in the Constituent Assembly
on 24.5.1949); "Roses in December - An              G
Autobiography" by M.C. Chagla; "Neither Roses
Nor Thorns" by H.R. Khanna; "Constitutional
Law of India -A Critical Commentary' by H.M.
Seervai; Articles titled "Making the Angels
                                                    H
70   SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A    Weep", and "Where Angels Fear to Tread" by
     Lord Cooke of Thorndon; "Story of a Chief
     Justice", by U.L. Bhat; 5th V.M. Tarkunde
     Memorial Lecture by Ruma Pal, J., on the topic
     "An Independent Judiciary"; "The Other Side of
B    Justice" by S.S. Sodhi; "Before Memory Fades"
     by Fali S. Nariman; Article bearing the title
     "Structure Matters: The Impact of Court
     Structure on the Indian and U.S. Supreme
     Courts", by Nick Robinson; Article - "The Bases
     of Power and the Power/Interaction Model of
c    Interpersonal Influence" by Bertram Raven,
     Analyses of Social Issues and Public Policy, Vol.
     8, No.1, 2008, pp. 1-22; Article - "Effects of a
     Favour and Liking on Compliance" by Dennis
     T. Regan, Cornell University; "Influence: The
D    Psychology of Persuasion" - Robert Cialdini,
     Regent's Professor Emeritus of Psychology and
     Marketing, Arizona State University; Article titled
     "Loyalty, Gratitude, and the Federal Judiciary",
     by Laura E. Little, Associate Professor of Law,
E    Temple University School of Law; Paper on
     "Guarding the Guardians: Judicial Councils
     and Judicial Independence" by Nuno Garoupa
     and Tom Ginsburg, Law School, University of
     Chicago, November 2008; and Southerland's
F    Statutory Construction, 3rd Edition, Volume I -
      referred to.
     In the order of Chelameswar. J.:
      Supreme Court Advocates-on-Record Association
      & Ors. v. Union of India, (1993) 4 SCC 441; and
G    P.O. Dinakaran(1) v. Judges Inquiry Committee,
      (2011) 8 sec 380 - referred to.
      Dimes v. Proprietors of Grand Junction Canal,
      (1852) 10 ER 301; Regina v. Gough (1993) AC
     646; Regina v. Bow Street Metropolitan
H     Stipendiary Magistrate, Ex parte Pinochet Ugarte,
SUPREME COURT ADVOCATES-ON-RECORD                      71
         ASSOCIATION v. U.0.1:

(1999) 1 All E.R. 577; Wakefield Local Board of        A
Health v. WestRiding and Grimsby Rly Co. (1865)
1 Q.B. 84; R V. Byles exp. Hollidge (1912) 77
J.P. 40; R. v. Nailsworth Licensing Justices exp.
Bird [1953) 1 W.L.R. 1046; R v. Lilydale
Magistrates Court exp. Ciccone [1973) V.R. 122;        B
R. v. Antrim Justices [1895) 21.R. 603; To/putt (H.)
& Co. Ltd. v. Mole [1911) 1K.B.836; and Corrigan
v. Irish Land Commission [1977] l.R. 317 -
referred to.
R. Grant Hammond, Judicial Recusal: Principles,        c
Process and Problems, (Hart Publishing, 2009)
- referred to.

In the judgment of Chelameswar. J.:
His     Holiness     Kesavananda        Bharati        D
Sripadagalvaru v. State of Kera/a & Another
(1973) 4 sec 225 : 1973 (0) Suppl. SCR 1; S.P.
Gupta v. Union of India & Ors. AIR 1982 SC 149:
1982 SCR 365; L. C. Chandra Kumar and Ors. v.
Union of India and Ors. (1997) 3 SCC 261 : 1997        E
(2) SCR 1186; Supreme Court Advocates-on-
Record Association & Others v. Union of India
(1993) 4. sec 441 : 1993 (2) Suppl. SCR
659; Union of India H. Sankalchand Himatlal
Sheth &Anr. (1977) 4sec193: 1978 (1) SCR               F
423; Chandramouleshwar Prasad v. Patna High
Court and Ors. (1969) 3 SCC 56 : 1970 (2)
 SCR 666; Samsher Singh v. State of Punjab Al R
1974 SC 2192 : 1975 (1) SCR 814; Subhash
Sharma v. Union oflndia (1991) Supp.1SCC574
                                                       G
: 1990 (2) Suppl. SCR 433 ; Special Reference
No.1 of 1998 (1998) 7 SCC 739 : 1998 (2) Suppl.
 SCR 400; Shanti Bhushan & Another v. Union
of India & Another (2009) 1 SCC 657 : 2008 (17)
SCR 791; PD. Dinakaran (1) v. Judges Inquiry
                                                       H
72   SUPREME COURT REPORTS                [2015] 13S.C.R.


A    Committee (2011) 8 SCC 380 : 2011 (10)
      SCR 1064; P.O. Dinakaran (2) v. Judges Inquiry
     Committee & Another (2011) 8 SCC 474; L
     Chandra Kumar v. Union of India & Ors. (1997) 3
     SCC 261 : 1997 (2) SCR 1186; l.C. Golak Nath
B    and Ors. v. State of Punjab and Anr. (1967) 2 SCR
     762; Minerva Mills Ltd. & Ors. v. Union of India &
     Ors. (1980) 3 SCC 625; Waman Rao & Ors. etc.
     etc. v. Union of India & Ors. (1981) 2 SCC 362;
     Indira Nehru Gandhi v. Raj Narain (1975) Supp
c    sec 1; S.R. Bommai v. Union of India (1994) 3
     sec 1; M. Nagaraj & Others v. Union of India &
     Others (2006) 8 SCC 212; l.R. Coelho (Dead) By
     LRs v. State of T.N. (2007) 2 SCC 1; A.K. Gopalan
     v. State of Madras AIR 1950 SC 27; ADM Jabalpur
     v. S.S. Shukla Etc.Etc. AIR 1976 SC 1207;
D    Naresh Shridhar Mirajkar & Ors. v. State of
     Maharashtra & Anr. AIR 1967 SC 1; Barium
     Chemicals Ltd. v. Company Law Board AIR 1967
     SC 295 - referred to.
     Marbury v. Madison 5 U.S 137 (1803); Valente v.
E    Queen {Supreme Court of Canada] (1985) 2 SCR
     673; Regina v. Bow Street Metropolitan
     Stipendiary Magistrate, Ex parte Pinochet Ugarte
     (1999) 1 Al.I E.R. 577 - referred to.
     Sir William Blackstone's, Commentaries on the
F    Laws of England, (1765) Vol. I p. 269; Fali S.
     Nariman, Before Memory Fades: An
     Autobiography, [First Edition Hay House (2010 ),
     p.348 ]; Constituent Assembly Debates, 24th .
     May 1949 (Vol. Vlll);Abhinav Chandrachud, The
G    Informal Constitution : Unwritten Criteria in
     Selecting Judges for the Supreme Court of
     India, (Oxford University Press, United Kingdom
     2014) See Pages 113 to 120; Iyer, V.R. Krishna,
     Judiciary: A reform agenda-II, The Hindu (on line
H    edition) 15.08.2002; "An Independent Judiciary"
 SUPREME COURT ADVOCATES-ON-RECORD                    .   73
          ASSOCIATION v. U.0.1.

- speech delivered by Ms. Justice Ruma Pal                A
atthe 5th V.M. Tarkunde Memorial Lecture on 101h
November 2011; Mehta, Pratap Bhanu, 'Whom do
you trust', The Indian Express, May 14, 2015;
The National Commission to Review the
Working of the Constitution (NCRWC), 2002                 B
chaired by Justice M.N. Venkatachaliah; Fali S.
Nariman, Before Memory Fades - An
Autobiography, p. 389; Laurence H. Tribe, God
Save this Honorable Court, First Edition, p.10-
11; Laurence H. Tribe (American Constitutional
Law) Second Edition - referred to.
                                                          c

 In the order and judgment of Lokur. J.:
 Court on its own motion v. State & Others MANU/
 DE/9073/2007; Supreme Court Advocates on                 D
 Record Association v. Union of India (1993) 4 SCC
 441 : 1993 (2) Suppl. SCR 659; S.P. Gupta v.
 Union of India 1981 (Supp) SCC 87 : 1982
 SCR 365; Subhash Sharma v. Union of India.
 1991 Supp (1) sec 574: 1990 (2) Suppl. SCR .             E
 433; Special Reference No. 1 of 1998 (1998) 7
 SCC 739: 1998 (2) Suppl. SCR 400; Union of
·India v. Sanka/chand Himmatlal Sheth (1977) 4
 SCC 1993; R. Pushpam v. State of Madras AIR
 1953 Mad 392; Sardari Lal v. Union of India (1971)
                                                          F
 1 SCC 411: Jyoti Prakash Mitter v. Chief Justice,
 Calcutta [1965] 2 SCR 53; Union of India v. Jyoti
 ProkashMitter(1971)1 SCC396: 1971 (3) SCR
 483; RamJawaya Kapurv. State of Punjab [1955)
 2 SCR 225; Kesavananda Bharati v. State of
 Kera/a (1973) 4 SCC 225: 1973 (0) Suppl. SCR             G
 1; Indira Nehru Gandhi v. Raj Narain 1975 Supp
 SCC 1 : 1976 SCR 347; Minerva Mills Ltd. v.
  Union of India (1980) 3 SCC 625 : 1981 (1)
  SCR 206; l.R. Coelho v. State of Tamil Nadu
 (2007) 2sec1 : 2001 (1) SCR 706; Bhim Singh              H
74     SUPREME COURT REPORTS                 [2015] 13S.C.R.


A       v. Union of India (2010) 5 SCC 538 : 2010 (6)
      · SCR 218; State of Tamil Nadu v. State of Kera/a
        (2014) 12 SCC 696; Mul/aperiyar Environmental
        Protection Forum v. Union of India (2006) 3 SCC
        643: 2006 (2) SCR 740; Administrator-Genera/
B       of Bengal v. Prem Lal Mullick (1894-95) 22 I.A.
        107; A.K. Gopalan v. State of Madras 1950 SCR
        88; State of Travancore-Cochin v. The Bombay
        Co. Ltd. 1952 SCR 1112; Golak Nath v. State of
        Punjab (1967) 2 SCR 762; Union of India v. H.S.
        Dhillon (1972) 2 SCR 331; Indra Sawhney v.
c       Union of India 1992 Supp (3) SCC 217: 1992 (2)
        Suppl. SCR 454; S.R. Chaudhuri v. State of
        Punjab (2001) 7 SCC .126 : 2001 (1) Suppl.
        SCR 621; Manoj Narula v. Union of India (2014)
        9 sec 1 : 2014 (9) SCR 965; T.M.A. Pai
D       Foundation v. State of Karnataka (2002) 8 SCC
        481: 2002 (3) Suppl. SCR 587; Bengal
        Immunity Co. Ltd. v. StateofBihar& Ors. AIR 1955
        SC 661 : 1955 SCR 603; State of Bombay v.
        The United Motors (India) Ltd. (1953) 4 SCR
E    . 1069; Lt. Col. Khajoor Singh v. Union of India AIR
        1961 SC 532 : 1961 SCR 828; Keshav Mills v.
        CIT AIR 1965 SC 1636 : 1965 SCR 908; New
        Jehangir Vakil Mills Ltd. v. CIT (1960) 1 SCR 249;
        Magan/al Chhaganlal v. Municipal Corporation of
F       Greater Bombay (1974) 2 SCC 402 : 1975 (1)
        SCR 1; Northern India Caterers v. State of Punjab.
        AIR 1967 SC 1581 : 1967 SCR 399; Pet/ad
        Turkey Red Dye Works Co. Ltd., Pet/ad v. CIT
        (1963) Supp 1 SCR 871; Ganga Sugar
G       Corporation v. State of Uttar Pradesh (1980) 1
        SCC 223 : 1980 (1) SCR 769; Union of India v.
        Raghubir Singh (1989) 2 SCC 754 : 1989 (3)
        SCR 316; Gannon Dunkerley & Co. v. State of
        Rajasthan (1993) 1 SCC 364 : 1992 (3) Suppl.
H        SCR 103; Builders' Association of India v. Union
 SUPREME COURT ADVOCATES-ON-RECORD                      75
          ASSOCIATION v. U.0.1.

  of India. (1989) 2 sec 645: 1989 (2) SCR 320;         A
  Khajoor Singh, Keshav Mills Pradeep Kumar
  Biswas v. Indian Institute of Chemical Biology
  (2002) 5 sec 111 : 2002 (3) SCR 100; Sabhajit
  Tewary v. Union of India (1975) 1 SCC 485; K. .
  Kamalajammanniavaru v. Special Land                   B
  Acquisition Officer (1985) 1 SCC 582 : 1985 (2)
  SCR 914; Bhag Singh v. Union Territory of
  Chandigarh (1985) 3 SCC 737: 1985 (2) Suppl.
  SCR 949; R.C. Poudyal v. Union of India 1994
  Supp (1) sec 324 : 1993 (1) SCR 891; Sub-
  ·committee on Judicial Accountability v. Union of
                                                        c
  India (1991) 4 SCC 699; Kartar Singh v. State of
  Punjab (1994) 3 SCC 569: 1994 (2) SCR 375;
  Krishna Swami v. Union of India (1992) 4-SCC
  605 : 1992 (1) Suppl. SCR 53; Union of India v.
  Madras Bar Association (2010) 11SCC1: 2010
                                                        D
  (6) SCR 857; State of Rajasthan v. Union of India
  (1977) 3 sec 592 : 1978 (1) SCR 1; State of
  Karnataka v. Union of India (1977) 4 SCC 608:
   1978 (2) SCR 1; Ku/dip Nayar v. Union of India
   (1996) 1 sec 1 : 1995 (6) Suppl. SCR 11;             E
  Ashoka Kumar Thakur v. Union of India (2008) 6
   SCC 1 : 2008 (4) SCR 1; Madras Bar Association
. v. Union of India (2014) 10 SCC 1; Minerva Miffs
   v. Union of India (1980) 3 SCC 625 : 1981 (1)
   SCR 2()6; Minerva Mills in Sanjeev Coke              F
   Manufacturing Co. v. Bharat Coking Coal Ltd.
   (1983) 1 sec 147 : 1983 (1) SCR 1000; M.
   Nagaraj v. Union of India (2006) 8 SCC 212 : 2006
   (7) Suppl. SCR 336; Bhim Singhji v. Union of
   India (1981) 1SCC166; Charanjit Lal Chowdhuri        G
   v. Union of India [1950] SCR 869; Ram Krishna
   Dalmia v. Justice S.R. Tendolkar [1959] SCR
. 279; R.K. Garg v. Union of India (1981) 4 SCC
   675: 1982 (1) SCR 947; Shri Prithvi Cotton Mills
   Ltd. v. Broach Borough tytunicipality (1969) 2 SCC
                                                        H
76   SUPREME COURT REPORTS               [2015] 13 S.C.R.


A    283 : 1970 (1) SCR 388; K. Sankaran Nair v.
     Devaki Amma Malathy Amma (1996) 11 SCC 428
     : 1996 (6) Suppl. SCR 839; Bhubaneshwar Singh
     v. Union of India (1994) 6 SCC 77 : 1994 (1)
     Suppl. SCR 639; Re Cauvery Water Disputes
B    Tribunal (1993) Supp (1) SCC 96 : 1991 (2)
     Suppl. SCR 497; Indian Aluminium Co. v. State
     of Kera/a (1996) 7 SCC 637 : 1996 (2) SCR
     23; AK. Gopalan v. The State of Madras [1950] 1
     SCR 88; Ja/an Trading Company (P) Ltd v. Mill
     Mazdoor Sabha Union [1967] 1 SCR 15;
c    Karnataka Bank Ltd. v. State of Andhra Pradesh
     (2008) 2 sec 254 : 2008 (1) SCR 986; Mohd.
     Hanif Quareshi v. State of Bihar [1959] SCR 629;
     State of West Bengal v. Anwar Ali Sarkar {1952]
     SCR 284; State ofAP. v. McDowell & Co. (1996)
D    3 SCC 709: 1996 (3) SCR 721; Public Services
     Tribunal Bar Assn v. State of U.P. (2003) 4 SCC
     104: 2003 (1) SCR 666; Chhotabhai Jethabhai
     Patel v. Union of India. 1962 Supp (2) SCR 1.;
     Kihoto Ho/Johan v. Zachillhu 1992 Supp (2) SCC
E    651 : 1992 (1) SCR 686; D.K. Trivedi & Sons v.
     State of Gujarat 1986 Supp SCC 20 : 1986 SCR
     479; Mafatlal Industries Ltd. v. Union of India
     (1997) 5 sec 536 : 1996 (1 O) Suppl. SCR 585;
     Babula/ Parate v. State of Bombay [1960] (1) SCR
F    605; Raja Ram Pal v. Lok Sabha (2007.) 3 SCC
     184: 2007 (1) SCR 317; AK. Roy v. Union of
     India (1982) 1 sec 211: 1982 (2) SCR 272;
     Centre for PIL v. Union of India (2011) 4 SCC 1:
     2011 (4) SCR 445; Registrar General, High Court
G    of Madras v. R. Gandhi (2014) 11SCC547: 2014
     (4) SCR 77; Indira Nehru Gandhi and Minerva
     Mills. (2007) 2 SCC 1; Kumar Padma Prasad v.
     Union of India (1992) 2 SCC 428; Renu v. District
     Judge (2014) 14 SCC 50; Indian Express
H    Newspapers v. Union of India (1985) 1 SCC 641;
 SUPREME COURT ADVOCATES-ON-RECORD                     77
          ASSOCIATION v. U.0.1.

 State of U.P. v. Raj Narain (1975) 4 SCC 428:         A
 1975 (3) SCR 333; Reliance Petrochemicals Ltd.
 v. Proprietors of Indian Express Newspapers
 Bombay (P) Ltd. (1988) 4     sec      592: 1988 (3)
 Suppl. SCR 212; West U.P. Sugar Mills Assn. v.
 State of U.P. (2002) 2 SCC 645: 2002 (1) SCR          B
 897; B.N. Tewari v. Union of India AIR 1965 SC
 1430: 1965 SCR 421; Firm A. T.B. Mehtab Majid
 & Co. v. State of Madras AIR 1963 SC 928 : 1963
 Suppl. SCR 435; Indian Express Newspapers
 (Born) (P) Ltd. v. Union of India (1985) 1 SCC 641:
 1985 (2) SCR 287; State of TN. v. K. Shyam
                                                       c
 Sunder(2011) 8 SCC 737: 2011 (11) SCR 1094
 - referred to.
  United Mine Workers of America 325 US 897
  (1945); Hanrahan v. Hampton 446 US 1301
                                                       D
  (1980); Al-Jehad Trust v. Federation of Pakistan
  PLO 1996 SC 324; Black Clawson International
  Ltd. v. Papierwerke Waldhof-Aschaffenburg
  Aktiengesel/schaft [1975] AC 591; The State v.
  T Makwanyane 1995 (3) SA 391 (CC); Attorney-
  General for N. S. W. v. The Perpetual Trustee Co.    E
  Ltd. 85 CLR 237; The Queen v. Beauregard.
  [1986] 2 SCR 56; Marbury v. Madison: 5 U.S. (1
  Cranch) 137; Re: Powers, Privileges and
  Immunities of State Legislatures [1965] 1 SCR
  413; The Pocket Veto case 279 U.S. 655, 689          F
  (1929); Compare Missouri Pac. Ry. Co. v. Kansas
  248 U.S. 276; Myers v. United States 272 U.S.
  52; State v. South Norwalk 77 Conn. 257;
  Youngstown Sheet & Tube Co. v. Sawyer343 U.S.
  579, 635 (1952); Anderson v. Gorrie [1895] 1 Q.B.    G
  668; McC (A Minor), Re [1985] A.C. 528; Lochner
  v. New York 198 US 45; Ferguson v. Skrupa 372
  US 726; Middleton v. Texas Power and Light Co.
  249 US 152, 157; Abrams v. United States 250
· US 616 (1919); The Queen v. Beauregard [1986]        H
78     SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A      2 SCR 56; Attorney General v. Times Newspapers
       Ltd. 1973 3 All ER 54 - referred to.
       Sapru Committee Report, 1945, Chapter V,
       Paragraphs 259, 261 and 268, https://
       archive.org/stream/
B      saprucommittee035520mbp/saprucommittee
       035520 mbp djvu.txt; B. Shiva Rao: 'The
       Framing of India's Constitution' Select
       Documents, Volume II & Volume IV; Indian
       Constitution - Cornerstone of a Nation by
c      Granville Austin at page 126, footnote 39; .bttl2if
       pa rliamentofi ndia. nic. in/ls/debates.htm;
       Lecture on Judicial Independence, Lord
       Phillips; 141h, 801h and 121•1 Report of the Law
       Commission             of     India;      .!:ill.J2.;J/
       www.tnsja.tn.nic.in/article/Judicial%20
D
       Independence %20JSVJ.pdf; Granville Austin:
       Working a Democratic Constitution page131;
     · http:UdoLqov.in/sites/ default/files I
       memohc.pdf; http://doj.qov.in/sites/default/
       files/memosc.pdf; Article titled "Merit" in the
E.     Appointment of Judges' by By Professor M.P.
       Singh, (1999) 8 SCC (Jour) 1; Supreme But Not
       Infallible, Essays in Honour of the Supreme Court
       of India page 48, 53; A Grammar of Politics
       (Works of Harold J. Laski), 297; Willoughby on
F      the Constitution of the United States, page 64;
       "Learning and Science", speech at Harvard Law
       School Association (June 25, 1895); Speeches by
       Oliver Wendell Holmes (1896). p. 67-68; Judicial
       Independence and the Rule of Law by Jonathan
G      K. Van Patten, Volume2 Benchmark page 117, 129
       (1986) ; Lee Epstein, Jack Knight & Olga
       Shvetsova, Comparing Judicial Selection
       S'ystems, 10 WM & MARY BILL RTS J. 7, n.9
       (2001 ); Judicial Independence, Transitional
H      Justice and the Rule of Law by David
 SUPREME COURT ADVOCATES-ON-RECORD                     79
          ASSOCIATION v. U.0.1.

  Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at         A
  345-346; The Frontline, Volume 25 Issue 20 ·
  September 27, 2008 to October 10, 2008; btta;1I
  www.judiciary.senate.gov/imo/media/doc/
  kennedy testimony 02 14 07.pdf; Report
  entitled 'Judicial Independence: Law and             B
  Practice of Appointments to the European
  Court      of    Human        Rights',    http://
  www.interights.org/documenV142/index.html:
  The Beijing Statement of Principles of the
  Independence of the Judiciary in the LAWASIA         c
  Region as amended at Manila on 28th August,
  1997; 3rd lecture on 'Judicial Appointments'
  delivered on 4th December, 2012 of the 54th series
  of Hamlyn Lectures titled 'Aspects of Law Reform
  - An Insider's Perspective'; Appointing
  Australian Judges: A New Model by Simon              D
  Evans and John Williams, [2008] Sydney Law
  Review Volume 30 page 295; hlli!~//
  sydney.edu.au{law/slr/slr30 2/Evans.pdf;
  http://www.sabar.co.za/I aw-jou rn a I s/2010/
  december/201 O-december-vol023-no3-pp43-             E
  48.pdf; http://www.lawsociety.orq.bw/news/
  Position%20Paper%20on%20Appointment%2
  Oof'/o20Judges%20Final%2014%20june%202012%2
  O'Final' .pdf; Carly Van Orman, Introduction to
  the Symposium: The Judicial Process                  F
  Appointments Process, 10 Wm. &Mary Bill Rts.
  J. 1 (2001 ), http://scholarship.law.wm.edu/
  wmborj/vol10/iss1/2; 'The Appointment and
  Removal of Judges' by Sir Anthony Mason AC
· KBE, formerly Chief Justice of Australia; .!J1!nJ1   G
  www. j udcom. nsw~gov.a u/pu bl ications/
  education-monographs-1 /monograph1 I
  fbmason.htm; Shimon Shetreet, Judges on Trial
  (North-Holland Publishing Company, Amsterdam,
  (1976), p 46; Akkas, Sarkar Ali (2004)
                                                       H
80   SUPREME COURT REPORTS                  [2015] 13 S. C.R.


A    "Appointment of Judges: A Key Issue of
     Judicial Independence," Bond Law Review:
     Vol.     16: lss. 2, Article 8; b.!iQJJ
     epublications.bond.edu.au/blr/vol16/iss2/8 -
     referred to.
B    In the order of Kurian. J.:
     S. Parthasarathi v. State of A.P (1974) 3 SCC
     459: 1974 (1) SCR 697 - referred to.
     R v. Sussex Justices Ex parte Mc-earthy (1923)
     All ER Rep. 233; Public Utilities Commission of
c    District of Columbia et al. v. Pollak et al. 343 U.S.
     451 (1952); The President of the Republic of
     South Africa etc. v. South African Rugby Football
     Union etc.1999 (4) SA 147- referred to.
     In the judgment of Kurian. J.:
D    His      Holiness     Kesavananda             Bharati
     Sripadagalvaru v. State of Kera/a and another
     (1973) 4 sec 225 : 1973 (O) Suppl. scR 1;
     Samsher Singh v. State of Punjab and another
     (1974) 2 SCC 831 :1975 (1) SCR 814-referred to.
E    State v. Arizona Independent Redistricting
     Commission Manu/USSC/0060/2015- referred
     to.
     In the judgment of Goel. J.:
F    Special Reference No.1 of 1998 (1998) 7 SCC
     739 : 1998 (2) Suppl. SCR 400; SCAORA v.
     Union of India (1993) 4 SCC 441: 1993 (2) Suppl.
      SCR 659; Property Owners'Association v. State
     of Maharashtra (1996) 4 SCC 49 : 1996 (2)
     Suppl. SCR 230; Kesavananda Bharti v. State
G
     of Kera/a 1973 (4) SCC 225 : 1973 (0) Suppl.
     SCR 1; Indira Nehru Gandhi v. Raj Narain (1975)
     Supp. SCC 1 : 1976 SCR 347; Minerva Mills Ltd.
     vs. Union of India (1980) 3 SCC 625 : 1981 (1)
      SCR 206; L. Chandra Kumar v. Union of India,
H
SUPREME COURT ADVOCATES-ON-RECORD                   81
         ASSOCIATION v. U.0.1.

"(1997) 3 sec 261 : 1997 (2) scR 1186; 1.R.         A
Coelho vs. State of Tamil Nadu (2007) 2 SCC 1:
2006 (10) Suppl. SCR 197; M. Nagaraj v. Union
of India (2006) 8 sec 212 : 2001 (9) SCR 259;
S.P Gupta v. Union of India 1981 Supp. SCC 87
: 1982 SCR 365; Subhash Sharma v. Union of          B
India 1991 Supp (1) SCC 574: 1990 (2) Suppl.
SCR 433; Union of India v. Sankalchand Himatlal
Sheth 1977 (4) sec 193 : 1978 (1) scR 423;
Shamsher Singh v. State of Punjab 1974 (2) SCC
831: 1975 (1) SCR 814: Centre for Public Interest
Litigation v. UOI (2012) 3 SCC 1: 2012 (3) SCR
                                                    c
147; ManoharLal Sharma v. UOI (2014) 2 SCC
532; S.R. Bommai v. UO/ (1994) 3 SCC 1 : 1994
(2) SCR 644; Rameshwar Prasad v. UOI (2006)
2 sec 1 : 2006 (1) SCR 562; M.C. Mehta v.
Kamal Nath (1997) 1SCC388: 1996 (10) Suppl.         D
SCR 12; Kihoto Hol/ohan v. Zachilfhu (1992)
Supp. (2) 651 : 1992 (1) SCR 686; Sahara India
Real Estate Corpn. Ltd. v. SEB/ (2012) 10 SC 603:
2012 (12) SCR 256; Chandra MoulishwarPrasad
v. Patna High Court 1969 (3) SCC 56 : 1970 (2)      E
SCR 666; Manoj Narula v. Union of India 2014
(9) SCC 1 : 2014 (9) SCR 965; Shri Prithvi Cotton
Mills Ltd. v. Broach Borough Municipality (1969)
2 sec 283 : 1970 (1) SCR 388; Bhim Singh Ji
 vs. Union of India (19B1) 1 SCC 166; Ashoka        F
Kumar Thakur vs. Union of India (2008) 6 SCC 1
 : 2008 (4) SCR 1; Mafat Lal Industries Ltd. vs.
 Union of India (1997) 5 SCC 536 : . 1996 (10)
 Suppl. SCR 585; lnderpreet Singh Kah/on v.
 State of Punjab (2006) 11 SCC 356 : 2006 (1)       G
 Suppl. SCR 772: Maneka Gandhi v. UOI (1978)
 1 sec 248 : 1978 (2) SCR 621; v. G. Row v.
 State of Madras (1952) SCR 597; Madhav Rao
 Jivaji Rao Scindia v. U0/ 1971 (1) SCC 85 : 1971
 (3) SCR 9; Rustom Cavasjee Cooper v. Union of
                                                    H
82          SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A          India (1970) 1 SCC 248; Bennett Coleman & Co.
           Ltd. vs. Union of India 1972 (2) SCC 788: 1973
           (2) SCR 757; S.R. Bommai v. UOI (1994) 3 sec
           1 : 1994 (2) SCR 644; P. Sambamurthy v. State
           of A.P (1994) 3 sec 1 : 1994 (2) SCR 644;
B          Amrik Singh Lyalpuri v. UOI (2011) 6 SCC 535:
           2011 (5) SCR 560; Union of India v. Madras Bar
           Asson. (2010) 11 SCC 1 : 2010 (6) SCR 857;
           Madras Bar Asson. v. UOI (2014) 10 SCC 1:
           Special Reference No.1(1965)1 SCC 413; Lily
           Thomas v. Union of India 2013 (7) SCC 653 : 2013
c          (10) SCR 1130; Chief Election Commissioner v.
           Jan Chaukidar 2013 (7) SCC 507 - referred to.
           Seervai, 41h Edition, Constitutional Law of India;
           141h and 121•1 Report of the Law Commission;
D
           Report dated 26.9.2001 as included in Vol. II of the
           Report of the NCRWC, 2002, Paras 9.6 and 9. 7
           - referred to. ·
                         Case Law Reference
     In the judgment of Khehar, J.:
E £Thfl, Reff!.rfl,nCfl. ordf:.C.I
  1982 SCR 365                           referred to    Para 2
  1993 (2) Suppl. SCR 659                referred to    Para 2
  1998 (2) Suppl. SCR 400                referred to    Para2
F 1990 (2) Suppl. SCR 433                 referred to   Para 11
   1978 (1) SCR 423                      referred to    Para 16(iii)
  2002 (3) Suppl. SCR 587                referred to    Para 26
  2002 (3) Suppl. SCR 366                referred to    Para 26
  2001 (1) Suppl. SCR 621                referred to    Para 26
G 1992 (2) Suppl. SCR 454                referred to    Para 26
  1973 (0) Suppl. SCR 1                  referred to    Para 26
  1975 (1) SCR 814                       referred to    Para 26
  (2014) 9 sec 1                         referred to    Para 26
  2010 (6) SCR 218                       referred to    Para 33
H
       SUPREME COURT ADVOCATES-ON-RECORD .                83
                ASSOCIATION v. U.0.1.

. 2007 (7) SCR 705              referred to    Para 33    A
  2011 (4) SCR 224              referred to    Para 36
  2010 (4) SCR 743              referred to    Para 38
  1991 (2) Suppl. SCR 497       referred to    Para 45
  2006 (4) Suppl. SCR 243       referred to    Para 47
  (1955) 6 SCR 603              referred to    Para 49    B
  1975 (1) SCR 1                referred to    Para 49
  1989 (3) SCR 316              referred to    Para 49
  2002 (3) SCR 100              referred to    Para 49
  2011(4) SCR19
  2004 (1) SCR 564
                                referred to    Para 51    c
                                referred to    Para 51
  1989 (1) Suppl. SCR 692       referred to    Para 51
  (1992) 4 sec 97               referred to    Para 51
  (1953) SCR 1069               referred to    Para 52
  (1965) 2 SCR 908              referred to    Para 52    D
  (1961) 2 SCR 828              referred to    Para 58
  1980 (1) SCR 769              referred to    Para 58
  1992 (3) Suppl. SCR 103       referred to    Para 58
  1999 (2) Suppl. SCR 473       referred to    Para 100
                                                          E
  (The Qrr!.,er Qn m!l_rit§.l
  1981 (1) SCR 206              referred to    Para 5
  1992(1) SCR 686               referred to    Para 5
  (2014) 10 sec 1                referred to   Para 11.
  2006 (7) Suppl. SCR 336       referred to    Para 15    F
  1971 (3) SCR 461              referred to    Para 26
  2010 (6) SCR 857              referred to    Para 37
  (2015) 4 SCALE 1              referred to    Para 40
  (1952) SCR 597                referred to    Para 43
  1967 SCR 762                  referred to    Para 44    G
  1971 (3) SCR 9                referred to    Para 45
  2012 (3) SCR 147              referred to    Para 46
  (2014) 2 sec 532              referred to    Para 46
  1990 (3) SCR 441              referred to    Para 47
                                                          H
84       : SUPREME COURT REPORTS          [2015) 13 S.C.R.


A    (1979) 1 sec 380              referred to Para 47
     2014 (6) SCR 873              referred to Para 47
     AIR 1993 SC 1873              referred to Para 54
     1982 (2) SCR 272              referred to· Para 58
B    1950 SCR 869                  referred to Para 71
     1959 SCR £19                  referred to Para 71
     1975 (2) SCR 774              referred to Para 71
     2008 (3) SCR 330              referred to Para 71
     1959 SCR 629                  referred to Para 72
c    1952 SCR 284                  referred to Para 72
     1976 SCR 347                  referred to Para 78
     1981 (2) SCR 1                referred to Para 78
     1989 (3) SCR 19               referred to Para 81
D    1996 (9) Suppl. SCR 479       referred to Para 81
     (1961) 3 SCR 707              referred to Para 99
     1976 (3) SCR 1                 referred to Para 99
     1987 (1) SCR 1054             referred to Para 99
     (2005) 5 sec 363              referred to Para 99
E
     1961 (1) SCR 96               referred to ·Para 102
     1993 (1) SCR 891              referred to Para 105
     1996 (2) Suppl. SCR 230       referred to Para 107
     (2001) 4 sec 455              referred to Para 107
F    (2013) 1 sec 5?2              referred to Para 107
     AIR 1955 SC 352        held inapplicable Para 108
     1963 Suppl. SCR 435 held inapplicable Para 108
     1965 SCR 421           held inapplicable Para 108
G    1969 (3) SCR 40        held inapplicable Para 108
     (1971) 3 sec 53        held inapplicable . Para 108
     1975 (1) SC_R 429      held inapplicable Para 108
     1977 (1) SCR 1002             referred to Para 108
      1975 (2) SCR 612             referred to Para 108
H
    . SUPREME COURT ADVOCATES-ON-RECORD                      85
               ASSOCIATION v. U.0.1.

2000 (1) SCR 518                 referred to Para 108        A
2010 (15) SCR 854                referred to Para 108
2011 (5) SCR 1019            • referred to Para 108
2011 (11) SCR 1094               referred to Para 108
1969 (3) SCR 447                 referred to Para 121        B
1971 (2) SCR 446                 referred to Para 121
1995 (2) Suppl. SCR 106          referred to Para 122
2007 (1) SCR 706                 referred to Para 130
 (2013) 1 sec 507                referred to Para 138
2013 (10) SCR 1130               referred to Para 138        c
1978 (2) SCR 1                   referred to Para 215
2006 (5) Suppl. SCR 1            referred to Para 215
2008 (4) SCR 1                    referred to Para 215
2003 (1) SCR 666                 referred to Para 216        D
2012 (4) SCR 118                 referred to Para 217
2000 (2) SCR 299                 referred to Para 218
2015 (3) SCR 107                 referred to Para 218
1985 (2) SCR 287         held inapplicable Para 250(vii)
                                                             E
1988 SCR 1034            held inapplicable Para 250(viii)
1996 (3) Suppl. SCR 98 held inapplicable Para 250(ix)
2002 (1) SCR 897           referred to       Para 250 (xi)
2006 (2) SCR 304          referred to        Para 250(xi)
In the Qrder of Chelameswar, J.:                             F
(1993) 4 sec 441         referred to           Para 2
(2011) 8 sec 380         referred to           Para 25
In the judgment of Chelameswar, J,:
1973 (0) Suppl. SCR 1 referred to              Para 11       G
1982 SCR 365             referred to           Para 14
1997 (2) SCR 1186        referred to           Para 28
1993 (2) Suppl. SCR 659 referred to            Para 39
1978 (1) SCR 423         referred to           Para 40
                                                             H
86         SUPREME COURT REPORTS               [2015113S.C.R.


A    1970 (2) SCR 666           referred to        Para 42
     1975 (1) SCR 814           referred to        Para42
     1990 (2) Suppl. SCR 433 referred to           Para 45
     1998 (2) Suppl. SCR 400 referred to           Para 56
B    2008 (17) SCR 791          referred to        Para 59
     2011 (10) SCR 1064         referred to        Para 59
     (2011) 8 sec 474           referred to        Para 59
     1997 (2) SCR 1186          referred to        Para 64
     (1980) 3 sec 625           referred to        Para 72
c     (1981) 2 sec 362          referred to        Para 73
     (1975) Supp sec 1          referred to        Para 73
     (1994) 3 sec 1             referred to        Para 79
     (2006) 8 sec 212           referred to        Para 80
D    (2001) 2 sec 1             referred to        Para 81
     AIR 1976 SC 1207           referred to        Para 103
     AIR 1967SC1                referred to        Para 106
     AIR 1967 SC 295            referred to        Para 111
E    In the jyggm!ilw Qf LQkyr, J,:
     1996 SC 324                referred to        Para 7
     1993 (2) Suppl. SCR 659 referred to           Para 51
     1982 SCR 365               referred to        Para 55
     1990 (2) Suppl. SCR 433 referred to           Para 55
F    1998 (2) Suppl. SCR 400 referred to           Para 103
     (1977) 4 sec 1993          referred to        Para 105
     (1971) 1sec411              referred to       Para 139
     [1965] 2 SCR 53            referred to        Para 142
G    1971 (3) SCR 483           referred to        Para 142
      [1955] 2 SCR 225          referred to        Para 195
     1973 (0) Suppl. SCR 1      referred to        Para 196
     1976 SCR 347               referred to        Para 197
H    1981 (1) SCR 206           referred to        Para 200
     SUPREME COURT ADVOCATES-ON-RECORD             87
              ASSOCIATION v. U.0.1.

 2007 (1) SCR 706        referred to    Para 202   A
 2010 (6) SCR 218         referred to   Para 203
 (2014) 12 sec 696       referred to    Para 204
 2006 (2) SCR 740        referred to    Para 204
 1950 SCR 88             referred to    Para 208
                                                   B
 1952 SCR 1112           referred to    Para 213
 (1967) 2 SCR 762        referred to    Para 214
 (1972) 2 SCR 331         referred to   Para 220
 1992 (2) Suppl. SCR 454 referred to    Para 228
 2001 (1) Suppl. SCR 621 referred to    Para 229   c
 2014 (9) SCR 965        referred to    Para 229
 2002 (3) Suppl. SCR 587 referred to    Para 230
 1955 SCR 603            referred to    Para 243
 (1953) 4 SCR 1069       referred to    Para 243   D
 1961 SCR 828            referred to    Para 249
 1965 SCR 908            referred to    Para 250
 (1960) 1 SCR 249        referred to    Para 250
 (1963) Supp 1 SCR 871 referred to      Para 250
                                                   E
 1975 (1)· SCR 1         referred to    Para 251
 1967 SCR 399            referred to    Para 251
 1980 (1) SCR 769        referred to    Para 252
.1989 (3) SCR 316        referred to    Para 253
 1992 (3) Suppl. SCR 103 referred to    Para 256   F
 1989 (2) SCR 320        referred to    Para 256
 2002 (3) SCR 100        referred to    Para 257
 (1975) 1sec485          referred to    Para 257
 1985 (2) SCR 914        referred to    Para 263   G
 1985 (2) Suppl. SCR 949 referred to    Para 263
 [1986] 2 SCR 56         referred to    Para 263
 1993 (1) SCR 891        referred to    Para 264
 [1965] 1SCR413          referred to    Para 270
                                                   H
88         SUPREME COURT REPORTS              [2015] 13 S.C.R.

A    (1991) 4 sec 699          referred to         Para 297
     1994 (2) SCR 375          referred to         Para 298
     1992 (1) ·Suppl. SCR 53 referred to           Para 299
     2010 (6) SCR 857          referred to         Para 300
B
     1978 (1) SCR 1            referred to         Para 361
     1978 (2) SCR 1            referred to         Para 386
     1995 (6) Suppl. SCR 17 referred to            Para 387
     2008 (4) SCR 1            referred to         Para 388
     (2014) 10 sec 1           referred to         Para 389
c    1981 (1.) SCR 206       , referred to         Para 397
     1983 (1) SCR 1000         referred to         Para 398
      2006 (7) Suppl. SCR 336 referred to          Para 399
     (1981) 1 sec 166          referred to         Para 401
D    [1950] SCR 869            referred to         Para 406
     [1959] SCR 279            referred to         Para 407
     1982 (1) SCR 947          referred to         Para 409
     1970 (1) SCR 388          referred to         Para 412
E    1996 (6) Suppl. SCR 839 referred to           Para 414
     1994 (1)-Suppl. SCR 639 referred to           Para 415
     1991 (2) Suppl. SCR 497 referred to           Para416
     1996 (2) SCR 23           referred to         Para 417
     [1950] 1 SCR 88           referred to         Para 421
F    [1967] 1SCR15             referred to         Para 423
     2008 (1) SCR 986          referred to         Para 432
     [1959] SCR 629            referred to         Para 439
     [1952] SCR 284            referred to         Para 443
G    [1986] 2 SCR 56            referred to        Para 449
     1996 (3) SCR 721          referred to         Para 453
     2003 (1) SCR 666          referred to         Para 454
     1962 Supp (2) SCR 1       referred to         Para 455
H
     1992 (1) SCR 686          referred to         Para 456
    . SUPREME COURT ADVOCATES-ON-RECORD                  89
               ASSOCIATION v. U.0.1.

1986 SCR 479                  referred to    Para 458    A
1996(10) Suppl. SCR 585 referred to          Para 459
1960 (1) SCR 605              referred to    Para 461
2007 (1) SCR 317              referred to    Para 462
1982 (2) SCR 272               referred to   Para 497
                                                         B
2011 (4) SCR 445               referred to   Para 500
2014 (4) SCR 77                referred to   Para 502
1992 (2) SCR 109               referred to   Para 544
2014 (2) SCR 537               referred to   Para 551
1985 (2) SCR 287               referred to   Para 552    c
1975 (3) SCR 333               referred to   Para 553
1988 (3) Suppl. SCR 212 referred to          Para 554
2002 (1) SCR 897               referred to   Para 558
1965 SCR 421                   referred to   Para 558    D
1963 Suppl. SCR 435 referred to              Para 558
1985 (2) SCR 287               referred to   Para 558
2011 (11) SCR 1094             referred to   Para 560
In th~ Qrd~r of Kurian, J.:                              E
1974 (1) SCR 697               referred to   Para8
In the j!,Ji;!gm~nt Qf K!Jrian, J.:
1973 (0) Suppl. SCR 1          referred to   Para 1
1975 (1) SCR 814               referred to   Para 2
In the judgment of Goel, J.:                             F

1998 (2) Suppl. SCR 400 referred to          Para 3.4
1993 (2) Suppl. SCR 659 referred to          Para 3.4
1996 (2) Suppl. SCR 230 referred to          Para 10
1973 (0) Suppl. SCR 1 referred to            Para 15     G
1976 SCR 347                   referred to   Para 15.4
1981 (1) SCR 206 ·             referred to   Para 15.5
1997 (2) SCR 1186              referred to   Para 15.6
2006 (10) Suppl. SCR 197 referred to         Para 15.7   H
90         SUPREME COURT REPORTS                [2015] 13S.C.R.


A    2007 (9) SCR 259        referred to             Para 15.8
     1982 SCR 365            referred to             Para 16.4
     1990 (2) Suppl. SCR 433 referred to             Para 16.5
     1978 (1JSCR 423         referred to             Para 17
B
     1975 (1) SCR 814        referred to             Para 17.2
     2012 (3) SCR 147        referred to             Para 18
     (2014) 2 sec 532        referred to             Para 18
     1994 (2) SCR 644        referred to             Para 18
     2006 (1) SCR 562        referred to             Para 18
c    1996 (10) Suppl. SCR 12 referred to             Para 18
     1992 (1) SCR 686        referred to             Para 18
     2012 (12) SCR 256        referred to            Para 18.1
     1970 (2) SCR 666        referred to             Para 18.5
D    1970 (1) SCR 388        referred to             Para 18.9
     2014 (9) SCR 965        referred to             Para 18.10
     (1981) 1sec166          referred to             Para19.1
     2008 (4) SCR 1           referred to . ·        Para19.1
E    1996 (10) Suppl.SCR 585 referred to             Para 19.3
     2006 (1) Suppl. SCR 772 referred to             Para 19.3
     1978 (2) SCR 621        referred to             Para 19.7
     (1952) SCR 597          referred to             Para 19.7
     1971 (3) SCR 9          referred to             Para 19.7
F    (1970) 1 sec 248        referred to             Para 19.7
     1973 (2) SCR 757        referred to             Para 19.7
     1994 ( 2) SCR 644       referred to             Para 19.14
     2011 (5) SCR 560        referred to             Para 19.14
G    2010 (6) SCR 857        referred to             Para 19.14
     (2014) 10 sec 1         referred to             Para 19.14
     (1965) 1 sec 413         referred to            Para 19.14
     2013 (10) SCR 1130      referred to             Para 20.4
H    2013 (7) sec 507        referred to             Para 20.4
     SUPREME COURT ADVOCATES-ON-RECORD                         91
              ASSOCIATION v. U.0.1.

     CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) A
No.13of2015.
      Under Article 32 of the Constitution of India.
                               WITH
       W. P. (C) Nos. 23, 70, 83, 108, 124, 14, 18, 24, 209,   B
309, 310, 323 and 341of2015 and T. P. (C) Nos. 391 and
971 of 2015.
      Ranjit Kumar, SG, Mukul Rohatgi, AG, P. S. Narasimha,
ASG, Fali S. Nari man, Prof. Bhim Singh, Anil B. Divan, R. K. c.
P. Shankar Das, K. N. Bhat, V. Mohana, Ram Jethmalani, K.
K. Venugopal,T. R. Andhyarujina, Ajit Sinha, Ravindra
Shrivastava, Dr. Rajeev Dhawan, Sr. Advs., S. S. Shamshery,.
lrshad Ahmad, Gaurav Bhatia, C. D. Singh, Saurabh Ajay
Gupta, Suryanarayana Singh, AAGs, Subhash C. Kasyap, D
Pranav Vyas (For Surya Kant), Santosh Paul, Joseph Aristotle
S., Arvind Gupta, M. B. Elakkumanan, Malay Swapnil, Priya
Aristotle, Savita Singh, Prashant Bhushan, Prashant Kumar,
Syed Rehan, Ranvir Singh, Anindita Pujari, Jitendra
Mahapatra, A. C. Philip, Rabin Majumder, Suman, V. N. E
Subramaniam, Subhasish Bhowmick, S. K. Sinha, Joydeep
Mukherjee (For Rabin Majumder), Sriram Parakkat, Vishnu
Shankar Jain (For Ankur S. Kulkarni), Prachi Bajpai, D. L
Chidananda, Madhvi Divan, Abhinav Mukherji, Binu Tamta, Dr.
Arghya Sengupta, Ranjeeta Rohatgi, Devanshi Singh, Diksha F
Rai, Ninad Laud, Ajay Sharma, Ritwik Sharma, Samit Khosla,
Nikhil Rohatgi, Gurmehar S. Sistani (For B. V. Balaram Das),
Gautam Narayan; Devashish Bharuka, Sandeep Singh, Amit
Sharma (For Ms. Ruchi Kohli), H. K. Naik (For Gautam
Takuldar), Ankur Talwar, Rohit Bhat, Prerna Priyadarshini, G
Suhasini Sen, Ankit Kr. (For Mishra Saurabh), Nishant
Kanteshwarkar, Arpit Rai, Anip Sachthey, Saakaar Sardana,
K. Enatoli Serrya, Edward Belho, Amit Kumar Singh, Abhisth
Kumar, Abhishek Kumar Singh, Vijay Pratap Yadav, Som Raj H
92          SUPREME COURT REPORT'-_                         [2015] 13 S.C.R.


A    Choudhury, Anitha·Shenoy, V. N. Raghupathy, Tapesh Kumar
     Singh, Mohd. Waquas, Anurag Singh, Aswarya K. Sinha,
     Rachana Srivastava, Shashi Juneja, A. P. Mayee, Ramesh
     Babu M. R., Swati Setia, Sapam Biswajit Meitei, Z. H. Issac
     Haiding, Ashok Kumar Singh, Hemantika Wahi, Vinakshi
B    Kadan, Jagjit Singh Chhabra (For Kuldip Singh), Sibo Sankar
     Mishra, Pragati Neekhra, Indra Pratap Singh, Prakash Kumar
     Singh, Arun Monga, Kudrat S3ndho (For Tushar Bakshi), M.
     Yogesh Kanna, Jayant Patel, Krishna Sarma, Avijit Roy, Navnit
     Kumar, Barnali Das, Deepika (For M/s. Corporate Law
C    Group), Guntur Prabhakar, Prerna Singh, Nupur Singhal,
     Sanjay Visen, Anil Kumar Chopra, Ashok Kumar Thakur, Im ran
     Khan Burni, Advs., for the appearing parties.
          Mathews J. Nedumpara, Manohar Lal Sharma, R. K.
o    Kapoor, Bishwajit Bhattacharyya, Rajiv Daiya, P. M.
     Duraiswamy (Petioner-in-person).
          Ashish Dixit (Respondent-in-person)
     The following Judgments and Orders of the Court were delivered:

E                              JUDGMENT
           JAGDISH SINGH KHEHAR, J.
                            Index*
             Si.No          Contents            Par·agrapl:s       Pages

               1      The Recusal Order           ,' - '8           1 -   15
F                                                            ·-.

               2.     The Reference Order        1 . 101           16 - 169
                I     The Challenae              1 - 9             16 - 19
               II.    The Background to         10 - 19            19 - 61
                      tt1e Challenge
G              Ill.   Motion      by   tt1e     20 - 53            61 - 115
                      respondents for tt1e
                      review of the Second
                      and Third Judges
                      cases.
     *Ed. note: The pages mentioned in the index above giving the scheme of the
H    judgment denotes the page number of the original judgment.
    SUPREME COURT ADVOCATES-ON-RECORD                              93
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

                                                                   A
       IV.    Objection    by   the   54 - 59     115 - 124
              petitioners, to the
              Motion for review
       V.     The Consideration       60 - 100    124-168
       VI.    Conclusion                101       168 - 169
                                                                   B
       3.     The Order on Merits      1 - 258    170-439
        I.    Preface                  1- 4       170-171
        II.   Petitioners'             5 - 66     171 - 252
              Contentions,        on
              l'v1e.rits
       Ill    Respondents'            67 - 132   253 -325          c
              Response on Merits.
       IV.    The Debate and the 133- 245        326 - 419
              Deliberation
       v      The effect of striking 246- 253     419 - 436
              down the impugned
              constitutional                                       D
              amendment
       VI.    Conclusions            254- 256    436-438
       VII.   Acknowledament         257         438 -439

                   THE RECUSAL ORDER
                                                                   E
       1. In this Court one gets used to writing common orders,
for orders are written either on behalf of the Bench, or on behalf
of the Court. Mostly, dissents are written in the first person.
Even though, this is not an order in the nature of a dissent, yet
it needs to be written in the first person. While endorsing the F
opinion expressed by J. Chelameswar, J., adjudicating upon
the prayer for my recusal, from hearing the matters in hand,
reasons for my continuation on the Bench, also need to be
expressed by me. Not for advocating any principle of law, but
for laying down certain principles of conduct.                     G
      2. This order is in the nature of a prelude - a precursor,
to the determination of the main controversy. It has been
necessitated, for deciding an objection, about the present
composition of the Bench. As already noted above, J.               H
94         SUPREME COURT REPORTS                 [2015] 13S.C.R.


A    Chelameswar, J. has rendered the decision on the objection.
     The events which followed the order of J. Chelameswar, J.,
     are also of some significance. In my considered view, they too
     need to be narrated, for only then, the entire matter can be
     considered to have been fully expressed, as it ought to be. I
B    also need to record reasons, why my continuation on the
     reconstituted Bench, was the only course open to me. And
     therefore, my side of its understanding, dealing with the
     perception, of the other side of the Bench.
c         3(i) A three-Judge Bench was originally constituted for
    hearing these matters. The Bench comprised of
    Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ .. At
    thatjuncture,Anil R. Dave, J. was a part of the 1+2 collegium,
    as also, the 1+4 collegium. The above combination heard the
D matter, on its first listing on 11.3.2015. Notice returnable for
    17 .3.2015 was issued on the first date of hearing.
    Simultaneously, hearing in Y. Krishnan v. Union of India and
    others, Writ Petition (MD) No.69 of 2015, pending before the
    High Court of Madras (at its Madurai Bench), wherein the same
E issues were being considered as the ones raised in the bunch
  . of cases in hand, was stayed till further orders.
         (ii) On the following date, i.e., 17.3.2015 Mr. Fali S.
  Nariman, Senior Advocate, in Supreme CourtAdvocates-on-
F Record Association v. Union of India (Writ Petition (C) No.13
  of2015), Mr.Anil B. Divan, Senior Advocate, in Bar Association
  of India v. Union of India (Writ Petition (C) No;108 of 2015),
  Mr. Prashant Bhushan, Advocate, in Centre for Public Interest
  Litigation v. Union of India (Writ Petition (C) No.83 of 2015)
G and Mr. Santosh Paul, Advocate, in Change India v. Union of
  India (Writ Petition (C) No.70 of 2015), representing the
  petitioners were heard. Mr. Mukul Rohatgi, Attorney General
  for India, advanced submissions in response. The matter was
  shown as part-heard, and posted for further hearing on
H 18.3.2015.
    SUPREME COURT ADVOCATES-ON-RECORD                                95
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

     (iii) The proceedings recorded by this Court on 18.3.2015 A
reveal, that Mr. Santosh Paul, (in Writ Petition (C) No.70 of
2015) was heard again on 18.3.2015, whereupon, Mr. Mukul
Rohatgi and Mr. Ranjit Kumar, Solicitor General of India, also
made their submissions. Thereafter, Mr. DushyantA. Dave,
Senior Advocate - and the President of Supreme Court Bar B
Association, addressed the Bench, as an intervener.
Whereafter, the Court rose for the day. On 18.3.2015, the matter
was adjourned for hearing to the following day, i.e., for
19.3.2015.
                                                                     c
     (iv) The order passed on 19.3.2015 reveals, that
submissions were advanced on that date, by Mr. DushyantA.
Dave, Mr. Mukul Rohatgi, Mr. T.R. Andhyarujina, Senior
Advocate, and Mr. Mathews J. Nedumpara. When Mr. Fali S.
Nariman was still addressing the Bench, the Court rose for the • D
day, by recording inter a/ia, "The matters remained Part-
heard." Further hearing in the cases, was deferred to
24.3.2015.
      (v) On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B.
Divan, were again heard. Additionally, Mr. Mukul Rohatgi             E
concluded his submissions. On the conclusion of hearing,
judgment was reserved. On 24.3.2015, a separate order was
also passed in Writ Petition (C) No.124 of 2015 (Mathews J.
Nedumpara v. Supreme Court of India, through Secretary               F
General and others). It read as under:
      'The application filed by Mr. Mathews J. Nedumpara to
      argue in person before the Court is rejected. The name of
      Mr. Robin Mazumdar, AOR, who was earlier appearing for
      him, be shown in the Cause List.''                        G
        (vi) On 7.4.2015, the following order came to be passed
by the three-Judge Bench presided by Anil R. Dave, J.:
      "1. In this group of petitions, validity of the Constitution
      (Ninety-Nimth Amendment) Act, 2014 and the National
      Judicial Appointment Commission Act, 2014 (hereinafter         H
96   SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A    referred to as 'the Act') has been challenged. The challenge
     is on the ground that by virtue of the aforestated amendment
     and enactment of the Act, basic structure of the Constitution
     of India has been altered and therefore, they should be set
     aside.
B    2. We have heard the learned counsel appearing for the
     parties and the parties appearing in-person at length.
     3. It has been mainly submitted for the petitioners that all
     these petitions should be referred to a Bench of Five Judges
     as per the provisions of Article 145(3) of the Constitution of
c    India for the reason that substantial questions of law with
     regard to interpretation of the Constitution of India are
     involved in these petitions. It has been further submitted
     that till all these petitions are finally disposed of, by way of
     an interim relief it should be directed that the Act should
D.
     not be brought into force and the present system with regard
     to appointment of Judges should be continued.
     4. Sum and substance of the submissions of the counsel
     opposing the petition is that all these petitions are premature
     for the reason that the Act has not come into force till today
E
     and till the Act comes into force, cause of action cannot be
     said to have arisen. In the circumstances, according to
     the learned counsel, the petitions should be rejected.
     5. The learned counsel as well as parties in-person have
F     relied upon several judgments to substantiate their cases.
      6. Looking at the facts of the case we are of the view that
     these petitions involve substantial questions of law as to
     the interpretation of the Constitution of India and therefore
     we direct the Registry to place all the matters of this group
G    before Hon'ble the Chief Justice of India so that they can
     be placed before a lamer Bench for its consideration.
     7. As we are not deciding the cases on merits, we do not
     think it appropriate to discuss the submissions made by
     the learned counsel and the parties in-person.
H
    SUPREME COURT ADVOCATES-ON-RECORD                                 97
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      8. It would be open to the petitioners to make a prayer for     A
      interim relief before th.e larger bench as we do not think it
      appropriate to grant any interim relief at this stage."
     4. During the hearing of the cases, Anil R. Dave, J. did
not participate in any collegium proceedings.
                                                                      B
      5. Based on the order passed by the three-Judge Bench
on 7.4.2015, Hon'ble the Chief Justice of India, constituted a
five-Judge Bench, comprising of Anil R. Dave, Chelameswar,
Madan B. Lokur, Kurian Joseph andAdarsh Kumar Goel, JJ.
      6. On 13.4.2015 the Constitution (Ninety-ninth C
Amendment) Act, 2014, and the National Judicial
Appointments Commission Act, 2014, were notified in the
Gazette of India (Extraordinary). Both the above enactments,
were brought into force with effect from 13.4.2015. Accordingly, D
on 13.4.2015 Anil R. Dave, J. became an ex officio Member
of the National Judicial Appointments Commission, on account
of being the second senior most Judge after the Chief Justice
of India, under the mandate of Article 124A(1 )(b).
      7. When the matter came up for hearing for the first time,      E
before the five-Judge Bench on 15.4.2015, it passed the
following order:
     "List the matters before a Bench of which one of us (Anil
R. Dave, J.) is not a member."
                                                                      F
      It is, therefore, that Hon'ble the Chief Justice of India,
reconstituted the Bench with myself, J. Chelameswar, Madan
B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ., to hear
this group of cases.
     8. When the reconstituted Bench commenced hearing G
on 21.4.2015, Mr. Fali S. Nariman made a prayer for my
recusal from the Bench, which was seconded by Mr. Mathews
J. Nedumpara (petitioner-in-person in Writ Petition (C) No.124
of 2015), the latter advanced submissions, even though he H
98         SUPREME COURT REPORTS                    [2015) 13S.C.R.


A   had been barred from doing so, by an earlier order dated
    24.3.2015 (extracted above). For me, to preside over the
    Bench seemed to be imprudent, when some of the
    stakeholders desired otherwise. Strong views were however
    expressed by quite a few learned counsel, who opposed the
B prayer. It was submitted, that a prayer for recusal had earlier
    been made, with reference to Anil R. Dave, J. It was pointed
    out, that the above prayer had resulted in his having exercised
    the option to step aside (- on 15.4.2015). Some learned
    counsel went to the extent of asserting, that the recusal of Anil
C · R. Dave, J. was not only unfair, but was also motivated. It was
    also suggested, that the Bench should be reconstituted, by
    requesting Anil R. Dave, J. to preside over the Bench. The
    above sequence of facts reveals, that the recusal by Anil R.
D Dave, J. was not at his own, but in deference to a similar prayer
    made to him. Logically, if he had heard these cases when he
    was the presiding Judge of the three-Judge Bench, he would
    have heard it, when the Bench strength was increased, wherein,
    he was still the presiding Judge.
E           9(i) Mr. Fali S. Nariman strongly refuted the impression
     sought to be created, that he had ever required Anil R. Dave,
     J. to.recuse. In order to support his assertion, he pointed out,
     that he had made the following request in writing on 15.4.2015:
            "The provisions of the Constitution (Ninety-Ninth
F           Amendment) Act, 2014 and of the National Judicial
            Appointments Commission Act, 2014 have been brought
            into force from April 13, 2015. As a consequence, the
            Presiding Judge on this Bench, the Hon'ble Mr. Justice
            Anil R. Dave, has now become (not out of choice but by
G
            force of Statute) a member ex officio of the National
            Judicial Appointments Commission, whose
            constitutional validity has been challenged.
            It is respectfully submitted that it would be appropriate
H           if it is declared at the outset- by an order of this Hon'ble
    SUPREME COURT ADVOCATES-ON-RECORD                             99
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      Court- that the Presiding Judge on this Bench will take     A
      no part whatever in the proceedings of the National
      Judicial Appointments Commission."
      Learned senior counsel pointed out, that he had merely
requested the then presiding Judge (Anil R. Dave, J.) not to      B
take any part in the proceedings of the National Judicial
Appointments Commission, during the hearing of these
matters. He asserted, that he had _never askedAnil R. Dave,
J. not to hear the matters pending before the Bench.
      (ii) The submission made in writing by Mr. Mathews J.       C
Nedumpara for the recusal of Anil R. Dave, J. was in the
following words:
      " ..... VI. Though Hon'ble Shri Justice Anil R. Dave, Who
      heads the Three-Judge Bench in the instant case, is a
      Judge revered and respected by the legal fraternity and D
      the public at large, a Judge of the highest integrity, ability
      and impartiality, still the doctrine of nemo iudex in sua causa
      or nemo debet esse judex in propria causa - no one can
      be judge in his own cause -would require His Lordship to E
      recuse himself even at this stage since in the eye of the
      120 billion ordinary citizens of this country, the instant case
      is all about a law whereunder the exclusive power of
      appointment invested in the Judges case is taken away
      and is invested in the fair body which could lead to F
      displeasure of the Judges and, therefore, the Supreme
      Court itself deciding a case involving the power of
      appointment of Judges of the Supreme Court will not evince
      public credibility. The question then arises is as to who
       could decide it. The doctrine of necessity leaves no other G
      option then the Supreme Court itself deciding the question.
      But in that case, it could be by Judges who are not part of
      the collegium as of today or, if an NJAC is to be constituted
      today, could be a member thereof. With utmost respect,
       Hon'ble Shri Justice Dave is a member of the collegium; H
100   SUPREME COURT REPORTS                    [2015) 13 S.C.R.


A     His Lordship will be a member of the NJAC if it is
      constituted today. Therefore, there is a manifest conflict
      of interest.
      VII. Referendum. In Australia, a Constitutional Amendment
      was brought in, limiting the retirement age of Judges to 70
B     years. Instead of the Judges deciding the correctness of
      the said decision, the validity of the amendment was left to
      be decided by a referendum, and 80% of the population
      supported the amendment. Therefore, the only body who
      could decide whether the NJAC as envisaged is acceptable
c     or not is the people of this country upon a referendum.
      VIII. The judgment in Judges-2, which made the rewriting
      of the Constitution, is void ab initio. The said case was
      decided without notice to the pubic at large. O,nly the views
      of the government and Advocates on record and a few
D
      others were heard. In the instant case, the public at large
      ought to be afforded an opportunity to be heard; at least
      the major political parties, and the case should be referred
      to Constitutional Bench. The constitutionality of the Acts
      ought to be decided, brushing aside the feeble, nay,
E
      apologetical plea of the learned Attorney General that the
      Acts have been brought into force and their validity cannot
      be challenged, and failing to come forward and state in
      candid terms that the Acts are the will of the people, spoken
F     through their elected representatives and that too without
      any division, unanimous. The plea of the Advocates on
      Record Association that the notification bringing into force
      the said Acts be stayed be rejected forthwith; so too its
      demand that the collegium system, which has ceased to
G     be in existence, be allowed to be continued and
      appointments to the august office of Judges of High Courts
      and Supreme Gourt on its recommendation, for to do so
      would mean that Judges of the High Courts who are
      currently Chief Justices because they were appointed at a
H     young age in preference over others will be appointed as
  SUPREME COURT ADVOCATES-ON-RECORD                                  101
ASSOCIATION v. U.0.1. [JAG DISH SINGH KHEHAR, J.]

   Judges of the Supreme Court and if that is allowed to             A
   happen, it may lead to a situation where the Supreme Court
   tomorrow will literally be packed with sons and sons-in-
   law of former Judges. There are at least three Chief
   Justices of High Courts who are sons of former Judges of
   the Supreme Court. The Petitioner is no privy to any              B
   confidential information, not even gossips. Still he believes
   that if the implementation of the NJAC is stayed, three sons
   of former Judges of the Supreme Court could be appointed
   as Judges of the Supreme Court. The Petitioner has
   absolutely nothing personal against any of those Judges;          C
   the issue is not at all about any individual. The Petitioner
   readily conc.edes, and it is a pleasure to do so, that few of
   them are highly competent and richly deserving to be
   appointed.                                                        D
   IX. Equality before law and equal protection of law in the
   matter of public employment. The office of the Judge of
   the High Court and Supreme Court, though high
   constitutional office, is still in the realm of public
   employment, to which every person eligible ought to be            E
   given an opportunity to occupy, he being selected on a
   transparent, just, fair and non-arbitrary system. The
   Petitioner reiterates that he could be least deserving to be
   appointed when considered along with others of more
   meritorious than him, but the fact that since he satisfies all    F
   the basic eligibility criteria prescribed under Articles 124A,
    as amended, and 217, he is entitled to seek a declaration
   at the hands of this Hon'ble Court that an open selection
    be made by advertisement of vacancies or such other
    appropriate mechanism.                                           G
    X. Judicial review versus democracy. Judicial review is
    only to prevent unjust laws to be enacted and the rights of
    the minorities, whatever colour they could be in terms of
    religion, race, views they hold, by a legislation which enjoys
    brutal majority and an of the executive which is tyrannical.     H
102         SUPREME COURT REPORTS                     [2015) 13 S.C.R.



A           It is no way intended to substitute the voice of the people
            by the voice of the high judiciary.
            XI. Article 124A, as amended, is deficient only in one
            respect. The collegium contemplated thereunder is still
            fully loaded in favour of the high judiciary. Three out of the
B           six members are Judges. In that sense it is failing to meet
            to be just and democratic. But the Parliament has in its
            wisdom enacted so and if there is a complaint, the forum
            is to generate public opinion and seek greater democracy.
            The Petitioner is currently not interested in that; he is happy
c           with the Acts as enacted and the principal relief which he
            seeks in the instant petition is the immediate coming into
            force of the said Acts by appropriate notification and a
            mandamus to that effect at the hands of this Hon'ble Court."
D       10. When my recusal from the reconstituted Bench was
  sought on 21.4.2015, I had expressed unequivocally, that I had
  no desire to hear the matters. Yet, keeping in view the reasons
  expressed in writing by Mr. Fali S. Nariman, with reference to
  Anil R. Dave, J. I had disclosed in open Court, that I had already
E sent a communication to Hon'ble the Chief Justice of India,
  that I would not participate in the proceedings of the 1+4
  collegium (of which I was, a member), till the disposal of these
  matters. Yet, the objection was pressed. It needs to be recorded
  that Anil R. Dave, J. was a member of the 1+2 collegium, as
F well as, the 1+4 collegium from the day the hearing in these
  matters commenced. Surprisingly, on that account, his recusal
  was never sought, and he had continued to hear the matters,
  when he was so placed (from 11.3.2015 to 7 .4.2015). But for
  my being a member of the 1+4 collegium, a prayer had been
G made for my recusal.
            11. It was, and still is, my personal view, which I do not
      wish to thrust either on Mr. Fali S. Nariman, or on Mr. Mathews
      J. Nedumpara, thatAnil R. Dave, J. was amongst the most
 H    suited, to preside over the reconstituted Bench. As noticed
     SUPREME COURT ADVOCATES-ON-RECORD                            103
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

. above, he was a part of the 1+2 collegium, as also, the 1+4 A
  collegium, under the 'collegium system'; he would continue to
  discharge the same responsibilities, as an ex officio Member
  of the National Judicial Appointments Commission, in the
  'Commission system', under the constitutional amendment
  enforced with effect from 13.4.2015. Therefore, irrespective B
  of the system which would survive the adjudicatory process,
  Anil R. Dave, J. would participate in the selection, appointment
  and transfer of Judges of the higher judiciary. He would,
  therefore, not be affected by the determination of the present
  controversy, one way or the other.                               C
      12. The prayer for my recusal from the Bench was pressed
 by Mr. Fali S. Nariman, Senior Advocate, in writing, as under:
       "8. In the present case the Presiding Judge, (the Hon'ble
       Mr. Justice J.S. Khehar) by reason of judgments D
       reported in the Second Judges case Supreme Court
       Advocates-on-Record Assn. v. Union of India, (1993) 4
       sec 441, (reaffirmed by unanimously by a Bench of 9
       Judges in the Third Judges case Special Reference
       No.1 of 1998, Re. (1998 7 SCC 739), is at present a E
       member of the Collegium of five Hon 'ble Judges which
       recommends judicial appointments to the Higher
       Judiciary, which will now come under the ambit of the
       National Judicial Appointments Commission set up
       under the aegis of the Constitution (Ninety-ninth F
       Amendment) Act, 2014 read with National Judicial
       Appointments Commission Act No.40 of 2014- if valid;
       but the constitutional validity of these enactments has
       been directly challenged in these proceedings.
                                                                 G
       The position of the Presiding Judge on this Bench
       hearing these cases of constitutional challenge is not
       consistent with (and apparently conflicts with) his
       position as a member of the 'collegium'; and is likely to
                                                                  H
104        SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A           be seen as such; always bearing in mind that if the
            Constitution Amendment and the statute pertaining
            thereto are held constitutionally valid and are upheld,
            the present presiding Judge would no longer be part of
            the Collegium-the Collegium it must be acknowledged
B           exercises significant constitutional power.
            9. In other words would it be inappropriate for the
            Hon'ble Presiding Judge to continue to sit on a Bench
            that adjudicates whether the Collegium system, (as it is
c           in place for the past two decades and is stated (in the
            writ petitions) to be a part of the basic structure of the
            Constitution), should continue or not continue. The
            impression in peoples mind would be that it is
            inappropriate if not unfair if a sitting member of a
D           Collegium sits in judgment over a scheme that seeks to
            replace it. This is apart from a consideration as to
            whether or not the judgment is (or is not) ultimately
            declared invalid or void: whether in the first instance or
            by Review or in a Curative Petition."
E          The above prayer for my recusal was supported by Mr.
      Mathews J. Nedumpara, petitioner-in-person, in writing, as
      under:
            "..... Hon'ble Shri Justice J.S. Khehar, the presiding Judge,
 F          a Judge whom the Petitioner holds in high esteem and
            respect, a Judge known for his uprightness, impartiality
            and erudition, the Petitioner is afraid to say, ought not to
            preside over the Constitution Bench deciding the
            constitutional validity or otherwise of the Constitution
 G          (Ninety-ninth Amendment) Act, 2014 and the National
            Judicial Appointments Commission Act, 2014 ("the said
            Acts", for short). His Lordship will be a member of the
            collegium if this Hon'ble Court were to hold that the said
            Acts are unconstitutional or to stay the operation of the
H           said Acts, for, if the operation of the Acts is stayed, it is
  SUPREME COURT ADVOCATES-ON-RECORD                           105
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   likely to be construed that the collegium system continues A
   to be in force by virtue of such stay order. Though Hon'ble
   Shri Justice J.S. Khehar is not a member of the National
   Judicial Appointments Commission, for, if the NJAC is to
   be constituted today, it will be consisting of the Hon'ble
   Chief Justice of India and two seniormost Judges of this B
   Hon'ble Court. With the retirement of Hon'ble Shri H.L.
   Dattu, Chief Justice of India, His Lordship Hon'ble Shri
   Justice J.S. Khehar will become a member of the
   collegium. Therefore, an ordinary man, nay, an informed
   onlooker, an expression found acceptance at the hands of C
   this Hon'ble Court on the question of judicial recusal, will
   consider that justice would not have been done if a Bench
   of th.is Hon'ble Court headed by Hon'ble Shri Justice J.S.
   Khehar were to hear the above case. For a not so informed D
   onlooker, the layman, the aam aadmi, this Hon'ble Court
   hearing the Writ Petitions challenging the aforesaid Acts is
   nothing but a fox being on the jury at a goose's trial. The
    Petitioner believes that the Noble heart of his Lordships
   Justice Khehar could unwittingly be influenced by the E
   nonconscious, subconscious, unconscious bias, his
    Lordships having been placed himself in a position of
   conflict of interest.
    3. This Hon'ble Court itself hearing the case involving the
    power of appointment of Judges between the collegium F
    and the Government, nay, the executive, will not evince
    any public confidence, except the designated senior
    lawyers who seem to be supporting the collegium system.
    The collegium system does not have any confidence in
    the ordinary lawyers who are often unfairly treated nor the G
    ordinary litigants, the Daridra Narayanas, to borrow an
    expression from legendary Justice Krishna Iyer, who
    considered that the higher judiciary, and the Supreme Court
    in particular, is beyond the reach of the ordinary man. An
                                                               H
106         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A           ordinary lawyer finds it difficult to get even an entry into the
            Supreme Court premises. This is the stark reality, though
            many prefer to pretend not to notice it. Therefore, the
            Petitioner with utmost respect, while literally worshipping
            the majesty of this Hon'ble Court, so too the Hon'ble
B           presiding Judge of this Hon'ble Court, in all humility, with
            an apology, if the Petitioner has erred in making this plea,
            seeks recusal by Hon'ble Shri Justice J.S. Khehar from
            hearing the above case."
c           13. As a Judge presiding over the reconstituted Bench, I
      found myself in an awkward predicament. I had no personal
      desire to participate in the hearing of these matters. I was a
      part of the Bench, because of my nomination to it, by Hon'ble
      the Chief Justice of India. My recusal from the Bench at the
o     asking of Mr. Fali S. Nariman, whom I hold in great esteem,
      did not need a second thought. It is not as if the prayer made
      by Mr. Mathews J. Nedumpara, was inconsequential.
        14. But then, this was the second occasion when
  proceedings in a matter would have been deferred, just
E because, Hon'ble the Chief Justice of India, in the first instance,
  had nominated Anil R. Dave, J. on the Bench, and thereafter,
  had substituted him by nominating me to the Bench. It was
  therefore felt, that reasons ought to be recorded, after hearing
F learned counsel, at least for the guidance of Hon'ble the Chief
  Justice of India, so that His Lordship may not make another
  nomination to the Bench, which may be similarly objected to.
  This, coupled with the submissions advanced by Mr. Mukul
  Rohatgi, Mr. Harish N. Salve and Mr. K.K. Venugopal, that
G parameters should be laid down, led to a hearing, on the issue
  ofrecusal.
           15. On the basis of the submissions advanced by the
      learned counsel, the Bench examined the prayer, whether I
      should remain on the reconstituted Bench, despite my being a
H     member of the 1+4 collegium. The Bench, unanimously
    SUPREME COURT ADVOCATES-ON-RECORD                                107
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

concluded, that there was no conflict of interest, and no other A
justifiable reason in law, for me to recuse from the hearing of
these matters. On 22.4.2015, the Bench passed the following
short order, which was pronounced by J. Chelameswar, J.:
      "A preliminary objection, whether Justice Jagdish Singh B
      Khehar should preside over this Bench, by virtue of his
      being the fourth senior most Judge of this Court, also
      happens to be a member of the collegium, was raised by
      the petitioners. Elaborate submissions were made by the
      learned counsel for the petitioners and the respondents. C
      After hearing all the learned counsel, we are of the
      unanimous opinion that we do not see any reason in law
      requiring Justice Jagdish Singh Khehar. to recuse himself
      from hearing the matter. Reasons will follow."
      16. After the order was pronounced, I disclosed to my D
colleagues on the.Bench, that I was still undecided whether I
should remain on the Bench, for I was toying with the idea of
recusal, because a prayer to that effect, had been made in the
face of the Court. · My colleagues on the Bench, would have
nothing of it. They were unequivocal in their protestation.    E
       17. Despite the factual position noticed above, I wish to
record, that it is not their persuasion or exhortation, which made
me take a final call on the matter. The decision to remain a
member of the reconstituted Bench was mine, and mine alone. F
The choice that I made, was not of the heart, but that of the
head. The choice was made by posing two questions to myself.
Firstly, whether a Judge hearing a matter should recuse, even
though the prayer for recusal is found to be unjustified and
unwarranted? Secondly, whether I would stand true to the oath G
of my office, if I recused from hearing the matters?
      18. The reason that was pointed out against me, for
seeking my recusal was, that I was a part of the 1+4 collegium.
But that, should have been a disqualification for Anil R. Dave, J.
                                                                     H
108        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A  as well. When he commenced. hearing of the matters, and till
   7.4.2015, he suffered the same alleged disqualification. Yet,
   the objection raised against me, was not raised against him.
   When confronted, Mr. Fali S. Nariman vociferously contested,
   that he had not sought the recusal of Anil R. Dave, J. He
B supported his assertion with proof. One wonders, why did he
    not seek the recusal of Anil R. Dave, J.? There is no doubt
   about the fact, that I have been a member of the 1+4 collegium,
   and it is likely that I would also shortly become a Member of
   the NJAC, if the present challenge raised by the petitioners
C was not to succeed. I would therefore remain a part of the
    selection procedure, irrespective of the process which prevails.
   That however is the position with reference to four of us (on
   the instant five-Judge Bench). Besides me, my colleagues on
   the Bench - J. Chelameswar, Madan B. Lokur and Kurian
D Joseph, JJ. would in due course be a part of the collegium (if
   the writ-petitioners before this Court were to succeed), or
    alternatively, would be a part of the NJAC (if the writ-petitioners
   were to fail). In such eventuality, the averment of conflict of
E interest, ought to have been raised not only against me, but
   also against my three colleagues. But, that was not the manner
    in which the issue has been canvassed. In my considered view,
   the prayer for my recusal is not well founded. If I were to accede
   to the prayer for my recusal, I would be initiating a wrong
F practice, and laying down a wrong precedent. A Judge may
    recuse at his own, from a case entrusted to him by the Chief
   Justice. That would be a matter of his own choosing. But recusal
   at the asking of a litigating party, unless justified, must never to
    be acceded to. For that wo·uld give the impression, of the Judge
G had been scared out of the case, just by the force of the
  ·objection.A Judge before he assumes his office, takes an oath
   to discharge his duties without fear or favour. He would breach
   his oath of office, if he accepts a prayer for recusal, unless
   justified. It is my duty to discharge my responsibility with
H absolute earnestness and sincerity. It is my duty to abide by
      SUPREME COURT ADVOCATES-ON-RECORD                             109
    ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

my oath of office, to uphold the Constitution and the laws. My A
decision to continue to be a part of the Bench, flows from the
oath which I took, at the time of my elevation to this Court.
                THE REFERENCE ORQER
      I. THE CHALLENGE:                                             B
      1. The question which has arisen for consideration, in
the present set of cases, pertains to the constitutional validity
of the Constitution (Ninety-ninth Amendment) Act, 20~4
(hereinafter referred to as, the Constitution (99thAmendment)       C
Act), as also, that of the National Judicial Appointments
Commission Act, 2014 (hereinafter referred to as, the NJAC
Act).
      2. During the course of hearing on the merits of the
controversy, which pertains to the selection and appointment D
of Judges to the higher judiciary (i.e., Chief Justices and
Judges of the High Courts and the Supreme Court), and the
transfer of Chief Justices and Judges of one High Court to.
another, it emerged that learned counsel for the respondents,
were inter alia relying on the judgment rendered in S.P. Gupta E
v. Union of lndia 1 , (hereinafter referred to as, the First Judges
case); whereas, the learned counsel for the petitioners were
inter alia relying on thejudgment in Supreme CourtAdvocates-
on-Record Association v. Union of lndia 2 (hereinafter referred
to as, the Second Judges case), and the judgment in Re: · F
Special Reference No.1 of 19983, (hereinafter referred to as,
the Third Judges case).
       3. Per se, the stance adopted by learned counsel for the
respondents in placing reliance on the judgment in the First        G
Judges case, was not open to them. This, for the simple reason,
that the judgment rendered in the First Judges case, had been
1
  1981 (Supp) sec 87
2
  (1993) 4 sec 441
' (1998) 1 sec 739
                                                                    H
110          SUPREME COURT REPORTS                    [2015] 13S.C.R.


A overruled by a larger Bench, in the Second Judges case. And
      furthermore, the exposition of law declared in the Second
      Judges case, was reaffirmed by the Third Judges case.
            4. Visualizing, that the position adopted by the
      respondents, was not legally permissible, theAttomey General,
8
      the Solicitor General, and other learned counsel representing
      the respondents, adopted the only course open to them, namely,
      to seek reconsideration of the decisions rendered by this Court
      in the Second and Third Judges cases. For the above objective
c     it was asserted, that various vital aspects of the matter, had
      not been brought to the notice of this Court, when the controversy
      raised in the Second Judges case was canvassed. It was
      contended that, had the controversy raised in the Second
      Judges case, been examined in the right perspective, this
b     Court would not have recorded the conclusions expressed
      therein, by the majority. It was submitted, thattill the respondents
      were not permitted to air their submissions, with reference to
      the unacceptability of the judgments rendered in the Second
      and Third Judges cases, it would not be in the fitness of
E     matters, for this Court to dispose of the present controversy,
      by placing reliance on the said judgments.
             5. Keeping in mind the importance and the sensitivity of
      the controversy being debated, as also, the vehemence with
F     which learned counsel representing the respondents, pressed
      for a re-examination of the judgments rendered by this Court,
      in the Second and Third Judges cases, we permitted them, to
      detail the basis of their assertions.
        6. Before embarking on the issue, namely, whether the
G judgments rendered by this Court in the Second and Third
  Judges cases, needed to be revisited, we propose first of all,
  to determine whether or not it would be justified for us, in the
  peculiar facts and circumstances of this case, keeping in view
  the technical parameters laid down by this Court, to undertake
H
    SUPREME COURT ADVOCATES-ON-RECORD                               111
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

the task. In case, we conclude negatively, and hold that the A
prayer seeking a review of the two judgments was 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, we would still examine the submi.ssions canvassed
at their behest, as in a matter of such extreme importance and B
sensitivity, it may not be proper to reject a prayer for review, on
a mere technicality. We shall then endeavour 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 Third C
Judges cases. We shall also venture to examine, whether the
respondents have been able to prima facie show, that the
earlier judgments could be seen as manifestly incorrect. For
such preliminary adjudication, we are satisfied, that the present D
bench-strength satisfies the postulated requirement,
expressed in the proviso under Article 145(3).
      7. Consequent upon the above examination, if the
judgments rendered in the Second and Third Judges cases,
are shown to prima facie require a re-look, we would then delve     E
on the merits of the main controversy, without permitting the
petitioners to place "reliance on either of the aforesaid two
judgments.
      8. In case, we do not accept the submissions advanced         F
at the hands of the petitioners on merits, with reference to the
main controversy, that too in a sense would conclude the
matter, as the earlier regime governed by the Second and Third
Judges cases, would become a historical event, of the past,
as the new scheme contemplated under the impugned                   G
Constitution (99thAmendment)Act, along with the NJACAct,
would replace the earlier dispensation. In the above eventuality,
the question of re-examination of the Second and Third Judges
cases would be only academic, and therefore uncalled for.
                                                                    H
112       SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A       9. However, if we accept the submissions advanced at
  the hands of the learned counsel for the petitioners, resulting
  in the revival of the earlier process, and simultaneously
  conclude in favour of the respondents, that the Second and
  Third Judges cases need a re-look, we would be obliged to
B refer this matter to a nine-Judge Bench (or even, to a larger
  Bench), for re-examining the judgments rendered in the Second
  and Third Judges cases.
         II. THE BACKGROUND TO THE CHALLENGE:
C        10. Judges to the Supreme Court of India and High Courts
  ·of States, are appointed under Articles 124 and 217
   respectively. Additional Judges and acting Judges for High
   Courts are appointed under Articles 224 and 224A. The
   transfer of High Court Judges and Chief Justices, of one High
D Court to another, is made under Article 222. For the controversy
   in hand, it is essential to extract the original Articles 124 and
   217, hereunder:
           "124. Establishment and constitution of Supreme Court.
 E         (1) There shall be a Supreme Court of India consisting
           of a Chief Justice of India and, until Parliament by law
                                              •
           prescribes a larger number, of not more than seven
           other Judges.
           (2) Every Judge of the Supreme Court shall be
 F         appointed by the President by warrant under his hand
           and seal after consultation with such of the Judges of
           the Supreme Court and of the High Courts in the States
           as the President may deem necessary for the purpose
           and shall hold office until he attains the age of sixty-five
 G         years:
           Provided that in the case of appointment of a Judge
           other than the Chief Justice, the Chief Justice of India
           shall always be consulted:

 H         Provided further that-
  SUPREME COURT ADVOCATES-ON-RECORD                                 113
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   (a) a Judge may, by writing under his hand addressed             A
   to the President, resign his office;
   (b) a Judge may be removed from his office in the
   manner provided in clause (4 ).
   (2A) The age of a Judge of the Supreme Court shall be
                                                                    8
   determined by such authority and in such manner as
   Parliament may by law provide.
   (3) A person shall not be qualified for appointment as a
   Judge of the Supreme Court unless he is a citizen of
   lndiaand-                                                        c
   (a) has been for at least five years a Judge of a High
   Court or of two or more such Courts in succession; or
   (b) has been for at least ten years an advocate of a
   High Court or of two or more such courts in succession;
   or
                                                                    D
   (c) is, in the opinion of the President, a distinguished
   jurist.
   Explanation /.-In this clause "High Court" means a High
   Court which exercises, or which at any time before the           E
   commencement of this Constitution exercised,
   jurisdiction in any part of the territory of India.
   Explanation 1/.-ln computing for the purpose of this
   clause the period during which a person has been an
   advocate, any period during which a person has held              F
   judicial office not inferior to that of a district Judge after
   he became an advocate shall be included.
   (4) A Judge of the Supreme Court shall not be removed
   from his office except by an order .of the President             G
   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 two-thirds of
   the members of the House present and voting has been
   presented to the President in the same session for such          Ir!
114   SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     removal on the ground of proved misbehaviour or
      incapacity.
      (5) Parliament may by law regulate the procedure for
      the presentation of an address and for the investigation
      and proof of the misbehaviour or incapacity of a Judge
B     under clause (4 ).
      (6) Every person appointed to be a Judge of the
      Supreme Court shall, before he enters upon his office,
      make and subscribe before the President, or some
c     person appointed in that behalf by him, an oath or
      affirmation according to the form set out for the purpose
      in the Third Schedule.
      (7) No person who has held office as a Judge of the
      Supreme Court shall plead or act in any court or before
D     any authority within the territory of India."
      "217. Appointment and conditions of the office of a
      Judge of a High Court.-(1) Every Judge of a High Court
      shall be appointed by the President by warrant under
      his hand and seal after consultation with the Chief Justice
 E    of India, the Governor of the State, and, in the case of
      appointment of a Judge other than the Chief Justice,
      the Chief Justice of the High Court, and shall hold office,
      in the case of an additional or acting Judge, as provided
      in article 224, and in any other case, until he attains the
 F
      age of sixty-two years:
      Provided that-
      (a) a Judge may, by writing under his hand addressed
      to the Pres)dent, resign his office;
 G    (b) a Judge may be removed from his office by the
      President in the manner provided in clause (4) of article
      124 for the removal of a Judge of the Supreme Court;
      (c) the office of a Judge shall be vacated by his being
      appointed by the President to be a Judge of the
H
  SUPREME COURT ADVOCATES-ON-RECORD                                 115
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   Supreme Court or by his being transferred by the A
   President to any other High Court within the territory of
   India.
   (2) A person shall not be qualified for appointment as a
   Judge of a High Court unless he is a citizen of India
   and-                                                             B
   (a) has for at least ten years held a judicial office in the
   territory of India; or
   (b) has for at least ten years been an advocate of a High
   Court or of two or more such courts in succession;               c
   Explanation.- For the purposes of this clause -
   (a) in computing the period during which a person has
   held judicial office in the territory of India, there shall be
   included any period, after he has held any judicial office,      D
   during which the person has been an advocate of a High
   Court or has held the office of a member of a tribunal or
   any post, under the Union or a State, requiring special
   knowledge of law;
   (aa) in computing the period during which a person has E
   been an advocate of a High Court, there shall be ·
   included any period during which the person has held
   judicial office or the office of a member of a tribunal or
   any post, under the Union or a State, requiring special
   knowledge of law after he became an advocate;              F
   (b) in computing the period during which a person has
   held judicial office in the territory of India or been an
   advocate of High Court, there shall be included any
   period before the commencement of this Constitution
   during which he has held judicial office in any area whic:h      G
   was.comprised before the fifteenth day of August, 1947,
   within India as defined by the Government of India Act,
   1935, or has been an advocate of any High Court in
   any such area, as the case may be.
                                                                    H
116         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A            (3) If any question arises as to the age of a Judge of a
             High Court, the question shall be decided by the
             President after consultation with the Chief Justice of India
             and the decision of the President shall be final."
             11. The true effect and intent of the provisions of the
B     Constitution, and all other legislative enactments made by the
      Parliament, and the State legislatures, are understood in the
      manner they are interpreted and declared by the Supreme
      Court, under Article 141. The manner in which Articles 124
      and 217 were interpreted by this Court, emerges principally
C     from three-Constitution Bench judgments of this Court, which
      are now under pointed consideration. The first judgment was
      rendered, by a seven-Judge Bench, by a majority of 4:3, in the
      First Judges case on 30.12.1981. The correctness of the First
      Judges case was doubted by a three-Judge Bench in Subhash
D     Sharma v. Union of lndia4, which opined that the majority view,
      in the First Judges case, should be considered by a larger
      Bench. The Chief Justice of India constituted a nine-Judge
      Bench, to examine two questions: Firstly, whether the opinion
      of the Chief Justice of India in regard to the appointment of
 E    Judges to the Supreme Court and to the High Courts, as well
      as, transfer of Chief Justices and Judges of High Courts, was
      entitled to primacy? And secondly, whether the fixation of the
      judge-strength in High Courts, was justiciable? By a majority
      of 7:2, a nine-Judge Bench of this Court, in the Second Judges
 F    case, overruled the judgment in the First Judges case. The
      instant judgment was rendered on 6.10.1993. Consequent
      upon doubts having arisen with the Union of India, about the
      interpretation of the Second Judges case, the President of
      India, in exercise of his power under Article 143, referred nine
 G    questions to the Supreme Court, for its opinion. A nine-Judge
      Bench answered the reference unanimously, on 28.10.1998.
           12. After the judgment of this Court in the Second Judges
      case was rendered in 1993, and the advisory opinion of this
 H    • 1991 Supp (1) sec 574
    SUPREME COURT ADVOCATES-ON-RECORD                            117
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Court was tendered to the President of India in 1998, the term A
"consultation" in Articles 124(2) and 217(1 ), relating to
appointment (as well as, transfer) of Judges of the higher
judiciary, commenced to be interpreted as vesting primacy in
the matter, with the judiciary. This according to the respondents,
had resulted in the term "consultation" being understood as B
"concurrence" (in matters governed by Articles 124, 217 and
222). The Union of India, then framed a Memorandum of
Procedure on 30.6.1999, for the appointment of Judges and
Chief Justices to the High Courts and the Supreme Court, in
consonance with the above two judgments. And appointments C
came to be made thereafter, in consonance with the
Memorandum of Procedure.
      13. As per the position expressed before us, a feeling
came to be entertained, that a Commission for selection and      o
appointment, as also for transfer, of Judges of-the higher
judiciary should be constituted, which would replace the
prevailing procedure, for appointment of Judges and Chief
Justices of the High Courts and the Supreme Court of India,
contemplated under Articles 124(f) and 217(1 ). It was felt,     E
that the proposed Commission should be broad based. In
that, the Commission should comprise of members of the
judiciary, the executive and eminent/important persons from
public life. In the above manner, it was proposed to introduce
transparency in the selection process.                           F
      14. To achieve the purported objective, Articles 124 and
217 were inter alia amended, and Articles 124A, 1248 and
124C were inserted in the Constitution, through the Constitution
(99th Amendment) Act, by following the procedure G
contemplated under Article 368(2), more particularly, the
proviso thereunder. The amendment, received the assent of
the President on 31.12.2014. It was however given effect to,
with effect from 13.4.2015 (consequent upon its notification in
the Gazette of India (Extraordinary) Part 11, Section 1). H
118        SUPREME COURT REPORTS                  [2015]13S.C.R.


/'\
  Simultaneously therewith, the Parliament enacted the NJAC
  Act, which also received the assent of the President on
  31.12.2014. The same was also brought into force, with effect
  from 13.4.2015 (by its notification in the Gazette of India
  (Extraordinary) Part 11, Section 1). The above constitutional
B amendment and the legislative enactment, are subject matter
  of challenge through a bunch of petitions, which are collectively
  being heard by us. In order to effectively understand the true
  purport of the challenge raised by the petitioners, and the
  nuances of the legal and constitutional issues involved, it is
C imperative to have a bird's eye view of the First Judges case,
  upon which reliance has been placed by the learned counsel
  for the respondents, in their attempt to seek a review of the
  Second and Third Judges cases.
D         The First Judges case -1981 Supp SCC 87.
           15. The Union Law Ministeraddressed a letter dated
   18.3.1981 to the Governor of Punjab and to Chief Ministers of
   all other States. The addressees were inter a/ia informed,
   that" ... one third of the Judges of High Court, should as far as
 E possible be from outside t~e State in which the High Court is
   situated ... ". Through the above letter, the addressees were
   requested to " ... (a) obtain from all additional Judges working
   in the High Courts ... their consent to be appointed as
 F permanent Judges in any other High Court in the country ... "
   The above noted letter required, that the concerned appointees
   " ... be required to name three High Courts, in order of
   preference, to which they would prefer to be appointed as
   permanent Judges; and (b) obtain from persons who have
 G already been or may in the future be proposed by you for initial
   appointment their consent to be appointed to any other High
   Court in the country along with a similar preference for three
   High Courts ... ". The Union Law Minister, in the above letter
   clarified, that furnishing of their consent or indication of their
 H preference, would not imply any commitment, at the behest of
    SUPREME COURT ADVOCATES-ON-RECORD                              119
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

the Government, to accommodate them in accordance with              A
their preferences. In response, quite a few additional Judges,
gave their consent to be appointed outside their parent State.
(i) Iqbal Chagla (and the other petitioners) felt, that the letter
dated 18.3.1981 was a direct attack on the "independence of B
the judiciary", and an uninhibited assault on a vital/basic feature
of the Constitution. A series of Advocates' Associations in
Bombay passed resolutions, condemning the letter dated
18.3.1981, as being subversive of "judicial independence".
They demanded the withdrawal of the letter. Since that was c
          a
not done, writ petition was filed by the above Associations in
the Bombay High Court, challenging the letter dated 18.3.1981.
An interim order was passed by the High Court, restraining
the Union Law Minister and the Government from implementing
the letter dated 18.3.1981. A Letters Patent Appeal preferred D
against the above interim order, came to be dismissed by a
Division Bench of the High Court. The above interim order,
was assailed before this Court. While the matter was pending ·
before this Court, the Union Law Minister and the Government
of India, filed a transfer petition under Article 139A. The transfer E
petition was allowed, and the writ petition filed in the Bombay
High Court, was transferred to the Supreme Court.
(ii) A second petition was filed by V.M. Tarkunde, in the High
Court of Delhi. It raised a challenge to the constitutional validity F
of the letter dated 18.3.1981. One additional ground was
raised with reference to the three additional Judges of the Delhi
High Court, namely, O.N. Vohra, S.N. Kumar and S.B. Wad,
JJ., whose term was expiring on 6.3.1981. Ratherthan being
appointed for a further term of two years, their appointment G
was extended for three months, from 7 .3.1981. These short
term appointments were assailed, as being unjustified under
Article 224, besides being subversive of the "independence
of the judiciary". This writ petition was also transferred for
hearing to the Supreme Court. So far as the circular letter H
120          SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     dated 18.3.1981 is concerned, the Supreme Court, on an oral
      prayer made by the petitioner, directed that any additional
      Judge who did not wish to respond to the circular letter may
      not do so, and that, he would neither be refused extension nor
      permanent appointment, on the ground that he had not sent a
B     reply to the letter dated 18.3.1981. Thereafter, the appointment
      of S.B. Wad, J., was continued, as an additional Jud!;Je for a
      period of one year from 7.6.1981, but O.N. Vohra and S.N.
      Kumar, JJ., were not continued beyond 7.6.1981.
C     (iii & iv). A third writ petition, was filed by J.L. Kalra and others,
      who were practicing Advocates, in the Delhi High Court. And
      a fourth writ petition was filed by S.P. Gupta, a practicing
      Advocate, of the Allahabad High Court. The third and fourth
      writ petitions were for substantially the same reliefs, as the
 D    earlier two petitions.
      (v) A fifth writ petition, was filed by Lily Thomas. She challenged.
      a transfer order dated 19.1.1981, whereby the Chief Justice
      of the High Court of Madras was transferr;ed as the Chief
      Justice of the High Court of Kerala. The above order had been
 E    passed by the President, under Article 222(1 ), after consultation
      with the Chief Justice of India. Likewise, the transfer of the
      Chief Justice of the High Court of Patna to the Madras High
      Court was challenged by asserting, that the power of transfer
 F    under Article 222(1 )was limited to Judges of the High Courts,
      and did not extend to Chief Justices. Alternatively, it was
      contended, that transfers could only be made with the consent
      of the concerned Judge, and only in public interest, and after
      full and effective consultation with the Chief Justice of India.
 G    (vi & vii) A sixth writ petition was filed by A. Rajappa, principally
      challenging the order dated 19.1.1981, whereby some Chief
      Justices had been transferred. One additional submission was
      raised in this petition, namely, that the transfer of the Chief
      Justices had been made without the prior consultation of the
 H    Governors of the concerned States, and further, that the said
    SUPREME COURT ADVOCATES-ON-RECORD                                  121
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

transfers we:ire not in public interest, and therefore, violated       A
the procedural requirements contained in Article 217(1 ). The
seventh writ petition was filed by P. Subramanian, on the same
grounds, as the petition filed by A. Rajappa.
(viii) An eighth writ petition was filed by D.N. Pandey and Thakur
                                                                   8
Ramapati Sinha, practicing Advocates, of the Patna High
Court. In this petition, Justice K.B.N. Singh, the Chief Justice
of the Patna High Court was impleaded as respondent no.3.
On a prayer made by respondent no.3, he was transposed as
petitioner no.3. As petitioner no.3, Justice K.B.N. Singh filed        c
a detailed affidavit asserting, that his transfer had been made
as a matter of punishment, and further, that it had been made
on irrelevant and on insufficient grounds, and not in public
interest. And further that, it was not preceded by a full and
effective consultation with the Chief Justice of India,            D
       It is therefore apparent, that the above mentioned
petitions related to two different sets of cases. Firstly, the issue
pertaining to the_ initial appointment of Judges, and the
extension of the term of appointment of additional Judges, on
the expiry of their original term. And secondly, the transfer of       E
Judges and Chief Justices from one High Court to another.
                                             •
      16. The opinions recorded in the First Judges case,
insofar as they are relevant to the present controversy, are being
summarized herein:                                                     F
P. N. Bhagwati. J. (as he then was):
(i) On the subject of independence of the judiciary, it was
opined, that" ... Th~ concept of independence of judiciary is a
noble concept which inspires the constitutional scheme and G
constitutes the foundatiqn on which rests the edifice of our
democratic polity. If there is one principle which runs through
the entire fabric of the entire Constitution, it is the principle of
the rule of law and under the Constitution, it is the judiciary
which is entrusted with the task of keeping every organ of the H
122       SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A State within the limits of the law and thereby making the rule of
  law meaningful and effective ... The judiciary stands between
  the citizen and the State as a bulwark against executive
  excesses and misuse or abuse of power by the executive, and
  therefore, it is absolutely essential that the judiciary must be
B free from executive pressure or influence and this has been
  secured by the Constitution makers by making elaborate
  provisions in the Constitution. " ... It was felt, that the concept
  of "independence of the judiciary" was not limited only to the
  independence from executive pressure or influence, but it was
C a much wider concept, which took within its sweep,
  independence from many other pressures and prejudices. It
  had many dimensions, namely, fearlessness of other power
  centers, economic or political, and freedom from prejudices
  acquired and nourished by the class to which the Judges
0
  belong. It was held, that the principle of "independence of the
  judiciary" had to be kept in mind, while interpreting the
  provisions of the Constitution (paragraph 27).
  (ii). On the subject of appointment of High Court Judges, it .
E was opined, that just like Supreme Court Judges, who are
  appointed under Article 124 by the President (which in effect
  and substance mewitthe Central Government), likewise, the
  power of appointment of High Court Judges under Article 217,
  was to be exercised by the Central Government. Such power,
F it was held, was exercisable only" ... after consultation with the
  Chief Justice of India, the Governor of the State, and, the Chief
  Justice of the High Court ... " It was concluded, that it was clear
  on a plain reading of the above two Articles, that the Chief
  Justice of India, the Chief Justice of the High Court, and such
G other Judges of the High Court and of the Supreme Court (as
  the Central Government may deem necessary to consult), were
  constitutional functionaries, having a consultative role, and the
  power of appointments rested solely and exclusively in the
H decision of the Central Government. It was pointed out, that
    SUPREME COURT ADVOCATES-ON-RECORD                              123
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

the above power was not an unfettered power, in the sense,         A
that the Central Government could not act arbitrarily, without
consulting the constitutional functionaries specified in the two
Articles. The Central Government was to act, only after
consulting the constitutional functionaries, and that, the
consultation had to be full and effective (paragraph 29).          B
(iii). On the question of the meaning of the term "consultation"
expressed in Article 124(2) and Article 217(1 ), it was held,
that this question was no longer res integra, as the issue stood
concluded by the decision of the Supreme Court in Union of         c
India v. Sankalchand Himatlal Sheth 5 , wherein its meaning was
determined with reference to Article 222(1 ). But, since it was
the· common ground between the parties, that the term
"consultation" used in Article 222(1) had the same meaning,
which it had in Articles 124(2) and 217(1 ), it was held that, D
" ... therefore, it follows that the President must communicate
to the Chief Justice all the material he has and the course he
proposes. The Chief Justice, in turn, must collect necessary
information through responsible channels or directly, acquaint
himself with the requisite data, deliberate on the information E
he possesses and proceed in the interests of the
administration of justice to give the President such counsel of
action as he thinks will further the public interest, especially
the cause of the justice system ... " It was further concluded,
that the above observation in the Sankalchand Himatlal Sheth F
case 5 would apply with equal force to determine the scope
and meaning of the term "consultation" within the meaning of
Articles 124(2) and 217(1). Each of the constitutional
functionaries, required to be consulted under these two Articles,
 must have for his consideration, full and identical facts bearing G
 upon appointment or non-appointment of the person
 concerned, and the opinion of each of them taken on identical
 material, must be considered by the Central Government,
• (1977) 4 sec 193
                                                                   H
124         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     before it takes a decision, whether or not to appoint the person
      concerned as a Judge. It was open to the Central Government
      to take its own decision, in regard to the appointment or non-
      appointment of a Judge to a High Court or the Supreme Court,
      after taking into account and giving due weight to, the opinions
B     expressed. It was also observed, that the only ground on which
      such a decision could be assailed was, that the action was
      based on ma/a tides or irrelevant considerations. In case of a
      difference of opinion amongst the constitutional functionaries,
      who were to be consulted, it was felt, that it was forthe Central
C     Government to decide, whose opinion should be accepted.
      The contention raised on behalf of the petitioners, that in the
      consultative process, primacy should be that of the Chief
      Justice of India, since he was the head of the Indian judiciary
D     and paterfamilias of the judicial fraternity, was rejected for the
      reason, that each of the constitutional functionaries was entitled
      to equal weightage. With reference to appointment of Judges
      of the Supreme Court, it was held, that the Chief Justice of
      India was required to be consulted, but the Central Government
E     was not bound to act in accordance with the opinion of the
      Chief Justice of India, even though, his opinion was entitled to
      great weight. It was therefore held, that the ultimate power of
      appointment, rested with the Central Government
      (paragraph 30).
F (iv). On the issue of appointment of Judges of the Supreme
  Court, it was concluded, that consultation with the Chief Justice
  of India was a mandatory requirement. But while making an
  appointment, consultation could extend to such other Judges
  of the Supreme Court, and of the High Courts, as the Central
G Government may deem necessary. In response to the
  submission, where only the Chief Justice of India was consulted
  (i.e., when consultation did not extend to other Judges of the
  Supreme Court, or of the High Courts), whether the opinion
H tendered by the Chief Justice of India should be treated as
    SUPREME COURT ADVOCATES-ON-RECORD                            125
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

binding, it was opined, that there was bound to be consultation, A
with one or more of the Judges of the Supreme Court and of
the High Courts, before exercising the power of appointment
conferred under Article 124(2). It was felt, that consultation
with the Chief Justice of India alone, with reference to the
appointment of Judges to the Supreme Court, was not a very B
satisfactory mode of appointment, because wisdom and
experience demanded, that no power should rest in a single
individual howsoever high and great he may be, and howsoever
honest and well-meaning. It was suggested, that it would be
more appropriate if a collegium would make the C
recommendations to the President, with regard to
appointments to the higher judiciary, and the recommending
authority should be more broad based. If the collegium was
comprised of persons who had knowledge of persons, who D
may be fit for appointment to the Bench, and possessed the
qualities required for such appointment, it would go a long way
towards securing the right kind of Judges, who would be truly
independent (paragraph 31 ).
(v) It was held, that the appointment of an additional Judge,     E
must be made by following the procedure postulated in Article
217(1 ). Accordingly, when the term of an additional Judge
expired, and he ceased to be a Judge, his reappointment could
only be made by once again adopting the procedure set out in
Article 217(1 ). The contention, that an additional Judge must    F
automatically and without any further consideration be
appointed as an additional Judge for a further term, or, as a
permanent Judge, was rejected (paragraphs 38 to 44).
(vi) On the question of validity of the letter of the Union Law G
Minister dated 18.3.1981, it was opined, that the same did
not violate any legal or constitutional provision. It was felt, that
the advance consent sought to be obtained through the letter
dated 18.3.1981, from additional Judges or Judges prior to
their permanent appointment, would have no meaning, so far H
126         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A as the Chief Justice of India was concerned, because
  irrespective of the fact, whether the additional Judge had given
  his consent or not, the Chief Justice of India would have to
  consider, whether it would be in public interest to allow the
  additional Judge to be appointed as a permanent Judge in
B another High Court (paragraph 54 ).
      (vii) After having determined the merits of the individual claim
      raised by S.N. Kumar, J., (who was discontinued by the Central
      Government, while he was holding the position of additional
c     Judge), it was concluded, that it would be proper if the Union
      of India could find a way, to place the letter dated 7 .5.1981
      addressed by the Chief Justice of Delhi High Court to the Law
      Minister, before the Chief Justice of India, and elicit his opinion
      with reference to that letter. And thereupon consider, whether
o     S.N. Kumar, J., should be reappointed as additional Judge. ·.
      (viii) With reference to K.B.N. Singh, CJ., it was opined that
      there was a clear abdication by the Central Government of its
      constitutional functions, and therefore, his transfer from the
 E    Patna High Court to the Madras High Court was held as
      unconstitutional and void.
      A.C. Gupta. J.:
  (i). On the subject of the "independence of the judiciary", it was
  opined, that the same did not mean freedom of Judges to act
F arbitrarily. It only meant, that Judges must be free, while
  discharging their judicial functions. In order to maintain
  "independence of the judiciary", it was felt, that Judges had to
  be protected against interference, direct or indirect. It was
G concluded, that the constitutional provisions should not be
  construed in a manner, that would tend to undermine the
  concept of "independence of the judiciary" (paragraph 119).
   (ii) On the questio.n, whether, on the expiry of the term of office
   of an additional Judge of a High Court, it was permissible to
 H drop him by not giving him another term, though the volume of
    SUPREME COURT ADVOCATES-ON-RECORD                                 127
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

work, pending in the High Court, required the services of             A
another Judge? It was opined, that the tenure of an additional
Judge, was only dependent on the arrears of work, or the
temporary increase in the business of a High Court. And since
an additional Judge was not on probation, his performance
could not be considerer.I to determine, whether he was fit for        B
appointment as a permanent Judge. Therefore, it was
concluded, that if the volume of work pending in the High Court
justified the appointment of an additional Judge, there could
be no reason, why the concerned additional Judge should not
be appointed for another term. The submission that the two            C
years' period mentioned in Article 224, depicted the upper limit
of the tenure, and that the President was competent to appoint
an additional Judge, for any shorter period, was rejected. Since
the fitness of a Judge, had been considered at the time of his
initial appointment, therefore, while determining whether he          D.
should be reappointed, under Article 217(1 ), it was opined,
that the scope of inquiry was limited, to whether the volume of
work pending in the High Court, necessitated his continuation.
(iii). Referring to the opinion expressed by the Chief Justice of     E
the High Court, in connection with S.N. Kumar, J., it was opined,
that when allegations were levelled against a Judge with
respect to the discharge of his duties, the only reasonable
course open, which woul.d not undermine the "independence
of the judiciary" was,. to proceed with an inquiry into the           F
allegations and remove the Judge, if the allegations were found
to be true (in accordance with the procedure laid down under
Article 124(4) and (5) read with Article 218). It was felt that,
dropping an additional Judge, at the end of his initial term of
office, on the ground that there were allegations against him,        G
without properly ascertaining the truth of the allegations, was
destructive of the "independence of the judiciary" (paragraph 123).
(iv). With reference to the non-continuation of S.N. Kumar, J.,
an additional Judge of the Delhi High Court, it was observed,         H
128         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     that the letter of the Chief Justice of the Delhi High Court dated
      7 .5.1981, addressed to the Law Minister, was not disclosed
      to the Chief Justice of India. As the relevant material was
      withheld from the Chief Justice of India, it was concluded, that
      there was no full and effective "consultation", as contemplated
B     by Article 217(1 ). And therefore, the decision not to extend
      the term of office of S.N. Kumar, J., as additional Judge of the
      Delhi High Court, though the volume of pending work in the
      High Court required the services of an additional Judge, was
      invalid.
c
  (v). On the question, whether the opinion of the Chief Justice
  of India would have primacy, in case of a difference of opinion
  between the Chief Justice of a High Court and the Chief Justice
  of India, the view expressed was, that the President should
D accept the opinion of the Chief Justice of India, unless such
  opinion suffered from any obvious infirmity. And that, the
  President could not act as an umpire, and choose between
  the two opinions (paragraph 134 ).
      (vi). Referring to the judgment in the Sankalchand Himatlal
 E    Sheth case 5 , wherein it was concluded, that mass transfers
      were not contemplated under Article 222(1 ), it was opined,
      that the President could transfer a Judge from one High Court
      to another, only after consultation with the Chief Justice of India.
 F    And that, the Chief Justice of India must consider in each case,
      whether the proposed transferwas in public interest (paragraph
      138).
   (vii). With referencetothetransferofK.B.N. Singh, CJ., from
   the Patna High Court to the Madras High Court, it was opined,
 G that even if the above transfer had been made for
   administrative reasons, and in public interest, it was likely to
   cause some injury to the transferee, and it would only be fair to
   consider the possibility of transferring him, where he would
   face least difficulties, namely, where the language difficulty
 H would not be acute.
    SUPREME COURT ADVOCATES-ON-RECORD                               129
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

S. Murtaza FazalAli. J.:                                            A
(i) On the issue, whether the transfer of a High Court Judge
under Article 222 required the consent of the Judge proposed
to be transferred, it was opined, that a non-consensual transfer,
would not amount to punishment, nor would it involve any
                                                                    8
stigma. It was accordingly concluded, that a transfer made after
complying with Article 222, would not mar or erode the
"independence of the judiciary" (paragraph 345).
(ii). With reference to appointing Chief Justices of High Courts
from outside the State, and for having 1/3rd Judges in every C
High Court from outside the State, it was expressed, that
Article 222 conferred an express power with the President, to
transfer a Judge (which includes, Chief Justice) from one State
to another. In determining as to how this power had to be
exercised, it was felt, th~t the President undoubtedly D
possessed an implied power to lay down the norms, the
principles, the conditions and the circumstances, under which
the said power was to be exercised. A declaration by the
President regarding the nature and terms of the policy (which
virtually meant a declaration by the Council of Ministers) was E
quite sufficient, and absolutely legal and constitutional
(paragraph 410).
(iii). On the subject of validity of the letter of the Union Law
Minister dated 18. 3.1981, it was held, that the same did not in    F
any way tarnish the image of Judges, or marthe "independence
of the judiciary" (paragraph 433).
(iv). On the question of appointment of additional Judges, and
the interpretation of Article 217, the opinion expressed by P.N.    G
Bhagwati and E.S. Venkataramiah, JJ. were adopted
(paragraph 434 ).
(v). Insofar as the interpretation of Article 224 was concerned,
the opinion of P.N. Bhagwati and D.A. Desai, JJ. were
accepted, (paragraph 537). And accordingly, their conclusion        H
130         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     about the continuation of S.N. Kumar, J., as an additional
      Judge, after the expiry of his term of appointment, was
      endorsed.
      (vi). On analyzing the decision rendered in the Sankalchand
      Himatlal Sheth case 5 , inter alia, the following necessary
8
      concomitants ofan effective consultation between the President
      and the Chief Justice of India were drawn. That the consultation,
      must be full and effective, and must precede the actual transfer
      of the Judge. If consultation with the Chief Justice of India had
c     not taken place, before transferring a Judge, it was held, that
      the transfer would be unconstitutional. All relevant data and
      necessary facts, must be provided to the Chief Justice of India,
      so that, he could arrive at a proper conclusion. Only afterthe
      above process was fully complied with, the consultation would
o     be considered full and effective.-H was felt, thatthe Chief Justice
      of India owed a duty, both to the President and to the Judge
      propos.ed to be transferred, to consider every relevant fact,
      before tendering his opinion to the President. Before giving
      his opinion the Chief Justice of India, could informally ascertain
E     from the Judge, if there was any personal difficulty,. or any
      humanitarian ground, on which his transfer should not be made.
      And only after having done so, the Chief Justice of India, could
      forward his opinion to the President. Applying the above facets
      of the consultation process, with respect to the validity of the
 F    order dated 19.1.1981, by which K.B.N. Singh, CJ., was
      transferred, it was held, that the consultation process
      contemplated under Article 222, had been breached, rendering
      the order passed by the President invalid (paragraph 589).
G V.D. Tulzapurkar. J.:
      (i). Insofar as the question of "independence of the judiciary"
      is concerned, it was asserted that all the Judges, who had
      expressed their opinions in the matter, had emphasized, that
      the framers of the Constitution had taken the utmost pains, to
H
    SUPREME COURT ADVOCATES-ON-RECORD                                131
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

secure the "independence of the Judges" of the higher judiciary.     A
To support the above contention, several provisions of the
Constitution were referred to. It was also pointed out, that the
Attorn'ey General representing the Union of India, had not
dispute the above proposition (paragraph 639).
                                                                     B
(ii). With reference to additional Judges recruited under Article
224(1 ), from the fraternity of practicing Advocates, it was
pointed out, that an undertaking was taken from them at the
time of their initial appointment, that if and when a permanent
judgeship of that Court was offered to them, they would not          c
decline the same. And additionally, the Chief Justice of the
Bombay High Court would require them to furnish a further
undertaking, that if they decline to accept such permanent
judgeship (though offered), or if they resigned from the office
of the additional judgeship, they would not practice before the      D
Bombay High Court, or any court or tribunal subordinate to it.
Based on the aforesaid undertakings, the contention advanced
was, that a legitimate expectancy, and an enforceable right to
continue in office, came to be conferred on the additional
Judges recruited from the Bar. It was felt, that it was impossible   E
to construe Article 224(1 ), as conferring upon the appointing
 authority, any absolute power or discretion in the matter of
 appointment of additional Judges to a High Court (paragraphs
 622 and 624 ).
                                                                     F
(iii)All submissions made on behalf of the respondents, that
granting extension to an additional Judge, or making him a
permanent Judge was akin to a fresh appointment, were
rejected. It was concluded, that extension to an additional
Judge, or making him permanent, did not require re-                  G
determination of his suitability under Article 217(1) (paragraph
628).
(iv). While dealing with the question of continuation of an
additional Judge, in situations where there were facts
                                                                     H
132         SUPREME COURT REPORTS                   [2015] 13S.C.R.


A     disclosing suspected misbehaviour and/or reported lack of
      integrity, the view expressed was, that while considering the
      question of continuation of a sitting additional Judge, on the
      expiry of his initial term, the test of suitability contemplated
      within the consultative process under Article 217(1) should not
B     be evoked - at least till a proper mechanism, having a legal
      sanction, was provided for holding an inquiry, against the Judge
      concerned, with reference to any suspected misbehavior and/
      or lack of integrity (paragraph 628).
C     (v) On the scope of consideration, for continuation as a sitting
      additional Judge (on the expiry of a Judge's initial term), it
      was opined, that the consultative process should be confined
      only to see, whether the preconditions mentioned in Article
      224( 1) existed or not, or whether, pendency of work justified
 o    continuation or not. It was held, that the test of suitability
      contemplated within the consultative process under Article
      217(1 ), could not and should not, be resorted to (paragraph 629).
   (vi). On the question of primacy of the Chief Justice of India,
   with reference to Article 217(1 ), the view expressed was, that
 E the scheme envisaged therein, by implication and intent, clearly
   gave primacy to the advice tendered by the Chief Justice of
   India. It was however sought to be clarified, that giving primacy
   to the advice of the Chief Justice of India, in the matter of
 F appointment of Judges of the High Court, should not be
   construed as a power to veto any proposal. And ~hat, if the
   advice of the Chief Justice of India, had proceeded on
   extraneous or non germane considerations, the same would
   be subject to judicial review, just as the President's final
 G decision, if he were to disregard the advice of the Chief Justice
   of India, but for justified and cogent reasons. Interpreting Article
   217(1) in the above manner, it was felt, would go a long way in
   preserving the "independence of the judiciary" (paragraph 632).
      (vii) With regard to the scope of 'consultation', contemplated
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                  133
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

under Article 222( 1 ), the conclusion(s) drawn by the majority        A
view, in the Sankalchand Himatlal Sheth case 5 , were endorsed.
(viii). Insofar as, the issue of taking the consent of the concerned
Judge, prior to his transfer is concerned, based on the decision
rendered in the Sankalchand Himatlal Sheth case 5 , it was felt,
                                                                       8
that transfers could be made without obtaining the consent of
the concerned .Judge. And accordingly it was held, that non-
consensual transfers, were within the purview of Article 222(1)
(paragraphs 645 and 646).
(ix) With reference to the letter written by the Union Law Minister C
dated 18.3.1981, it was asserted, that even a policy transfer,
without fixing the requisite mechanism or modality of procedure,
would not ensure complete insulation against executive
interference. Conversely it was felt, that a selective transfer in
an appropriate case, for strictly objective reasons, and in public D
interest, could be non-punitive. It was therefore concluded,
that each case of transfer, whether based on policy, or for
individual reasons, would have to be judged on the facts and
circumstances of its own, for deciding, whether it was punitive
(paragraph 649).                                                    E
(x) It was concluded, that by requiring a sitting additional Judge,
to give his consent for being appointed to another High Court,
virtually amounted to seeking his consent for his transfer from
his own High Court to another High Court, falling within the F
ambit of Article 222(1 ). Referring to the judgment rendered in
the Sankalchand Himatlal Sheth case 5 , it was felt, that the
circular letter dated 18.3.1981 was an attempt to circumvent
the safeguards and the stringent conditions expressed in the
above judgment (paragraph 652). And further, that the circular G
letter clearly exuded an odour of executive dominance and
arrogance, intended to have coercive effects on the minds of
sitting additional Judges, by implying a threat to them, that if
they did not furnish their consent to be shifted elsewhere, they
would neither be continued nor made permanent. The above H
134         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     letter, was held to be amounting to, executive interference with
      the "independence of the judiciary", and thus illegal,
      unconstitutional and void. Any consent obtained thereunder,
      was also held to be void (paragraph 654).
      (xi) It was also concluded that, the advice of the Chief Justice
8
      of India. would be robbed of its real efficacy, in the face of
      such pre-obtained consent, and it would have to be regarded
      as having been issued malafide and for a collateral purpose,
      namely, to bypass Article 222(1) and to confront the Chief
c     Justice of India, with a fait accompli, and as such, the same
      was liable to be declared as illegal and unconstitutional
      (paragraph 655) ..
  (xii) The above circular letter dated 18.3.1981, was also held
  to be violative of Article 14, since invidious discrimination was
D writ large on the face of the circular letter. For this additional
  reason, the letter of the Union Law Minister dated 18.3.1981,
  it was felt, was liable to be struck down (paragraphs 659 and
  660).
E (xiii) On the subject of non-continuation of S.N. Kumar, J., it
  was held, that it was abundantly clear from the correspondence
  and notings, that further details and concrete facts and
  materials relating to his integrity, though specifically asked for
  by the Chief Justice of India, were not furnished, and the letter
F dated 7.5.1981, which contained such details and concrete
  facts and materials, were kept away from him, leading to the
  inference, that facts which were taken into consideration by
  the Union Law Minister and the Chief Justice of Delhi High
  Court (which provided the basis to the appointing authority,
G not to extend the appointment of S.N. Kumar, J.), were not
  placed before the Chief Justice of India, and therefore, there
  was neither full nor effective consultation, between the
  President and the Chief Justice of India, as required by Article.
  217(1 ). It was accordingly concluded, that the decision against
H
    SUPREME COURT ADVOCATES-ON-RECORD                                 135
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

S.N. Kumar, J., stood vitiated by legal ma/a tides, and as such,      A
was liable to be held void and non est, and his case had to be
sent back to the President, for reconsideration and passing
appropriate orders, after the requisite consultation was
undertaken afresh (paragraphs 664 and 666 to 668).
                                                                      B
(xiv) With respect to the validity of the transfer of K.B.N. Singh,
CJ., it was felt, that in the absence of any connivance or
complicity, since no unfair play was involved in the procedure
followed by the Chief Justice of India, it was liable to be
concluded, that the impugned transfer had been made in public         c
interest. and not by way of punishment. The above transfer
was accordingly held to be valid (paragraph 680).
D.A. Desai. J.:
(i) After noticing, that the President under Article 74, acts on D
the advice of the Council of Ministers, and that, while acting
under Article 217(3), the President performs functions of grave
importance. It was felt, that it could not be said that while
exercising the power of appointment of Judges to the higher
judiciary, the President was performing either judicial or quasi E
judicial functions. The function of appointment of Judges was
declared as an executive function, and as such, it was held,
that Article 74 would come into operation. And therefore
concluded, that the President would have to act, on the advice
of the Council of Ministers, ·in the matter of appointment of F
Judges under Article 217 (paragraph 715). And therefore it
came to be held, that the ultimate power of appointment under
Article 217, "unquestionably" rested with the President.
(ii) It was pointed out, that before exercising the power of G
appointment of a Judge (other than the Chief Justice of a High
Court), the President was under a constitutional obligation, to
consult the three constitutional functionaries, mentioned in
Article 217 (paragraphs 718 and 719). And that the
aforementioned three constitutional functionaries were at par H
136         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     with one another. They were coordinate authorities, without
      any relative l:iierarchy, and as such, the opinion of the Chief
      Justice of India could not be given primacy on the issue of
      appointment of Judges of High Courts (paragraphs 724, 726
      and 728).
B
      (iii) It was also concluded, that on the expiry of the original
      term of appointment of an additional Judge under Article 224,
      the continuation of the concerned Judge, would envisage the
      re-adoption of the procedure contained in Article 217
c     (paragraphs 736 and 745).
  (iv) It was felt, that there was no gainsaying, that a practice
  which had been followed for over 25 years, namely, that an
  additional Judge was always considered for a fresh tenure, if
  there was no permanent vacancy, and if there was such a
D vacancy, he was considered for appointment as a permanent
  Judge. It was held, that the contention of the Attorney General,
  that such additional Judge had no priority, preference,
  weightage or right to be considered, and that, he was on par
  with any other person, who could be brought from the market,
E would amount to disregarding the constitutional scheme, and
  must be rejected (paragraph 759). It was held, that when a
  Judge was appointed for a term of two years, as an additional
  Judge, it was sufficient to contemplate, that his appointment
F was not as a permanent Judge. And therefore, if a permanent
  vacancy arose, the additional Judge could not enforce his
  appointment against the permanent vacancy (paragraph 762).
   (v) It was also concluded, that the term of an additional Judge
   could not be extended for three months or six months, since
 G such short term appointments, were wholly inconsistent and
   contrary to the clear intendment of Article 224, and also,
   unbecoming of the dignity of a High Court Judge (paragraphs
   763 and 764 ).
 H    (vi) On the subject of extension of the term of an additional
        SUPREME COURT ADVOCATES-ON-RECORD .                          137
      ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

    Judge, it was felt, that it was not open to the constitutional A
    functionaries, to sit tight over a proposal, without expressing
    their opinion on the merits of the proposal, and by sheer
    inaction, to kill a proposal. It was accordingly opined, that when
    the term of an additional Judge was about to expire, it was
    obligatory on the Chief Justice of the High Court, to initiate the B
    proposal for completing the process of consultation, before
    the period of initial appointment expired (paragraph 772).
    (vii) With reference to the non-extension of the tenure of S.N.
    Kumar, J., it was felt, that when two high constitutional c
    functionaries, namely, the Chief Justice of the Delhi High Court
    and the Chief Justice of India, had met with a specific reference
    to his doubtful integrity, the act of not showing the letter dated
    7.5.1981 to the Chief Justice of India, would not detract from
    the fullness of the consultation, as required by Article 217. D
    Accordingly, it was held, that there was a full and effective
    consultation, on all relevant points, including those set out in
    the letter dated 7 .5.1981. And the claim of the concerned Judge
    for continuation, was liable to be rejected. It was however
    suggested, that the Government of India could even now, show E
    the letter dated 7.5.1981 to the Chief Justice of India, and
    request him to give his comments. After receiving his
    comments, the Government of India could decide afresh,
    whether S.N. Kumar, J., should be re-appointed as an
    additional Judge of the Delhi High Court. It was however F
    clarified, that the proposed reconsideration, should not be
    treated as a direction, but a mere suggestion.
    (viii) On the question, whether the consent of the concerned
    Judge should be obtained prior to his transfer under Article G
    222(1 ), it was concluded, that the requirement of seeking a
    prior consent, as a prerequisite for exercising the power of
•   transfer under Article 222(1 ), deserved to be rejected
    (paragraph 813 ). It was however observed, that the above
    power of transfer under Article 222(1) could not be exercised H
138         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     in the absence of public interest, merely on the basis of whim,
      caprice or fancy of the executive, or its desire to bend a Judge
      to its own way of thinking. Three safeguards, namely, full and
      effective consultation with the Chief Justice of India, the
      exercise of power only aimed at public interest, and judicial
B     review - in case the power was exercised contrary to the
      mandate of law, were suggested to insulate the "independence
      of the judiciary", against an attempt by the executive to control
      it (paragraphs 813 to 815).
c (ix) It was also concluded, that the transfer of an individual
      Judge, for something improper in his behavior, or conduct,
      would certainly cast a slur or attach a stigma, and would leave
      an indelible mark on his character. Even the High Court to
      which he was transferred would shun him, and the consumers
o     of justice would have little or no faith in his judicial integrity.
      Accordingly it was concluded, that a transfer on account of
      any complaint or grievance against a Judge, referable to his
      conduct or behaviour, was impermissible under Article 222(1 ).
      (x) On the question of transfer of K.B.N. Singh, CJ., it was felt,
E     that his order of transfer was vitiated for want of effective
      consultation, and his selective transfer would cast a slur or
      stigma on him. ·it was felt, that the transfer did not appear to
      be in public interest. The order of transfer dated 20.12.1980
 F    was accordingly, considered to be vitiated, and as such, was
      declared void.
      R.S. Pathak, J. las he then 'f'as):
  (i} With reference to the issue of "independence of the judiciary",
  it was observed, that while the administration of justice drew
G its legal sanction from the Constitution, its credibility rested in
  the faith of the people. Indispensable to such faith, was the
  "independence of the judiciary". An independent and impartial
  judiciary, it was felt, gives character and content to the
H constitutional milieu (paragraph 874).
    SUPREME COURT ADVOCATES-ON-RECORD                               139
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

(ii) On the subject of appointment of Judges to High Courts, it A
was essential for the President, to consult the Governor of the
State, the Chief Justice of India and the Chief Justice of the
concerned High Court. It was pointed out, that three distinct
constitutional functionaries were involved in the consultative
process, and each had a distinct role to play (paragraph 887). B
In a case where the Chief Justice of the High Court and the
Chief Justice of India, were agreed on a recommendation, it
was within reason to hold. that the President would ordinarily
accept the recommendation, unless there were strong and
cogent reasons, for not doing so (paragraph 889). It was C
however pointed out, that the President was not always obliged
to agree, with a recommendation, wherein the Chief Justice
of the High Court and the Chief Justice of India, had concurred.
In this behalf, it was observed, that even though, during the D
Constituent Assembly debates, a proposal was made, that the
appointment of a Judge should require the "concurrence" of
the Chief Justice of India, and the above proposal was
endorsed by the Law Commission of India, yet the proposal
had fallen through, and as such, the Constitution as it presently E
exists, contemplated "consultation" and not "concurrence"
(paragraph 890).
(iii) On the question, as to whether the Chief Justice of India
had primacy, over the recommendation made by the Chief
Justice of the High Court, it was felt, that the Chief Justice of   F
India did not sit in appellate judgment, over the advice tendered
by the Chief Justice of the High Court. It was pointed out, that
the advice tendered by the Chief Justice of India, emerged
after taking into account, not only the primary material before
him, but also, the assessment made by the Chief Justice of          G
the High Court. And therefore, when he rendered his advice,
the assessment of the Chief Justice of the High Court, must
be deemed to have been considered by him. It was pointed
out, that from the constitutional scheme, it appeared, that in
                                                                    H
140         SUPREME COURT REPORTS                      (2015] 13 S.C.R.


A     matters concerning the High Courts, there was a dose
      consultative relationship, between the President and the Chief
      Justice of India. In that capacity, the Chief Justice of India
      functioned, as a constitutional check, on the exercise of
      arbitrary power, and was the protector of the "independence
B     of the judiciary" (paragraph.891 ).
      (iv) On the subject of appointment of Judges to the High Courts,
      it was concluded, that the appointment of an additional Judge,
      like the appointment of a permanent Judge, must be made in
c     the manner prescribed in Article 217(1 ). Accordingly, it was
      felt, that there was no reason to suspect, that a person found
      fit for appointment as an addition~! Judge, and had already
      gained proficiency and experience, would not be appointed
      as a Judge for a further period, in order that the work may be
o     disposed of (paragraph 893).
      (v) It was also opined, that the judiciary by judicial verdict, could
      not decide, how many permanent Judges were required for a
      High Court. And if a Court was not competent to do that, it
      could not issue a direction to the Government, that additional
E     Judges should be appointed as permanent Judges (paragraph
      895). Accordingly it was felt, that there was no doubt whatever,
      that the provision of Article 217(1) would come into play, when
      an additional Judge was to be considered for further
 F    appointment as an additional Judge, or was to be considered
      for appointment as a permanent Judge (paragraph 897).
   (vi) With reference to the non-continuation of S.N. Kumar, J., it
   was pointed out, that the allegations contained in the letter
   dated 7 .5.1981 strongly influenced the decision of the
 G Government. Since the aforesaid letter was not brought to the
   notice of the Chief Justice of India, it was inevitable to conclude,
   that the process of consultation with the Chief Justice of India
   was not full and effective, and the withholding of important and
   relevant material from the Chief Justice of India, vitiated the
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                141
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

process. It was accordingly held, that the non-continuation of A
theterm of S.N. Kumar, J., was in violation of the mandatory
constitutional requirements contained in Article 217 (1 ). It was
felt, that the issue pertaining to the continuation of S.N. Kumar,
J., needed to be reconsidered, and a decision needed to be
taken, only after full and effective consultation (paragraph 904). B
(vii) On the issue of transfer of Judges under Article 222(1 ), it
was concluded, that the consent of the concerned Judge was
not one of the mandated requirements (paragraph 913). It
was pointed out, that the transfer of a Judge, could be made         c
only in public interest, and that no Judge could be transferred,
on the ground of misbehaviour or incapacity. The question of
invoking Article 222(1 ), for purposes of punishing a Judge,
was clearly ruled out (paragraphs 917 and 918). It was clarified,
that the Judge proposed to be transferred, did not have a right      o
of hearing. And that, the scope and degree of inquiry by the
Chief Justice of India, fell within his exclusive discretion. All
that was necessary was, that the Judge should know why his
transfer was proposed, so that he would be able to acquaint
the Chief Justice of India, why he should not be so transferred.     E
It was further clarified, that the process of consultation
envisaged under Article 222(1) required, that all the material
in possession of the President must be placed before the Chief
Justice of India (paragraph 919).
                                                                     F
(viii) I! was held that, it was open to the Judge, who was
subjected to transfer, to seek judicial review, by contesting his
transfer on the ground that it violated Article 222( 1) (paragraph
920).
(ix) It was also felt, that the power to transfer a Judge from one G
High Court to another, could constitute a threat, to the sense of
independence and impartiality of the Judge, and accordingly,
it was held, thatthe said power should be exercised sparingly,
and only for very strong reasons (paragraph 921 ).
                                                                     H
142          SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     (x) On the validity of the transfer of K.B.N. Singh, CJ., it was
      concluded, that the considerations on which the transfer had
      been made, could be regarded as falling within the expression
      "public interest", and therefore, the order of transfer did not
      violate Article 222(1 ).
B
      (xi) Insofar as the validity of the letter of the Union Law Minister
      dated 18.3.1981 is concerned, it was observed, that neither
      the proposal nor the consent given thereto, had any legal status.
      In the above view, it was held, that the circular letter could not
C     be acted upon, and any consent given pursuant thereto, was
      not binding.
      E.S. Venkataramiah. J. (as he then was):
      (i) With reference to the "independence of the judiciary", it was
      opined, that the same was one of the central values on which
0
      the Constitution was based. It was pointed out, that in all
      countries, where the rule of law prevailed, and the power to
      adjudicate upon disputes between a man and a man, and a
      man and the State, and a State and another State, and a State
E     and the Centre, was entrusted to a judicial body, it was natural
      that such body should be assigned a status, free from capricious
      or whimsical interference from outside; so that it could act,
      without fear and in consonance with judicial conscience
      (paragraph 1068).
 F(ii) Referring to Article 217(1) it was asserted, that each of the
  three functionaries mentioned therein, had to be consulted
  before a Judge of a High Court could be appointed. It was
  pointed out, that each of the consultees, had a distinct and
G separate role to play. Given the distinct roles assigned to them,
  which may to some extent be overlapping, it could not be said,
  that the Chief Justice of India occupied a position of primacy,
  amongst the three consultees (paragraph 1019).
      (iii) The power of appointment of a Judge of a High Court was
H     considered to be an executive power (paragraph 1023).
    SUPREME COURT ADVOCATES-ON-RECORD                             143
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Accordingly, while making an appointment of a High Court A
Judge, the President was bound to act, on the advice of his
Council of Ministers, and at the same time, giving due regard
to the opinions expressed by those who were required to be
consulted under Article 217(1 ). Despite the above, it was felt,·
that there was no scope for holding, that either the Council of B
Ministers could not advise the President, or the opinion of the
Chief Justice of India was binding on the President. Although,
it was felt, that such opinion should be given due respect and
regard (paragraph 1032). It was held, that the above method
was intrinsic in the matter of appointment of Judges, as in that C
way, Judges may be called people's Judges. If the
appointments of Judges were to be made on the basis of the
recommendations of Judges only, then they will be Judges'
Judges, and such appointment~ may not fit into the scheme of D
popular democracy (paragraph 1042).
(iv) It was held, that the Constitution did not prescribe different
modes of appointment for permanent Judges, additional
Judges, or acting Judges. All of them were required to be
appointed by the same process, namely, in the manner E
contemplated under Article 217(1) (paragraph 1061). The
appointment of almost all High Court Judges initially as
additional Judges under Article 224(1 ), and later on as
permanent Judges under Article 217 (1), was not conducive to
the independence of judiciary (paragraph 1067). It was held, F
that the Constitution did not confer any right upon an additional
Judge, to claim as of right, that he should be appointed again,
either as a permanent Judge, or as an additional Judge.
Accordingly, it was held, that there was no such enforceable
right (paragraph 1074 ).                                            G
(v) Despite the above, it was observed, that in the absence of
cogent reasons for not appointing an additional Judge, the
appointment of somebody else in his place, would be an
unreasonable and a perverse act, which would entitle the           H
144         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     additional Judge, to move a Court for appropriate relief, in the
      peculiar circumstances (paragraph 1086). It was held, that
      having regard to the high office, to which the appointment was
      made, and the association of high dignitaries, who had to be
      consulted before any such appointment was made, the
B     application of principles of natural justice, as of right, was ruled
      out (paragraph 1087).
  (vi) With reference to Article 222, it was opined, that the consent
  of the Judge being transferred, was not a prerequisite before
c passing an order of transfer (paragraphs 1097 and 1099). It
  was held, that the transfer of a Judge of a High Court to another
  High Court, could not be construed as a fresh appointment, in
  the High Court to which the Judge was transferred. An order
  of transfer made under Article 222, it was held, was liable to
o be struck down by a Court, if"it could be shown, that it had
  been made for an extraneous reason, i.e., on a ground falling
  outside the scope of Article 222. Under Article 222, a Judge
  could be transferred, when the transfer served public interest.
  It was held, that the President had·no power to transfer a High
E Court Judge, for reasons not bearing on public interest, or
  arising out of whim, caprice or fancy of the executive, or
  because of the executive desire to bend a Judge to its own
  way of thinking (paragraphs 1097, 1099 and 1132).
 F    (vii) It was held, that Article 222 cannot be resorted to on the
      ground of alleged misbehaviour or incapacity of a Judge
      (paragraph 1139).
   (viii) Based on the opinion expressed by several expert bodies,
   it was opined, that any transfer of a Judge of a High Court
 G under Article 222, in order to implement the policy of appointing
   Chief Justice of every High Court from outside the concerned
   State, and of having at least 1/3rd of Judges of every High
   Court from outside the State, would not be unconstitutional
   (paragraph 1164 ).
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                145
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

(ix) The letter of the Union Minister of Law dated 18.3.1981, A
was found to be valid. All contentions raised against the validity
thereof were rejected (paragraph 1239).
(x) The decision of the President not to issue a fresh order of
appointment to S.N. Kumar, J., on the expiry of his term as an       B
additional Judge of the Delhi High Court, was held to be justified
(paragraph 1128 ).
(xi) The transfer of K.B.N. Singh, CJ., was held to have been
made strictly in consonance with the procedure indicated in
the Sankalchand Himatlal Sheth case 5 • It was accordingly C
concluded, that there was no ground to hold, that the above
transfer was not considered by the Chief Justice of India, in a
fair and reasonable way. On the facts and circumstances of
the case, it was concluded that it was not possible to hold that
the above transfer was either illegal or void (paragraphs 1252 D
and 1257).
The Second Judges Case· (1993)'4 SCC 441:
      17. For the purpose of adjudication of the present issue,
namely, whether the judgment rendered by this Court in the           E
Second Judges case needs to be re-examined, it is not
necessary to delineate the views expressed by the individual
Judges, as the conclusions drawn by them are per se not
subject matter of challenge. The limited challenge being, that
vital aspects of the matter, which needed to have been               F
considered were not canvassed, and therefore, could not be
taken into consideration in the process of decision making. In
the above perspective, we consider it just and proper to extract
hereunder, only the conclusions drawn by the majority view:
                                                                     G
       "(1) The process of appointment of Judges to the
       Supreme Court and the High Courts is an integrated
       'participatory consultative process' forselecting the best
       and most suitable persons available for appointment;
       and all the constitutional functionaries must perform this    H
146       SUPREME COURT REPORTS                    [2015] 13 S.C.R.


      A   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 appoint_ment in the case
          of the Supreme Court must be by the Chief Justice of
      B   India, and in the case of a .High Court by the Chief
          Justice ofthat 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
      c   Court and the High Courts as well as forthe 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
      E   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
      F
          Chief Justice of India may not be made. However, if the
          stated reasons are not accept~d 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
      G   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 ~eniormost Judge of the Supreme Court
          considered fit to hold the office.
      H
   SUPREME COURT ADVOCATES-ON-RECORD                                147
 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR. J.]

     (7) The opinion of the Chief Justice of India has not mere     A
     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 of any subsequent transfer
     from one High Court to another.                                B
     (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      c
     indicated must be followed. However, the same do not
     confer any justiciable right in any one.
     ( 11) Only limited judicial review on the grounds specified
     earlier is available in matters of appointments and
     transfers.                                                     D
     (12) The initial appointment of 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          E
     justiciable, but only to the extent and in the manner
     indicated.
     (14) The majority opinion in S.P. Gupta v. Union of India
     (1982) 2 SCR 365: AIR 1982 SC 149, in so far as it
     takes the contrary view relating to primacy of the role of F
     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 G .
     scheme must now be construed, understood and
     implemented in the manner indicated herein by us."
The Third Judges case· (1998) 7 SCC 739:
    18. For exactly the same reasons as have been noticed           H
148         SUPREME COURT REPORTS                      [2015] 13 S.C.R.



A     with reference to the Second Judges case, it is"not necessary
      to dwell into the unanimous view expressed in the Third Judges
      case. The concession of the ~ttorney General for India, as'
      was expressly recorded in paragraph 11 of the Third Judges
      case, needs to be extracted to highlight the fact, that the then
B     Attorney General had conceded, that the opinion recorded by
      the majority in the Second Judges case, had been accepted
      by the Union of India and, as such, would be binding on it.
      Paragraph 11 is accordingly reproduced hereunder:
             "11. We record at the outset the statements of the Attorney
c            General that (1) the Union of India is not seeking a review
             or reconsideration of the judgment in the Second Judges
             case (1993) 4 sec 441 and that (2) the Union of India shall
             accept and treat as binding the answers of this Court to
D            the questions set out in the Reference."
              19. It is likewise necessary to extract herein, only the
      final summary of conclusions expressed in the Third Judges
      case, which are placed below:
             "1. The expression "consultation with the Chief justice of
 E           India" in Articles 217(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 Indian does not constitute·
             "consultation" within the meaning of the said Articles.
 F
             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
 G           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
 H           to appoint a Judge of the Supreme Court and to transfer a
  SUPREME COURT ADVOCATES-ON-RECORD                                 149
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   Chief Justice or puisne Judge of a High Court in consultation    A
   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.                                                   B
   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-         C
   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 concerned High Court does not refer
     only to those Judges who have that High Court as a parent      o
     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   E
    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       F
    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,          G
    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
                                                                    H
150         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A           consultation process, as aforestated, are not binding upon
            the Government of India."
      Ill. MOTION BY THE RESPONDENTS. FOR THE REVIEW
           OF THE SECOND AND THIRD JUDGES CASES:
s        20. It was the contention of the learned Attorney General,
  that in the submissions advanced at the hands of the learned
  counsel representing the petitioners, for adjudication of the
  merits of the controversy, emphatic reliance had been placed
  on the judgments rendered by this Court in the Second and
C Third Judges cases. It was the contention of the learned
  Attorney General, that the conclusions drawn in the above
  judgments, needed a reconsideration by way of a fresh scrutiny,
  to determine, whether the conclusions recorded therein, could
  withstand the original provisions of the Constitution, viewed in
D the background of the debates in the ConstituentAssembly.
            21. In order to record the facts truthfully, it was
      emphasized, that the submissions advanced by him, could not
      be canvassed on behalf of the Union of India as in the Third
 E    Judges q:ise, the Union had consciously accepted as binding
      the judgment rendered in the Second Judges case.
          Despite the above, the Attorney General was emphatic,
   that the Union of India could not be debarred from seeking
   reconsideration of the judgment rendered by this Court in the
 F Second Judges case. In order to dissuade the learned Attorney
   General from the course he insisted to pursue, it was
   suggested, that the determination by this 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
 G Constitution, namely, the "independence of the judiciary" would
   not stand compromised by the Constitution (99th Amendment)
   Act. Despite the instant suggestion, the Attorney General
   pleaded, that he be allowed to establish, that the determination
 H rendered by the nine-Judge Bench in the Second Judges case,
    SUPREME COURT ADVOCATES-ON-RECORD                                151
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

was not sustainable in law. At his insistence, we allowed him        A
to advance his submissions. Needless to mention, that ifthe
Attorney General was successful in persuading us, that the
said judgment did not prima facie lay down the correct legal/
constitutional position, the matter would have to be examined
by a Constitution Bench, with a strength of nine or more Judges      B
of this Court, only if, we would additionally uphold the challenge
to the impugned constitutional amendment, and strike down
the same, failing which the new regime would replace the
erstwhile system.
                                                                     c
      22. First and foremost, our attention was drawn to Article
124 of the Constitution, as it existed, prior to the present
amendment. It was submitted that Article 124 contemplated,
that the Supreme Court would comprise of the Chief Justice
of India, and not more than seven other Judges (unless, the D
Parliament by law, prescribed a larger number). It was
submitted, that clause (2) of Article 124 vested the power of
appoin.tment of Judges of the Supreme Court, with the
President. The proviso under Article 124(2) postulated a
mandatory "consultation" with the Chief Justice of India. E
Appointments contemplated under Article_ 124, also required
a non-mandatory "con~ultation" with such other Judges of the
Supreme Court and High Courts, as the President may deem
necessary. It was accordingly submitted, that the consultation
contemplated under Article 124(2), at the hands of the F
President was wide enough to include, not only the collegium
of Judges, in terms of the judgment rendered by this Court in
the Second Judges case, but each and every single Judge on
the strength of the Supreme Court, and also the Judges of the
High Courts of the States, as the President may choose to G
consult. It was submitted, that only a limited role assigned to
the Chief Justice of India, had been altered by the judgment in
the Second Judges case, into an all pervasive decision taken
by the Chief Justice of India, in consultation with a collegium of H
152         SUPREME COURT REPORTS                   [2015] 13S.C.R.


A     Judges. It was pointed out, that the term "consultation"
      expressed in Article 124 with reference to the Chief Justice of
      India, had been interpreted to mean "concurrence". And
      accordingly, the President has been held to be bound, by the
      recommendation made to him, by the Chief Justice of India
B     and his collegium of Judges. It was contended, that the above
      determination, was wholly extraneous to the plain reading of
      the language engaged in Article 124 (in its original format). It
      was asserted, that there was never any question of
      "concurrence", as Article 124 merely contemplated
C     "consultation". It was contended, that the aboire "consultation"
      had been made mandatory and binding, on the President even
      in a situation where, the opinion expressed by the Chief Justice
      and the collegium of Judges, was not acceptable. to the
      President. It was asserted, that it was not understandable,
0
      how this addition came to be made to the plain and simple
      language engaged in framing Article 124. It was submitted,
      that once primacy is given to the Chief Justice of India (i.e., to
      the collegium of Judges, contemplated under the Second and
 E    Third Judges cases), then there was an implied exclusion of
      "consultation", with the other Judges of the Supreme Court,
      and also, with the Judges of the High Courts, even though,
      there was an express provision, empowering the President to
      make up his mind, after consulting the other Judges of the
 F    Supreme Court and the Judges of the High Courts, as he may choose.
        23. The Attorney General further contended, that the
  interpretation placed on Article 124 in the Second Judges
  case, was an absolutely unsustainable interpretation, specially
  when examined, with reference to the following illustration. That
G even if all the Judges of the Supreme Court, recommend a
  name, to which the Chief Justice of India alone, was not
  agreeable, the said recommendee could not be appointed as
  a Judge. This illustration, it was submitted, placed absolute
H power in the hands of one person - the Chief Justice of India.
      SUPREME COURT ADVOCATES-ON-RECORD                                 153
    ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

          24. The learned Attorney General, then invited the Court's    A
  attention to Article 125, so as to contend, thatthe salary payable
  to the Judges of the Supreme Court has to be determined by
  the Parliament by law, and until such determination was made,
  the emoluments payable to a Judge would be such, as were
  specified in the Second Schedule. It was submitted, that the          B
  Parliament was given an express role to determine even the
  salary of Judges, which is a condition of service of the Judges
  of the Supreme Court. He also pointed to Article 126, which
  contemplates, the appointment of one of the Judges of the
  Supreme Court, to discharge the functions of Chief Justice of         C
  India, on account of his absence or otherwise, or when the
  Chief Justice of India, was unable to perform the duties of his
  office. The Court's attention was also drawn to Article 127, to
  point out, that in a situation where the available Judges of the      D
• Supreme Court, could not·satisfy the quorum of the Bench,
  required to adjudicate upon a controversy, the Chief Justice of
  India could continue the proceedings of the case, by including
  therein, a Judge of a High Court (who was qualified for
  appointment as a Judge of the Supreme Court), in order to             E
  make up the quorum, with the previous consent of the President
  of India. It was submitted, that the role of the President of India
  was manifestly inter-twined with administration of justice, by
  allowing the President to appoint a Judge of the High Court,
   as a Judge of the Supreme Court on 'ad hoc'basis. Reference          F
  was then made to Article 128, whereby the Chief Justice of
   India, with the previous approval of the President, could require
  a retired Judge of the Supreme Court, or a person who has
  held office as a Judge of a High Court, and was duly qualified
  for appointment as a Judge of the Supreme Court, to sit and           G
   act as a Judge of the Supreme Court. It was pointed out, that
  this was yet another instance, where the President's noticeable
   role in the functioning of the higher judiciary, was contemplated
   by the Constitution itself. The Court's attention was then drawn
   to Article 130, whereunder, even though the seat of the              H
154         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     Supreme Court was to be at Delhi, it could be moved to any
      other place in India, if so desired by the Chief Justice of India,
      with the approval of the President. Yet again, depicting the
      active role assigned to the President, in the functioning of the
      higher judiciary. Likewise, the Court's attention was invited to
B     Articles 133 and 134, providing for an appellate remedy in
      civil and criminal matters respectively, to the Supreme Court,
      leaving it open to the Parliament to vary the scope of the Courts'
      appellate jurisdiction. Insofar as Article 137 is concerned, it
      was pointed out, that the power of review of the judgments or
C     orders passed by the Supreme Court, was subject to the
      provisions of any law made by the Parliament, or any rules
      that may be made under Article 145. With reference to Article
      138, it was contended, that the jurisdiction of the Supreme
      Court, could be extended to matters falling in the Union List,
0
      as the Parliament may choose to confer. Similar reference
      was made to clause (2) of Article 138, wherein further
      jurisdiction could be entrusted to the Supreme Court, when
      agreed to, by the Government of India and by any State
 E    Government, if the Parliament by law so provides. Based on
      the above, it was contended, that Article 138 was yet another
      provision, which indicated a participatory role of the
      Parliament, in the activities of the Supreme Court. Likewise,
      this Court's attention was drawn to Article 139, whereby the
 F    Parliament could confer, by law, the power to issue directions,
      orders or writs, in addition to the framework demarcated
      through Article 32(2). This, according to the learned Attorney
      General, indicated another participatory role of the Parliament
       in the activities of the Supreme Court. Pointing to Article 140,
 G    it was submitted, that the Parliament could by law confer upon
      the Supreme Court supplemental powers, in addition to the
      powers vested with it by the Constitution, as may appear to
      the Parliament to be necessary br desirable, to enable the
      Supreme Court to exercise its jurisdiction more effectively. It
 H    was submitted, that one Article after the other, including Article
    SUPREME COURT ADVOCATES-ON-RECORD                               155
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

140, indicated a collective and participatory role of the           A
President and the Parliament, in the activities of the Supreme
Court. Having read out Article 142(2), it was asserted, that
even on the subject of securing the attendance of any person,
and the discovery or production of any documents, or the
investigation or punishment of any contempt of itself, the          B
jurisdiction of the Supreme Court was subject to the law made
by the Parliament. The learned Attorney General, also referred
to Article 145, whereunder, it was open to the Parliament to
enact law framed by the Parliament, for regulating generally
the practice and procedure of the Supreme Court. In the             C
absence of any such law, the Supreme Court had the liberty to
make rules for regulating the practice and procedure of the
Court, with the approval of the President. It was submitted,
that even on elementary issues like procedure, the Parliament
and/or the President were assigned a role by the Constitution,      D
in activities strictly in the judicial domain. With reference to
the activities of the Supreme Court, the Court's attention was
 also drawn to Article 146, which envisages that appointments
of officers and servants of the Supreme Court, were to be           E
 made by the Chief Justice of India. It was pointed out, that the
 authority conferred under Article 146, was subservient to the
 right of the President, to frame rules requiring future
 appointments to any office connected to the Supreme Court,
 to be made, only in consultation with the Union Pubic Service      F
 Commission. The aforesaid right of appointing officers and
 servants to the Supreme Court, is also clearly subservient to
 the right of the Parliament, to make provisions by enacting law
 on the above subject. In the absence of a legislation, at the
 hands of the Parliament, the conditions of service of officers     G
 and servants of the Supreme Court would be such, as may be
 prescribed by rules framed, by the Chief Justice of India. The
 rules framed by the Chief Justice, are subject to the approval
 by the President, with reference to salaries, allowances, leave
 and pension.                                                       H
156        SUPREME COURT REPORTS                  [2015] 13S.C.R.


A         25. With reference to the appointments made to the High
    Courts, the Court's attention was invited to Article 217,
    whereunder, the authority of appointing a Judge to a High Court
    was vested with the President. The President alone, was
    authorized to make such appointments, after "consultation" with
B the Chief Justice of India, the Governor of the State, and the
    Chief Justice of the concerned High Court. The Court's
    attention was also drawn to Article 221, whereunder, the power
    to determine the salary payable to a Judge, was to be
    determined by law to be enacted by the Parliament. Till any
C such law was framed by the Parliament, High Court Judges
    would be entitled to such salaries, as were specified in the
    Second Schedule. The allowances payable to Judges of the
    High Court, as also, the right in respect of leave of absence
    and pension, were also left to the wisdom of Parliament, to be
0
    determined by law. And until such determination, Judges of
    the High Courts were entitled to allowances and rights, as were
    indicated in the Second Schedule. The Court's attention was
    also drawn to Article 222, wherein, the President was
E authorized, after "consulting" the Chief Justice of India, to
    transfer a Judge from one High Court to another. Inviting the
    Court's attention to the provisions referred to in the foregoing
    two paragraphs contained in Part V, Chapter IV - The Union
    Judiciary, and Part VI, Chapter V - The High Courts in the
F States, it was asserted, that the role of the President, and also,
    that of the Parliament was thoughtfully interwoven in various
  · salient aspects, pertaining to the higher judiciary. Exclusion of
    the executive and the legislature, in the manner expressed
    through the Second Judges case, in the matter of appointment
G of Judges to the higher judiciary, as also, transfer of Judges
    and Chief Justices of one High Court to another, was clearly
    against the spirit of the Constitution.
          26. It was submitted, that the method of appointment of
 H Judges to the higher judiciary, was not the "be all" or the "end
    SUPREME COURT ADVOCATES-ON-RECORD                                157
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

all", of the independence of the judiciary. The question of          A
independence of the judiciary would arise, with reference to a
Judge, only after his appointment as a Judge of the higher
judiciary. It was submitted, that this Court had repeatedly placed
reliance on the debates in the Constituent Assembly, so as to
bring out the intention of the framers of the Constitution, with     B
reference to constitutional provisions. In this behalf, he placed
reliance on T.M.A. Pai Foundation v. State of Karnataka 6 , Re:
 Special Reference No.1 of 2002 7 , and also on S.R. Chaudhuri
v. State of Punjab8 • The following observations in the last cited
judgment were highlighted:                                           C
       "33. Constitutional provisions are required to be
       understood and interpreted with an object-oriented
       approach. A Constitution must not be construed in a
       narrow and pedantic sense. The words used may be D
       general in terms but, their full import and true meaning,
       has to be appreciated considering the true context in
       which the same are used and the purpose which they
       seek to achieve. Debates in the Constituent Assembly
       referred to in an earlier part of this judgment clearly E
       indicate that a non-member's inclusion in the Cabinet
       was considered to be a "privilege" that extends only for
       six months, during which period the member must get
       elected, otherwise he would cease to be a Minister. It is
       a settled position that debates in the Constituent F
       Assembly may be relied upon as an aid to interpret a
       constitutional provision because it is the function of the
       court to find out the intention of the framers of the
       Constitution. We must remember that a Constitution is
       not just a document in solemn form, but a living G
       framework for the Government of the people exhibiting
       a sufficient degree of cohesion and its successful
• (2002) a sec 481
1
  (2002) a sec 237
a (2001) 7 sec 126                                                   H
158         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A           working depends upon the democratic spirit underlying
            it being respected in letter and in spirit. The debates
            clearly indicate the "privilege" to extend "only" for six
            months."
      For the same purpose, he referred to Indra Sawhneyv. Union
8     of lndia 9 , and drew the ·court's attention to the opinion
      expressed therein:
            "217. Further, itis clear for the afore-mentioned reasons
            that the executive while making the division or sub-
C           classification has not properly applied its mind to various
            factors, indicated above which may ultimately defeat the
            very purpose of the division or sub-classification. In that
            view, para 2(i) not only becomes constitutionally invalid
            but also suffers from the vice of non-application of mind
 D          and arbitrariness.
                     xxx                   xxx                   xxx
             772. We may now turn to ConstituentAssembly debates
             with a view to ascertain the original intent underlying
             the use of words "backward class of citizens". At the
 E           outset we must clarify that we are not taking these
             debates or even the speeches of Dr Ambedkar as
             conclusive on the meaning of the expression "backward
             classes". We are referring to these debates as
             furnishing the context in which and the objective to
 F           achieve which this phrase was put in clause (4). We
             are aware that what is said during these debates is not
             conclusive or binding upon the Court because several
             members may have expressed several views. all of
             which may not be reflected in the provision finally
 G
             enacted. The speech of Dr Ambedkar on this aspect.
             however, stands on a different footing. He was not only
             the Chairman of the Drafting Committee which inserted
             the expression "backward" in draftArticle 10(3) [it was
 H    • 1992 Supp (3) sec 211
       SUPREME COURT ADVOCATES-ON-RECORD                               159
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

         not there in the original draft Article 10(3)]. he was A
         virtually piloting the draft Article. In his speech. he
         explains the reason behind draft clause (3) as also the
         reason for which the Drafting Committee added the
         expression "backward" in the clause. In this situation.
         we fail to understand how can anyone ignore his speech B
         while trying to ascertain the meaning of the said
         expression. That the debates in Constituent Assembly
         can be relied upon as an aid to interpretation of a
         constitutional provision is borne out by a series of
         decisions of this Court. [See Madhu Limaye, in re, AIR C
         1969 SC 1014, Golak Nath v. State of Punjab, AIR 1967
         SC 1643 (Subba Rao, CJ); opinion of Sikri, CJ, in
         Union of India v. H.S. Dhillon (1971) 2 SCC 779 and the
         several opinions in Kesavananda Bharati (1973)4 sec D
         225, wh·ere the relevance of these debates is pointed
         out, emphasing at the same time, the extent to which
         and the purpose for which they can be referred to.] Since
         the expression "backward" or "backward class of
         citizens" is not defined in the Constitution, reference to E
         such debates is permissible to ascertain, at any rate,
         the context, background and objective behind them.
         Particularly, where the Court wants to ascertain the
         'original intent' such reference may be unavoidable."
Reliance was also placed on Kesavananda Bharati v. State of            F
Kerala 10 , and this Court's attention was invited to the following:
         "1088. Before I refer to the proceedings of the
         ConstituentAssembly. I must first consider the question
         whether the Constituent Assembly Debates can be
         looked into by the Court for construing the.se provisions. G
         The Advocate-General of Maharashtra says until the
         decision of this Court in H.H. Maharajadhiraja Madhav
         Rao Jiwaji Rao Scindia Bahadur and others v. Union of
10
     (1973) 4 sec 225                                                  H
160   SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     India, (1971) 1 sec 85 - commonly known as Privy
      Purses case - debates and proceedings were held not
      to be admissible. Nonetheless counsel on either side
      made copious reference to them. In dealing with the
      interpretation of ordinary legislation, the widely held view
B     is that while it is not permissible to refer to the debates
      as an aid to construction, the various stages through
      which the draft passed, the amendments proposed to it
      either to add or delete any part of it, the purpose for
      which the attempt was made and the reason for its
c     rejection may throw light on the intention of the framers
      or draftsmen. The speeches in the legislatures are said
      to afford no guide because members who speak in
      favour or against a particular provision or amendment
      only indicate their understanding of the provision which
 D
      would not be admissible as an aid for construing the
      provision. The members speak and express views which
      differ from one another, and there is no way of
      ascertaining what views are held by those who do not
      speak. It is, therefore, difficult to get a resultant of the
 E
      views in a debate except for the ultimate result that a
      particular provision or its amendment has been adopted
      or rejected, and in any case none of these can be looked
      into as an aid to construction except that the legislative
 F    history of the provision can be referred to for finding out
       the mischief sought to be remedied or the purpose for
      which it is enacted, if they are relevant. But in Travancore
       Cochin and others v. Bombay Company Ltd., AIR 1952
       SC 366, the Golaknath case (supra), the Privy Purses
 G     case (supra), and Union of India v. H.S. Dhillon, (1971)
       2 sec 779, there are dicta against referring to the
       speeches in the Constituent Assembly and in the last
       mentioned case they were referred to as supporting the
       conclusion already arrived at. In Golaknath case (supra),
 H     as well as Privy Purses case (supra), the speeches were
  SUPREME COURT ADVOCATES-ON-RECORD                             161
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   referred to though it was said not for interpreting a        A
   provision but for either examining the transcendental
   character of Fundamental Rights or for the
   circumstances which necessitated the giving of
   guarantees to the rulers. For whatever purpose
   speeches in the Constituent Assembly were looked at          B
   though it was always claimed that these are not
   admissible except when the meaning was ambiguous
   or where the meaning was clear for further support of
   the conclusion arrived at. In either case they were looked
   into. Speaking for myself. why should we not look into       C
   them boldly for ascertaining what was the intention of
   our framers and how they translated that intention? What
   is the rationale for treating them as forbidden or
   forbidding material. The Court in a constitutional matter,   D
   where the intent of the framers of the Constitution as
   embodied in the written document is to be ascertained.
   should look into the proceedings, the relevant data
   including any speech which may throw light on
   ascertaining it. It can reject them as unhelpful, if they    E
   throw no light or throw only dim light in which nothing
   can be discerned. Unlike a statute. a Constitution is a
   working instrument of Government. it is drafted by
   people who wanted it to be a national instrument to
   subserve successive generations. The Assembly                F
   constituted Committees of able men of high calibre,
   learning and wide experience, and it had an able adviser,
   Shri B.N. Rau to assist it. A memorandum was prepared
   by Shri B.N. Rau which was circulated to the public of
   every shade of opinion, to professional bodies, to           G
   legislators, to public bodies and a host of others and
   was given the widest publicity. When criticism,
   comments and suggestions were received, a draft was
   prepared in the light of these which was submitted to
   the ConstituentAssembly, and introduced with a speech        H
162   SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     by the sponsor Dr Ambedkar. The assembly thereupon
      constituted three Committees: (1) Union Powers
      Committee; (2) Provincial Powers Committee; and (3)
      Committee on the Fundamental Rights and Minorities
      Committee.         The      deliberations        and     the
B     recommendations of these Committees, the
      proceedings of the Drafting Committee, and the speech
      of Dr Ambedkar introducing the draft so prepared along
      with the report of these Committees are all valuable
      material. The objectives of the Assembly. the manner in
c     which they met any criticism. the resultant decisions
      taken thereupon. amendments proposed. speeches in
      favour or against them and their ultimate adoption or
      rejection will be helpful in throwing light on the particular
      matter in issue. In proceedings of a legislature on an
D
      ordinary draft bill, as I said earlier, there may be a
      partisan and heated debate, which often times may not
      throw any light on the issues which come before the
      Court but the proceedings in a Constituent Assembly
      have no such partisan nuances and their only concern·
 E
      is to give the national a working instrument with its basic
      structure and human values sufficiently balanced and
      stable enough to allow an interplay of forces which will
      subserve the needs of future generations. The highest
 F    Court created under it and charged with the duty of
      understanding and expounding it. should not. if it has to
      catch the objectives of the framers. deny itself the benefit
      of the guidance derivable from the records of the
      proceedings and the deliberations of the Assembly. Be
 G    that as it may, all I intend to do for the present is to
      examine the stages through which the draft passed and
      whether and what attempts were made to introduce
      words or expressions or delete any that were already
      there and for what purpose. If these proceedings are
 H
       SUPREME COURT ADVOCATES-ON-RECORD                             163
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

         examined from this point of view, do they throw any light   A
         on or support the view taken by me?"
     For the same proposition, reliance was also placed on
Samsher Singh v. State of Punjab 11, and on Manoj Narula v.
Union of lndia 12 •
                                                                  B
      27. Having emphasized, that Constituent Assembly
debates, had been adopted as a means to understand the
true intent and import of the provisions of the Constitution,
reference was made in extenso to the Constituent Assembly
debates, with reference to the provisions (more particularly, to C
Article 124) which are subject matter of the present
consideration. It was pointed out, that after the constitution of
the Constituent Assembly, the issue of judicial appointments
and salaries was taken up by an ad hoc committee on the
Supreme Court. The committee comprised of S. Varadachariar D
(a former Judge of the Federal Court), B.L. Mitter (a former
Advocate General of the Federal Court), in addition to some
noted jurists-Alladi Krishnaswamy Ayyar, K.M. Munshi and
B. N. Rau (Constitutional Adviser to the Constituent Assembly
of India). The ad hoc committee presented its report to the E
ConstituentAssembly on 21.5.1947. With reference to judicial
independence, it modified the consultative proposal suggested
in the Sapru Committee report, by recommending a panel of
11 persons, nominated by the President, in consultation with
the Chief Justice of India. Alternatively, it was suggested, that F
the panel would recommend three candidates, and the
President in consultation with the Chief Justice of India, would
choose one of the three. It was suggested, that the panel would
take its decision(s) by 2/3rd majority. To ensure independence, G
it was recommended, that the panel should have a tenure of
ten years. Based on the above report,.it was submitted, that
the proposal suggested a wider participation of a collegium
11   (1974) 2 sec 831
12   (2014) g sec 1
                                                                     H
164        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A of Judges, politicians and law officers, in addition to the
  President and the Chief Justice of India, in the matter of
  appointment of Judges to the higher judiciary. Learned Attorney
  General went on to inform the Court, that on the basis of the
  above report, B.N. Rau prepared a memorandum dated
B 30.5.1947, wherein he made his own suggestions. The above
  suggestions related to Judges of the Supreme Court, as also,
  of High Courts. The Court was also informed, that the Union
  Constitution Committee presented its report to the Constituent
  Assembly on 4. 7.194 7, also pertaining to appointments to the
C higher judiciary. Yet another memorandum, on the Principles
  of a Model Provincial Constitution was prepared by the
  Constitutional Adviser on 13.5.1947, relating to appointments
  to the higher judiciary, which was adopted by the Provincial
  Constitution Committee. Reliance was placed by the Attorney
0
  General, on the speech delivered by Sardar Vallabhbhai Patel
  on 15. 7 .194 7, wherein he expressed the following views:
            "The committee have given special attention to the
            appointment of judges of the High Court. This is
 E          considered to be very important by the committee and
            as the judiciary should be above suspicion and should
            be above party influences, it was agreed that the
            appointment of High Court judges should be made by
            the President of the Union in consultation with the Chief
 F          Justice of the Supreme Court, the Chief Justice of the
            Provincial High Court and the Governor with the advice
            of the Ministry of the Province concerned. So there are
            many checks provided to ensure fair appointments to
            the High Court."
 G
   The Court was informed, that the first draft of the new constitution
   prepared by B. N. Rau was presented to the Constituent
   Assembly in October 1947, wherein, it was expressed that
   Judges of the Supreme Court, would be appointed by the
 H President, in consultation with the sitting Judges of the Supreme
    SUPREME COURT ADVOCATES-ON-RECORD                                   165
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Court, and Judges of High Courts in consultation with the Chief A
Justice of India, except in the matter of appointment of the Chief
Justice of India himself. It was suggested, that this was the
immediate prec_ursortoArticle 124(2) of the Constitution, as it
was originally framed.
                                                                   B
      28. It was pointed out, that in the above report prepared
by the Constitutional Adviser, the following passage related to
the judiciary:
       "Regarding the removal of judges, he (Justice
       Frankfurter, Judge, Supreme Court of the United States           C
       of America) drew attention to a provision which had just
       been proposed in New York State - the provision has
       since been approved and which had the support of most
       of the judges and lawyers in this country. The provision
       is reproduced below:                                             D
       9-a (1) A judge of the court of appeals, a justice of the
       supreme court, a judge of the court of claims ... (types
       of judges)may be removed or retired also by a court on
       the judiciary. The court shall be composed of the chief          E
       judge of the court of appeals, the senior associate
       judges of the court of appeals and one justice of the
       appellate division in each department designated by
       concurrence of a majority of the justices of such
       appellate division ...
                                                                        F
       (2) No judicial officer shall be removed by virtue of this
       section except for cause or be retired except for mental
       or physical disability preventing the proper performance
       of his judicial duties, nor unless he shall have been
       served with a statement of the charges alleged for his           G
       removal or the grounds for his retirement, and shall have
       had an opportunity to be heard...
       (3) The trial of charges for the removal of a judicial officer
       or of the grounds for his retirement shall be held before
       a court on the judiciary...                                      H
166        SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A          (4) The chief judge of the court of appeals may convene
           the court on the judiciary upon his own motion and shall
           convene the court upon written request by the governor
           or by the presiding justice of any appellate division ... "
        It was submitted, that the above suggestion of vesting
8
  the power of impeachment, in-house by the judiciary itself, as
  recommended by Justice Frankfurter, was rejected. It was
  pointed out, that the second draft of the Constitution was placed
  before the Constituent Assembly on 21.2.1948. Articles 103
C and 193 of the above draft, pertained to appointments of
  Judges to the Supreme Court and High Courts. It was
  submitted, that several public comments were received, with
  reference to the second draft. In this behalf, a memorandum
  was also received, from the Judges of the Federal Court and
0 the Chief Justices of the High Courts which, inter a/ia,
  expressed as under:
            "It seems desirable to insert a provision in these articles
            (Draft Articles 103(2) and 193(2) to the effect that no
            person should be appointed a judge of the Supreme
 E          Court or of a High Court who has at any time accepted
            the post of a Minister in the Union of India or in any State.
            This is intended to prevent a person who has accepted
            office of a Minister from exercising his influence in order
            to become a judge at any time. It is the unanimous
 F          view of the judges that a member of the Indian Civil
            Service should not be a permanent Chief Justice of any
            High Court. Suitable provision should be made in the
            article for this."
 G         It was submitted, that in response to the above
      memorandum, B.N. Rau made the following observations:
            "It is unnecessary to put these prohibitions into the
            Constitution. The- Attorney-General in England is
            invariably one of the Ministers of the Crown and often
 H          even a Cabinet Minister; he is often appointed a judge
    SUPREME COURT ADVOCATES-ON-RECORD                              167
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      afterwards (The Lord Chancellor is, of course, both a        A
      Cabinet Minister and the head of the judiciary). In India,
      Sapru and Sircarwere Law Members, or Law Ministers,
      as they would be called in future; no one would suggest
      that men of this type should be ineligible for appointment
      as judges afterwards...                                      B
      Merit should be the only criterion for these high
      appointments; no constitutional ban should stand in the
      way of merit being recognized."
      It was asserted, that in the memorandum submitted by         c
the Judges of the Federal Court and the Chief Justices of the
High Courts, the following suggestions were made:
      "It is therefore suggested that Article 193( 1) may be
      worded in the following or other suitable manner:
      Every Judge of the High Court shall be appointed by          D
      the President by a warrant under his hand and seal on
      the recommendation of the Chief Justice of the High
      Court after consultation with the Governor of the State
      and with the concurrence of the Chief Justice of India...    E
      We do not think it is necessary to make any provision in
      the Constitution for the possibility of the Chief Justice
      of India refusing to concur in an appointment proposed
      by the President. Both are officers of the highest
      responsibility and so far no case of such refusal has F
      arisen although a convention now exists that such
      appointments should be made after referring the matter
      to the Chief Justice of India and obtaining his
      concurrence. If per chance such a situation were ever
      to arise it could of course be met by the President G
      making a different proposal, and no express provision
      need, it seems to us, be made in that behalf.
      The foregoing applies mutatis mutandis to the
      appointment of the Judges of the Supreme Court. and
                                                                   H
168         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A           article 103(2) may also be suitably modified. In this
            connection it is not appreciated why a constitutional
            obligation should be cast on the President to consult
            any Judge or Judges of the Supreme Court or of the
            High Court in the States before appointing a Judge of
B           the Supreme Court. There is nothing to prevent the
            President from consulting them whenever he deems it
            necessary to do so."
           It was pointed out, that none of the above proposals were
C     accepted. Reference was also made to the Editor of the Indian
      Law Review and the Members of the Calcutta Bar Association,
      who made the following suggestions:
            'That in clause (4) of Article 103 the words "and voting"
            should be deleted, as they consider that in an important
D           issue as the one contemplated in this clause,
            opportunity should be as much minimized as practicable
            for the legislators for remaining neutral."
           to which, the response of B.N. Rau was as under:
            "In the Constitutions of Canada, Australia, South Africa
E
            and Ireland, a bare majority of the members present
            and voting suffices for the presentation of the address
            for removal of a judge. Article 103(4) requires a two-
            thirds majority of those present and voting. It is hardly
 F          necessary to tighten it further by deleting the words "and
            voting".
           With reference to the suggestions regarding non-
      reduction of salaries of Judges, the Constitutional Adviser
      made the following comments:
G           "The constitutional safeguard against the reduction of
            salary of the Chief Justice and the judges of a High Court
            below the minimum has been prescribed in article 197
            so as to prevent the Legislatures of the States from
            reducing the salaries below a reasonable figure. It is
H
    SUPREME COURT ADVOCATES-ON-RECORD                                169
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      hardly necessary to put such a check on the power of A
      Parliament to fix the salaries of the judges of the
      Supreme Court."
     The suggestions made by Pittabhi Sitaramayya and
others, with reference to officers, and servants and the
expenses of the Supreme Court, were also highlighted. They           8
are extracted hereunder:
      "That in article 122, for the words "the Chief Justice of
      India in consultation with the President" the words "the
      President in consultation with the Chief Justice of India"     c
      be substituted."
      The response of the Constitutional Adviser was as
follows:
      ''The provision for the fixation of the salaries, allowances
      and pensions of the officers and servants of the               D
      Supreme Court by the Chief Justice of India in
      consultation with the President contained in clause (1)
      of article 122 is based on the existing. provision
      contained in section 242(4) of the Government of India
      Act, 1935, as adapted. The Drafting Committee                  E
      considered such a provision to be necessary to ensure
      the independence of the judiciary, the safeguarding of
      which was so much stressed by the Federal Court and
      the High Courts in their comments on the Draft                 F
      Constitution."
      29. It was pointed out, that the second draft of the
Constitution, was introduced in the Constituent Assembly on
4.11.1948. The Court's attention was drawn to the discussions,
with reference to appointments to the higher judiciary, including G
the suggestion of B. Pecker Sahib, who proposed an
alternative to Article 103(2). Reference was also made to the
proposal made by MahboobAli Baig Sahib, guarding against
party influences, that may be brought to the fore, with reference
to appointment of Judges. It was submitted, that the above H
170         SUPREME COURT REPORTS                   [2015] 13S.C.R.


A     suggestion was rejected by the Chairman of the Drafting
      Committee, who felt that it would be dangerous to enable the
      Chief Justice to veto the appointment of a Judge to the higher
      judiciary. The opinion ofT.T. Krishnamachari was also to the
      following effect:
B           "[T]he independence of the Judiciary should be
            maintained and that the Judiciary should not feel that
            they are subject to favours that the Executive might grant
            to them from time to time and which would naturally
            influence their decision in any matter they have to take
c           where the interests of the Executive of the time being
            happens to be concerned. Atthe same time, Sir, I think
            it should be made clear that it is not the intention of this
            House or of the framers of this Constitution that they
D           want to crate specially favoured bodies which in
            themselves becomes an lmperium in lmperio,
            completely independent of the Executive and the
            legislature and operating as a sort of superior body to
            the general body politic".
 E         30. The proposals and the decision taken thereon, were
      brought to our notice, specially the observations made by K.T.
      Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami
      Aayar, Ananthasayanam Ayyangar, and finally Dr. B.R.
      Ambedkar. Dr. B.R. Ambedkar had stated thus:
 F           "Finally, BRAmbedkar 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
 G
             be made as clear and definite as we could make it by
             law.At the same time, there is thefearthat in the name
             of the independence of the Judi~iary, we might be
             creating, what my Friend Mr. T.T. Krishnamachari very
 H           aptly called an "lmperium in lmperio". We do not want
    SUPREME COURT ADVOCATES-ON-RECORD                                171
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       to create an lmperium in lmperio. and at the same time        A
       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      B
       proposes to steer a middle course. It refuses to create
       an lmperium in lmperio. and I think it gives the Judiciary
       as much independence as is necessary for the purpose
       of administering justice without fear or favour."
      31. Having extensively brought to our notice, the nature
                                                                     c
of the debates before the Constituent Assembly, and the
decisions taken thereon, the learned Attorney General ventured
to demonstrate, that the participation of the executive in the
matter of appointment of high constitutional functionaries,          D
"could not- and did not", impinge upon their independence, in
the discharge of their duties. Illustratively, reliance was placed
on part IV Chapter V of the Constitution, comprising of 4
Articles of the Constitution (Articles 148 to 151 ), dealing with
the Comptroller and Auditor-General of India. It was submitted,      E
that duties and powers of the Comptroller and Auditor-General
of India, delineated in Article 149, revealed, that the position
of the Comptroller and Auditor-General of India, was no less in
importance vis-a-vis the Judges of the higher judiciary. Pointing
out to Article 148, it was his contention, that the appointment      F
of the Comptroller and Auditor-General of India is made by the
President. His removal under clause (1) of Article 148 could
only, in the like manner, be made on the like grounds as a
Judge of the Supreme Court of India. Just like a Judge of the
Supreme Court, his salary and other conditions of service were       G
to be determined by Parliament by law, and until they were so
determined, they were to be as expressed in the Second
Schedule. Further more, just like a Judge of the Supreme
Court, neither the salary of the Comptroller and Auditor-General,
                                                                     H
172       SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A nor his rights in respect of leave of absence, pen.sion or age
  of retirement, could be varied to his disadvantage, after his
  appointment. In a similar fashion, as in the case of the Supreme
  Court, persons serving in the Indian Audit and Accounts
  Department, were to be subject to such conditions of service,
B as were determined by law made by Parliament, and till such
  legislative enactment was made, their conditions of service
  were determinable by the President, by framing rules, in
  consultation with the Comptrol!er and Auditor-General of India.
  Based on the above, it was contended, that even though the
C appointment of the Comptroller and Auditor-General of India,
  was exclusively vested with the executive, there had never been
  an adverse murmur with reference to his being influenced by
  the executive. The inference sought to be drawn was, that the
  manner of "appointment" is irrelevant, to the question of
0
  independence. Independence of an authority, according to the
  learned Attorney General, emerged from the protection of the
  conditions of the incumbent's service, after the appointment
  had been made.
E       32. In the like manner, our attention was drawn to Part
  XV of the Constitution, pertaining to elections. It was submitted,
  that Article 324 vested the superintendence, direction and
  control of elections to the Parliament, and the Legislatures of
  every State, and election to the offices of President and Vice-
F President, with the Election Commission. The Election
  Commission in terms of Article 324(2) was comprised of the
  Chief Election Commissioner, and such number of other
  Election Commissioners as the President may from time to
  time fix. It was submitted, that the appointment of the Chief
G Election Commissioner, and the other Election
  Commissioners, was to be made by the President, and was
  subject to the provisions of law made by Parliament. It was
  further pointed out, that under Article 324(5), the conditions of
  service and the tenure of the office of the Election
H
    SUPREME COURT ADVOCATES-ON-RECORD                          173
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Commissioners (and the Regional Commissioners) is A
regulated in the manner, as the President may by rules
determine. Of course, subject to, enactment of law by
Parliament. So as to depict similarity with the matter under
consideration, it was contended, that the proviso under Article
324(5) was explicit to the effect, that the Chief Election B
Commissioner could not be removed from his office, except
in like manner, and on like grounds, as a Judge of the Supreme
Court. And further more, that the conditions of service of the
Chief Election Commissioner, could not be varied to his
disadvantage, after his appointment. It was contended, that C
the Indian experience had been, that the Chief Election
Commissioner, and the other Election Commissioners, had
functioned with absolute independence, and that, their
functioning remained unaffected, despite the fact that their D
appointment had been made, by the executive. It was
submitted, that impartiality/independence emerged from the
protection of the conditions of service of the incumbent after
his appointment, and not by the method or manner of his
appointment.
                                                                E
  • 33. It was also the contention of the learned Attorney
General, that implicit in the scheme of the Constitution, was a
 system of checks and balances, wherein the different
constitutional functionaries participate in various processes·
of selection, appointment, etc., so as to ensure, ttiat the F
constitutional functionaries did not exceed, the functions/
 responsibilities assigned to them. To substantiate the above
contention, reliance was placed on the Kesavananda Bharati
case 10 , wherein this Court observed as under:
      "577. We are unable to see how the power of judicial     G
      review makes the judiciary supreme in any sense of the
      word. This power is of paramount importance in a
      federal Constitution. Indeed it has been said that the
      heart and core of a democracy lies in the judicial       H
174   SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     process: (per Bose, J., in Bidi Supply Co. v. Union of
      India, AIR 1956 SC 479). The observations of Patanjali
      Sastri, C.J., in State of Madras v. V.G. Row, AIR 1952
      SC 196, which have become locus classicus need alone
      be repeated in this connection. Judicial review is
B     undertaken by the courts "not out of any desire to tilt at
      legislative authority in a crusader's spirit. but in
      discharge of a duty plainly laid down upon them by the
      Constitution". The respondents have also contended that
      to let the court have judicial review over constitutional
c     amendments would mean involving the court in political
      questions. To this the answer may be given in the words
      of Lord Porter in Commonwealth of Australia v. Bank of
      New South Wales 1950AC 235 at 310:
      "The problem to be solved will often be not so much
D
      legal as political, social or economic, yet it must be
      solved by a court of law. For where the dispute is, as
      here, not only between Commonwealth and citizen but
      between Commonwealth and intervening States on the
      one hand and citizens and States on the other, it is only
 E
      the Court that can decide the issue, it is vain to invoke
      the voice of Parliament."                                •
      There is ample evidence in the Constitution itself to
      indicate that it creates a system of checks and balances
 F    ~y reason of which powers are so distributed that none
      of the three organs it sets up can become so pre-
      dominant as to disable the others from exercising and
      discharging powers and functions entrusted to them.
      Though the Constitution does not lay down the principle
 G    of separation of powers in all its rigidity as is the cal?e
      in the United States Constitution but it envisages such
      a separation to a degree as was found in Ranasinghe's
      case. The judicial review provided expressly in our
      Constitution by means of Articles 226 and 32 is one of
 H    the features upon which hinges the system of checks
   SUPREME COURT ADVOCATES-ON-RECORD                               175
 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      and balances. Apart from that, as already stated, the        A
      necessity for judicial decision on the competence or
      otherwise of an Act arises from the very federal nature
      of a Constitution (per Haldane, L.C. in Attorney-General
      for the Commonwealth of Australia v. Colonial Sugar
      Refining Co. 1914 AC 237 and Ex Parte Walsh &                B
      Johnson; In re Yates, (1925) 37 CLR 36 at p.58. The
      function of interpretation of a Constitution being thus
      assigned to the judicial power of the State, the question
      whether the subject of a law is within the ambit of one or
      more powers of the Legislature conferred by the              C
      Constitution would always be a question of interpretation
      of the Constitution. It may be added that at no stage the
      respondents have contested the proposition that the
      validity of a constitutional amendment can be the subject    D
      of review by this Court. The Advocate-General of
      Maharashtra has characterjsed judicial review as
      undemocratic. That cannot, however, be so in our
      Constitution because of the provisions relating to the
                                                                         \
      appointment of judges. the specific restriction to which     E
      the fundamental rights are made subject. the deliberate
      exclusion of the due process clause in Article 21 and
      the affirmation in Article 141 that judges declare but not
       make law. To this may be added the none too rigid
       amendatory process which authorises amendment by            F
       means of 2/3 majority and the additional requirement
       of ratification."
     The Court's attention was also invited to the observations
recorded in Bhim Singh v. Union of lndia 13 :
       "77. Another contention raised by the petitioners is that G
       the Scheme violates the principle of separation of
       powers under the Constitution. The concept of
       separation of powers, even though not found in any
,, (201 o) s sec 538                                               H
176   SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     particular constitutional provision, is inherent in the polity
      the Constitution has adopted. The aim of separation of
      powers is to achieve the maximum extent of
      accountability of each branch of the Government.
      78. While·understanding this concept. two aspects must
 B    be borne in mind. One, that separation of powers is an
      essential feature of the Constitution. Two. that in modern
      governance, a strict separation is neither possible. nor
      desirable. Nevertheless, till this principle of
      accountability is preserved, there is no violation of
 c    separation of powers. We arrive at the same conclusion
      when we assess the position within the constitutional
      text. The Constitution does not prohibit overlap of
      functions, but in fact provides for some overlap as a
      parliamentary democracy. But what it prohibits is such
 D
       exercise of function of the other branch which results in
      wresting away of the regime of constitutional
       accountability.
       79. In Ram Jawaya Kapurv. State of Punjab.AIR 1955
       SC 549, this Court held that: (AIR p. 556, para 12)
 E
       "12 .... The Indian Constitution has not indeed
       recognised the doctrine of separation of powers in its
       absolute rigidity but the functions of the different parts
       or branches of the Government have been sufficiently
 F     differentiated and consequently it can very well be said
       that our Constitution does not contemplate assumption,
       by one organ or part of the State, of functions that
       essentially belong to another. The executive indeed can
       exercise the powers of departmental or subordinate
 G     legislation when such powers are delegated to it by the
       legislature.
       It can also. when so empowered. exercise judicial
       functions in a limited way. The executive Government.
       however, can never go against the provisions of the
 H     Constitution or of any law."
   SUPREME COURT ADVOCATES-ON-RECORD                                177
 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      80. In Kesavananda Bharati v. State of Kera la (1973) 4       A
       SCC 225. and later in Indira Nehru Gandhi v. Raj Narain
      (1976) 3 SCC 321. this Court declared separation of
       powers to be a part of the basic structure of the
       Constitution. In Kesavananda Bharati case Shelat and
       Grover, JJs. in SCC para 577 observed the precise            B
       nature of the concept as follows: (SCC p. 452)
       "577 .... There is ample evidence in the Constitution
       itself to indicate that it creates a system of checks and
       balances by reason of which powers are so distributed
       that none of the three organs it sets up can become so       C
       predominant as to disable the others from exercising
       and discharging powers and functions entrusted to them.
       Though the Constitution does not lay down the principle
       of separation of powers in all its rigidity as is the case   D
       in the United States Constitution yet it envisages such
       a separation to a degree as was found in Ranasinghe
       case. The judicial review provided expressly in our
       Constitution by means of Articles 226 and 32 is one of
       the features upon which hinges the system of checks          E
       and balances."
       and conclusion no.5, which is reproduced as under:
       "
     · (5) Indian Constitution doe·s not recognise strict
       separation of powers. The constitutional principle of        F
       separation of powers will only be violated if an essential
       function of one branch is taken over by another branch.
        leading to a removal of checks and balances."
Last of all, the learned Attorney General placed reliance on
State of UP v. Jeet S. Bisht14 , wherein this Court held:           G
      "78. Separation of powers in one sense is a limit on
      active jurisdiction of each organ. But it has another
      deeper and more relevant purpose: to act as check and
" (2001) 6 sec 586                                                  H
178        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A          balance over the activities of other organs. Thereby the
           active jurisdiction of the organ is not challenged;
           nevertheless there are methods of prodding to
           communicate the institution of its excesses and shortfall
           in duty. Constitutional mandate sets the dynamics of this
B          communication between the organs of polity. Therefore,
           it is suggested to not understand separation of powers
           as operating in vacuum. Separation of powers doctrine
           has been reinvented in modern times."
C        34. The learned Attorney General emphasized, that there
   was a very serious and sharp cleavage of opinion on the
   subject, which is being canvassed before this Court. Relying
   on the judgment rendered by in the Sankalchand Himatlal
   Sheth case 5 , he pointed out, that in the aforesaid judgment,
 0 this Court had arrived at the conclusion, that the term
   "consultation" could not be deemed to be "concurrence", with
   reference to Article 222. In conjunction with the above, he
   invited our attention to the judgment in the Samsher Singh
   case 11 , wherein a seven-Judge Bench, which was dealing with
 E a controversy relating to Judges of subordinate courts, and
   the impact of Article 311, had examined the question whether ·
   the President was to act in his individual capacity, i.e., at his
   own discretion; or he was liable to act on the aid and advice of
   the Council of Ministers, as mandated under Article 74.
 F Reliance was placed on the following observations from the
   aforesaid judgment:
                                                                  .
           "149. In the light of the scheme of the Constitution we
           have already referred to. it is doubtful whether such an
           interpretation as to the personal satisfaction of the
 G         President is correct. We are of the view that the
           President means. for all practical purnoses. the Minister
           or the Council of Ministers as the case may be. and his
           opinion. satisfaction or decision is constitutionally
           secured when his Ministers arrive at such opinion
 H
    SUPREME COURT ADVOCATES-ON-RECORD                          179
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      satisfaction or d~cision. The independence of the A
      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 B
      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 C
      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 D
      immaterial whether the President or the Prime Minister
      or the Minister for Justice formally decides the issue."
      35. It was submitted, that the aforesaid observations as
were recorded in the Sam sher Singh case 11 , were relied upon
in the Second Judges case. This Court, it was pointed out, E
had clarified that the observations recorded in paragraph 149
in the Samsher Singh case 11, were merely in the nature of an
obiter. It was submitted, that the aforesaid observations in the
Samsher Singh case 11, were also noticed in paragraph 383
(at page 665), wherein it was sought to be concluded, that the F
President, for all practical purposes, should be construed, as
the concerned Minister or the Council of Ministers. Having
noticed the constitutional provisions regarding "consultation"
with the judiciary, this Court had expressed, that the
Government was bound by such counsel. Reference was then G
made to the judgment of this Court in the First Judges case,
wherein it was held, that "consultation" did not include
"concurrence", and further, that the power of appointment of
Judges under Article 124, was vested with the President, and
                                                                H
180         SUPREME COURT REPORTS                      r201s113 s.c.R.


A     also, that the President could override the views of the
      consultees. Last of all, to substantiate his submission(s)
      pertaining to the cleavage of opinion, reliance was placed on
      the Kesavananda Bharati case 10, wherein a thirteen-Judge
      Bench of this Court, had held, with reference to the power of
B     amendment under Article 368, that the concept of "basic
      structure", was a limitation, to the otherwise plenary power of
      amendment of the Constitution.
           36. In his effort to persuade us, to refer the instant matter,
c to a nine-Judge Bench (or, to a still larger Bench), the learned
      Attorney General placed reliance on Suraz 1.ndia Trust v. Union
      of lndia 15 , and invited our attention to the following:
             "3. Shri A.K. Ganguli, learned Senior Advocate, has
             submitted that the method of appointment of a Supreme
D            Court Judge is mentioned in Article 124(2) of the
             Constitution of India which states:
             "124. (2) Every Judge of the Supreme Court shall be
             appointed by the President by warrant under his hand and
             seal after consultation with such of the Judges of the
 E           Supreme Court and of the High Courts in the States as the
             President may deem necessary for the purpose and shall
             hold office until he attains the age of sixty-five years.
             Provided that in the case ofappointment of a Judge other
             than the Chief Justice, the Chief Justice of India shall always
 F           be consulted."
             It may be noted that there is no mention:
             (i) Of any Collegium in Article 124(2).
             (ii) The word used in Article 124(2) is "consultation'', and
             not "concurrence".
G
             (iii) The President of India while appointing a Supreme Court
             Judge can consult any Judge of the Supreme Court or even
             the High Court as he deems necessary for the purpose,

 H    " (2012) 13 sec 497
  SUPREME COURT ADVOCATES-ON-RECORD                               . 181
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   and is not bound to consult only the five seniormost Judges·    A
   of the Supreme Court.
   4. That by the judicial verdicts in the aforesaid two cases,
   Article 124(2) has been practically amended, although
   amendment to the Constitution can only be done by
   Parliament in accordance with the procedu~e laid down in        B
   Article 368 of the Constitution of India.
   5. That under Article 124(2) while appointing a Supreme
   Court Judge, the President of India has to consult the Chief
   Justice of India, but he may also consult any other Supreme
   Court Judge and not merely the four seniormost Judges.          C
   Also, the President of.India can even consult a High Court
   Judge, whereas, according to the aforesaid two decisions
   the President of India cannot consult any Supreme Court
   Judge other than the four seniormost Judges of the              D
   Supreme Court, and he cannot consult any High Court
   Judge at all.
   6. Shri Ganguli submits that the matter is required to be
   considered by a larger Bench as the petition raises the
   following issues of constitutional importance:
                                                                   E
   (1) Whether the aforesaid two verdicts viz. the seven-Judge
   Bench and nine-Judge Bench decisions of this Court
   referred to above really amount to amending Article 124(2)
   of the Constitution?
   (2) Whether there is any "Collegium" system for appointing       F
   the Supreme Court or High Court Judges in the
   Constitution?
   (3) Whether the Constitution can be amended by a judicial
   verdict or can it only be amended by Parliament in
   accordance with Article 368?                                    G
   (4) Whether· the constitutional scheme was that the
   Supreme Court and High Court Judges can be appointed
   by mutual discussions and mutual consensus between the
   judiciary and the executive; or whether the judiciary can
                                                                    H
182   SUPREME COURT REPORTS                     [2015] 13S.C.R.

A     alone appoint Judges of the Supreme Court and High
      Courts?
      (5) Whether the word "c011sultation" in Article 224 means
      "concurrence"?
      (6) Whether by judicial interpretation words in the
B     Constitu~ion can be made redundant, as appears to have
      been done in the aforesaid two decisions which have made
      consultation with the High Court Judges redundant while
      appointing a Supreme Court Judge despite the fact that it
      is permissible on the clear language of Article 124(2)?
c     (7) Whether the clear language of Article 124(2) can be
      altered by judicial verdicts and instead of allowing the
      President of India to consult such Judges of the Supreme
      Court as he deems necessary (including even junior
      Judges) only the Chief Justice of India and four seniormost
D
      Judges of the Supreme Court can alone be consulted while
      appointing a Supreme Court Judge?
      (8) Whether there was any convention that the President
      is bound by the advice of the Chief Justice of India, and
      whether any such convention (assuming there was one)
 E
      can prevail over the clear language of Article 124(2)?
      (9) Whether the opinion of the Chief Justice of India has
      any primacy in the aforesaid appointments?
      (10) Whether the aforesaid two decisions should be
 F    overruled by a larger Bench?
      7. Mr G.E. Vahanvati, learned Attorney General for India,
      supports the petitioner contending that the aforesaid
      judgments require reconsideration. However, he also
      submits:
G     (a) A writ petition under Article 32 is not maintainable at the
      behest of a trust as the trust cannot claim violation of any
      of its fundamental rights;
      (b) The petitioner has no locus standi to seek review of the
      judgments of this Court. In fact, a petition under Article 32
H
  SUPREME COURT ADVOCATES-ON-RECORD                                183
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   of the Constitution does not lie to challenge the correctness   A
   of a judicial order; and
   (c) A Bench of two Judges cannot examine the correctness
   of the judgment of a nine-Judge Bench.
   (d) A Bench of two Judges cannot refer the matter to the
   larger Bench of nine Judges or more, directly.                  B
   xxxx                xxxx                           xxxx
   11. However, Mr Ganguli dealing with the issue of locus
   standi of the Trust has submitted that the petition may not
   be maintainable but it should be entertained because it
   raises a large number of substantial questions of law. In C
   order to fortify his submission he places reliance upon a
   recent Constitution Bench judgment of this Court in B.P.
   Singhal v. Union of India (2010) 6 SCC 331 wherein while
   dealing with the issue of removal of Governors, this Court
                                                                 0
   held as under: (SCC p. 346, para 15)
   "15. The petitioner has no locus to maintain the petition in
   regard to the prayers claiming relief for the benefit of the
   individual Governors. At all events, such prayers no longer
   survive on account of passage of time. However, with E
   regard to the general question of public importance referred
   to the Constitution Bench, touching upon the scope of
   Article 156(1) and the limitations upon the doctrine of
   pleasure, the petitioner has the necessary locus."
   Thus, Mr Ganguli submits that considering the gravity of F
   the issues involved herein, the matter should be entertained.
   12. While dealing with the issue of reference to the larger
   Bench, Mr Ganguli has placed a very heavy reliance on
   the recent order of this Court dated 30-3-2011 in Mineral
   Area Development Authority v. SAIL (2011) 4 SCC 450, G
   wherein considering the issue of interpretation of the
   constitutional provisions and validity of the Act involved
   therein, a three-Judge Bench presided over by the Hon'ble
    Chief Justice has referred the matter to a nine-Judge Bench.
                                                                   H
184         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A            13. At this juncture, Mr Ganguli as well as Mr Vahanvati
             have submitted that even at the stage of preliminary hearing
             for admission of the petition, the matter requires to be heard
             by a larger Bench as this matter has earlier been dealt
             with by a three-Judge Bench and involves very complicated
B            legal issues.
             14. In view of the above, we place the matter before the
             Hon'ble the Chief Justice for appropriate directions."
      It was pointed out, that when the above matter was placed
C     before a three-Judge Bench of this Court, the same was
      dismissed on the ground of locus standi. Yet, since the above
      order was passed in the absence of the petitioner trust, an
      application had been moved for recall of the above order. It
      was his assertion, that whether or not a recall order was passed
0     with reference to the questions raised, it was apparent, that a
      Bench of this Court has already expressed the view, that the
      conclusions drawn in the Second and Third Judges cases,
      need a relook.
         37. Finally, to support the above suggestions, the Court's ·
 E attention was drawn to the observations recorded by H.M.
   Seervai in the 4th edition of his book "Constitutional Law of
   India" wherein, with reference to the Second Judges case, very
   strong and adverse views were expressed. The aforesaid
   views are contained in paragraphs 25.448 to 25.497. For
 F reasons of brevity, it is not possible for us to extract the same
   herein. Suffice it to state, that the submissions advanced by
   the learned Attorney General, as have been detailed in the
   foregoing paragraphs, were more or less, in accord with the
 G views expressed by H.M. Seervai.
           38. In order to contend, that it was open to this Court, to
   make a reference for reconsideration of the matters already
   adjudicated upon, the learned Attorney General, invited our
   attention to Jindal Stainless Limited v. State of Haryana 16 •
 H 1• (201 O) 4 sec 595
  SUPREME COURT ADVOCATES-ON-RECORD                              185
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   "6. In Keshav Mills Co. Ltd. v. CITAIR 1965SC1636 ... (AIR A
   pp.1643-44, para 23) a Constitution Bench of this Court
   enacted the circumstances in which a reference to the
   larger Bench would lie. It was held that in revisiting and
   revising its earlier decision, this Court should ask itself
   whether in the interest of the public good or for any other B
   valid and compulsive reasons, it is necessary that the
   earlier decision should be revised? Whether on the earlier
   occasion, did some patent aspects of the question remain
   unnoticed, or was the attention of the Court not drawn to.
   any relevant and material statutory provision, or was any C
   previous decision bearing on the point not noticed? What
   was the impact of the error in the previous decision on
   public good? Has the earlier decision been followed on
   subsequent occasions either by this Court or by the High D
   Courts? And, would the reversal of the earlier decision lead
   to public inconvenience, hardship or mischief?
   7. According to the judgment in Keshav Mills case these
   and other relevant considerations must be born in mind
   whenever this Court is called upon to exercise its E
   jurisdiction to review and revisit its earlier decisions. Of
   course, in Keshav Mills case a caution was sounded to
   the effect that frequent exercise of this Court of its power
   to revisit its earlier decisions may incidentally tend to make
   the law uncertain and introduce confusion which must be F
    avoided. But, that is not to say that if on a subsequent
    occasion, the Court is satisfied that its earlier decision was
    clearly erroneous, it should hesitate to correct the error.
    8. In conclusion, in Keshav Mills case, this Court observed
   that it is not possible to lay down any principles which should G
    govern the approach of the Court in dealing with the
    question of revisiting its earlier decision. It would ultimately
    depend upon several relevant considerations.
    9. In Central Board of Dawoodi Bohra Community v. State -
    of Maharashtra (2005) 2 SCC 673 ... , a Constitution Bench H
186         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A           of this Court observed that, in case of doubt, a smaller
            Bench can invite attention of Chief Justice and request for
            the matter being placed for hearing before a Bench larger
            than the one whose decision is being doubted."
        39. With the above noted submissions, learned Attorney
 B General for India concluded his address, for the review of the
   judgments in the Second and Third Judges cases.
             40. Mr. K.K. Venugopal, learned senior counsel,
      commenced his submissions by highlighting the main features
 c    of the Constitution (67th Amendment) Bill, 1990. He invited
      our attention, to the proposed amendments of Articles 124,
      217, 222 and 231, and more particularly, to the inserstion of
      Part XlllA in the Constitution, under the heading "National
      Judicial Commission". Article 307A was proposed as the
 D    singular Article in Part XII IA. Based on the constitution of the
      National Judicial Commission, it was asserted, that the above
      Bill, had been introduced, to negate the effect of the judgment
      of this Court in the First Judges case. It was submitted, that
      when the aforesaid Bill was introduced in the Parliament, the
 E    Supreme Court Bar Association, of which Mr. Venugopal
      himself was the then President, organized a seminar on
      1.9.1990, for the purpose of debating the pros and cons of the
      Constitution (67 1h Amendment) Bill, 1990. It was submitted,
      that a large number of speakers had taken part in the debate
 F    and had made important suggestions. The above
      suggestions, drafted as a resolution of the seminar, were
      placed before the House, and were passed either unanimously
      or with an overwhelming majority. It was submitted, that the
      aforesaid resolutions were forwarded to the Chief Justice of
 G
      India, through a covering letter dated 5.10.1990. It was pointed
      out, that resolutions were also passed, at the conclusion of the
      Chief Justices' Conference, held between 31.8.1990 and
      2.9.1990, wherein also, the provisions of the Constitution (671h
 H    Amendment) Bill, 1990, were deliberated upon. It was
    SUPREME COURT ADVOCATES-ON-RECORD                                187
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

submitted, that he had made a compilation of the resolutions          A
passed at the Chief Justices Conference, and the conclusions
drawn in the Second Judges case, which would give a bird's
eye view, of the views expressed. The compilation to which
learned counsel drew our attention, is being extracted
hereunder:                                                            B
      " ... (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 C
       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 D
      ·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 E
       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 F
       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.                 G
        (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
                                                                      H
188          SUPREME COURT REPORTS                     [2015] 13S.C.R.


A            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
B            healthy convention .... "
             Based on the aforesaid compilation, it was contended,
      that the judgment rendered in the Second Judges case,
      completely obliterated three salient features of Article 124.
C     Firstly, under the original Article 124, the main voice was that
      of the President. · It was submitted, that the voice of the
      President was totally choked in the Second Judges case.
      Secondly, Article 124, as it was originally framed, vested the
      executive with primacy, in respect of the appointments to the
 0    higher judiciary, whereas the position was reversed by the
      Second Judges case, by vesting primacy with the judiciary.
      Thirdly, the role of the Chief Justice of India, which was originally,
      that of a mere consultee, was "turned over its head", by the
      decision in the Second Judges case. Now, the collegium of
 E    Judges, headed by the Chief Justice of India, has been vested
      with the final determinative authority for making appointments
      to the higher judiciary. And the President is liable to "concur",
      with the recommendations made. Based on the above
      assertions, it was the submission of the learned counsel, that
 F    by wholly misconstruing Article 124, the Supreme Court had
      assumed the entire power of appointment. And the voice of
      the executive had been completely stifled. It was submitted,
      that the judiciary had performed a legislative function, while
      interpreting Article 124. It was asserted, that originally the
 G    founding fathers had the power to frame the provisions of the
      Constitution, and thereafter, the Parliament had the power to
      amend the Constitution in terms of Article 368. It was
      submitted, that the role assigned to the Constituent Assembly,
      as also to the Parliament, has been performed by this Court in
 H
     SUPREME COURT ADVOCATES-ON-RECORD                              189
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

the Second Judges case. It was submitted, that all this had         A
been done in the name of"judicial independence". The above
logic was sought to be seriously contestecj by asserting, that
judicial independence could not stand by itself, there was
something like judicial accountability also, which had to be kept
in mind.                                                            B
         41. It was also contended, that the judiciary had taken
  upon itself, the exclusive role of making appointments to the
  higher judiciary, without taking into consideration any of the
  stakeholders. It is submitted, that the judiciary is meant for the c
  litigating community, and therefore, the litigating community
  was liable to be vested with some role in the matter of
  appointments to the higher judiciary. Likewise, it was pointed
  out, that there were about ten lakhs lawyers in this country. They
  also had not been given any say in the matter. Even the Bar D
  Associations, which have the ability to represent the lawyers'
  fraternity, had been excluded from any role in the process of
  appointments. It was highlighted, that under the old system,
  all the above st~keholders, had an opportunity to make
  representations to the executive, in the matter of appointments E
  to the higher judiciary. But, that role has now been totally
  excluded, by the interpretation placed on Article 124, by the
  Second Judges case. The Court's attention was drawn to
  conclusion no.14 drawn in the summary of conclusions
  (recorded in paragraph 486, in the Second Judges case) that F ~
  the majority opinion in the First Judges case, insofar as, it had
  taken a 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, did not commend itself as being the correct view. G
  Accordingly it was concluded, that the relevant provisions of
  the Constitution including the constitutional scheme must now
  be construed, understood and implemented, in the manner
  indicated in the conclusions drawn in the Second Judges case. H
190        SUPREME COURT REPORTS               [2015] 13 S.C.R.


A The above determination, according to learned counsel, was
  absolutely misconceived, as the same totally negated the effect
  of Article 74, which required the President to act only on the
  aid and advice of the Council of Ministers. According to learned
  counsel, the President would now have to act as per the dictate
B of the Chief Justice of India and the collegium of Judges. It
  was submitted, that it was impermissible in law, for a party to
  make a decision in its own favour. This, according to learned
  counsel, is exactly what the Supreme Court had done in the
  Second Judges case. It was contented, that the impugned
C constitutional amendment was an effort at the behest of the
  Parliament, to correct the above historical aberration. Learned
  counsel concluded, by asserting, that there were two Houses
  of Parliament under the Constitution, but the Supreme Court
  in the Second Judges case, had acted as a third House of
0
  Parliament, namely, as the House of corrections. In the
  background of the aforesaid factual position, it was submitted,
  that when the Union of India and the States which ratified the
  Constitution (99th Amendment) Act, seek reconsideration of
E the Second Judges case, was it too much, that the Union and
  the States were asking for?
          42. Following the submissions noticed hereinabove, we
   heard Mr. K. Parasaran, Senior Advocate, who also supported
   the prayer made by the learned Attorney General. It was
 F submitted, that the appointment of Judges had nothing to do
   with "independence of the Judge" concerned, or the judicial
   institution as a whole. It was submitted, that subsequent to
   their appointment to the higher judiciary, the conditions of
   service of Judges of the High Court and the Supreme Court
 G were securely protected. Thereafter, the independence of the
   Judges depended on their judicial conscience, and the
   executive has no role to play therein.
           43. It was asserted, that the Judges who expressed the
 H    majority view, in the Second Judges case, entertained a
    SUPREME COURT ADVOCATES-ON-RECORD                                  191
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

preconceived notion about the "basic structure", even before           A
hearing commenced, in the Second Judges case. In this behalf,
he placed reliance on the resolutions passed at the conclusion
of the Chief Justices' Conference, held between 31.8.1990
and 2.9.1990. It was asserted, that the controversy had not
been adjudicated on the basis ~fan independent assessment,             B
of the views expressed in the Constituent Assembly debates
(with reference to the text of Article 124 ). It was submitted, that
the interpretation rendered on Article 124, expressly ignored,
not only the simple langu_age indicating the procedure for
appointment of Judges, but also the surrounding constitutional         C
provisions. According to learned senior counsel, the judiciary
had encroached into the executive power of appointment of
Judges. This amounted to encroaching into a constitutional
power, reserved for the executive, by the Constitution. It was         D
asserted, that the power of amendment of the Constitution,
vested in the Parliament under Article 368, was only aimed at
keeping the Constitution in constant repair. It was submitted,
that the aforesaid power vested with the Parliament, could not
have been exercised by the Supreme Court, by substituting              E
the procedure of appointment of Judges, in the manner the
Supreme Court felt. It was submitted, that in the Second Judges
case, as also, the Third Judges case, the Supreme Court had
violated the "basic structure", by impinging upon legislative
 power. It was contended, that it was imperative for this Court        F
to have a re-look at the two judgments, so as to determine,
whether there had been a trespass by the judiciary, into the
legislative domain. And, if this Court arrives at the conclusion,
that such was the case, it should strike down its earlier
determination. It was further submitted, that the majesty of the       G
 Constitution, must be maintained and preserved at all costs,
 and there should be no hesitation in revisiting any earlier
judgment, so as to correct an erroneous decision. With the
 aforesaid observations, learned counsel commended the
 Bench, to accept the prayer made by the learned Attorney              H
192         SUPREME COURT REPORTS                [2015] 13 S.C.R.


A     General, and to make a reference for reconsideration of the
      judgments rendered by this Court, in the Second and Third
      Judges cases, to a Bench with an appropriate strength.
          44. Mr. Ravindra Srivastava, Senior Advocate, also
 B supported the submissions for reference to a larger Bench. It
   was submitted, that the conclusions drawn by this Court in the
   Second Judges case, and the Third Judges case, were liable
   to be described as doubtful, because a large number of salient
   facts, had not been taken into consideration, when the same
c  were decided. It was the contention of the learned counsel,
   that the submissions advanced on behalf of the petitioners, on
   merits, could not be supported by the text of the constitutional
   provisions, and that, the petitioners' reliance squarely based
   on the majority judgment in the Second Judges case, as was
 o further explained in the Third Judges case, was seriously
   flawed. It was submitted, that the thrust of the submissions
   advanced on behalf of the petitioners on merits had been, not
   only that the consultation with the Chief Justice of India was
   mandatory, but the opinion of the collegium of Judges was
 E binding on the executive. It was asserted, that neither of the
   above requirements emerged from the plain reading of Article
    124. It was asserted, that the basis of the learned counsel
    representing the petitioners, to assail the impugned
   constitutional amendment, as also the NJAC Act, was squarely
 F premised on the above determination. It was asserted, that
   the conclusion of primacy of the judiciary, in the matter of
    appointment of Judges in the higher judiciary, could not be
    supported by any text of the original constitutional provisions.
    It was, accordingly suggested, that it was absolutely imperative
 G to correct the majority view expressed in the Second Judges
    case.
         45. According to the learned counsel, the primary
   objection raised, at the behest of the petitioners, opposing
 H the reconsideration of the decision rendered in the Second
    SUPREME COURT ADVOCATES-ON-RECORD                                193
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Judges case, was based on the observations recorded in               A
paragraph 10 of the Third Judges case, wherein the statement
of the then Attorney General for India, had been recorded, that
the Union of India was not seeking a review or reconsideration
of the judgment in the Second Judges case. It was submitted,
that the aforesaid statement, could not bar the plea of              B
reconsideration, for all times to come. It was further submitted,
that the above statement would not bind the Parliament. It was
contended, that the statement to the effect, that the Union of
India, was not seeking a review or reconsideration of the
Second Judges case, should not be understood to mean, that           C
it was impliedly conceded, that the Second Judges case had
been correctly decided. It was pointed out, that the advisory
jurisdiction under Article 143, which had been invoked by the
Presidential Reference made on 23.7.1998, requiring this             D
Court to render the Third Judges case, was neither appellate
nor revisionary in nature. In this behalf, learned counsel placed
reliance on Re: Cauvery Water Disputes Tribunal1 7 , wherein it
was held, that an order passed by the Supreme Court, could
be reviewed only when its jurisdiction was invoked under Article     E
137 of the Constitution (read with Rule 1 of Order 40 of the
Supreme Court Rules, 1946). And that, a review of the
judgment rendered by the Supreme Court, in the Second
Judges case, could not be sought through a Presidential
 Reference made under Article 143. In fact, this Court in the        F
above judgment, had gone on to conclude, that if the power of
review was to be read in Article 143, it would be a serious
 inroad into the "independence of the judiciary". It was therefore
submitted, that the statement of the then Attorney General,
during the course of hearing of the Third Judges case, could         G
not be treated as binding, for all times to come, so as to deprive
the executive and the legislature from even seeking a review
of the judgments rendered. It was therefore contended, that it
11 1993 Supp (1)   sec 96(11)
                                                                     H
194         SUPREME COURT REPORTS                    [2015]13S.C.R.


A     was implicit while discharging its duty, that ·this Court was
      obliged to correct the errors of law, which may have been
      committed in the past. Learned counsel contended, that a
      perusal of the judgment of this Court in the Subhash Sharma
      case4 , clearly brought out, that no formal request was made to
 B    this Court for reconsideration of the legal position declared by
      this Court in the First Judges case. Yet, this Court, on its own
      motion, examined the correctness of the First Judges case,
      and suo motu, made a reference of the matter, to a nine-Judge
      Bench, to reconsider the law declared in the First Judges case.
 c
            46. While pointing to the reasons for reconsideration of
      the law laid down by this Court in the Second Judges case
      (read with the Third Judges case), learned senior counsel,
      asserted, that the essence of Article 124, had been completely
 o    ignored by the majority view. Learned senior counsel,
      accordingly, invited our attention to the scheme of Article 124(2)
      and canvassed and summarized the following salient features
      emerging therefrom:
             "i. The authority to appoint Judges of the higher judiciary
 E           was vested in the President.
             ii. The above power of appointment by the President, was
             subject to only one condition, namely, 'consultation'.
             iii. The above consultation was a two-fold - one which in
 F           the opinion of the President may be deemed necessary,
             and the other which was mandatory.
             iv. The mandatory consultation was with the Chief Justice
             of India. The consultation which the President may have
             'if deemed necessary for the purpose, was with judges of
 G           the Supreme Court and also of the High Courts in the states,
             as may be felt appropriate.
             v. There was no limitation on the power, scope and ambit
             of the President to engage in consultation, he may not only
             with the judges of the Supreme Court, but may also consult
 H
  SUPREME COURTADVOCATES-ON-RECORD                                   195
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   judges of High Courts as he may deem necessary, for this          A
   purpose.       vi. There was also no limitation on the
   President's power of consultation. He could consult as
   many judges of the Supreme Court and High Courts which
   he deemed necessary for the purpose.
   vii. Having regard to the object and purpose of the               B
   appointment of a judge of the Supreme Court, and that,
   such appointment was to the highest judicial office in the
   Republic, was clearly intended to be broad-based,
   interactive, informative and meaningful, so that, the             C
   appointment was made of the most suitable candidate.
   viii. This aspect of the power of consultation of the
   President, as had been provided had been completely
   ignored in the majority judgment in Second Judges' case.
   And the focus has been confined only to the consultation,         D
   with the Chief Justice of India.
   ix. The interpretation of the consultative process, and the
   procedure laid down, in the majority judgement in the
   Second Judges case, that the President's power of
   consultation, was all-pervasive had been 'circumscribed',         E
   having been so held expressly in paragraph 458 (by Justice
   J.S. Verma) in the Second Judges' case.
   x. The majority judgment has focused only on the
   requirement of consultation by the President with the Chief       F
   Justice of India which is requirement of proviso, ignoring
   the substantive part.
   xi. The collegium system had been evolved! for consultation
   with the Chief Justice of India on the interpretation, that for
   purposes of consultation with the Chief Justice of India,         G
   the CJI alone as an individual would not matter, but would
   mean in plurality i.e. his collegium. But this is an
   interpretation only of the proviso and not of the substantive
   part of Article 124(2).
                                                                     H
196         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A            Xii The collegium system was evolved for consultation with
             the CJI and his colleagues in particular in fixed numbers
             as laid down in the judgment.
             xiii. The whole provision for consultation by the President
             of India with the judges of the Supreme Court and the High
B            Court, had thus been stultified, in ignorance of the
             substantive part of Article 124(2), and as such, one was
             constrained to question the majority judgment as being 'per
             incuriam'."
c           47. According to learned senior counsel, a perusal of
      the judgment in the Subhash Sharma case4 would reveal, that
      reconsideration of the judgments in the First Judges case, was
      only on two issues. Firstly, the status and importance of
      consultation, and the primacy of the position of the Chief Justice
 D    of India. And secondly, the justiceability offixation, of the judge-
      strength of a Court. It was asserted, that no other issuewas
      referred for reconsideration. This assertion was sought to be
      supported with the following observations; noticed in the
      Subhash Sharma case 4 :
 E           "49. . .... Similarly, the writ application filed by Subhash
             Sharma for the reasons indicated above may also be
             disposed of without further directions. As and when
             necessary the matter can be brought before the court. As
             in our opinion the correctness of the majoritv view in S.P.
 F
             Gupta case [(1981) Supp.    sec     87] should be considered
             by a larger bench we direct the papers of W.P. No.1303 of
             1987 to be placed before the learned Chief Justice for
             constitutihg a bench of nine Judges to examine the two
             guestions we have referred to above. namely, the position
 G
             of the Chief Justice of India with reference to primacy and.
             secondly, justiciability of fixation of Judge strength."
           It was asserted, that there was no scope or occasion for
      the Bench hearing the Sec.ond Judges case, to rewrite the
·H    Constitution, on the subject of appointment of Judges to the
       SUPREME COURT ADVOCATES-ON-RECORD                                  197
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

higher judiciary. It was submitted, that the observations A
recorded in the Second Judges case, in addition to the above
mentioned two. issues, were liable to be regarded as obiter
dicta. In the Second Judges case, the ratio decidendi,
according to learned counsel, was limited to the declaration
of the legal position, only on the two issues, referred to the B
larger Bench for consideration. Thus viewed, it was asserted,
that all other conclusions recorded in the Second Judges case,
on issues other than the two questions referred for
reconsideration, cannot legitimately be described as binding
law under Article 141. To support the above contention, reliance C
was placed on Kerala State Science and Technology Museum
v. Rambal Co. 18 , wherein this Court held as under:
         "8. It is fairly well settled that when reference is made on a
         specific issue either by a learned Single Judge or Division      D
         Bench to a larger Bench i.e. Division Bench or Full Bench
         or Constitution Bench, as the case may be, the larger
         Bench cannot adjudicate upon an issue which is not the
         question referred to. (See Kesho Nath Khurana v. Union of
         India [(1981) Supp. SCC 38], Samaresh Chandra Bose v.            E
         District Magistrate, Burdwan [(1972) 2 SCC 476] and K.C.P.
         Ltd. v. State Trading Corpn. of India [(1995) Supp. (3) SCC
         466]."
      48. Learned senior counsel submitted, that in the Second
Judges case, this Court assigned an innovative meaning to                 F
the words "Chief Justice of India", by holding that the term "Chief
Justice of India" in Article 124, included a plurality of Judges,
and not the individual Chief Justice of India. This, according
to learned counsel, was against the plain meaning and text of
Article 124. Learned counsel, went on to add, that this Court             G
in the Second Judges case, had laid down an inviolable rule
of seniority, for appointment of Chief Justice of India. It also
laid down, the rules and the norms, for transfer of Judges and
10   (2006) 6 sec 258
                                                                          H
198         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A     Chief Justices, from one High Court to another. It also
      concluded, that any transfer of a Judge or Chief Justice of a
      High Court, made on the recommendation of the Chief Justice
      of India, would be deemed to be non-punitive. In sum and
      substance, learned counsel contended, that the Second
B     Judges case, laid down a new structure, in substitution to the
      role assigned to the Chief Justice of India. The conclusions
      recorded in the Second Judges case, according to learned
      counsel, could not be described as a mere judicial
      interpretation. It was asserted, that the same was nothing short
C     of judicial activism (or, judicial legislation).
            49. Learned senior counsel then invited the Court's
      attention, to the principles laid down for reconsideration, or
      review of a previous judgment. For this he pointedly invited
o     the Court's attention to Bengal Immunity Co. Ltd. v. State of
      Bihar19 , Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of
      Greater Bombay20 , and Union of India v. Raghubir Singh 21 •
      Learned counsel also referred to Pradeep Kumar Biswas v.
      Indian Institute of Chemical Biology22 , wherein it was observed:
E            "61. Should Sabhajit Tewary (1975) 1 SCC 485 ... still stand
             as an authority even on the tacts merely because it has
             stood for 25 years? We think not. Parallels may be drawn
             even on the facts leading to an untenable interpretation of
             Article 12 and a consequential denial of the benefits of
 F           fundamental rights to individuals who would otherwise be
             entitled to them and
             "(!]here is nothing in our Constitution which prevents us
             from departing from a previous decision if we are convinced
             of its error and its baneful effect on the general interests of
G
             the public." [Bengal Immunity Co. Ltd. v. State of Bihar, AIR
             1955 SC 661, 672] (AIR p. 672, para 15)
      " (1955) 6 SCR 603
      20
                sec
         (1974) 2    402
H     21
                sec
         (1989) 2    754
       SUPREME COURT ADVOCATES-ON-RECORD                              199
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

         Since on a re-examination of the guestion we have-come       A
         to the conclusion that the decision was plainly erroneous.
         it is our duty to say so and not perpetuate our mistake."
     It was pointed out, that in the Second Judges case, S.
Ratnavel Pandian, J. had observed as follows:
                                                                      B
         "17. So it falls upon the superior courts in a large measure
         the responsibility of exploring the ability and potential
         capacity of the Constitution with a proper diagnostic insight
         of a new legal concept and making tbis flexible instrument
         serve the needs of the people of this great nation without C
         sacrificing its essential features and basic principles which
         lie at the root of Indian democracy. However, in this process,
         our main objective should be to make the Constitution quite
         understandable by stripping away the mystique and enigma
         that permeates and surrounds it and by clearly focussing D
         on the reality of the working of the constitutional system
         and scheme so as to make the justice delivery system
         more effective and resilient. Although freguent overruling
         of decisions will make the law uncertain and later decisions
         unpredictable and this Court would not normally like to E
         reopen the issues which are concluded it is by now well
         settled by a line of judicial pronouncements that it is
         emphatically the province and essential duty of the superior
         courts to review or reconsider their earlier decisions, if so
         warranted under compelling circumstances and even to F
         overrule any questionable decision. either fully or partly, if
         it had been erroneously held and that no decision enjoys
         absolute immunity from judicial review or reconsideration
         on a fresh outlook of the constitutional or legal interpretation
         and in the light of the development of innovative ideas, G
          principles and perception grown along with the passage of
         time. This power squarely and directly falls within the rubric
         of judicial review or reconsideration."
22
     (2002) s sec 111                                                  H
200        SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A         It was submitted, that Kuldip Singh, J., in the Second
      Judges case, had recorded as follows:
            "320. It is no doubt correct that the rule of stare decisis
            brings about consistency and uniformity but at the same
            time it is not inflexible. Whether it is to be followed in a
 B          given case or not is a question entirely within the discretion
            of this Court. On a number of occasions this Court has
            been called upon to reconsider a question already decided.
            The Court has in appropriate cases overruled its earlier
            decisions. The process of trial and error, lessons of
 c          experience and force of better reasoning make this Court
            wiser in its judicial functioning. In cases involving vital
            constitutional issues this Court must feel to bring its
            opinions into agreement with experience and with the facts
            newly ascertained. Stare decisis has less relevance in
 D
            constitutional cases where save for constitutional
            amendments. this Court is the only body able to make
            needed changes. Re-examination and reconsideration are
            among the normal processes of intelligent living. We have
 E          not refrained from reconsideration of a prior construction
            of the Constitution that has proved "unsound in principle
            and unworkable in practice."
         Based on the above, learned counsel summarized his
   assertions as follows. Firstly, the real constitutional question,
 F requiring re-examination, was in the context of appointment of
   Judges to the higher judiciary, was the interpretation of Article
   74. Because the Second Judges case, had made a serious
   inroad into the power of the President which was bound to be
   exercised in consonance with Article 74. It was contended,
 G that the functioning of the President, in the absence of the aid
   and advice of the Council of Ministers, could not just be
   imagined under the scheme of the Constitution. And therefore,
   the substitution of the participatory role of the Council of
 H Ministers (or, the Minister concerned), with that of the Chief
    SUPREME COURT ADVOCATES-ON-RECORD                               201
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Justice of India in conjunction with his collegium, was just        A
unthinkable. And secondly, that the First Judges case, was
wrongly overruled, and the correct law for appointment of
Judges, vis-a-vis the role of the executive, was correctly laid
down in the First Judges case, by duly preserving the
"independence of the judiciary". It was submitted, that reference   B
to a larger Bench was inevitable, because it was not open to
the respondents, to canvass the above submission, before a
five-Judge Bench."
      50. Mr. Harish N. Salve and Mr. T.R.Andhyarujina, learned     c
senior counsel, addressed the Court separately. Their
submissions were however similar. It was their contention,
that a Constitutional Court revisits constitutional issues, from
time to time. This, according to learned counsel, has to be
done because the Constitution is a living document, and D
needed to be reinvented, to keep pace with .the change of
times. It was submitted, that this may not be true for other
branches of law, wherein judgments are not revisited, because
the Courts were expected to clearly and unambiguously follow
the principle of stare decisis, with reference to laws dealing E
with private rights. Insofar as the controversy in hand is
concerned, it was submitted, that the conclusions recorded by
this Court in the Second and Third Judges cases, indicated
doubtful conclusions, because a large number of salient facts
(as have been recorded above), .had not been taken into F
consideration. It was submitted, that expediency in a
controversy like the one in hand, should be in favour of the
growth of law. It was submitted, that in their view this was one
such case, wherein the issue determined by this Court in the
Second and Third Judges cases, needed to be re-examined G
by making a reference to a larger Bench. Learned counsel
pointed out, that the submissions made in the different petitions
filed before this Court, were not supported by the text of any
constitutional provision, but only relied on the legal position
                                                                  H
202          SUPREME COURT REPORTS                  [2015] 13S.C.R.


A declared by this Court, in the above two cases. In such an
  important controversy, according to learned counsel, this Court
  should not be hesitant in revisiting its earlier judgments. Mr.
  Andhyarujina posed a query, namely, can we decide the
  controversy raised in the present case, without the
B reconsideration of the judgments in the Second and Third
  Judges cases? He answered the same through another query,
  how can appointments of Judges be by Judges? The above
  position was again posed differently, by putting forth a further
  query, car1 primacy rest with the Chief Justice of India in the
C matter of appointment of Judges to the higher judiciary?
           51. Mr. Ajit Kumar Sinha, learned Senior Advocate, in
      support of his contention, that the matter needed to be heard
      by a larger Bench, placed reliance on Mineral Area
 o    Development Authority v. Steel Authority of lndia 23 , and invited
      our attention to question no.5 of the reference made by this
      Court:         ·
             "5. Whether the majority decision in State of W.B. v.
             Kesoram Industries Ltd. [(2004) 10 SCC 201] could be
 E           read as departing from the law laid down in the seven-
             Judge Bench decision in India Cement Ltd. v. State of
             T.N. [(1990) 1sec12)?"
            It was pointed out, that the above question came to be
 F framed because in State of West Bengal v. Kesoram Industries
   Ltd. 24 , this Court by a majority of 4:1 had clarified the judgment
   rendered by a seven-Judge Bench of this Court in India Cement
   Ltd. v. State of Tamil Nadu25 • This Court had to frame the above
   question, and refer the matter to a nine-Judge Bench. Learned
 G counsel, then placed reliance on Sub-Committee of Judicial
   Accountability v. Union of lndia 26 , wherein this Court had
   observed as under:
      " (2011 J 4 sec 450
      2
       4
          (2004J 10 sec 201
          ( 1990 J 1 sec 12
      2
        '

 H    2
        ' (1992) 4 sec 97
       SUPREME COURT ADVOCATES-ON-RECORD                                 203
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

            "5. Even if the prayer is examined as if it were an          A
          independent substantive proceeding, the tests apposite to
          such a situation would also not render the grant of this
          relief permissible. The considerations against grant of this
          prayer are obvious and compelling. Indeed. no co-ordinate
          bench of this Court can even comment upon. let alone sit       B
          in judgment over, the discretion exercised or judgment
          rendered in a cause or matter before another co-ordinate
          bench ...... "
      In view of the above, it was contended, that this Court            C
while examining the merits of the controversy in hand, was
bound to rely on the judgments in the Second and Third Judges
cases, to record its conclusions. Referring to the factual
position narrated above, it was submitted, that this Court would
not be in a position to effectively adjudicate on the issues             D
canvassed, till the matter was referred to a nine-Judge Bench
(or even, a still larger Bench).
       52. Mr. Ranjit Kumar, learned Solicitor General of India
submitted, that he would support the claim for reference to a
larger Bench, by relying upon two judgments, and say no more.            E
First and foremost, he placed reliance on the Bengal Immunity
Co. Ltd. case 19 , which itwas pointed out, had considered the
judgment in State of Bombay v. United Motors (India) Ltd. 27 •
The matter, it was submitted, came to be referred to a seven-
Judge Bench, to decide whether the judgment needed to be                 F
reconsidered. This process, according to learned Solicitor
General, need to be adopted in the present controversy as
well, so as to take a fresh call on the previous judgments.
Learned Solicitor General then placed reliance on Keshav                 G
Mills Co. Ltd. v. Commissioner of Income-tax, Bombay North28 ,
wherein a seven-Judge Bench held as under:
          "In dealing with the question as to whether the earlier
27
      (1953) SCR 1069
 26
       (1965) 2 SCR 908                                                  H
204   SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A       decisions of this Court in the New Jehangir Mills case,
        (1960) 1 SCR 249 and the Petlad Co. Ltd. case, (1963)
        Supp. SCH 871, should be reconsidered and revised by
        us, we ought to be clear as to the approach which should
        be adopted in such cases. Mr. Palkhivala has not disputed
 B      the fact that, in a proper case, this Court has inherent
        jurisdiction to reconsider and revise its earlier decisions,
        and so, the abstract question as to whether such a power
        ve~ts in this Court or not need not detain us. In exercising
        this inherent power, however, this would naturally like to
c       impose certain reasonable limitations and would be
        reluctant to entertain pleas for the reconsideration and
        revision of its earlier decisions, unless it is satisfied that
        there are compelling and substantial reasons to do so. It is
        general judicial experience thatin matters of law involving
 D
        que$tion of constructing statutory or constitutional
        provisions, two views are often reasonably possible and
        when judicial approach has to make a choice between the
        two reasonably possible views, the process of decision-
         making is often very difficult and delicate. When this Court
 E
         hears appeals against decisions of the High Courts and is
         required to consider the propriety or correctness of the view
        taken by the High Courts on any point of law, it would be
         open to this Court to hold that though the view taken by the
 F       High Court is reasonably possible. the alternative view
        which is also reasonably possible is better and should be
         preferred. In such a case. the choice is between the yiew
        taken by the High Court whose judgment is under appeal,
        and the alternative view which appears to this Court to be
 G       more reasonable: and in accepting its own view in
         preference to that of the High Court. this Court would be
         discharging its duty as a Court of Appeal. But different
         considerations must inevitably arise where a previous
      · decision of this Court has taken a particular view as to the
 H       construction of a statutory provision as, for instance,
  SUPREME COURT ADVOCATES-ON-RECORD                               205
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   s. 66(4) of the Act. When it is urged that the view already A
   taken by this Court should be reviewed and reyjsed. it may
   not necessarily be an adequate reason for such review
   and revision to hold that though the earlier view is a
   reasonably possible view, the alternative view which is
   pressed on the subsequent occasion is more reasonable. B
   In reviewing and revising its earlier decision, this Court
   should ask itself whether in interests of the public good or
   for any other valid and compulsive reasons. it is necessary
   that the earlier decision should be revised. When this Court
   decides questions of law, its decisions are, under Art. 141, C
   binding on all courts within the territory of India, and so, it
   must be the constant endeavour and concern of this Court
   to introduce and maintain an element of certainty and
   continuity in the interpretation of law in the country.Frequent D
   exercise by this Court of its power to review its earlier
   decisions on the ground that the view pressed before it
   later appears to the Court to be more reasonable. may
   incidentally tend to make law uncertain and introduce
    confusion which must be consistently avoided. That is not E
   to say that if 9n a subsequent occasion. the Court is
    satisfied that its earlier decision was clearly erroneous. it
    should. hesitate to correct the error: but bef9re a previous
    decision is pronounced to be plainly erroneous. the Court
    must ge satisfied with a fair amount of unanimity amongst F
    its members that a revision of the said view is fully justified.
    It is not possible.or desirable, and in any case it would be
    inexpedient to lay down any principles which should govern
    the approach of the Court in dealing with the question of
    reviewing and revising its earlier decisions. It would always G
    depend upon several relevant considerations: - What is
    the nature of the infirmity or error on which a plea for a
    review and revision of the earlier view is based? On the
    earlier occasion, did some patent aspects of the question
    remain unnoticed, or was the attention of the Court not drawn . H

                               ).
206   SUPREME COURT REPORTS                     [2015] 13S.C.R.


A     to any relevant and material statutory provision, or was any
      previous decision of this Court bearing on the point not
      noticed? Is the Court hearing such plea fairly unanimous
      that there is such an error in the earlier view? What would
      be the impact·of the error on the general administration of
B     law or on public good? Has the earlier decision been
      followed on subsequent occasions either by this Court or
      by the High Courts? And, would the reversal of the earlier
      decision lead to public inconvenience, hardship or mischief?
      These and other relevant considerations must be carefully
 c    borne in mind whenever this Court is called upon to exercise
      its jurisdiction to review and review and revise its earlier
      decisions. These considerations become $till more
      significant when the earlier decision happens to be a unanimous
      decision of a Bench of five learned Judges of this Court.
 D
      ..... The principle of stare decisis, no doubt, cannot be
      pressed into service in cases where the jurisdiction of this
      Court to reconsider and revise its earlier decisions is
      invoked; but nevertheless, the normal principle that
 E    judgments pronounced by this Court would be final, cannot
      be ignored, and unless considerations of a substantial and
      compelling character make it necessary to do so, this Court
      should and would be reluctant to review and revise its earlier
      decisions. That, broadly stated, is the approach which we
 F    propose to adopt in dealing with the point made by the
      learned Attorney-General that the earlier decisions of this
      Court in the New Jehangir Mills Gase, (1960) 1 SCR 249
      and the Petlad Co. Ltd. case, (1963) Supp. 1 SCR 871,
      should be reconsidered and revised.
 G    Let us then consider the question of construing s. 66(4) of
      the Act. Before we do so, it is necessary to read sub-section
      (1 ), (2) and (4) of s. 66. Section 66(1) reads thus: -
      "Within sixty days of the date upon which he is served with
      notice of an order under sub-section (4) of section 33, the
 H    assessee or the Commissioner may, by application in the
     SUPREME COURT ADVOCATES-ON-RECORD                              207
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       prescribed form, accompanied where application is made by A
       the assessee by a fee of one hundred rupees, require the
       appellate Tribunal to refer to the High Court any question
       of law arising out of such order, and the Appellate Tribunai
       shall within ninety days of the receipt of such application
       draw up a statement of the case and refer it to the High B
       Court." ..... "
       Based on the above, it was asserted, on the basis of the
 factual and legal position projected by the learned Attorney
  General, that the position declared by this Court in the Second C
  Judges case, as also, in the Third Judges case, was clearly
  erroneous. It was submitted, that the procedure evolved by this
  Court for appointment of Judges to the higher judiciary having
. miserably failed, not because of any defect in the
  independence of the procedure prescribed, but because of D
  the "intra-dependence of the Judges", who took part in
  discharging the responsibilities vested in the collegium. of
  Judges, certainly required a re-examination.
      53. It is apparent from the submissions advanced ·at the
hands of the learned counsel representing the Union of India        E
and the different State Governments, that rather than choosing
to respond to the assertions made with reference to the
constitutional validity of the Constitution (99th Amendment)Act,
2014 and the NJAC Act, had collectively canvassed, that the
present five-Judge Bench should referthe present controversy        F
for adjudication to a Bench of nine or more Judges, which could
effectively revisit, if necessary, the judgments rendered by this
Court in the Second and Third Judges cases. In view of ttie
aforesaid consideration, we are of the view, that the               G
observations recorded by this Court, in the Suraz India Trust
case 15 , as also, the fact that the same is pending before this
Court, is immaterial. Consequent upon the instant
determination by us, the above matter will be liable to be
disposed of, in terms of the instant judgment.
                                                                    H
208        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A IV. OBJECTION BY THE PETITIONERS. TO THE MOTION
       FOR REVIEW:
          54. Mr. Fali S. Nariman, disagreed with the suggestion
   that the controversy in hand, needed to be decided by a larger
 B Bench. It was his pointed submission, that the issue canvassed
   had been improperly pressed, by overlooking certain salient
   features, which had necessarily to be taken into consideration,
   before a prayer for reference to a larger Bench could be
   agitated. It was submitted, that all the learned counsel
 c representing the· respondents had overlooked the fact, that the
   interpretation of Article 124 of the Constitution, was rendered
   in the first instance, by a seven-Judge Bench in the First
   Judges case. It was pointed out, that the law declared by this
   Court in the First Judges case, having been doubted, the matter·
 o was referred for reconsideration, before the nine-Judge Bench,
   which delivered the judgment in the Second Judges case. It
   was pointed out, that the prayer for revisitation, which is being
   made at the behest of the learned counsel representing the
   Union of India and the different participating States, was clearly
 E unacceptable, because the legal position declared by this
   Court in the First Judges case had already been revisited in
   the Second Judges case by a larger Constitution Bench. Not
   only that, it was asserted, that when certain doubts arose about
   the implementation of the judgment in the Second Judges case,
 F a Presidential Reference was made under Article 143, resulting
   in the re-examination of the matter, at the hands of yet another
   nine-Judge Bench, where the Union of India clearly expressed
   its stand in ~aragraph 11 as under:
            "11. We record at thei outset the statements of the
 G
            Attorney General that (1) the Union of India is not seeking
            a review or reconsideration of the judgment in the
            Second Judges case and that (2) the Union of India shall
            accept and treat as binding the answers of this Court to
 H          the questions set out in the Reference."
    SUPREME COURT ADVOCATES-ON-RECORD                                209
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      It was submitted, that thereupon, the matter was again         A
examined and the declared legal position in the Second
Judges case, was reiterated and confirmed, by the judgment
rendered in the Third Judges case. Premised on the aforesaid
factual position, learned counsel raised a poser, namely, how
many times, can this Court revisit the same ql!lestion? It was       B
asserted, that just because such a prayer seems to be the
only way out, for those representing the respondents, the same
need not be accepted.
       55. Learned senior counsel pointed out, that the legal        c
position with reference to appointments to the higher judiciary
came to be examined and declared, for the first time, in the
First Judges case, in 1981. It was submitted, thatthe aforesaid
determination would not have been rendered, had this Court's
attention been drawn to the Samsher Singh case 11 , during the       o
course of hearing, in the First Judges case. It was submitted,
that the position declared by this Court in the First Judges case
needed to be revisited, was realized during the hearing of the
case in the Subhash Sharma case 4 • While examining the
justification of the conclusions drawn by this Court, in the First   E
Judges case, the matter was placed for consideration, before
a nine-Judge Bench. It was submitted, that all the issues, which
have now been raised at the hands of learned senior counsel
representing the respondents, were canvassed before the
Bench hearing the Second Judges case. This Court, in the Second      F
Judges case, clearly arrived at the conclusion, that the earlier
judgment rendered in the First Judges case, did not lay down
the correct law. It was submitted, that the legal position had
been declared in the Second Judges case, by a majority of 7:2.
                                                                     G
      56. It was submitted, that th,e minority view, in the Second
Judges case, was expressed by A.M. Ahmadi and M.M.
Punchhi, JJ., (as they then were). Learned senior counsel,
referred to the observations recorded in the Second Judges
case by M.M. Punchhi, J.:                                            H
210   SUPREME COURT REPORTS                      [2015] 138.C.R.


A     "500. Thus S.P. Gupta case. as I view it. in so far as it goes
      to permit the Executive trudging the express views of
      djsapproval or non-recommendation made by the Chief
      Justice of India. and forthat matter when appointing a High
      Court Judge the views of the Chief Justice of the High Court.
 B    is an act of impermissible deprival. violating the spirit of
      the Constitution. which cannot he approved. as it gives an
      unjust and unwarranted additional power to the Executive
      not originally conceived of. Resting of such power with the
      Executive would be wholly inappropriate and in the nature
c     of arbitrary power. The constitutional provisions conceives,
      as it does, plurality and mutuality, but only amongst the
      constitutional functionaries and not at all in the extra-
      constitutional ones in replacement' of the legitimate ones.
      The two functionaries can be likened to the children of the
 D
      cradle, intimately connected to their common mother -
      the Constitution. They recognise each other through that
      connection. There is thus more an obligation towards the
      tree which bore the fruit rather than to the fruit directly.
      Watering the fruit alone is pointless ignoring the roots of
 E
      the tree. The view that the two functionaries must keep
      distances from each other is counter~productive. The
      relationship between the two needs to be maintained with
      more consideration.
 F    xxx                      xxx                      xxx
      503. A centuries old Baconian example given to describe
      the plight of a litigant coming to a court of law comes to my
      mind. It was described that when the sheep ran for shelter
      to the bush to save itself from (ain and hail, it found itself
 G    deprived of its fleece when coming out. Same fate for the
      institution of the Chief Justice of India. Here it results simply
      and purely in change of dominance. In the post - S.P. Gupta
      period, the Central Government i.e. the Law Minister and
      the Prime Minister were found to be in a dominant position
 H    and could even appoint a Judge in the higher judiciary
    SUPREME COURT ADVOCATES-ON-RECORD                                  211
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       despite his being disapproved or not recommended by the         A
       Chief Justice of India and likewise by the Chief Justice of a
       State High Court. Exception perhaps could be made only
       when the Chief Justice was not emphatic of his disapproval
       and was non-committed. His stance could in certain
       circumstance be then treated, as implied consent. These         B
       would of course be rare cases. Now in place of the aforesaid
       two executive heads come in dominant position, the first
       and the second puisne, even when disagreeing with the
       Chief Justice of India. A similar position would emerge when
       appointing a Chief Justice or a Judge of the High Court.        C
       Thus in my considered view the position of the institution
       of the Chief Justice being singular and unique in character
       under the Constitution is not capable of being disturbed. It
       escaped S.P. Gupta case, though in a truncated form. and        D
       not to have become totally extinct. as is being done now.
       Correction was required in that regard in S.P. Gupta, but
       not effacement."
      Pointing to the opinion extracted above, it was asserted,
that the action of the executive to put off the recommendation         E
made by the Chief Justice of India (disapproving the
appointment of a person, as a Judge of the High Court) would
amount to an act of deprival, "violating the sprit of the
Constitution". Inasmuch as, the above demeanour/expression,
would give an unjust and unwarranted power to the executive,           F
which was not intended by the framers of the Constitution. The
Court went on to hold, that the vesting of such power with the
executive, would be wholly inappropriate, and in the nature of
arbitrarx power. It was also noted, that after this Court rendered
its decision in the First Judges case, the Law Minister and the        G
Prime Minister were found to be in such a dominant position,
that they could appoint a Judge to the higher judiciary, despite
his being disapproved (or, even when he was not
recommended at all) by the Chief Justice of India (and likewise,
                                                                       H
      212         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


      A     by the Chief Justice of the High Court). Thus, in the view of
            M.M. Punchhi, J., these details had escaped the notice of the
            authors of the First Judges case, and corrections were .
            required, in that regard', in the said judgment. Accordingly, it
            was the contention of the learned senior counsel, that one of
      B     the minority Judges had also expressed the same sentiments
            as had been recorded by the majority, on the subject of primacy
            of the judiciary in matters regulated under Articles 124, 217
            and 222.
       c          57. ltwas submitted, thatthe issue in hand was examined
            threadbare by revisiting the judgment rendered in the First
            Jutlges case, when this Court reviewed the matter through the
            Second Judges case. It was submitted, that during the
            determination of the Third Judges case, the then Attorney
       o    General for India had made a statement to the Bench, that the
            Union of India, was not seeking a review or reconsideration of
            the judgment in the Second Judges case. Even though, the
            opinion tendered by this Court, consequent upon a reference
            made to the Supreme Court by the President of India under
       E    Article 143, is not binding, yet a statement" was made by
            Attorney General for India, that the Union of India had accepted
            as binding, the answers of this Court to the questions set out
            in the reference. All this, according to learned counsel, stands
            recorded in paragraph 11 of the judgment rendered in the Third
       F    Judges case. According to learned senior counsel, it was
            clearly beyond the purview of the Union of India, to seek a revisit
            of the Second and Third Judges cases.
                 58. Besides the position expressed in the foregoing
       G paragraphs, even according to the legal position declared by
           this Court, it was not open to the Union of India and the State
           Governments, to require this Court to examine the correctness
           of the judgments rendered in the Second ·and Third Judges
           cases. It was submitted, that such a course could only be
       H · adopted, when it was established beyond all reasonable doubt,



'.;
       SUPREME COURT ADVOCATES-ON-RECORD                               213
     ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.]

that the previous judgments were erroneous. Insofar as the             A
instant aspect of the matter is concerned, learned counsel
placed reliance on Lt. Col. Khajoor Singh v. Union of lndia 29
(Bench of 7 Judges), wherefrom learned counsel highlighted
the following:
         "We have given our earnest consideration to the language B
         of Art. 226 and the two decisions of this Court referred to
         above. We are of opinion that unless there are clear and
         co_mpelling reasons, which cannot be denied. we should
         not depart from the interoretation given in these two cases C
         and indeed from any interoretation given in an earlier
         judgment of this Court. unless there is a fair amount of
         unanimity that the earlier decisions are manifestly wrong.
         This Court should not, except when it is demonstrated
         beyond all reasonable doubt that its previous ruling, given D
         after due deliberation and full hearing, was erroneous, go
         back upon its previous ruling, particularly on a constitutional
         issue."
        Reference was also made to the Keshav Mills Co. Ltd.
       28 , wherein a seven-Judge Bench of this Court held as
case                                                                   E
under:
         "It must be conceded that the view for which the learned
         Attorney-General contends is a reasonably possible view,
         though we must hasten to add that the view which has
         been taken by this Court in its earlier decisions is also     F
         reasonably possible. The said earlier view has been
         followed by this Court on several occasions and has
         regulated the procedure in reference proceedings in the
         High Courts in this country ever since the decision of this   G
         Court in the New Jehangir Mills, (1960) 1 SCR 249, was
         pronounced on May 12, 1959. Besides, it is somewhat
         remarkable that no reported decision has been cited before
         us where the question about the construction of
29   (1961) 2 SCR 828                                                  H
214         SUPREME COURT REPORTS                        [2015] 13 S.C.R.


A            s. 66(4) was considered and decided in favour of the
             Attorney-General's contention. Having carefully weighed
             the pros and cons of the controversy which have been
             pressed before us on the present occasion. we are not
             satisfied that a case has been made out to review and
B            revise our decisions in the case of the New Jehangir
             Mills and the case of the Petlad Co. Ltd. (1963) Supp.
             1 SCR 871. That is why we think that the contention
             raised by Mr. Palkhivala must be upheld. In the result,
             the order passed by the High Court is set aside and the
c            matter is sent back to the High Court with a direction
             that the High Court should deal with it in the light of the
             two relevant decisions in the New Jehangir Mills and
             the Petlad Co. Ltd."

D           While referring to Ganga Sugar Corporation Ltd. v. State
      of Uttar Pradesh 30 , our attention was drawn to the following
      observations recorded by the five-Judge Bench:
             "28. We are somewhat surprised that the argument about
             the invalidity of the Act on the score that it is with respect to
 E           a controlled industry' dies hard, despite the lethal decision
             of this Court in Ch. Tika Ramji case [1956] SCR 393.
             Enlightened litigative policy in the country must accept as
             final the pronouncements of this Court by a Constitution
             Bench unless the subject be of such fundamental
 F           importance to national life or the reasoning is so plainly
             erroneous in the light of later thought that it is wiser to be
             ultimately right rather than to be consistently wrong. Stare
             decisis is not a ritual of convenience but a rule with limited
             exceptions, Pronouncements by Constitution Benches
G            should not be treated so cavalierly as to be revised
             freguently. We cannot devalue the decisions of this Court
             to brief ephemerality which recalls the opinion expressed
             by Justice Roberts of the U.S. Supreme Court in Smith v.

H     " (1980) 1 sec 223
    SUPREME COURT ADVOCATES-ON-RECORD                                      215
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      Allwright 321 U.S. 649 at 669 (1944) "that adjudications of          A
      the Court were rapidly gravitating 'into the same class as
      a restricted railroad ticket, good for this day and train only"'."
      Learned counsel while relying upon Gannon Dunkerley
and Co. v. State of Rajasthan 31 (Bench of 5 Judges), referred
to the following:                                                          B
      "28 ...... We are not inclined to agree. The principles
      governing reconsideration of an earlier decision are settled
      by the various decisions of this Court. It has been laid
      down: "This Court should not. accept when it is                      C
      demonstrated beyond all reasonable doubt that its previous
      ruling. given after due deliberation and full hearing. was
      erroneous. go back upon its previous ruling. particularly
      on a constitutional issue." (See: Lt. Col. Khajoor Singh
      vs. The Union of India, (1961) 2 SCR 828). In Keshav Mills           D
      Co. Ltd. vs. CIT, (1965) 2 SCR 908, it has been observed:
      (SCR pp. 921-22)
      " ..... but before a previous decision is pronounced to be
      plainly erroneous, the Court must be satisfied with a fair
      amount of unanimity amongst its members that a revision              E
      of the said view is fully justified."
               xxx                      xxx                       xxx
      30. Having regard to the observations referred to above
      and the stand of the parties during the course of arguments
      before us, we do not consider it appropriate to reopen the           F
      issues which are covered by the decision in Builders'
      Association case .... "
       Having referred to the above judgments, it was submitted,
that it was clearly misconceived for the learned counsel for the           G
respondents, to seek a reference of the controversy, to a larger
Bench forthe re-examination of the decisions rendered by this
Court in the Second and Third Judges cases.


"(1993) 1 sec 364                                                          H
216         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           59. Yet another basis for asserting, that the prayer made
      at the behest of the learned counsel representing the
      respondents for revisiting the judgments rendered by this Court
      in the Second and Third Judges cases, was canvassed on
      the ground that the observations recorded by this Court in the
B     Samsher Singh case 11 (in paragraph 149) could neither be
      understood as stray observations, nor be treated as obiter
      dicta. The reasons expressed by the learned senior counsel
      on the above issue were as follows:
            "(i) In the other case relating to the independence of the
c           judiciary (re transfer of High Court Judges)- UOI vs. Sankal
            Chand Seth, (1977) 4 sec 193 (5J) - as to wtJether a
            Judge of a High Court can be transferred to another High
            Court without his consent, it was deci~ed by majority that
            he could be: the majority consisted of Justice Chandrachud,
D
            Justice Krishna Iyer and Justice Murtaza Fazal Ali.
            (ii) The judgment of Justice Krishna Iyer (on behalf of
            himself and Justice Murtaza f azal Ali in Sankal Chand Seth
            - [with which Bhagwati, J. said he was "entirely in
 E          agreement"] reads as follows (paras 115-116):
            "115. The next point for consideration in this appeal is as
            to the nature, ambit and scope of consultation, as appearing
            in Article 222(11 of the Constitution, with the Chief Justice
            of India. The consultation, in order to fulfil its normative
 F          function in Article 222(1 ), must be a real, substantial and
            effective consultation based on full and proper materials
            placed before the Chief Justice by the Government. Before
            giving his opinion the Chief Justice of India would naturally
            take into consideration all relevant factors and may
 G          informally ascertain from the Judge concerned if he has
            any real personal difficulty or any humanitarian ground on
            which his transfer may not be directed. Such grounds may
            be of a wide range including his health or extreme family
            factors. It is not necessary for the Chief Justice to issue
H
  SUPREME COURT ADVOCATES-ON-RECORD                                   217
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   formal notice to the Judge concerned but it is sufficient -        A
   although it is not obligatory- if he ascertains these facts
    either from the Chief Justice of the High Court or from his
   own colleagues or through any other means which the
    Chief Justice thinks safe, fair and reasonable. Where a
    proposal of transfer of a Judge is made the Government            B ·
    must forward every possible material to the Chief Justice
    so that he is in a position to give an effective opinion.
    Secondly, 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           C
    because the power under Article 222 cannot be exercised
    whimsically or arbitrarily. In the case of
    Chandramouleshwar Prasad v. 'Patna High Court, (1969)
    3 sec 36, while interpreting the word "consultation" as
                                                                      D
    appea.ring in Article 233 of the Constitution this Court
    observed as follows:
    "Consultation with the High Court under Article 233 is not
    an empty formality. So far as promotion of officers to the
     ca9re of District Judges is concerned the High Court is          E
    best fitted to adjudge the claims and merits of persons to
    be .considered for promotion .... We cannot accept this.
     Consultation or deliberation is not complete or effective
   . before the parties thereto make their respective points of
     view known to the other or others and discuss and examine        F
     the relative merits of their views. If one party makes a
     proposal to the other who has a counter proposal in his
     mind which is not communicated to the prosper the
     direction to give effect to the counter proposal without
     anything more, cannot be said to have been issued after          G
     consultation ..
     In Samsher Singh's case, AIR 1974 SC 2192, one of us
     has struck the same chord. It must also be borne in mind
     that if the Government departs from the opinion of the Chief
     Justice of India it has to justify its action by giving cogent   H
218         SUPREME COURT REPORTS                   [2015) 13 S.C.R.


A           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. It seems to us that the word, 'consultation' has
            been used in Article 222 as a matter of constitutional
B           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. Of course, the Chief Justice has
            no power of veto, as Dr. Ambedkar explained in the
            Constituent Assembly."
c           (iii) Justice Chandrachud (in the course of his judgment)
            agreeing - in paragraph 41 of Sankalchand Seth followed
            Shamsher Singh (para 149)."
             Based on the aforesaid, it was the assertion of the
0     learned senior counsel that even if the contention advanced
      by the counsel for the respondents was to be accepted, namely,
      that the decisions rendered by this Court in the above two cases
      were required to be re-examined, by a reference to a larger
      Bench, still the observations recorded in paragraph 149 in the
 E    Samsher Singh case 11 would continue to hold the field, as the
      review of the same had not been sought.
      V. THE CONSIDERATION:
                                     I.
 F       60. In the scheme of the Constitution, the Union judiciary
   has been dealt in Chapter IV of Part V, and the High Courts in
   the States, as well as, the Subordinate-courts have been dealt
   with in Chapters V and VI respectively, of Part VI. The
   provisions of Parts V and VI of the Constitution, with reference
 G to the Union and the States judiciaries including Subordinate-
   courts, have arisen for interpretative determination by this
   Court, on several occasions. We may chronologically notice
   the determination rendered by this Court, with reference to the
   above Parts, especially those dealing with the executive
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                219
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

participation, in the matters relating to the Union judiciary, the    A
High Courts in the States, and the Subordinate-courts. During
the course of hearing, our attention was invited to the following:
(i) Samsher Singh v. State of Punjab, (1974) 2 SCC 831 -
rendered by a five-Judge Bench,
                                                                      B
(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,
(iv) Supreme CourtAdvocates-on-RecordAssociation v. Union             C
of India, (1993) 4 SCC 441 - rendered by a nine-Judge Bench,
and
(v) Re: Special Reference No.1 of 1998, (1998) 7 SCC 739-
rendered by a nine-Judge Bench.
                                                                      D
        This Court on no less than five occasions, has examined
 the controversy which we are presently dealing with, through
  Constitution Benches. In the Samsher Singh case 11 , it was
  concluded, that in all conceivable cases, consultation with the
  highest dignitary in the Indian judiciary-the Chief Justice of      E
  India, will and should be accepted by the Government of India,
  in matters relatable to the Chapters and Parts of the
  Constitution referred to above. 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         F
  of the concerned Minister 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. This Court
. accordingly concluded, that in practice, the last word must
  belong to the Chief Justice of India. The above position was        G
  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. In a
  sense of understanding, this Court in the Samsher Singh case 11 ,
                                                                      H
220         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     is seen to have read the term "consultation" expressed in
      Articles 124 and 217 as conferring primacy to the opinion
      tendered by the Chief Justice. When the matter came to be
      examined in the Sankalchand Himatlal Sheth cases, with
      reference to Article 222, another Constitution Bench of this
B     Court, reiterated the conclusion drawn in the Samsher Singh
      case 11 , 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
 C    other circumstances had entered· into the verdict of the
      executive. More importantly, this Court expressly recorded an
      ardent hope, that the exposition recorded in the Samsher
      Singh case 11 , would not fall on deaf ears. No doubt can be
      entertained, that yet again, this Court read the term
 0
      "consultation" as an expression, conveying primacy in the
      matter under consideration, to the view expressed by the Chief
      Justice. The solitary departure from the above interpretation,
      was recorded by this Court in the First Judges case, wherein
 E    it came to be concluded, that the meaning of the term
      "consultation" could not be understood as "concurrence". In
      other words, it was held, thatthe 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 ..
 F    described as an executive function, and it was held by the
      majority, that the ultimate powerof appointment, unquestionably
      rested with the President. The opinion expressed by this Court
      in the First Judges case, was doubted in the Subhash Sharma
      case4 , which led to the matter being re-examined in the Second
 G    Judges case, at the hands of a nine-Judge Bench, which while
      setting aside the judgment rendered in the First Judges case,
      expressed its opinion in consonance with the judgments ·.
      rendered in the Samsher Singh case 11 and the Sankalchand
      Himatlal Sheth cases. This Court expressly concluded, in the
 H    Second Judges case, that the term "consultation" expressed
    SUPREME COURT ADVOCATES-ON-RECORD                             221
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

in Articles 124, 217 and 222 had to be read as vesting primacy A
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, primacy with
reference to the ultimate power of appointment (or transfer)
was held, to be vesting with the judiciary. The above position B
came to be reconsidered in the Third Judges case, by a nine-
Judge Bench, wherein the then learned Attorney General for
India, made a statement, 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 C
the said judgment, and would treat the decision of this Court in
the Second Judges case as binding. It is therefore apparent,
 that the judiciary would have primacy in matters regulated by
Articles 124, 217 and 222, was conceded, by the Union of D
 India, in the Third Judges case.
     61. We have also delineated hereinabove, the views of
the Judges recorded in the First Judges case, which was
rendered by a majority of 4:3. Not only, that the margin was
extremely narrow, but also, the views expressed by the Judges     E
were at substantial variance, on all the issues canvassed
before the Cm, rt. The primary reason for recording the view of
each of the Judges in the First Judges case herein before, was
to demonstrate differences in the deductions, inferences and
the eventual outcome .. As against the above, on a                F
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             G
unambiguous exposition of the controversy. We,.therefore, find
ourselves not inclined to accept the prayer for a review of the
Second and Third Judges cases.
      62. Having given pointed and thoughtful consideration       H
222         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     to the proposition canvassed at the hands of the learned
      counsel for the respondents, we are constrained to conclude,
      that the issue of primacy of the judiciary, in the matter of
      appointment and transfer of Judges of the higher judiciary,
      having been repeatedly examined, the prayer for a re-look/
 B    reconsideration of the same, is just not made out. This 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
 C    cases,
        .                       .
              for we have allowed a free debate, and have taken
      upon ourselves the task of examining the issues. canvassed.
      Yet, the remedy of review must have some limitations. Mr. Fali
      S. Nariman, learned senior counsel, is right, in his submission,
      that the power of review was exercised and stood expended
 0
      when the First Judges case was reviewed by a larger Bench
      in the Second Judges case. And for sure, it was wholly
      unjustified for the Union of India, which had conceded during
      the course of hearing of the Third Judges case, that it had
 E    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
 F    declaration, in the Second and Third Judges cases. Therefore,
      as a proposition of law, we are not inclined to accept the prayer
      of the Union of India and the other respondents, for a re-look
      or review of the judgments rendered in the Second and Third
      Judges cases. All the same, as we have indicated at the
 G    beginning of this order, because the matter is of extreme
      importance and sensitivity, we will still examine the merits of
      the submissions C\dvanced by learned counsel.
                                     II.
 H          63. The most forceful submission advanced by the
    SUPREME COURT ADVOCATES-ON-RECORD                               223
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

learned Attorney General, was premised on the Constituent A
Assembly debates .. In this behalf, our attention was invited to
the views expressed by K.T. Shah, K.M. Munshi, Tajamul
Husain, Alladi Krishnaswami Aayar, Ananthasayanam
Ayyangar and Dr. B.R. Ambedkar. It was pointed out by the
learned Attorney General, that the Members of the Constituent B
Assembly feared, that the process of selection and
appointment of Judges to the higher judiciary should not be
exclusively vested with the judiciary. The process of
appointment of Judges by Judges, it was contended, was
described as lmperium in lmperio, during the Constituent C
Assembly debates. In responding to the above observations,
Dr. B.R. Ambedkar while referring to the contents of Article
 122 (which was renumbered as Article 124 in the Constitution),
had assured the Members of the Constituent Assembly, that D
the drafted Article had adopted the middle course, while
 refusing to create an lmperium in lmperio, in such a manner,
that the "independence of the judiciary" would be fully
 preserved. The exact text of the response of Dr. B.R. Ambedkar,
 has been extracted in paragraph 30 above.                       E
       64. It was the contention of the learned Attorney General,
that despite the clear intent expressed during the Constituent
Assembly debates, not to create an lmperium in lmperio, the
Second and Third Judges cases had done just that. It was
submitted, that in the process of selection and appointment of      F
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       G
pillars. It was repeatedly emphasized, that in the present system
of selection and appointment of Judges to the higher judiciary,
the executive has no role whatsoever. It was accordingly the
contention of the respondents, thatthe mannerin which Articles
                                                                    H
224         SUPREME COURT REPORTS                 [2015] 13S.C.R.


A     124, 217 and 222 had been interpreted in the Second and
      Third Judges cases, fell foul of the intent of the Constituent
      Assembly. This, according to the learned counsel for the
      respondents, was reason enough, to revisit and correct, the
      view expressed in the Second and Third Judges cases.
B
         65. It is not possible for us to accept the contention
  advanced at the hands of the learned counsel for the
  respondents. Consequent upon the pronouncement of the
  judgments in the Second and Third Judges cases, a
c 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
o Procedure has been examined by us. In our considered view,
  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
E 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. Our
  analysis of the Memorandum of Procedure reveals, that the
F same contemplates inter alia the following steps for selection
  of High Court Judges:
   Step 1: The Chief Justice of the concerned High Court has
   the responsibility of communicating, to the Chief Minister of
 G the State concerned, names of persons 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
 H the same to the Chief Justice for his consideration.
    SUPREME COURT ADVOCATES-ON-RECORD                               225.
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Step 2: Before forwarding his recommendations to the Chief A
Minister, the Chief Justice must consult his.senior colleagues
comprised in the High Courtcollegium, 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.                  B
Step 3: Copies of recommendations made by the Chief
Justice of the High Court, to the Chief Minister of the concerned
State, require to be endorsed, to the Union Minister of Law
and Justice, to the Governor of the concerned State, and to         c
the Chief Justice of India.
Step 4: Consequent upon the consideration of the names
proposed by the Chief Justice, the Governor of the concerned
State, as advised by the Chief Minister, would forward his
recommendation along with the entire set of papers, to the          D
Union Minister for Law and Justice.
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     E
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.                                    F
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      G
the Supreme Court collegium, form his opinion with regard to
the persons recommended for appointment.
Step 7: Based on the material made available, and
additionally the views of Judges of the Supreme Court (who
were conversant with the affairs of the concerned High Court),      H
226         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     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 above noted views of Judges
      of the Supreme Court, conversant with the affairs of the High
      Court, were to be obtained in writing, and are to be part of the
B     compilation incorporating the recommendation.
      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
c     consultation with the Union Minister for Law and Justice, and
      advise the President, in the matter of the proposed
      appointments.
          66. We shall venture to delineate the actual consideration
    at the hands of the executive, in the process of selection and
D appointment of High Court Judges, in terms of the
  . Memorandum of Procedure, as well as, the actual prevailing
    practice.
        67. Steps 1 to 3 of the Memorandum of Procedure reveal,
E that names of persons to be selected for appointment are
  forwarded to the Chief Minister and the Governor of the
  concerned State. On receipt of the names, the Chief Minister
  discharges the onerous responsibility to determine the
  suitability of the recommended candidate(s). Specially the
F suitability of the candidate(s), pertaining to integrity, social
  behaviour, political involvement and the like. Needless to
  mention, that the Chief Minister of the concerned State, has
  adequate machinery for providing such inputs. It would also
  be relevant to mention, that the consideration at the hands of
G the Governor of the concerned State, 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 concerned State, have recorded their own
H
    SUPREME COURT ADVOCATES-ON-RECORD                                 227
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

impressions on the suitability of a recommended candidate, A
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 B
High Courts, by providing necessary inputs. Record also bears
testimony to the fact, that the opinion expressed by the
Governor, had finally prevailed on a few occasions.
      68. The participation of the executive, with reference to c
the consideration of a candidate recommended by the Chief
Justice of 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 of
Minister for Law and Justice. The Ministry of Law and Justice D
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, E
and the examination of the proposal atth"e 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.
                                                                      F
      69. After the Chief Justice of India, in consultation with
his collegium of Judges recommends the concerned candidate
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             G
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            H
228          SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     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
 B    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
C     the knowledge of the participating constitutional functionaries.
            70. It is not necessary for us 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
o     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.
 E          71. The Memorandum of Procedure, for selection of
      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
 F    state, that the same is also a joint exercise, with a similar
      approach.
          72. For the reasons recorded by us hereinabove, it is
   not possible for us to accept, that in the procedure
   contemplated under the Second and Third Judges cases,
 G Judges at their own select Judges to the higher judiciary, or
   that, the system of lmperium in lmperio has been created for
   appointment of Judges to the higher judiciary. It is also not
   possible for us to accept, that the judgment in the Second
   Judges case, has interfered with the process of selection and
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                229
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  appointment of Judges to the higher judiciary, by curtailing the    A
  participatory role of the executive, in the constitutional scheme
· of checks and balances, in view of tbe role of the executive
  fully described above. We find no merit in the instant contention
  advanced at the hands of the respondents.
                                                                      B
                                 Ill.
        73. The learned Attorney General placed emphatic
 reliance on the Constituent Assembly debates. It was sought
 to be asserted, that for an apposite understanding of the
 provisions of the Constitution, it was imperative to refer to the C
 Constituent Assembly debates, which had led to formulating
 and composing of the concerned Article(s). Reliance was
 accordingly placed on the debates, which had led to the drafting
 of Article 124. It was submitted, that the conclusions drawn by
 this Court, in the Second Judges case, overlooked the fact, D
 that what had been expressly canvassed and raised by various
 Members of the Constituent Assembly, and rejected on due
 consideration, had been adopted by the judgment in the
 Second Judges case. It was, therefore, the contention of the
 learned Attorney General, that the judgments rendered in the E
 Second and Third Judges cases recorded a view, diagonally
 opposite the intent and resolve of the Constituent Assembly.
       74. For reasons of brevity, it is not essential for us to
 extract herein the amendments sought by some of the eminent F
 Members of the Constituent Assembly in the draft provision
 (to which our attention was drawn). At this stage, we need
 only to refer to paragraph 772 (already extracted above), from
 the Indra Sawhney case 9 , in order to record, that it is not
 essential to refer to individual views of the Members, and that, G
 the view expressed at the end of the debate 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
                                                                    H
230         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A  that the term "consultation" engaged in Articles 124 and 217,
   be substituted by the word "concurrence". The proposed
   amendment was ho~ever rejected by Dr. B.R. Ambedkar.-
   Despite the above, this Court in the Second and Third Judges
   cases had interpreted the word "consultation" in clause (2) of
 B Article 124, and clause (1) of Article 217, as vesting primacy
   in the judiciary, something that was expressly rejected, during
   the Constituent Assembly debate. And therefore, the contention
   advanced on behalf of the respondents was, that this Court
   had interpreted the above provisions, by turning the Constituent
 C 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.

 D         75. We are of the view, that it would suffice, for examining
      the above contention, to extract herein a relevant part of the
      response of Dr. B.R. Ambedkar, to the above noted
      amendments, in the provisions noted above:
             "Now, Sir, with regard to the numerous amendments that
 E           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
 F           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
 G
             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
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                   231
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

    independent of the executive and must also be competent           A
    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        B
    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         C
    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     D
    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 js also not a very suitable
    provision. Apart fro~ its being cumbrous. it also involves        E
    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        F
     the influence of the Legislature. The provision in the article
     is that there should be consultation of persons who are ex
     hypothesi well gualified 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.                    G
     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
                                                                      H
232       SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A         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
 B        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."
C       The first paragraph extracted hereinabove reveals, that
  there were three proposals on the issue of appointment of
  Judges to the Supreme Court. The first proposal was, that the
  Judges of the Supreme Court should not be appointed by the
  President in "consultation" with the Chief Justice of India, but
D should be appointed with the "concurrence" ofthe Chief Justice
  of India. The second proposal was, that like in the United
  States, appointments of Judges to the Supreme Court, should
  be made by the President, subject to confirmation by the
  Parliament, through a two-thirds majority. The third proposal
E was, that Judges of the Supreme Court, should be appointed
  by the President in "consultation" with the Rajya Sabha.
         76. The response of Dr. B.R. Ambedkar to all the
  suggestions needs a very close examination, inasmuch as,
  even though rightfully pointed out by the Attorney General, and
F the learned counsel representing the respondents, all the
  issues which arise for consideration in the present controversy,
  were touched upon in the above response. Before dwelling
  upon the issue, which strictly pertained to the appointment of
G Judges, Dr. B.R. Ambedkar 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
H Krishnaswami Aayar and Anathasayanam Ayyangar (extracted
    SUPREME COURT ADVOCATES-ON-RECORD                             233
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

in paragraph 30 above) wherein he emphasized, that" ... there A
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, B
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".                           C
       77. While responding to the second and third proposals
referred to above, Dr. B.R. Ambedkar, cited the manner of
appointment of Judges in Great Britain, and pointed out, that
in the United Kingdom appointments were made by the Crown, D
without any kind of limitation, and as such, fell within the
exclusive domain of the executive. Referring to the system
adopted in the United States, he noted, that Judges of the
Supreme Court in the United States, could only be appointed
with the "concurrence" of the Senate. Suffice it to state, that E
the latter reference was to a process of appointment which fell
within the domain of the legislature (because the Senate is a
legislative chamber in the bicameral legislature of the United
States, which together with the U.S. Hou?e of Representatives,
make up the U.S. C.ongress). It is important to notice, that he F
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 G
be made by the President-the executive (i.e., on the aid and
advice of the Council of Ministers, headed by the Prime
 M[nister). In the words of Dr. B.R. Ambedkar, it would be
dangerous to leave such appointments in the hands of the
                                                                H
234         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     executive of the day, without any kind of reservation and
      limitation. We are therefore satisfied, that the word
      "consultation" expressed in 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
 B    "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 for us to
      accept, that the main voice in the matter of selection and
      appointment of Judges to the higher judiciary was that of the
C     President (expressed in the manner contemplated under Article
      74). Nor is it possible to accept that primacy in the instant
      matter rested with the executive. Nor that, the judiciary has
      been assigned a role in the matter, which was not contemplated
 D    by the provisions of the Constitution. It is misconceived for the
      respondents to assert, that the determination of this Court in
      the Second and 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
 E    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 on~ or the other (or both)
      House(s) of Parliament would be cumbersome. More
 F    importantly, Dr. B.R.Ambedkarwas suspicious and distrustful
      of the possibility of the appointments being directed and
      impacted by "political pressure" and "political consideration",
      if the legislature was involved. We are therefore satisfied, that
      when the Constituent Assembly used the term "consultation",
 G    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.          ·
         78. It was the view of Dr. B.R. Ambedkar, that the draft
 H article had adopted a middle course, by not ryiaking th·e
     SUPREME COURT ADVOCATES-ON-RECORD                          235
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

President-the executive "the supreme and absolute authority A
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. We are therefore of the view,
that the judgments in the Second and Third Judges cases B
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" was to shield the selection
and appointment of Judges to the higher judiciary, from
executive and political involvement, certainly the term C
"consultation" was meant to be understood as something more
than a mere "consultation".
       79. It is clear from the observations of Dr. B.R. Ambedkar,
 that the President - the executive was required by the D
 provisions of the draft article, to consult" ... persons, who were
 ex hypothesi, well qualified to give proper advice on the matter
 of ~ppointment of Judges to the Supreme Court." The
 response of Dr. B.R. Ambedkar in a singular paragraph
 (extracted above), leaves no room for any doubt that Article E
 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, would therefore have
 to be understood, to be such, as would be guarded/shielded F
 from political pressure and political considerations.
      80. The paragraph following the one, that has been
  interpreted in the foregoing paragraphs, also leaves no room
  for any doubt, that the Constituent Assembly did not desire to G
  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 H
236        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A  Supreme Court and the High Courts. Viewed closely, the
   judgments in the Second and Third Judges cases, were
   rendered in a manner as would give complete effect to the
   observations made by Dr. B.R. Ambedkar with reference to
   Article 124 (as originally incorporated). It is clearly erroneous
B 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 Third Judges cases. Nothing of the sort. It has
C been, and is still open to the President, in his unfettered
   wisdom, 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
0
    role in the selection of Judges to the higher judiciary, quite
    contrary to the submission advanced on behalf of the
    respondents. We are satisfied, t.hat the entire discussion and
    logic expressed during the debates of the Constituent
E Assembly, could be given effect to, by reading the term
    "consultation" as vesting primacy with the judiciary, on the
    matter being debated. We are also of the view, that the above
    debates support the conclusions drawn in the judgments of
  ·which review is being sought. For the reasons recorded
F hereinabove, we find no merit in the submissions advanced
    by the learned counsel for the respondents based on the
    Constituent Assembly debates.
                                   IV.
 G        81. The consideration in hand, also has a historic
   perspective. We would venture to examine the same, from
   experiences g~ined, 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
 H functioning, set forth by the arrangement and allocation of
    SUPREME COURT ADVOCATES-ON-RECORD                                 237
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]
                                              •
responsibilities, expressed in the Constitution. In this behalf,      A
it would be relevant to highlight the discussion which took place
in Parliament, when the Fourteenth Report of the Law
Commission on Judicial Reform (1958) was tabled for
discussion, in the Raj ya Sabha on 24-25.11.1959. Replying
to the debate on 24.11.1959, Govind Ballabh Pant, the then            B
Union Home Minister's remarks, as stand officially recorded,
were inter a/ia as under:
       "Sir. so far as appointments to the Supreme Court go, since
       1950 when the Constitution was brought into force, nineteen    C
       Judges have been appointed and everyone of them was
       so appointed on the recommendation of the Chief Justice
       of the Supreme Court. I do not know if any other alternative
       can be devised for this purpose. The Chief Justice of the
       Supreme Court is, I think, rightly deemed and believed to      D
       be familiar with the merits of his own colleagues and also
       of the Judges and advocates who hold leading positions in
       different States. So we have followed the advice of the
       most competent. dependable and eminent person who
       could guide us in this matter.                                 E
       Similarly. Sir. so far as High Courts are concerned. since
       1950, 211 appointments have been made and out of these
       except one. i.e .. 210 out of 211 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            F
       accepted by Government had the support of all persons
       who were connected with this matter. As Hon. Members
       are aware under I think article 217 the Chief Justice of
       the High Court: the Chief Minister of the State concerned
       and the Governor first deal with these matters. Then they      G
       come to the Home Ministry and are referred by the Ministry
       to the Chief Justice of India and whatever suggestions or
       comments he makes are taken into consideration and if
       necessary. a reference is again made to the Chief Minister
                                                                      H
238        SUPREME COURT REPORTS                       [2015] 13 S.C.R.



A           and the High Court. But as I said. these 196 appointments
            were made in accordance with the unanimous advice of
            the Chief Justice of the High Court. the Chief Minister of
            the State. the Governor and the Chief Justice of India ... "
            The remarks made by Ashoke Kumar Sen, the then Union
 8    Law Minister on 25.11.1959, during the course of the debate
      pertaining to the Law Commission Report, also need a
      reference:
            " ..... it is my duty to point out to the honourable House again.
 C          as I did in the Lok Sabha when the Law Commission first
            sent an interim report - call it an interim report or some
            report before the final one - pointing out that Judges have
            been appointed on extraneous considerations. we gave
            them the facts and figures concerning all the appointments
 o          made since 1950. We drew their pointed attention to the
            fact that, as the Home Minister pointed out yesterday,
            except in the case of one Judge out of the 176 odd Judges
            appointed since 1950, all were appointed on the advice of
            the Chief Justice. With regard to the one there was
 E          difference of opinion between the local Chief Justice and
            the Chief Justice of India and the Government accepted
            the advice of the loq:il Chief Justice rather than the Chief
            Justice of India. But it was not their nominee. We should
            have expected the Law Commission, in all fairness, to have
 F          dealt with the communication from the Government giving
            facts of all the appointments not only of the High Courts
            but of the Supreme Court. I am not saying that they were
            obliged to do so, but it is only a fair thing to do, namely,
            when you bring certain accusation in a solemn document
 G          like the Law Commission's Report, you should deal with
            all the arguments for and against. We should have
            expected in all fairness that these facts ought to have been
            dealt with. Unfortunately, no facts are set out so that it is
            impossible to deal with. If it was said that this had been
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                   239
  ASSOCIATION v. U.0.1. [JAGDISH SINGH Kl-JEHAR, J.]

      the case with A, this had been the case with B or C, it           A
      would have been easy for us to deal with them. Especially
      when we had given all the facts concerning the
      appointment of each and every Judge since 1950."
      82. If one were to draw an inference, from the factual
numbers indicated in the statements of the Home Minister and            8
the Law Minister, and the inferences drawn therefrom, it is more
than apparent, that the understanding of those in-charge of
working the provisions of the Constitution; relating to the
appointment of Judges to the higher.judiciary, was that, the            C
advice of the Chief Justice of India was to be, and was actually
invariably accepted, by the President (or whosoever, exercised
the power of appointment).

      83. Historically again, from the perspective of judicial
declarations, the practice adopted on the issue in hand, came           D
to be so understood, in the Samsher Singh case 11 , wherein
this Court through a seven-Judge Bench held as under:
      "In the light of the scheme of the Constitution we have
      already referred to. it is doubtful whether such an
      interpretation as to the personal satisfaction of the President   E
      is correct. We are of the view that the President means,
      for all practical purposes, the Minister or the Council of
      Ministers as the case may be, and his opinion, satisfaction
      or decision is constitutionally secured when his Ministers        F
      arrive at such opinion satisfaction or decision. 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   G
      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
                                                                        H
240        SUPREME COURT REPORTS                     [2015] 13 S.C.R.        ..

A           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 obligue considerations
 B          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."
           84. Ever since 1974, when the above judgment was
 C    rendered, the above declaration, has held the field, as the
      above judgment has neither been reviewed nor set aside. It
      cannot be overlooked, that the observations extracted from
      the Samsher Singh case 11 , were reaffirmed by another five-
      Judge Bench, in the Sankalchand Himatlal Sheth case 5 , as
 0    under:
            "This then, in my judgment, is the true meaning and content
            of consultation as envisaged by Article 222(1) of the
            Constitution. After an effective consultation with the Chief
            Justice of India. it is open to the President to arrive at a
 E          proper decision of the guestion whether a Judge should
            be transferred to another High Court because. what the
            Constitution reguires is consultation with the Chief Justice.
            not his concurrence with the proposed transfer. But it is
            necessary to reiterate what Bhagwati and Krishna Iyer. JJ ..
 F          said in Shamsher Singh (supra) 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
 G          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." (page 873). It is hoped
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                241
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       that these words will not fall on deaf ears and since         A
       normalcy has now been restored, the differenc;:es, 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."
      85. Even in the First Judges case, P.N. Bhagwati, J.,          8
corrected his own order through a corrigendum, whereby his
order, interalia, came to be recorded, as under:
       "Even if the opinion given by all the constitutional
       functionaries consulted by it is identical, the Central       c
       Government is not bound to act in accordance with such
       opinion, though being a unanimous opinion of all three
       constitutional functionaries, it would have great weight and
       if an appointment is made by the Central Government in
       defiance of such unanimous opinion, it may prim a facie be D
       vulnerable to attack on the ground that it is mala fide or
       based on irrelevant grounds. The same position would
       obtain if an appointment is made by the Central
       Government contrary to the unanimous opinion of the Chief
       Justice of the High Court and the Chief Justice of India."   E
      From the above extract, it is apparent, that the
observations recorded by this Court in paragraph 149 in the
Samsher Singh case 11 , were endorsed in the Sankalchand
Himatlal Sheth case 5 , and were also adopted in the First
Judges case. The position came to be expressed                       F
emphatically in the Second and Third Judges cases, by reading
the term "consultation" as vesting primacy with the judiciary, in
the matter of appointments of Judges to the higher judiciary.
This time around, at the hands of two different nine-Judge           G
Benches, which reiterated the position expressed in the
Samsher Singh case 11 •
      86. The above sequence 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   H
242         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     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
 B    followed, from the very beginning, after the promulgation of
      the Constitution, by the executive, at its own. 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),
 C    was discussed by the Parliament, as far back as in 1959, just
      a few years after the country came to be governed by the
      Constitution. It is apparent, that when the two Houses of the
      Parliament, reflected inter a/ia on Articles 124, 217 and 222,
      in the matter of appointment of Judges to the higher judiciary,
 0
      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
 E    mind when the issue was deliberated, need to be highlighted.
       First, that the President meant (for all practical purposes), the
       concerned Minister, 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
 F    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 otherparticipating constitutional authorities.
       In the matter of judicial determination,-the issue was examined
 G     by a Constitution Bench of the Supreme Court as far back, as
       in 1974 in the Samsher Singh case 11 , 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,
 H    that the last word must belong to the Chief Justice of India i.e.,
     SUPREME COURT ADVOCATES-ON-RECORD                            243
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

 the primacy in the matter of appointment of Judges to the higher A
 judiciary, must rest with the judic:;iary. The above position was
 maintained in the Sankalchand Himatlal Sheth case 5 in 1977,
 by a five-Judge Bench, only to be altered in the First Judges
 case, by a seven-JU'dge Bench in 1981, wherein it was held,
 that the term "consultation" could not be read as "concurrence". B
 The position expounded even in this case by P.N. Bhagwati,
 J. (as he then was), extracted above, 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 C
 reaffirmed by a nine-Judge Bench, through the Third Judges
  case. Historically, therefore, all the three wings of governance,
  have uniformally maintained, that while making appointments
 of Judges to the higher judiciary, "independence of the judiciary"
                                                                    0
 was accepted as 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 ArtiGLes 124, 217 and 222. In view of the E
  above historical exposition, there is really no legitimate reason
  for the respondents to seek a review of the judgments in the·
  Second and Third Judges cases.
                                v.
                                                                   F
       87. Whilst dwelling on the subject of the intention
 expressed by the Members of the Constituent Assembly, it is
 considered just and expedient, also to take into consideration
 the views expressed in respect of the adoption of "separation
 of powers" in the Constitution. When the draft prepared by the G
 Constituent Assembly came up for debate, Dr. B.R. Ambedkar
 proposed an amendment of Article 39A. It would be relevant
 to mention, that the aforesaid amendment, on being adopted,
 was incorporated as Article 50 in the Constitution (as originally
 enacted). It is also necessary to notice, that the Government H
244         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     had already commenced to function, with Jawaharlal Nehru
      as the Prime Minister, when the draft of the Constitution was
      being debated before the Constituent Assembly. His
      participation in the debates of the Constituent Assembly,
      therefore, was not only in his capacity as a Member of the
 B    Constituent Assembly, but also, as a representative of the.
      Government of India. It is necessary to extract hereunder, the
      views expressed by Jawaharlal Nehru, Bakshi Tek Chand and
      Loknath Misra, in the above debates, relating to "separation
      of powers". Relevant extracts are being reproduced hereunder:
c             "The Honourable Pandit Jawaharlal Nehru (United
              Provinces: Gener.al):
              ..... Coming to this particular matter, the honourable
              speaker, Pandit Kunzru, who has just spoken and opposed
 D            the amendment of Dr. Ambedkar seems to me; if I may
              say so with all respect to him, to have gone off the track
              completely, and to suspect a sinister motive on the part of
              Government about this business. Government as such is
              not concerned with this business, but it is true that some
 E            members of Government do feel rather strongly about it
              and would like this House fully to consider the particular
              view point that Dr. Ambedkar has placed before the House
            . today. I may say straight off that so far as the Government
              is concerned, it is entirely in favour of the separation of
 F            judicial and executive functions (Cheers). I may further say
              that the sooner it is brought about the better (Hear, hear)
              and I am told that some of our Provincial Governments are
              actually taking steps to that end now. If anyone asked me,
              if anyone suggested the period of three years or some other
 G            period, my first reaction would have been that this period
              is too long. Why should we wait so long for this? It might
              be brought about, if not all over India, in a large part of
              India, much sooner than that.At the same time, it is obvious
              that India at the present moment, specially during the
 H            transitional period, is a very mixed country politically,
  SUPREME COURT ADVOCATES-ON-RECORD                              245
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   judicially, economically and in many ways, and any fixed A
   rule of thumb to be applied to every area may be
   disadvantageous and difficult in regard to certain areas.
   On the one hand, that rule will really prevent progress in
   one area, and on the other hand, it may upset the apple-
   cart in some other area: Therefore, a certain flexibility is B
   desirable. Generally speaking, I would have said that in any
   such directive of policy, it may not be legal, but any directive
   of policy in a Constitution must have a powerful effect. In
   any such directive, there should not be any detail or time-
   limit etc. It is a directive of what the State wants, and your C
   putting in any kind of time-limit therefore rather lowers it
   from that high status of a State policy and brings it down to
   the level of a legislative measure, which it is not in that
   sense. I would have preferred no time-limit to be there, but D
    speaking more practically, any time-limit in this, as Dr.
   Ambedkar pointed out, is apt on the one hand to delay this
   very process in large parts of the country, probably the
   greater part of the country; on the other hand, in some parts
   where practically speaking it may be very difficult to bring E
    about, it may produce enormous confusion. I think,
   therefore, that Dr. Ambedkar's amendment, far from
   lessening the significance or the importance of this highly
    desirable change that we wish to bring about, places it on
    a high level before the country. And I do not see myself F
    how any Provincial or other Government can forget this
    Directive or delay it much. After all, whatever is going to be
    done in the future will largely depend upon the sentiment
    of the people and the future Assemblies and Parliaments
    that will meet. But so far as this Constitution is concerned, G
    it gives a strong opinion in favour of this change and it gives
    it in a way so as to make it possible to bring it about in
    areas where it can be b~ught about - the provinces, etc. -
    and in case of difficulty in any particular State, etc,, it does
    not bind them down. I submit. therefore. that this H
246   SUPREME COURT REPORTS                    [2015] 13 S.C.R.

A     amendment of Dr. Ambedkar should be accepted.
      (Cheers)."
      "Dr. Bakshi Tek Chand (East Punjab: General): Mr. Vice-
      President, Sir, I rise to lend my whole hearted support to
      the amendment which has been moved by Dr. Ambedkar
 B    today. The question of the separation of executive and
      judicial functions is not only as old as the Congress itself,
      but indeed it is much older. It was in the year 1852 when
      public opinion in Bengal began to express itself in an
      organised form that the matter was first mooted. That was
c     more than thirty years before the Congress came into
      existence. After the Mutiny. the movement gained
      momentum aod in the early seventies, in Bengal, under
      the leadership of Kisto Das Pal and Ram Gopal Ghosh,
      who were the leaders of public opinion in those days. definite
 D
      proposals with regard to the separation of judicial and
      executive functions were put forward. Subsequently, the
      late Man Mohan Ghosh took up this matter and he and Babu
      Surendranath Bannerji year in and year out raised this
      question in all public meetings.
 E
      When the Congress first met in the session in Bombay in
       1885. this reform in the administration was put in the
      forefront of its programme. Later on. not only politicians of
      all schools of thought, but even retired officers who had
 F     actually spent their lives in the administration. took up the
       matter and lent their support to it, I very well remember the
       Lucknow Congress of 1899 when Ramesh Chunder Dutt.-
      who had just retired from the Indian Civil Service presided.
       He devoted a large part of his presidential address to this
 G     subject and created a good deal of enthusiasm for jt, Not
       only that: even 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 Priw Council, lent their support to this
 H     and they jointly with many eminent Indians submitted a
  SUPREME COURT ADVOCATES-ON-RECORD                                 247
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   representation to the Secretarv of State for India to give A
   immediate effect to this reform.
   In the year 1912, when the Public Service Commission
   was appointed, Mr. Abdur Rahim, who was a Judge of the
   Madras High Court and was for many years the President
   of the Central Legislature, appended a long Minute of B
   Dissent and therein he devoted several pages to this
   question.
   Therefore. Sir. the matter has been before the country for
   nearly a century and it is time that it is given effect to
   immediately. One of the Honourable Members who spoke C
   yesterday. observed that this matter was of great
   importance when we had a foreign Government but now
   the position has changed. and it may not be necessary to
   give effect to it. Well. an effective reply to this has been D
   given by the Honourable the Prime Minister today. He has
   expressly stated that it is the policy of the Government,
   and it is their intention to see that this reform is given
    immediate effect to.
    xxxx                   xxxx                    xxxx             E
    I am glad to hear that he confirms it. This gives the quietus
    to these two objections which have been raised, that
    because of the changed circumstances, because we have
    attained freedom, it is no longer necess!'!ry and that the
    financial burden will be so heavy that it might crush           F
    provincial Governments. Botti these objections are hollow.
    One word more I have to say in this connection and that is.
    that with the advent of democracy and freedom, the
    necessity of this reform has become all the greater.
    Formerly it was only the district magistrate and a few          G
    members of the bureaucratic Government from whom
    interference with the judiciary was apprehended. but now,
    I am very sorry to say that even the Ministers in some
    provinces and members of political parties have begun to
  . interfere with the free administration of justice. Those of     H
248   SUPREME COURT REPORTS                    [2015] 13 S.C.R.

A     you. who may be reading news paper reports of judicial
      decisions lately. must have been struck with this type of
      interference which has been under review in the various
      High Courts lately. In one province we found that in a case
      pending in a Criminal Court, the Ministry sent for the record
 B    and passed an order directing the trying Magistrate to stay
      proceedings in the case. This was something absolutely
      unheard of. The matter eventually went up to the High Court
      and the learned Chief Justice and another Judge had to
      pass very strong remarks against such executive
c     interference with the administration of justice.
      In another province a case was bei~g tried against a
      member of the Legislative Assembly and a directive went
      from the District Magistrate to the Magistrate trying the case
      not to proceed with it further and to release the man. The
 D
      Magistrate who was a member of the Judicial Service and
      was officiating as a Magistrate had the strength to resist
      this demand. He had all those letters put on the record and
      eventually the matter went up to the High Court and the
      Chief Justice of the Calcutta High Court made very strong
 E
      remarks about this matter.
      Again in the Punjab, a case has recently occurred in which
      a Judge of the High Court, Mr. JusticeAchu Ram, heard a
      habeas corpus petition and delivered a judgment of 164
 F    pages at the conclusion of which he observed that the
      action taken by the Distr.ict Magistrate and the
      Superintendent of Police against a member of the
      Congress Party was mala fide and was the result of a
      personal vendetta. These were his remarks.
 G    In these citcumstances. I submit that with the change of
      circumstances and with the advent of freedom and the
      introduction of democracy. it has become all the more
      necessary to bring about the separation of the judiciary
      from the executive at the earliest possible opportunity."
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                249
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       88. A perusal of the statements made before the               A
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     B
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          C
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           D
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      E
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 Hob house and Sir Arthur
Wilson (both of whom, subsequently became Members of the             F
Judicial Committee of the Privy Council), also supported the
above reform. The debate, it was pointed out, had been on
going, 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            G
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    H
250         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     drafting Article 50 of the Constitution, were clear and
      unanimous in their view, that there need to be a judiciary,
      separated from the i6fluences of the executive.
         89. Based on the consideration recorded in the
   immediately preceding paragraphs also, it seems to us, that
 8
   the necessity of making a detailed reference to the Constituent
   Assembly debates in the Second Judges case, may well have
   been regarded, as of no serious consequence, whether it was
   on the subject of appointment of Judges to the higher judiciary,
 c as a component of "independence of the judiciary", or, on the
   subject of "separation of powers", whereby the judiciary was
   sought to be kept apart, and separate, from the executive. This
   Court having concluded, that the principle of "separation of
   powers" was expressly ingrained in the Constitution, which
 o 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, this Court on a harmonious construction of the
   provisions ofthe Constitution, in the Second and Third Judges
 E cases, rightfully held, that primacy in the above matter, vested
   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.
 F
                                     VI.
          90. It is imperative to deal with another important
   submission advanced by the learned Attorney General, namely,
   that the issue of "independence of the judiciary" has nothing to
 G do with the process of "appointment" of Judges to the higher
   judiciary. It was submitted, that the question of independence
   of a Judge arises, only after a Judge has been appointed (to
   the higher judiciary), for it is only then, that he is to be shielded
   from the executive/political pressures and influences. It was
 H
    SUPREME COURT ADVOCATES-ON-RECORD                             251
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

sought to be elaborated, that Judges of the higher judiciary,     A
immediately after their appointment were so well shielded, that
there could be no occasion of the "independence of the
judiciary" being compromised, in any manner, either at the
hands of the executive, or of the legislature.
                                                                  B
       91. Whilst advancing the instant contention, it was the
pointed assertion of the learned Attorney General, that neither
of the judgments rendered in the Second and Third Judges
cases had held, thatthe "selection and appointment" Of Judges,
to the higher judiciary, would fall within the purview of         c
"independence of the judiciary". It was therefore his contention,
that it was wrongful to assume, on the basis of the above two
judgments, that the question of "appointment" of Judges to. the
higher judiciary would constitute a component of the "basic
structure" of the Constitution. It was the contention of the D
learned Attorney General, that the Parliament, in its wisdom,
had now amended the Constitution, admittedly altering the
process of "selection and appointment" of Judges to the higher
judiciary (including their transfer). It was further contended, that
the process contemplated through the Constitution (99th E
Amendment) Act, coupled with the NJACAct, was such, that it
cannot be considered to have interfered with, or impinged upon,
the "independence of the judiciary", and thus viewed, it would
not be rightful to conclude, that the impugned constitutional
amendment, as also the NJAC Act, were per se violative of F
the "basic structure".
      92. We may preface our consideration by noticing, that
every two years since 1985, a conference of Supreme Court
Chief Justices from the Asia Pacific region, has been held by G
the Judicial Section of the Law Association for Asia and the
Pacific. Since its inception, the conference has served as a
useful forum for sharing information and discussing issues of
mutual concern among Chief Justices of the region. At its 6th
Conference held in Beijing in 1997, 20 Chief Justices adopted H
252         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A     a joint Statement of Principles of the "Independence of the
      Judiciary". This statement was further refined during the 7th
      Conference of Chief Justices held in Manila, wherein it was
      signed by 32 Chief Justices from the Asia Pacific region. The
      Beijing Statement of Principles of the "Independence of the
 B    Judiciary" separately deals with appointment of Judges. The
      position expressed in the above statement with reference to
      "appointment" of Judges is extracted hereunder:
            "Appointment of Judges
            11. To enable the judiciary to achieve its objectives and
 c          perform its functions, it is essential that judges be chosen
            on the basis of proven competence, integrity and
            indep~ndence.
             12.The mode of appointment of judges must be such as
             will ensure the appointment of persons who are best
 D
             qualified for judicial office. It mu·st provide safeguards
             against improper.influences being taken into account so
             that only persons of competence. integrity and
             independence are appointed.
 E           13. In the selection of judges there must 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.
             expect that a requirement that a candidate for judicial office
 F           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
 G           is a career service; in others, judges are chosen from the
             practising profession. Therefore, it is accepted that in
             different societies, difference procedures and safeguards
             may be adopted to ensure the proper appointment of
             judges.
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                  253
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      15. In some societies, the appointment of judges, by, with       A
      the consent of, or after consultation with a Judicial Services
      Commission has been seen as a means of ensuring that
      those chosen judges are appropriate for the purpose.
      Where a Judicial Services Commission is adopted, it
      should include representatives the higher Judiciary and the      B
      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           c
      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,             D
       independence and experience."
      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
recognized position.                                                   E
      93. Whilst dealing with the instant contention, we will also
examine if this Court in the Second and Third Judges cases,
had actually dealt with the issue, whether "appointment" of
Judges to the higher judiciary, was (or, was not) an essential
component of the principle of "independence of the judiciary"?         F
Insofar as the instant aspect of the matter is concerned,
reference in the first instance, may be made to the Second
Judges case, wherein S. Ratnavel Pandian, J., while recording
his concurring opinion, supporting the majority view, observed         G
asunder:
       "47. The above arguments that the independence of
       judiciary is satisfactorily secured by the constitutional
       safeguard of the office that a judge holds and guarantees
       of the service conditions alone and not beyond that. are in     H
254         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A            our considered opinion. untenable. In fact we are unable
             even to conceive such an argument for the reason to be
             presently stated,"
            In addition to the above extract, it is necessary to refer to
      the following observations of Kuldip Singh, J.:
 B
             "335. Then the question which comes up for consideration
             is. can there be an independent judiciary when the power
             of appointment of judges vests in the executive? To say
             yes, would be illogical. ... "
 c        From the above it is clear, that the issue canvassed by
   the learned Attorney General, was finally answered by the nine-
   Judge Bench, which disposed of the Second Judges case by
   holding, that if the power of "appointment" of Judges, was left
   to the executive, the same would breach the principle of the
 D "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
 E appointment" of Judges to the higher judiciary, is an integral
   component of "independence of the judiciary". The contentions
   advanced on behalf of the Union of India, indicating the
   participation of the President and the Parliament, in the affairs
   of the judiciary, would have no bearing on the controversy in
 F hand, which primarily relates to the issue of "appointment" of
   Judges to the higher judiciary. And, extends to transfer of Chief
   Justices and Judges from one High Court, to another. The fact
   that there were sufficient safeguards, to secure the
 G independence of Judges of the higher judiciary after their
   "appointment", and therefore, there was no need to postulate,
   that in the matter of "appointment" also, primacy need not be
   in the hands of the judiciary, is also not acceptable. It is quite
   another matter, whether the manner of selection and
 H appointment of Judges, introduced through the Constitution
    SUPREME COURT ADVOCATES-ON-RECORD                               255
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

(99thAmendment)Act coupled with the NJACAct, can indeed             A
be considered to be violative of "independence of the judiciary".
This aspect, shall be examined and determined independently,
while examining the merits of the challenge raised by the
petitioners.
                              VII.                                  B

       94. A perusal of the provisions of the Constitution reveals,
that in addition to the appointment of the Chief Justice of India
and Judges of the Supreme Court, under Article 124, the
President has also been vested with the authority to appoint        c
Judges and Chief Justices of High Courts under Article 217.
In both the above provisions, the mandate for the President,
inter alia is, that the Chief Justice of India "shall always be
consulted", (the first proviso, under Article 124(2), as originally
enacted), and with reference to Judges of the High Court, the D
language engaged in Article 217 was, that the President would
appoint Judges of High Courts "after consultation with the Chief
Justice of India" (per sub-Article (1) of Article 217).
      95. To understand the term "consultation" engaged in
Articles 124 and 217, it is essential to contrast the above two E
provisions, with other Articles of the Constitution, whereunder
also, the President is mandated to appoint different
con§titutional authorities. Reference in this behalf may be
made to the appointment of the Comptroller and Auditor-
General of India, under Article 148. The said provision vests F
the authority of the above appointment with the President,
without any consultative process. The position is exactly similar
with reference to appointment of Governors of States, under
Article 155. The said provision also contemplates G
appointments, without any consultative process. The President
is also vested with the authority, to appoint the Chairman and
four Members of the Finance Commission, under Article 280.
Herein also, the power is exclusively vested with the President,
without any consultative process. The power of appointment H
256        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A  of Chairman and other Members of the Union Public Service
   Commission, is also vested with the President under Article
   316. The aforesaid appointment also does not contemplate
   any deliberation, with any other authority. Under Article 324,
   the power of appointment of Chief Election Commissioner and
 8 Election Commissioners is vested with the President
   exclusively. Likewise, is the case of appointment of
   Chairperson, Vice-Chairperson and Members of the National
   Commission for Scheduled Castes under Article 338, and
   Chairperson, Vice-Chairperson and other Members of the
 C National Commission for Scheduled Tribes under Article 338A.
   Under the above stated provisions, the President has the
   exclusive authority to make appointments, without any
   deliberation with any other authority. Under Article 344, the
   President is also vested with the authority to appoint Chairman
 0
   and other Members to the Commission of Parliament on
   Official Languages. The instant provision also does not
   provide for any consultative process before such appointment.
   The same position emerges from Article 3508, whereunder
 E the President is to appoint a Special Officer for Linguistic
    Minorities. Herein too, there is no contemplation of any prior
    consultation.
         96. It is apparent that the Council of Ministers, with the
   Prime Minister as its head, is to "aid and advise" the President
 F in the exercise of his functions. This position is not disputed
   by the learned counsel representing the respondents.
   Interpreted in the above manner, according to the learned
   Attorney General, in exercising his responsibilities under
   Articles 124, 217, 148, 155, 280, 316, 324, 338, 338A, 344
 G and 3508, the President is only a figurative authority, whereas
   truthfully, the authority actually vests in the Council of Ministers
   headed by the Prime Minister. And as such, for all intents and
   purposes, the authority vested in the President for appointing
   different constitutional authorities, truly means that the power
 H of such appointment is vested in the executive.
    SUPREME COURT ADVOCATES-ON-RECORD                                 257
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      97. If one were to understand the words, as they were           A
expressed in Article 74, in our considered view, it would be
difficult to conclude, that "aid and advice" can be treated
synonymous with a binding "direction", an irrevocable
"command" or a conclusive "mandate". Surely, the term "aid
and advice" cannot individually be construed as an imperative         B
dictate, which had to be obeyed under all circumstances. In
common parlance, a process of "consultation" is really the
process of "aid and advice". The only distinction being, that
"consultation" is obtained, whereas "aid and advice" may be
tendered. On a plain readingtherefore, neither of the two ("aid       C
and advice" and "consultation") can be understood to convey,
that they can be of a binding nature. We are of the view, that
the above expressions were used, keeping in mind the exalted
position which the President occupies (as the first citizen, of       D
the country). As the first citizen, it would have been discourteous
to provide, that he was to discharge his functions in consonance
with the directions, command, or mandate of the executive.
Since, both the expressions ("aid and advice" and
"consultation"), deserve the same interpretation, if any one of       E
them is considered to be mandatory and binding, the same
import with reference to the other must follow. Through the
Constitution (Forty-second Amendment) Act, 1976, Article 74
came to be amended, and with the insertion of the words "shall
... act in accordance with such advice", the President came to        F
be bound, to exercise his functions, in consonance with the
"aid and advice" tendered to him, by the Council of Ministers
headed by the Prime Minister. The instant amendment, in our
view, has to be considered as clarificatory in character, merely
reiterating the manner in which the original provision ought to       G
have been understood.
     98. If "aid and advice" can be binding and mandatory,
surely also;the term "consultation", referred to in Articles 124
and 217, could lead to the same exposition. The President of          H
258         SUPREME COURT REPORTS                   (2015] 13 S.C.R.


A     India, being the first citizen of the country, is entitled to
      respectability. Articles 124 and 217, were undoubtedly
      couched in polite language, as a matter of constitutional
      courtesy, extended to the first citizen of the country. It is
      important to notice, that the first proviso under Article 124(2)
 B    clearly mandates, that the Chief Justice of India "shall always"
      be consulted. It was a reverse obligation, distinguishable from
      Article 74. Herein, the President was obliged to consult the
      Chief Justice of India, in all matters of appointment of Judges
      to the Supreme Court. The process of "consultation"
 C    contemplated therein, has to be meaningfully understood. If it
      was not to be so, the above provision could have been similarly
      worded as those relating to the appointment of the Comptroller
      and Auditor-General of India, Governors of States, Chairman
      and Members of the Finance Commission, Chairman and
 D    Members of the Union Public Service Commission, Chief
      Election Commissioner and Election Commissioners,
      Chairperson and Vice Chairperson and Members of the
      National Commission for Scheduled Castes, as also, those
 E    of the National Commission for Scheduled Tribes. This contrast
      between Articles 124 and 217 on the one hand, and the
      absence of any "consultation", with reference to the
      appointments contemplated under Articles 148, 155, 280, 316,
      324, 338, 338A, 344 and 3508, leaves no room for any doubt,
 F    that the above "consultation" was not a simplicitor
      "consultation". And since, the highest functionary in the judicial
      hierarchy was obliged to be consulted, a similar respectability
      needed to be bestowed on him. What would be the worth of
      the mandatory "consultation", with the Chief Justice of India, if
 G     his advice could be rejected, without any justification? It was
      therefore, concluded by this Court, that in all conceivable cases,
      consultation with the highest dignitary in the judiciary-the Chief
      Justice of India, will and should be accepted. And, in case it
      was not so acceptd, it would be permissible to examine
 H    whether such non acceptance was prompted by any oblique
    SUPREME COURT ADVOCATES-ON-RECORD                                259
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

consideration. Rightfully therefore, the term "consultation" used A
in Articles 124 and 217, as they were originally enacted meant,
that primacy had to be given to the opinion tendered by the
Chief Justice of India, on the issues for which the President
was obliged to seek such "consultation". The submission
advanced on behalf of the respondents, cannot be accepted, B
also for the reason, that the interpretation placed by them on
the term "consultation", would result in an interpretation of
Articles 124 and 217, as at par with Articles 148, 155, 280,
316, 324, 338, 338A, 344 and 3508, wherein the term
"consultation" had not been used. Such an interpretation, would C
be clearly unacceptable. Since the manner of appointment of
Judges to the higher judiciary, is in contrast with that of the
constitutional authorities referred to by the learned Attorney
General, the submission advanced on behalf of the D
respondents with reference to the other constitutional
authorities cannot have a bearing on the present controversy.
      99. We would unhesitatingly accept and acknowledge
the submission made by the learned Attorney General, as has
been noticed hereinabove, but only limited to situations of          E
appointment contemplated under various Articles of the
Constitution, where the power of appointment is exclusively
vested with the President. As such, there is no room for any
doubt that the provisions of the Constitution, with reference to
the appointment of Judges to the higher judiciary, contemplated      F
that the "aid and advice" (-the "consultation") tendered by the
Chief Justice of India, was entitled to primacy, on matters
regulated under Articles 124 and 217 (as also, under Article 222).
                              VIII.
                                                                     G
      100. In continuation with the conclusions drawn in the
foregoing analysis, the matter can be examined from another
perspective as well. The term "consultation" (in connection
with, appointments of Judges to the higher judiciary) has also
been adopted in Article 233 on the subject of appointment of         H
260          SUPREME COURT REPORTS                 [2015] 13S.C.R.


A  District Judges. Under Article 233, the power of appointment
   is vested with the Governor of the concerned State, who is
   empowered to make appointments (including promotions) of
   District Judges. This Court, through a five-Judge Bench, in
   Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta
B Satapathy32 , has held, that recommendations made by the High
   Court in the consultative process envisaged under Article 233,
   is binding on the Governor. In the face of the aforestated
 . binding precedent, on a controversy, which is startlingly similar
   to the one in hand, and has never been questioned, it is quite
C ununderstandable how the Union of India, desires to persuade
   this Court, ta now examine the term "consultation" differently
   with reference to Articles 124 and 217, without assailing the
   meaning given to the aforesaid term, with reference to a matter
   also governing the judiciary.
0
      VI. CONCLUSION:
            101. Based on the conclusions drawn hereinabove, while
      considering the submissions_ advanced by the learned counsel
      for the rival parties, as have been recorded in "V - The
E     Consideration", we are of the view, that the prayer made at the
      hands of the learned counsel for the respondents, for revisiting
      or reviewing the judgments rendered by this Court, in the
      Second and Third Judges cases, cannot be acceded to. The
 F    prayer is, accordingly, hereby declined.
                          THE ORDER ON MERITS
      I. PREFACE
         1. It is essential to begin the instant order by a foreword,
G in the nature of an explanation. For, it would reduce the bulk of
  the instant order, and obviate the necessity to deal with issues
  which have been considered and dealt with, while hearing the
  present set of cases.

H     32 (1999) 1   sec 125
     SUPREME COURT ADVOCATES-ON-RECORD                             261
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

        2. The question which arises for consideration in the A
  present set of cases pertains to the constitutional validity of
. the Constitution (Ninety-ninth Amendment) Act, 2014
  [hereinafter referred to as the Constitution (99th Amendment)
  Act], as also, that of the National Judicial Appointments
  Commission Act, 2014 (hereinafter referred to as, the NJAC B
  Act). The core issue that arises for consideration, relates to
  the validity of the process of selection and appointment of
  Judges to the higher judiciary (i.e., Chief Justices and Judges
  of the High Courts and the Supreme Court), and transfer of
  Chief Justices and Judges of one High Court, to another.        C
         3. This is the third order in the series of orders passed
 by us, while adjudicating upon the present controversy. The
 first order, dealt with the prayer made at the Bar, for the "recusal"
 of one of us (J.S. Khehar, J.) from hearing the present set of D
 cases. As and when a reference is made to the above first
 order, it would be adverted to as the "Recusal Order". The
 second order, considered the prayer made by the learned
 Attorney General and some learned counsel representing the
 respondents, seeking a "reference" of the present controversy, E
 to a nine-Judge Bench (or even, to a further larger Bench) for
 re-examining the judgmenf rendered in Supreme Court
 Advocates-on-Record Association v. Union of lndia 2
 (hereinafter referred to as, the Second Judges case), and the
 advisory opinion in Re: Special Reference No.1 of 1998 3 F
 (hereinafter referred to, as the Third Judges case), for the
 alleged object of restoring and re-establishing, the declaration
 of the legal position, expounded by this Court in S.P. Gupta v.
 Union of lndia 1 (hereinafter referred to as, the First Judges
 case). As and when a reference is made to the above second G
 order, it would be mentioned as the "Reference Order".
       4. We would, therefore, not examine the issues dealt with
 in the Recusal Order and/or in the Reference Order, even
 though they may arise for consideration yet again, in the          H
262         SUPRE::ME COURT REPORTS                    [2015] 13 S.C.R.


A     process of disposal of the present controversy on merits. As
      and when a reference is made to the instant trnrd order,
      examining the "merits" of the controversy, it would be adverted
      to as the "Order on Merits".
B II. PETITIONERS' CONTENTIONS. ON MERITS:
        5. On the subject of amending the Constitution based on
  the procedure provided for in Article 368, it was submitted by
  Mr. Fali S. Nariman, Senior Advocate, that the power of
  amendment of the Constitution is not a plenary power. It was
C pointed out, that the above power was limited, inasmuch as,
  the power of amendment did not include the power of amending
  the "core" or the "basic structure" of the Constitution. In this
  behalf, learned counsel placed reliance on Minerva Mills Ltd.
  v. Union of lndia 33 , wherein majority view was expressed
D through Y.V. Chandrachud, CJ., as under:
              "17. Since the Constitution had conferred a limited
              amending power on the Parliament, the Parliament cannot
               under the exercise of that limited power enlarge that very
              power into an absolute power. Indeed, a limited amending
 E
               power is one of the basic features of our Constitution and
              therefore, the limitations on that power cannot be
               destroyed. In other words, Parliament cannot. under
              Article 368, expand its amending power so as to acquire
 F            for itself the right to repeal or abrogate the Constitution or
               to destroy its basic and essential features. The donee of a
               limited power cannot by the exercise of that power convert
               the limited power into an unlimited one."
                In the above judgment, the minority view was recorded
 G    by P.N. Bhagwati, J., (as he then was), as under:
               "88. That takes us to clause (5) of Article 368. This clause
               opens with the words "for the removal of doubts" and
               proceeds to declare that there shall be no limitation
               whatever on the amending power of Parliament under Article
 H    03 (1980) 3 sec 625
  SUPREME COURT ADVOCATES-ON-RECORD                            263
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   368. It is difficult to appreciate the meaning of the opening A
   words "for the removal of doubts" because the majority
   decision in Kesavananda Bharati case : Al R 1973 SC 1461
   clearly laid down and left no doubt that the basic structure
   of the Constitution was outside the competence of the
   amendatory power of Parliament and in Indira Gandhi B
   case : [1976] 2 SCR 341, all the judges unanimously
   accepted theory of the basic structure as a theory by which
   the validity of the amendment impugned before them,
   namely, Article 329-A(4) was to be judged. Therefore. after
   the decisions in Kesavananda Bharati case and Indira c
   Gandhi case, there was no doubt at all that the amendatory
   power of Parliament was limited and it was not competent
   to Parliament to alter the basic structure of the Constitution
   and clause (5) could not remove the doubt which did not D
   exist. What clause (5). really sought to do was to remove
   the limitation on the amending power of Parliament and
   convert it from a limited power into an unlimited one. This
   was clearly and indubitably a futile exercise on the part of
   Parliament. I fail to see how Parliament which has only a E
   limited power of amendment and which cannot alter the
   basic structure of the Constitution can expand its power of
   amendment so as to confer upon itself the power of repeal
   or abrogate the Constitution or to damage or destroy its
   basic structure. That would clearly be in excess of the F
   limited amending power possessed by Parliament. The
   Constitution has conferred only a limited amending power
   on Parliament so that it cannot damage or destroy the basic
   structure of the Constitution and Parliament cannot by
   exercise of that limited amending power convert that very G
    power into an absolute and unlimited power. If it were
   permissible to Parliament to enlarge the limited amending
    power conferred upon it into an absolute power of
   amendment, then it was meaningless to place a limitation
   on the original power of amendment. It is difficult to H
264            SUPREME COURT REPORTS·                      [2015] 13 S.C.R.

A               appreciate how Parliament having a limited power of
                amendment can get rid of the limitation by exercising that
                very power and convert it into an absolute power. Clause
                (5) of Article 368 which sought to remove the limitation on
                the amending power of Parliament by making it absolute
8               must therefore be held to be outside the amending power
                of Parliament. There is also another ground on which the
                validity of this clause can be successfully assailed. This
                clause seeks to convert a controlled Constitution into an
                uncontrolled one by removing the limitation on the amending
c               power of Parliament which, as pointed out above, is itself
                an essential feature of the Constitution and it is therefore
                violative of the basic structure. I would in the circumstances
                hold clause (5) of Article 368, to be unconstitutional and void."
.0          With reference to the same proposition, learned counsel
      placed reliance on Kihoto Hollohan v. Zachillhu 34 • It was
      submitted, that the acceptance of the principle of "basic
      structure" of the Constitution, resulted in limiting the amending
      power postulated in Article 368.
 E      6. According to the learned counsel, it is now accepted,
  that "independence of the judiciary", "rule of law", "judicial
  review" and "separation of powers" are components of the
  "basic structure" of the Constitution. In the above view of the
  matter, provisions relating to appointment of Judges to the
F higher judiciary, would have to be such, that the above principles
  would remain unscathed and intact. It was submitted, that any
  action which would have the result of making appointment of
  the Judges to the Supreme Court, and to the High Courts,
G subservient to an agencyother than the judiciary itself, namely,
  by allowing the executive or the legislature to participate in
  their selection and appointment, would render the judiciary
  subservient to such authority, and thereby, impinge on the
  "independence of the judiciary".
 H    34
           1992 Supp (2)   sec 651
    SUPREME COURT ADVOCATES-ON-RECORD                                    265
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

     7. Learned counsel invited the Court's attention to the             A
1st Law Commission Report on "Reform of Judicial
Administration" (14th Report of the Law Commission of India,
chaired by M.C. Setalvad), wherein it was debated, that by
enacting Articles 124 and 217, the framers of the Constitution
had endeavoured to put the Judges of the Supreme Court                   B
"above executive control". Paragraph 4 of the said Report is
being extracted hereunder:
       "(Appointment and removal of Judges)
       4. Realizing the importance of s'afeguarding the C
       independence of the judiciary, the Constitution has provided
       that a Judge of the Supreme Court shall be appointed by
       the President in consultation with the Chief Justice of India
       and after consultation with such of the other Judges of the
       Suweme Court and the High Courts as he may deem D
       necessary. He holds offics till he attains the age of 65
       years and is irremovable except on the presentation of an
       address by each House of Parliament passed by a
       specified majority on the ground of proved misbehaviour
       or incapacity. Thus has the Constjtution endeavoured to E
       put Judges of the Supreme Court above executive control."
      8. ltwas submitted, that "independence of the judiciary"
had been held to mean and include, insulation of the higher
judiciary from executive and legislative control. In this behalf,
reference was made to Union of India v. Sankalchand Himatlal             F
Sheth 5, wherein this Court had observed:
       "50. Now the independence of the judiciary is a fighting
       faith of our Con~titution. Fearless justice is a cardinal creed
       of our founding document. It is indeed a part of our ancjent      G
       tradition which has produced great Judges in the past. In
       England too, from where we have inherited our present
       system of administration of justice in its broad and essential
       features, judicial independence is prized as a basic value
       and so natural and inevitable it has come to be regarded          H
266   SUPREME COURT REPORTS                    [2015] 13 S.C.R.

A     and so ingrained it has become in the life and thought of
      the people that it is now almost taken for granted and it
      would be regarded an act of insanity for any one to think
      otherwise. But this has been accomplished after a long
      fight culminating in the Act of Settlement, 1688. Prior to the
 B    enactment of that Act, a Judge in England held tenure at
      the pleasure of the Crown and the Sovereign could dismiss
      a Judge at his discretion, if the Judge did not deliver
      judgments to his liking. No less illustrious a Judge than
      Lord Coke was dismissed by Charles I for his glorious and
c     courageous refusal to obey the King's writ de non
      procedendo rege inconsulto commanding him to step or
      to delay proceedings in his Court. The Act. of Settlement,
       1688 put it out of the power of the Sovereign to dismiss a
      Judge at pleasure by substituting 'tenure during good
 D
      behaviour' for 'tenure at pleasure'. The Judge could then
      say, as did Lord Bowen so eloquently:
      These are not days in which any English Judge will fail to
      assert his right to rise in the proud consciousness that
      justice is administered in the realms of Her Majesty the
 E
      Queen, immaculate, unspotted, and unsuspected. There
       is no human being whose smile or frown, there is no
       Government, Tory or Liberal, whose favour or disfavour can
       start the pulse of an English Judge upon the Bench, or
 F     move by one hair's breadth the even equipoise of the scales
       of justice.
       The framers of our Constitution were aware of these
       constitutional developments in England and they were
       conscious of our great tradition of judicial independence
 G     and impartiality and they realised that the need for securing
       the independence of the judiciary was even greater under
       our Constitution than it was in England, because ours is a
       federal or quasi-federal Constitution which confers
       fundamental rights. enacts other constitutional limitations
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                   267
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       and arms the Supreme Court and the High Courts with the          A
       power of judicial review and consequently the Union of India
       and the States would become the largest single litigants
       before the Supreme Court and the High Courts. Justice,
       as pointed out by this Court in Shamsher Singh v. State of
       Punjab, (1974) 2 SCC 831. can become "fearless and free          B
       only if institutional immunity and autonomy are guaranteed".
      The Constitution-makers. therefore. enacted several
       provisions designed to secure the independence of the
       su erior 'udicia b insula in it from executive or le islative
       control. I shall briefly refer to these provisions to show how
       great was the anxiety of the constitution-makers to ensure
       the independence of the superior judiciary and with what
       meticulous care they made provisions to that end."
        In continuation of the instant submission, learned              D
counsel placed reliance on the Second Judges case, and drew
our attention to the following observations recorded by S.
Ratnavel Pandian, J.:
       "54. Having regard to the importance of this concept the
       Framers of our Constitution having before them the views         E
       of the Federal Court and of the High Court have said in a
       memorandum:
       "We have assumed that it is recognised on all hands that
       the independence and integrity of the judiciary in a
       democratic system of government is of the highe.st               F
       importance and interest not only to the judges but to the
       citizens at large who may have to seek redress in the last
       resort in courts of law against any illegal acts or the high-
       handed exercise of power by the executive ... in making
       the following proposals and suggestions, the paramount           G
       importance of securing the fearless functioning of an
       independent and efficient judiciary has been steadily kept
       in view. (vide B. Shiva Rao: The Framing of India's
       Constitution, Volume 1-B, p. 196)
                                                                        H
268        SUPREME COURT REPORTS                      [2015] 13S.C.R.


A          55. In this context. we may make it clear by borrowing the
           inimitable words of Justice Krishna Iyer "Independence of
           the judiciary is not genuflexion. nor js it opposition of
           Government". Vide Mainstream - November 22. 1980 and
           at one point of time Justice Krishna Iyer characterised this
 B         concept as a "Constitutional Religion".
           56. lndisputab!y, this concept of independence of judiciary
           which is inextricably linked and connected with the
           constitutional process related to the functioning of judiciary
           is a "fixed-star" in our constitutional consultation and its
c          voice centres_ around the philosophy of the Constitution.
           The basic postulate of this concept is to have a more
           effective judicial system with its full vigour and vitality so
           as to secure and strengthen the imperative confidence of
           the people in the administration of justice. It is only with the
 D
           object of successfully achieving this principle and
           salvaging much of the problems concerning the present
            judicial system. it is inter alia, contended that in the matter
           of appointment of Judges to the High Courts and Supreme
           Court 'primacy' to the opinion of the CJI which is only a
 E
           facet of this concept. should be accorded so that the
            independence of judiciary is firmly secured and protected
           and the hyperbolic executive intrusion to impose its own
            selectee on the superjor judiciary is effectively controlled
 F         and curbed."
            And from the same judgment, reference was made to
      the following observations of Kuldip Singh, J.:
            "335. Then the guestion which comes up for consideration
            is, can there be an independent judiciary when the power
 G          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 the basic feature of our
 H
   SUPREME COURT ADVOCATES-ON-RECORD                                   269
 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      Constitution and if it means what we have discussed above,       A
      then 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     B
      for adjudication b~fore 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        C
      authority to appoint the Judges of the Supreme Court and
      of the High Courts in the hands of the executive. This Court
      in S.P. Gupta v. Union of India, 1981 Supp SCC 87
      proceeded on the assumption that the independence of             D
      judiciary is the basic feature of the Constitution but failed
      to appreciate that the interpretation, it gave, was not in
      conformity with broader facets of the two concepts -
      'independence of judiciary' and 'judicial review' - which are
      interlinked."
                                                                       E
     Based on the above conclusions, it was submitted, that
"independence of the judiciary" could be maintained, only if
appointments of Judges to the higher judiciary, were made by
according primacy to the opinion of the Chief Justice, based
on the decision of a collegium of Judges. Only then, the               F
executive and legislative intrusion, could be effectively
controlled and curbed.
      9. Learned counsel, then ventured to make a reference
to the frequently quoted speech of Dr. B. R. Ambedkar (in the          G
Constituent Assembly on 24.5.1949). It was submitted, that
the above speech was duly considered in the Second Judges
case, wherein this Court concluded as under:
      "389. Having held that the primacy in the matter of
      appointment of Judges to the superior courts vests with          H
270   SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A     the judiciary, the crucial question which arises for
      consideration is whether the Chief Justice of India, under
      the Constitution, acts as a "persona designata" or as the
      leader - spokesman for the judiciary.
       390. The constitutional scheme does not give primacy to
 B     any individual. Article 124(2) provides consultation with the
       Chief Justice of India, Judges of the Supreme Court and
       Judges of the High Courts. Likewise Article 217(1) talks of
       Chief Justice of India and the Chief Justice of the High
       Court. Plurality of consultations has been clearly indicated
 c     by the Framers of the Constitution. On first reading one
       gets the impression as if the Judges of the Sumeme Court
       and High Courts have not been included in the process of
       consultation under Article 217(1) but on a closer scrutiny
       of the constitutional scheme one finds that this was not
 D    .the intention of the Framers of the Constitution. There is
       no justification whatsoever, for excluding the puisne
       Judges of the Supreme Court and of the High Court from
       the "consultee zone" under Article 217 ( 1) of the Constitution.
       391. According to Mr Nariman it would not be a strained
 E
       construction to construe the expressions "Chief Justice of
       India" and "Chief Justice of the High Courts" in the sense
       of the collectivity of Judges, the Supreme Court as
       represented by the Chief Justice of India and all the High
 F     Courts (of the States concerned) as represented by the
       Chief Justice of the High Court. Abare reading of Articles 124(2)
       and 217(1) makes it clear that the Framers of the
       Constitution did not intend to leave the final word. in the
      ·~alter of appointment of Judges to the superior Courts. in

 G     the hands of any individual howsoever high he is placed jn the
       constitutional hierarchy Collective wisdom of the consultees
       is the sine qua non for such appointments. Dr B.R.
       Ambedkar in his speech dated May 24, 1949 in the Constituent
       Assembly explaining the scope of the draft articles pertaining
 H     to the appointment of Judges to the Supreme Court ...
   SUPREME COURT ADVOCATES-ON-RECORD                                      271
 ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

              xxx                      xxx                    . xxx       A
      392. Dr Ambedkar did not see any difficulty in the smooth
      operation of the constitutional provisions concerning the
      appointment. of Judges to the superior Courts. Having
      entrusted the work to high constitutional functionaries the
      Framers of the Constitution felt assured that such B
      appointments would always be made by consensus. It is
      the functioning of the Constitution during the past more
      than four decades which has brought the necessity of
      considering the question of primacy in the matter of such
      appointments. Once we hold that the primacy lies with the C
      judiciary. then it is the judiciary as collectivity which has
      the primal say and not any jndivjdual not even the Chjef
      Justice of India. If we interpret the expression "the Chief
      Justice of India" as a "persona designata" then it would D
      amount "to allow the Chief Justice practically veto upon
      the appointment of Judges" which the Framers of the
      Constitution in the words of Dr Ambedkar never intended
      to do. We are. therefore. of the view that the expressions -
      "the Chief Justice of India" and the "Chief Justice of the E
      High Court" in Articles 124(2) and 217(1) of the Constitution
      mean the said judicial functionaries as representatives of
      their respective courts."
      In conjunction with the observations extracted
hereinabove, the Court's attention was also invited to the                F
following further conclusions:
      "466. It has to be borne in mind that the principle of non-
      arbitrariness which is an essential attribute of the rule of
      law is all pervasive throughout the Constitution; and an
      adjunct of this principle is the absence of absolute power          G
      in one individual in any sphere of constitutional activity. The
      possibility of intrusion of arbitrariness has to be kept in view,
      and eschewed, in constitutional interpretatioh and,
      therefore, the meaning of the opinion of the Chief Justice          H
272   SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A     ·of India, in the context of primacy, must be ascertained. A
       homogenous mixture, which accords with the constitutional
       purpose and its ethos, indicates that it is the opinion of the
      judiciary 'symbolised by the view of the Chief Justice of
       India' which is given greater significance or primacy in the
 B     matter of appointments. In other words, the view of the
       Chief Justice of India is to be expressed in the consultative
       process as truly reflective of the opinion of the judiciary,
       which means that it must necessarily have the element of
       plurality in its formation. In actual practice. this is how the
c      Chief Justice of India does. and is expected to function so
       that the final opinion expressed by him is not merely his
       individual opinion. but the collective opinion formed after
       taking into account the views of some other Judges who
       are traditionally associated with this function.
 D
       467. In view of the primacy of. judiciary in this process the
       question next. is of the modality for achieving this puroose.
       The indication in the constitutional provisions is found from
       the reference to the office of the Chief Justice of India. which
       has been named for achieving this object in a pragmatic
 E
       manner. The opinion of the judiciary 'symbolised by the
       view of the Chief Justice of India' is to be obtained by
       consultation with the Chief Justice of India: and it is this
       opinion which has primacy.
 F     468. The rule of law envisages the area of discretion to be
       the minimum, requiring only the application of known
       principles or guidelines to ensure non-arbitrariness, but to
       that limited extent, discretion is a pragmatic need.
       Conferring discretion upon high functionaries and,
 G     whenever feasible, introducing the element of plurality by
       requiring a collective decision, are further checks against
       arbitrariness. This is how idealism and pragmatism are
       reconciled and integrated, to make the system workable
       in a satisfactory manner. Entrustment of the task of
 H     appointment of superior judges to high constitutional
    SUPREME COURT ADVOCATES-ON-RECORD                                 273
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      functionaries: the greatest significance attached to the view   A
      of the Chief Justice of India. who is best equipped to assess
      the true worth of the candidates for adjudging their
      suitability: the opinion of the Chief Justice of India being
      the collective opinion formed after taking into account the
      views of some of his colleagues: and the executive being        B
      permitted to prevent an appointment considered to be
      unsuitable. for strong reasons disclosed to the Chief Justice
      of India. provide the best method. in the constitutional
      scheme. to achieve the constitutional purpose without
      conferring absolute discretion or veto upon either the          c
      judiciary or the executive. much less in any individual. be
      he the Chief Justice of India or the Prime Minister."
       10. It was the emphatic contention of the learned counsel,
that the conclusions recorded by this Court in the Second             D
Judges case, had been accepted by the executive and the
legislature. It was acknowledged, that in the matter of
appointment of Judges to the higher judiciary, primacy would
vest with the judiciary, and further that, the opinion of the
judiciary would have an element of plurality. This assertion          E
was sought to be further established, by placing reliance on
the Third Judges case. It was submitted, that the conclusions
of the majority judgment, in the Second Judges case, were
reproduced in paragraph 9 of the Third Judges case, and
thereupon, this Court recorded the statement of the then              F
Attorney General, that through the Presidential Reference, the
Union of India was not seeking, a review or reconsideration,
of the judgment in the Second Judges case. And that, the Union
of India had accepted the above majority judgment, as binding.
In this context, paragraphs 10 to 12 of the Third Judges case,        G
which were relied upon, are being reproduced below:
       "10. We have heard the learned Attorney General, learned
       counsel for the interveners and some of the High Courts
       and the Advocates General of some States.
                                                                      H
274         SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A           11. We record at the outset the statements of the Attorney
            General that (1) the Union of India is not seeking a review
            or reconsjderation of the judgment jn the Second Judges
            case (1993\ 4 sec 441 and that (2) the Union of India
            shall accept and treat as binding the answers of this Court
B           to the questions set out in the Reference.
             12. The majority view in the Second Judges case (1993)4
             sec 441 is that in the matter of appointments to the
            Supreme Court and the High Courts. the ooinion of the
c           Chief Justice of India has primacy. The opinion of the Chief
            Justice of lncjja is "reflective of the opinion of the judjciary,
            which means that it must necessarily have the element of
            plurality in its formation". It is to be formed "after taking into
            account the view of some other Judges who are traditionally
D           associated with this function". The opinion of the Chief
            Justice of India "so given has primacy in the matter of all
            appointments". For an appointment to be made, it has to
            be "in conformity with the final opinion of the Chief Justice
            of India formed in the manner indicated". It must follow that
 E          an opinion formed by the Chief Justice of India in any
            manner other than that indicated has no primacy in the
            matter of appointments to the Supreme Court and the High
            Courts and the Government is not obliged to act thereon."
 F           11. Learned counsel invited the Court's attention, to the
      third conclusion drawn in Madras Bar Association v. Union of
      lndia35 , which is placed below:
            "136.(iii) The "basic structure" of the Constitution will stand
            violated if while enacting legislation pertaining to transfer
 G          of judicial power, Parliament does not ensure that the newly
            created court/tribunal conforms with the salient
            characteristics and standards of the court sought to be
            substituted."

 H    "(2014) 10 sec 1
    SUPREME COURT ADVOCATES-ON-RECORD                             275
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]
                           •
       Learned counsel then asserted, that the "basic structure" A
of the Constitution would stand violated if, in amending the
Constitution and/or enacting legislation, Parliament does not
ensure, that the body newly created, conformed with the salient
characteristics and the standards of the body sought to be
substituted. It was asserted, that the salient features of the B
existing process of appointment of Judges to the higher
judiciary, which had stood the test oftime, could validly and
constitutionally be replaced, but while substituting the prevailing
procedure, the salient characteristics which existed earlier, had
to be preserved. By placing reliance on Articles 124 and 217, C
it was asserted, that the above provisions, as originally
enacted, were explained by decisions of this Court, starting
from 197 4 in Samsher Singh v. State of Punjab 11 , followed by
the Sankalchand Himatlal Sheth case 5 in 1977, and the Second D
Judges case in 1993, and finally endorsed in 1998 by the Third
Judges case. It was submitted, that four Constitution Benches
of the Supreme Court, had only affirmed the practice followed
by the executive since 1950 (when the people of this country,
agreed to be governed by the Constitution). It was pointed E
out, that the process of appointment of Judges to the higher
judiciary, had continued to remain a participatory consultative
 process, wherein the initiation of the proposal for appointment
of a Judge to the Supreme Court, was by the Chief Justice of
 India; and in the case of appointment of Judges to High Courts, F
by the Chief Justice of the concerned High Court. And that, for
transfer of a Judge/Chief Justice of a High Court, to another
 High Court, the proposal was initiated by the Chief Justice of
 India. It was contended, that in the process of taking a decision
on the above matters (of appointment and transfer), the opinion G
of thejudiciary was symbolized through the Chief Justice of
 India, and th~,sar'lle was based on the decision of a collegium
of Judges, since 1993 -when the Second Judges case was
decided. The only exception to the above rule, according to
                                                                    H
276         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A  learned counsel, was when the executive, based on stated
   strong cogent reasons (disclosed to the Chief Justice of India),
   felt otherwise. However, if the stated reasons, as were
   disclosed to the Chief Justice of India, were not accepted, the
   decision of a collegium of Judges on reiteration, would result
 B in the proposed appointmenUtransfer. This, according to
   learned counsel, constituted the earlier procedure under
   Articles 124 and 217. The aforesaid procedure, was
   considered as sufficient, to preserve the "independence of the
   judiciary".
 c
            12. According to learned counsel, it needed to be
      determined, whether the NJAC now set up, had the same or
      similar characteristics, in the matter of appointments/transfers,
      which would preserve the "independence of the judiciary"?
 o    Answering the query, learned counsel was emphatic, that the
      primacy of the judiciary, had been totally eroded through the
      impugned constitutional amendment. For the above, learned
      counsel invited our attention to Article 124A inserted by the
      Constitution(99thAmendment)Act. It was submitted, that the
 E    NJAC contemplated under Article 124A would comprise of six
      Members, namely, the Chief Justice of India, two senior Judges
      of the Supreme Court (next to the Chief Justice), the Union
      Minister in charge of Law and Justice, and two "eminent
      persons". It was submitted, that the judges component, which
 F    had the primacy (and in a manner of understanding -
      unanimity), under the erstwhile procedure, had now been
      reduced to half-strength, in the selecting body-the NJAC. It
      was pointed out, that the Chief Justice of India, would now have
      an equivalent voting right, as the other Members of the NJAC.
 G    It was submitted, that even though the Chief Justice of India
      would be the Chairman of the NJAC, he has no casting vote,
      in the event of a tie. It was submitted, that under the substituted
      procedure, even if the Chief Justice of India, and the two other
 H    senior Judges of the Supreme Court (next to the Chief Justice
    SUPREME COURT ADVOCATES-ON-RECORQ                         277
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

of India), supported the appointmenUtransfer of an individual, A
the same could be negatived, by any two Members of the
NJAC. Even by the two "eminent persons" who may have no
direct or indirect nexus with the process of administration of
justice. It was therefore submitted, that the primacy vested
with Ure Chief Justice of India had been fully and completely B
eroded.
       13. With reference to the subject of primacy of the
judiciary, it was asserted, that under the system sought to be
substituted, the proposal for appointment of Judges to the     c
Supreme Court, could only have been initiated by the Chief
Justice of India. And likewise, the proposal for transfer of a
Judge or the Chief Justice of a High Court, could only have
been initiated by the Chief Justice of India. And likewise, the
proposal for appointment of a Judge to a High Court, could     o
only have been initiated by the Chief Justice of the concerned
High Court. In order to demonstrate the changed position,
learned counsel placed reliance on Article 1248 introduced
by the Constitution (99th Amendment) Act, whereunder, the
aµthority to initiate the process, had now been vested with the E
NJAC. Under the new dispensation, the NJAC alone would
recommend persons for appointment as Judges to the higher
judiciary. It was also apparent, according to learned counsel,
that the NJAC has now been bestowed with the exclusive
responsibility to recommend transfers of Chief Justices and F
Judges of High Courts. Having described the aforesaid
alteration as a total subversion of the prevailing procedure,
which had stood the test of time, and had secured the
 independence of the process of appointment and transfer of
Judges of the higher judiciary, .it was pointed out, that the G
 Parliament had not disclosed the reasons, why the primacy of
the Chief Justice of India and the other senior Judges, had to
be·dispensed with. Or for that matter, why the prevailing
 procedure needed to be altered. It was further the contention H
278        ·SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     of learned counsel, that the non-disclosure of reasons, must
      inevitably lead to the inference, that there were no such
      reasons.
            14. Dr. Rajeev Dhavan, learned senior counsel, also
      advanced submissions, with reference to the "basic structure",
8
      and the scope of amending the provisions of the Constitution.
      Dwelling upon the power of Parliament to amend the
      Constitution, it was submitted, that this Court in Kesavananda
      Bharati v. State of Kerala 10 , had declared, that the "basic
c     structure" of the Constitution, was not susceptible or amenable
      to amendment. Inviting our attention to Article 368, it was
      submitted, that the power vested with the Parliament to amend
      the Constitution, contemplated the extension of the constituent
      power, which was exercised by the Constituent Assembly, while
D     framing the Constitution. It was pointed out, that in exercise of
      the above power, the Parliament had been permitted to
      discharge the same role as the Constituent Assembly. The
      provisions of the Constitution, it was asserted, could be
      amended, to keep pace with developments in the civil society,
 E    so long as the amendment was not in violation of the "basic
      structure" of the Constitution. It was submitted, that it was not
      enough, in the facts and circumstances of the present case, to
      determine the validity of the constitutional amendment in
      question, by limiting the examination to a determination,
 F    whether or not the "independence of the judiciary" stood
      breached, on a plain reading of the provisions sought to be
      amended. It was asserted, that it was imperative to take into
      consideration, judgments rendered by this Court, on the subject.
      It was asserted, that this Court was liable to examine the
 G    declared position of law, in the First, Second and Third Judges
      cases, insofar as the present controversy was concerned.
      According to learned counsel, if the enactments under
      challenge, were found to be in breach of the "basic structure"
 H    of the Constitution, as declared in the above judgments, the
    SUPREME COURT ADVOCATES-ON-RECORD                                   279
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

impugned constitutional amendment, as also, the legislation             A
under reference, would undoubtedly be constitutionally invalid.
       15; In the above context, learned counsel pointed out,
that with reference to an amendmentto the fundamental right(s ),
enshrined in Part Ill of the Constitution, guidelines were laid
                                                                    8
down by this Court in M. Nagaraj v. Union of lndia36 , as also, in
the Kihoto Hallahan case 34 • It was submitted, that the change
through the impugned amendment to the Constitution, (and by
the NJAC Act) was not a peripheral change, but was a
substantial one, which was also seemingly irreversible. And c
therefore, according to learned counsel, its validity would have
to be determined, on the basis of the width arid the identity
tests. It was submitted, that the width and the identity tests were
different from the tests applicable for determining the validity
of ordinary parliamentary legislation, or a constitutional D
amendment relating to fundamental rights. The manner of
working out the width and the identity tests, it was submitted,
had been laid down in the M. Nagaraj case36 , wherein this Court
held:
       "9. On behalf of the respondents, the following arguments        E
       were advanced. The power of amendment under Article
       368 is a "constituent" power and not a "constituted power";
       that, that there are no implied limitations on the constituent
       power under Article 368; that, the power under Article 368
       has to keep the Constitution in repair as and when it            F
       becomes necessary and thereby protect and preserve the
       basic structure. In such process of amendment, if it
       destroys the basic feature of the Constitution, the
       amendment will be unconstitutional. The Constitution,            G
       according to the respondents is not merely what it says. It
       js what the last interpretation of the relevant provision of
       the Constitution given by the Supreme Court which prevails
       as a law. The interoretation placed on the Constitution by
'' (2006) a sec 212                                                     H
280         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A           the Court becomes part of the Constitution and. therefore.
            it is open to amendment under Article 368. An interpretation
            placed by the Court on any provision of the Constitution
            gets inbuilt in the provisions interpreted. ·such articles are
            capable of amendment underArticle 368. Such change of
 B          the law so declared by the Supreme Court will not merely
            for that reason alone violate the basic structure of the
            Constitution or amount to usurpation of judicial power. This
            is how the Constitution becomes dynamic. Law has to
            change. It requires amendments to the Constitution
 c          according to the needs of time and needs of society. It is
            an ongoing process of judicial and constituent powers, both
            contributing to change of law with the final say in the
            judiciary to pronounce on the validity of such change of
            law effected by the constituent power by examining whether
 D
            such amendments violate the basic structure of the
            Constitution. On every occasion when a constitutional
            matter comes before the Court. the meaning of the
             provisions of the Constitution will call for interpretation, but
            every interpretation of the article does not become a basic
 E
            feature of the Constitution. That. there are no implied
            limitations on the power of Parliament under Article 368
             when it seeks to amend the Constitution. However. an
             amendment will be invalid, if it interferes with or undermines
 F           the basic structure. The valrdrty of the amendment is not
             to be decided on the touchstone of Article 13 but only on
            the basis of violation of the basic features of the
             Constitution."
             16. It was submitted, that whilst the Parliament had the
 G    power to amend the Constitution; the legislature (- or the
      executive), had no power to either interpret the Constitution,
      or to determine the validity of an amendment to the provisions
      of the Constitution. The power to determine the validity of a
      constitutional amendment, according to learned counsel,
 H
    SUPREME COURT ADVOCATES-ON-RECORD                         281
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

exclusively rests with the higher judiciary. Every amendment A
had to be tested on the touchstone of "basic structure" - as
declared by the judiciary. It was submitted, that the aforesaid
power vested with the judiciary, could not be withdrawn or
revoked. This, according to learned counsel, constituted the
fundamental judicial power, and was no less significant/weighty B
than the legislative power of Parliament. The importance of
the power of judicial review vested with the higher judiciary (to
examine the validity of executive and legislative actions),
bestowed superiority to the judiciary over the other two pillars
of governance. This position, it was pointed out, was critical C
to balance the power surrendered by the civil society, in favour
of the political and the executive sovereignty.
       17. In order to determine the validity of the submissions
advanced on behalf of the petitioners, we were informed, that D
the interpretation placed by the Supreme Court on Articles 124
and 217 (as they existed, prior to the impugned amendment),
would have to be kept in mind. It was submitted, that the term
"consultation" with ·reference to Article 124, had been
understood as conferring primacy with the judiciary. Therefore, E
while examining the impugned constitutional amendment to
Article 124, it was imperative for this Court, to understand the
term "consultation" in Article 124, and to read it as, conferring
primacy in the matter of appointment of Judges, with the
judiciary. Under Article 124, according to learned counsel, the F
President was not required to merely "consult" the Chief Justice
of India, but the executive was to accede to the view expressed
by the Chief Justice of India. Insofar as the term "Chief Justice
of India" is concerned, it was submitted, that the same had
also been understood to mean, not the individual opinion of G
the Chief Justice of India, but the opinion of the judiciary
symbolized through the Chief Justice of India. Accordingly, it
was emphasized, that the individual opinion of the Chief Justice
 (with reference to Articles 124 and 217) was understood as H
282         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     the institutional opinion of the judiciary. Accordingly, whilst
      examining the impugned constitutional amendment, under the
      width and the identity test(s), the above declared legal position,
      had to be kept in mind while determining, whether or not the
      impugned constitutional amendment, and the impugned
B     legislative enactment, had breached the "basic structure" of
      the Constitution.
            18. It was contended, that the judgment in the Second
      Judges case, should be accepted as the touchstone, by which
C     the validity of the impugned constitutional amendment (and
      the NJACAct), must be examined. It was submitted, thatthe
      power exercised by the Parliament under Article 368, in giving
      effect to the impugned constitutional amendment (and by
      enacting the NJAC Act), will have to be tested in a manner,
 o    that will allow an organic adaptation to the changing times,
      and at the same time ensure, that the "basic structure" of the
      Constitution was not violated. Relying on the M. Nagaraj
      case 36 , the Court's attention was drawn to the following
      observations:
 E           "18. The key issue. which arises for determination in this
             case is-whether by virtue of the impugned constitutional
             amendments. the power of Parliament is so enlarged so
             as to obliterate any or all of the constitutional limitations
             and reguirements?
 F           Standards of judicial review of constitutional amendments
             19. The Constitution is not an ephemeral legal document
             embodying a set of legal rules for the passing hour. It sets
             out principles for an expanding future and is intended to ·
             endure for ages to come and consequently to be adapted
 G
             to the varjous crises of human affairs. Therefore, a
             puroosive rather than a strict literal approach to the
             interpretation should be adopted. A constitutional provision
             must be construed not in a narrow and constricted sense
             but in a wide and liberal manner so as to anticipate and
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                     283
  ASSOCIATION v. U.0.1. [JAGDISH_SINGH KHEHAR, J.]

       take account of changing conditions and purposes so that           A
       a constitutional provision does not get fossilised but
       remains flexible enough to meet the newly emerging
       problems and challenges."
      Learned senior counsel, also drew the Court's attention
to similar observations recorded in the Second Judges case.               8

      19. Learned counsel was emphatic, that the impugned
constitutional ar:nendment (and the provisions of the NJACAct),
if approved, would remain in place for ten ... , twenty ... , thirty or
even forty years, and therefore, need to tie viewed closely and           c
objectively. The provisions will have to be interpreted in a
manner, that the "independence of the judiciary" would not be
compromised. It was submitted, that ifthe impugned provisions
were to be declared as constitutionally valid, there would be
no means hereafter, to restore the "independence of the                   D
judiciary".
      20. According to learned counsel, the question was of
the purity of the justice delivery system. The question was about
the maintenance of judicial standards. All these questions E
emerged from the fountainhead, namely, the manner of
appointment of Judges to the higher judiciary. The provisions
of Article 124, it was pointed out, as it existed prior to the
impugned amendment, had provided for a system of
trusteeship, wherein institutional predominance of the judiciary F
was the hallmark. It was submitted, that the aforesaid
trusteeship should not be permitted to be shared by those,
whose rival claims arose for consideration before Courts of
law. The judicial responsibility in the matter of appointment of
Judges, according to learned counsel, being the most G
important trusteeship, could not be permitted to be shared,
with either the executive or the legislature.
      21. Referring to the amendment itself, it was contended,
that merely changing the basis of the legislation, would not be
                                                                          H
284         SUPREME COURT REPORTS                     [2015] 13 S.C.R.

A     the correct test to evaluate the actions of the Parliament, in the
      present controversy. It was likewise submitted, that
      reasonableness and proportionality were also not the correct.
      test(s) to be applied. According to learned counsel, in order
      to determine the validity of the impugned constitutional
 B    amendment (and the NJAC Act), the Union of India and the
      ratifying States will have to bear .the onus of satisfactorily
      establishing, that the amended provisions, could under no
      circumstances, be used (actually misused) to subvert the
      "independence of the judiciary". Placing reliance on the M.
C     Nagaraj case 36 , the Court's attention was invited to the following
      observations:
             "22. The question which arises before us is regarding the
             nature of the standards of judicial review required to be
             applied in judging the validity of the constitutional
0
             amendments in th$ context of the doctrine of basic
             structure. The concept of a basic structure giving
             coherence and durability to a Constitution has a certain
             intrinsic force. This doctrine has essentially developed from
 E           the German Constitution. This development is the
             emergence of the constitutional principles in their own right.
             It is not based on literal wordings.
             23 ...... In S.R. Bommai (1994) 3 SCC 1 the Court clearly
             based its conclusion not so much on violation of particular
 F           constitutional provisions but on this generalised ground i.e.
             evidence of a pattern of action directed against the principle
             of secularism. Therefore, it is important to note that the
             recognition of a basic structure in the context of
             amendment provides an insight that there are, beyond the
 G           words of particular provisions, systematic principles
             underlying and connecting the provisions of the
             Constitution. These principles give coherence to the
             Constitution and make it an organic whole. These principles
             are part of constitutional law even if they are not expressly
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                    285
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   stated in the form of rules. An instance is the principle of        A
   reasonableness which connects Articles 14, 19 and 21.
   Some of these principles may be so important and
   fundamental as to qualify as "essential features" or part of
   the "basic structure" of the Constitution. that is to say they
   are not open to amendment. However, it is only by linking           B
   provisions to such overarching principles that one would
   be able to distinguish essential from less essential
   features of the Constitution.
           )()()(                   )()()(                    )()()(

   25. For a constitutional principle to qualify as an essential       C
   feature. it must be established that the said principle is a
   part of the constitutional law binding on the legislature. Only
   thereafter. is the second step to be taken. namely. whether
   the principle is so fundamental as to bind even the                 D
   amending power of Parliament i.e. to form a part of the
   basic structure. The basic structure concept accordingly
   limits the amending power of Parliament. To sum up: in
   order to qualify as an essential feature, a principle is to be
   first established as part of the constitutional law and as          E
   such binding on the legislature. Only then, can it be
   examined whether it is so fundamental as to bind even the
   amending power of Parliament i.e. to form part of the basic
   structure of the Constitution. This is the standard of judicial
   review of constitutional amendments in the context of the           F
   doctrine of basic structure.
           )()()(   <                )()()(                   )()()(




   30. Constitutional adjudication is like no other decision-
   making. There is a moral dimension to every major
   constitutional case; the language of the text is not                G
   necessarily a controlling factor. Our Constitution works
   because of its generalities, and because of the good sense
   of the judges when interpreting it. It is that ir.tformed freedom
   of action of the judges that helps to preserve and protect
   our basic document of governance.                                   H
286         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A                    xxx                     xxx                     xxx
             35. The theorv of basic structure is based on the pdncjple
             that a change in a thing does not involve its destruction
             and destruction of a thing is a matter of substance and not
             of form. Therefore, one has to apply the test of overarching
B            principle to be gathered from the scheme and the
             placement and the structure of an article in the Constitution.
             For example, the placement of J.\rticle 14 in the .equality
             code; the placement of Article 19 in the freedom code; the
             placement Qf Article 32 in the code giving access to the
c            Supreme Court. Therefore, the theory of basic structure is
             the only theory by which the validity of impugned
             amendments to the Constitution is to be judged."
            22. Referring to the position expressed by this Court,
 0    learned counsel submitted, that the overarching principle for
      this Court, was to first keep in its mind, the exact nature of the
      amendment contemplated through the Constitution (99th
      Arncndment)Act. And the second step was, to detenmine how
      fundamental the amended provision was. For this, reliance was
 E    again placed on the M. Nagaraj case 36 , and our attention was
      drawn to the following conclusions:
             "102. In the matter of application of the principle of basic
             structure, twin tests have to be satisfied namely the "width ·
             test" and the test of "identity". As stated hereinabove, the
 F           concept of the "catch-up" rule and "consequential seniority"
             are not constitutional requirements. They are not implicit
             in clauses (1) and (4) o_f Article 16. They are not
             constitutional limitations. They are concepts derived from
             service jurisprudence. They are not constitutional
 G           principles. They are not axioms like, secularism,
             federalism, etc. Obliteration of these concepts or insertion
             of these concepts does not change the equality code
             indicated by Articles 14, 15 and 16 of the Constitution.
             Clause (1) of Article 16 cannot prevent the State from taking
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                      287
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   cognizance of the compelling interests of Backward A
   Classes in the society. Clauses (1) and (4) of Article 16
   are restatements of the principle of equality under Article
   14. Clause (4) of Article 16 refers to affirmative action by
   way of reservation. Clause (4) of Article 16, however, states
   that the appropriate Government is free to provide for B
   reservation in cases where it is satisfied on the basis of
   quantifiable data that Backward Class is inadequately
   represented in the services. Therefore, in every case where
   the State decides to provide for reservation there must exist ·
   two circumstances, namely, "backwardness" and C
  . "inadequacy of representation". As stated above, equity,
    justice and efficiency are variable factors. These factors
     are context-specific. There is no fixed yardstick to identify
     and measure these three factors, it will depend on the facts        D
     and circumstances of each case. These are the limitations
     on the mode of the exercise of power by the State. None of
     these limitations have been removed by the impugned
     amendments. If the State concerned fails to identify and
     measure backwardness, inadequacy and overall                        E
     administrative efficiency then in that event the provision
     for reservation would be invalid. These amendments do
     riot alter the structure of Articles 14. 15 and 16 (eguity code).
     The parameters mentioned in Article 16(4) are retained.
     Clause {4-A) is derived from clause (4) of Article 16. Clause       F
     {4-A) is confined to SCs and STs alone. Therefore the
     present case does not change the identity of the
     Constitution. The word "amendment" connotes change.
   · The question is-whether the impugned amendments
     discard the original Constitution. It was vehemently urged          G
     on behalf of the petitioners that the Statement of Objects
     and Reasons indicates that the impugned amendments
  . have been promulgated by Parliament to overrule the
     decisions of this Court. We de not find any merit in this
     argtJment. Under Art1c1c 141 of ;<;.., Constitution the             H
288        SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A           pronouncement of this Court is the law of the land. The
            judgments of this Court in Union of India ·v. Viroal Singh
            Chauhan. (1995) 6 SCC 684 .... Ajit Singh Januja v. State
            of Punjab. (1996) 2 SCC 715 .... Ajit Singh (II) v. State of
            Punjab. (1999\ 7 SCC 209 ... and Indra Sawhney v. Union
 B          of India. 1992 Supp (3) SCC 217 ... were judgments
            delivered by this Court which enunciated the law of the
            land. It is that law which is sought to be changed by the
            impugned constitutional amendments. The impugned
            constitutional amendments are enabling in nature. They
 c          leave it to the States to provide for reservation. It is well
            settled that Parliament while enacting a law does not
            provide content to the "right". The content is provided by
            the judgments of the Supreme Court. If the appropriate
            Government enacts a law providing for reservation without
 D
            keeping in mind the parameters in Article 16(4) and Article
            335 then this Court will certainly set asjde and strike down
            such legislation. Applying the "width test". we do not find
            obliteration of any of the constitutional limitations. Applying
            the test of "identity". we do not find any alteration in the
 E
            existing structure of the equality code. As stated above,
            none of the axioms like secularism, federalism, etc. which
            are overarching principles have been violated by the
            impugned constitutional amendments. Equality has two
 F          facets- "formal equality" and '.'proportional equality".
            Proportional equality is equality "in fact" whereas formal
            equality is equality "in law". Formal equality exists in the
            rule of law. In the case of proportional equality the State is
            expected to take affirmative steps in favour of
 G          disadvantaged sections of the society within the framework
            of liberal democracy. Egalitarian equality is proportional
            equality."
           Yet again referring to the width and the identity tests,
      learned counsel emphasized, that it was imperative for this
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                289
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Court, in the facts and circumstances of the present case, to        A
examine whether the power of amendment exercised by the
Parliament, was so wide as to make it excessive .. For the
above, reference was made to the Madras Bar Association
case 35 , wherein this Court recorded the following conclusions:
                                                                      8
      "134.(i) Parliament has the power to enact legislation and
      to vest adjudicatory functions earlier vested in the. High
      Court with an alternative court/tribunal. Exercise of such
      power by Parliament would not per se violate the "basic
      structure" of the Constitution.                                  C
      135.(ii) Recognised constitutional conventions pertaining
      to the Westminster model do not debar the legislating
      authority from enacting legislation· to vest adjudicatory
      functions earlier vested in a superior court with an
      alternative court/tribunal. Exercise of such power by D
      Parliament would per se not violate any constitutional
                                       fr      '
      convention.
      136.(iii) The ''.basic structure" of the Constitution will stand
      violated if while enacting legislation pertaining to transfer
      of judicial power. Parliament does not ensure that the newly E
      created court/tribunal conforms with the salient
      characteristics and standards of the court sought to. be
      substituted.
      137 .(iv) Constitutional conventions pertaining to the
      Constitutions styled on the Westminster model will also F
      stand breached. if while enacting legislation. pertaining to
      transfer of judicial power. conventions and salient
      characteristics of the court sought to be replaced are not
      incorporated in the court/tribunal sought to be created.
      138.(v) The prayer made in Writ Petition (C) No. 621 of G
      2007 is declined. Company Secretaries are held ineligible
      for repr~senting a party to an appeal before NTT.
      139.(vi) Examined on the touchstone of Conclusions (iii)
      and (iv) (contained in paras 136 and 137. above) Sections
                                                                      H
290         SUPREME COURT REPORTS                     (2015] 13 S.C.R.


A           5, 6, 7, 8 and 13 of th§ NTI Act (to the §21!ent irn;!icated
            ber§ioa!;!QY:e), are h§ld IQ b§ ungonstitutiQOSJI, Sing§ the
            aforesaid 12rgvisions constityte the edifice gf the NTT Act,
            and without tbese grovisions the remaining grovisions are
            rendered in§ffective and incooseguential, the entire
 B          enS]ctment is declared unconstitution;;il."
            Based on the above, it was asserted, that this Court had
      now clearly laid down, that on issues pertaining to the transfer
      of judicial power, the salient characteristics, standards and
      conventions of judicial power, could not be breached. It was
 c    also submitted, that evaluated by the aforesaid standards, it
      would clearly emerge, that the "independence of the judiciary"
      had been seriously compromised, through the impugned
      constitutional amendment (and the NJACAct).
 D       23. It was the submission of Mr. Ram Jethmalani, learned
   Senior Advocate, that the defect in the judgment rendered by
   this Court in the First Judges case, was that, Article 50 of the
   Constitution had not been appropriately highlighted, for
   consideration. It was submitted, that importance of Article 50
 E read with Articles 12 and 36, came to be examined in the
   Second Judges case, wherein the majority view, was as
   follows:
             "80. From th§ above d§liberation, it is clear that Article 50
             was referred to in varioys decisions b)( the eminent Judges
 F
             of this Court while discussing the Qrincigle of indegengence
             Qf the judiciarv. We may cite Article 36 which falls under
             Part IV (Directive Principles of State Policy) and which
             reads thus:
 G           "36. In this Part, unless the context otherwise requires,
             'the State' has the same meaning as in Part Ill."
             81. According to this article, the definition of the expression
             "the State" in Article 12 shall apply throughout Part IV,
             wherever that word is used. Therefore, it follows that the        '
 H            expression "the State" used in Article 50 has to be construed
  SUPREME COURT ADVOCATES-ON-RECORD                                   291
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]
                         ..
    in the distributive sense as including the Government and A
    Parliament of ln.dia and the Government and the legislature
    of each State and all local or other authorities within the
    territory of India or under the control of the Government of
    India. When the concept of separation of the judiciarv from
    the executive is assayed and assessed that concept cannot B
    be confined only to the subordinate judigiarv..._totally
    discarding the higher judiciary. If such a narrow and
    pedantic or syllogistic approach is made and a constricted
    construction is given it would lead to an anomalous ·
    position that the Constitution does not emphasise the C
    separation of higher judiciary from the executive. Indeed,
    the distinguished Judges of this Court as pointed out           /-
    earlier. in various decisions have referred to Article 50 while
    discussing the concept of independence of higher or D
    superior judiciary and thereby highlighted and laid stress
  . on the basic principle and values underlying Article 50 in
    safeguarding the independence of the judiciary.
   xxx                        xxx                            xxx
    85. Regrettably, there are some intractable problems              E
    concerned with judicial administration starting from the
    initial stage of selection of candidates to man the Supreme
    Court and the High Courts leading to the present malaise.
    Therefore, it has become inevitable that effective steps
  . have to be taken to improve or retrieve the situation. After      F
    taking note of these problems and realising the devastating
    consequences that may flow, one cannot be a silent
    spectator or an old inveterate optimist, looking upon the
    other constitutional funetionaries, particularly the executive,
    in the fond hope of getting invigorative solutions to make        G
    the justice delivery system more effective and resilient to
    meet the contemporary needs of the society, which hopes,
    as experience shows, have never been successful.
    Therefore, faced with such a piquant situation, it has
    become imperative for us to solve these problems within           H
292   SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A     the constitutiona.1 fabric by interpreting the various provisions
      of the Constitution relating to the functioning of the judiciary
      in the light of the letter and spirit of the Constitution.
      )()()(                   )()()(                              )()()(

      141. Mr Ram Jethmalani, learned senior counsel expressed
B     his grievance that the principles laid down in Chandra Mohan
      case (1967) 1 SCR 77, 83 ... were not appreciated by the
      learned Judges while dealing with Samsher Singh v. State
      of Punjab, (1974) 2 SCC 831 who in his submission, have
      ignored the principle of harmonious construction which was
c     articulated in K.M. Nanavati v. State of Bombay (1961) 1
      SCR 497 ... According to him, the judgment in Gupta case
      1981 Supp SCC 87 may be regarded as per incuriam. He
      articulates that the expression 'consultation' is itself flexible
      and in a certain context capable of bearing the meaning of
 D
      'consent' or 'concurrence'.
      xxx                      xxx                                 )()()(
      154. The controversy that arises for scrutiny from the
      arguments addressed boils down with regard to the
      ccnstruction of the word 'consultation'.
 E
      )()()(                   xxx                                 xxx
      170. Thus, it is seen that the consensus of opinion is that ·
      consultation with the CJI is a mandatory condition
      precedent to the order of transfer made by the President
 F    so that non-consultation with the CJI shall render th'? order
      unconstitutional i.e. void.
      171. The above view of the mandatorv character of the
      requirement of consultation taken in Sankalchand has been
      followed and reiterated by some of the Judges jn Gupta
 G    case. Fazal Ali. J. has held in Gupta case: (SCC p. 483,
      para 569)
      "(3) If the consultation with the CJI has not been done before
      transferring a        Judge,      the   transfer     becomes
      unconstitutional."
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                    293 .
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   Venkataramiah, J. in Gupta case has also expressed the              A
   same view.
   172. In the light of the above view expressed in Union of
   India v. Sankalchand Himatlal Sheth. (1977) SCC 4 193 ...
   and some of the Judges in Gupta case 1981 Supp SCC
   87 ... it can be simply held that consultation with the CJI         B
   under the first proviso to Article 124(2) as well as under
   Article 217 is a mandatory condition, the violation of which
   would be contrary to the constitutional mandate.
   xxx                      xxx                      xxx
   181. It cannot be gainsaid that the CJI being the head of           C
   the Indian Judiciary and paterfamilias of the judicial fraternity
   has to keep a vigilant watch in protecting the integrity and
   guarding the independence of the judiciary and he in that
   capacity evaluates the merit of the candidate with regard D
   to his/her professional attainments, legal ability etc. and .
   offers his opinion. Therefore, there cannot be any
    justification in scanning that opinion of the CJI by applying
    a superimposition test under the guise of overguarding the
  . judiciary.
                                                                       E
   xxx                      xxx                       xxx
   183. One should not lose sight of the important fact that
   appointment to the judicial office cannot be equated with
   the appointment to the executive or other services. In a
   recent judgment in All India Judges' Association v. Union of F
   India (1993) 4 SCC 288 ... rendered by a three-Judge Bench
   presided over by M.N. Venkatachaliah, C.J. and consisting
   of A.M. Ahmadi and P.B. Sawant, JJ., the following
   observations are made: (SCC pp. 295 e-h, 296 a and c-d,.
   297 b, paras 7 and 9)                                               G
   "The judicial service is not service in the sense of
   'employment'. Thejudges are not employees. As members
   of the judiciary, they exercise the sovereign judicial power
   of the State. They are holders of public offices in the same
   way as the members of the Council of Ministers and the              H
294          SUPREME COURT REPORT:                        [2015] 13 S.C.R.


A            members of the legislature. When it is said that in a
             democracy such as ours. the executive. the legislature and
             the judiciarv constitute the three pillars of the State. what
             is intended to be conveyed is that the three essential
             functions of the State are entrusted to the three organs of
 B           the State and each one of them in turn represents the
             authority of the State. However. those who exercise the
             State power are the ministers. the legislators and the
             judges. and not the members of the their staff who
             implement or assist in implementing their decisions. The
c            Council of Ministers or the political executive is different
             from the secretarial staff or the administrative executive
             which carries out the decisions of the political executive.
             Similarly, the legislators are different from the legislative
             staff..So also the judges from the judicial staff. The parity
 D
             is between the political executive, the leciislators and the
             judges and hot between the jutlges and the adminiStraiive
             executive. In some democracies like the USA, members
           . of some State judiciaries are elected as much as the
             members of the legislature and th~ heads of the State. The
 E
              judges, at whatever level they may be, represent the State
             and its authority unlike the administrative executive or the
              members of other services. The members of the other
              services, therefore, cannot be placed on a par with the
 F            members of the judiciary, either constitutionally or
             functionally."
               Whereupon, this Court recorded its conclusions. The
      relevant conclusions are extracted hereunder:
              "(1) The 'consultation' with the CJI by the President is
 G            relatable to the judiciary and not to any other service.
              (2) In the process of various constitutional appointments,
              'consultation' is required only to the judicial office in contrast
              to the other high-ranking constitutional offices. The prior
              'consultation' envisaged in the first proviso to Article 124(2)
 H            and Article 217(1l in respect of judicial offices is a
  SUPREME COURT ADVOCATES-ON-RECORD                                 295
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   reservation or limitation on the power of the President to       A
   appoint the Judges to the superior courts.
           xxx                     xxx                     xxx
   (4) The context in which the expression "shall always be
   consulted" used in the first proviso of Article 124(2) and
   the expression '.'shall be appointed ... after consultation"     B
   deployed in Article 217(1) denote the mandatory character
   of 'consultation'. which has to be and is of c;i binding
   character.
   (5) Artieles 124 and 217 do not speak in specific terms
   requiring the President to consult the executive as such,        C
   but the executive comes into play in the process of
   appointment of Judges to the higher echelons of judicial
   service by the operation of Articles 74 and 163 of the
   Constitution. In other words in the case of appointment of
   Judges. the Presiden't is not obliged to consult the executive   D·
   as there is no specific provision for such cohsultafion.
   (6) The President is constitutionally obliged to consult the
   CJI alone in the case of appointment of a Judge to the
   Supreme Court as per the mandatory proviso to Article            E
   124(2) and in the case of appointment of a Judge to the
   High Court. the President is obliged to consult the CJI and
   the Governor of the State and in addition the Chief Justice
   of the High Court concerned. in ·case the appointment
   relates to a Judge other than the Chief Justice of that High     F
   Court. Therefore to place the opinion of the CJI on a par
   with the other constitutional functionaries is not in
   consonance with the spirit of the Constitution but against
   the very nature of the subject-matter concerning the
   judiciary and in opposition to the context in which              G
   'consultation' is required. After the observation of Bhagwati
   J. in Gupta case that the 'consultation' must be full and
   effective the.re is no conceivable reason to hold that such
   'consulta·tion' need not be given primary consideration.
                                                                    H
296   SUPREME COURT REPORTS                      [2015] 13 S.C.R.

A             xxx                       xxx                      xxx
      196. In the background of the above factual and legal
      position, the meaning of the word 'consultation' cannot be
      confined to its ordinary lexical definition. Its contents greatly
      vary according to the circumstances and context in which
 B    the word is used as in our Constitution.
              )()()(                    )()()(                   )()()(

      207. No one can deny that the State in the present day has
      become the major litigant and the superior courts
      particularly the Supreme Court, have become centres for
c     turbulent controversies, some of which with a flavour of
      political repercussions and the Courts have to face tempest
      and storm because their vitality is a national imperative. In
      such circumstances, therefore, can the Government,
      namely, the major litigant be justified in enjoying absolute
D
      authority in nominating and appointing its arbitrators. The
      answer would be in the negative. If such a process is
      allowed to continue, the independence of judiciary in the
      long run will sink without any trace. By going through various
      Law Commission Reports (particularly Fourteenth,
 E
      Eightieth and One Hundred and Twenty-first). Reports of
      the Seminars and articles of eminent jurists etc., we
      understand that a radical change in the method of
      appointment of Judges to the superior judiciary by curbing
 F    the executive's power has been accentuated but the
      desired result has not been achieved even though by now
      nearly 46 years since the attainment of independence and
      more than 42 years since the advent of the formation of
      our constitutional system have elapsed. However, it is a
 G    proud privilege that the celebrated birth of our judicial
      system, its independence, mode of dispensation of justice
      by Judges of eminence holding nationalistic views stronger
      than other Judges in any other nation"s, and the resultant
      triumph of the Indian judiciary are highly commendable.
 H    But it does not mean that the present system should
    SUPREME COURT ADVOCATES-ON-RECORD                                 297
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       continue for ever. and by allowing the executive to enjoy A
       the absolute primacy in the matter of appointment of
       Judges as its 'royal privilege'.
       208. The polemics of the learned Attorney-General and Mr
       Parasaran for sustaining the view expressed in Gupta case
       1981 Supp SCC 87 ... though so distinguished for the B
       strength of their ratiocination, is found to be not acceptable
       and falls through for all the reasons aforementioned -
       because of the inherent weakness of the doctrine which
       they have attempted to defend.".
      Insofar as the minority judgment authored by A.M.
                                                                      c
Ahmadi, J., (as he then was) is concerned, it is only relevant to
highlight the first conclusion recorded in paragraph 313, which
is reproduced hereunder:
       "313. We conclude:                                             D
       (1) The concept of judicial independence is deeply ingrained
       in our constitutional scheme and Article 50 illuminates it.
       The degree of independence is near total after a person is
       appointed and inducted in the judicial family...... "
    24. Insofar as the instant aspect of the matter is                E
concerned,· 1earned counsel invited our attention to the
preamble of the NJAC Act, which is reproduced below:
       "An Act to regulate the procedure to be followed by the
       National Judicial Appointments Commission for                  F
       recommending persons for appointment as the Chief
       Justice of India and other Judges of the Supreme Court
       and Chief Justices and other Judges of High Courts and
       for their transfers and for matters connected therewith or
       incidental thereto."
                                                                      G
       The statement of objects and reasons. is also being
       extracted hereunder:
       "Statement of Objects and Reasons
       xxx             xxx .          xxx
       2. The Supreme Court in the matter of the Supreme Court        H
298   SUPREME COURT REPORTS                   [2015) 13 S.C.R.


A     Advocates-on-Record Association Vs. Union of India in the
      year 1993, and in its Advisory Opinion in the year 1998 iri
      the Third Judges case, had interpreted clause (2) of article
      124 and clause (1) of article 217 of the Constitution with
      respect to the meaning of "consultation" as "concurrence".
B     Consequently, a Memorandum of Procedure for
      appointment of Judges to the Supreme Court and High
      Courts was formulated, and is being followed for
      appointment.
      3. After review of the relevant constitutional provisions. the
 c    pronouncements of the Supreme Court and consultations
      with eminent Jurists, it is felt that a broad based National
      Judicial Appointments Comm·1ssion should be established
      for making recommendations for appointment of Judges
      of the Supreme Court and High Courts. The said
 D
      Commission would provide a meaningful role to the ·
       judiciarv the executive and eminent persons to present
      their view points and make the participants accountable,
      while also introducing transparency in the selection
      process.
 E
      4. The Constitution (One Hundred and Twenty-first
      Amendment) Bill, 2014 is an enabling constitutional
      amendment for amending relevant provisions of the
       Constitution and for setting up a National Judicial
 F    Appointments Commission. The proposed Bill seeks to
       insert new articles 124A, 1248 and 124C after article 124
      of the Constitution. The said Bill also provides for the
       composition and the functions of the proposed National
       Judicial Appointments Commission. Further, it provides that
 G     Parliament may, by law, regulate the procedure for
       appointment of Judges and empower the National Judicial
       Appointments Commission to lay down procedure by
       regulation for the discharge of its functions, manner of
       selection of persons for appointment and such other
 H     matters as may be considered necessary.
    SUPREME COURT ADVOCATES-ON-RECORD                             299
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      5. The proposed Bill seeks to broad base the method of      A
      appointment of Judges in the Supreme Court and High
      Courts. enables participation of judiciary. executive and
      eminent persons and ensures greater transparency,
      accountability and objectivity in the appointment of the
      Judges in the Supreme Court and High Courts.                B
      6. The Bill seeks to achieve the above objectives.
      New Delhi;                         Ravi Shankar Prasad
      The 8th August, 2014."
      Based on the non-disclosure of reasons, why the existing C
procedure was perceived as unsuitable, it was contended, that
the only object sought to be achieved was, to dilute the primacy,
earlier vested with the Chief Justice of India (based on a
decision of a collegium of Judges), provided for under Articles
124 and 217, as originally enacted. This had been done away, D
it was pointed out, by substituting the Chief Justice of India,
with the NJAC.
     · 25. The primary submission advanced at the hands of
Mr. Fali S. Nariman, Senior Advocate, was with reference to
the violation of the "basic structure", not only through the      E
Constitution (99th Amendment) Act, but also, by enacting the
NJAC Act. It was pointed out, that since the commencement
of the Constitution, whenever changes were recommended in
respect of the appointment of Judges, the issue which
remained the focus of attention was, the primacy of the Chief     F
Justice of India. Primacy, it was contended, had been
recognized as the decisive voice of the judiciary, based on a
collective decision of a collegium of Judges, representing its
collegiate wisdom. It was submitted, that the Chief Justice of    G
India, as an individual, as well as, Chief Justices of High
Courts, as individuals, could not be considered as persona
designate. It was pointed out, that the judgment rendered in
the Second Judges case, had not become irreievant. This
Court, in the above judgment, provided for the preservation of    H
300           SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A the "independence of the judiciary". The aforesaid judgment,
  as also, the later judgment in the Third Judges case, re-
  established and reaffirmed, that the Chief Justice of India,
  represented through a body of Judges, had primacy.
  According to learned counsel, the individual Chief Justice of
B India, could not and did not, represent the collective opinion of
  the Judges. It was asserted, that the Constitution (99th
  Amendment) Act, and the NJACAct, had done away with, the
  responsibility vested with the Chief Justice of India,
  represented through a collegium of Judges (under Articles 124
C and 217 -as originally enacted). Accordingly, it was submitted,
  that till the system adopted for selection and appointment of
  Judges, established and affirmed, the unimpeachable primacy
  of the judiciary, "independence of the judiciary" could not be
  deemed to have been preserved.
0
         26. Insofar as the issue in hand is concerned, it was the
   pointed contention of the learned counsel, that the decision
   rendered by this Court in Sardari Lal v. Union of lndia 37 , came
   to be overruled in the Samsher Singh case 11 • Referring to the
 E judgment in the Samsher Singh case 11 , he invited this Court's
   attention to the following observations recorded therein:
              "147. In J.P. Mitterv. Chief Justice, Calcutta AIR 1965 SC
              961 this Court had to consider the decision of the
              Government of India on the age of a Judge of the Calcutta
 F            High Court and, in that coritext, had to ascertain the true
              scope and effect of Article 217(3) which clothes the
              President with exclusive jurisdiction to determine the age
              of a Judge finally. In that case the Ministry of Home Affairs
              went through the exercise prescribed in Article 217(3). "The
 G
              then Home Minister wrote to the Chief Minister, West
              Bengal, that he had consulted the Chief Justice of India,
              and he agreed with the advice given to him by the Chief
              Justice, and so he had decided that the date of birth of the
 H    37
           AIR 1971SC1547
  SUPREME COURT ADVOCATES-ON-RECORD                                   301
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   appellant was .... lt is this decision which was, in due course    A
   communicated to the appellant". When the said decision
   was attacked as one reached by the Home Minister only
   and not by the President personally, the Court observed: ·
   "The alternative stand which the_ appellant took was that
   the Executive was not entitled to determine his age, and it        B
   must be remembered that this stand was taken before
   Article 217(3) was inserted in the Constitution; the appellant
   was undoubtedly justified in contending that the Executive
   was not competent to determine the question about his
   age because that is a matter which would have to be tried          C
   normally, in judicial proceedings instituted before High
   Courts of competent jurisdiction. There is considerable
   force in the pleawhich the appellant took at the initial stages
   of this controversy that if the Executive is allowed to            D
   determi_ne the age of a sitting Judge of a High Court. that
   would seriously affect the independence of the Judiciary
   itself."
   Based on this reasoning. the Court quashed the order the
   ratio of the case being that the President himself should          E
   decide the age of the Judge. uninfluenced by the Executive.
   i.e. by the Minister in charge of the portfolio dealing with
   justice.
    148. This decision was reiterated in Union of India v. Jyoti
   Prakash Mitter (1971) 1 SCC 396. Although an argument              F
   was made that the President was· guided in that case by
   the Minister of Home Affairs and by the Prime Minister. it
   was repelled by the Court which on the facts. fou'nd the
   decision to be that of the President himself and not of the
    Prime Minister or the Home Minister.                              G.
    149~ In the light of the scheme of the Constitution we have
    already referred to, it ls doubtful whether such an
    interpretation as to the personal ~atisfaction of the President
    is correct. We are of the view that the President means,
    for all practical purposes, the Minister or the Council of        H
302        SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A          Ministers as the case may be, and his opinion, satisfaction
           or decision is constitutionally secured when his Ministers
           arrive at such opinion satisfaction or decision. The
           independence of the Judiciarv which is a cardinal principle
           of the Constitution and has been relied on to justify the
 B         deviation, is guarded by the relevant article-making
           consultation with the Chief Justice of India obligatorv 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
c          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
 D
           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."

 E        27. It was pointed out, that the decision in the Samsher
   Singh case 11 , came to be rendered well before the decision in
   the First Judges case, wherein this Court felt, that Judges could
   be fearless only if, institutional immunity was assured, and
   institutional autonomy was guaranteed. The view expressed
 F in the Samsher Singh case 11 in 1974 was, that the final authority
   in the matter of appointment of Judges to the higher judiciary,
   rested with the Chief Justice of India. It was pointed out, that
   the above position had held the field, ever since. It was
   submitted, that "independence of the judiciary" has always
 G meant and included independence in the matter of appointment
   of Judges to the higher judiciary.
          28. Mr. Arvind P. Datar, learned Senior Advocate
   contended, that the NJAC had been created by an amendment
   to the Constitution. It therefore was a creature of the
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                 303
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Constitution. Power had been vested with the NJAC to make A
recommendations of persons for appointment as Judges to
the higher judiciary, including the power to transfer Chief
Justices and Judges of High Courts, from one High Court to
another. The above constitutional authority, it was submitted,
must be regulated by a constitutional scheme, which must flow B
from the provisions of the Constitution itself. Therefore, it was
asserted, thatthe manneroffunctioning of the NJAC must be
contained in the Constitution itself. It was submitted, that the
method of functioning of the NJAC, could not be left to the
Parliament, to be regulated by ordinary law. In order to support C
his aforestated contention, reliance was placed on entries 77
and 78, contained in the Union List of the Seventh Schedule.
It was submitted, that the power to frame legislation, with
reference to entries 77 and 78 was not absolute, inasmuch
as, Article 245 authorized the Parliament, to legislate on D
subjects falling within its realm, subject to the substantive
provisions contained in the Constitution. For the above reason,
it was asserted, that the activities of the NJAC could not be
made subject to, or subservient to, the power vested in the E
Parliament, under entries 77 and 78.
       29. It was contended by Mr. Ram Jethmalani, learned
Senior Advocate, that there was sufficient circumstantial
evidence to demonstrate, that the. present political
establishment felt, that the judiciary was an obstacle for the F
implementation of its policies. It was contended, that the entire
effort, was to subdue the judiciary, by inducting into the selection
process, those who could be politically influenced. In order to
project, the concerted effort of the political dispensation, in
subverting the ''independence of the judiciary", learned counsel, G
in the first instance, pointed out, that the first Bill to constitute a
National Judicial Commission [the Constitution (67th
Amendment) Bill, 1990] was introduced in the Lok Sabha on
 18.5.1990. Thestatementofits"Objectsand Reasons", which
was relied upon, is extracted below:                                    H
304       SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A         ."The Government of India have in the recent past
           announced their intention to set up a high level judicial
           commission, to be called the National Judicial Commission
           for the appointment of Judges of the Supreme Court and
           of the High Courts and the transfer of Judges of the High
 B         Courts so as to obviate the criticisms of arbitrariness on
           the part of the Executive in such appointments and transfers
           and also to make such appointments without any delay.
           The Law Commission of India in their One Hundred and
          Twenty-first Report also emphasised the need for a change
 c        in the system.
          2. The National Judicial Commission to make
          recommendations with respect to the appointment of
          Judges of the Supreme Court will consist of the Chief
          Justice of India and two other Judges of the Supreme Court
 D
          next in seniority to the Chief Justice of India. The
          Commission to make recommendations with respect to
          the appointment of the Judges of the High Courts will consist
          of the Chief Justice of India, one senior-most Judge of the
          Supreme Court, the Chief Minister of the State concerned,
 E
          Chief Justice of the concerned High Court and one senior-
          most Judge of that High Court.
          3. The Bill seeks to achieve the above object.
           NEW DELHI;
 F         The 11 '" May, 1990;"
         The proposed National Judicial Commission in the above
   Bill, was to be made a component of Part XlllA of the
   Constitution, by including therein Article 307 A. The Chief
   Justice of India, and the next two senior most Judges of the
 G Supreme Court, were proposed to comprise of the
   contemplated ComrT)ission, for making appointments of
   Judges to the Supreme Court, Chief Justices and Judges to
   High Courts, and for transfer of High Court Judges from one
   High Court to another. The above Commission, omitted any
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                    305
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]"

executive and legislative participation. The proposed                    A
composition of the Commission, for appointing High Court
Judges, included the Chief Justice of India, the Chief Minister
or the Governor of the concerned State, the senior most Judge
of the Supreme Court, the Chief Justice of the concerned High
Court, and the senior most Judge of that Court. The above Bill           B
also provided for, an independent and separate secretarial
staffforthe contemplated Commissi~n. ltwas submitted, that
the above amendment to the Constitution, was on account of
the disillusionment and incredulity with the legal position,
expounded by this Court in the First Judges case. It was                 C
submitted, that the necessity to give effect to the proposed
Constitution (67th Amendment) Bill, 1990, stood obviated when
this Court rendered its judgment in the Second Judges case.
All this, according to learned counsel for the petitioners, has          D
been forgotten and ignored.
         30. Historically, the next stage, was when the Constitution
(98thAmendment) Bill, 2003 was placed before the Parliament
for its consideration. In the above Bill, the executive
participation in the process of sele9tion and appointment of             E
Judges to the higher judiciary, was introduced by making the
Union Minister of Law and Justice, an ex officio Member of
the Commission.    Two       eminent citizens (either eminent jurists,
or eminent lawyers, or legal academicians of high repute)
would also be Members of the Commission. One of them was                 F
to be appointed by the President in consultation with the Chief
Justice of India, and the other, in consultation with thePrime
Minister. Yet another effort was made (by the previous U.P.A.
Government), in the same direction, through the Constitution
(120th Amendment) Bill, 2013, on similar lines as the 2003               G
Bill. It was sought to be pointed out, that there was a consensus
amongst all the parties, that the aforesaid Bill should be
approved. And that, learned counsel personally, as a Member
of the Rajya Sabha, had strongly contested the above move.               H
306        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A Learned counsel invited this Court's attention to the objections
   raised by him, during the course of the debate before the Rajya
   Sabha. He emphasized, that he had submitted to the
   Parliament, that the Constitution Amendment Bill, needed to
   be referred to the Select Committee of the Parliament, as the
B same in his opinion was unconstitutional. An extract of the
   debate was also brought to our notice (by substituting the
 . vernacular part thereof, with its English translation), it is being
   reproduced hereunder: .
           "My suggestion is: Let the Judicial Appointments
c          Commission Bill go to the Standing Committee. The rest
           of the business we should pass today. Thank you.
           Shri Ram Jethmalali: Madam, thank you; better late than
           never.
           Sir, I wish to make two preliminary suggestions. lfthere is
 D
           an assurance that the Constitution (Amendment) Bill as
           well as the subsidiary Bill will both be referred to a Select
           Committee of Parliament, I do not propose to address this
           House at all. But, I do not consider it suitable or proper
 E         that only the second Bill should be referred to a Select
           Committee. Both should be sent. And, I will give my
           reasons.
           Sir, the second suggestion that I have to make is this. ~
           main contention, which I am going to make. is that the
 F         Constitution (Amendment) Bill is wholly unconstitutional
           and, if passed, it will undoubtedly be set aside by the
           Supreme Court. because it interferes with the basic feature
           of the Constitution. Such amendments of the Constitution
           are outside the jurisdiction of this House. The amendment
 G         process prescribed by the Constitution requires 2/3"
           majority and so on and so forth. That applies only to those
           amendments of the Constitution which do not touch what
           are called the basic features of the Constitution as
           understood in the Kesavananda Bharati case. This
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                    307
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   Constitutional amendment. certainly. interferes with a basic        A
   feature of the Indian Constitution and it will not be sustained
   ever. But. if it is said that even if you pass it. it will not be
   brought into force until a Reference is made to the Supreme
   Court and the Supreme Court answers the question of the
   validity of this Constitution amendment in the affirmative.         B
   If that is done I. again. need not speak. But, Sir, since I
   don't expect both these reasonable suggestrons to be
   accepted, I intend to speak and speak my mind.
           xxx                       xxx                      xxx
    Kapil is my great friend and is one of the Ministers in the        C
    Government whose work as the Law Minister I keep
    supervising and I am happy the manner in which he
    conducts his Ministry. But. Sir. I must declare today that
    my conscience understanding and my duty towards the                D
    people of this country. which I regard as my paramount
    obligation. do not permit me to submit to this kind of
    legislation. Both the Bills. according to me are evil. The
    evil. first of all. consists in the misleading Statement of
    Objects-and-Reasons. You ought to have said with                   E
    complete honesty th'1t what you are trying to demolish is
    the Collegium System. which seems to be the object and
    which is apparent to anyone. Some of the persons who
    have spoken have spoken on the assumption that that is
    the purpose of this particular piece of legislation.               F
    Sir, the first point that I propose to make is that the 1993
    judgment of Nine Judges is a judgment based upon the
    discovery of the basic feature of the Constitution, and upon
  . devising a system to sustain that basic feature, Madam, I
    have myself appeared in that litigation and I claim that I         G
    had a tremendous contribution to make to the success of
    that judgment. In a sense, I claim to be the founder of the
    Collegium System. But that does not mean that I am an
    unmixed admirer of the Collegium System. The Collegium
                                                                       H
308   SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     System has, doubtless, some faults. But the Collegium
      System came into existence on the basis of one main
      argument. That one main argument that we advance, and
      advance with great vigour and force, is that there is one
      article of the Constitution, article 50 of the Constitution,
 B    which is the shortest article in the Constitution, consisting
      of only one sentence. That article says that the Government
      shall strive to keep the Judiciary separate from the
      Executive.
      Sir, we argued before the Supreme Court that this article
 c    does not mean that Judges and Ministers should not socially
      meet. This does not mean that they should live in separate
      towns, or that they should not live even in adjoining
      bungalows. The purpose of this article is to ensure that in
      the appointment of Judges the Executive has no role to
 D
      play. except the advisory role. In other words, the doctrine
      of primacy of the Executive in the appointment process
      was irksome to us because the whole nation of India has
      been the victim of the Judges appointed in the earlier
 E    system. I have been a refugee from my own country during
      the Emergency. Why was it? It was because four Supreme
      Court Judges - I am not talking of the fifth who earned the
      New York Times praise that the Indian nation will have to
      build a monument to his memory; I am talking of the other
 F    four who-disgraced the Judiciary, disgraced the Supreme
      Court and were parties to the destruction of Indian
      democracy and the demolition and the debasement of the
      whole Constitution of India. Sir, of which system were they
      the product? They were the product of that system which,
 G     in 1981, was ultimately supported by the Gupta Judgment
       but, after some time, there were people, intellectuals, who
       spoke up that this system would not work; the system
       requires change. Sir, the Indian democracy has been saved
       not by intellectuals; Indian democracy at its most crucial
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                  309
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   hour has been saved by ttie poor illiterates of this country.     A
   In times of crises, it is only the brave hearted who matter.
   On those which one had pride remained tongue tied (Two
   sentences translated);
   That is the tragedy of our country. Sir, the intellectuals of
   this country have continuously failed, and I regret to say        B
   that they are fail.ing even today. Collegium may be the
   creation of the Judiciary. it is the creation of judicial
   interpretation. again. of the Constitution. but whatever be
   the faults of the Collegium. the Collegium today represents
   some system which is consistent with the basic features           c
   of the Constitution; namely. the supremacy of the'Judiciary
   and its freedom from any influence of the Executive in the
   appointment process.
      .     ·XXX                    XXX                     XXX
    Sir, 1·am speaking for those who are not irrevocably             D
    committed to voting for this amendment. There are some
    people who must have kept their minds still open. I am
    appealing to those minds today only. Those who are
    irrevocably committed are committed to the destruction of        E
    Indian democracy.
   ·Sir, the k-ey passage in the judgment of the Supreme Court
    of 1993 is the passage which I wish to share with the House.
    The question of primacy to the opinion of the Chief Justice
    oflndia in the matters of appointment and transfer and their     F
    justifiability should be considered in the context of the
    independence of the Judiciary as a part of the basic
    structure of the Constitution to secure the rule of law
    essential for preservation of the democratic system. The
    broad scheme of separation of powers adopted in the              G
    Constituti~n together with the Directive Principles of
    separation of the Judiciary from the Executive, even at the
    lowest strata, provides some insight to the true meaning
    of the relevant provisions of the Constitution relating to the
                                                                     H



                                                                  --·
310   SUPREME COURT REPORTS                      [2015] 13 S.C.R.

A     composition of the Judiciary. Th~ construction of these
      provisions must accord with these fundamental concepts
      in the Constitutional sc: 1eme to preserve the vitality and
      promote the growth of the essential of retaining the
      Constitution as a vibrant organism".
 B    Sir. the Constitution cannot survive. human freedom cannot
      survive. citizens' human rights cannot survive, no
      development can take place unless. of course, the judges
      are independent first of the Executive power because don't
      forget that every citizen has a grievance against the corrupt
 c     members of the Executive, or, errant bureaucracy public
       officers misusing power, indulging in corruption. making
       wrong and illegal orders. The citizen goes to the court,
       knocks the door of the court and says, "Please give me a
       mandamus against this corrupt official, against this corrupt
 D
       Minister".And, Sir, the judges are supposed to decide upon
       the claims of the poorest who go to the Supreme Court...
       ... (Interruptions) ......and to the judges. It may be, and I am
       conscious ...... (Interruptions) ... Sir, this is not a laughing
       matter. Please listen, and then decide for yourself....
 E
               xxx                      xxx                      xxx.
       Sir, first of all, let me say this now that the whole judgement
       of nine Judges is based upon this principle that in the
       appointment process, the Executive can never have
 F     primacy. This is principle number one. It has now become
       the basic feature of India's Constitution. My grievance today
       against this Constitution (Amendment) Bill is that you are
        slowly, slowly now creating a new method by which
        ultimately you will revert to the system which existed prior
 G      to 1993. In other words, the same system would produce
        those four Judges who destroyed the Indian democracy,
        human rights and freedom. Sir, kindly see, why. The
      · Constitution Amendment looks very innocent. All that it says
        is that we shall have a new article 124(a) in the Constitution
 H      and article 124(a) merely says that there shall be a Judicial
  SUPREME COURT ADVOCATES-ON-RECORD                                 311
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   Appointments Commission. It lays down that the Judicial          A
   Appointments Commission will have these functions. It
   leaves at that But, kindly see that after the first sentence,
   every thing is left to a Parliamentary will. After saying that
   there will _be a Judicial Appointments Commission, every
   thing will be left, according to the second part of 124(a), to   B
   a parliamentary legislation which is capable of being
   removed if the ruling party has one Member majority in both
   Houses of Parliament. Not only that, I understand that
   Parliament is not likely to do it, but it can do it and by a
   majority of one in both Houses, you can demolish the whole       C
   thing and substitute it with a Judicial Commission which
   will consist of_only the Law Minister.
           xxx                     xxx                     xxx
   So Sir my first objection is that this Bill is a Bill which is D
   intended to deal with the basic structure of the Constitution
   and. therefore. this Bill is void. {Time-bell) Second. if a
   Constitutional Amendment is not good enough for this
   purpose surely. an ordinary piece of legislation cannot do
   it. which ordinary piece of legislation can be removed only E
   by a majority of one in each House. It can be removed like
   the 30th July Food Security Ordinance and you can pass
   an Ordinance on that day and say that the whole Act is
   repealed and now the system will be that Judges will be
   appointed for the next six months by only the Law Minister F
   of India. If there was Mr. Kapil Sibal, ... (Interruptions) ... If
   Mr. Kapil Sibal becomes the Law Minister for ever, Sir, I will
   allow this Bill to go. (Time-bell) But I am not prepared to
   accept it for the future Law Ministers.' ... (Interruptions) ...
   Sir, let me take two more. minutes and tell all those G ·
   Members that this Bill is not intended to ensure the judicial
   character. This Bill has nothing to do with the improvement
   of the judicial character. So long as the Judges are also
    h~man, there will be some Judges who will go wrong, who
    may go wrong. But a great Bar can control them ..... "            H
312        SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A                  xxx                      xxx                       xxx
           Sir, I hope, people will avoid this kind of a tragedy in the life
           of this country. You are today digging the grave of the
           Constitution of India and the freedom of this country.
           ... (Interruptions) ... That's all I wished to say.
 B         ... (Interruptions) ... "
         It was submitted, that in the Raj ya Sabha 131 votes were
   cast in affirmation of the proposed Bill, as against the solitary
   vote of the learned counsel, against the same on 5.9.2013. It
 C was however pointed out, that the effort did not bear fruit, on
   account of the intervening declaration for elections to the
   Parliament.
         31. Learned counsel thereafter, invited our attention to
   the statement of "Objects and Reasons" for the promulgation
 D of the Constitution (121 st Amendment) Bill, 2014. The Bill which
   eventually gave rise to the impugned Constftution (99th
   Amendment) Act, was taken up for consideration by the Lok
   Sabha on 13.8.2014, and was passed without much debate.
   It was submitted, that on the following day i.e., 14.8.2014, the
 E same was placed before the Rajya Sabha, and was again
   passed, without much dis£ussion. It was pointed out, that an
   issue, as serious as the one in hand, whi~h could have serious
   repercussions on the "independence of the judiciary", was
   sought to be rushed through.
 F
          32. It was submitted, that the "Objects and Reasons" of
   the Constitution (99th Amendment)Act were painfully lacking,
   in the expression of details, which had necessitated the
   proposed/impugned constitutional amendment. It was
 G submitted, that it was imperative to have brought to the notice
   of the Parliament, that the Supreme Court had declared, that
   the "rule of law", the "separation of powers" and the
    "independence of the judiciary", were "salient and basic
    features" of the Constitution. And that, the same could not be
 H abrogated, through a constitutional amendment.And further
          SUPREME COURT ADVOCATES-ON-RECORD                                   313
        ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.]

     that, the Supreme Court had expressly provided for the primacy . A
     of the ChiefJustice of India, based on a decision of a collegium
     of Judges, with reference to the appointments and transfers of
     Judges of the higher judiciary.
               33. It was submitted by Mr. Ram Jethmalani, tliat the B
       impugned constitutional amendment, so as to introduce Article
     · 124A ought to be described as a fraud on the Constitution
       itself. It was pointed out, that the first effort of introducing Article
       124A was made by the previous Government, through the
       Constitution (120th Amendment) Bill, 2013. In the above Bill, c
      .Article 124Aalone (as againstArticles 124Ato 124C, presently.
       enacted) was introduced. ltwas submitted, that the Rajya
       Sabha passed the above Bill on 5.9.2013, when 131 Members
       of the Rajya Sabha supported the Bill (with only one Member
       opposing it). Learned counsel submitted, that he alone had D
       opposed the Bill. It was asserted, that the above fraud was
       sought to be perpetuated, through the passing of the
       Constitution (121stAmendment) Bill, 2014, by the Lok Sabha
       on 13.8.2014, and by the Rajya Sabha on 14.8.2014. It was
       pointed out, that Parliamentarians from different political E
       parties had joined. hands. It was submitted, that as a ·
       Parliamentarian, he was in a position to assert, that the merits
       and demerits of the impugned amendment to the Constitution,
       were not debated, wh.en theE3ill was passed, because of the
       universal bias entertained by the legislature, against the F
       judiciary. It wa$ submitted, that prejudice and intolerance had
       arisen, because of the fact that the judiciary often interfered
    · with, a11d Qften effaced legislative action(s), as also, executive
       decision(s ).       ·
                                                                         1
                                                                                G
             · 34. Learned senior counsel also asserted, that the
    · .Constitution (99th Amendment) Act, was wholly ultra vires, as
        it seriously infringed the "basic struct.ure/feature" of the
        Constitution i.e., the "independence of the judiciary". It was
        submitted, that the veracity of the above constitutional H



I
(
\
314        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A amendment, had to be examined in the light of Article 50.
  According to learned counsel, the politicization of the process
  of selection and appointment of Judges to the higher judiciary,
  would lead to a dilution of the "independence of the judiciary".
  It was submitted, that the inclusion of the Union Minister in
B charge of Law and Justice, as an ex officio Member of the
  NJAC, had the effect of politicization of the process of
  appointment of Judges to the higher judiciary. It was pointed
  out, that the inclusion of the Union Minister in charge of Law
  and Justice within the framework of the NJAC, meant the
C introduction of the Government of the day, into the selection
  process. It was asserted, that the Union Minister's inclusion,
  meant surrendering one-sixth of the power of appointment, to
  the Government. It was submitted, that in order to understand
  the true effect of the inclusion of the Union Minister, into the
0
  process of selection and appointment of Judges to the higher
  judiciary, one had to keep in mind the tremendous amount of
  patronage, which the Uriion Minister for Law and Justice
  carries, and as such, it would be within the inference of the
E Union Minister in charge of Law and Justice, to make the
  process fallible, by extending his power of patronage to support
  or oppose candidates, who may be suitable or unsuitable, to
   the Government of the day. Even though the Union Minister
  had been assigned only one vole, it was submitted, that he
F could paralyse the whole system, on the basis of the authority
   he exercised. To drive home his contention, learned counsel
   made a reference to the introduction of the book "Choosing
   Hammurabi~ Debates on Judicial Appointments", edited by
   Santosh Paul. In the introduction to the book, the thoughts of
G H.L. Mencken are expressed in the following words:
          "But when politicians talk thus or act thus without talking.
          it is precisely the time to watch them most carefully. Their
          usual plan is to invade the constitution stealthily, and then
          wait to see what happens. If nothing happens they go on
H
    SUPREME COURT ADVOCATES-ON-RECORD                                315
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      more boldly· if there is a protest they reply hotly that the   A
      constitution is worn out and absurd and that progress is
      impossible under the dead hand. This is the time to watch
      them especially. They are up to no good to anyone save
      themselves They are trying to whittle away the common
      rights of the rest of us. Their one and only object. now and   B
      always is to get more power in to their hands that it may
      be used freely for their advantage. and to the damage of
      everyone else. Beware of all politicians at all times. but
      beware of them most sharoly when they talk of reforming
      and improving the constitution."                               c
       35. Learned Senior Advocate also contended, that the
inclusion of two "eminent persons" in the six-Member NJAC,
as provided for, under Article 124A( 1) of the Constitution (99th
Amendment) Act, was also clearly unconstitutional. It was D
contended, that there necessarily had to be, an indication of
the positive qualifications required to be possessed by the
two "eminent persons", to be nominated to the NJAC.
Additionally, it was necessary to stipulate disqualifications.
Illustratively, it was pointed out, that an individual having a E
conflict.of interest, should be disqualified. And such confli~t
would be apparent, when the individual had a p'olitical role. A
politician has to serve his constituency, he has to nourish and
sustain his vote bank, and above all, he has to conform with
the agenda of his. political party. Likewise, a person with F
ongoing litigation, irrespective of the nature of such litigation,
would render himself ineligible for serving as an "eminent
person" within the framework of the NJAC, because of his
conflict of interest.
     36. With reference to the inclusion of two "eminent G
persons" in the NJAC, Mr. Arvind P. Datar, learned Senior
Advocate, invited our attention to Article 124A, whereunder,
the above two "eminent persons" are to be nominated by a
committee comprising of the Prime Minister, the Chief Justice H
316       SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A of India and the Leader of Opposition in the House of People,
  or, where there is no such Leader of Opposition, then, leader
  of the single largest opposition party in the House of the People. ·
  Learned counsel submitted, that neither Article 124A, nor any .
  other provision, and not even the provisions of the NJAC Act, ·
B indicate the qualifications, of the two "eminent persons", who
  have been included amongst the six-Mernber NJAC. It was . ·
  sought to be asserted, that in approximately 70 Statutes and
  Rules, the expression "eminent person" has been employed.
  Out of the 70 Statutes, in 67, the field in which such persons
C must be eminent, has been clearly expressed. Only in three
  statutes, the term "eminent person" was used without any further
  qualification. It was asserted, that the term "eminent person"
  had been left vague and undefined, in Article 124A. It was
  submitted, that the vagueness of the term "eminent person"
0
  was itself, good enough to justify the striking down of the
  provision. It was emphasized, that the determinative role
  assigned to the two "eminent persons", included amongst the
  six-Member NJAC, was so important, that the same could not
E be left to the imagination of the nominating committee, which
   comprised of just men" ... with all the failings, all the sentiments
   and all prejudices which we as common people have ... "
   (relying on the words of Dr. B.R. Ambedkar).
         37. Referring to the second proviso under Section 5(2),
 F as well as, Section 6(6) of the NJAC Act, it was submitted,
   that a recommendation for appointment of a Judge, could not
   be carried out, if the two "eminent persons" did n·ot accede to
   the same. In case they choose to disagree with the other
   Members of the NJAC, the proposed recommendation could
 G not be given effect to, even though the other four Members of
   the NJAC including all the three representativ~s of the Supreme
   Court approved of the same. It was pointed out. that the two
   "eminent persons", therefore would have a decisive say. It was
 H further submitted, that the impact of the determination of the
        SUPREME COURT ADVOCATES-ON-RECORD                              317
      ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  two "eminent persons", would be such, as would negate the            A
. primacy hitherto before vested in the Chief Justice of India. It
  was pointed out, that a positive recommendation by the Chief
  Justice of India, supported by two other senior Judges of the
  Supreme Court (next to the Chief Justice of India), could be
  frustrated by an opposition at the hands of the two "eminent         B
  persons". The above implied veto power, according to the
  learned counsel, could lead to structured bargaining, so as to
  persuade the other Members of the NJAC, to accede to the
  names of undesirable nominees Uust to avoid a stalemate of
  sorts). It was submitted, that such a composition had been           C
  adversely commented upon by this Court in Union of India v.
   R. Gandhi38 • In the judgment, the provision, which was subject
  matter of consideration, was Section 10-FX. Under the above
  provision, the Selection Committee for appointing the                D
  Chairperson and Members of the Appellate Tribunal, and the
   President and Members of the Tribunal was to be comprised
  of the Chief Justice of India (or his nominee), besides four
   Secretaries from different Ministries~of the Union Government.
  This Court recorded its conclusions with reference to the            E
   aforesaid provision in paragraph 120(viii), which is being
   extracted hereunder:
           "120(viii) Instead of a five-member Selection Committee
           with the Chief Justice of India (or his nominee) as
           Chairperson and two Secretaries from the Ministry of F
           Finance and Company Affairs and the Secretary in the
           Ministry of Labour and the Secretary in the Ministry of Law
           and Justice as members mentioned in Section 10-FX, the
           Selectio_n Committee should broadly be on the following
           lines:                                                      G.
           (a) Chief Justice of India or his nominee """ Chairperson
           (with a casting vote);
           (b) A Senior Judge of the Supreme Court or Chief Justice
           of High Court - Member;
 38
      (2010) 11 sec 1                                                  H
318         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A            (c) Secretary in the Ministry of Finance and Company Affairs
             -Member; and
             (d) Secretary in the Ministry of Law and Justice- Member."
         It was submitted, that the purpose sought to be achieved,
  was not exclusivity, but primacy. It is further submitted, that if
B primacy was considered to be important for selection of
  Members to be appointed to a tribunal, primacy assumed a
  far greater significance, when the issue under consideration
  was appointment and transfer of Judges of the higher judiciary.
C It was accordingly contended, that the manner in which the
  composition of the NJAC had been worked out in Article 124A,
  and the manner in which the NJAC is to function with reference
  to the provisions of the NJAC Act, left no room for any doubt,
  that the same was in clear violation of the law laid down by this
0 Court, and therefore, liable to be set aside.
            38. Learned counsel on the above facts, contested not
      only the constitutional validity of clauses (c) and (d) of Article
      124A(1 ), but also emphatica11y assailed the first proviso under
      Article 124A(1 )(d), which postulates, that one of the "eminent
 E    persons" should belong to the Scheduled Castes, Scheduled
      Tribes, Other Backward Classes, Minorities or Women. It was
      submitted, that these sort of populistic measures, ought not to
      be thought of, while examining a matter as important as the
      higher judiciary. It was submitted, that it was not
 F    understandable, what the choice of including a person from
      one of the aforesaid categories was aimed at. In the opinion
      of learned counsel, the above proviso was farcical, and
      therefore, totally unacceptable. While members of a particular
 G    community may be relevant for protecting the interest of their         I
      community, yet it could not be conceived, why such a measure
      should be adopted, for such an important constitutional
      responsibility. In the opinion of the learned counsel, the inclusion
      of such a Member in the NJAC, was bound to lead to
 H    compromises.
     SUPREME COURT ADVOCATES-ON-RECORD                                319
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

        39. It was also the contention of Mr.Arvind P. Datar, that    A
 Article 124C introduced by the Constitution (99th Amendment)
 Act, was wholly unnecessary. It was pointed out, that in the
 absence of Article 124C, the NJAC would have had the inherent
 power to regulate its own functioning. It was submitted, that
 Article.124C was a serious intrusion into the above inherent         B
 power. Now that, the Parliament had been authorized to
·regulate the procedure for appointments by framing laws, it
 would also result in the transfer of control over the appointment
 process (-of Judges to the higher judiciary), to the Parliament.
 It was submitted, that there could not be any legislative control,   C
 with reference to appointment of Judges to the higher judiciary.
 Such legislative control, according to learned counsel, would
 breach "independence of the judiciary". ltwas submitted, that
 the Parliament having exercised its authority in that behalf, by     D
 framing the NJACAct, and having provided therein, the ultimate
 control with the Parliament, must be deemed to have crossed
 the line, and transgressed into forbidden territory, exclusively
 reserved for the judiciary. Learned counsel. contended, that the
 duties and responsibilities vested in a constitutional authority,    E.
 could only be circumscribed by the Constitution, and not by
 the Parliament through legislation._ It was submitted, that the
 NJAC was a creature of the Constitution, as the NJAC flows
 out of Article 124A. Likewise, the Parliament, was also a
 creature of the Constitution. It was submitted, that one entity      F
 which was the creation of the Constitution, could not regulate
 the other, owing its existence to the Constitution.
       40. It was pointed out by Mr. Ram Jethmalani, learned
Senior Advocate, that the statement of "Objects and Reasons",
as were projected for the instant legislation, indicated inter G
alia, that the NJAC would provide "a meaningful role to the.
judiciary". It was submitted, that what was meant by the
aforesaid affirmation, was not comprehendible to him. It was
further highlighted, that it also asserted in the "Objects and H
320         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A Reasons'', that "the executive and the eminent persons to
  present their viewpoints and make the participants
  accountable", was likewise unintelligible to him. It was
  submitted, that a perusal of the Constitution (99th Amendment)
  Act (as also, the NJAC Act) would not reveal, how the Members
B of the NJAC were to be made responsible. It was further
  submitted, that the statement of "Objects and Reasons" also
  indicate, that the manner of appointment of Judges to the higher
  judiciary, would introduce transparency in the selection
  process. It was contended, that the enactments under
C reference, amounted to commission of a fraud by Parliament,
  on the people of the country. As it was not possible to
  understand, how and who was to be made accountable - the
  executive, -the "eminent persons", -the judiciary itself. It was
  accordingly sought to be asserted, that the Parliament seemed
0
  to be asserting one thing, while it was doing something else.
  Learned counsel also placed reliance on Shreya Singhal v.
  Union of lndia 39 , wherefrom the following observations were
  brought to our notice:
E            "50. Counsel for the Petitioners argued that the language
             used in Section 66A is so vague that neither would an
             accused person be put on notice as to what exactly is the
             offence which has been committed nor would the
             authorities administering the Section be clear as to on
F            which side of a clearly drawn line a particular
             communication will fall."
        Based on the above submissions, it was asserted, that
  the statement of "Objects and Reasons", could not have been
  more vague, ambiguous, and fanciful than the ones in the
G matter at hand.
            41. Mr. Anil B. Divan, Senior Advocate, while appearing
      for the petitioner in the petition filed by the Bar Association of
      India (Writ Petition (C) No.108 of 2015), first and foremost
H "2015 (4) SCALE 1
     SUPREME COURT ADVOCATES-ON-RECORD                                   321
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  pointed out, that the Bar Association of India represents th~          A
  High Court Bar Association, Kolkata (West Bengal), The
  Awadh Bar Association, Lucknow (Uttar Pradesh), the Madras
  Bar Association, Chennai (Tamil Nadu), the Supreme Court
  Bar Association, New Delhi, the Gujarat High Court Advocates'
  Association, Gandhinagar (Gujarat), the Advocates'                     B
  Association, Chennai (Tamil Nadu), theAndhra Pradesh High
  Court Advocates' Association, Hyderabad (Andhra Pradesh),
  the Delhi High Court Bar Association, New Delhi, the Bar
  Association Mumbai (Maharashtra), the Gauhati High Court
  Bar Association, Guwahati (Assam), the Punjab & Haryana                C
  High Cou·rt Bar Association, Chandigarh (Punjab & Haryana),
  the Bombay Incorporated La~ Society, Mumbai (Maharashtra),
  the Madhya Pradesh High Court Bar Association, Jabalpur
  (Madhya Pradesh), the Advocates' Association Bangalore                 D
  (Karnataka), the Central Excise, Customs (Gold) Control Bar
  Association, New Delhi, the Advocates' Association, Allahabad
  (Uttar Pradesh), t~e Karnataka Advocates' Federation,
  Bangalore (Karnataka), the Allahabad High Court Bar
  Association (Uttar Pradesh), the Goa High Court Bar                    E
  Association, Panaji (Goa), the Society of India Law of Firms,
  New Delhi, the Chhattisgarh High Court Bar Association,
  Bilaspur (Chhattisgarh), the Nagpur High Court Bar
  Association, Nagpur (Maharashtra), the Madurai Bench of
· Madras High Court Bar Association, Madurai (Tamil Nadu),               F
  the Jharkhand High Court Bar Association, R~nchi (Jharkhand),
  the Bar Association of National Capital Region, New Delhi,
  and the Gulbarga High Court Bar Association, Gulbarga
  (Karnataka). It was submitted, that all the aforementioned Bar
  Associations were unanimous in their challenge, to the                 G
  Constitution (99th Amendment) Act, and the NJAC Act. It was
  submitted, that the challenge to the former was based on the
  fact that it violated the "basic structure" of the Constitution, and
  the challenge to the latter, was based on its being ultra vires
   the provisions of the Constitution.                                   H
322         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           42. Learned counsel had adopted a stance, which was
      different from the <;me adopted by others. The submissions
      advanced by the learned senior counsel, were premised on
      the fact, that under the constitutional power of judicial review,
      the higher judiciary not only enforced fundamental rights, but
B     also restricted the legislature and the executive, within the
      confines of their jurisdiction(s). It was pointed out, that it was .
      the above power, which was the source of tension and friction
      between the judiciary on the one hand, and the two other pillars
      of governance i.e., the legislature and the executive, on the
C     other. This friction, it was pointed out, was caused on account
      of the fact, that while discharging its responsibility of judicial .
      review, executive backed actions of the legislature, were
      sometimes invalidated, resulting in the belief, that the judiciary
      was influencing and dominating the other two pillars of
0
      governance. Illustratively, it was pointed out, that in the
      beginning of independent governance of the country, judicial
      review led to the setting aside of legislations, pertaining to
      land reforms and zamindari abolition. This had led to the
 E    adoption of inserting legislations in the Ninth Schedule of the
      Constitution, so as to exclude them from the purview of judicial
      review.
        43. It was submitted, that the first manifestation of a
  confrontation between the judiciary and the other two wings of
F governance, were indicated in the observations recorded in
  State of Madras v. V.G. Row' 0 , wherein, as far back as in 1952,
  the Supreme Court observed, that its conclusions were
  recorded, not out of any desire to a tilt at the legislative authority
  in a crusader's spirit, but in discharge of the duty plainly laid
G upon the Courts, by the Constitution.
             44. It was submitted, that the legislations placed in the
      Ninth Schedule of the Constitution, from the original 13 items
      (relating to land reforms and zamindari abolition), multiplied
 H    "(1952) SCR 597
        SUPREME COURT ADVOCATES-ON-RECORD                       323
      ASSOCIATION v. U.0.1. {JAGDISH SINGH KHEHAR, J.]

at a brisk rate, and currently numbered about 284. And many A
of them, had hardly anything to do with land reforms. It was
contended, that the decision rendered by this Court in l.C.
Golak Nath v. State of Punjab 41 , was a judicial reaction to the
uninhibited insertions in the Ninth Schedule, leading to
completely eclipsing fundamental rights. It therefore came to B
be held in the I. C. Golak Nath case 41 , that Parliament by way
of constitutional amendment( s) could not take away or abrjdge
fundamental rights.
        45. To project his contention, pertaining to tension and c
 friction between the judiciary and the other two wings of
 governance, it was submitted, that from 1950 to 1973, there.
 was virtually no attempt by the political-executive, to undermine
 or influence or dominate over the judiciary. It was pointed out,
.that during the aforesaid period, when Jawaharlal Nehru (upto o
 27th May, 1964 ), Gulzari Lal Nanda (upto 9th June, 1964 ): Lal
 Bahadur Shastri (upto 11 1hJanuary, 1966), Gulzari Lal Nanda
 (upto 24th January, 1966) .and Indira Gandhi (upto 1972) were
 running the executive and political governance in India, in their
 capacity as Prime Minister, had not taken any steps to E
 dominate over the judiciary. Thereafter, two facts could not be
 digested by the political-executive leadership. The first, the
 abolition of the Privy Purses ~Yan executive fiat, which was
 invalidated by the. Supreme Court in Madhavrao Scindia
 Bahadur v. Union of lndia42 • And the second, the fundamental F
 rights case, namely, the Kesavananda Bharati case 10, wherein
 the Supreme Court by a majority of 7:6, had propounded the
 doctrine of "basic structure" of the Constitution, which limited
 the amending power of the Parliament, under Article 368. As
 a sequel to the above judgments, the executive attempted to G
 intimidate the judiciary, by the first supersession in the Supreme
 Court on 25.4.1973. Thereafter, internal emergency was
 41
      AIR 1967 SC 1643
 42
      (1971) 1 sec a5
                                                                 H
324        SUPREME COURT REPORTS                  [2015) 13 S.C.R.


A declared on 25.06.1975, which continued till 21.03.1977. ltwas
   submitted, that during the emergency, by way of constitutional
   amendment(s), the power of judicial review vested in the higher
  judiciary, was sought to be undermined. It was submitted, that
  the intrusion during the emergency came to be remedied when
B the Janata Party came to power on 22.03.1977, through the
  43rd and 44th Constitutional Amendments, which restored
  judieial review, to the original position provided for by the
  Constituent Assembly.
c       46. It was submitted, that in the recent past also, the
  exercise of the power of judicial review had been inconvenient
  for the political-executive, as it resulted in exposing a series
  of scams. In this behalf, reference was made to two judgments
  rendered by this Court, i.e., Centre for Public Interest Litigation
o v. Union of lndia43 , and Manohar Lal Sharma v. Principal
  Secretary«. It was submitted, that the executive and the
  legislature can never appreciate that the power of judieial
  review has been exercised by the higher judiciary, as a matter
  of public trust. As a sequel to the above two judgments, it was
E pointed out, that an amount of approximately Rupees two lakh
  crores (Rs. 20,00,00,00,00,000/-) was gained by the public
  exchequer, for just a few coal block allocations (for which
  reliance was placed on an article which had appeared in the
  Indian Express dated 10.3.2015). And an additional amount
F of Rupees one lakh ten thousand crores
  (Rs.11,00,00,00,00,000/-) was gained by the public exchequer
  from the spectrum auction (for which reliance was placed on
  an article in the Financial Express dated 25.03.2015). It was
  submitted, that the embarrassment faced by the political-
G executive, has over shadowed the monumental gains to the
  nation. It was contended, that the Constitution (99th
  Amendment)Act, and the NJACAct, were truthfully a political-

      " (2012) 3 sec 1
 H    "(2014) 2 sec 532
    SUPREME COURT ADVOCATES-ON-RECORD                             325
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

executive device, to rein in the power of judicial review, to avoid A
such discomfiture.
       47. It was also contended, that while adjudicating upon ·
the present controversy, it was imperative for this Court, to take
into consideration the existing socio:.political conditions, the
                                                                    8
ground realities pertaining to the awareness of the civil society,
and the relevant surrounding circumstances. These
components, accordfng to learned counsel, were described
as relevant considerations, for a meaningful judicial verdict in
the V.G. Row case40 • Referring to Shashikant Laxman Kale v. c
Union of lndia 45 , it was contended, that for determining the
purpose or the object of the legislation, it was permissible for
a Court to look into the circumstances which had.prevailed at
the time when the law was passed, and events which had
necessitated the passing of the legislation. Referring to the D
judgment rendered by this Court, in Re: the Special Courts
Bill, 197846 , learned counsel placed emphatic reliance on the
following:
        "106. The greatest trauma. of our times, for a developing
        country of urgent yet tantalising imperatives, is the E
        dismal, yet die-hard, poverty of the masses and the
        democratic, yet graft-riven, way of life of power-wielders.
        Together they blend to produce gross abuse geared to
        personal aggrandizement, suppression of exposure and
        a host of other horrendous, yet hidden, crimes by the F
        summit executives, pro tern, the para-political
        manipulators and the abetting bureaucrats. And the rule
        of law hangs limp or barks but never bites. An
        anonymous poet .sardonically projected the social G
        dimension .of this systemic deficiency:
                 The law locks up both man and woman
               Who.steals the goose from off the common,

                                                                   H
326         SUPREME COURT REPORTS                    [2015) 13 S.C.R.


A                           But lets the greater felon loose
                      Who steals the common from the goose.
             107. The impact of 'summit' crimes in the Third World
            setting is more terrible than the Watergate syndrome
             as perceptive social scientists have unmasked.
 B           Corruption and repression-cousins in such situations-
            hijack developmental processes.And, in the long run,
             lagging national progress means ebbing people's
             confidence in constitutional means to social justice. And
             so, to track down and give short shrift to these heavy-
c           weight criminaloids who often mislead the people by
             public moral weight-lifting and multipoint manifestoes
             is an urgent legislative mission partially undertaken by
             the Bill under discussion. To punish such super-offenders
             in top positions, sealing off legalistic escape routes and
 D
             dilatory strategies and bringing them to justice with high
             speed and early finality, is a desideratum voiced in vain
             by Commissions and Committees in the past and is a
             dimension of the dynamics of the Rule of Law. This Bill,
             hopefully but partially, breaks new ground contrary to
 E
             people's resigned cynicism that all high-powered
             investigations, reports and recommendations end in
             legislative and judicative futility, that all these valiant
             exercises are but sound and fury signifying nothing, that
 F            'business as usual' is the signature tune of public
             business, heretofore, here and hereafter. So this social
             justice measure has my broad assent in moral principle
              and in constitutional classification, subject to the serious
           . infirmities from which it suffers as the learned Chief
 G            Justice has tersely sketched. Whether this remedy will
              effectively cure the malady of criminal summitry is for
              the future to tell.
              108. All this serves as a backdrop. Let me unfold in fuller
      " (1990) 4 sec 366
 H    "(1979) 1 sec 380
  SUPREME COURT ADVOCATES-ON-RECORD                               327
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

    argumentation my thesis that the Bill. good so far as it      A
    goes. is bad so far as it does not go-saved though by a
    pragmatic exception I will presently explain. Where the
    proposed law excludes the pre-and post-emergency
  ··crime-doers in the higher brackets and picks out only
    'Emergency' offenders. its benign purpose perhaps             B
    becomes a crypto cover up of like criminals before and
    after.· An 'ephemeral' measure to meet a perennial
    menace is neither a logical step nor national fulfilment.
    The classification. if I may anticipate my conclusion. is
    on the brink of constitutional break-down at that point       C
    and becomes almost vulnerable to the attack of
    Article 14.
   xxx                    xxx                    xxx'
   114. The crucial test is 'All power is a trust'. its holders   D
   are 'accountable for its exercise'. for 'from the people.
   and for the people. all springs. and all must exist'. By
   this high and only standard the Bill must fail morally if it
   exempts non-Emergency criminals about whom prior
   Commission Reports, now asleep in official pigeon              E
   holes. bear witness and future Commission Reports
   (who knows?) may. in time. testify. In this larger
   perspective, Emergency is not a substantial differentia
   and the Bill nearly recognises this by ante-dating the
   operation to February 27, ·1975 when there was no              F
   'Emergency'. Why ante-date if the 'emergency' was the
   critical criterion?
   xxx                   xxx                 xxx
   117. Let us take a close look at the 'Emergency', the
   vices it bred and the nexus they have to speedier justice, G
   substantial enough to qualify for reasonable sub-
   classification. Information flowing from _the proceedings
   and reports of a bunch of high-powered judicial
   commissions shows that during that hushed spell, many
                                                                  H
328        SUPREME COURT REPORTS                  [2015) 13 S.C.R.


A          suffered shocking treatment. In the words of the
           Preamble, civil liberties were withdrawn to a great extent,
           important fundamental rights of the people were
           suspended, strict censorship on the press was placed
           andjudicial powers were curtailed to a large extent. .
 B          xxx                   xxx                    xxx
        128. Let us view the problem slightly differently. Even
        if liberty had not been curtailed, press not gagged or
        writ jurisdiction not cut down, criminal trials and appeals
        and revisions would have taken their own interminable
c       delays. It is the forensic delay that has to be axed and
        that has little to do with the vices of the Emergency. Such
         crimes were exposed by judicial commissions before,
         involving Chief Ministers and Cabinet Ministers at both
         levels and no criminal action followed except now and
D
        that of a select group. It was lack of will-not Emergency-
         that was the villain of the piece in non-prosecution of
         cases revealed by several Commissions like the
         Commission of Enquiry appointed by the Government
         of Orissa in 1967 (Mr. Justice Khanna), the Commission
E
         of Enquiry appointed by the Government of J&K in 1965
         (Mr. Justice Rajagopala Ayyangar), the Mudholkar
         Commission against 14 ex-United Front Ministers
         appointed by the Government of Bihar in 1968 and the
F        T.L. Venkatarama Aiyar Commission of Inquiry
         appointed by the Government of Bihar, 1970-to mention
         but some. We need hardly say that there is no law of
         limitation for criminal prosecutions. Somehow, a few
         manage to be above the law and the many remain below
G        the law. How? - I hesitate to state."
       Last of all, reliance was placed on the decision of this
  Court in Subramanian Swamy v. Director, Central Bureau of
  lnvestigation 47 , wherein this Court extensively referred to the

 H    "(2014) a sec ss2
        SUPREME COURT ADVOCATES-ON-RECORD                               329
      ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

    conditions regarding corruption which prevailed in the country. A
    For the above purpose, it took into consideration the view
    expressed by the N.N. Vohra Committee Report, bringing out
    the nexus between the criminal syndicates and mafia.
          48. Reliance was, then placed on the efforts made by
                                                                        8
    the executive on the death of the first Chief Justice of India
    (after the promulgation of the Constitution), when Patanjali
    Sastri, J., who was the senior most Judge, was sought to be
    overlooked. Relying on recorded texts in this behalf, by
    Granville Austin, George H. Gadbois Jr. and M.C. Chagia, it         c
    was submitted, that all the six Judges, at that time, had
    threatened to resign, if the senior most Judge was ~verlooked
    for appointment as Chief Justice of India.
          49. Referring to the first occasion, when the convention
    was broken, by appointing AN. Ray, J., as the Chief Justice of      D
    India, it was submitted, that the supersession led to public
    protest, including speeches by former Judges, former
    Attorneys General, legal luminaries and members of the Bar,
    throughout the country. M. Hidayatullah, CJ., in a public speech,
    complimented the three Judges, who were superseded, for             E
    having resigned from their office, immediately on the
    appointment of AN. Ray, as Chief Justice of India. In the speech
    delivered by M. Hidayatullah, CJ., he made a reference about
    rumors being afloat, that the senior most Judge after him,          F
    namely, J.C. Shah, J., would not succeed him as the Chief
    Justice of India.And that, an outsider was being broughtto the
    Supreme Court, as its Chief Justice. His speech highlighted
    the fact, that all except one sitting Judge of the Supreme Court
    had agreed to resign in the event of supersession of J.C. Shah,     G
    J.. He had also pointed out, in his speech, that if the decision
    was taken by the executive, even a day before his retirement,
    he too would join his colleagues in resigning from his position
    as the Chief Justice of India. It was accordingly submitted, that
~   the constitutional convention, that the senior most Judge of        H
330        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A  the Supreme Court would be appointed as the Chief Justice
   of India, was truly and faithfully recognized as an impregnable
   convention. To support the aforesaid contention, it was also
   pointed out, that even in situations wherein the senior most
   puisne Judge would have a very short tenure, the convention
 B had remained unbroken, despite the inefficacy of making such
   appointments. In this behalf, the Court's attention was drawn
   to the fact that J.C. Shah, CJ.(had a tenure of 35 days), K.N.
   Singh, CJ. (had a tenure of 18 days) and S. Rajendra Babu,
   CJ. (had a tenure of 2g days).
 c
           50. It was also the contention of the learned senior
    counsel, th.at the executive is an important litigant and
    stakeholder before the higher judiciary, and as such, the
    executive ought to have no role, whatsoever, in the matter of
 o  appointn]ents/transfers of Judges to the higher judiciary. In
    this behalf, learned counsel placed reliance on a number of
    judgments rendered by this Court, wherein \he participation of
    the executive in the higher judiciary, had been held to be
    unconstitutional, in the matter of appointments of Judges and
· E other Members of tribunals, vested with quasi judicial functions.
     It was submitted, that the inclusion of the Union Minister in
     charge of Law and Justice in the NJAC, was a clear breach of
    the judgments rendered by this Court. Additionally, it was
     pointed out, that two "eminent persons", who were to be
  F essential components of the NJAC, were to be selected by a
     Committee, wherein the dominating voice was that of the
     political leadership. It was pointed out, that in the three-
     MemberCommiltee authorised to nominate "eminent persons"
     included the Prime Minister and the Leader of the Opposition
  G in the Lok Sabha, besides the Chief Justice of India. It was
     therefore submitted, that in the six-Member NJAC, three
     Members would have political-executive lineage. This aspect
     of the matter, according to the learned counsel, would have a
  H devastating affect. It would negate primacy of the higher
     SUPREME COURT ADVOCATES~ON-RECORD                              331
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  judiciary, and the same would result in undermining the           A
  "independence of the judiciary". Based on the above
  foundation, learned senior counsel raised a number of
  contentions. Firstly, it was submitted, that through the
  impugned constitutional amendment and the NJAC Act, the
  constitutional convention in this country, that the senior most   B
  Judge of the Supreme Court would be appointed as the Chief
  Justice of India, had been breached. It was submitted, that the
  aboye convention had achieved the status of a constitutional
  axiom - a constitutional principle. To substantiate the above
  contention, it was submitted, that right from 26.01.1950, the     C
  senior most puisne Judge of the Supreme Court has always
· been appointed as the Chief Justice of India except on two
  occasions. Firstly, the above convention was breached, when
  A.N. Ray, J., was appointed as Chief Justice of India on
                                                                    0
  25.4.1973, by superseding three senior fDOSt Judges. It was
  submitted, that the aforesaid supersession was made on the
  day following the Supreme Court delivered the judgment in
  the KesavanandaBharati case 10 • Secondly, the supersession
  took place during the internal emergency declared by Prime        E
  Minister, Indira Gandhi. At that juncture, M.H. Beg, J., was.
  appointed as Chief Justice of India on 29.1.1977, by
  superseding his senior H.R Khanna, J .. It was contended,
  that the aforesaid two instances should be considered as
  aberrations, in the convention pertaining to appointment of       F
  Chief Justice of India.
       51. Mr. Arvind P. Datar also assailed the constitutional
 validity of Article 124C, introduced by the Constitution (99th
 Amendment) Act. It was submitted, that the Parliament was
 delegated with the authority to "regulate the procedure for the G
 appointment of the Chief Justice of India and other Judges of
 the Supreme Court, and the Chief Justices and other Judges
 of the High Courts". And the NJAC was empowered to lay
 down, by regulation, "the procedure of discharging its own
                                                                 H
332       SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A functions, the manner of selection of persons for appointment,
   and such other matters, as may be considered necessary by
   it". It was the contention of the learned counsel, that the
   delegation of power contemplated under Article 124C,
   amounted to vesting the NJAC, with what was earlier vested
B with the Chief Justice of India. In this behalf, reference was
   also made to Sections 11, 12 and 13 of the NJAC Act. The
  .power to make rules, has been vested with the Central
   Government under Section 11, and the power to make
   regulations has been entrusted to the NJAC under Secfion
C 12. The aforementioned rules and regulations, as drawn by
   the Central Government/NJAC, are required to be placed
   before the Parliament under Section 13, and only thereafter,
   the rules and regulations were to be effective (or not to have
   any effect, or to have effect as modified). It was submitted,
0
   that the entrustment of the procedure of appointment of Judges
   to the higher judiciary, and also, the action of assigning the
   manner in which the NJAC would discharge its functions (of
   selecting Judges to the higher judiciary), with either the
E executive or the legislature, was unthinkable, if "independence
    of the judiciary" was to be maintained. It was pointed out, that
   the intent behind Article 124C, in the manner it had been
    framed, stood clearly exposed, by the aforesaid provisions of
   the NJACAct.
 F       52. Reference was also made to Section 12 of the NJAC
   Act, to highlight, that the NJAC had been authorized to notify
   in the Official Gazette, regulations framed by it, with the
   overriding condition, that the regulations so framed by the
   NJAC were to be consistent with the provisions of the NJAC
 G Act, as also, the rules made thereunder (i.e., under Section 11
   of the NJAC Act). Having so empowered the NJAC (under
   Sections 11 and 12 referred to above), and having delineated
    in Section 12(2), the broad outlines with reference to which
   the regulations could be framed, it was submitted, that the
 H
    SUPREME COURT ADVOCATES-ON-RECORD                               333
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

power to delegate the authority to frame regulations clearly        A
stood exhausted. In that, the Parliament had no jurisdiction
thereafter, to interfere in the matter of framing regulations. In
fact, according to the learned counsel, consequent upon the
empowerment of the NJAC to frame regulations, the Parliament
was rendered functus officio, on the issue of framing               B
regulations. According to learned counsel, the above also
established, the inference drawn in the foregoing paragraph.
      53. It was also the contention of the learned counsel, that
the NJAC constituted, by way of the Constitution (99th c
Amendment) Act, would be sustainable, so long as it did not
violate the "basic structure" of the Constitution. It was
emphasized, that one of the recognized features of the "basic
structure" of the Constitution was, the "independence of the
judiciary". The procedure which the NJAC could adopt for D
discharging its functions, and the procedure it was liable to
follow while holding its meetings, and the ambit and scope
with reference to which the NJAC was authorized to frame its
regulations, had to be left to the exclusive independent will of
an independent NJAC. That, according to learned counsel, E
would have ensured the "independence of the NJAC". It was
accordingly contended, that Article 124C breached the
"independence of the judiciary", and also, undermined the
independence of the NJAC.
                                                                    F
      54. The next contention advanced at the hands of the
learned counsel, was with reference to clause (2) of Article
124A, whereby judicial review was barred, with reference to
actions or proceedings of the NJAC, on the ground of the
existence of a vacancy or defect in the constitution of the G
NJAC. Learned counsel then invited this Court's attention to
the exclusion of the power of judicial review, contemplated under
Articles 323A(2)(d) and 323B(3)(d), wherein the power of
judicial review was similarly excluded. It was submitted, that
this Court struck down a similar provision in ttie aforesaid H
334         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     Articles, holding that the same were violative of the "basic
      structure" of the Constitution. In this behalf, learned counsel
      placed reliance on the decision of this Court in the Kihoto .
      Hollohan case 34 , and referred to the following observations
      recorded therein:
B           "129. The unanimous opinion according to the majority as
            well as the minority is that Paragraph 7 of the Tenth
            Schedule enacts a provision for complete exclusion of
            judicial review including the jurisdiction of the Supreme
            Court under Article 136 and of the High Courts under
c           Articles 226 and 227 of the Constitution and therefore, it
            makes in terms and in effect a change in Articles 136, 226
            and 227 of the Constitution which attracts the proviso to
            clause (2) of Article 368 of the Constitution: and, therefore.
D           ratification by the specified number of State legislatures
            before the Bill was presented to the President for his assent
            was necessarv. in accordance therewith. The majority view
            is that in the absence of such ratification by the State
            legislatures, it is Paragraph 7 alone of the Tenth Schedule
E           which is unconstitutional; and it being severable from the
            remaining part of the Tenth Schedule, Paragraph 7 alone
            is liable to be struck down rendering the Speakers' decision
            under Paragraph 6 that of a judicial tribunal amenable to
            judicial review by the Supreme Court and the High Courts
 F          under Articles 136, 226 and 227. The minority opinion is
            that the effect of invalidity of Paragraph 7 of the Tenth
            Schedule is to invalidate the entire Constitution (Fifty-
            second Amendment) Act, 1985 which inserted the Tenth
            Schedule since the President's assent to the Bill without
G           prior ratification by the State legislatures is non est. The
            minority view also is that Paragraph 7 is not severable from
            the remaining part of the Tenth Schedule and the Speaker
            not being an independent adjudicatory authority for this
            purpose as contemplated by a basic feature of democracy,
H
       SUPREME COURT ADVOCATES-ON-RECORD                                  335
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

         the remaining part of the Tenth Schedule is in excess of         A
         the amending powers being violative of a basic feature of
         the Constitution. In the minority opinion, we have held that
         the entire Constitution (Fifty-second Amendment) Act, 1985
         is unconstitutional and an abortive attempt to make the
         constitutional amendment indicated therein."                     B
     Reliance was also placed on the following conclusions
recorded by this Court in Dr. Kashinath G. Jalmi v. The
Speaker48 •
         "43. In Kihoto Hollohan there was no difference between          c
         the majority and minority opinions on the nature of finality
         attaching to the Speaker's order of disqualification made
         under para 6 of the Tenth Schedule, and also that para 7
         therein was unconstitutional in view of the non-compliance
         of the proviso to clause 2 of Article 368 of the Constitution,   D
         by which judicial review was sought to be excluded. The
         main difference in the two opinions was, that according to
         the majority opinion this defect resulted in the constitution
         standing amended from the inception with insertion of the
         Tenth Schedule minus para 7 therein. while according to          E
         the minority the entire exercise of constitutional amendment
         was futile and an abortive attempt to amend the
         constitution sjnce Para 7 was not severable. According to
         the minority view, all decisions rendered by the several
         Speakers under the Tenth Schedule were, therefore, nullity       F
         and liable to be. ignored. According to the majority view,
         para 7 of the Tenth Schedule being unconstitutional and
         severable, the Tenth Schedule minus para 7 was validly
         enacted and, therefore, the orders made by the Speaker
         under the Tenth Schedule were not nullity but subject to         G
         judicial review. On the basis of the majority opinion, this
         Court has exercised the power of judicial review over the
         orders of disgualification made by the speakers from the
46
     AIR 1993 SC 1873                                                     H
336         SUPREME COURT REPORTS                   (2015]13S.C.R.


A           very inception of the Tenth Schedule. and the exercise of
            judicial review has not been confined merely to the orders
            of disqualification made after 12th November. 1991 when
            the judgment in Kihoto Hollohan 11992 (1) SCC 309 ... ) was
            rendered. Venkatachaliah, J. (as he then was) wrote the
B           majority opinion and, thereafter, on this premise, exercised
            the power of judicial review over orders of disqualification
            made prior to 12. 11. 1991. The basic fallacy in the
            submission made on behalf of the respondents that para 7
            must be treated as existing till 12th November, 1991 is that
c           on that view there would be no power of judicial review
            against an order of disqualification made by the Speaker
            prior to 12th November, 1991 since para 7 in express terms
            totally excludes judicial review."

D          It was, therefore, the vehement contention of the learned
      counsel, that clause (2) of Article 124Ashould be struck down,
      as being violative of the "basic structure" of the Constitution.
         55. Mr. Fali S. Nariman, learned senior counsel, also
  raised a purely technical plea. It was his contention, that 121 st
E Constitution Amendment Bill, now the Constitution (99th
  Amendment) Act, was introduced in the Lok Sabha on 11th of
  August, 2014 and was passed by the Lok Sabha on 13th of
  August, 2014. It was further submitted, that the 121st
  Constitution Amendment Bill was discussed and passed by
F Rajya Sabha on 14.8.2014. Thereupon, the said Amendment
  Bill, which envisaged a constitutional amendment, was sent to
  the State Legislatures for ratification. Consequent upon its
  having been ratified by 16 State Legislatures, it was placed
G before the President for his assent. It was pointed out, that the
  President accorded his assent on 31. 12.2014, whereupon, it
  became the Constitution (99th Amendment) Act. Learned
  counsel then invited our attention to Section 1 of the
  Constitution (99th Amendment) Act, which reads as under:
 H
    SUPREME COURT ADVOCATES-ON-RECORD                               337
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       "1 (1) This Act may be called the Constitution (Ninety-      A
       ninthAmendment)Act, 2014.
       (2) It shall come into force on such date as the Central
       Government may, by notification in the Official Gazette,
       appoint."
        Based on the aforesaid provision, it was contended, that    B
in spite of having received the assent of the President on
31.12.2014, the Constitution (99th Amendment) Act, would not
come into force automatically. And that, the same would come
into force in terms of the mandate contained in Section 1(2), -     C
" ... on such date as the Central Government may, by notification
in the Official Gazette, appoint." It was submitted, that the
Central Government notified the Constitution (99th
Amendment) Act, in the Gazette of India Extraordinary on
13.4.2015. Based on the aforesaid factual position, the             D
Constitution (99th Amendment) Act, came into force with effect
from 13.4.2015.
      56. In conjunction with the factual position noticed in the
foregoing paragraph, learned counsel pointed out, that the
NJAC Bill, was also introduced in the Lok Sabha on 11.8.2014.       E
The Lok Sabha passed the Bill on 13.8.2014, whereupon, it
was passed by the Rajya Sabha on 14.8.2014. Thereafter,
the NJAC Bill received the assent of the President on
31.12.2014, and became the NJAC Act. It was contended,
that the enactment of the NJAC Act was based/founded on             F
the Constitution (99thAmendment)Act. It was submitted, that
since the Constitution (99thAmendment)Act, was brought into
force on 13.4.2015, the consideration of the NJAC Bill and
the passing of the NJAC Act prior to the coming into force of
the Constitution (99th Amendment)Act, would render it stillborn     G
and therefore nugatory. The Court's attention was also invited
to the fact, that the aforesaid legal infirmity, was noticed and
raised during the course of the parliamentary debate pertaining
to the NJAC Bill, before the Rajya Sabha. Learned counsel           H
338         SUPREME COURT REPORTS                      [2015) 13 S.C.R.


A     invited this Court's attention to the following questions and
      answers, which are recorded on pages 442 to 533 with
      reference to the debates in the Rajya Sabha on 13.8.2014,
      and at pages 229 to 375 on 14.8.2014 (Volume 232 No.26 -
      and 27), as under:
B           "that Mr. Sitaram Yechury, Member of Parliament, (Rajya
            Sabha) raised a constitutional objection (on August 13,
            2014) to the NJAC Bill saying:
            "....... till the Constitution Amendment (121~ Bill) comes
            into effect. the Legislature. I would like to humbly submit,
c           does not have the right to enact a Bill for the creation of a
            Judicial Commission for appointments." (page 488)
            ''. ....... I am only asking you to seriously consider we are
            creating a situation where this proposal for creation of a
            Judicial Appointments Commission will become ultra vires
D
            of the Indian Constitution because our right to bring about
            a Bill to enact such a provision comes only after the
            Constitution Amendment Bill becomes effective." (page
            489)
 E          " ........ Therefore. you please consider what I am saying
            with seriousness. I want also the law Minister to consider
            it. Let it not be struck down later as ultra vires. So. let us
            give it a proper consideration." (Page-490)
            - The Leader of the Opposition (Shri Ghulam Nabi Azad)
 F          then said:
            "The leader of the opposition (Shri Ghulam Nabi Azad): Sir,
            I just want to say that Mr. Yechury has given a totally different
            dimension to the entire thing. It is quite an eye opener for
            all of us that the entire legislation will become ultr vires.
 G          So, my suggestion is that before my colleague, Mr. Anand
            Sharma, speaks, I would request one thing. Of course,
            we have great lawyers from all sides here but I think one of
            the oldest luminaries in the legal profession is Mr.
             Parasaran. Before we all decide what to do, can we request
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                    339
ASSOCIATION v. U.0.1. {JAGDISH SINGH KHEHAR, J.]

   him to throw light on what Mr. Yechury has said? (Page-             A
   490)
   - Mr. K. Parasaran (Nominated Member) then gave his
   views saying:
   Shri K. Parasarn (contd.) ... Before ratification, if you take
   up the Bill and pass the Bill, today, it will be unconstitutional   B
   and ultra vires. Because the power to make enactment,
   as we see, is only in the Articles. The Article 368 gives the
   power to ....
           )()()(                    )()()(                   )()()(

   Mr. Deputy Chairman: What I want to know is this. You C
   have mentioned that there are two provisions. Number
   one, if it is amended in a particular way, it can directly go to
   the President. If the amendment involves Chapter IV, part
   5, or Chapter V, etc., etc., it has to be ratified by half in the D
   Assemblies. Okay. I accept both of them. But do any of
   these objections object us from considering this Bill now?
   Tha1 is my question.
   Shri K. Parasaran: No. We don't have the legislative
   competence. (Page-492)
                                                                     E
   - The Minister of Law and Justice then said:
   " .....This Bill will become effective after ratification but the
   separate Bill is for guidance to the Legislatures as to how
   the entire structure has come into existence. Therefore. it
   is not unconstitutional. We have got summary power under F
   Article 246 read with Entries 77 and 78, which is not a
   limited power. It is a plenary power, exhaustive power. This
   Parliament can pass any law with regard to composition
   and organization of the Supreme Court; this Parliament
   can pass any law with regard to High Court composition. G
   That is not a limited power......... " (Page-495)
   Mr. Deputy Chairman: Yes, I will come .... (interruptions) ....
   Now, Mr. Minister, the point is that you yourself admit that
   only after 50 per cent of the Assemblies have endorsed it
   by a Resolution can your Bill come into force, and after the H
340   SUPREME COURT REPORTS                      [2015] 13 S.C.R.

A     President has given assent. And then, you are saying that
      the Bill was passed along with this only as a guideline, so
      that Members of the Assemblies know what you are going
      to do.
      Shri Ravi Shankar Prasad: But it would become effective
 B    after assent. That is all.
      Mr. Deputy Chairman: That's what I am saying. It will
      become effective after six months.
      Now, I would like to know one thing from Mr. Parasaran.
      Article 246, according to him, (the Minister) gives absolute
 c    powers to Parliament to pass a legislation. Is there any
      provision in the Constitution, which prevents passing of
      such a Bill before the Constitutional Amendment is
      endorsed by the President? Is there any such provision?
       ... (interruptions) .... I will come to you. Yes, Mr. Parasaran.
 D
      (Page-495)
      - In response Mr. K. Parasaran then said:
      "Shri K. Parasaran: Sir, I would explain this. Now, we are
      concerned with Article 124 and a legislation under Article
      246 read with the relevant entries in the Seventh Schedule,
 E
       pointed out by the Hon. Minister. Now, the Supreme Court
       has interpreted Article 124. We cannot pass an Act contrary
      to that judgment and, therefore, the need for amendment
      to the constitution. If the Constitution is not amended, then
 F    we lack the legislative competence. There is no good of
      going to Article 246 and reading the entries. Had we the
       legislative competence, under Article 246 read with the
      entries .... (Emphasis supplied) page495.
       Mr. Deputy Chairman: Then, how do you explain Article
 G     246? .                       .
      Shri K. Parasaran: Suppose the Constitutional Amendment
      is passed, then can this Bill be introduced and discussed
      as it is? As a hypothetical case, if this Amendment Bill is
      not passed, can we introduce this Bill and pass it? We will
 H    not be able to do it." (Emphasis supplied) (Page-496)."
    SUPREME COURT ADVOCATES-ON-RECORD                                   341
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       57. In other words, it was the contention of the learned A
counsel, that the NJAC Bill was passed by both Houses of
Parliament, when Parliament had no power, authority or
jurisdiction to consider such a Bill, in the teeth of Articles 124(2)
and 217(1 ), as enacted in the original Constitution. It was ·
submitted, that the passing of the said Bill, was in itself B
unconstitutional, ultra vires and void, because the amended
provisions contained in the Constitution (99th Amendment) Act,
had not come into play. It was submitted, that the passing by
the Lok Sabha, as also, by the Rajya Sabha of the 121 st
Constitution Amendment Bill on 13/14.8.2014, and the C
ratification thereof by 16 State Legislatures, as also, the assent
given thereto by the President on 31.12.2014, would not bestow
validity on the NJAC Act. This, for the simple reason, that the
Constitution (99th Amendment) Act, was brought into force only D
on 13.4.2015. In the above view of the matter, according to
the learned counsel, till 13.4.2015, Articles 124(2) and 217(1)
of the Constitution of India were liable to be read, as they were
originally enacted. In the aforesaid context, it was submitted,
that the NJAC Act could not have been passed, till the E
unamended provisions of the Constitution were in force. And
that, the mere assent of the President to the NJAC Act on
31.12.2014, could not infuse validity thereon.
      58. In order to substantiate the aforesaid contention,
learned counsel placed reliance onA.K. Royv. Union of lndia49 ,         F
and invited our attention to the following:
       "45 The argument arising out of the provisions of
       Article 368(2) may be considered first. It provides that when
       a Bill whereby the Constitution is amended is passed by          G
       the requisite majority, it shall be presented to the President
       who shall give his assent to the Bill, "and thereupon the
       Constitution shall stand amended in accordance with the
       terms of the Bill." This provision shows that a constitutional
"(1982) 1 sec 271                                                       H
342   SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     amendment cannot have any effect unless the President
      gives his assent to it and secondly, that nothing more than
      the President's assent to an amendment duly passed by
      the Parliament is required, in order that the Constitution
      should stand amended in accordance with the terms of
 B    the Bill. It must follow from this that the Constitution stood
      amended in accordance with the terms of the 44th
      Amendment Act when the President gave his assent to
      that Act on April 30, 1979. We must then turn to that Act for
      seeing how and in what manner the Constitution stood thus
c     amended. The 44th Amendment Act itself prescribes by
      Section 1(2) a pre-condition which must be satisfied before
      any of its provisions can come into force. That pre-condition
      is the issuance by the Central Government of a notification
      in the official gazette, appointing the date from which the
 D
      Act or any particular provision thereof will come into force
      with power to appoint different dates for different provisions.
       Thus, according to the very terms of the 44th Amendment,
       none of its provisions can come into force unless and until
      the Central Government issues a notification as
 E
       contemplated by Section 1(2):
       46. There is no internal contradiction between the provisions
       of Article 368(2) and those of Section 1 (2) of the 44th
       Amendment Act. Article 368(2) lays down a rule of general
 F     application as to the date from which the Constitution would
       stand amended in accordance with the Bill assented to by
       the President. Section 1(2) oftheAmendmentAct specifies
       the manner in which that Act or any of its provisions may
       be brought into force. The distinction is between the
 G     Constitution standing amended in accordance with the
       terms of the Bill assented to by the President and the date
       of the coming into force of the Amendment thus introduced
       into the Constitution. For determining the date with effect
       from which the Constitution stands amended in
 H     accordance with the terms of the Bill. one has to turn to
  SUPREME COURT ADVOCATES-ON-RECORD                                   343
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   the date on which the President gave. or was obliged to            A
   give. his assent to the Amendment. For determining the
   date with effect from which the Constitution. as amended.
   came or will come into force. one has to turn to the
   notification. if any, issued by the Central Government under
   Section 1(2) of the Amendment Act.                                 B
   4 7. The Amendment Act may provide that the amendment
   introduced by it shall come into force immediately upon
   the President giving his assent to the Bill or it may provide
   that the amendment shall come into force on a future date.
   Indeed, no objection can be taken to the constituent body          C
   itself appointing a specific future date with effect from which
   the Amendment Act will come into force; and if that be so,
   different dates can be appointed by it for bringing into force
   different provisions of the Amendment Act. The point of the        D
   matter is that the Constitution standing amended in
   accordance with the terms of the Bill and the amendment
   thus introduced into the Constitution coming into force are
   two distinct things. Just as a law duly passed by the
   legislature can have no effect unless it comes or is brought       E
   into force. similarly. an amendment of the Constitution can
   have no effect unless it comes or is brought into force.
   The fact that the constituent body may itself specify a future
   date or dates with effect from which the Amendment Act
   or any of its provisions will come into force shows that           F
   there is no antithesis between Article 368(2) of the
   Constitution and Section 1(2) of the 44thAmendmentAct.
   The expression of legislative or constituent will as regards
   the date of enforcement of the law or Constitution is an
   integral part thereof. That is why it is difficult to accept the   G
   submission that. contrary to the expression of the
   constituent will. the amendments introduced by the 44th
   Amendment Act came into force on April 30. 1979 when
   the President gave his assent to that Act. The true position
   is that the amendments introduced by the 44th Amendment            H




  •
344          SUPREME COURT REPORTS                     [2015] 13 S.C.R.

A            Act did not become a part of the Constitution on April 30,
             1979. They will acquire that status only when the Central
             Government brings them into force by issuing a notification
             under Section 1(2) of the Amendment Act."
              59. It was also the contention of Mr. Fali S. Nariman,
 B    that just as a constitutional amendment was liable to be
      declared as ultra vires, if it violated and/or abrogated, the "core"
      or the "basic structure" of the Constitution; even a simple
      legislative enactment, which violated the "basic structure" of
      the Constitution, was liable to be declared as unconstitutional.
C     For the instant proposition, learned counsel referred to the
      Madras Bar Association case 35 , and placed reliance on the
      following observations recorded therein:
                     "109. Even though we have declined to accept the
             contention advanced on behalf of the Petitioners, premised
 D
             on the "basic structure" theory, we feel it is still essential
             for us, to deal with the submission advanced on behalf of
             the respondents in response. We may first record the
             contention advanced on behalf of the respondents. It was
             contended, that a legislation (not being an amendment to
 E
             the Constitution), enacted in consonance of the provisions
             of the Constitution. on a subject within the realm of the
             legislature concerned, cannot be assailed on the ground
             that it violates the "basic structure" of the Constitution. For
 F           the present controversy, the respondents had placed
             reliance on Articles 245 and 246 of the Constitution, as also,,
             on entries 77 to 79, 82 to 84, 95 and 97 of the Union List of
             the Seventh Schedule, and on entries 11-A and 46 of the
              Concurrent List of the Seventh Schedule. Based thereon
 G            it was asserted, that Parliament was competent to enact
              the NTT Act. For examining the instant contention. let us
              presume it is so. Having accepted the above, our
              consideration is as follows. The Constitution regulates the
              manner of governance in substantially minute detail. It is
 H           the fountainhead distributing power. for such governance.
  SUPREME COURT ADVOCATES-ON-RECORD                           345
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   The Constitution vests the power of legislation at the A
   Centre with the Lok Sabha and the Rajya Sabha, and in
   the States with the State Legislative Assemblies (and in
   some States, the State Legislative Councils, as well). The
   instant legislative power is regulated by "Part XI" of the
   Constitution. The submission advanced at the hands of B
   the learned counsel for the respondents, insofar as the
   instant aspect of the matter is concerned, is premised on
   the assertion that the NTT Act has been enacted strictly in
   consonance with the procedure depicted in "Part XI" of the
                                                               c
   Constitution. It is also the contention of the learned counsel
   for the respondents, that the said power has been exercised
   strictly in consonance with the subject on which the
   Parliament is authorized to legislate. Whilst dealing with
   the instant submission advanced at the hands of the D
   learned counsel for the respondents, all that needs to be
   stated is. that the legislative power conferred under "Part
   XI" of the Constitution has one overall exception, which
   undoubtedly is that the "basic structure" of the Constitution.
   cannot be infringed, no matter what. On the instant aspect. E
   some relevant judgments rendered by Constitutional
   Benches of this Court, have been cited hereinabove. It
   seems to us, that there is a fine difference in what the
   petitioners contend, and what the respondents seek to
   project. The submission advanced at the hands of the F
   learned counsel for the petitioners does not pertain to lack
   of jurisdiction or inappropriate exercise of jurisdiction. The
   submission advanced at the hands of the learned counsel
   for the petitioners pointedly is, that it is impermissible to
   leg~slate in a manner as would violate the "basic structure" G
   of the Constitution. This Court has repeatedly held that an
   amendment to the provisions of the Constitution would not
   be sustainable if it violated the "basic structure" of the
   Constitution, even though the amendment had been carried
   out by following the procedure contemplated under "Part H
346         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A           . XI" of the Constitution. This leads to the d~termination that
              the "basic structure" is inviolable. In our view, the same
              would apply to all other legislations (other than amendments
              to the Constitution) as well, even though the legislation had
              been enacted by following the prescribed procedure. and
B             was within the domain of the enacting legislature. any
              infringement to the "basic structure" would be
              unacceptable. Such submissions advanced at the hands
              of the learned counsel for the respondents are. therefore
              liable to be disallowed. and are accordingly declined."
c           60. Mr. Arvind P. Datar, learned senior counsel, assailed
      the constitutional validity of various provisions of the NJAC
      Act, by advancing the same submissions, as were relied upon
      by him while assailing the constitutional validity of Articles
0     124A, 1248 and 124C. For reasons of brevity, the aforestated
      submissions noticed with reference to individual provisions of
      the NJAC Act are not being repeated again.
          61. A challenge was also raised, to the different
    provisions of the NJAC Act. First and foremost, a challenge
E was raised to the manner of selection of the Chief Justice of
    India. Section 5(1) of the NJACAct, it was submitted, provides
    that the NJAC would recommend the senior most Judge of
    the Supreme Court, for being appointed as Chief Justice of
    India, subject to the condition, that he was considered "fit" to
F hold the office. It was contended, that the procedure to regulate
    the appointment of the Chief Justice of India, was to be
    determined by Parliament, by law under Article 124C. It was
    contended, that the term "fit", expressed in Section 5 of the
G NJACAct, had not been elaborately described. And as such,
    fitness would have to be determined on the subjective.
    satisfaction of the Members of the NJAC. It was submitted,
    that even though the learned Attorney General had expressed,
    during the course of hearing, that fitness meant" ... mental and
H . physical fitness alone ... ", it was always open to the Parliament
    SUPREME COURT ADVOCATES-ON-RECORD                                 347
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

to purposefully define fitness, in a manner as would sub-serve        A
the will of the executive. It was submitted, that even an ordinance
could be issued without the necessity, of following the
procedure, of enacting law. It was asserted, that the criterion
of fitness could be defined and redefined. It was submitted,
that it was a constitutional convention, that the senior most         B
Judge of the Supreme Court would always be appointed as
Chief Justice of India. And that, the aforesaid convention had
remained unbroken, even though in some cases the tenure of
the appointee, had been short, and as such, may not have
enured to the advantage, of the judicial organization as a whole.     C
Experience had shown, according to learned counsel, that
adhering to the practice of appointing the senier most Judge
as the Chief Justice of India, had resulted in institutional
harmony amongst Judges, which was extremely important for             D
the health of the judiciary, and also, for the "independence of
the judiciary". It was submitted, that it would be just and
appropriate, at the present juncture, to understand the width of
the power, so as to prevent any likelihood of its misuse in future.
 It was submitted, that various ways and means could be               E
devised to supersede Judges, and also, to bring in favourites.
Past experience had shown, that the executive had abused its
authority, when it departed from the above rule in April 1973,
by superseding J.M. Shelat, J., the senior most Judge and
even the next two Judges in the order of seniority after him,         F
 namely, K.S. Hegde and A.N. Grover, and appointed the fourth
senior most Judge A.N Ray, as the Chief Justice of India. Again
 in January 1977 on the retirement of A.N. Ray, CJ., the senior
 most Judge H.R. Khanna, was ignored, and the next senior
 most Judge, M.H. Beg, was appointed as the Chief Justice of          G
 India. Such control in the hands of the executive would cause
immense inroads, in the decision making process. And could
result in; Judges trying tO placate and appease the executive,
for personal gains and rewards.
                                                                      H
348             SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A                62. The submission noticed above was sought to be
          illustrated through the following instance. It was pointed out,
          that it would be genuine and legitimate for the Parliament to
          enact, that a person would be considered fit for appointment
          as Chief Justice of India, only if he had a minimum remaining
 B        tenure of at least two years. Such an enactment would have a
          devastating effect, even though it would appear to be
          innocuously legitimate. It was contended, that out of the 41
          Chief Justices of India appointed till date, only 12 Chief Justices
          of India, had a tenure of more than two years. Such action, at
C         the hands of the Parliament, was bound to. cause
          discontentment to those, who had a legitimate expectation to
          hold the office_of Chief Justice of India. It was submitted, that
          similar instances can be multiplied with dimensional alterations
          by prescribing different parameters. It was submitted, that the
 0
          Parliament should never be allowed the right to create
           uncertainty, in the matter of selection and appointment of the
           Chief Justice of India, because the office of the Chief Justice
          of India was pivotal, as it shouldered extremely serious and
 E        onerous responsibilities. The exercise of the above authority,
           it was pointed out, could/would seriously affect the
           "independence of the judiciary". In the above context, reference
           was also made, to the opinion expressed by renowned
           persons, having vast experience in the judicial institution,
 F         effectively bringing out the veracity of the contention advanced.
           Reference in this regard was made to the observations of M.C. ·
           Chagla, in his book, "Roses in December-An Autobiography'',
           wherein he examined the impact of supersession on Judges,
           who by virtue of the existing convention, were in line to be the
 G         Chief Justice of India, but were overlooked by preferring a
          junior. Reference was also made to the opinion expressed by
           H.R. Khanna, J., (in his book- "Neither Roses Nor Thorns").
           Finally, the Court's attention was drawn to the view expressed
           by H.M. Seervai (in "Constitutional Law of India -A Critical
 H         Commentary'). It was submitted, that leaving the issue of




      /
    SUPREME COURT ADVOCATES-ON-RECORD                              349
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

determination of fitness with the Parliament, was liable to fan    A
the ambitions of Judges, and would make them loyal to those
who could satisfy their ambitions. It was therefore the
contention of the learned counsel, that Section 5, which created
an ambiguity in the matter of appointment of the Chief Justice
of India, and could be abused to imperil "independence of the      B
judiciary'', was liable to be declared as unconstitutional.
       63. It was also the contention of the learned counsel for
the petitioners, that on the issue of selection and appointment
of Judges to the higher judiciary, the NJAC was liable to take c
into consideration ability, merit and suitability (as may be
specified by regulations). It was submitted, that the above
criteria could be provided through regulatioi;is framed under
Section 12(2)(a), (b) and (c). It was pointed out, that the
regulations framed for determining the suitability of a Judge D
(with reference to ability and merit), would be synonymous with
the conditions of eligibility. Inasmuch as, a candidate who did
not satisfy the standards expressed in the regulations, would
also not satisfy, the prescribed conditions of appointment. It
was asserted, that it would be a misnomer to treat the same to E
be a matter of mere procedure. Thus viewed, it was contended,
that the provisions of the NJAC Act, which laid down (or
provided for the laying down) substantive conditions for
appointment, was clearly beyond the purview of Article 124C,
inasmuch as, under the above provision, Parliament alone had F
been authorised by law, to regulate the procedure for
appointment of Judges of the Supreme Court, or to empower
the NJAC to lay the same down by regulations, inter alia the
manner of selection of persons for appointment, as Judges of
the Supreme Court. It was submitted, that the NJAC Act, G
especially in terms of Section 5(2), had travelled far beyond
the jurisdictional parameters contemplated under Article 124C.
    64. It was also contended, that while recommending
names for appointment of a Judge to the Supreme Court,             H
350        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A  seniority in the cadre of Judges, was liable to be laken into
   consideration, in addition to ability and merit. It was submitted,
   that the instant mandate contained in the first proviso under
   Section 5(2) of the NJAC Act, clearly breached the "federal
   structure" of governance, which undoubtedly required regional
 B representation in the Supreme Court. Since the "federal
   structure" contemplated in the Constitution was also one of
   the "basic structures" envisioned by the framers of the
   Constitution, the same could not have been overlooked.
 c          65. Besides the above, the Court's attention was invited
    to the second proviso, under Section 5(2) of the NJAC Act,
    which mandates that the NJAC would not make a favourable
     recommendation, if any two Members thereof, opposed the
     candidature of an individual. It was contended, that placing
 o the power of veto, in the hands of any two Members of the
     NJAC, would violate the recommendatory power expressed
     in Article 1248. In this behalf, it was contended, thatthe second
     proviso under Section 5(2), would enable two eminent persons
     (- lay persons, if the submission advanced by the learned
 E Attorney General is to be accepted) to defeat a unanimous
     opinion of the Chief Justice of India and the two senior most
     Judges of the Supreme Court. And thereby negate the primacy
     vested in the judiciary, in the matter of appointment of Judges
     to the higher judiciary.
 F
            66. It was submitted, that the above power of veto
   . exercisable by two lay persons, or alternatively one lay person,
     in conjunction with the Union Minister in charge of Law and
     Justice, would cause a serious breach in the "independence
 G of the judiciary". Most importantly, itwascontended, thatneither
     the impugned constitutional amendment, nor the provisions of
     the NJAC Act, provide for any quorum for holding the meetings
     of the NJAC. And as such (quite contrary to the contentions
     advanced at the hands of the learned Attorney General), it was
 H contended, that a meeting of the NJAC could not be held,
     SUPREME COURT ADVOCATES-ON-RECORD                            351
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

without the presence of the all Members of the NJAC. In order A
 to support his above contention, he illustratively placed reliance
 on the Constitution (122ndAmendment) Bill, 2014 [brought
 before the Parliament, by the same ruling political party, which
 had successfully amended the Constitution by tabling the
 Constitution (121 st Amendment) Bill, 2014]. The objective B
 sought to be achieved through the Constitution (122nd
 Amendment) Bill, 2014, was to insert Article 279A. The
 proposed Article 279A intended to create the Goods and
 Services Tax Council. Sub-Article (7) of Article 279A
 postulated, that" ... One-half of the total number of Members     c
 of the Goods and Services Tax Council. .. " would constitute
 the quorum for its meetings. And furthermore, that" ... Every
 decision of the Goods and Services Tax Council shall be taken
 at a meeting, by a majority of not less than three-fourths of the
                                                                    D
"weighted votes of the members present and voting ... ". Having
 laid down the above parameters, in the Bill which followed the
 Bill that led to the promulgation of the Constitution (99th
 Amendment) Act, it was submitted, that the omission of
 providing for a quorum for the functioning of the NJAC, and
                                                                    E
 the omission to quantify the strength required for valid decision      '
 making, was not innocent. And that, it vitiated the provision
 itself.
Ill. BESPONDENIS' RESPONSE, ON MEBIJS:
                                                                   F
        67. The learned Attorney General commenced his
 response on merits by asserting, that there was no provision
 in the Constitution of India, either when it was originally drafted,
 or at any stage thereafter, which contemplated, that Judges
 would appoint Judges to the higher judiciary. It was accordingly G
 asserted, that the appointment of Judges by Judges was
 foreign to the provisions of the Constitution. It was pointed out,
 that there were certain political upheavals, which had
  undermined the "independence of the judiciary", including
··executive overreach, in the matter of appointment and transfer H
352        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A  of Judges of the higher judiciary, starting with supersession of
   senior Judges of the Supreme Court in 1973, followed by, the
   mass transfer of Judges of the higher judiciary during the
   emergency in 1976, and thereafter, the second supersession
   of a senior Judge of the Supreme Court in 1977. It was
 B acknowledged, that there was continuous interference by the
   executive, in the matter of appointment of Judges to the higher
   judiciary during the 1980's. Despite thereof, whilst adjudicating
   upon the controversy in the First Judges case rendered in 1981,
   this Court, it was pointed out, had remained unimpressed, and
 C reiterated the primacy of the executive, in the matter of
   appointment of Judges to the higher judiciary.
          68. It was pointed out, that the issue for reconsideration
   of the decision rendered in the First Judges case arose in
 o Subhash Sharma v. Union of lndia4, wherein the questions•
   considered were, whether the opinion of the Chief Justice of
   India, in regard to the appointment of Judges to the Supreme
   Court and High Courts, as well as, transfer of High Court
   Judges, was entitled to primacy, and also, whether the matter
 E of fixation of the judge-strength in High Courts, was justiciable?
   It was asserted, that the aforesaid two questions were placed
   for determination by a Constitution Bench of nine Judges
   (keeping in view the fact that the First Judges case, was
   decided by a seven-Judge Bench). It was asserted, that the
 F decision rendered by this Court in the Second Judges case,
   was on the suo motu exercise of jurisdiction by this Court,
   wherein this Court examined matters far beyond the scope of
   the reference order. It was contended, that the Second Judges
   case was rendered, without the participation of all the
 G stakeholders, inasmuch as, the controversy was raised at the
   behest of practicing advocates and associations of lawyers,
   and there was no other stakeholder involved during its hearing.
        69. It was asserted, that the judiciary had no jurisdiction
 H to assume to itself, the role of appointment of Judges to the
    SUPREME COURT ADVOCATES-ON-RECORD                               353
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

higher judiciary. It was pointed out, that it is the Parliament     A
alone, which represents the citizenry and the people of this
country, and has the exclusive jurisdiction to legislate on
matters. Accordingly, it was asserted, that the decisions in
the Second and Third Judges cases, must be viewed as
legislation without any jurisdictional authority.                   B
       70. It was pointed out, that the issue relating to the
amendment of the Constitution, pertaining to the subject of
appointment of Judges to the higher judiciary, through a Judicial
Commission commenced with the Constitution (67 1h                   C
Amendment) Bill, 1990. The Bill however lapsed. On the same
subject, the Constitution (82nd Amendment) Bill, 1997 was
introduced. The 1997 Bill, however, could not be passed. This
was followed by the Constitution (98th Amendment) Bill, 2003
which was introduced when the present Government was in             D
power. In 2003 itself, a National Commission was set up to
review the working of the Constitution, followed by the Second
Administrative Reforms Commission in 2007. Interspersed
with the aforesaid events, were a number of Law Commission's
Reports. The intention of the Parliament, since the introduction    E
of the Bill in 1990, it was submitted, was aimed at setting up a
National Judicial Commission, for appointment and transfer
of Judges of the higher judiciary. It was pointed out, that no
positive achievement was made in the above direction, for
well over two decades. Mr. Justice M.N. Venkatachaliah, who         F
headed the National Commission to review the working of the
Constitution, had also recommended a five-Member National
Judicial Commission, whereby, a wide consultative process
was sought to be introduced, in the selection and appointment
of Judges. It was submitted, that all along recommendations         G
were made, for a participatory involvement of the executive,
as well as the judiciary, in the matter of appointment of Judges
to the higher judiciary. It was also pointed out, that the
Constitution (98 1h Amendment) Bill, 2003 proposed a seven-
Member National Judicial Commission. Thereafter, the                H
354         SUPREME COURT REPORTS                [2015] 13S.C.R.


A Administrative Reforms Commission, proposed a eight-
  Member National Judicial Commission, to be headed by the
  Vice-President, and comprising of the Prime Minister, the
  Speaker, the Chief Justice of India, the Law Minister and two
  leaders of the Opposition. The aforesaid recommendation,
B was made by a Commission headed by Vee rap pa Moily, the
  then Union Law Minister. The present Constitution (99th
  Amendment) Act, 2014, whereby Article 124 has been
  amended_ and Articles 124A to 124C have been inserted in
  the Constitution, contemplates a six-Member National Judicial
C Commission. It was submitted, that there was no justification
  in finding anything wrong, in the composition of the NJAC. To
  point out the safeguards against entry of undesirable persons
  into the higher judiciary, it was emphasized, that only if five of
  the six Members of the NJAC recommended a candidate, he
0
  could be appointed to the higher judiciary. It was submitted,
  that the aforestated saf~guards, postulated in the amended
  provisions, would not only ensure transparency, but would also
  render a broad based consideration.
 E       71. As a counter, to the submissions advanced on behalf
  of the petitioners, it was asserted, that the Parliament's power
  to amend the Constitution was plenary, subject to" only one
  restriction, namely, thatthe Parliament could not alter the "basic
  structure" of the Constitution. And as such, a constitutional
F amendment must be presumed to be constitutionally valid
  (unless shown otherwise). For the instant proposition, reliance
  was placed on Charanjit Lal Chowdhury v. Union of lndia 50 ,
  Ram Krishna Dalmia v. Justice S.R. Tendolkar 51, the
  Kesavananda Bharati case 10 , (specifically the view expressed
G by K.S. Hegde and A.K. Mukherjea, JJ.), B. Banerjee v. Anita
  Pan 52 , and Government of Andhra Pradesh v. P. Laxmi Devi 53 •
      50
         AIR 1951 SC 41
      51
         AIR 1958 SC 538
      02
                sec
         (1975) 1     166
 H              sec no
      ,, (2008J 4
       SUPREME COURT ADVOCATES-ON-RECORD                         355
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      72. It was asserted, that the Parliament was best          A
equipped to assess the needs of the people, and to deal with
the changing times. For this, reliance was placed on Mohd.
Hanif Quareshi v. State of Bihar54 , State of West Bengal v.
Anwar Ali Sarkar55 • It was contended, that while enacting the
Constitution (99th Amendment) Act, and the NJAC Act, the         B
Parliament had discharged a responsibility, which it owed to
the citizens of ·this country, by providing for a meaningful
process for the selection and appointment of Judges to the
higher judiciary.
                                                                 c
       73. Referring to the decisions rendered by this Court in
the Second and Third Judges cases, it was asserted, that the
way he saw it, there was only one decipherable difference
introduced in the process of selection contemplated through
the NJAC. Under the system introduced, the judiciary could D
not "insist" on the appointment of an individual. But the judiciary
continued to retain the veto power, to stop the appointment of
an individual considered unworthy of appointment. According
to him, the nomination of a candidate, for appointment to the
higher judiciary, under the above judgments, could also not E
fructify, if any two members of the collegium, expressed an
opinion against the nominated candidate. It was pointed out,
that the above position had been retained in the impugned
provisions. According to the learned Attorney General, the only
difference in the impugned provisions was, that the right of the F
judiciary to "insist" on the appointment of a nominee, was no
longer available to the judiciary. Under the collegium system,
a recommendation made for appointment to the higher
judiciary, could be returned by the executive for reconsideration.
However, ifthe recommendation was reiterated, the executive G
had no choice, but to appoint the recommended nominee. It
was pointed out, that the instant right to "insist" on the
54
     AIR 1958 SC 731
55   1952 SCR 284                                                H
356         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A  appointment of a Judge, had now been vested in the NJAC. It
   was vehemently contended, that the denial to "insist", on the
   appointment of a particular nominee, would surely not
   undermine the "independence of the judiciary". The
   "independence of the judiciary", according to the learned
 B Attorney General, would be well preserved, if the rightto "reject"
   a nominee was preserved with the judiciary, which had been
   done.
            74. Based on the aforesaid submission, it was asserted,
 c    that the process initiated by the Parliament in 1990 (for the
      introduction of a Commission, for appointment of Judges to
      the higher judiciary), had taken twenty-four years to fructify. The
      composition of the NJAC introduced through the Constitution
      (99th Amendment) Act, according to him, meets with all
 o    constitutional requirements, as the same is neither in breach
      of the rule of "separation of powers", nor that of "the
      independence of the judiciary". It was contended, that the
      impugned provisions preserve the "basic structure" of the
      Constitution.
 E
          75. It was submitted, that the assailed provisions had
   only introduced rightful checks and balances, which are inherent
   components of an effective constitutional arrangement. The
   learned Attorney General also cautioned this Court, by
 F asserting, that it was neither within the domain of the petitioners,
   nor of this Court, to suggest an alternative combination of
   Members for the NJAC, or an alternative procedure, which
   would regulate its functioning more effectively. Insofar as the
   present petitions are concerned, it was asserted, that the
 G challenge raised therein, could only be accepted, if it was
   shown, that the Parliament while exercising its plenary power
   to amend the Constitution, had violated the "basic structure"
   of the Cor:istitution.
         76. It was submitted, that it was not the case of any of the
 H petitioners before this Court, either that the Parliament was
    SUPREME COURT ADVOCATES-ON-RECORD                              357
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

not competent to amend Article 124, or that the procedure          A
prescribed therefor under Article 368 had not been followed.
In the above view of the matter, it was submitted, that the only
scope for examination with reference to the present
constitutional amendment was, whether while making the
aforestated constitutional amendment, the Parliament had           B
breached, any of the "basic features" of the Constitution.
        77(i). For demonstrating the validity of the impugned
constitutional amendment, reliance in the first instance was
placed on the Kesavananda Bharati case 10 • Reference was          c
made to the observations of S.M. Sikri, CJ., to contend, that
the extent of the amending power under Article 368 was duly
adverted to. Reading the preamble to the Constitution, it was
pointed out, that the fundamental importance expressed
therein was, the freedom of the individual, and the inalienability o
of economic, social and political justice, as also, the
importance of the J?irective Principles (paragrap,h 282). In this
behalf, it was also submitted, that the "fundamental features"
of the Constitution, as for instance, secularism, democracy and
the freedom of the individual would always subsist in a welfare E
State (paragraph 283). Leading to the conclusion, that even
fundamental rights could be amended in public interest, subject
to the overriding condition, that the same could not be
completely abrogated (paragraph 287). In this behalf, it was
also pointed out, that the wisdom of the Parliament to amend F
the Constitution could not be the subject matter of judicial review
 (paragraph 288), leading to the overall conclusion, that by the
process of amendment, it was open to the Parliament to adjust
fundamental rights, in order to secure the accomplishment of
the Directive Principles, while maintaining the freedom anq G
dignity of every citizen (paragraph 289). Thus viewed, it was
felt, that the rightful legal exposition would be, that even though
 every provision of the Constitution could be amended, the
contemplated amendment should ensure, that the "basic
                                                                    H
358       SUPREME COURT REPORTS                   [2015] 13S.C.R.


A foundation and structure" of the Constitution remained intact.
  In this behalf, an illustrative reference was made to the features,
  which constituted the "basic structure" of the Constitution.
  According to the learned Attorney General, they included, the
  supremacy of the Constitution, the republican and democratic
B form of Government, the secular character of the Constitution,
  the "separation of powers" between the legislature, the
  executive and the judiciary, and the federal character of the
  Constitution (paragraph 292). In addition to the above, it was
  asserted, that India having signed the Universal Declaration
C of Human Rights, had committed itself to retaining such of the
  fundamental rights, as were incorporated in the above
  declaration (paragraph 299). In the above view, according to
  the Attorney General, the expression "amendment of this
  Constitution" would restrain the Parliament, from abrogating
0
  the fundamental rights absolutely, or from completely changing
  the "fundamental features" of the Constitution, so as to destroy
  its identity. And that, within the above limitation, the Parliament
  could amend every Article of the Constitution (paragraph 475).
E It was insisted, that the impugned provisions had not breached
  any of the above limitations.
         (ii) Reference was then made to the common opinion
   expressed by J.M. Shelat and A.N. Grover, JJ., (in the
   Kesavananda Bharati case 10 ) to assert, that one of the
 F limitations with reference to the amendment to the Constitution
   was, that it could not be amended to such an extent, as would
   denude the Constitution of its identity (paragraph 537). It was
   submitted, that the power to amend, could not result in the
   abrogation of the Constitution, or lead to the framing of a new
 G Constitution, or to alter or change the essential elements of
   the constitutional structure (paragraph 539). It was pointed
   out, that it was not proper, to give a narrow meaning to the
   power vested in the Parliament to amend the Constitution, and
 H at the same time, to give it such a wide meaning, so as to
    SUPREME COURT ADVOCATES-ON-RECORD                               359
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

enable the amending body, to change the structure and identity      A
of the Constitution (paragraph 546). With reference to the
power of judicial review, it was contended, that there was ample
evidence in the Constitution itself, to indicate that a system of
"checks and balances" was provided for, so that none of the
pillars of governance would become so predominant, as to            B
disable the others, from exercising and discharging the
functions entrusted to them. It was submitted, that judicial
review, provided expressly through Articles 32 and 226, was
an incident of the aforestated system of checks and balances
(paragraph 577). Based on the historical background, the            C
preamble, the entire scheme of the Constitution, and other
relevant provisions thereof, including Article 368, it was
submitted that it could be inferred, that the supremacy of the
Constitution, the republican and democratic form of                 D
Government, sovereignty of the country, the secular and federal
character of the Constitution, the demarcation of powers
between the legislature, the executive and the judiciary, the
dignity of the individual secured through the fundamental rights,
and the mandate to build a welfare State (contained in Parts Ill    E
and IV), and the unity and the integrity of the nation, could be
regarded as the "basic elements" of the constitutional structure
(paragraph 582). It was also asserted, that as a society grows,
its requirements change, and accordingly, the Constitution and
the laws have to be changed, to suit the emerging needs. And        F
accordingly, the necessity to amend the Constitution, to adapt
to the changing needs, arises. Likewise, in order to implement
the Directive Principles, it could be necessary to abridge some
of the fundamental rights vested in the citizens. The power to
achieve the above objective needed, a broad and liberal             G
interpretation of Article 368. Having so held, it was concluded,
that even the fundamental rights could be amended (paragraph
634 ). Reference was made to the fact, that the founding fathers
were aware, that in a changing world, there would be nothing
permanent, and therefore; they vested the power of                  H
360        SUPREME COURT REPORTS                  (2015] 13 S.C.R.


A amendment in the Parliament through Article 368, so as to
  keep the Constitution in tune with, the changing concepts of
  politics, economics and social ideas, and to so reshape the
  Constitution, as would meet the requirements of the time
  (paragraph 637). With reference to the above, it was
B contended, that the Parliament did .not have the power to
  abrogate or emasculate the "basic elements" or "fundamental
  features" of the Constitution, such as the sovereignty of India,
  the democratic character of our polity, the unity of the country,
  and the essential elements of the individual freedoms secured
C to the citizens. Despite the above limitations, it was pointed
  out, that the amending power under Article 368 was wide
  enough, to amend every Article of the Constitution, so as to
  reshape the Constitution to fulfill the obligations imposed on
  the State (paragraph 666).And accordingly, it was pointed out,
0
  that while recording conclusions, this Court had observed, that
  the power to amend the Constitution under Article 368 was
  very wide, yet did not include the power to destroy, or
  emasculate the "basic elements" or the "fundamental features"
E of the Constitution (paragraph 744 ).
          (iii). Reference was then made to the observations of
    H.R. Khanna, J. (in the Kesavananda Bharati case 10 ). It was
    pointed out, that from 1950 to 1967 till th is Court rendered the
    judgment in the l.C. Golak Nath case41 , the accepted position
 F was, that the Parliament had the power to amend Part Ill of the
  . Constitution, so as to take away or abridge the fundamental
    rights. Having noticed the fact, that no attempt was made by
    the Parliament to take away or abridge the fundamental rights,
    relating to the liberty of a person, and the freedom of
 G expression, it was recorded, that even in future it could not be
    done. Accordingly, with reference to Article 368, it was sought
    to be concluded, that the Parliament had the power to amend
    Part Ill of the Constitution, as long as the "basic structure" of
 H the Constitution was retained (paragraph 1421 ). If the "basic
    SUPREME COURT ADVOCATES-ON-RECORD                               361
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

structure" of the original Constitution was retained, inasmuch      A
as had the original Constitution continued to subsist, even
though some of its provisions were changed, the power of
amendment would be considered to have been legitimately
exercised (paragraph 1430). And therefore, the true effect of
Article 368 would be, that the Constitution did not vest with the   B
Parliament, the power or authority for drafting a new and
radically changed Constitution, with a different structure and
framework (paragraph 1433). Accordingly, subject to the
retention of the "basic structure or framework" of the
Constitution, the power vested with the Parliament to amend         C
the Constitution was treated as plenary, and would include the
power to add, alter or repeal different Articles of the
Constitution, including those relating to fundamental rights. All
the above measures were included in the Parliament's power          D
of amendment, and the denial of such a broad and
comprehensive power, would introduce rigidity in the
Constitution, as would break the Constitution itself (paragraph
1434).As such, it was held, thatthe amending power conferred
by Article 368, would include the power to amend the                E
fundamental rights, contained in Part Ill of the Constitution
(paragraph 1435). In this behalf, it was asserted, thatthe issue,
whether the amendment introduced would (or would not) be
an improvement over the prevailing position, was not
justiciable. It was asserted, whether the amendment would be        F
an improvement or not, was for the Parliament alone to
determine. And Courts, could not substitute the wisdom of the
legislature, by their own foresight, prudence and understanding
(paragraph 1436). It was asserted, that the amending power
of the Parliament must contain the right to enact legislative       G
provisions, for experiment and trial, so as to eventually achieve
the best results (paragraph 1437). In the ultimate analysis, it
was held, that the amendment of the Constitution had a wide
and broad connotation, and would embrace within itself, the
                                                                    H
362         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     total repeal of some of the Articles, or their substitution by new
      Articles, which may not be consistent, or in conformity with other
      Articles. And a Court while judging the validity of an
      amendment, could only concern itself with the question, as to
      whether the constitutional requirements for making the
 B    amendment had been satisfied? And accordingly, an
      amendment, made in consonance with the procedure
      prescribed, could not be struck down, on the ground that it
      was a change for the worst (paragraph 1442). While examining
      the question, whether the right to property could be included in
 C    the "basic l'!tructure or framework" of the Constitution, the
      answer rendered was in the negative. It was held, that in
      exercising the power of judicial review, Courts could not be
      oblivious of the practical needs of the Government. And that,
      the power of amendment could be exercised even for trial and
 D
      error, inasmuch as opportunity had to be allowed for vindicating
       reasonable belief by experience (paragraph 1535). It was
       contended, that no generation had a monopoly to wisdom, nor
      the right to place fetters on future generations, nor to mould
 E     the machinery of Government, keeping in mind eternal good.
       The possibility, that the power of amendment may be abused,
       furnished no ground for denial of its existence. According to
       the Attorney General, it was therefore not correct to assume,
       that if the Parliament was held entitled to amend Part Ill of the
 F     Constitution, it would automatically and neces·sarily result in
       abrogation of the fundamental rights. Whilst concluding, that
       the right to property did not pertain to the "basic structure or
       framework" of the Constitution, it was held, that power of
       amendment under Article 368 did not include the power to
 G     abrogate the Constitution, or to alter the "basic structure or
       framework" of the Constitution. Despite having so concluded,
       it was held, that no part of the fundamental rights could claim
       immunity, from the power of amendment (paragraph 1537).
            78. Reference was then made to the judgments rendered
 H
    SUPREME COURT ADVOCATES-ON-RECORD                          363
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

by this Court in Indira Nehru Gandhi v. Raj Narain 56 , Waman A
Rao v. Union of lndia57 , and the M. Nagaraj case 36 , to contend,
that the "basic structure" of the Constitution was to be
determined, on the basis of the features which existed in the
text of the original enactment of the Constitution, on the date
of its coming into force. It was therefore pointed out, that the B
subsequent amendments to the Constitution, could not be
taken into consideration, to determine the "basic features" of
the Constitution.
      79. Having laid down the aforestated foundation, the      c
learned Attorney General submitted, that that reference could
only be made to Articles 124 and 217, as they originally
existed, when the Constitution was promulgated. If the original
provisions were to be taken into consideration, according to
the learned Attorney General, it would be apparent that the D
above Articles, expressed that the right to make appointments
of Judges to the higher judiciary, being limited only to a
"consultative" participation of the judiciary, was in the
determinative domain of the executive. It was pointed out, that
on the subject of appointment of Judges to the higher judiciary, E
the primacy of the Chief Justice of India, through the collegium
process, was an innovation of the judiciary itself (in the Second
Judges case). The above primacy, was alien to the provisions
of the Constitution, as originally enacted. And as such, the
an:iendment to Article 124, and the insertion of Articles 124A F
to 124C therein, could not be examined on the touchstone of
material, which was in stark contrast with the plain reading of
Articles 124 and 217 (as they were originally enacted). It was
accordingly asserted, that the present challenge to the
Constitution (99th Amendment) Act, would not fall within the G
defined parameters of the "basic structure" concept,
elaborated extensively by him (as has been recorded by us,

  ' (1975) Supp sec 1
5

" (1981) 2 sec 362                                              H
364         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     above). The prayers made by the petitioners on the instant
      ground were therefore, according to the learned Attorney
      General, liable to be rejected.
             80. Having traveled thus far, it was pointed out, that it
 B    was important to understand the true purport and effect of the
      term "independence of the judiciary". In this behalf, in the first
      instance, the Court's attention was invited to, the First Judges
      case, wherein reference was made to the opinion expressed
      by E.S. Venkataramiah, J. (as he then was), who had taken
 c    the view, that it was difficult to hold, that merely because the
      power of appointment was with the executive, the
      "independence of the judiciary" would be compromised. In
      stating so, it was emphasized, that the true prlnciple was, that
      after such appointment, the executive should have no scope,
 o    to interfere with the work of a Judge (paragraph 1033). Based
      thereon, it was asserted, that the independence of a Judge
      would not stand compromised, if after his appointment, the
      role of the executive, to deal with him, is totally excluded.
      Reference was then made to the opinion expressed by P.N.
 E    Bhagwati, J. (as he then was) (in the same judgment), to the
      effect, that the concept of "independence of the judiciary", was
      not limited only to independence from executive pressure/
      influence, but was relatable to many other pressures and
      prejudices. And in so recording, it was held, that
 F     "independence of the judiciary" included fearlessness of the
       other power centres, economic or political, and freedom from
      prejudices acquired and nourished by the class to which the
       Judges belonged (paragraph 1037). Based thereon, it was
       asserted, that "independence of the judiciary", included
 G     independence from the influence of other Judges as well. And
       as such, it was concluded, that the composition of the NJAC
       was such, as would ensure the independence of the Judges
       appointed to the higher judiciary, as contemplated in the First
 H     Judges case.
    SUPREME COURT ADVOCATES-ON-RECORD                                   365
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      81. In conjunction with the issue of"independence of the A
judiciary", which flows out of the concept of "separation of
powers", it was pointed out, that the scheme of the Constitution
envisaged a system of checks and balances. Inasmuch as,
each organ of governance while being allowed the freedom to
discharge the duties assigned to it, was subjected to controls,         B
at the hands of one of the other organs, or both of the other
organs. Illustratively, it was sought to be contended, that all
executive authority, is subject to scrutiny through judicial review
(at the hands of the judiciary). Likewise, legislation enacted
by the Parliament, or the State legislatures, is also subject to        C
judicial review, (at the hands of the judiciary). Even though,
the executive and the legislature have the freedom to function
and discharge their individual responsibilities, without
 interference by the other organ(s) of governance, yet the              D
judiciary has been vested with the responsibility to ensure, that
the exercise of executive and legislative functions, is in
 consonance with law. Likewise, it was submitted, that in the
 matter of appointment of Judges, Articles 124 and 217
 provided for executive control, under the scheme of checks             E
 and balances. It was submitted, that the instant scheme of
 checks and balances, was done away with, by the Second
 and Third Judges cases, in the matter of appointment of
 Judges to the higher judiciary. It was asserted, that the position
 of checks and balances has been restored by the Constitution           F
 (99th Amendment) Act, by reducing the role of the executive,
 from the position which existed at the commencement of the
 Constitution. Referring to the decisions in the Kesavananada
 Bharati case 10 , the Indira Nehru Gandhi case 56 , the
 Sankalchand Himatlal Sheth case 5 , Asif Hameed v. State of            G
 Jammu and Kashmir58 , State of Bihar v. Bihar Distillery
 Limited 59 , and"Bhim Singh v. Union of lndia 13 , it was submitted,
 that this Court had recognized, that the concept of checks and
    • 1989 supp (2) sec 364
  5

  5• , (1997) 2 sec 453
                                                                        H
366        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A balances, was inherent in the scheme of the Constitution. And
  that, even though the legislature, the executive and the judiciary
  were required to function within their own spheres demarcated
  through different Articles of the Constitution, yettheir attributes
  could never be in absolute terms. It was submitted, that each
B wing of governance had to be accountable, and till the principle
  of accountability was preserved, the principle of "separation
  of powers" would not be achievable. It was therefore
  contended, that the concept of "independence of the judiciary",
  could not be gauged as an absolute end, overlooking the
C checks and balances, provided for in the scheme of the
  Constitution.
         82. Having so asserted, it was contended, that in the
   matter of appointment of Judges to the higher judiciary, the
 o most important and significant feature was, that no unworthy
   or doubtful appointment should go through, even though at
   times, the candidature of a seemingly good candidate, may
   not be accepted. It was asserted, that the NJAC had provided
   for a complete protection, in the sense noticed hereinabove,
 E by providing in the procedure of appointment, that a negative
   view expressed by any of the two Members of the NJAC, would
   result in the rejection of the concerned candidate. Therefore,
   merely two Members of the NJAC, would be sufficient to veto
   a proposal for appointment. It was submitted, that since three
 F Members of the NJAC were Judges of the Supreme Court,
   their participation in the NJAC would ensure, that
   "independence of the judiciary" remained completely
   safeguarded and secured. It was therefore contended, that
   not only the Constitution (99th Amendment) Act, but also the
 G NJACAct fully satisfied the independence criterion, postulated
   as a "basic structure" of the Constitution.
         83. In order to reiterate the above position, it was
   asserted, that primacy in the matter of appointment of Judges
 H to the higher judiciary, was not contemplated in the Constitution,
    SUPREME COURT ADVOCATES-ON-RECORD                                367
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

as originally framed. In this behalf, reference was made to          A
Articles 124 and 217. And in conjunction therewith, adverting
to the debates on the subject, by Members of the Constituent
Assembly. Thereupon, it was asserted, that the issue of primacy
of the Chief Justice, based on a decision by a collegium of
Judges, was a judicial innovation, which required                    B
reconsideration. Moreover, it was submitted, that the Second
and Third Judges cases, were founded on the interpretation
of Articles of the Constitution, which had since been amended,
and as such, the very basis of the Second and Third Judges
cases, no longer existed. Therefore, the legal position declared     C
in the above judgments, could not constitute the basis, of the
contentions advanced at the hands of the petitioners.
Furthermore, even if the ratio recorded by this Court in the
Second and Third Judges cases, was still to be taken into            D
consideration, conclusions (5), (6) and (7) recorded by J.S.
Verma, J. (who had transcripted the majority view), show that
the primacy of the judiciary was to ensure, that no appointment
could be made to the higher judiciary, unless it had the approval
of the collegium. It was submitted, that the instant aspect, which   E
constituted the functional basis for ensuring "independence of
the judiciary", had been preserved in the impugned
constitutional amendment, and the NJAC Act. It was accordingly
contended, that if the right to insist on the appointment of a
candidate proposed by the judiciary, was taken away, from            F
the Chief Justice of India {based on a decision of a collegium
of Judges), the same would not result, in the emasculation of
the "basic structure" of the Constitution. In other words, the
same would not violate the "essential and fundamental
features" of the Constitution, nor in the least, the "independence   G
of the judiciary''.
     84. Based on the above submissions, the learned
Attorney General invited the Court's attention to the primary
contention advanced by the petitioners, namely, that even if all
                                                                     H
368        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A  the three Judges of the Supreme Court who are now ex officio
   Members of the NJAC, collectively recommended a nominee,
   such recommendation could be annulled, by the non-Judge
   Members of the NJAC. Learned Attorney General submitted,
   that the above contention was limited to the right to "insist" on
 B an appointment. And that, the right to "insist" did not flow from
   the conclusions recorded in the Second and Third Judges
   cases. And further, that the same cannot, by itself, be taken as
   an incident to establish a breach of the "independence of the
   judiciary".
c
          85. Insofar as the Second and Third Judges cases are
   concerned, it was submitted, that the same may have been
   the need of the hour, on account of the fact that in 1976, sixteen
   Judges were transferred (from the High Courts in which they
 o were functioning), to other High Courts. In the Sankalchand
   Himatlal Sheth cases, one of the transferred Judges challenged
   his transfer, inter alia, on the ground, that his non-consensual
   transfer was outside the purview of Article 222, as the same
   would adversely affect the "independence of the judiciary".
 E Irrespective of the determination rendered, on the challenge
   raised in the Sankalchand Himatlal Sheth cases, it was pointed
   out, the very same question came to be re-agitated in the First
   Judges case. It was held by the majority, while interpreting
   Article 222, that the consent of the Judge being transferred,
 F need not be obtained. It was also pointed out, that ever since
   the inception of the Constitution, the office of the Chief Justice
   of India, was occupied by the senior most Judge of the
   Supreme Court. The above principle was departed from in
   April 1973, as the next senior most Judge- J.M. Shelat, was
 G not elevated to the office of the Chief Justice of India. Even
   the next two senior most Judges, after him - K.S. Hegde and
   A.N. Grover, were also ignored. The instant supersession by
   appointing the fourth senior most Judge -A.N. Ray, as the
   Chief Justice of India, was seen as a threat to the
 H
    SUPREME COURT ADVOCATES-ON-RECORD                               369
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEFIAR, J.]

"independence of the judiciary". Again in January 1977, on the A
retirement of A.N. Ray, CJ., the senior most Judge immediately
next to him - H.R. Khanna, was ignored and the second senior
most Judge- M.H. Beg, was appointed, as the Chief Justice
of India. In the above background, the action of the executive,
came to be portrayed as a subversion of the "independence B
of the judiciary". It was in the above background, that this Court
rendered the Second and Third Judges cases, but the
implementation of the manner of appointment of Judges to
the higher judiciary, in consonance therewith, had been subject
to, overwhelming and all around criticism, including being C
adversely commented upon by J.S. Verma, CJ., the author of
the majority view in the Second Judges case, after his
retirement. In this behalf, the Court's attention was invited to
his observations, extracted hereunder:
                                                                    D
      "My 1993 Judgment which holds the field was very much
      misunderstood and misused. It was in this context, that I
      said that the working of the judgment, now, for some time,
      is raising serious questions, which cannot be called
      unreasonable. Therefore, some kind of re-think is required.   E
      My Judgment says the appointment process of High Court
      and Supreme Court Judges is basically a joint or
      participatory exercise. between the Executive and the
      Judiciary, both taking part in it."
      It was therefore contended, that in the changed scenario,     F
this Court ought to have, at its own, introduced measures to
negate the accusations leveled against the prevailing system,
of appointment of Judges to the higher judiciary. Since no
such remedial measures were adopted by the judiciary of its
own, the legislature had brought about the Constitution (99th       G
Amendment) Act, supplemented by the NJAC Act, to broad
base the process of selection and appointment, of Judges to
the higher judiciary, to make it transparent, and to render the
participants accountable.
                                                                    H
370         SUPREME COURT REPORTS                    [2015) 13S.C.R.


A            86. Having dealt with the constitutional aspect of the
      matter, the learned Attorney General invited the Court's
      attention, to the manner in which judicial appointments were
      being made in fifteen countries. It was submitted, that in nine
      countries Judges were appointed either through a Judicial
B     Appointment Commission (Kenya, Pakistan, South Africa and
      U.K.), or Committee (Israel), or Councils (France, Italy, Nigeria
      and Sri Lanka). In four countries, Judges were appointed
      directly by the Governor General (Australia, Canada and New
      Zealand), or the President (Bangladesh). It was submitted,
C     that in Germany appointment of Judges was made through a
      multistage process of nomination by the Minister of Justice,
      and confirmation by Parliamentary Committees, whereupon,
      the final order of appointment of the concerned individual, is
      issued by the President. In the United States of America,
 0
      Judges were appointed through a process of nomination by
      the President, and confirmation by the Senate. It was
      submitted, that in all the fifteen countries referred to above,
      the executive was the final determinative/appointing authority.
 E    Insofar as the appointments made by the Judicial
      Appointments Commissions/Committees/Councils (referred
      to above) were concerned, out of nine countries with
      Commissions, in two countries (South Africa and Sri Lanka)
      the executive had overwhelming majority, in four countries
 F    (France, Israel, Kenya and U.K.) there was a balanced
      representation of stakeholders including the executive, in three
      countries (Italy, Nigeria and Pakistan) the number of Judges
      was in a majority. In the five countries without Commissions/
      Committees/ Councils (Canada, Australia, New Zealand,
 G    Bangladesh and the United States of America), the decision
      was taken by the executive, without any formal process of
      consultation with the judiciary. It was pointed out, that in
      Germany, the appointment process was conducted by the
       Parliament, and later confirmed by the President. It was pointed
 H    out, that the judiciary in all the countries referred to above, was
    SUPREME COURT ADVOCATES-ON-RECORD                                371
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

totally independent. Based on the above submissions, it was          A
contended, that the manner of selection and appointment of
Judges, could not be linked to the concept of "independence
of the judiciary". It was submitted, that the judicial functioning
in the countries referred to above, having been accepted as
more than satisfactory, there is no reason, that the system of       B
appointment introduced in India, would be adversely impacted
by a singular representative of the executive in the NJAC. It
was therefore asserted, that the submissions advanced at the
hands of the petitioners, were not acceptable, even with
reference to the experience of other countries, governed             C
through a constitutional framework (some of them, of the
Westminster Model).
      87. It was further asserted, that the absence of the
absolute majority of Judges in the NJAC, could not lead to the D
inference, that the same was violative of the "basic structure"
of the Constitution, so as to conclude, that it would impinge
upon the "independence of the judiciary". It was asserted, that
the representation of the judiciary in the NJAC, was larger than
that of the other two organs of the governance, namely, the E
executive and the legislature. In any case, given the
representation of the judiciary in the NJAC, it was fully
competent, to stall the appointment of a candidate to the higher
judiciary, who was considered by the judicial representatives,
as unsuitable. Any two, of the three representatives of the F
judiciary, were sufficient to veto any appointment supported
by others.
       88. It was further submitted, that the NJAC was broad
based with representatives from the judiciary, the executive G
and the "two eminent persons", would not fall in the category of
jurists, eminent legal academicians, or eminent lawyers. It was
contended, that the intention to include "eminent persons", who
.had no legal background was to introduce, in the process of
 selection and appointment of Judges, lay persons in the same H
372          SUPREME COURT REPORTS                    [2015) 13 S.C.R.


A     manner, as has been provided for in the Judicial Appointments
      Commission, in the United Kingdom.
             89. It was also the contention of the learned Attorney
      General, that this would not be the first occasion. when such
      an exercise has been contemplated by parliamentary
8
      legislation. The Court's attention was drawn to the Consumer
      Protection Act, 1986, wherein the highest adjudicatory authority
      is, the National Consumer Disputes Redressal Commission.
      It was pointed out, that the above Redressal Commission,
c     comprised of Members, with and without a judicial background.
      The President of the National Consumer Disputes Redressal
      Commission has to be a person, who has been a Judge of the
      Supreme Court. Illustratively, it was contended, where a matter
      is being adjudicated upon by a three-Member Bench, two of
o     the Members may not be having any judicial background.
      These two non-judicial Members, could overrule the view
      expressed by a person, who had been a former Judge in the
      higher judiciary. It was submitted, that situations of the above
      nature, do sometimes take place. Yet, such a composition for
E     adjudicatory functioning, where the Members with a judicial
      background are in a minority, is legally and con~titutionally valid.
      If judicial independence cannot be held to be compromised in
      the above situation, it was asserted, that it was difficult to
      understand how the same could be considered to be
 F    compromised in a situation, wherein the NJAC has three out
      of its six Members, belonging to the judicial fraternity.
        90. It was sought to be suggested, that the primacy of
  the judiciary, in the matter of appointment of Judges to the higher
G judiciary, could not be treated as a part of the "basic structure"
  of the Constitution. Furthermore, the lack of absolute majority
  of Judges in the NJAC, would also not tantamount to the
  constitutional amendment being rendered violative of the
  "basic structure". In the above view of the matter, it was
H asserted, that the submissions advanced at the hands of the
    SUPREME COURT ADVOCATES-ON-RECORD                                  373
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

learned counsel representing the petitioners, on the aspect of A
violation of the "basic structure" of the Constitution, by
undermining the "independence of the judiciary", were liable
to be rejected.
       91. With reference to the inclusion of two "eminent             B
persons'', in the six-Member NJAC, it was submitted, that the
general public was the key stakeholder, in the adjudicatory
process. And accordingly, it was imperative to ensure their
participation in the selection/appointment of Judges to the
higher judiciary. Their participation, it was submitted, would         c
ensure sufficient diversity, essential for rightful decision making.
It was submitted, that in the model of the commission
suggested by M.N. Venkatachaliah, CJ., the participation of
one eminent person was provided. He was to be nominated
by the President, in consultation with the Chief Justice of India.     D
In the 2003 Bill, which was placed before the Parliament, the
proposed Judicial Commission was to include one eminent
person, to be nominated by the executive. The 2013 Bill, which
was drafted by the previous political dispensation - the U. P.A.
Government, the Judicial Commission proposed, was to have              E
two eminent persons, to be selected by the Prime Minister,
the Chief Justice of India and the Leader of the Opposition in
the Lok Sabha. The 2014 Bill, whicl'lwas drafted by the present
political dispensation-the N.D.A. Government, included two
eminent persons, to be selected in just about the same manner          F
as was contemplated under the 2013 Bill. The variation being,
that one of the eminent persons was required to belong to the
Scheduled Castes, or the Scheduled Tribes, or Other
Backward Classes, or Minorities, or Women, thereby fulfilling
the obvious social obligation. It was submitted, that their            G
participation in the deliberations, for selection of Judges to
the higher judiciary, could not be described as adversarial to
the judicial community. Their participation would make the
process of appointment, more broad based.
                                                                       H
374       SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A          92. While responding to the submissions, advanced at
   the hands of the learned counsel for the petitioners, to the effect
   that the Constitution (99th Amendment) Act, did not provide
   any guidelines, reflecting upon the eligibility of the "eminent
    persons'', to be nominated to the NJAC, and as such, was
B liable to be struck down, it was submitted, that the term
   "eminent person" was in no way vague. It meant- a person
    who had achieved distinction in the field of his expertise.
    Reference was also inade to the debates of the Constituent
    Assembly, while dealing with the term "distinguished jurist'',
C contained in Article 124(3), it was pointed out, that the term
    "distinguished person" was not vague. In the present situation,
    it was submitted, that since the selection and nomination of
    "eminent persons", was to be in the hands of high constitutional
    functionaries (no less than the Prime Minister, the Chief Justice
0
   .of India and the Leader of the Opposition in the Lok Sabha), it
    was natural to assume, that the person(s) nominated, would
    be chosen, keeping in mind the obligation and the
    responsibility, that was required to be discharged. Reliance in
E this behalf, was placed on the Centre for Public Interest
    Litigation case 43 , to assert, that it was sufficient to assume,
  . that such a high profile committee, as the one in question, would
    exercise its powers objectively, and in a fair and reasonable
    manner. Based on the above, it was contended, that it was
F well seWed, that mere conferment of wide discretionary powers,
    would not vitiate the provision itself.
         93. Referring to the required qualities of a Judge
   recognized in the Indian context, as were enumerated in the
   "Bangalore Principles of Judicial Conduct", and thereupon
 G accepted the world over, as revised at the Round Table Meeting
   of Chief Justices held at The Hague, in November 2002, it
   was submitted, that the two "eminent persons" would be most
   suited, to assess such matters, with reference to the nominees
   under consideration. Whilst the primary responsibility of the
 H Members from the judiciary would be principally relatable to,
    SUPREME COURT ADVOCATES-ON-RECORD                                375
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

ascertaining the judicial acumen of the candidates concerned,        A
the responsibility of the executive would be, to determine the
character and integrity of the candidate, and the inputs, whether
the candidate possessed the values, expected of a Judge of
the higher judiciary, would be that of "eminent persons" in the
NJAC. It was therefore asserted, that the two "eminent               B
persons" would 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
qualifications. It was submitted, that the instant broad based
composition of the NJAC, was bound to be more suitable, than         C
the prevailing system of appointment of Judges. Relying upon
the R. Gandhi case 38 , it was submitted, that it would not be
proper to make appointments, by vesting the process of
selection, with an isolated group, or a selection committee          D
dominated by representatives of a singular group - the
judiciary. In a matter of judicial appointments, it was submitted,
the object ought to be, to pick up the best legally trained minds,
coupled with a qualitative personality. For this, according to
the Attorney General, a collective consultative process, would       E
be the most suitable. It was pointed out, that "eminent
 persons", having no nexus to judicial activities, would introduce
 an element of detachment, and would help to bring in
 independent expertise, to evaluate non-legal competencies,
from an ordinary citizen's perspective, and thereby, represent       F
 all the stakeholders of the justice. delivery system. It was
 contended, that the presence of "eminent persons" was
 necessary, to ensure the representative participation of the
 general public, in the selection and appointment of Judges to
 the higher judiciary. Their presence would also ensure, that        G
 the selection process was broad based, and reflected sufficient
 diversity and accountability, and in sync with the evolving
 process of selection and appointment of Judges, the world over.
     94. The learned Attorney General, then addressed the
issue of inclusion of the Union Minister in charge of Law and        H
376         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     Justice, as an ex officio Member in the NJAC. Reference was
      first made to Articles 124 and 217, as they were originally
      enacted in the Constitution. It was submitted, that originally,
      the power of appointment of Judges to the higher judiciary,
      was exclusively vested with the President. In this behalf reliance
B     was placed on Article 74, whereunder the President was
      obliged to act on the aid and advice of the Council of Ministers,
      headed by the Prime Minister. It was pointed out, that the above
      position, was so declared, by the First Judges case. And as
      such, from the date of commencement of the Constitution, the
C     executive had the exclusive role, in the selection and
      appointment of Judges to the higher judiciary. It was asserted,
      that the position was changed, for the first time, in 1993 by the
      Second Judges case, wherein the term "consultation", with
      reference to the Chief Justice of India, was interpreted as
 0
      "concurrence". Having been so interpreted, primacy in the
      matter of appointment of Judges to the higher judiciary, came
      to be transferred from the executive, to the Chief Justice of
       India (based on a collective decision, by a collegium of Judges).
 E     Despite the above, the Union Minister in charge of Law and
      Justice, being a representative of the executive, continued to
       have a role in the selection process, though his involvement
      was substantially limited, as against the responsibility assigned
      to the executive under Articles 124 and 217, as originally
 F     enacted. It was pointed out, that by including the Union Minister
       in charge of Law and Justic~. as a Member of the NJAC, the
       participatory role of the executive, in the matter of selection
       and appointment of Judges to the higher judiciary, had actually
       been diminished, as against the original position. Inasmuch
 G     as, the executive role in the NJAC, had been reduced to one
       out of the six Members of the Commission. In the above view
       of the matter, it was asserted, that it was unreasonable for the
       petitioners to grudge, the presence of the Union Minister in
       charge of Law and Justice, as a Member of the NJAC.
 H
    SUPREME COURT ADVOCATES-ON-RECORD                          377
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR. J.]

       95. Insofar as the inclusion of the Union Minister in the A
NJAC is concerned, it was submitted, that there could be no
escape from the fact, that the Minister in question, would be
the connect between the judiciary and the Parliament. His
functions wouid include, the responsibility to inform the
Parliament, about the affairs of the judicial establishment. It B
was submitted, that his exclusion from the participatory process,
would result in a lack of coordination between the two important
pillars of governance. Furthermore, it was submitted that the
Minister in question, as a member of the executive, will have
access to, and will be able to, provide the NJAC with all the C
relevant information, about the antecedents of a particular
candidate, which the remaining Members of the NJAC are
unlikely to have access to. This, according to the learned
Attorney General, would ensure, that the persons best suited D
to the higher judiciary, would be selected. Moreover, it was
submitted, that the executive was a key stakeholder in the
justice delivery system, and as such, it was imperative for him
to have, a role in the process of selection and appointment of
Judges, to the higher judiciary.
                                                                E
      96. The learned Attorney General allayed all fears, with
reference to the presence of Union Minister, in the NJAC, by
asserting that he would not be in a position to politicize the
appointments, as he was just one of the six-Members of the
NJAC. And that, the other Members would constitute an F
adequate check, even if the Minister in question, desired to
favour a particular candidate, on political considerations. This
submission was made by the learned Attorney General,
keeping in mind the assumed fear, which the petitioners had
expressed, on account of the political leanings of the Union G
Minister, with the governing political establishment. It was
accordingly asserted, that the presence of one member of the
executive, in a commission of six Members, would not impact
the "independence of the judiciary", leading to the clear and
                                                                H
378         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     unambiguous conclusion, that the presence of the Union
      Minister in charge of Law and Justice in the NJAC, would not
      violate the "basic structure" of the Constitution.
             97. Referring to the judgment rendered by this Court, in
      the Madras Bar Association case 35 , it was submitted that, for
8     the tribunal in question, the participation of the executive in the
      selection of its Members, had been held to be unsustainable,
      because the executive was a stakeholder in each matter, that
      was to be adjudicated by the tribunal. It was submitted, that
C     the above position did not prevail insofar as the higher judiciary
      was concerned, since the stakeholders before the higher
      judiciary were diverse. It was, therefore, submitted, that the
      validity of the NJAC could not be assailed, merely on the ground
      of presence of the Union Minister, as an ex officio Member of
 D    the NJAC.
             98. The manner of appointment of Judges to the higher
      judiciary, through the NJAC, it was asserted, would have two
      major advantages. It would introduce transparency in the
      process of selection and appointments of Judges, which had
 E    hitherto before, been extremely secretive, with the civil society
      left wondering about, the standards and the criterion adopted,
      in determining the suitability of candidates. Secondly, the NJAC
      would diversify the selection process, which would further lead
      to accountability in the matter of appointments. It was
 F     submitted, that not only the litigating public, or the practicing
       advocates, but also the civil society, had the right to know. It
       was pointed out, that insofar as the legislative process was
       concerned, debates in the Parliament are now in the public
       domain. The rights of individuals, determined at the hands of
 G    the executive, have been transparent under the Right to
       Information Act, 2005. It was submitted that likewise, the
       selection and appointment of Judges to the higher judiciary,
       must be known to the civil society, so as to ir:itroduce not only
 H    fairness, but also a degree of assurance, that the best out of
       SUPREME COURT ADVOCATES-ON-RECORD                              379
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

those willing, were being appointed as Judges.                        A
       99. Referring to Article 124A(2) inserted through the
Constitution (99th Amendment) Act, it was asserted, that a
constitutional process could not be held up, due to the
unavailability (and/or the disability) of one or more Members
of the NJAC. So that a defect in the constitution of the NJAC,        B
or any vacancy therein, would not impact the process of
selection and appointment of Judges to the higher judiciary.
Article 124A(2) provided, that the proceedings of the NJAC
would not be questioned or invalidated on account of a vacancy        C
or a defect in the composition of the NJAC. It was contended,
that it was wrongful for the petitioners to frown on Article
124A(2), as there were a number of statutory enactments with
similar provisions. In this behalf, the Court's attention was inter
alia drawn to Section 4(2), of the Central Vigilance Commission       D
Act 2003, Section 4(2), of the Lokpal and LokayuktasAct 2013,
Section 7, of the National Commission for Backward Classes
Act 1993, Section 29A, of the Consumer Protection Act 1986,
Section 7, of the Advocates Welfare Act 2001, Section 8, of
the University Grants Commission Act 1956, Section 9, of the          E
Protection of Human Rights Act 1993, Section 7, of the National
Commission for Minorities Act 1993, Section 8, of the National
Commission for Minority Educational Institutions Act 2004,
Section 24, of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)Act        F
1995, and a host of other legislative enactments of the same
nature. Relying on the judgments in Bangalore Woollen, Cotton
and Silk Mills Co. Ltd. v. Corporation of the City of Bangalore60 ,
Khadim Hussain v. State of U.P. 61, B.K. Srinivasan v. State of
Karnataka 62 , and People's Union for Civil Liberties v. Union of     G
lndia63 , it was asserted, that on an examination of provisions
60 (1961) 3 SCR 707
" (1976) 1 sec 843
6, (1987) 1 sec 658
•3 (2005) 5 sec 363                                                   H
380         SUPREME COURT REPORTS                   [2015] 13S.C.R.


A     of similar nature, this Court had repeatedly held, that modern
      legislative enactments ensured, that the defects of procedure,
      which do not lead to any substantial prejudice, are statutorily
      placed beyond the purview of challenge. It was accordingly
      asserted, that invalidity on account of a technical irregularity,
 B    being excluded from judicial review, the submissions advanced
      on behalf of the petitioners, on the constitutional validity of
      clause (2) of Article 124A, deserved an outright rejection.
         100. It was the contention of the learned Attorney General,
C that the NJAC did not suffer from the vice of excessive
  delegation. It was sought to be reiterated, that the power of
  nomination of "eminent persons" was securely and rightfully
  left to the wisdom of the Prime Minister of India, the Chief
  Justice of India and"the Leader of the Opposition in the
0 Parliament. It was submitted, that the parameters expressed
  in Sections 5 and 6 of the NJACAct, delineating the criterion
  for selection, by specifically providing, that ability, merit and
  suitability would expressly engage the attention of the NJAC,
  while selecting Judges for appointment to the higher judiciary,
E clearly laid out the parameters for this selection and
  appointment process. It was submitted, that the modalities to
  determine ability, merit and suitability would be further detailed
  through rules and regulations. And that, factors such as, the
  minimum number of years of practice at the Bar, the number
F and nature of cases argued, academic publications in reputed
  journals, the minimum and maximum age, and the like, would
  be similarly provided for. All these clearly defined parameters,
  it was contended, would make the process of selection and
  appointment of Judges to the higher judiciary transparent, and
G would also ensure, that the candidates to be considered, were
  possessed of the minimum desired standards. It was
   submitted, that the Memorandum of Procedure for Appointment
  and Transfer of Chief Justices and Judges of the High Courts,
  as also, for elevation of Judges to the Supreme Court, were
 H
    SUPREME COURT ADVOCATES-ON-RECORD                        381
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

bereft of any such particulars, and the absence of any A
prescribed criterion, had resulted fn the appointment of Judges,
even to the Supreme Court, which should have ordinarily been
avoided. The learned Attorney General made a reference to
three instances, which according to him, were universally
condemned, by one and all. One of the Judges appointed to B
this Court, according to him, was a non-performer as he had
authored just a few judgments as a Judge of the High Courts·
of Delhi and Kerala, and far lesser judgments as the Chief
Justice of the Uttarakhand and Karnataka High Courts, and
less than ten judgments during his entire tenure as a Judge of C
the Supreme Court. The second Judge, according to him,
was notoriously late in commencing Court proceeding, a habit
which had persisted with the said Judge even as a :Judge of
the Patna and Rajasthan High Courts, and thereafter, as the
Chief Justice of the Jharkhand High Court, and also as a Judge D
of the Supreme Court. The third Judge, according to the ·
learned Attorney General, was notoriously described as a
tweeting Judge, because of his habit of tweeting his views,
after he had retired. Learned counsel for the respondents, E
acknowledged having understood the identity of the Judges
from their above description by the learned Attorney General,
and also affirmed the factual position asserted in respect of
the Judges mentioned. The learned Attorney General also
handed over to us a compilation (in a sealed cover) about F
appointments of Judges made to different High Courts, despite
the executive having expressed an adverse opinion. The
compilation made reference to elevation of five Judges to High
Courts (-two Judges to the Jam mu and Kashmir High Court,
one Judge to.the Punjab and Haryana High Court,. one Judge G
to the Patna High Court, and one Judge to the Calcutta High
Court) and three Judges to the Supreme Court. It .may be
clarified that the objection with reference to the Supreme Court
Judges was notrelated to their suitability, but for the reason
that some High Courts were unrepresented in the Supreme H
382         SUPREME COURT REPORTS ·               [2015] 13 S.C.R.


A     Court. We would therefore understand the above position as
      covering the period from 1993 till date. But it was not his
      co-ntention, that these elevations had proved to be wrongful.
      We may only notice, that two of the three Supreme Court
      Judges referred to, were in due course elevated to the high
B     office of Chief Justice of India.
         101. The learned Attorney General vehemently contested
  the assertion made by the learned counsel representing the
  petitioners, that the power to frame rules and regulations for
c the functioning of the NJAC was unguided, inasmuch as,
  neither the constitutional amendment nor the legislative
  enactment, provided for any parameters for framing the rules
  and regulations, pertaining to the criterion of suitability. In this
  behalf, it was submitted, that sufficient guidelines were
o ascertainable from Articles 124B and 124C. Besides the
  aforesaid, the Court's attention was drawn to Sections 5(2),
  6(1) and 6(3) of the NJAC Act, wherein the parameters of
  suitability for appointment of Judges had been laid down. In
  th is behalf, it was also asserted, that Article 124, as originally
E enacted, had laid down only basic eligibility conditions, for
  appointment of Judges to the higher judiciary, but no suitability
  criteria had been expressed. It was also asserted, that the
  procedure and conditions for appointment of Judges, were
  also not prescribed. As against the above, it was pointed out,
F that Articles 124B and 124C and Sections 5(2), 6(1) and 6(3)
  of the NJAC Act, clearly laid down conditions and guidelines
  for determining the suitability of a candidate for appointment
  as a Judge. On the basis of the aforementioned analysis, it
  was submitted, that neitherthe constitutional am·endment was
G violative of the "basic structure", nor the NJAC Act, was
  constitutionally invalid. For the above reasons, it was asserted,
  that the challenge raised by the petitioners was liable to be
  rejected.

 H
        SUPREME COURT ADVOCATES-ON-RECORD                               383
      ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

          102. In response to the technical submission advanced         A
    by Mr. Fali S. Nariman, namely, that since the Constitution (99th
    Amendment) Act, was brought into force, consequent upon the
    notification issued by the Central Government in the Official
    Gazette on 13.4.2015, the consideration of the NJAC Bill and
    the passing of the NJAC Act, prior to the coming into force of B
    the Constitution (99th Amendment)Act, would render it null and
    void, the learned Attorney General invited our attention to Article
    118, which authorizes, each House of Parliament, to make rules
    for regulating their procedure, in the matter of conducting their
    business. It was pointed out, that Rules of Procedure and the c
    Conduct of Business of the Lok Sabha, had been duly enacted
    by the Lok Sabha. A relevant extract of the aforesaid rules was
    handed over to us. Rule 66 thereof, is· being extracted
    hereunder:
                                                                          D
            "66. A Bill, which is dependent wholly or partly upon another
            Bill pending before the House, may be introduced in the
            House in anticipation of the passing of the Bill on which it
            is dependent:
             Provided that the second Bill shall be taken up for E
            consideration and passing in the House only after the first
            Bill has been passed by the Houses and assented to by
            the President."
           Referring to the proviso under Rule 66, it was
    acknowledged that the rule read independently, fully justified F
    the submissions of Mr. Fali S. Nariman. It was however pointed
    out, that it was open to the Parliament to seek a suspension of
    the above rule under Rule 388. Rule 388 is also extracted
    hereunder:
                                                                         G
            "388. Any member may, with the consent of the Speaker,
            move that any rule may be suspended in its application to
"           a particular motion before the House and if the motion is
            carried the rule in question shall be suspended for the time
            being."
                                                                         H
384         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     The learned Attorney General then handed over to us, the
      proceedings of the Lok Sabha dated 12.8.2014, inter a/ia,
      including the Constitution (121 st Amendment) Bill, and the
      NJAC Bill. He invited our attention to the fact, that while moving
      the motion, the then Union Minister in charge of Law and Justice
 B    had sought, and was accorded approval, for the suspension
      of the proviso to Rule 66 of the Rules of Procedure and Conduct
      of Business of the Lok Sabha. Relevant extract of the Motion
      depicting the suspension of Rule 388 is being reproduced
      hereunder:
c                             "Motion under Rule 388
            Shri Ravi Shankar Prasad moved the following motion:-
            "That this Ho_use do suspend the proviso to rule 66 of the
            Rules of Procedure and Conduct of Business in Lok
 D          Sabha in its application to the motions for taking into
            consideration and passing the NaHonal Judicial
            Appointments Commission Bill. 2014 in as much as it is
            dependent upon the Constitution (One Hundred and
            Twenty-First Amendment) Bill. 2014."
 E          The motion was adopted.
            The motions for consideration of the Bills viz. (i) The
            Constitution (One Hundred and Twenty-First
            Amendment) Bill, 2014 (Insertion of new Articles 124A,
            124B and 124C); and (ii) The National Judicial
 F          Appointments Commission Bill, 2014 were moved by
            Shri Ravi Shankar Prasad."
         Premised on the strength of the Rules framed under
   Article 118, learned Attorney General, also placed reliance on
 G Article 122, which is being reproduced below:
             "122. Courts not to inquire into proceedings of
             Parliament._ (1) The validity of any proceedings in
             Parliament shall not be called in question on the ground
             of any alleged irregularity of procedure.
 H
       SUPREME COURT ADVOCATES-ON-RECORD                             385
     ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

         (2) No officer or member of Parliament in whom powers       A
         are vested by or under this Constitution for regulating
         procedure or the conduct of business, or for maintaining
         order, in Parliament shall be subject to the jurisdiction
         of any court in respect of the exercise by him of those
         powers."                                                    B
      Based on Article 122, it was submitted, that the
Constitution itself contemplated, that the validity of the
proceedings in the Parliament, could not be called in question,
on the ground of alleged irregularity in procedure. While C
reiterating, that the procedure laid down by the Parliament
under Article 118, had been duly complied with, it was
submitted, that even ifthat had not been done, as long as the
power of Parliament to legislate was not questioned, no
challenge could be premised on the procedural defects in D
enacting the·NJAC Act. In this behalf, reference was also made
to Article 246, so as to contend, that the competence of the
P.arliament t.o enact the NJAC Act was clearly and
unambiguously vested with the Parliament. In support of the
above contention, reliance was placed on in re: Hindu E
Women's Rights to Property Act, 1937 64 , rendered by the
Federal Court, wherein it had observed as under:
         "One of the provisions included in Sch. 9 is that a bill shall
         not be deemed to have been passed by the Indian
         Legislature unless it has been agreed to by both Chambers F
         either without amendment or with such amendments only
         as may be agreed to by both Chambers. It is common
         ground that the Hindu. Women's Rights to Property Bill was
         agreed t? without amendment by both Chambers of the
         Indian Legislature, and as soon as it received the Governor- G
         General's assent, it became an Act (Sch. 9, para. 68 (2)).
         Not until then had this or any other Court jurisdiction to
         determine whether it was a valid piece of legislation or not.
64   AIR 1941 FC 72
386           SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A              It may sometimes become necessary for a Court to inquire
               into the proceedings of a Legislature for the purpose of
               determining whether an Act was or was not validly passed:
               for example whether it was in fact passed. as in the case
               of the Indian Legislature the law requires by both Chambers
B              of the Legislature before it received the Governor. General's
               assent. But it does not appear to the Court that the form,
               content or subject-matter of a bill at the time of its
               introduction into. or of its consideration by either Chamber
               of the Legislature is a matter with which a Court of law is
c              concerned. The question whether either Chamber has the
               right to discuss a bill laid before it is a domestic matter
               regulated by the rules of the Chamber. as interpreted by
               its speaker. and is not a matter with which a Court can
               interfere. or indeed on which it is entitled to express any
D
               opinion. It is not to be supposed that a legisl~tive body will
               waste its time by discussing a bill which, even ifit receives
               the Governor-General's assent, would obviously be beyond
               the competence of the Legislature to enact; but if it chooses
               to do so, that is its own·affair, and the only function of a
E
               Court is to pronounce upon the bill after it has become an
               Act. In the opinion of this Court, therefore, it is immaterial
               that the powers of the Legislature changed during the
               passage of the bill from the Legislative Assembly to the
 F             Council of State. The only date with which the Court is
               concerned is 14th April 1937, the date on which the
               Governor General's assent was given; and the question
               whether the Act was or was not within the competence of
               the Legislature must be determined with reference to that
G              date and to none other."
           Reliance was also placed on Pandit M.S.M. Sharma v.
      Dr. Shree Krishna Sinha 65 , wherefrom the following
      observations were brought to our notice:

H     65
           1961 (1)SCR96
  SUPREME COURT ADVOCATES-ON-RECORD                             387
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   "It now remains to consider the other subsidiary questions A
   raised on behalf of the petitioner. It was contended that the
   procedure adopted inside the House of the Legislature was
   not regular and not strictly in accordance with law. There
   are two answers to this contention, firstly, that according
   to the previous decision of this Court, the petitioner has B
   not the fundamental right claimed by him. He is, therefore,
   out of Court. Secondly, the validity of the proceedings inside
   the Legislature of a State cannot be called in question on
   the allegation that the procedure laid down by the law had
   not been strictly followed. Article 212 of the Constitution is C
   a complete answer to this part of the contention raised on
   behalf of the petitioner. No Court can go into those questions
   which are within the special jurisdiction of the Legislature
   itself, which has the power to conduct its own business. D
   Possibly, a third answer to this part of the contention raised
   on behalf of the petitioner is that it is yet premature to
   consider the question of procedure as the Committee is
   yet to conclude its proceedings. It must also be observed
   that once it has been held that the Legislature has the E
   jurisdiction to control the publication of its proceedings and
   to go into the question whether there has been any breach
   of its privileges, the Legislature is vested with complete
   jurisdiction to carry on its proceedings in accordance with
   its rules of business. Even though it may not have strictly F
   complied with the requirements of the procedural law laid
   down for conducting its business. that cannot be a ground
   for interference by this Court under Art. 32 of the
   Constitution. Courts have always recognised the basic
   difference between complete want of jurisdiction and G
   improper or irregular exercise of jurisdiction. Mere non-
   compliance with rules of procedure cannot be a ground
   for issuing a writ under Art. 32 of the Constitution vide
   Janardan Reddy v. The State of Hyderabad, (1951) SCR
    344."                                                         H
3B8         SUPREME COURT REPORTS                   (2015] 13 S.C.R.


A           Based on the aforesaid submissions, it was the
      vehement contention of the learned Attorney General, that there
      was no merit in the technical objections raised by the
      petitioners while assailing the provisions of the NJACAct.
             103. Mr. K.K. Venugopal, learned Senior Advocate,
 8
      entered appearance on behalf of the State of Madhya Pradesh.
      While reiterating a few of the legal submissions canvassed by
      the learned Attorney General, he emphasized, that the
      judgments rendered by this Court, in the Second and Third
c     Judges cases, turned the legal position, contemplated under
      the original Articles 124 and 217, on its head. It was submitted,
      that this Court has been required to entertain a public interest
      litigation, in an unprecedented exercise of judicial review,
      wherein it is sought to be asserted7that the "independence of
o     the judiciary", had been encroaehed by the other two organs
      of governance. It was contended by learned counsel, that the
      instant assertion was based on a misconception, as primacy
      in the matter of appointment of Judges to the higher judiciary,
      was never vested with the judiciary. It was pointed out, that
 E    primacy in the matter of appointment of Judges to the higher
      judiciary, was vested with the executive under Articles 124 and
      217, as originally enacted. Furthermore, this Court through its
      judgments culminating in the First Judges case, while correctly
      interpreting the aforesaid provisions of the Constitution, had
 F    rightly concluded, that the interaction between the executive
      and the Chief Justice of India (as well as, the other Judges of
      the higher judiciary) was merely "consultative", and that, the
      executive was entirely responsible for discharging the
      responsibility of appointment of Judges including Chief
 G    Justices, to the higher judiciary. It was submitted, that the
      Second Judges case, by means of a judicial interpretation,
      vested primacy, in the matter of appointment of Judges to the
      higher judiciary, with the Chief Justice of India, and his
 H    collegium of Judges. It was pointed out, that after the rendering
     SUPREME COURT ADVOCATES-ON-RECORD                               389
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  of the Second Judges case, appointments of Judges A
  commenced to be made, in the manner expressed by the
  above Constitution Bench. It was asserted, that there had been,
  an all around severe criticism, of the process of appointment ·
  of Judges to the higher judiciary, as contemplated by the
  Second and Third Judges cases. It was contended, that the B
  selection process was now limited to Judges selecting Judges,
  without any external participation. It was also asserted, that
  the exclusion of the executive from the role of selection and
  appointment of Judges was so extensive, that the executive
  has got no right to initiate any candidature, for appqintment of C
  Judges/Chief Justices to the higher judiciary. Such an
  interpretation of the provisions of the Constitution, it was
  pointed out, had not only resulted in reading the term
  "consultation" in Articles 124 and 217 as "concurrence", but D
  has gone far beyond. It was sought to be asserted, that in the
  impugned amendment to the Constitution, the intent contained
  in the original Articles 124 and 217, has been retained. The
  amended provisions, it was pointed out, have been tilted in
  favour of the judiciary, and the participatory role, earlier vested E
  in the executive, has been severely diluted. It was submitted,
  that even .though no element of primacy had been conferred -
  on the judiciary by Article 124, as originally enacted, primacy
  has now been vested in the judiciary, inasmuch as, the NJAC
  has the largest number of membership from the judicial F
  fraternity. It was highlighted, that the Union Minister in charge
  of Law and Justice, is the sole executive representative, in the
  selection process, contemplated under the amended
  provisions. It was therefore asserted, that it was a far cry, for
. anyone to advocate, that the role of the judiciary in the manner G
  of appointment of Judges to the higher judiciary having been
  diluted, had impinged on its independence.
       104. It was contended, that the author of the majority view
 in the Second Judges case (J.S. Verma, J., as he then was),         H
390          SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     had himself found fault with the manner of implementation of
      the judgments in the Second and Third Judges cases. It was
      submitted that Parliament, being the voice of the people, had
      taken into consideration, the criticism levelled by J. S. Verma, J.
      (besides others), to revise the process of appointment of
B     Judges contemplated under the Second and Third Judges
      cases. Having so contended, learned counsel asserted, that
      if this Court felt that any of the provisions, with reference to
      selection and appointment of Judges to the higher judiciary,
      would not meet the standards and norms, which this Court felt
C     sacrosanct, it was open to this Court to read down the
      appropriate provisions, in a manner as to round off the offending
      provisions, ratherthan quashing the impugned constitutional
      and legislative provisions in their entirety.
o       105. Mr. R~njit Kumar, learned Solicitor General of India
  submitted, that the entire Constitution had to be read as a
  whole. In this behalf, it was contended, that each provision
  was an integral part of the Constitution, and as such, its
  interpretation had to be rendered holistically. For the instant
E proposition, reliance was placed on the Kihoto Hollohan
  case 34 , T.M.A. Pai Foundation v. State of Karnataka 6 , R.C.
  Poudyal v. Union of lndia 66 , the M. Nagaraj case 3 ~, and the
  Kesavananda Bharati case 10 • Based on the above judgments,
  it was asserted, that the term "President", as it existed in
F Articles 124 and 217, if interpreted holistically, would lead to
  the clear and unambiguous conclusion, that the President while
  discharging his responsibility with reference to appointment
  of Judges/Chief Justices to the higher judiciary, was bound by
  the aid and advice of the Council of Ministers, as contemplated
G under Article 74. It was contended, that the aforesaid import
  was rightfully examined and interpreted with reference to Article
  124, in the First Judges case. But had been erroneously
  overlooked, in the subsequent judgments. Accordingly, it was
 H    •• 1994 Supp (1) sec 324
     SUPREME COURT ADVOCATES-ON-RECORD                               391
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

 asserted, that there could be no doubt whatsoever, while            A
 examining the impugned constitutional amendment, as also,
 the impugned legislative enactment, that Parliament had not
 breached any component of the "basic structure" of the
 Constitution.
                                                                     B
       106. It was also contended, that in case the challenge
 raised to the impugned constitutional amendment, was to be
 accepted by this Court, and the legal position declared by this
 Court, was to be given effect to, the repealed provisions would
 not stand revived, merely because the amendmenUlegislation          c
 which were being assailed, were held to be unconstitutional.
 Insofar as the instant aspect of the matter is concerned, learned
 Solicitor General raised two independent contentions.
          107. Firstly, that the issue whether a constitutional
  amendment once struck down, would revive the original/ D
  substituted Article, was a matter which had already been
  referred to a nine-Judge Constitutional Bench. In order to
  support the aforesaid contention, and to project the picture in
  its entirety, reliance was placed on, Property Owners'
  Association v. State of Maharashtra 67 , Property Owners' E
  Association v. State of Maharashtra 68 , and Property Owners'
· Association v. State of Maharashtra 69 • It was submitted, that
  the order passed by this Court, wherein the reference to a nine-
  Judge Constitution Bench had been made, was a case relating F
  to the constitutionality of Article 31 C. It was pointed out that
  Article 31 C, as originally enacted provided, that
  " ... notwithstanding anything contained in Article 13, no law
  giving effect to the policy of the State, towards securing the
  principles specified in clause (b) or clause (c) of Article 39 G
  shall be deemed to be void on the ground that it was
  inconsistent with, the rights conferred by Articles 14 and 19".

 " (1996) 4 sec 49
   ' (2001 l 4 sec 455
 6

   ' (2013) 1 sec 522
 6
                                                                     H
392             SUPREME COURT REPORTS                     (2015] 13 S.C.R.


A         It was submitted, that the latter part of Article 31C, which
          provided " ... and no law containing a declaration that it is for
          giving effect to such policy shall be called in question in any
          court on the ground that it does not give effect to such policy ... "
          had been struck down by this Court in the Kesavananda Bharati
 B        case 10 • It was contended, that when the matter pertaining to
          the effect of the striking down of a constitutional amendment,
          had been referred to a nine-Judge Bench, it would be improper
          for this Court, sitting in its present composition, to determine
          the aforesaid issue.
 c
          108. The second contention advanced at the hands of
   the learned Solicitor General, was based on Sections 6, 7 and
   8 of the General Clauses Act. It was contended, that an
   amendment which had deleted some part of the erstwhi.le
 o Article 124 of the Constitution, and substituted in its place
   something different, as in the case of Article 124, by the
   Constitution (99th Amendment) Act, would not result in the
   revival of the original Article which was in place, prior to the
   constitutional amendment, even if the amendment itself was
 E to be struck down. It was submitted, that if a substituted
   provision was declared as unconstitutional, for whatever ground
   or reason(s), the same would not automatically result in the
    revival of the repealed provision. In order to support the
   aforesaid contention, reli~nce was placed on Ameer-un-Nissa
 F Begum v. Mahboob Begum70 , FirmA.T.B. Mehtab Majid & Co.
   v. State of Madras71 , B.N. Tewari v. Union of lndia72 , Koteswar
   Vittal Karnath v. K. Rangappa Baliga &Co. 73 , Mulchand Odhavji
    v. Rajkot Borough Municipality74 , Mohd. Shaukat Hussain Khan
    v. State of Andhra Pradesh 75 , State of Maharashtra v. Central
 G
          10  AIR 1955 SC 352
      .    71 AIR 1963 SC 928
           72 AIR 1965 SC 1430

           73 (1969) 1 sec 255
           1• (1971) 3 sec 53
 H         " (1974) 2 sec 376
         SUPREME COURT ADVOCATES-ON-RECORD                              393
       ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  Provinces Manganese Ore Co. Ltd. 76 , India Tobacco Co. Ltd.          A
  v. Commercial Tax Officer, Bhavanipore 77 , and Kolhapur
  Canesugar Works Ltd. v. Union of lndia 78 • It was submitted,
  that the general rule of construction was, that a repeal through
  a repealing enactment, would not revive anything repealed
  thereby. Reliance was also placed on, State of U.P. v. Hirendra       B·
  Pal Sirigh 79 , Joint Action Committee of Air Line Pilots'
  Association of India v. Director General of Civil Aviation 80 , and
  State of Tamil Nadu v. K. Shyam Sunder81 , to contend, that the
. settled legal proposition was, whenever an Act was repealed,
  it must be considered as if ithad never existed. It was pointed       C
  out, that consequent upon the instant repeal of the earlier
  provisions, the earlier provisions must be deemed to have
  been obliterated/abrogated/wiped out, wholly and completely.
  The instant contention was sought to be summarized by                 D
  asserting, that if a substituted provision was to be struck down,
  the question of revival of the original provision (which had been
  substituted, by the struck down provision) would not arise, as
  the provision which had been substituted, stood abrogated,
  and therefore had ceased to exist in the statute itself. It was       E
  therefore submitted, that even if the challenge raised to the
  impugned constitutional amendment was to be accepted by
  this Court, the originally enacted provisions of Articles 124 and
  217 would not revive.
       109.The learned Solicitor General additionally                   F
 contended, that the present challenge at the hands of the
 petitioners should not be entertained, as it has been raised
 prematurely. It was submitted, that the challenge raised by the
 petitioners was based on assumptions and presumptions,
                                                                        G
  10 (1977) 1 sec 643
 11
     (1975) 3 sec 512
 " c2000) 2 sec 536
  •• c2011) 5 sec 305
 ., c2011 l 5 sec 435
 " c2011i s sec 737                                                     H
394        SUPREME COURT REPORTS                  [2015] 13S.C.R.


A without allowing the crystallization of the impugned amendment
  to the Constitution. It was asserted, that the position would
  crystalise only after rules and regulations were framed under
  the NJAC Act. It was submitted, that the question of
  "independence of the judiciary", with reference to the
B amendments made, could be determined only after the NJAC
  Act was made operational, by laying down the manner of its
  functioning. Since the pendency of the present litigation had
  delayed the implementation of the provisions of the
  amendment to the Constitution, as also to the NJAC Act, it
C would be improper for this Court, to accede to a challenge
  based on conjectures and surmises.
         110. Mr. K. Parasaran, Senior Advocate, entered
  appearance on behalf of the State of Rajasthan. He submitted,
o that he would be supporting the validity of the impugned
  constitutional amendment, as also, the NJACAct, and that, he
  endorsed all the submissions advanced on behalf of the Union
  of India. It was his contention, that Judges of the higher judiciary
  were already burdened with their judicial work, and as such,
E they should not be seriously worried about the task of
  appointment of Judges, which by the impugned amendment,
  had been entrusted to the NJAC. In his view, the executive and
  the Parliament were accountable to the people, and therefore,
  they should be permitted to discharge the onerous
F responsibility, of appointing Judges to the higher judiciary. It
  was asserted, that the executive and the legislature would then
  be answerable, to the people of this country, for the
  appointments they would make.
G         111. On the issue of inclusion of two "eminent persons"
   in the six-Member NJAC, it was asserted, that the nomination
   of the "eminent persons" was to be made by the Prime Minister,
   the Chief Justice of India, and the Leader of the Opposition in
   the Lok Sabha. All these three individuals, being high ranking
 H constitutional functionaries, should be trusted, to discharge the
    SUPREME COURT ADVOCATES-ON-RECORD                           395
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

responsibility bestowed on them, in the interest of the A
"independence of the judiciary". It was submitted, that if
constitutional functionaries, and the "eminent persons", could
not be trusted, then the constitutional machinery itself would
fail. It was pointed out, that this Court had repeatedly described,
that the Constitution was organic in character, and it had an B
inbuilt mechanism for evolving, with the changing times. It was
asserted, that the power vested with the Parliament, under
Article 368 to amend the provisions of the Constitution, was a
"constituent power", authorizing the Parliament to reshape the
Constitution, to adapt with the changing environment. It was C
contended, that the above power vested in the Parliament could
be exercised with the sole exception, that "the basic structure/
features" of the Constitution, as enunciated by the Supreme
Court in the Kesavananda Bharati case10 , could not be altered/ D
changed. According to the learned senior counsel, the
Constitution (99th Amendment) Act was an exercise of the
aforestated constituent power, and that, the amendment to the
Constitution introduced thereby, did not in any manner, impinge
upon the "independence of the judiciary".
                                                                 E
       112. Referring to Article 124A, it was asserted, that the
NJAC was a six-Member Commission for identifying, selecting
and appointing Judges to the higher judiciary. It could under
no circumstances, be found wanting, with reference to the
assertions made by the petitioners. It was pointed out, that F
the only executive representative thereon being the Union
Minister in charge of Law and Justice, it could not be inferred,
that the executive would exert such influence through him, as
would undermine the independence of the five other Members
of the Commission. It was submitted, that the largest G
representation of the Commission, was that of Judges of the
Supreme Court, inasmuch as, the Chief Justice of India, and
the two senior most Judges of the Supreme Court were ex
officio Members of the NJAC.
                                                                 H
396        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A       113. With reference to the two "eminent persons" on the
  NJAC, it was his contention, that they could not be identified
  either with the executive or the legislature. For the nomination
  of the two "eminent persons", the Selection Committee
  comprises of one member of the executive, one member of
B the legislature, and one member of the judiciary. In the above
  view of the matter, it was asserted, that the contention, that the
  two "eminent persons" in the Commission would support the
  executive/the legislature, was preposterous. It was therefore
  the submission of the learned senior counsel, that the
C "independence of the judiciary" could not be considered to have
  been undermined, keeping in mind the composition of the
  NJAC.
           114. It was also contended, thatthe proceedings before
 o the NJAC would be more transparent and broad based, and
      accordingly, more result oriented, and would ensure, thatthe
      best candidates would be selected for appointment as Judges
      to the higher judiciary.
         115. It was asserted, that the NJAC provided for a
 E consultative process with persons who were ex-hypothesi, well
   qualified to give proper advice in the matter of appointment of
   Judges to the higher judiciary. It was accordingly the assertion
   of learned counsel, that the determination rendered by this
 F Court, in the Second and Third Judges cases, was not in
   consonance with the intent, with which Articles 124 and 217
   were originally enacted. It was therefore submitted, that the
   subject of "independence of the judiciary", with reference to
   the impugned constitutional amendment, should not be.
 G determined by relying on the Second and Third Judges cases,
   but only on the basis of the plain reading of Articles 124 and
   217, in conjunction with, the observations expressed by the
   Members of the Constituent Assembly while debating on the
   above provisions. It was submitted, that whilst the Union
 H Minister in charge of Law and Justice, would be in an effective
    SUPREME COURT ADVOCATES-ON-RECORD                           397
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

position to provide necessary inputs, with reference to the     A
character and antecedents of the candidate(s) concerned (in
view of the governmental machinery availabl€ at his
command), the two "eminent persons" would be in a position
to participate in the selection process, by. representing the
general public, and thereby, the selection process would be     B
infused with all around logical inputs, for a wholesome
consideration.
      116. It was submitted, that since any two Members of the
NJAC, were competent to veto the candidature of a nominee, c
three representatives of the Supreme Court of India, would be
clearly in a position to stall the appointment of unsuitable
candidates. It was therefore contended.. that the legislations
enacted by the Parliament, duly ratified in terms of Article 368,
should be permitted to become functional, with the constitution D
of the NJAC, and should further be permitted to discharge the
responsibility of appointing Judges to the higher judiciary. It
was submitted, that in case of any deficiency in the discharge
of the said responsibility, this Court could suo motu negate
the selection process, or exclude one or both of the "eminent E
persons" from the selection process, if they were found to be
unsuitable or unworthy of discharging their responsibility. Or
even if they could not establish their usefulness. It was
submitted, that this Court should not throttle the contemplated
process of selection and appointment of Judges to the higher F
judiciary, through the NJAC, without it's even having been
tested.
      117. Mr. T.R. Andhyarujina, Senior Advocate, entered
appearance on behalf of the State of Maharashtra. It was his G
contention, while endorsing the submissions advanced on
behalf of the Union of India, that the impugned Constitution
(99th Amendment) Act, was a rare event, inasmuch as, the
Parliament unanimously passed the same, with all parties
supporting the amendment. He asserted, that there was not a H
398       SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A single vote against the amendment, even though it was
  conceded, that there was one Member of Parliament, who had
  abstained~rom voting. Besides the above, it was asserted,
  that even the State legislatures ratified the instant constitutional
  amendment, wherein the ruling party, as also, th~ parties in
B opposition, supported the amendment. Based on the above,
  it was contended, that the instant constitutional amendment,
  should be treated as the unanimous will of the people,
  belonging to all sections of the society, and therefore the same
  could well be treated, as the will of the nation, exercised by all
C stakeholders.
          118. It was submitted, that the amendment under
   reference should not be viewed with suspicion. It was pointed
   out, thatArticles 124 and 217 contemplated a dominating role
 o for the executive. It was contended, that the judgment in the
   Second Judges case, vested primacy in the matter of
   appointment of Judges to the higher judiciary, with the Chief
   Justice of India and his collegium of Judges. This manner of
   selection and appointment of Judges to the higher judiciary,
 E according to learned counsel, was unknown to the rest of the
   world, as in no other country, the appointment of Judges is
   made by Judges themselves. Indicating the defects of the
   collegium system, it was asserted, that the same lacked
   transparency, and was not broad based enough. Whilst
 F acknowledging, the view expressed by J.S. Verma, CJ., that
   the manner of appointment of Judges contemplated by the
   Second and Third Judges cases was very good, it was
   submitted, that J.S. Verma, CJ., himself was disillusioned with
   their implementation, as he felt, that there had been an utter
 G failure on that front. Learned senior counsel submitted, thc:it
   the questions that needed to be answered were, whether there
   was any fundamental illegality in the constitutional amendment?
   Or, whether the appointment of Judges contemplated through
   the NJAC violated the "basic structure" of the Constitution?
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                399
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

And, whether the "independence of the judiciary" stood               A
subverted by the impugned constitutional amendment? It was
asserted, that it was wrong to assume, that the manner of
appointment of Judges, had any impact on the "independence
of the judiciary". In this behalf, it was pointed out, that the
independence of Judges, did not depend on who appointed              B
them. It was also pointed out, that independence of Judges
depended upon their individual character. Learned counsel
reiterated the position expounded by Dr. B.R.Ambedkar, during
the Constituent Assembly debates. He submitted, that the
concept of "independence of the judiciary" should not be             C
determined with reference to the opinion expressed by this
Court in the Second and Third Judges cases, but should be
determined with reference to the debates in the Constituent
Assembly, which led to the crystallization of Articles 124 and       D
217, as originally enacted.
      119. Learned counsel placed reliance on Lord Cooke of
Thomdon in his article titled "Making the Angels Weep", wherein
he scathingly criticized the Second Judges case. Reference
was also made to his article "Where Angels Fear to Tread",           E
with reference to the Third Judges case. The Court's attention
was also drawn to the criticism of the Second and Third Judges
cases, at the hands of H.M. Seervai, Fali S. Nariman and others,
especially the criticism at the hands of Krishna Iyer and Ruma
Pal, JJ., and later even the author of the majority judgment in      F
the Second Judges case - J.S. Verma, CJ.. It was,
accordingly, the contention of the learned senior counsel, that
whilst determining the issue of "independence of the judiciary",
reference should not be made to either of the above two
judgments, but should be made to the plain language ofArtiCles 124   G
and 217. Viewed in the above manner, it was asserted, that there
would be no question of arriving at the conclusion, that the
impugned constitutional amendment, violated the basic concepts
of "separ;:ition of powers" and "independence of the judiciary".
                                                                     H
400         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A           120. Even though, there were no guidelines, for
      appointment of the two "eminent persons", emerging from the
      Constitution (99thAmendment)Act, and/or the NJACAct, yet
      it was submitted, that it was obvious, that the "eminent persons"
      to be chosen, would be persons who were well versed in the
 B    working of courts. On the Court's asking, learned senior
      counsel suggested, that "eminent persons" for the purpose
      could only be picked out of eminent lawyers, eminent jurists,
      and even retired Judges, or the like. Insofar as the instant
      aspect of the matter is concerned, it is obvious that learned
 C    senior counsel had adopted a position, diametrically opposite
      to the one canvassed by the learned Attorney General. Another
      aspect, on which we found a little divergence in the submission
      of Mr. T.R. Andhyarujina was, that in many countries the
      executive participation in the matter of appointment of Judges
 0
      to the higher judiciary, was being brought down. And in some
      countries it was no longer in the hands of the executive. In this
      behalf, the clear contention advanced by the learned senior
      counsel was, that the world over, the process of appointment
 E    of Judges to the higher judiciary was evolving, so as to be
      vested in Commissions of the nature of the NJAC. And as
      such, it was wholly unjustified to fault the same, on the ground
      of "independence of the judiciary", when the world over
      Commissions were found to have been discharging the
 F    responsibility satisfactorily.
         121. Mr. Tushar Mehta, Additional Solicitor General of
   India, entered appearance on behalf of the State of Gujarat.
   He adopted the submissions advanced by the learned Attorney
   General, as also, Mr. Ranjit Kumar, the learned Solicitor
 G General. It was his submission, that the system innovated by
   this Court for appointment of Judges to the higher judiciary,
   comprising of the Chief Justice and his collegium of Judges,
   was a judicial innovation. It was pointed out, that since 1993
 H when the above system came into existence, it had been
    SUPREME COURT ADVOCATES-ON-RECORD                                401
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

followed for appointment of Judges to the higher judiciary, till     A
the impugned constitutional amendment came into force. It
was asserted that, in the interregnum, some conspicuous
events had taken place, depicting the requirement of a change
in the method and manner of appointment of Judges to the
higher judiciary. Learned counsel invited our attention to the       B
various Bills which were introduced in the Parliament for the
purpose of setting up a Commission for appointments of
Judges to the higher judiciary, as have already been narrated
herein before. It was pointed out, that several representations
were received by the Government of the day, advocating the           C
replacement of the "collegium system", with a broad based
National Judicial Commission, to cater to the long standing
aspiration of the citizens of the country. The resultant effect
was, the passing of the Constitution (99th Amendment) Act,
                                                                     D
and the NJAC Act, by the Parliament. It was submitted, that
the same came to be passed almost unanimously, with only
one Member of Rajya Sabha abstaining. It was asserted, that
this was a rare historical event after independence, when all
political parties, having divergent political ideologies, voted in   E
favour of the impugned constitutional amendment. In addition
to the above, it was submitted, that as of ·now 28 State
Assemblies had ratified the Bill. It was asserted, that the
constitutional mechanism for appointment of Judges to the
higher judiciary, had operated for a sufficient length of time,      F
and learning from the experience emerging out of such
operation, it was felt, that a broad based Commission should
be constituted. It was contended, that the impugned
constitutional amendment, satisfied all the parameters for
testing the constitutional validity of an amendment. Learned         G
 Additional Solicitor General similarly opposed, the
 submissions advanced at the hands of the petitioners
 challenging the inclusion of the Union Minister in charge qf Law
 and Justice, as a Member of the NJAC. He also found merit
 in the inclusion of two "eminent persons", in the NJAC. It was      H
402           SUPREME COURT REPORTS              [2015] 13 S.C.R.


A contended, that the term "eminent persons", with reference to
  appointment of Judges to the higher judiciary, was by itself
  clear and unambiguous, and as and when, a nomination would
  be made, its authenticity would be understood. He distanced
  himself from the submission advanced by Mr. T.R.
B Andhyarujina, who represented the State of Maharashtra, while
  advancing submission about the identity of those who could
  be nominated as "eminent persons" to the NJAC. It was
  submitted, by placing reliance on Municipal Committee,
  Amritsar v. State of Punjab 82 , K.A. Abbas v. Union of lndia 83 ,
C and the A.K. Roy case 49 , that similar submissions advanced
  before this Court, with reference to vagueness and uncertainty
  of law, were consistently rejected by this Court. According to
  learned counsel, with reference to the alleged vagueness in
  the term "eminent persons", in case the nomination of an
0
  individual was assailed, a court of competent jurisdiction would
  construe it, as far as may be, in accordance with the intention
  of the legislature. It was asserted, that it could not be assumed,
  that there was a political danger, that if two wrong persons
E were nominated as "eminent persons" to the NJAC, they would
  be able to tilt the balance against the judicial component of
  the NJAC. It was submitted, that the appointment of the two
  "eminent persons" was in the safe hands, of the Prime Minister,
  the Chief Justice of India and the Leader of Opposition in the
F Lok Sabha. In the above view of the matter, the learned
  Additional Solicitor General, concluded with the prayer, that
  the submissions advanced at the hands of the learned counsel
  for the petitioners deserved to be rejected.
        122. Mr. Ravindra Srivastava, Senior Advocate, entered
 G appearance on behalf of the State of Chhattisgarh. He had
   chosen to make submissions divided under eleven heads.
   However, keeping in view the fact, that detailed submissions

      8 2 (1969) 1   sec 475
 H    8
        ' (1970) 2   sec 780
    SUPREME COURT ADVOCATES-ON-RECORD                                 403
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

had already been advanced by counsel who had entered                  A
appearance before him, he chose to limit the same. It was the
primary contention of the learned senior counsel, that the
impugned constitutional amendment, as also the NJAC Act,
did not in any manner violate the "basic structure" of the
Constitution. According to the learned senior counsel, the            B
impugned constitutional amendment, furthers and strengthens
the "basic structure" principle, of a free and independent
judiciary. It was his submission, that the assertions made at
the hands of the petitioners, to the effect that the impugned
constitutional amendment, impinges upon the "basic structure"         C
of the Constitution, and the "independence of the judiciary",
were wholly misconceived. It was submitted, that this Court
had not ever held, that the primacy of the judiciary through the
Chief Justice of India, was an essential component of the             D
"independence of the judiciary". It was asserted, that while
considering the challenge raised by the petitioners to the
 impugned constitutional amendment, it would be wholly
unjustified to approach the challenge by assuming, that the
 primacy of the judiciary through the Chief Justice of India, would   E
 alone satisfy the essential components of "separation of power"
 and "independence of the judiciary". It was submitted, that the
 introduction of plurality, in the matter of appointment of Judges
to the higher judiciary, was an instance of.independence, rather
than an instance of interference. With reference to the Members       F
 of the NJAC, it was submitted, that the same would ensure not
only transparency, but also a broad based selection process,
 without any ulterior motives. It was asserted, that the adoption
 of the NJAC for selection of Judges to the higher judiciary,
 would result in the selection of the best out of those willing to    G
 be appointed. With reference to the participation of the Union
 Minister in charge of Law and Justice, as an ex officio Member
 of the NJAC, it was submitted, that the mere participation of
 one executive representative, would not make the process
 incompatible, with the concept of "independence of the               H
404         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     judiciary". In this behalf, emphatic reliance was placed on the
      observations of E.S. Venkataramiah, J., from two paragraphs
      of the First Judges case, which are being extracted hereunder:
             "1033. As a part of this very contention it is urged that the
             Executive should have no voice at all in the matter of
 B           appointment of Judges of the superior courts in India as
             the independence of the. judiciary which is a basic feature
             of the Constitution would be in serious jeopardy if the
             executive can interfere with the process of their
             appointment. It is difficult to hold that merely because the
 c           power of appointment is with the executive, the
             independence of the judiciarv would become impaired. The
             true principle is that after such appointment the executive
             should have no scope to interfere with the work of a Judge."
 D           "1038. The foregoing gives a fairly reliable picture of the
             English system of appointments of Judges. It is thus seen
             that in England the Judges are appointed by the Executive.
             "Nevertheless the judiciary js substantially insulated by
             virtue of rules of strict law, constitutional conventions,
 E           political practice and professional tradition, from political
             influence."
          It was finally submitted by learned counsel, that a multi-
   member constitutional body, was expected to act fairly and
   independently, and not in violation of the Constitution. It was
 F contended, that plurality by itself was an adequate safeguard.
   Reliance in this behalf was placed on T.N. Seshan v. Union of
   lndia84 , so as to eventually conclude, that the constitutional
   amendment did not violate the "basic structure" of the
   Constitution, and that, it was in consonance with the concept
 G of a free and independent judiciary, by further strengthening
   the "basic structure" of the Constitution.
          123. Mr. Ajit Kumar Sinha, Senior Advocate, entered
      appearance on behalf of the State of Jharkhand. He asserted,
 H .. (1995) 4 sec 611
                                                                              \

    SUPREME COURT ADVOCATES-ON-RECORD                                   405
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

that he should be taken as having adopted all the submissions           A
addressed, on behalf of the Union of India. While commencing
his submissions. he placed reliance on Article 124(4) and
proviso (b) under Article 217(1) to contend, that Judges of the
higher judiciary, could not be removed except by an order
passed by the President, after an address by each House of              B
Parliament, supported by a majority of the total membership
of that House, and by a majority of not less than 2/3rd of the
Members of the House present and voting, had been presented
to the President, on the ground of proved misbehaviour or
incapacity. In this behalf, learned senior counsel placed               C
reliance on Section 16 of the General Clauses Act, 1897, which
provides that the power to appoint includes the power to
suspend or dismiss. Read in conjunction with Article 367, which
mandates, that unless the context otherwise required, the               D
provisions of the General Clauses Act 1897, would apply to
the interpretation of the provisions of the Constitution, in the
 same manner as they applied tQ. the interpretation of an Act of
 the legislature. Based on the aforesaid, it was sought to be
 asserted, that in the absence of any role of the judiciary in the      E
 matter of removal of a Judge belonging to the higher judiciary,
 the judiciary could not demand primacy in the matter of
 appointment of Judges of the higher judiciary, as an integral
 component of the "independence of the judiciary". It was
 submitted, on the issue of "independence of the judiciary", the        F
 question of manner of appointment was far less important, than
 the question of removal from the position of Judge. Adverting
 to the manner of removal of Judges of the higher judiciary, in
 accordance with the provisions referred to hereinabove, it was
 asserted, that in the matter of removal of a Judge from the            G
 higher judiciary, there was no judicial participation. It was solely
 the prerogative of the legislature. That being so, it was contended,
 that the submissions advanced at the behest of the petitioners,
 that primacy in the matter of appointment of Judges, should
 be vested in the judiciary, was nothing but a fallacy.                 H
     406       SUPREME COURT REPORTS                   [2015) 13 S.C.R.


     A        124. The second contention advanced by learned senior
       counsel was, that it should not be assumed as if the NJAC,
       would take away the power of appointment of Judges to the
       higher judiciary, from the judiciary. It was submitted, that three
       of the six Members of the NJAC belonged to the judiciary, and
     B that, one of them, namely, the Chief Justice of India was to
       preside over the proceedings of the NJAC, as its Chairperson.
       Thus viewed, it was submitted, that it was wholly misconceived
       on the part of the petitioners to contend, that the power of
       appointment of Judges, had been taken away from the
     c judiciary, and vested with the executive. It was submitted, that
       there was nothing fundamentally illegal or unconstitutional in
       the manner of appointment of Judges to the higher judiciary,
       as contemplated by the impugned constitutional amendment.
       It was also contended, that the manner of appointment of
     D
       Judges, contemplated through the NJAC, could not be
       perceived as violative of the "basic structure" of the
       Constitution, by the mere fact, that any two Members of the
       NJAC can veto a proposal of appointment of a Judge to the
       higher judiciary. And that, the above would result in the
     E
       subversion of the "independence of the judiciary". In support
       of the aforestated submissions, it was highlighted, that the
       manner of appointment of Judges, which was postulated in
       the judgments rendered in the Second and Third Judges cases,
     F do not lead to the inference, that if the manner of appointment
       as contemplated therein was altered, it would violate the "basic
       structure" of the Constitution.
              125. Mr. Yatindra Singh, learned Senior Advocate,
       entered appearance as an intervener. He contended, that the
     G preamble to the Constitution of India, Article 50 (which provides
       for separation of the judiciary from the executive), the oath of
       office of a Judge appointed to the higher judiciary, the security
       of his tenure including the fixed age of retirement, the protection
       of the emoluments payable to Judges including salary and
     H
"-
                                                                             J
              <


    SUPREME COURT ADVOCATES-ON-RECORD                             407
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

leave, etc., the fact that the Judges appointed to the higher A
judiciary served in Courts of Record, having the power to punish
for contempt, and the provisions of the Judicial Officers
Protection Act, 1850, and the Judges (Protection)Act, 1985,
which grant immunity to them from civil as well as criminal .
proceedings, are incidents, which ensured "independence of B
the judiciary". It was submitted, that the manner of appointment
of Judges to the higher judiciary, had nothing to do with
"independence of the judiciary". It was pointed out, that insofar
as the determination of the validity of the impugned
constitutional amendment was concerned, it was not essential C
to make a reference to the judgments rendered by this Court
in the Second and Third Judges cases. It was submitted, that
the only question that needed to be determined insofar as the
present controversy is concerned, was whether, the manner of
                                                                    0
appointment postulated through the NJAC, would interfere with
"independence of Judges". In this behalf, it was firstly asserted,
that neither the Second nor the Third Judges case had
 concluded, that the manner of appointment of Judges would
constitute the "basic structure" of the Constitution. Nor that, E
 the manner. of appointment of Judges to the higher judiciary
 as postulated in the Second and Third Judges cases, if
 breached, would violate the "basic structure" of the Constitution.
 It was submitted, that the judgments rendered in the Second
 and Third Judges cases merely interpreted the law, as it then F
existed. It was asserted, that the above judgments did not
 delve into the question, whether any factor(s) or feature(s)
 considered, were components of the "basic structure" of the
 Constitution.
     126. Learned senior counsel, also placed reliance on          G
the manner of appointment of Judges in the United States of
America, Australia, New Zealand, Canada, and Japan to
contend, that in all these countries Judges appointed to the
higher judiciary, were discharging their responsibilities          H
408        SUPREME COURT REPORTS                  [2015) 13S.C.R.


A    independently, and as such, there was no reason or justification
     for this Court to infer, if the manner of appointment of Judges
     was altered from the position contemplated in the Second and
     Third Judges cases, to the one envisaged by the impugned
   . constitutional amendment, it would affect the "independence
 B of the Judges". It was submitted, that different countries in the
     world had adopted different processes of selection for
     appointment of Judges. Each country had achieved
     "independence of the judiciary", and as such, it was
     presumptuous to think that Judges appointed by Judges alone,
 C can discharge their duties independently.
          127. Learned senior counsel also pointed out, that the
   "collegium system" was not the only process of appointment
   of Judges, which could achieve the "independence of the
 D judiciary". Had it been so, it would have been so concluded in
   the judgments rendered in the Second and Third Judges cases.
    It was the submission of the learned senior counsel, that
   "independence of the judiciary" could be achieved by other
   methods, as had been adopted in other countries, or in a
 E manner, as the Parliament deemed just and prop_er for India.
    It was asserted, that the manner of appointment contemplated
   by the impugned constitutional amendment had no infirmity,
   with reference to the issue of "independence of the judiciary",
   on account of the fact, that there was hardly any participation
 F in the NJAC, at the behest of organs other than the judiciary.
         128. Last of all, learned senior c9unsel contended, that
   the "collegium system" did not serve the purpose of choosing
   the best amongst the available. The failure of the "collegium
 G system", according to the learned senior counsel, was apparent
   from the opinion expressed by V.R. Krishna Iyer, J. in the
   foreword to the book "Story of a Chief Justice", authored by
   U.L. Bhat, J. The "collegium system" was also adversely
   commented upon, by Ruma Pal, J., while delivering the 5th V.M.
 H Tarkunde Memorial Lecture on the topic "An Independent
    SUPREME COURT ADVOCATES-ON-RECORD                         409
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Judiciary". Reference in this behalf, was also made to the A
observations made by S.S. Sodhi, J., a former Chief Justice
of the Allahabad High Court, in his book "The Other Side of
Justice", and the book authored by Fali S. Nariman, in his
autobiography "Before Memory Fades". It was contended, that
the aforesaid experiences, and the adverse all around B
comments, with reference to the implementation of the
"collegium system", forced the Parliament to enact the
Constitution (99th Amendment) Act, which provided for a far
better method for selection and appointment of Judges to the
higher judiciary, than the procedure contemplated under the C
"collegium system". It was submitted, that whilst the NJAC did
not exclude the role of the judiciary, it included two "eminent
persons" with one executive nominee, namely, the Union
Minister in charge of Law and Justice, as Members of the
NJAC. Since the role of the executive/Government in the NJAC D
was minimal, it was preposterous to assume, that the executive
would ever be able to have its way, in the matter of appointment
of Judges to the higher judiciary. It was submitted, that the
NJAC would fulfill the objective of transparency, in the matter E
of appointment of Judges, and at the same time, would make
the selectiori process broad based. While concluding his
submissions, it was also suggested by the learned counsel,
that the NJAC should be allowed to operate for some time, so
as to be tested, before being scrapped at its very inception. F
And that, it would be improper to negate the process even ·
before the experiment had begun.
       129. Mr. Dushyant A. Dave, Senior Advocate and
President of the Supreme Court Bar Association, submitted
that the only question that needed to be adjudicated upon, with G
reference to the present controversy was, whether the manner
of appointment of Judges to the higher judiciary, through the
NJAC, would fall within the constitutional frame work? Learned·
senior counsel commenced his submissions by highlighting H
410        SUPREMI; COURT REPORTS                   [2015] 13 S.C.R.


A the fact, that parliamentary democracy contemplated through
  the provisions of the Constitution, was a greater basic concept,
  as compared to the "independence of the judiciary". It was
  submitted, that the manner in which submissions had been
  advanced at the behest of the petitioners, it seemed, that the
B matter of appointment of Judges to the higher judiciary, is
  placed at the highest pedestal, in the "basic structure doctrine".
  Learned senior counsel seriously contested the veracity of the
  aforesaid belief. It was submitted, that if those representing
  the petitioners, were placing reliance on the judgment rendered
C in the Second Judges case, to project the aforesaid principle,
  it was legally fallacious, to do so. The reason, according to
  learned senior counsel was, that the judgment in the Second
  Judges case, was not premised on an interpretation of any
  constitutional provision(s), nor was it premised on an elaborate
0
  discussion, with reference to the subject under consideration,
  nor was reliance placed on the Constituent Assembly debates.
  It was pointed out, that the judgment in the Second Judges
  case was rendered, on the basis of the principles contemplated
E by the authors of the judgment, and not on any principles of
  law. It was accordingly asserted, that the .Petitioners'
  contentions, deserved outright rejection.
           130. Learned senior counsel invited this Court's attention
    to the fact, that the judgments rendered in the Kesavananda
 F .Bharati case 10 , the Minerva Mills Ltd. case 33 , and l.R. Coelho
    v. State of Tamil Nadu85 , wherein the concept of"basic structure"
    of the Constitution was formulated and given effect to, were all
    matters wherein on different aspects, the power of judicial
    review had been suppressed/subjugated. It was submitted,
 G that none of the aforesaid judgments could be relied upon to
    determine, whether the manner of appointment of the Judges
    to the higher judiciary, constituted a part of the "basic structure"
    of the Constitution. ·it was therefore, that reliance was placed
 H    " (2007) 2 sec 1
    SUPREME COURT ADVOCATES-ON-RECORD                        411
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

on Article 368 to contend, that the power to amend the A
Constitution, had been described as a "constituent power",
i.e., a power similar to the one which came to be vested in the
Constituent Assembly, for drafting the Constitution. It was
submitted, that no judgment could negate or diminish the
"constituent power" vested with the Parliament, under Article B
368. Having highlighted the aforesaid factual position, learned
senior counsel advanced passionate submissions with
reference to various appointments made, on the basis of the
procedure postulated in the Second and Third Judges cases.
Reference was pointedly made to the appointment of a C
particular Judge to this Court as well. It was pointed out, that
the concerned Judge had decided a matter, by taking seisin
of the· same, even though it was not posted for hearing before
him. Thereafter, even though a review petition was filed to D
correct the anomaly, the same was dismissed by the concerned ·
Judge. While projecting his concern with reference to the
appointment of Judges to the higher judiciary under the
collegium system, learned senior counsel emphatically pointed
out, that the procedure in vogue before the impugned E
constitutional amendment, could be described as a closed-
door process, where appointments were made in a hush-hush
manner. He stated that the stakeholders, including prominent
lawyers with unimpeachable integrity, were never consulted. It
was submitted, that inputs were never sought, from those who F
could render valuable assistance, forthe selection of the best,
from amongst those available. It was pointed out, that the
process of appointment of Judges under the collegium system,
was known to have been abused in certain cases, and that,
there were certain inherent defects therein. It was submitted, G
that the policy of selection, and the method of selection, were
not justiciable, being not amenable to judicial review, and as
such, no challenge could be raised to· the wrongful
appointments made under the "collegium system".
                                                              H
412         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A          131. On the subject of the manner. of interpreting the
   Constitution, with reference to appointments to the higher
   judiciary, reliance was placed on Registrar (Admn), High Court
   of Orissa, Cuttack v. Sisir Kanta Satapathy32 , to contend, that
   in spite of having noticed the judgments rendered in the Second
 B Judges case, this Court struck a note of caution, with reference
   to the control, vested in the High Courts, over the subordinate
   judiciary. It was pointed out, that it had been held, that control
   had to be exercised without usurping the power vested with
   the executive, especially the power under Articles 233, 234
 C and 235. It is submitted, that the power of the executive in the
   matter of appointments of Judges to the higher judiciary, could
   not be brushed aside, without any justification. It was
   contended, that it was improper to assume, that only the
   judiciary could appoint the best Judges, and the executive or
 0
   the legislature could not.
           132. Learned senior counsel also made an impassioned
   reference, to the failure of the judiciary, to grant relief to the
   victims of the 1984 riots in Delhi, and the 2003 riots in Gujarat.
 E It was also asserted, that justice had been denied to those
   who deserved it the most, namely, the poor citizenry of this
   country. It was pointed out, that the manner of appointment of
   Judges, through the "collegium system", had not produced
   Judges of the kind who were sensitive to the rights of the poor
 F and needy. It was the assertion of the learned senior counsel,
   that the new system brought in for selection and appointment
   of Judges to the higher judiciary, should be tried and tested,
   and in case, certain parameters had to be provided for, to
   ensure its righteous functioning to achieve the best results, it
 G was always open to this Court to provide such guidelines.
      V. THE DEBATE AND THE DELIBERATION:
                                     I.
           133. The Union Government, as also, the participating
 H    State Governments, were all unanimous in their ventilation, that
     SUPREME COURT ADVOCATES-ON-RECORD                               413
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

 the impugned constitutional amendment, had been passed              A
  unanimously by both the Lok Sabha and the Rajya Sabha,
 wherein parliamentarians from all political parties had spoken
  in one voice. The Lok Sabha had passed the Bill with 367
  Members voting in favour of the Bill, and no one against it (the
  Members from the AIADMK- 37 in all, had however abstained          B
 from voting). The Rajya Sabha passed the Bill with 179
  Members voting in favour of the Bill, and one of its Members-
  Ram Jethmalani, abstaining. It was submitted, that on account
  of the special procedure prescribed under the proviso to Article
. 368(2), the Bill was ratified in no time by half the State         C
  Legislatures. Mr. Tushar Mehta, learned Additional Solicitor
  General of India, had informed the Court, that as many as
 twenty-eight State Assemblies, had eventually ratified the Bill.
  It was assented to by the President on 31.12.2014. It was
 therefore asserted, that the Constitution (99th Amendment) Act      D
  manifested, the unanimous will of the people, and therefore,
 the same must be deemed to be expressive of the desire of
 the nation. Based on the fact, that impugned constitutional
  amendment reflected the will of the people, it was submitted,      E
  that it would not be appropriate to test it through a process of
 judicial review, even on the touchstone of the concept of "basic
  structure".
      134. Learned counsel representing the petitioners,
described the aforesaid assertion as misplaced. The F
contention was repulsed by posing a query, whether the same
was the will of the nation of the "haves", or the will of the nation
of the "have-nots"? Another question posed was, whether the
impugned constitutional amendment represented the desire
of the rich, the prosperous and the influential, or the poor and G
the needy, whose conditions, hopes and expectations had
nothing to do with the impugned constitutional amendment? It
was submitted, that the will of the nation, could only be decided
by a plebiscite or a referendum. It was submitted, that the H
414        SUPREME COURT REPORTS                    [2015] 13S.C.R.


A  petitioners would concede, that it could certainly be described
   as the overwhelming will of the political-executive. And no
   more. It was asserted, that the impugned constitutional
   amendment had an oblique motive. The amendment was
   passed unanimously, in the opinion of the petitioners, for the
 B simple reason, that the higher judiciary corrects the actions of
   the executive and the legislatures. This, it was pointed out,
   bothers the political-executive.
          135. With reference to the will of the people, it was
 c submitted, that the same could easily be ascertainable from
   the decision rendered in the L.C Golak Nath case41 , wherein a
   eleven-Judge Bench declared, that a constitutional amendment
   was "law" with reference to Part Ill of the Constitution, and
   therefore, was subject to the constraint of the fundamental
 o rights, in the said part. It was pointed out, that the Parliament,
   had invoked Article 368, while passing the Constitution (25th
   Amendment)Act, 1971. By the above amendment, a law giving
   effect to the policy of the State under Articles 39(b) and 39(c)
   could not be declared void, on the ground that it was
 E inconsistent with the fundamental rights expressed through
   Articles 14, 19 and 31. Article 31C also provided, that a
   legislative enactment containing such a "declaration", namely,
   that it was for giving effect to the above policy of the State,
   would not be called in question on the ground, that it did not
 F factually gave effect to such policy. It was pointed out, that this
   Court in the Kesavananda Bharati case 10 , had overruled the
   judgment in the l.C. Golak Nath case 41 • This Court, while
   holding as unconstitutional the part of Article 31 C, which denied
   judicial review, on the basis of the "declaration" referred to
 G above, also held, that the right of judicial review was a part of
   the "basic structure" of the Constitution, and its denial would
   result in the violation of the "basic structure" of the Constitution.
           136. Proceeding further, it was submitted, that on
 H    11.6.1975, the election of Indira Gandhi to the Lok Sabha was
    SUPREME COURT ADVOCATES-ON-RECORD                                       415
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.)

set aside by the Allahabad High Court. That decision was A
assailed before the Supreme Court. Pending the appeal, the
Parliament passed the Constitution (39 1h Amendment) Act,
1975. By the above amendment, election to the Parliament, of
the Prime Minister and the Speaker could not be assailed, nor
could the election be held void, or be deemed to have ever B
become void, on any of the grounds on which an election could
be declared void. In sum and substance, by a deeming fiction
of law, the election of the Prime Minister and the Speaker would
continue to be valid, irrespective of the defect(s) and illegalities
therein. By the above amendment, it was provided, that any C
pending appeal before the Supreme Court would be disposed
of, in conformity with the provisions of the Constitution (39 1h
Amendment) Act, 1975. The aforesaid amendment was struck
down by this Court, by declaring that the same amounted to a D
negation of the "rule of law", and also because, it was "anti-
democratic", and as such, violated the "basic structure" of the
Constitution. It was submitted, that as an answer to the striking
down of material parts of Article 39A of the Constitution, the
Parliament while exercising its power under Article 368, had E
passed the Constitution (42nd Amendment) Act, 1976, by an
overwhelming majority. Through the above amendment, the
Parliament added clauses (4) and (5) to Article 368, which
read as under:
       "(4) No amendment of this Constitution (including the                F
       provisions of Part Ill) made or purporting to have been made
       under this article whether before or after the
       commencement of section 55 of the Constitution (Forty-
       second Amendment) Act, 1976 shall be called in question
       in any court on any ground.                                          G
       (5) For the removal of doubts, it is hereby declared that
       there shall be no limitation whatever on the constituent
       power of Parliament to amend by way of addition, variation
       or repeal the provisions of this Constitution under this article."
                                                                            H
416         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           The aforesaid amendment was set aside, as being
      unconstitutional, by a unanimous decision, in the Minerva Mills
      Ltd. case 33 • It was held, that the amending power of the
      Parliament under Article 368 was limited, inasmuch as, it had
      no right to repeal or abrogate the Constitution, or to destroy its
 B    "basic or essential features".
          137. Learned senior counsel pointed out, that over the
   years, yet another stratagem was adopted by the Parliament,
   for avoiding judicial interference in the working of the
 c Parliament. In this behalf, reference was made to the
   Constitution (45th Amendment) Bill, 1978, wherein it was
   provided, that even the "basic structure" of the Constitution
   could be amended, on its approval through a referendum. The
   amendment added a proviso to Article 368(2) postulating, that
 o a law compromising with the "independence of the judiciary"
   would require ratification by one half of the States, and
   thereupon, would become unassailable, if adopted by a simple
   majority vote in a referendum. Through its aforesaid action,
   the Government of the day, revealed its intention to
 E compromise even the "independence of the judiciary". Though
   the above Bill was passed by an overwhelming majority in the
   Lok Sabha, it could not muster the two-thirds majority required
   in the Rajya Sabha. It was pointed out, that the propounder of
   the Bill was the then Janata Party Government, and not the
 F Congress Party Government (which was responsible for the
   emergency, and the earlier constitutional amendments). It was
   therefore asserted, that· it should not surprise anyone, if all
   political parties had spoken in one voice, because all political
   parties were united in their resolve, to overawe and subjugate
 G the judiciary.
         138. It was submitted, that the intention of the legislature
   and the executive, irrespective of the party in power, has been
   to invade into the "independence of the judiciary". It was further
 H submitted, that attempts to control the judiciary have been more
    SUPREME COURT ADVOCATES-ON-RECORD                              417
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

pronounced in recent times. In this behalf, the Court's attention · A
was drawn to the judgments in Lily Thomas v. Union of lndia 86 ,
and Chief Election Commissioner v. Jan Chaukidar87 • It was
pointed out, that in the former judgment, this Court held as
invalid and unconstitutional, Section 8(4) of the Representation
of the People Act, 1951, which provided inter a/ia, that a B
Member of Parliament convicted of an offence and sentenced
to imprisonment for not less than two years, would not suffer
the disqualification contemplated under the provision, for a
period of three months from the date of conviction, or if the
conviction was assailed by way of an appeal or revision - till C
such time, as the appeal or revision was disposed of. By the
former judgment, convicted Members became disqualified,
and had to vacate their respective seats, even though, the
conviction was under challenge. In the latter judgment, this Court D
upheld the order passed by the Patna High Court, declaring
that a person who was confined to prison, had no right to vote,
by virtue of the provisions contained in Section 62(2) of the
Representation of the People Act, 1951. Since he/she was
not an elector, therefore it was held, that he/she could not be E
considered as qualified, to contest elections to either House
of Parliament, or to a Legislative Assembly of a State.
      139. It was pointed out, that Government (then ruled by
the U.P.A.) introduced a series of Bills, to invalidate the
judgment rendered by this Court in the Jan Choukidar case 87 •     F
This was sought to be done by passing the Representation of
the People (Amendment and Validation)Act, 2013, within three
months of the rendering of the above judgment. It was submitted,
that it was wholly misconceived for the learned counsel
representing the Union of India, and the concerned States to       G
contend, that the determination by the Parliament and the State
Legislatures, with reference to constitutional amendments,

•• (2013) 1   sec 653
., (2013) 1   sec 507                                              H
418         SUPREME COURT REPORTS                 [2015] 13S.C.R.


A     could be described as actions which the entire nation desired,
      or represented the will of the people. It was submitted, that
      what was patently unconstitutional, could not constitute either
      the desire of the nation, or the will of the people.
 B      140. Referring to the "collegium system" of appointing
  Judges to the higher judiciary, it was pointed out, that the same
  was put in place by a decision rendered by a nine-Judge
  Bench, in the Second Judges case, through which the
  "independence of the judiciary" was cemented and
c strengthened. This could be achieved, by vesting primacy with
  the judiciary, in the matter of selection and appointment of
  Judges to the higher judiciary. It was further pointed out, that
  the collegium system has been under criticism, on account of
  lack of transparency. It was submitted, that taking advantage
o of the above criticism, political parties across the political
  spectrum, have been condemning and denouncing the
  "collegium system". Yet again, it was pointed out, that the
  Parliament in its effort to build inroads into the judicial system,
  had enacted the impugned constitutional amendment, for
E interfering with the judicial process. This oblique motive, it was
  asserted, could not be described as the will of the people, or
  the will of the nation.
         141. In comparison, while making a reference to the
 F impugned constitutional amendment and the NJAC Act, it was
   equally seriously contended, that the constitutional amendment
   compromised the "independence of the judiciary", by negating
   the "primacy of the judiciary". With reference to the insinuations
   levelled by the Union of India and the concerned State
 G Governments, during the course of hearing, reference was
   made to an article bearing the title "Structure Matters: The
   Impact of Court Structure on the Indian and U.S. Supreme
   Courts", authored by Nick Robinson. Reference was made to
   the following expositions made therein:
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                   419
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      "Given their virtual self-selection judges on the Indian          A
      Supreme Court are viewed as less politicised than in the
      United States. The panel structure of the Court also
      prevents clear ideological blocks from being perceived
      {even if there are more "activist" or "conservative" judges)
      there is not the sense that all the judges have to assemble       B
      together for a decision to be legitimate or fair in the eyes of
      the public. Quite the opposite. judges are viewed as
      bringing different skills or backgrounds that should be
      selectively utilized."
      142. It was submitted, that the method of appointment,
                                                                        c
evolved through the Second and Third Judges cases, had been
hailed by several jurists, who had opined that the same could
be treated as a precedent worthy of emulation by the United
Kingdom. Reference in this behalf was also made to, the                 D
opinion of Lord Templeman, a Member of the House of Lords
in the United Kingdom.
      143. Having given our thoughtful consideration to the
position assumed by the learned counsel representing the rival
parties, it is essential to hold, that every constitutional E
amendment passed by the 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 F
the will of the people, for the simple reason, that
parliamentarians are considered as representatives of the
people. In our view, as long as the stipulated majority supports
a constitutional amendment, it would be treated as a G
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 H
420         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     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 the Parliament, which
      cannot be breached.
 B
             144. An ordinary legislation enacted by the 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
 c    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 legislations, which cannot be violated.
 D          145. 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 of the special and more rigorous procedure
     expressed in the proviso under Article 368(2), the repeated
 E · 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),
 F constituted the will of the people, and the same was not subject
     to judicial review. The same argument had been repeatedly
     rejected by this Court by holding, that Article 368 postulates
     only a "procedure" for amendment of the Constitution, and that,
     the same could not be treated as a "power" vested in the
 G Parliament to amerid 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. The above
     position has been projected, through the judgments cited on
     behalf of the petitioners, to which reference has been made
 H hereinabove.
    SUPREME COURT ADVOCATES-ON-RECORD                            421
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

        146. Therefore, even though the Parliament may have A
passed the Constitution (121st Amendment) Bill, with an
overwhelming majority, inasmuch as, only 37 Members from
the AIADMK had consciously abstained from voting in the Lok
Sabha, and only one Member of the Rajya Sabha - Ram
Jethmalani, had consciously abstained from voting in favour B
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 the Parliament or a State Legislature,
cannot vary, so as to adopt different standards, by taking into C
consideration the strength of the Members of the concerned
legislature, which had approved and passed the concerned
Bill. If a constitutional amendment breaches the "core" of the
Constitution or destroys its "basic or essential features" in a D
manner which was patently unconstitutional, it would have
crossed over forbidden territory. This aspect, would
undoubtedly fall 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, would be E
subject to judicial review on the touchstone of the "basic
structure" of the Constitution, and the parameters laid down
by this Court in that behalf, even though the impugned
constitutional amendment may have been approved and
passed unanimously or by an overwhelming majority, and F
notwithstanding the ratification thereof by as many as twenty-
eight State Assemblies. Accordingly, we find no merit in the
contention advanced by the learned counsel for the
respondents, that the impugned constitutional amendment is
not assailable, through a process of judicial review.              G
                               II.
    147. It was the submission of the learned Attorney
General, that the "basic features/basic structure" of the
Constitution, should only be gathered from a plain reading of     H
422         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A the provision(s) of the Constitution, as it/they was/were originally
   enacted. In this behalf, it was acknowledged by the learned
   counsel representing the petitioners, that the scope and extent
   of the "basic features/basic structure" of the Constitution, was
   to be ascertained only from the provisions of the Constitution,
B as originally enacted, and additionally, from the interpretation
   placed on the concerned provisions, by this Court. The above
  ·qualified a·ssertion made on behalf of the petitioners, was
   unacceptable to the learned counsel representing the
   respondents.
c
            148. The above disagreement, does not require any
      detailed analysis. The instant aspect, stands determined in
      the M. Nagaraj case 36 , wherein it was held as under:
            "... The question is -whether the impugned amendments
D           discard the original Constitution. It was vehemently uraed
            on behalf of the petitioners that the Statement of Objects
            and Reasons indicates that the impugned amendments
            have been promulgated by Parliament to overrule the
            decisions of this Court. We do not find any merit in this
 E          argument. Under Article 141 of the Constitution the
            pronouncement of this Court is the law of the land."
         149. The cause, effect and the width of a provision, which
  is the basis of a challenge, may sometimes not be apparent
F from a plain reading thereof. The interpretation placed by this
  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
G construction of the provision, in conjunction with the surrounding
  provisions, would also have been taken into consideration. The
  mandate of Article 141, obliges every court within the territory
  of India, to honour the interpretation, conclusion, or meaning
  assigned to a provision by this Court. It would, therefore be
H rightful, to interpret the provisions of the Constitution relied
    SUPREME COURT ADVOCATES-ON-RECORD                             423
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

upon, by giving the concerned provisions, the meaning, A
understanding and exposition, assigned to them, on their
interpretation by this Court. In the above view of the matter, it
would neither be legal nor just, to persist on an understanding
of the concerned provision(s), merely on the plain reading
thereof, as was suggested on behalf of the respondents. Even B
on a plain reading of Article 141, we are obligated, to read the
provisions of the Constitution, in the manner they have been
interpreted by this Court.
       150. The manner in which the term "consultation" used in   c
Articles 124, 217 and 222 has been interpreted by the Supreme
Court, has been considered at great length in the "Reference
Order'', and therefore, there is no occasion for us, to re-record
the same yet again. Suffice it to notice, that the term
"consultation" contained in Articles 124, 217 and 222 will have D
to be read as assigning primacy to the opinion expressed by
the Chief Justice of India (based on a decision, arrived at by a
collegium of Judges), as has been concluded in the "Reference
Order". In the Second and Third Judges cases, the above
provisions were interpreted by this Court, as they existed in E
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 26.01.1950). Thus viewed, we reiterate,
that in the matter of appointment of Judges to the higher
judiciary, and also, in the matter of transfer of Chief Justices F
and Judges from one High Court to any other High Court, under
Articles ~24, 217 and 222, 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). Therefore, when a question with G
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
                                                                  H
424        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A    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"
 B of the Constitution, had been preserved (-and had not been
     breached).
                                    Ill.
         151. We have already concluded in the "Reference
 C Order", that the term "consultation" used in Articles 124, 217
   and 222 (as originally enacted) has to be read as vesting
   primacy in the judiciary, 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
 D of Chief Justices and Judges of one High Court, to another.
   For arriving at the above conclusion, the following parameters
   were taken into consideration:
   (i) Firstly, reference was made to four judgments, namely, the
 E Samsher Singh case 11, 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
 F 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
   the Sankalchand Himatlal Sheth case 5 in 1977 by a five-Judge
   Bench, wherein it was held, that in all conceivable cases,
 G 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
 H
    SUPREME COURT ADVOCATES-ON-RECORD                         425
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

circumstances had entered into the verdict of the executive. In A
the instant judgment, so as to emphasize the seriousness of
the matter, this 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 B
the conclusion, that the judgment rendered in the First Judges
case, did not lay down the correct law. M.M. Punchhi, J., (as
he then was) one of the Judges on the Bench, who supported
the minority opinion, also endorsed the view, that the action of
the executive to put off the recommendation(s) made by the C
Chief Justice of India, would amount to an act of deprival,
"violating the spirit of the Constitution". In sum and substance
therefore, the Second Judges case, almost unanimously
concluded, that in the matter of selection and appointment of D
Judges to the higher judiciary, primacy in the decision making
process, unquestionably rested with the judiciary. Finally, the
Third Judges case, rendered in 1998 by another nine-Judge
Bench, reiterated the position rendered in the Second Judges
case.
                                                               E
(ii) Secondly, the final intent emerging from the Constituent
Assembly debates, based inter a/ia on the concluding remarks
expressed by Dr. B. R. Ambedkar, maintained that the judiciary
must be independent of the executive. The aforesaid position
came to be expressed while deliberating on the subject of F
"appointment" of Judges to the higher judiciary. Dr. B.R.
Ambedkarwhile responding to the sentiments expressed by°
K.T. Shah, K.M. Munshi, Tajamul Husain,Alladi Krishnaswami
Aayar and Ananthasayanam Ayyangar, noted the view of the
Constituent Assembly, that the Members were generally in G
agreement, that "independence of the judiciary", from the
executive "should be made as clear and definite as it could be
made by law". The above assertion made while debating on
the issue of appointment of Judges to the Supreme Court,
                                                               H
426        SUPREME COURT REPORTS                   [2015] 13S.C.R.


A  effectively resulted in the acknowledgement, that the issue of
   "appointment" of the Judges to the higher judiciary, had a direct
   nexus with "independence of the judiciary". Dr. B.R. Ambedkar
   declined the proposal of adopting the manner of appointment
   of Judges, prevalent in the United Kingdom and in the United
 B States of America, and thereby, rejected the subjugation of
   the process of selection and appointment of Judges to the
   higher judiciary, at the hands of the executive and the legislature
   respectively. While turning down the latter proposal, Dr. B.R.
   Ambedkar was suspicious and distrustful, that in such an
 C eventuality, appointments to the higher judiciary, could be
   impacted by "political pressure" and "political considerations".
    (iii) Thirdly, the actual practice and manner of appointment of
    Judges to the higher judiciary, emerging from the parliamentary
 D 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,
 E mandated the primacy of the judiciary, expressed through the
    Chief Justice of India. In this behalf, even the learned Attorney
    General 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
 F 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.
 G (iv) Fourthly, 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 redrawn in 1999, after
 H the decision in the Second Judges case, manifest that, the
     SUPREME COUHT ADVOCATES-ON-RECORD                             427
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

 executive tiad understood and accepted, that selection and A
 appointment of Judges to the higher judiciary would emanate
 from, and would be made on the advice of the Chief Justice of
 India.
  (v) Fifthly, having adverted to the procedure in place for the
                                                                    8
  selection and appointment of Judges to the higher judiciary,
  the submission advanced on behalf of the responqents, that
  the Second and Third Judges cases had created a procedure,
  where Judges select and appoint Judges, or that, the system
  of lmperium in lmperio had been created for appointment of       c
· Judges, was considered and expressly rejected (in the
  "Reference Order"). Furthermore, the submission, that the
  executive had no role, in the prevailing process of selection
  and appointment of Judges to the higher judiciary was also
  rejected, by highlighting the role of the executive in the matter D
  of appointment of Judges to the higher judiciary. Whilst
  recording the above conclusions, it was maintained (in the
  "Reference Order''), that primacy in the matter of appointment
  of Judges to the higher judiciary, was with the Chief Justice of
  India, and that, the same was based on the collective wisdom E
  of a collegium of Judges.
 (vi) Sixthly, the contention advanced at the behest of the
 respondents, that even in the matter of appointment of Judges
 to the higher judiciary (and in the matter of their transfer) under F
 Articles 124, 217 (and 222), must be deemed to be vested in
 the executive, because the President by virtue of the
 constitutional mandate contained in Article 74, had to act in
 accordance with the aid and advice tendered to him by the
 Council of Ministers, was rejected by holding, that primacy in G
 the matter of appointment of Judges to the higher judiciary,
 continued to remain with the Chief Justice of India, and that,
 the same was based on the collective wisdom of a collegium
 of Judges. In recording the above conclusion, reliance was
 placed on Article 50. Reliance was also placed on Article 50, H
428         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     for recording a further 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".
            152. In view of the above, it has to be concluded, that in
 8
      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.
      And that, the same was expected to be expressed, on the basis
c     of the collective wisdom, of a ccillegium of Judges. Having so
      concluded, we reject all the submissions advanced at the hands
      of the learned counsel for the respondents, canvassing to the
      contrary.
                                     IV.
 D
          153. The next question which arises for consideration
   is, whether the process of selection and appointment of Judges
   to the higher judiciary (i.e., Chief Justices, and Judges of the
   High Courts and the Supreme Court), and the transfer of Chief
 E Justices and Judges of one High Court to another,
   contemplated through the impugned constitutional amendment,
   retains and preserves primacy in the decision making process,
   with the judiciary? It was the emphatic contention of the learned
   Attorney General, the learned Solicitor General, the learned
 F Additional Solicitor General, and a sizeable number of learned
   senior counsel who represented the respondents, that even
   after the impugned constitutional amendment, primacy in the
   decision making process, under Articles 124, 217 and 222,
   has been retained with the judiciary. Insofar as the instant
 G aspect of the matter is concerned, it was contended on behalf
   of the respondents, that three of the six Members of the NJAC
   were ex officio Members drawn from the judiciary- the Chief
   Justice of India, and two other senior Judges of the Supreme
   Court, next to the Chief Justice. In conjunction with the aforesaid
 H




                                                                          /
    SUPREME COURT ADVOCATES-ON-RECORD                               429
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

factual position, it was pointed out, that there was only one       A
nominee from the political-executive - the Union Minister in
charge of Law and Justice. It was submitted, that the remaining
two Members, out of the six-Member NJAC, were "eminent
persons", who were expected to be politically neutral. Therefore,
according to learned counsel representing the respondents,          B
primacy in the matter of selection and 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,
even under the impugned constitutional amendment, continued
to remain, in the hands of the judiciary.                           C
      154. In conjunction with the aforesaid submission, it was
emphatically pointed out, that the provisions of the NJAC Act
postulate, that the NJAC would not recommend a person for
appointment as a Judge to the higher judiciary, if any two          o
Members of the NJAC, did not agree with such
recommendation. Based on the fact, that the Chief Justice of
India and the two other senior Judges of the Supreme Court,
were ex officio Members of the N'JAC, it was asserted, that
the veto power for rejecting an unsuitable recommendation by        E
the judicial component of the NJAC, would result in retaining
primacy in the hands of the judiciary, in the matter of selection
and 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. This according to learned counsel for        F
the respondents, was because the judicial component would
be sufficient, in preventing the other Members of the NJAC,
from having their way.
     155. Having given our thoughtful consideration to the          G
above contention, there can be no doubt, that in the manner
expressed by the learned counsel, the suggested inference
may well be justified on paper. The important question to be
considered is, whether as a matter of practicality, the impugned
constitutional amendment can be considered to have                  H
430         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     sustained, primacy in the matter of decision making, under
      the amended provisions of Articles 124, 217 and 222, in
      conjunction with the inserted provisions of Articles 124A to
      124C, with the judiciary?
            156. The exposition made by the learned Attorney
 8
      General and some of the other learned counsel representing
      the respondents, emerges from an over simplified and narrow
      approach. The primacy vested in the Chief Justice of India
      based on the collective wisdom of a collegium of Judges, needs
c     a holistic approach. It is not possible for us 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 the NJAC, was svfficiently capable, to reject
      the candidature of an unworthy nominee. We are satisfied, that
 o    in the matter of primacy, the judicial component of the NJAC,
      should be competent by itself, to ensure the appointment of a
      worthy nominee, as well. Underttie substituted scheme, even
      if the Chief Justice of India and the two other senior most
      Judges of the Supreme Court (next to the Chief Justice of India),
 E    consider a nominee to be worthy for appointment to the higher
      judiciary, the concerned individual may still not be appointed,
      if any two Members of the NJAC opine otherwise. This would
      be out-rightly obnoxious, to the primacy of the judicial
      component. The magnitude of the instant issue, is apparent
 F    from the fact that the two "eminent persons" (-lay persons,
      according to the learned Attorney General), could defeat the·
      unanimous recommendation made by the Chief Justice of India
      and the two senior most Judges of the Supreme Court,
      favouring the appointment of an individual under consideration.
 G    Without any doubt, demeaning primacy of the judiciary, in the
      matter of selection and appointment of Judges to the higher
      judiciary. The reason to describe it as being obnoxious is this
      - according to the learned Attorney General, "eminent persons"
 H    had to be lay persons having no connection with the judiciary,
    SUPREME COURT ADVOCATES-ON-RECORD                             431
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

or even to the profession of advocacy, perhaps individuals who A
may not have any law related academic qualification, such lay
persons would have th~ 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 B
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.                                   C
      157. When the issue is of such significance, as the
constitutional position of Judges of the higher judiciary, it would
be fatal to depend upon the moral strength of individuals. The
judiciary has to be manned by people of unimpeachable D
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 E
and Judges of High Courts, to other High Courts). In the above
stated position, it is not possible to conclude, that the
combination contemplated for constitution of the NJAC, is such,
that would not be susceptible to an easy breach of the
"independence of the judiciary".                                    F
       158. Articles 124A(1)(a) and (b) do not provide for an
adequate representation in the matter, to the judicial
component, to ensure primacy of the judiciary in the matter of
selection and appointment of Judges to the higher judiciary, . G
and therefore, the same are liable to be set aside and struck
down as being violative of the "basic structure" of the
Constitution of India. Thus viewed, we are satisfied, that the
"basic structure" of the Constitution would be clearly violated,
if the process of selection of Judges to the higher judiciary H
432         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     was to be conducted, in the manner contemplated through the
      NJAC. The impugned constitutional amendment, being ultra
      vires the "basic structure" of the Constitution, is liable to.be
      set aside.

 B
                                       v.
             159. 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
 C    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
 D    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
 E    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
 F    the discretion of the President of India), not only Judges of the
      Supreme Court of India, but also Judges of High Courts (in
      addition to the mandatory consultation with the Chief Justice
      of India). One would also ordinarily feel, th~t the President of
      India and/or the Prime Minister of India in the discharge of
 G    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,
 H    that vesting the authority of apg.ointment of Judges to the higher
    SUPREME COURT ADVOCATES-ON-RECORD                                433
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

judiciary with any one of them should not ordinarily be suspect      A
of any impropriety. Yet, the Constituent Assembly did not allow
any of them, any defined participatory role. In fact the debate
in the ConstituentAssembly, removed the participation of the
political-executive component, because of fear of being
impacted by "political-pressure" and "political considerations".     B
Was the view of the ConstituentAssembly, and the above noted
distrust, legitimate?
       160.Alittle personal research, resulted in the revelation
of the concept of the "legitimate power of reciprocity", debated     c
by Bertram Raven in his article - "The Bases of Power and
the Power/Interaction Model of Interpersonal Influence" (this
article appeared in Analyses of Social Issues and Public Policy,
Vol. 8, No.1, 2008, pp. 1-22). In addition to having dealt with
various psychological reasons which influenced the personality       D
of an individual, reference was also made to the "legitimate
power of reciprocity". It was pointed out, that the reciprocity
norm envisaged, 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        E
to do this for me." - Goranson and Berkowitz, 1966; Gouldner,
1960). In the view expressed by the author, 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          F
the favour.
      161. The psychological concept of the "legitimate power
of reciprocity", was also highlighted by Dennis T. Regan of the
Cornell University in his article- "Effects of a Favour and Liking G
on Compliance". It was pointed out, that there was sufficient
evidence to establish, that favours do generate feelings of
obligation, and the desire to reciprocate. According to the
author, the available data suggested, that a favour would lead
to reported feelings of obligation, on the part of its recipient.  H
434         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A            162. In his book "Influence: The Psychology of
      Persuasion" - Robert Cialdini, Regent's Professor Emeritus
      of Psychology and Marketing at Arizona State University, in
      Chapter II titled - "Reciprocation", expressed the view, that
      "possibly one of the most potent compliance techniques, was
 B    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". It was pointed
 C    out, that the rule of reciprocation, was widespread across the
      human cultures, suggesting that it was fundamental to creating
      interdependencies on which societies, cultures, and
      civilizations were built. It was asserted, that in fact the rule of
      reciprocation assured, that someone who had given something
 D    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. Referring to Marcel Nauss, who had conducted
      a study on gift giving, it was emphasised, that "there is an
 E    obligation to give, an obligation to receive, and an obligation
      to repay". According to the author, it was 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 it was concluded, that although
 F    the obligation to repay constituted the essence of the
      reciprocity rule, it was the obli@ation to receive, that made the
      rule so easy tQ exploit. Describing the power of reciprocity,
      Cialdini in his article expressed, that the person who gives
      first remains, in control; and the person who was the recipient,
 G    always remained in debt. It is pointed out, that the above
      situation was often deliberately created, and psychologically
      maintained. It was also the view of the author, that the more
      valuable, substantial and helpful the original favour, the more
      indebted the recipient would continue to feel. In the above
 H    article, a reference was made to Alvin Gouldner, in whose
    SUPREME COURT ADVOCATES-ON-RECORD                              435
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

opinion, there was no human society on earth, that does not A
follow the rule of reciprocity. Referring also to the views of the
renowned cultural anthropologists - Lionel Tiger and Robin
Fox, it was affirmed, that humans lived in a "web of
indebtedness". Therefore it was felt, that reciprocity was a
debt and a powerful psychological tool, which was all, but B
impossible to resist.
       163. 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        c
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 D
or more Member(s) of the Senate, with whose support the
Judge believes he won the vote of confirmation. An article
titled as "Loyalty, Gratitude, and the Federal Judiciary", written
by Laura E. Little (Associate Professor of Law, Temple
University School of Law, as far back as in 1995), deals with E
the issue in hand, pointedly with reference to appointment of
Judges. The article reveals, that the issue of reciprocity has
been a subject of conscious debate, with reference to the
appointment of Judges for a substantial length of time. The
conclusions drawn in the above article are relevant to the F
present controversy, and are being extracted hereunder:
      "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      G
      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          H
436   SUPREME COURT REPORTS                  [2015) 13S.C.R.

A     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.
B     I have sought to show both 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
c     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.
      In the last few years, we have witnessed a wave of
 D
      dissatisfaction with the selection process for federal
      judges. Legal scholarship in particular has offered
      frequent critique and constructive suggestions for
      change. As it must, this scholarship recognizes that any
      change ventured must weigh the impact of nomination
 E
      and confirmation on a number of segments of American
      life, including the constitutional balance of powers and
      public perception of the judiciary.
      To omit from these concerns the effect of any change
 F    on the ultimate quality of judicial decision making would,
      of course, be a mistake. Thus. in studying any new
      selection procedure, we must contemplate the
      procedure's potential for creating and invigorating a
       judge's feelings of loyalty and gratitude to her
 G    benefactors. 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."
 H
    SUPREME COURT ADVOCATES-ON-RECORD                          437
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       164. ltishowever pertinentto mention, thatin her article, A
Laura E. Little has expressed, what most moral philosophers
believed, that gratitude has significant moral components. And
further, that gratitude has a ready place in utilitarian moral
systems, which were designed to ensure the greatest good
for the greatest number of individuals. The concept of gratitude B
was however intertwined with loyalty by Laura E. Little, as in
her view, gratitude and~ loyalty, were closely related. A
beneficiary could show gratitude to a benefactor, through an
expression of loyalty. The point sought to be made was, that in
understanding loyalty one understands, who we are in our· C
friendships, loves, family bonds, national ties, and religious
devotion. Insofar as the patterns of behaviour in the Indian
cultural system is concerned, a child is always obligated to his
parents for his upbringing, and it is the child's inbuilt moral D
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 E
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
individual imagination, to determine the enormity of the
reciprocal gratitude and loyalty.                                F
      165. The consideration recorded hereinabove, endorses
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 G
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 H
438         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A  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-
 B executive dispensation has the least nexus, with the process
   of finalization of appointments of Judges to the higher judiciary.
                                    VI. .
            166. The jurisdictions that have to be dealt with, by
 c. 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
      /is. This would inter alia include cases arising out of taxing
      statutes which have serious financial implications. The
 D    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
 E    arising out of orders passed by Tribunals of the nature of the
      Telecom Disputes Settlement &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
 F    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
 G    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,
 H     adjudication rendered by the Central Administrative Tribunal,
    SUPREME COURT ADVOCATES-ON-RECORD                              439
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

and theArmed Forces Appellate Tribunal come up before the          A
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   B
higher judiciary.
       167. 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    c
Law and Justice, as an ex officio Member of the 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 of the rules of natural justice. One of the rules of
natural justice is, that the adjudicator should not be biased. D
This would mean, that he should neither entertain a prejudice
against either party to a /is, 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. When the present set of cases E
came up for consideration, a plea of conflict of interest was
 raised even against one of the presiding Judges on the Bench,
which resulted in the recusal of Anil R. Dave, J. on 15.4.2015.
A similar prayer was again made against one of us (J.S.
 Khehar, J.), on 21.4.2015, on the ground of conflict of interest. F
 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 G
 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 H
440         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     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. The instant issue arose for consideration in the Madras
      Bar Association case 35 • In the above case a five-Judge Bench
B     considered the legality of the participation of Secretaries of
      Departments of the Central Government in the selection and
      appointment of the Chairperson and Members of the National
      Tax Tribunal. On the above matter, this Court held, as under:
             "131.Section 7 cannot even otherwise be considered to be
c            constitutionally valid, since it includes in the process of
             selection and appointment of the Chairperson and Members
             of NTT, Secretaries of Departments of the Central
             Government. In this behalf, it would also be pertinent to
 D           mention that the interests of the Central Government would
             be represented on one side in every litigation before NTT.
             It is not possible to accept a party to a litigation can
             participate in the selection process whereby the
             Chairperson and Members of the adjudicatory body are
 E           selected .... "
          The position herein is no different. The Attorney General
   however attempted to distinguish the matter in hand, from the
   controversy decided in the cited case by asserting, that in
   cases adjudicated upon by the National Tax Tribunal the
 F "... Central Government would be represented on one side in
   every litigation ... "which is not the case before the higher
   judiciary. The rebuttal, clearly avoids the issue canvassed. One
   would assume from the response, that the position was
   conceded to the extent of matters, where the executive was a
 G party to the tis. But that itself would exclude the selected Judges
   from hearing a large majority of cases. One would therefore
   reject the response of the Union of India.
            168. We are of the view, that consequent upon the
 H    participation of the Union Minister in charge of Law and Justice,
    SUPREME COURT ADVOCATES-ON-RECORD                                  441
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

a Judge approved for appointment with the Minister's support,          A
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 the NJAC, the Union Minister iri charge of
Law and Justice would be a party to all final selections and
appointments of Judges to the higher judiciary. It may be              B
difficult for Judges approved by the 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 /is. The above,
would have the inevitable effect of undermining the
"independence of the judiciary", even where such a plea is             C
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,      D
in the final process of selection, as an ex officio Member of
the NJAC, would render the amended provision of Article
124A(1 )(c) as ultra vires the Constitution, as it impinges on
the principles of "independence of the judiciary'' and "separation
of powers".
                                                                       E
                                VII.
      169. The learned Attorney General had invited our
attention to the manner in which judicial appointments were
being made in fifteen countries. It was submitted, that in nine F
countries Judges were appointed either through a Judicial
Appointments Commission, or through a Judicial
Appointments Committee, or through a Judicial Appointments
Council. It was highlighted, that in four countries, Judges were
appointed directly by the executive, i.e., by the Governor G
General or the President. We were informed, that in one
European country, Judges were nominated by the Minister of
Justice and confirmed by the Parliamentary Committee. In the
United States of America, Judges were appointed through a
process of nomination by the President and confirmation by H
442         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     the Senate. It was highlighted, that in all the fifteen countries,
      the executive was the final determinative/appointing authority.
      And further that, in all the countries, the executive had a role to
      play in the selection and appointment of Judges. The foresaid
      factual position was brought to our notice for the singular
 B    purpose of demonstrating, that executive participation in the
      process of selection and appointment of Judges had not made
      the judiciary in any of the fifteen countries, subservient to the
      political-executive. It was asserted, that the countries referred
      to by him were in different continents of the world, and there
C     was no complaint with reference to the "independence of the
      judiciary". The point sought to be driven home was, that the
      mere participation of the executive in the selection and
      appointment of Judges to the higher judiciary, did not impinge
      upon the "independence of the judiciary".
 0
           170. The aforestated submission does not require an
      elaborate debate. Insofar as the instant aspect of the matter
      is concerned, as the same was examined in the Second
      Judges case, wherein S. Ratnavel Pandian, J., one of the
 E    Judges who passed a separate concurring order, supporting
      the majority view. He had rejected the submission of the nature
      advanced by the learned Attorney General, with the following
      observations:
             "194. Nevertheless, we have, firstly to find out the ails from
 F           which our judicial system suffers; secondly to diagnose
             the root cause of those ailments under legalistic biopsies,
             thirdly to ascertain the nature of affliction on the system
             and finally to evolve a new method and strategy to treat
             and cure those ailments by administering and injecting a
 G
             'new invented medicine' (meaning thereby a newly-
             developed method and strategy) manufactured in terms of
             the formula under Indian pharmacopoeia (meaning thereby
             according to national problems in a mixed culture etc.) but
 H           not according to American or British pharmacopoeia which
    SUPREME COURT ADVOCATES-ON-RECORD                             443
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      are alien to our Indian system though the system adopted A
      in other countries may throw some light for the development
      of our system. 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 B
      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 C
      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 D
      makes the appointments notwithstanding the existence of
      any existing similar constitutional provisions in their
      Constitutions."
        171. Despite our having dealt with the submission
canvassed at the hands of the learned Attorney General based E
on the system of appointment of Judges to the higher judiciary
in fifteen countries, we consider it expedient to delve further
on the subject. During the hearing of the present controversy,
a paper written in November 2008, by Nuno Garoupa and Tom
Ginsburg of the Law School, University of Chicago, came to F
hand. The paper bore the caption - "Guarding the Guardians:
Judicial Councils and Judicial Independence". The paper refers
to.comparative evidence, of the ongoing debate, about the
selection and discipline of Judges. The article proclaims to
aim at two objectives. Firstly, the theory of formation of Judicial G
Councils, and the dimensions on which they differ. And
secondly, the extent to which different designs of Judicial
Council, affect judicial quality. These two issues were
considered as of extreme importance, as the same were
                                                                    H
444          SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A determinative of the fact, whether Judges would be able to
  have an effective role in implementing social policy, as broadly
  conceived. It was observed, that Judicial Councils had come
  into existence to insulate the appointment, promotion and
  discipline of Judges from partisan political influence, and at
B the same time, to cater to some level of judicial accountability.
  It was the authors' view, that the Judicial Councils lie
  somewhere in between the polar extremes of letting Judges
  manage their own affairs, and the alternative of complete
  political-executive control of appointments, promotions and
C discipline.
              172. According to the paper, 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 in·sulate the
 o     entire judiciary from political control. It was asserted, that 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
 E     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. According
       to the paper, the French model came into existence as a
       consequence of concerns about excessive politicization.
 F     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
 G     scandals. The paper describes the pattern in Italy 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
 H     participation, in political activity. The composition of the
    SUPREME COURT ADVOCATES-ON-RECORD                                445
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Council in Italy, was accordingly altered in 2002, to increase       A
the influence of the Parliament.
       173. The paper noted, that the French-Italian models had
 been adopted in Latin America, and other developing
 countries. It was pointed out, that the World Bank and other        B
 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, was considered as a refinement of the Judicial
 Council model. The perceived Supreme Council of Magistracy,         c
 requires that at least half of the Members are Judges, even
 though, some of the Members of the Supreme Council are
 drawn from the Parliament. It was the belief of the authors of
 the paper, that the motivating concern for adoption of the
 Supreme Councils, in the French-Italian tradition, was aimed        D
 at ensuring "independence of the judiciary" after periods of
 undemocratic rule. Perhaps because of concerns over
 structural problems, it was pointed out, that external
 accountability had emerged as a second goal for these
·Supreme Councils. Referring to the Germany, Austria and             E
 Netherlands models, it was asserted, that their Councils were
 limited to playing a role in selection (rather than promotion and
 discipline) of Judges. Referring to Dutch model, it was pointed
 out, that recent reforms were introduced to ensure more
 transparency and accountability.                                    F
      174. It was also brought out, that Judicial Councils in civil
law jurisdictions, had a nexus to the Supreme Court of the
country. Referring to Costa Rica and Austria, it was brought
out, that the Judicial Councils in these countries were a G
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.                         H
446        SUPREME COURT REPORTS                  [2015] 138.C.R.


A         175. Referring to recruitment to the judiciary in common
   law countries, it was pointed out, that 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
 B participation. It was pointed out, that New Zealand and Australia
   were debating whether to follow the same. The above
   legislation, it was argued, postulated a statutory duty on
   Government Members, not to influence judicial decisions. And
   also, excluded the participation of the Lord Chancellor in all
 C 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).
         176. Referring to the American experience, it was noted,
 o that 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, it was felt, were analogous to Judicial
   Councils. The system contemplated therein, was non-partisan.
 E The Judicial Selection Commission comprised of judges,
   lawyers and political appointees.
          177. Referring to the works of renowned jurists on the
   subject, it was sought to be concluded, that in today's world,
 F there was a strong consensus, that of all the procedures, the
   merit plan insulated the judiciary from political pressure. In
   their remarks, emerging from the survey c~rried out by them, it
   was concluded,-that it was impossible~(d eliminate political
   pressure on the judiciary. Judicial Commissions/ Councils
 G created in different countries were, in their view, measures to
   enhance judicial independence, and to minimize political
   influence. It was their view that once given independence, Judges
   were more useful for resolving a wider range of more important
   disputes, which were considered essential, given the fact that
 H more and more tasks were now being assigned to the judiciary.
      SUPREME COURT ADVOCATES-ON-RECORD                              447
    ASSOCIATION v. U.0.1. [JAG DISH SINGH KHEHAR, J.]

        178. In analyzing the conclusions drawn in the article, one A
  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 B
  effectively support nation building. In the subject matter, which
  falls for our consideration, it would be imperative for us, to keep
  in mind, the progression of the concepts of"independence of
  the judiciary" and "judicial review" were now being recognized
  the world over. The diminishing role of executive and political C
  participation, on 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
                                                                       0
   Indian scenario, as is presently conceived, through the
  judgments rendered in the Second and 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 the NJAC, as also, the E \..
   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.                          F
                               VIII.
        179. The only component of the NJAC, which remains to
  be dealt with, is with reference to the two "eminent persons"
  required to be nominated to the NJAC. It is not necessary to       G
  detail the rival submissions on the instant aspect, as they have
  already been noticed extensively, hereinbefore.
        180. We may proceed by accepting the undisputed
  position, that neitherthe impugned constitutional amendment,
  nor the NJAC Act postulate any positive qualification to be        H
448        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A  possessed by the two "eminent persons" to be nominated to
   the NJAC. These constitutional and legislative enactments do
   not even stipulate any negative disqualifications. It is therefore
   apparent, that the choice of the two "eminent persons" would
   depend on the free will of th.e nominating authorities. The
 B question that arises for consideration is, whether it is just and
   appropriate to leave the issue, to the free will and choice, of
   the nominating authorities?
          181. The response of the learned Attorney General was
 C emphatic. Who could know better than the Prime Minister, the
   Chief Justice of India, or the Leader of Opposition in the Lok
   Sabha (and when there is no such Leader of Opposition, then
   the Leader of the single largest Opposition Party in the Lok
   Sabha)? And he answered the same by himself, that if such
 o high ranking constitutional authorities can be considered as
   being unaware, then no one in this country could be trusted, to
   b.e competent, to take a decision on the matter - neither the
   legislature, nor the executive, and not even the judiciary. The
   Attorney General then quipped - surely this Court would not
 E .set aside the impugned constitutional
                             .
                                          amendment, or the NJAC
   Act, on such a trivial issue. He also suggested, that we st}.ould
    await the outcome of the nominating authorities, and if this
   Court felt that a particular individual nominated to discharge
   the responsibility entrusted to him as an "eminent person" on
 F the NJAC, was inappropriate or unacceptable or had no nexus
   with the responsibility required to be shouldered, then his
    appointment could be set aside.
         182. Having given our thoughtful consideration to the
 G matter, we are of the view, that the issue in hand is certainly
   not as trivial, as is sought to be made out. The two "eminent
   persons" comprise of 1/3rd strength of the NJAC, and double
   that of the political-executive component. We could understand
   the import of the submission, only after hearing learned counsel.
 H The view emphatically expressed by the Attorney General was
    SUPREME COURT ADVOCATES-ON-RECORD                           449
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

that the "eminent persons" had to be "lay persons" having no A
connection with the judiciary, or even to the profession of
advocacy, perhaps individuals who may not have any law
related academic qualification. Mr. T.R. Andhyarujina, learned
senior counsel who represented the State of Maharashtra,
which had ratified the impugned constitutional amendment, had B
appeared to support the impugned constitutional amendment,
as well as, the NJAC Act, expressed a diametrically opposite
view. In his view, the "eminent persons" with reference to the
NJAC, could only be picked out of, eminent lawyers, eminent
jurists, and even retired Judges, or the like, having an insight C
to the working and functioning of the judicial system. It is
therefore clear, that in the view of the learned senior counsel,
the nominated "eminent persons" would have to be individuals,
with a legal background, and certainly not lay persons, as was D
suggested by the learned Attorney General. We have recorded
the submissions advanced by Mr. DushyantA. Dave, learned
senior counsel - the President of the Supreme Court Bar
Association, who had addressed the Bench in his usual
animated manner, with no holds barred. We solicited his view, E
whether it would be proper to consider the inclusion of the
President of the Supreme Court Bar Association and/or the
Chairman of the Bar Council of India, as ex officio Members
of the NJAC in place of the two "eminent persons". His
response was spontaneous "Please don't do that!!" and then F
after a short pause, " ... that would be disastrous !!". Having
examined the issue with the assistance of the most learned
and eminent counsel, it is imperative to conclude, that the issue
of description of the qualifications (- perhaps , also the
disqualifications) of "eminent persons" is of utmost importance, G
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 the NJAC, and double that of
the political-executive component, and as such, will have a H
450         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     supremely important role in the decision making process of
      the NJAC. We are therefore persuaded to accept, that Article
      124A(1 )(d) is liable to be 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
 B    undefined.
          183. It is even otherwise difficult to appreciate the logic
   of including two "eminent persons", in the six-Member NJAC.
   If one was to go by the view expressed by the learned Attorney
c  General, "eminent persons" had been included in the NJAC,
   to infuse inputs which were hitherto not available with the
   prevailing selection process, for appointment of Judges to the
   higher judiciary. Really a submission with all loose ends, and
   no clear meaning. He had canvassed, that they would be "lay
 o persons" having no connecti~n with the judiciary, or even with
   the profession of advocacy, perhaps individuals who did not
   even have any law related academic qualification. It is difficult
   to appreciate what inputs the "eminent persons", satisfying the
   qualification depicted by the learned Attorney General, would
 E render in the matter of selection and appointment of Judges
   to the higher judiciary. The absurdity of including two "eminent
   persons" on the NJAC, can perhaps be appreciated if one
   were to visualize the participation of such "lay persons", in the
   selection of the Comptroller and Auditor-General, the Chairman
 F 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. In our considered
   view, it is imprudent to ape a system prevalent in an advanced
 G country, with an evolved civil society.
            184. 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
 H    and appointment of Judges to the higher judiciary, make
    SUPREME COURT ADVOCATES-ON-RECORD                          451
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

wrongful selections, it may well lead the nation into a chaos of A
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 B
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 to the working and functioning of C
the jud_icial system. And by ensuring, that the participants have
no conflict of interest. Obviously, the final selecting body would
not be bound by the opinion experienced, but would be obliged
to keep the opinion tendered in mind, while finalizing the names D
of the nominated candidates.
      185. It is also difficult to appreciate the wisdom of the
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 E
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 ~upreme Court,
and persons being considered for appointment as Chief
Justices and Judges of High Courts, cannot be appointed, if F
any two Members of the 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 G
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 the NJAC. That
would obviously include the power to reject, the unanimous H
452         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A recommendation of the entire judicial component of the NJAC.
  In our considered view, the vesting of such authority in the
  "eminent persons", is clearly unsustainable, in the scheme of
  "independence of the judiciary". Vesting of such authority on
  persons who have no nexus to the system of administration of
B justice is clearly arbitrary, and we hold it to be so. The inclusion
  of "eminent persons", as already concluded above (refer to
  paragraph 156), would adversely impact primacy of the
  judiciary, in the matter of selection and appointment of Judges
  to the higher judiciary (as also their transfer). For the reasons
C recorded hereinabove, it is apparent, that Article 124A(1 )(d)
   is liable to be set aside and struck down as being violative of
  the "basic structure" of the Constitution.
                                    IX.
 D          186. During the course of hearing, the learned Attorney
      General, 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 him, came to be selected
 E    and appointed as Judges of the Supreme Court. In a manner
      as would be in tune with the dignity of this Court, he had not
      referred to any of the Judge(s) by name. His reference was by
      deeds. Each and every individual present in the Court-hall,
      was aware of the identity of the concerned Judge, in the manner
 F    the submissions were advanced. The projection by the learned
      Attorney General was joyfully projected by the print and
      electronic media, extensively highlighting the allusions
      canvassed by the learned Attorney General.
 G       187. If our memory serves us right, the learned Attorney
   General 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
 H hundred Judges to the Supreme Court, since the
    SUPREME COURT ADVOCATES-ON-RECORD                                453
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

implementation of the judgment rendered in the Second                A
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, CJ., the first Chief Justice
thereunder, having been appointed as Judge of the Supreme
Courton 11.9.1995, under the "collegium system", should be           B
considered as no mean achievement.
      188. The first on the list of the learned Attorney General
was a Judge who, according to him, had hardly delivered any
judgments, both during the period he remained a Judge and            c
Chief Justice of different High Courts in the country, as also,
the period during which he remained a Judge of this 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                   D
disposition, the concerned Judge was further elevated to the
Supreme Court. The second instance cited by him was, in
respect of a Judge, who did not abide by any time schedule. It
was asserted, that the Judge, was inevitably late in
co111mencing court proceedings. It was his contention, that          E
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     F
to the Supreme Court. The third Judge was described as an
individual, who was habitually tweeting his views, on the
internet. He 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              G
Supreme Court.
      189. Just as it was impossible to overlook a submission
advanced by the Attorney General, so also, it would be improper
to leave out submissions advanced on a similar note, by none         H
454         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     other than the President of the Supreme Court Bar Association.
      Insofar as Mr. Dushyant A. Dave, Senior Advocate, is
      concerned, his pointed assertion of wrongful appointments
      included a reference to a Judge of this Court, who had allegedly
      taken on his board a case, which was not assigned to his roster.
 B    It was alleged, that he had disposed of the case wrongfully.
      Before, we dwell on the above contention, it is necessary to
      notice, that the charge leveled, does not relate to an allegedly
      improper selection and appointment. The accusation is limited
      to a wrongful determination of "one" case. Insofar as the instant
C     aspect of the matter is concerned, it is necessary for us 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
 D    petition was filed, wherein the alleged improper order passed
      by the concerned Judge, was assailed. The same was also
      dismissed. Even thereafter, a petition was filed against the
      concerned Judge, by impleading him as a party-respondent.
      The said pefitionwas also dismissed. We need to say no more,
 E    than what has been observed hereinabove, with reference to
      the particular case, allegedly wrongly decided by the concerned
      Judge.
          190. It is imperative for us, while taking into consideration
   the submissions advanced by the learned Attorney General,
 F 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. Details in
   this behalf have been recorded by us in the "Reference Order''.
 G And therefore, in case of any failure, it is not only the judicial
   component, but also the executive component, which are jointly
   and equally responsible. Therefore, to single out the judiciary
   for criticism, may not be a rightful reflection of the matter.

 H
     SUPREME COURT ADVOCATES-ON-RECORD                                455
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       191. It is not within our realm to express our agreement       A
 or disagreement with the contentions advanced at the hands
 of the learned Attorney General. He may well be right in his
 own perception, but the misgivings pointed out by him may
 not be of much significance in the perception of others, specially
 those who fully appreciate the working ofthe judicial system.        B
 The misgivings pointed out by the learned Attorney General,
 need to be viewed in the background of the following
 considerations:
 Firstly, the allegations levelled against the Judges in question,    c
 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.
 Secondly, none of the misgivings expressed on behalf of the D
 respondents, are referable to integrity and misdemeanor.
 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 at this front also.
                                                                      E
  Thirdly, not in a single of the instpnces referred to above, the
  political-executive had objected to the elevation of the Judges
  referred to. We say so, 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        F
• of the Judges referred to, figured in that list.
  Fourthly, no allegation whatsoever was made by the Attorney
  General, with reference to Judges, against whom objections
· were raised by the political-executive, and yet, they were          G
  appointed at the insistence of the Chief Justice, under the
  "collegium system".
 Fifthly, that the political-executive disposition, despite the
 allegations levelled by the learned Attorney General, chose to
                                                                      H
456         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A     grant post-retirement assignments, to three of the four
      instances referred to, during the course of hearing. A post-
      retirement assignment was also allowed by the political-
      executive, to the Judge referred to by Mr. DushyantA. Dave.
      In the above factual scenario, either the learned Attorney
B     General had got it all wrong. And if he is right, the political-
      executive got it all wrong, because it faltered despite being
      aware of the factual position highlighted.
      Lastly, it has not been possible for us to comprehend, how
c     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 concerned Judge started tweeting his views after
      his retirement, is notin dispute. The inclusion of this instance
      may well demonstrate, that all in all, the functioning of the
 D    "collegium system" may well not be as bad as it is shown to be.
          192. The submissions advanced by Mr. DushyantA. Dave
   were not limited just to the instance of a Judge of the Supreme
   Court. He expressed strong views about persons like Maya
   Kodnani, a former Gujarat Minister, convicted in a riots case,
 E for having been granted relief, while an allegedly renowned
   activist Teesta Setalvad, had to run from pillar to post, to get
   anticipatory bail. He also made a reference to convicted
   politicians and film stars, who had been granted relief by two
 F different High Courts, as also by this Court. It was his lament,
   that whilst film stars and politicians were being granted
   immediate relief by the higher judiciary,.commoners suffered
   for years. f-:f e attributed all this, to the defective selection
   process in vogue, which had resulted in the appointment of
 G "bad Judges". He repeatedly emphasized, 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 his contention, that
   Judges selected and appointed through the process presently
   in vogue, were to blame. He also expressed the view, that tbe
 H appointed Judges were oblivious of violations of human rights.
    SUPREME COURT ADVOCATES-ON-RECORD                              457
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

It was submitted, that it was shameful, that courts of law could   A.
not deliver justice, to those whose fundamental and human
rights had been violated.
       193. It is necessary to emphasise, that under every
system of law, there are two sides to every litigation. Only one B
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 c
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 wrong doing, except on the basis of adequate
material to show otherwise. Not that, the Supreme Court is D
right, but that, there has to be a closure. Most of the instances,
illustratively mentioned by the President of the Supreme Court
Bar Association, pertained to criminal prosecutions. The
adjudication of such controversies is dependent on the
adequacy of evidence produced by the prosecution. The nature E
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 F
the nature of the allegations. Once all remedies available stand
exhausted, it does not lie in the mouth of either the litigant, or
the concerned counsel to imply motives, without placing on
rec6rd any further material. It also needs to be recorded, that
while making the insinuations, learned senior counsel, did not G
make a pointed reference to any High Court Judge by name,
nor was it possible for us to identify any such Judge, merely on ·
the basis of the submissions advanced, unlike the instances
with reference to Judges of the Supreme Court. In the above H
458         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     view of the matter, it is not possible for us 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 us.
 B
        194. It is apparent that learned counsel 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. We have also
c recorded all the submissions (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 Mr. DushyantA. Dave
  - the President of the Supreme Court Bar Association, who
o 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.
E 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, thatthe system which selects them, and assigns to
  them their role, is defective.
F
                                      x.
          195. It must remain in our minds, that the Indian
    Constitution is an organic document of governance, which
    needs to change with the evolution of civil society. We have
 G already concluded, that for far more reasons than the ones,
    recorded in the Second Judges case, the term "consultation",
   ·referred to selection of Judges to the higher judiciary, really
    meant, even in the wisdom of the framers of the Constitution,
    that primacy in the matter, must remain with the Chief Justice
 H of India (arrived at, in consultation with a plurality of Judges).
    SUPREME COURT ADVOCATES-ON-RECORD                             459
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Undoubtedly, it is open to the Parliament, while exercising its   A
power under Article 368, 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      B
maintained.
      196. That, however, will depend upon the standards of
the moral fiber of the Indian polity. It cannot be overlooked,
that the learned Attorney General had conceded, that there c
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 D
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 1980's.
       197. An important issue, that will need determination, E
before the organic structure of the Constitution is altered, in
the manner contemplated by the impugned constitutional
amendment, would be, whether the civil society, has been able
to maneuver its leaders, towards national interest? And F
whether, the strength of the 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 the civil society, to play any effective
role in that direction. For the simple reason, that it is not yet G
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 savior of the fundamental rights of the citizens of
this country, by virtue of the constitutional responsibility H
460         SUPREME COURT REPORTS                    (2015] 13 S.C.R.


A     assigned to it under Articles 32 and 226, must continue to act
      as the protector of the 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.
B
          198. 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
c  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
 o 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
 E 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 the civil society, he pointed out, that hopes were raised
   during the Anna Haza re mobilization against corruption, which
 F 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 well functioning of democracy in this country, he expressed,
 G that the judiciary was more responsible than the other
   institutions.
            199. On the above interview, Mani Shankar Aiyar, a
      veteran Congress Member of Parliament in the Rajya Sabha,
 H    while expressing his views notice~, that India could not be
         SUPREME COURT ADVOCATES-ON-RECORD                               461
       ASSOCIATION v. U.0.1. [JAG DISH SINGH KHEHAR, J.]

     "emergency proof", till the Constitution provided for the           A
     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      B
     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   c
     interest of the nation.
          200. 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         D
     emergency in 1975.
           201. The present N.D.A. 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       E
     Governors demitted their office shortly after they were
     appointed, by the previous U.P.A. - dispensation. That is
     despite the fact, that a Governor under the Constitutional
     mandate of Article 156(3) has a term of five years, from the
                                                                         F
     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
     as an "eminent person" under Article 124A(1 )(d). One wonders,
     whether all these resignations were voluntary. The above            G
-·   depiction .is not to cast any aspersion. As a matter of fact, its
     predecessor- the U.P.A. Government, had done just that in 2004.
          202. It is necessary to appreciate, that the Constitution
     does not envisage the "spoils system" (also known as the
                                                                         H
462         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A     "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.
         203. It is also relevant to indicate, the images of the
 8
   "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
   N.D.A. Government was sworn in. Some of them had just a
 c few months before their tenure would expire - and sol'lle, 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
 D 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.
           204. From the above, is one to understand, that all these
 E individuals were rank favorites, approved by the predecessor
   political-executive establishment? Or, were the best not chosen
   to fill the slot by the previous dispensation? Could it be, that
   those who get to hold the reins of Government, introduce their
 F favourites? Or, whether the existing incumbents, deserved just
   that? Could it be, that just like its predecessor, the present
   political establishment has now appointed its rank favourites?
   What emerges is, trappings of the spoils system, and nothing
   else. None of the above parameters, can be adopted in the
 G 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
 H would be of utmost importance therefore, to shield judicial
    SUPREME COURT ADVOCATES-ON-RECORD                                   463
  ASSOCIATJON v. U.0.1. [JAGDISHSINGH KHEHAR, J.] .

appointments, from any political-executive interference, to             A
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.
                                                                        B
      205. 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           c
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 the "civil
society" in India, does not augur the participation of the political-   D
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.
                                 XI.
                                                                        E
    206. It may be noticed, that one of the contentions
advanced on behalf of the petitioners was, that after the 121 st
Constitution Amendment Bill was passed by the Lok Sabha
and the Rajya Sabha, it was sent to the State Legislatures for
ratification. Consequent upon the ratification by the State             F
Legislatures, in compliance of the mandate contained in Article
368, the President granted his assent to 'the same on
31.12.2014, whereupon it came to be enacted as the
Constitution (99th Amendment) Act. Section 1 (2) thereof
provides, that the provisions of the amendment, would come              G
into force from such date as may be notified by the Central
Government, in the Official Gazette. And consequent upon
the issuance of the above notification, the amendment was
brought into force, through a notification, with effect from
                                                                        H
464         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     13.4.2015. It was the submission of the petitioners, that the
      jurisdiction to enact the NJAC Act, was acquired by the
      Parliament on 13.4.2015, for the simple reason, that the same
      could not have been enacted whilst the prevailing Articles
       124(2) and 217(1) were in force, as the same, did not provide
 B    for appointments to be made by a body such as the NJAC. It
      was submitted, that the NJAC Act was promulgated, to
       delineate the procedure to be followed by the NJAC while
       recommending appointments of Judges and Chief Justices,
       to the higher judiciary. It was contended, that procedure to be
 C     followed by the NJAC could not have been legislated upon by
       the Parliament, till the Constitution was amended, and the
       NJAC was created, as a constitutional entity for the selection
       and appointment (as also, transfer) of Judges at the level of
       the higher judiciary. The NJAC, it was asserted, must be
 D     deemed to have been created, only when the Constitution (99th
       Amendment) Act, was brought into force, with effect from
       13.4.2015. It was submit~ed, that the NJAC Act received the
       assent of the President on 31.12.2014 i.e., on a date when
 E     the NJAC had not yet come into existence. For this, learned
       counsel had placed reliance on theA.K. Roy case49 , to contend,
       that the constitutional amendment in the instant case would
       not come into force on 13.12.2014, but on 13.4.2015.
        207. A complementary additional submission was
 F advanced on behalf of the petitioners, by relying upon the same
   sequence of facts. It was contended, that the power of veto
   vested in two Members of the NJAC, through the second
   proviso under Section 5(2) of the NJAC Act (in the matter of
   appointment of the Chief Justice and Judges of the Supreme
 G Court), and Section 6(6) of the NJAC Act (in the matter of
   appointment of Chief Justices and Judges of High Courts)-could
   not be described as laying down any procedure. It was
   submitted, that the above provisions clearly enacted
   substantive law. Likewise, it was contended, that the
 H
    SUPREME COURT ADVOCATES-ON-RECORD                            465
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

amendment of the words "after consultation with such of the A
Judges ofthe Supreme Court and the High Courts in the States
as the President may deem necessary for the purpose", on
being substituted by the words "on the recommendation of the
National Judicial Appointments Commission referred to in
Article 124A", as also, the deletion of the first proviso under B
Article 124(2) which mandated consultation with the Chief
Justice of India, and the substitution of the same with the words,
"on the recommendation of the National Judicial Appointments
Commission referred to under Article 124A", would result in
the introduction of an absolutely new regimen. It was submitted, C
that such substitution would also amount to an amendment of
the existing provisions of the Constitution, and as such, the
same would also require the postulated ratification provided
in respect of a constitutional amendment, under the proviso to D
Article 368(2). And since the NJACAct, had been enacted as
an ordinary legislation, the same was liable to be held as non
est on account of the fact, that the procedure contemplated
under Article 368, postulated for an amendment to the
Constitution, had not been followed.
                                                                   E
       208. Since it was not disputed, that the Parliament had
indeed enacted Rules of Procedure and the Conduct of
Business of Lok Sabha under Article 118, which contained
Rule 66 postulating, that a Bill which was dependent wholly or
partly on another Bill could be "introduced" in anticipation of F
the passing of the Bill, on which it was dependent. Leading to
the inference, that the 121 st Constitution Amendment Bill, on
which the NJAC Bill was dependent, could be taken up for
consideration (by introducing the same in the Parliament), but
could not have been passed till after the passing of the G
Constitution (99th Amendment) Act, on which it was dependent.
     209. Whilst there can be no doubt, that viewed in the
above perspective, we may have unhesitatingly accepted the
above submission, and in fact the same was conceded by the        H
466        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A  Attorney General to the effect, that the dependent Bill can" ...
   be taken up for consideration and passing in the House, only
   after the first Bill has been passed by the House ... ". But our
   attention was invited by the Attorney General to Rule 388, which
   authorises the Speaker to allow the suspension, of a particular
 B rule (which would include Rule 66). If Rule 66 could be
   suspended, then Rule 66 would not have the impact, which the
   petitioners seek through the instant submission. It is not a
   matter ofdispute, that the then Union Minister in charge of Law
   and Justice had sought (under Rule 388 of the Rules of
 C Procedure and Conduct of Business of the Lok Sabha) the
   suspension of the proviso to Rule 66.And on due consideration,
   the Lok Sabha had suspended the proviso to Rule 66, and
   had taken up the NJAC Bill for consideration. Since the validity
   of Rule 388 is not subject matter of challenge before us, it is
 0
   apparent, that it was well within the competence of the
   Parliament, to have taken up for consideration the NJAC Act,
   whilst the Constitution (121 st Amendment) Bill, on which the
   NJAC Act was fully dependent, had still not been passed, in
 E anticipation of the passing of the Constitution ( 121 st
   Amendment) Bill.
            210. The principle contained in Rule 66, even ifthe said
    rule had not been provided for, would always be deemed to
    have been impliedly there. In the absence of a foundation, no
 F superstructure can be raised. The instant illustration is
    relateable to Rule 66, wherein the pending Bill would constitute
    the foundation, and the Bill being introduced in anticipation of
    the passing of the pending Bill, would constitute the
    superstructure. Therefore, in the absence of the foundational
 G Bill (-in the instant case, the 121 st Constitution Amendment
   .Bill), there could be no question of raising the infrastructure (-
    in the iristant case, the NJAC Act). In our considered view, it
    was possible in terms of Rule 388, to introduce and pass a
 H Bill in the Parliament, in anticipation of the passing of the
    SUPREME COURT ADVOCATES-ON-RECORD                             467
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

dependent Bill-the Constitution (121 stAmendment) Bill. But,      A
it is still not possible to contemplate, that a Bill which is
dependent wholly (or, in part) upon another Bill, can be passed
and brought into operation, till the dependent Bill is passed
and brought into effect.
                                                                  B
     211. It is however necessary to record, that even though
the position postulated in th~ preceding paragraphs, as
canvassed by the Attorney General, was permissible, the
passing of the dependent enactment i.e., the NJAC Bill, could
not have been given effect to, till the foundational enactment    c
had become operational. In the instant case, the NJAC Act,
would have failed the test, if it was given effect to, from a date
prior to the date on which, the provisions of the enactment on
which it was dependent- the Constitution (99th Amendment)
Act, became functional. In other words, the NJAC Act, would D
be stillborn, if the dependent provisions, introduced by way of
a constitutional amendment, were yet to come into force.
Stated differently, the contravention of the principle
contemplated in Rule 66, could not have been overlooked,
despite the suspension of the said rule, and the dependent E
enactment could not come into force, before the depending/
controlling provision became operational. The sequence of
facts narrated hereinabove reveals, that the dependent and
depending provisions, were brought into force simultaneously
on the same date, i.e., on 13.4.2015. It is therefore apparent, F
that the foundation - the Constitution (99th Amendment) Act,
was in place, when the superstructure - the NJAC Act, was
raised. Thus viewed, we are satisfied, that the procedure
adopted by the Parliament at the time of putting to vote the
NJAC Bill, or the date on which the NJAC Act received the G
assent of the President, cannot invalidate the enactment of
the NJAC ACt, as suggested by the learned courisel for the
petitioners.
                                                                  H
468        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A         212. One is also persuaded to accept the contention
   advanced by the learned Attorney General, that the validity of
   any proceeding, in Parliament, cannot be assailed on the
   ground of irregularity of procedure, in view of the protection
   contemplated through Article 122. Whilst accepting the instant
 B contention, of the learned Attorney General, it is necessary for
   us to record, that in our considered view, the aforestated
   irregularity pointed out by the learned counsel, would be
   completely beyond the purview of challenge, specially because
   it was not the case of the petitioners, that the Parliament did
 C not have the legislative competence to enact the NJAC Act.
   For the reasons recorded hereinabove, it is not possible for
   us to accept, that the NJAC Act was stillborn, or that it was
   liable to be set aside, for the reasons canvassed by the learned
   counsel for the petitioners.
 0
         213. It is also not possible for us to accept, that while
   enacting the NJACAct, it was imperative for the Parliament to
   follow the procedure contemplated under Article 368. Insofar
   as the instant aspect of the matter is c-0ncemed, the Constitution
 E (99th Amendment) Act, amended Articles 124 and 217 (as
   also, Articles 127, 128, 222, 224, 224Aand 231 ), and Articles
   124A to 124C were inserted in the Constitution. While
   engineering the above amendments, the procedural
   requirements contained in Article 368 were admittedly
 F complied with. It is therefore apparent, that no procedural lapse
   was committed while enacting the Constitution (99th
   Amendment) Act. Article 124C, authorized the Parliament to
   enact a legislation in the nature of the NJAC Act. This could
   validly be done, by following the procedure contemplated for
 G an ordinary legislation. It is not disputed, that such procedure,
   as was contemplated for enacting an ordinary legislation, had
   indeed been followed by the Parliament, after the NJAC Bill
   was tabled in the Parliament, inasmuch as, both Houses of
 H Parliament approved the NJAC Bill by the postulated majority,
       SUPREME COURT ADVOCATES-ON-RECORD                               469
     ASSOCIATIONv. U.0.1. [JAGDISH SINGH KHEHAR, J.]

and thereupon, the same received the assent of the President           A
on 31.12.2014.· For the above reasons, the instant additional
submission advanced by the petitioners, cannot also be
acceded to, and is accordingly declined.
                                XII.
                                                                       B
       . 214. Mr. Mukul Rohatgi, learned Attorney General for
India, repulsed the contentions advanced at the hands of the
petitioners, that vires of the provisions of the NJAC Act, could
be challenged, on the ground of being violative of the "basic
structure" of the Constitution.                                        c
        215. The first and foremost contention advanced, at the
hands of the learned Attorney General was, that the
constitutional validity of an amendment to the Constitution,
could only be assailed on the basis of being violative of the D
"basic structu~e" of the Constitution. Additionally it was
submitted, that an ordinary legislative enactment (like the NJAC
Act), could only be assailed on the grounds of lack of legislative
competence and/or the violation of Article 13 of the
Constitution. Inasmuch as, the State cannot enact laws, which E
take away or abridge rights conferred in Part Ill of the
Constitution, or are in violation of any other constitutional
provision. It was acknowledged, that law made in contravention
of the provisions contained in Part Ill of the Constitution, or of
any other constitutional provision, to the extent of such F
contravention, would be void. Insofar as the instant aspect of
the matter is concerned, the learned Attorney General, placed
reliance on the Indira Nehru Gandhi case 56 , State of Karnataka
v. Union of lndia88 , and particularly to the following observations:
         "238. Mr Sinha also contended that an ordinary law cannot     G
         go against the basic scheme or the fundamental backbone
         of the Centre-State relationship as enshrined in the
         Constitution. He put his argument in this respect in a very
88
     (1977) 4 sec 6oa                                                  H
470          SUPREME COURT REPORTS                       [2015] 13 S.C.R.



A            ingenious way because he felt difficulty in placing it in a
             direct manner by saying that an ordinary law cannot violate
             the basic structure of the Constitution. In the case of Smt
             Indira Nehru Gandhi v. Shri Raj Narain such an argument
             was expressedly rejected by this Court. We may rest
 B           content by referring to a passage from the judgment of our
             learned brother Chandrachud, J., ... which runs thus:
             "The constitutional amendments may, on the ratio of the
             Fundamental Rights case be tested on the anvil of basic
             structure. But apart from the principle that a case is only
c            an authority for what it decides, it does not logically follow
             from the majority judgment in the Fundamental Rights case
             that ordinary legislation must also answer the same test
             as a constitutional amendment. Ordinary laws have to
             answer two tests for their validity: (1) The law must be
 D
             within the legislative competence of the Legislature as
             defined and specified in Chapter I, Part 11 of the
             Constitution and (2) it must not offend against the
             provisions of Articles 13(1) and (2) of the Constitution.
             'Basic structure', by the majority judgment, is not a part of
 E
             the fundamental rights nor indeed a provision of the
             Constitution. The theory of basic structure is woven out of
             the conspectus of the Constitution and the amending power
             is subjected to it because it is a constituent power. The
 F           power to amend the fundamental instrument cannot carry
             with it the power to destroy its essential features'- this. in
              brief. is the arch of the theory of basic structure. It is wholly
             out of place in matters relating to the validity of ordinary
             laws made under the Constitution."
 G            The Court's attention was also drawn to Kuldip Nayar
      v. Union of lndia 89 , wherein it was recorded:
             "107. The basic structure theory imposes limitation on the
              power of Parliament to amend the Constitution. An

 H    •• (2006) 7 sec 1
   . SUPREME COURT ADVOCATES-ON-RECORD                                4 71
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       amendment to the Constitution under Article 368 could be       A
       challenged on the ground of violation of the basic structure
       of the Constitution. An ordinarv legislation cannot be so
       challenged. The challenge to a law made, within its
       legislative competence, by Parliament on the ground of
       violation of the basic structure of the Constitution is thus   B
       not available to the petitioners."
Last of all, learned Attorney General placed reliance on Ashoka
Kumar Thakur v. Union of lndia 90 , and referred to the following
observations:
                                                                      c
       "116. For determining whether a particular feature of the
       Constitution is part of the basic structure or not, it has to
       be examined in each individual case keeping in mind the
       scheme of the Constitution, its objects and purpose and .
       the integrity of the Constitution as a fundamental instrument D
       for the country's governance. It may be noticed that it is
       not open to challenge the ordinary legislations on the basis
       of the basic structure principle. State legislation can be
       challenged on. the question whether it is violative of the
       provisions of the Constitution. But as regards constitutional E
       amendments, if any challenge is made on the basis of basic
       structure, it has to be examined based on the basic features
       of the Constitution."
      Based on the afore-quoted judgments, it was the
assertion of the learned Attorney General, that the validity of a      F
legislative enactment, i.e., an ordinary statute, could not be
assailed on the ground, that the same was violative of the "basic
structure" of the Constitution. It was therefore asserted, that
reliance placed at the hands of the learned counsel, appearing
for the petitioners, on the Madras Bar Association case 35 , was      G
not acceptable in law.
     216. The above contention, advanced by the learned
Attorney General, has been repulsed. For this, in the first
" (2008) 6 sec 1                                                       H
472         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A     instance, reliance was placed on Public Services Tribunal Bar
      Association v. State of U.P. 91 In the instant judgment, it is seen
      from the observations recorded in paragraph 26, that this Court
      concluded, that the constitutional validity of an ordinary
      legislation could be challenged on only two grounds, namely,
 B    for reasons of lack of legislative competence, and on account
      of violation of any fundamental rights guaranteed in Part Ill of
      the Constitution, or of any other constitutional provision. The
      above determination supports the contention advanced by the
      learned Attorney General, who seeks to imply from the above
C     conclusion, that an ordinary legislation cannot be assailed on
      the ground of it being violative of the "basic structure" of the
      Constitution. Despite having held as above, in its final
      conclusion recorded in paragraph 44, it was observed as
      under:
 D
             "44. For the reasons stated above, we find that the State
             Legislature was competent to enact the impugned
             provisions. Further, that the provisions enacted are not
             arbitrary and therefore not violative of Articles 14, 16 or any
 E           other provisions of the Constitution. They are not against
             the basic structure of the Constitution of India either.
             Accordingly, we do not find any merit in these appeals and
             the same are dismissed with no order as to costs."
         It was pointed out, that it was apparent, that even while
 F determining the validity of an ordinary legislation, namely, the
   U.P. Public Services (Tribunals) Act, 1976, this Court in the
   aforestated judgment had examined, whether the provisions
   of the assailed legislation, were against the "basic structure"
   of the Constitution, and having done so, it had rejected the
 G contention. Thereby implying, that it was open for an aggrieved
   party to assail, even the provisions of an ordinary legislation,
   based on the concept of "basic structure". In addition to the
   above, reliance was placed on the Kuldip Nayar case 89 (also
 H    •1 (2003) 4 sec 104
    SUPREME COURT ADVOCATES-ON-RECORD                                   473
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

relied upon by the learned Attorney General), and whilst                A
acknowledging the position recorded in the above judgment,
that an ordinary legislation could not be challenged on the
ground of violation of the "basic structure" of the Constitution,
the Court, in paragraph 108, had observed thus:
       "108. As stated above. "residence" is not the constitutional
                                                                        8
       requirement and therefore the question of violation of basic
       structure does not arise."
       It was submitted, that in the instant judgment also, this
Court had independently examined, whether the legislative               c
enactment in question, namely, the Representation of the
People (Amendment) Act 40 of 2003, indeed violated the
"basic structure" of the Constitution. And in so determining,
concluded that the question of residence was not a
constitutional requirement, and therefore, th~ question of              D
violation of the "basic structure" did not arise. Learned counsel
then placed reliance on the M. Nagaraj case 36 , wherein it was
concluded as under:
       "124. Subject to the above, we uphold the constitutional
       validity of the Constitution (Seventy-seventh Amendment)         E
       Act, 1995; the Constitution (Eighty-first Amendment) Act,
       ;woo; the Constitution (Eighty-second Amendment) Act,
       2000 and the Constitution (Eighty-fifth Amendment) Act,
       2001.
       125. We have not examined the validity of individual             F
       enactments of appropriate States and that question will be
       gone into in individual writ petition by the appropriate Bench
       in accordance with law laid down by us in the present case."
      217. It was submitted by Dr. Rajeev Dhavan, learned               G
senior counsel, that this Court in the M. Nagaraj case 36 , while
upholding the constitutional validity of the impugned
constitutional amendment, by testing the same by applying t~e
"width test", extended the aforesaid concept to State
legislations. It was accordingly sought to be inferred, that State      H
474         SUPREME COURT REPORTS                     [2015] 13 S.C.R.



A     legislations could be assailed, not only on the basis of the letter
      and text of constitutional provisions, but also, on the basis of
      the "width test'', which was akin to a challenge raised to a
      legislative enactment based on the "basic structure" of the
      Constitution.
B
           218. Reliance was then placed on Uttar Pradesh Power
      Corporation Limited v. Rajesh Kumar 92 , wherein the issue
      under reference had been raised, as is apparent from the
      discussion in paragraph 61, which is extracted below:
c             "61. Dr. Rajeev Dhavan, learned senior Counsel, supporting
             the decision of the Division Bench which has declared the
             Rule as ultra vires, has submitted that if M. Nagaraj is
             properly read, it does clearly convey that social justice is
             an overreaching principle of the Constitution like
 D           seculari.sm, democracy, reasonableness, social justice,
             etc. and it emphasises on the equality code and the
             parameters fixed by the Constitution Bench as the basic
             purpose is to bring in a state of balance but the said balance
             is destroyed by Section 3(7) of the 1994 Act and Rule 8-A
 E           inasmuch as no exercise has been undertaken during the
             post M. Nagaraj period. In M. Nagraj, there has been
             emphasis on interpretation and implementation, width and
             identity, essence of a right, the equality code and avoidance
             of reverse discrimination, the nuanced distinction between
 F           the adequacy and proportionality, backward class and
             backwardness, the concept of contest specificity as
             regards equal justice and efficiency, permissive nature of
             the provisions and conceptual essence of guided power,
             the implementation in concrete terms which would not
 G
             cause violence to the constitutional mandate; and the effect
             of accelerated seniority and the conditions prevalent for
             satisfaction of the conditions precedent to invoke the settled
             principles."
 H    •2 (2012) 1sec1
    SUPREME COURT ADVOCATES-ON-RECORD                                   475
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

The matter was adjudicated upon as under:                               A
       "86. We are of the firm view that a fresh exercise in the
       light of the judgment of the Constitution Bench in M. Nagaraj
       is a categorical imperative. The stand that the constitutional
       amendments have facilitated the reservation in promotion
       with consequential seniority and have given the stamp of
                                                                        B
       approval to the Act and the Rules cannot withstand close
       scrutiny inasmuch as the Constitution Bench has clearly
       opined that Articles 16(4-A) and 16(4-B) are enabling
       provisions and the State can make provisions for the same        C
       on certain basis or foundation. The conditions precedent
       have not been satisfied. No exercise has been undertaken.
       What has been argued with vehemence is that it is not
       necessary as the concept of reservation in promotion was
       already in vogue. We are unable to accept the said               D
       submission. for when the provisions of the Constitution are
       treated valid with certain conditions or riders. it becomes
       incumbent on the part of the State to appreciate and apply
       the test so that its amendments can be tested and withstand
       the scrutiny on parameters laid down therein."                   E
      In addition to the above judgment, reliance was also
placed on State of Bihar v. Bal Mukund Sah 93 , wherein a
Constitution Bench of this Court, while examining the power of
the State legislature, to legislate on the subject of recruitment
of District Judges and other judicial officers, placed reliance         F
on the judgment rendered by this Court in the Kesavananda
Bharati case 10 , which took into consideration five of the
declared "basic features" of the Constitution, and examined
the subject matter in question, by applying the concept of
"separation of powers" between the legislature, the executive           G
and the judiciary, which was accepted as an essential feature
of the "basic structure" of the Constitution. Finally, reliance
was placed on Nawal Kishore Mishra v. High Court of
" (2000) 4 sec 640
                                                                        H
~76         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


 A    Judicature of Allahabad 94 , wherefrom reliance was placed on
      conclusion no. 20.11, which is extracted below:
            "20.11 Any such attempt by the legislature would be
            forbidden by the constitutional scheme as that was found
            on the concept relating to separation of powers between
 B          the legislature, the executive and the judiciary as well as
            the fundamental concept of an independent judiciary as
            both the concepts having been elevated to the level of basic
            structure of the Constitution and are the very heart of the
            constitutional scheme."
 c
            It was therefore the contention of the learned senior
      counsel, that it was not justified for the respondents to raise
      the contention, that the validity of the provisions of the NJAC
      Act could not be tested on the touchstone of the concept of the
 o    "basic structure" of the Constitution.
         219. It needs to be highlighted, that the issue under
   reference arose on account of the fact, that learned counsel
   for the petitioners had placed reliance on the judgment of this
   Court, in the Madras Bar Association case 35 , wherein this
 E Court had examined the provisions of the National Tax Tribunal
   Act, 2005, and whilst doing so, had held the provisions of the
   above legislative enactment as ultra vires the provisions of
   the Constitution, on account of their being violative of the "basic
 F structure" of the Constitution. It is therefore quite obvious, that
   the instant contention was raised, to prevent the learned
   counsel for the petitioners, from placing reliance on the
   conclusions recorded in the Madras Bar Association case 35 .
         220. We have given our thoughtful consideration to the
 G above contentions. The "basic structure" of the Constitution,
   presentlyinter 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
 H •• (2015) 5 sec 479
    SUPREME COURT ADVOCATES-ON-RECORD                                     477
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

judiciary, and "independence of the judiciary". This Court, while         A
carving out each of the above "basic features", placed reliance
on one or more Articles of the Constitution (some times, 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        B
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. Illustratively, we may advert to "independence of
the judiciary" which has been chosen because of its having                C
 been discussed and debated during the present course of
 consideration. 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               D
 concerned "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, for instance, the "primacy of the judiciary" explained
 in the Samsher Singh case 11 the Sankalchand Himatlal Sheth              E
 case 5 and the Second Judges case, wherein this Court while
 interpreting Article 74 along with Articles 124, 217 and 222, in
 conjunction with the intent of the framers of the Con?titution
 gathered from the Constituent Assembly debates, and the
 conventions adhered to by the political-executive authority in           F
 the matter of appointment and transfer of Judges of the higher
 judiciary, arrived at the conclusion, that "primacy of the judiciary''
 was a constituent of the "independence of the judiciary" which
 was a "basic feature" of the Constitution. Therefore, when a
 plea is advanced raising a challenge on the basis of the                 G
 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 on the other, (read collectively
 and harmoniously) constitute the basis thereof. Clearly, the             H
478         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     "basic structure" 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, at
      its own. Therefore, if the conclusion drawn is, that the
      "independence of the judiciary" has been transgressed, it is to
 B    be understood, that rule/principle collectively emerging from
      the above provisions, had been breached, or that the above
      Articles read together, had been transgressed.
          221. So far as the issue of examining the constitutional
 C validity of an ordinary legislative enactment is concerned, all
    the constitutional provisions, on the basis whereof the
   .concerned "basic feature" arises, are available. Breach of a
    single provision of the Constitution, would be sufficient to render
    the legislation, ultra viresthe Constitution. In such view of the
 o 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,
 E reference should be made to all the concerned Articles,
    including the preamble, if necessary. The issue is purely
    technical. Yet, 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
 F only be a technical flaw. That is how, it will be possible to explain
    the observations made by this Court, in the judgments relied
    upon by the learned counsel for the petitioners. Therefore, when
    a challenge is raised to a legislative enactment based on the
    cumulative effect of a number of Articles of the Constitution, it
 G is not always necessary to refer to each of the concerned
    Articles, when a 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",
 H while dealing with an ordinary legislation, would obviate the
                                                                        ,

    SUPREME COURT ADVOCATES-ON-RECORD                             479
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

necessity of recording the same conclusion, which has already A
been scripted while interpreting theArticle(s) under reference,
harmoniously. We would therefore reiterate, that 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 B
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 C
constitute the particular "basic feature", had been violated. We
must however credit the contention of the learned Attorney
General by accepting, that it would be technically sound to refer
to the Articles which are violated, when an ordinary legislation D
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. We therefore
find no merit in the contention advanced by the learned Attorney E
General, but for the technical aspect referred to hereinabove.
                             XIII.
     222. Various challenges were raised to the different
provisions of the NJAC Act. First and foremost, a challenge       F
was raised to the manner of selection and appointment of the
Chief Justice of India. Section 5(1) of the NJAC Act, it was
submitted, provides that the NJAC would recommend the
senior most Judge of the Supreme Court, for being appointed
as Chief Justice of India, subject to the condition, that he is   G
considered "fit" to hold the office. It was contended, that the
Parliament had been authorized by law to regulate the
procedure for the appointment of the Chief Justice of India,
under Article 124C. It was submitted, that the NJAC should
have been allowed to frame re~ulations, with reference to the     H
480         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     manner of selection and appointment of Judges to the higher
      judiciary including the Chief Justice of India.
         223. It was submitted, that the term "fit", expressed in
   Section 5(1) of the NJAC Act, had not been elaborately
 B described. And as such, fitness would be determined on the
   subjective satisfaction of the Members of the NJAC. It was
   acknowledged, that even though the learned Attorney General
   had expressed, during the course of hearing, that fitness only
   meant" ... mental and physical fitness ... ", a successor Attorney
 C General may view the matter differently, just as the incumbent
   Attorney General has differed with the concession recorded
   on behalf of his predecessor (in the Third Judges case), even
   though they both represent the same ruling political party. And,
   it was always open to the Parliament to purposefully define
 o the term "fit", in a manner which could sub-serve the will of the
   executive. It was pointed out, that even an ordinance could be
   issued without the necessity, of following the procedure of
   enacting law, to bring in a person of the choice of the political-
   executive. It was contended, that the criterion of fitness could
 E be defined or redefined, as per the sweet will of the non-judicial
   authorities.
         224. It was pointed out, that there was a constitutional
   convention,whereunderthe senior most Judge of the Supreme
 F Court, has always been appointed as Chief Justice of India.
   And that, the aforesaid convention had remained unbroken,
   even though in some cases the tenure of the appointee had
   been extremely short, and may not have enured to the
   advantage of the judiciary, as an institution. Experience had
 G shown, according to learned counsel, that adhering to the
   practice of appointing the senior most Judge as the Chief
   Justice of India, had resulted in institutional harmony and
   collegiality amongst Judges, which was extremely important
   for the health of the judiciary, and also, for the independence
 H of the judiciary. It was submifted, that it would be just and
    SUPREME COURT ADVOCATES-ON-RECORD                             481
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

appropriate, at the present juncture, to understand the width of A
the power, so as to prevent any likelihood of its misuse in future.
       225. It was suggested, that various ways and means
could be devised to supersede senior Judges, to bring in
favourites. Past experience had shown, that the executive had
                                                                  8
abused its authority, when it departed from the above seniority
rule in April 1973, by superseding J.M. Shelat, the senior most
Judge, and even the next two Judges in the order of seniority
after him, namely, K.S. Hegde andA.N. Grover, while appointing
the fourth senior most Judge A. N Ray, as the Chief Justice of    c
India. Again in January 1977 on the retirement of A.N. Ray,
CJ., the senior most Judge H.R. Khanna, was ignored, and
the.next senior most Judge M.H. Beg, was appointed as the
Chief Justice of India. Such control in the hands of the
executive, according to learned counsel, would cause immense      D
inroads in the decision making process. And could result in,
Judges trying to placate and appease the political-executive
segment, aimed at personal gains and rewards.
       226. The submission noticed above, was sought to be
illustrated through the following instance. It was contended, E
that it would be genuine and legitimate, for the Parliament to
enact by law, that a person would be considered "fit" for
appointment as Chief Justice of India, only if he had a minimum
left over tenure of.two years. Such an enactment would have a · F
devastating effect, eve·n though it would appear to be
innocuously legitimate. It was pointed out, that out of the 41
Chief Justices of India appointed till date, only 12 Chief Justices
of India had a tenure of more than two years. If such action, as
has been illustrated above, was to be taken at the hands of G
the Parliament, it was bound to cause discontent to those who
had a legitimate expectation to hold the office of Chief Justice
of India, under the seniority rul.e, which had been in place for
all this while.
                                                                  H
482        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A        227. It was asserted, that the illustration portrayed in the
   foregoing paragraph, could be dimensionally altered, by
   prescribing different parameters, tailor-made for
   accommodating a favoured individual. It was submitted, that
   the Parliament should never be allowed the right to create
 B uncertainty, in the matter of selection and appointment of the
   Chief Justice of India, as the office of the Chief Justice of India
   was pivotal, 9nd shouldered extremely onerous
   responsibilities. The exercise of the above authority by the
   Parliament, it was pointed out, could/would seriously affect the
 C "independence of the judiciary''.
         228. In the above context, reference was also made, to
   the opinion expressed by renowned persons, having vast
   experience in judicial institutions, effectively bringing out the
 o veracity of the contention advanced. Reference in this regard
   was made to the observations of M.C. Chagla, in his book,
   "Roses in December - An Autobiography", wherein he
   described the impact of supersession on Judges, who by virtue
   of the existing convention, were in line to be the Chief Justice
 E of India, but were overlooked by preferring a junior. The position
   was expressed thus:
            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
 F          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 judiciarv is inevitably lost."
 G
           H.R. Khanna, J., (in his book - "Neither Roses Nor
      Thorns") expressed the position as under:
            "A couple of days before the pronouncement of judgment
            the atmosphere of tension got aggravated because all kinds
 H          of rumours started circulating and the name of the
    SUPREME COURT ADVOCATES-ON-RECORD                             483
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      successor of the Chief Justice was not being announced. A
      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 B
      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 C
      Grover who had been superseded. were tendering their
      resignations.
      After the resignation of She lat, Hegde and Grover, the court
      acquired a new complexion and I found perceptible change D
      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.    E
      One of the new trends was the change in the approach of
      the court with a view to give 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 F
      undo the dicta laid down in the earlier cases."
      In this behalf, reference was also made to the
observations of H.M. Seervai (in "Constitutional Law of India-
A Critical Commentary"}, which are as follows:
      "In Sankalchand Sheth's Case, Bhagwati J. after G
      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 H
484        SUPREME COURT REPORTS                   [2015] 13 S.C.R.



A          their ambition and loyalty rather than by money'... In my
           submission in quoting the above passage Bhagwati J.
           failed to realize 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
 B         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
 c         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
 D
           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
 E
            to blacken the character and conduct of Chandrachud
            C.J. proved futile because 4 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
 F          valid.''
          229. It was submitted, that leaving the issue of
    determination of fitness, with the Parliament, was liable to fan
    ambitions of Judges, and was likely to make the Judges loyal,
    to those who could satisfy their ambitions. It was therefore
 G emphasized, that Section 5(1 ), which created an ambiguity, in
   ·the matter of appointment to the office of Chief Justice of India,
    had the trappings of being abused to imperil "independence
    of the judiciary'', and therefore, could not be permitted to remain
    on the statute-book, irrespective of the assurance of the
 H
    SUPREME COURT ADVOCATES-ON-RECORD                              485
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

Attorney General, that for the purpose in hand, the term "fit"     A
meant" ... mental and physical fitness ... ".
     230. It was also contended, that while recommending
names for appointment of a Judge to the Supr_eme Court, the
concerned Judges' seniority in the cadre of Judges (of High        B
Courts), was liable to be taken as the primary consideration,
coupled with his ability and merit. It was submitted, that the
instant mandate contained in the first proviso under Section
5(2) of the NJAC Act, clearly breached the convention of
regional representation in the Supreme Court. Since the            c
"federal character'', of distribution of powers, was also one of
the recognized "basic structures'', it was submitted, that
regional representation could not have been overlooked.
      231. Besides the above, the Court's attention was invited
to the second proviso under Section 5(2), which forbids the D
NJAC from making a favourable recommendation, if any two
Members thereof, opposed the nomination of a candidate. It
was contended, that placing the power of veto, in the hands of
two Members of the NJAC, would violate the recommendatory
power expressed in Article 124B. In this behalf, it was E
contended, that the above position would entitle two "eminent
persons"-lay persons (if the submission advanced by the
learned Attorney General is to be accepted), to defeat a
unanimous recommendation of the Chief Justice of India and F
the two senior most Judges of the Supreme Court. And would
also, negate the primacy vested in the judiciary, in the matter
of appointment of Judges, to the higher judiciary.
       232. It was submitted, that the above power of veto
exercisable by two lay persons, or alternatively one lay person, G
in conjunction with the Union Minister in charge of Law and
Justice, would cause serious inroads into the "independence
of the judiciary". Most importantly, it was contended, that neither
the impugned constitutional amendment, nor the provisions of
                                                                    H
486        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A  the NJAC Act, provided for any quorum for holding meetings
   of the NJAC. And as such, quite contrary to the contentions
   advanced at the hands of the learned Attorney General, a
   meeting of the NJAC could not be held, without the presence
   of the all Members of the NJAC. In order to support his above
 B contention, he illustratively placed reliance on the Constitution
   (122nd Amendment) Bill, 2014 (brought before the Parliament,
   by the same ruling political party, which had amended the
   Constitution, by tabling the Constitution (121 st Amendment)
   Bill, 2014. The objective sought to be achieved under the above
 C Bill was, to insert a new Article 279A. The new Article 279A
   created the Goods and Services Tax Council. Sub-Article (7)
   of Article 279A postulates, that" ... One-half of the total number
   of Members of the Goods and Services Tax Council. .. " would
   constitute the quorum for its meetings. And furthermore, that
 0
   " ... Every decision of the Goods and Services Tax Council
   would be taken at a meeting, by a majority of not less than .
   three-fourths of the weighted votes of the members present
   and voting ... ". Having laid down the above parameters, in the
 E Bill which followed the Bill, that led to the promulgation of the
    impugned Constitution (99thAmendment)Act, it was submitted,
   that the omission of a quorum for the functioning of the NJAC,
    and the omission of quantifying the strength required for valid
    decision making, vitiated the provision itself.
 F       233. The contention advanced at the hands of the learned
   counsel for the petitioners, as has been noticed in the foregoing
   paragraph, does not require any detailed examination, as the
   existing declared legal position, is clear and unambiguous. In
   this behalf, it may be recorded, that in case a statutory
 G provision vests a decision making authority in a body of persons
   without stipulating th.e 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
 H analogy therefore, a valid decision by such a body will
     SUPREME COURT ADVOCATES-ON-RECORD                          487
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  necessitate a decision by a simple majority of all the members A
  of the body. If the aforesaid principles are made applicable to
  the NJAC, the natural outcome would be, that a valid meeting
  of the NJAC must have at least four Members participating in
  a six-Member NJAC. Likewise, a valid decision of the NJAC
  can only be taken (in the absence of any prescribed · B
  prerequisite), by a simple majority, namely, by at least four
  Members of the NJAC (three Members on either side, would
  not make up the simple majority). We are satisfied, that the
  provisions of the NJAC Act which mandate, that the NJAC
  would not make a recommendation in favour of a person for C
  appointment as a Judge of the High Court or of the Supreme
· Court, if any two Members thereof did not agre·e with such
  recommendation, cannot be considered to be in violation of
  the rule/principle expressed above. As a matter of fact, the D
  NJAC Act expressly provides, that if any two Members thereof
  did not agree to any particular proposal, the 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 E
  unacceptable. The instant submission advanced at the hands
  of the learned counsel for the petitioners is therefore liable to
  be rejected, and is accordingly rejected.
        234. We have also given our thoughtful consideration to
 the other contentions advanced at the hands of the learned F
 counsel forthe petitioners, with reference to Section 5 of the
 NJAC Act. We are of the view, that 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, in uncertain and ambiguous terms. It was imperative G
 to express, the clear parameters of the term "fit", with reference
 to the senior most Judge of the Supreme Court under Section
 5 of the NJAC Act. We are satisfied, that the term "fit" can be
 tailor-made, to choose a candidate far below in the seniority H
488         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     list. This has been adequately demonstrated by the learned
      co'unsel for the petitioners.
             235. The clear stance adopted by the learned Attorney
      General, that the term "fit" expressed in Section 5(1) of the
 S    NJAC Act, had 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
c     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 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
o     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.
 E            236. lnsofaras the challenge to Section 5(1) of the NJAC
      Act is concerned, we are satisfied to affirm and crystalise the
      position adopted by the Attorney General, namely, that the term
      "fit" used in Section 5(1) would be read to mean only" ... mental
 F    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 learned counsel for the petitioners, the same would be
      assailable in law.
G          237. We will now endeavour, to address the second
      submission with reference to Section 5 of the NJAC Act.
      Undoubtedly, postulating "seniority" in the first proviso under
      Section 5(2) of the NJAC Act, is a laudable objective. And if
      seniority is to be supplemented and enmeshed with "ability
 H
    SUPREME COURT ADVOCATES-ON-RECORD                              489
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

and merit", the most ideal approach, can be seen to have been A
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. A group of Judges appointed to one High B
Court, will be separated from the lot of Judges appointed to
another High Court, by just a few days, or by just a few weeks,
and sometimes by just a few months. In the all India seniority
of Judges, the complete batch appointed on the same day, to
one High Court, will be placed in a running serial order (in C
seniority) above the other Judges appointed to another High
Court, just after a few days or weeks or months. Judges
appointed later, will have to be placed en masse below the
earlier batch, in seniority. If appointment of Judges to the D
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, ifthe batch had ten Judges (appointed togetber
to a particular High Court), and if all of them have proved E
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 F
the same High Court, in the above situation where the batch
comprised often Judges, will occupy a third of the total Judge
 positions in the Supreme Court. That wo1.1ld be clearly
 unacceptable, forthe reasons indicated by the learned counsel
for the petitioners. We also find the position, unacceptable in law. G
      238. Therefore, 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
                                                                    H
490         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     convention of ensuring representation from as many State High
      Courts, as is possible. The convention in vogue is, to maintain
      regional representation. For the reasons recorded above, the
      first proviso under Section 5(2) is liable to be struck down and
      set aside.
 B
          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
c  the same reasons as have been noticed above, 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 NJACActwas therefore
   liable to meet the same fate, as the first proviso under Section
 D 5(2).
         239. We are also of.the considered view, that the power
   of veto vested in any two Members of the NJAC, would
   adversely impact primacy of the judiciary, in the matter of
   selection and appointment of Judges to the high.er judiciary
 E (as also their transfer). Details in this behalf have already been
   recorded in part VI II hereinabove. Section 6(6) of the NJAC
   Act, has the same connotation as the second proviso under
   Section 5(2), and Section 6(6) of the NJACAct would therefore
 F meet the same fate, as Section 5(2). For the reasons recorded
   hereinabove, we are satisfied, that Sections 5(2) and 6(6) of
   the NJAC Act also breach the "basic structure" of the
   Constitution, wtth reference to the "independence of the
   judiciary" and the "separation of powers". Sections 5(2) and
 G 6(6), in our considered view, are therefore, also liable to be
   declared as ultra vires the Constitution.
            240. A challenge was also raised by the learned counsel
      for the petitioners to Section 7 of the NJAC Act. It was
      asserted, that on the recommendation made by the NJAC,
 H
    SUPREME COURT ADVOCATES-ON-RECORD                           491
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

the President was obliged to appoint the individual A
recommended as a Judge of the High Court under Article
217(1 ). It was submitted, that the above position was identical
to the position contemplated under Article 124(2), which also
provides, that a candidate recommended by the NJAC would
be appointed by the President, as a Judge of the Supreme B
Court. It was submitted, that neither Article 124(2) nor Article
217(1) postulate, that the President could require the NJAC to
reconsider, the recommendation made by the NJAC, as has
been provided for under the first proviso to Section 7 of the
NJAC Act. It was accordingly the contention of the learned C
counsel for the petitioners, that the first proviso to Section 7
was ultra vires the provisions of Articles 124(2) and 217(1 ),
by providing for reconsideration, and that, the same was
beyond the pale and scope of the provisions referred to above. D
       241. Having considered the submission advanced by the
learned counsel for the petitioners in the foregoing paragraph,
it is not possible for us to accept that Section 7 of the NJAC
Act, by providing that the President could require the NJAC to
reconsider a recommendation made by it, would in any manner E
violate Articles 124(2) and 217(1) (which mandate, that Judges
would be appointed by the President on the recommendation
of the NJAC). It would be improper to infer, that the action of
the President, requiring the NJAC to reconsider its proposal,
amounted to rejecting the proposal made by the NJAC. For, if F
the NJAC was to reiterate the proposal made earlier, the
President even in terms of Section 7, was bound to act in
consonance therewith (as is apparent from the second proviso
under Section 7 of the NJAC Act). In our considered view, the
instant submission advanced at the hands of the petitioners G
deserves to be rejected, and is accordingly rejected.
     242. Learned counsel for the petitioners had also
assailed the validity of Section 8 of the NJAC Act, which
provides for the Secretary to the Government of India, in the   H
492        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A Department of Justice, to be the convener of the NJAC. It was
  contended, that the function of a convener, with reference to
  the NJAC, would entail the responsibility of inter alia preparing
  the agenda for the meetings of the NJAC, namely, to decide
  the names of the individuals to be taken up for consideration,
B in the next meeting. This would also include, the decision to
  ignore names from being taken up for consideration in the next
  meeting. He may include or exclude names from consideration,
  at the behest of his superior. It would also be the responsibility
  of the convener, to compile data made available from various
C quarters, as contemplated under the NJACAct, and in addition
  thereto, as may be required by the Union Minister in charge of
  Law and Justice, and the Chief Justice of India. It was
  submitted, that such an onerous responsibility, could not be
  left to the executive alone, because material could be
D selectively placed by the convener before the NJAC, in
  deference to the desire of his superior- the Union Minister in
  charge of Law and Justice, by excluding favourable material,
  with reference to a candidate considered unsuitable by the
E executive, and by excluding unfavourable material, with
  reference to a candidate who carried favour with the executive.
         243. It was additionally submitted, that it was imperative
   to exclude all executive participation in the proceedings of the
   NJAC for two reasons. Firstly, the executive was the largest
 F individual litigant, in matters pending before the higher judiciary,
   and therefore, cannot have.any discretionary role in the process
   of selection and appointment of Judges to the higher judiciary
   (in the manner expressed in the preceding paragraph). And
   secondly, the same would undermine the concepts of
 G "separation of powers" and "independence of the judiciary",
   whereunder the judiciary has to be shielded from any possible
   interference, either from the executive or the legislature.
       244. We have given our thoughtful consideration to the
 H above two submissions, dealt with in the preceding two
    SUPREME COURT ADVOCATES-ON-RECORD                                493
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

paragraphs. We have already concluded earlier, that the A
participation of the Union Minister in charge of Law and Justice,
as a Member of the NJAC, as contemplated under Article
124A(1 ), in the matter of appointment of Judges to the higher
judiciary, would breach the concepts of "separation of powers"
and the "independence of the judiciary", which are both B
undisputedly components of the "basic structure" of the
Constitution of India. For exactly the same reasons, we are of
the view, that Section 8 of the NJAC Act which provides, that
the Secretary to the Government of India, in the Department of
Justice, would be the convener of the NJAC, is not sustainable C
 in law. In a body like the NJAC, the administrative functioning
 cannot be under executive or legislative control. The only
 remaining alternative, is to vest the administrative control of
 such a body, with the judiciary. For the above reasons, Section D
 8 of the NJAC Act would likewise be unsustainable in law.
        245. Examined from the legal perspective, it was
 unnecessary for us to examine the individual provisions of the
 NJAC Act. Once the constitutional validity of Article 124A( 1) is
 held to be unsustainable, the impugned constitutional               E
 amendment, as well as, the NJAC Act, would be rendered a
 nullity. The necessity of dealing with some of the issues was
 prompted by the consideration, that broad parameters should
·be expressed.
                                                                     F
V. THE EFFECT OF STRIKING DOWN THE IMPUGNED
   CONSTITUTIONAL AMENDMENT:
      246. Would the amended provisions of the Constitution
revive, if the impugned constitutional amendment was to be
set aside, as being violative of the "basic structure" of the G
Constitution? It would be relevant to mention, that the instant
issue was not adverted to by the learned counsel for the
petitioners, possibly on the assumption, that if on a
consideration of the present controversy, this Court would strike
                                                                  H
494         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     down the Constitution (99thAmendment)Act, then Articles 124,
      127, 128, 217, 222, 224, 224A and 231, as they existed prior
      to the impugned amendment, would revive. And on such
      revival, the judgments rendered in the Second and Third
      Judges cases, would again regulate selections and
B     appointments, as also, transfer of Judges of the higher judiciary.
          247. A serious objection to the aforesaid assumption,
   was raised on behalf of the respondents by the Solicitor
   General, who contended, that the striking down of the impugned
 C constitutional amendment, would not result in the revival of the
   provisions, which had been amended by the Parliament. In
   order to canvass the aforesaid proposition, reliance was
   placed on Article 367, which postulates, that the provisions of
   the General Clauses Act, 1897 had to be applied, for an
 o 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. Insofar
   as the instant submission is concerned, we have no hesitation
   in affirming, that unless the context requires otherwise, the
 E provisions of the General Clauses Act, can be applied, for a
   rightful and effective understanding of the provisions of the
   Constitution.
            248. Founded on the submission noticed in the foregoing
 F    paragraph, the Solicitor General placed reliance on Sections
      6, 7 and 8 of the General Clauses Act, which are being extracted
      hereunder:
             "6. Effect of repeal.-Where this Act, or any Central Act or
             Regulation made after the commencement of this Act,
 G           repeals any enactment hitherto made or hereafter to be
             made, then, unless a different intention appears, the repeal
             shall not-
             (a) revive anything not in force or existing at the time at
             which the repeal takes effect; or ..
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                     495
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEt-IAR, J.]

   (b) affect the previous operation of any enactment so                A
   repealed or anything duly done or suffered thereunder; or
   (c) affect any right, privilege, obligation or liability acquired,
   accrued or incurred under any enactment so repealed; or
   (d) affect any penalty, forfeiture or punishment incurred in
   respect of any offence committed against any enactment               B
   so repealed; or
   (e) affect any investigation, legal proceeding or remedy in
   respect of any such right, privilege, obligation, liability,
   penalty, forfeiture or punishment as aforesaid;·
   and any such investigation, legal proceeding or remedy               C
   may be instituted, continued or enforced, and any such
   penalty, forfeiture or punishment may be imposed as ifthe
   repealing Act or Regulation had not been passed.
   7. Revival of repealed enactments.-(1) In any Central Act            D
   or Regulation made after the commencement of this Act,
   it shall be necessary, for the purpose of reviving, either
   wholly or partially, any enactment wholly or partially
   repealed, expressly to state that purpose.
   (2) This section applies also to all Central Acts made after         E
   the third day of January, 1868, and to all Regulations made
   on or after the fourteenth day of January, 1887.
   8. Construction of references to repealed enactments.-(1)
   Where this Act, or any Central Act or Regulation made after
   the commencement of this Act, repeals and re-enacts, with            F
   or without modification, any provision of a former
   enactment, then references in any other enactment or in
   any im;trument to the provision so repealed shall, unless a
   different intention appears, be construed as references to
   the provision so re-enacted.                                         G
   (2) Where before the fifteenth day of August, 1947, any Act
   of Parliament of the United Kingdom repealed and re-
   enacted, with or without modification, any provision of a
   former enactment, then reference in any Central Act or in
                                                                        H
496         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A         any Regulation or instrument to the provision so repealed
          shall, unless a different intention appears, be construed
          as references to the provision so re-enacted.''
         249. Relying on Section 6, it was submitted, that the
   setting aside of the impugned constitutional amendment,
 B should be considered as setting aside of a repealing provision.
   And as such, the acceptance ofthe claim of the petitioners,
   would not lead to the automatic revival of the provisions as
   they existed prior to the amendment. Relying on Section 7 it
   was asserted, that if a repealed provision had to be revived, it
 C was imperative for the legislature to express such intendment,
   and unless so expressly indicated, the enactment wholly or
   partly repealed, would not stand revived. Finally relying on
   Section 8 of the General Clauses Act, it was submitted, that
   when an existing provision was repealed and another provision
 0
   was re-enacted as its replacement, no further reference could
   be made to the repealed enactment, and for all intents and
   purposes, reference must mandatorily be made, only to the
   re-enacted provision. Relying on the principles underlying
 E Sections 6, 7 and 8, it was submitted, that even ifthe prayers
   made by the petitioners were to be accepted, and the
   impugned constitutional amendment was to be set aside, the
   same would not result in the revival of the unamended
   provisions.
 F          250. Learned Solicitor General also referred to a number
      of judgments rendered by this Court, to support the inference
      drawn by him. We shall therefore, in the first instance, examine
      the judgments relied upon:
        (i) Reliance in the first instance was placed on theAmeer-
 G un-Nissa Begum case 70 • Our pointed attention was drawn to
   the observations recorded in paragraph 24 thereof, which is
   reproduced hereunder:
          "24 The result will be the same even if we proceed on the
 H        footing that the various 'Firmans' issued by the Nizam were
    SUPREME COURT ADVOCATES-ON-RECORD                                 497
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

       in the nature of legislative enactments determining private A
       rights somewhat on the analogy of private Acts of
       Parliament. We may assume that the 'Firman' of 26-6-1947
       was repealed by the 'Firman' of 24-2-1949, and the latter
       'Firman' in its turn was repealed by that of 7-9-1949. Under
       the English Common Law when a repealing enactment B
       was repealed by another statute. the repeal of the second
       Act revived the former Act 'ab initio'. But this rule does not
       apply to repealing Acts passed since 1850 and now if an
       Act repealing a former Act is itself repealed, the last repeal
       does not revive the Act before repealed unless words are C
       added reviving it: vide Maxwell's lnteroretation of Statutes.
       p. 402 (10th Edition).
        It may indeed be said that the present rule is the result of
       the statutory provisions introduced by the lnteroretation Act D
       of 1889 and as we are not bound by the provisions of any
        English statute. we can still apply the English Common
       Law rule if it appears to us to be reasonable and proper.
        But even according to the Common Law doctrine, the repeal
       of the repealing enactment would not revive the original E
        Act if the second repealing enactment manifests an
        intention to the contrary .... "
      Having given our thoughtful consideration to the
conclusions recorded in the judgment relied upon, we are
satisfied, that the same does not support the cause of the            F
respondents, because in the judgment relied upon, it was
clearly concluded, that under the English Common Law when
a repealing enactment was 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        G
Common Law, on the setting aside of the impugned
constitutional amendment, the unamended provision, would
stand revived. It also needs to be noticed, that the final position
to the contrary, expressed in the judgment relied upon,
                                                                      H
498         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     emerged as a consequence of subsequent legislative
      enactment, made in England, which is inapplicable to India.
      Having taken the above subsequent amendments into
      consideration, it was coneluded, that the repeal of the repealing
      enactment would not revive the original enactment, except" ...
B     if the second repealing enactment manifests an intention to
      the contrary.... " In other words, the implication would be, that
      the original Act would revive, but for an intention to the contrary
      expressed in the repealing enactment. It is however needs to
      be kept in mind, that the above judgment, did not deal with an
C     exigency where the provision enacted by the legislation had
      been set aside by a Court order.
      (ii) Reliance was then placed on the Firm A.T.B. Mehtab Majid
      & Co. case 71 , and more particularly, the conclusions drawn in
 o    paragraph 20 thereof. A perusal of the above judgment would
      reveal, that this Court had recorded its conclusions, without
      relying on either the English Common Law, or the provisions
      of the General Clauses Act, which constituted the foundation
      of the contentions advanced at the hands of the respondents,
 E    before us. We are therefore satisfied, that the conclusions
      drawn in the instant judgment, would not be applicable, to arrive
      at a conclusion one way or the other, insofar as the present
      controversy is concerned.
 F    (iii) Reference was thereafter made to the B.N. Tewari case 72 ,
      and our attention was drawn to the following observations:
             "6. We shall first consider the question whether the carry
             forward rule of 1952 still exists. It is true that in
             Devadasan's case, AIR 1964 SC 179, the final order of
 G           this Court was in these terms:-
             "ln the result the petition succeeds partially and the carry
             forward rule as modified in 1955 is declared invalid."
             That however does not mean that this Court held that
             the 1952-rule must be deemed to exist because this
 H
  SUPREME COURT ADVOCATES-ON-RECORD                                499
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   Court said that the carry forward rule as modified in 1955      A
   was declared invalid. The carry forward rule of 1952
   was substituted by the carry forward rule of 1955. On
   this substitution the carry forward rule of 1952 clearly
   ceased to exist because its place was taken by the carry
   forward rule of 1955. Thus by promulgating the new              B
   carry forward rule in 1955. the Government of India itself
   cancelled the carry forward rule of 1952. When therefore
   this Court struck down the carry forward rule as modified
   in 1955 that did not mean that the carry forward rule of
   1952 which had already ceased to exist, because the             C
   Government of India itself cancelled it and had
   substituted a modified rule in 1955 in its place, could
   revive. We are therefore of opinion that after the
   judgment of this Court in Devadasan's case AIR 1964             D
   SC 179 there is no carry forward rule at all, for the carry
   forward rule of 1955 was struck down by this Court while
   the carry forward rule of 1952 had ceased to exist when
   the Government of India substituted the carry forward
   rule of 1955 in its place. But it must be made clear that       E
   the judgment of this Court in Devadasan's case AIR
    1964 SC 179, is only concerned with that part of the
   instructions of the Government of India which deal with
   the carry forward rule; it does not in any way touch the
    reservation for scheduled castes and scheduled tribes          F
    at 12-1 /2% and 5%, respectively; nor does it touch the
   filling up of schedule tribes vacancies by scheduled
    caste candidates where sufficient number of scheduled
    tribes are not available in a particular year or vice versa.
    The effect of the judgment in Devadasan's case. AIR            G
    1964 SC 179. therefore is only to strike down the carry
    forward rule and it does not affect the year to year
    reservation for scheduled castes and scheduled tribes
    or filling up of scheduled tribe vacancies by a member
                                                                   H
500         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A            of scheduled castes in a particular year if a sufficient
             number of scheduled tribe candidates are not available
             in that year of vice versa. This adjustment in the
             reservation between scheduled castes and tribes has
             nothing to do with the carry forward rule from year to
B            year either of 1952 which had ceased to exist or of 1955
           · which was struck down by this Court. In this view of the
             matter it is unnecessary to consider whether the carry
             forward rule of 1952 would be unconstitutional. for that
             rule no longer exists."
c           The non-revival of the carry-forward-rule of 1952, which
      was sought to be modified in 1955, determined in the instant
      judgment, wa~ not on account of the submissions, that have
      been advanced before us in the present controversy. But, on
 0    account of the fact, that the Government of India had itself
      cancelled the carry-forward-rule of 1952. Moreover, the issue
       under consideration in the above judgment, was not akin to
      the controversy in hand. As such, we are satisfied that reliance.
      on the B.N. Tewari case 72 is clearly misplaced.
 E    (iv) Relying on the Koteswar Vittal Karnath case 73 , learned
      Solicitor General placed reliance on the following observations
      recorded therein:
             "8. On that analogy, it was argued that, if we hold that the
             Prohibition Order of 1950, was invalid, the previous
 F
             Prohibition Order of 1119, cannot be held to be revived.
             This argument ignores the distinction between
             supersession of a rule, and substitution of a rule. In the
             case of Firm A. T. B. Mehtab Majid & Co. (supra), the new
 G           Rule 16 was substituted for the old Rule 16. The process
             of substitution consists of two steps. First, the old rule it
             made to cease to exist and, next, the new rule is brought
             into existence in its place. Even if the new rule be invalid,
             the first step of the old rule ceasing to exist comes into        \


 H           effect, and it was for this reason that the court held that, on
    SUPREME COURT ADVOCATES-ON-RECORD                              501
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      declaration of the new rule as invalid, the old rule could not A
      be held to be revived. In the case before us there was no
      substitution of the Prohibition Order of 1950. for the
      Prohibition Order of 1119. The Prohibition Order of 1950,
      was promulgated independently of the Prohibition Order
      of 1119 and because of the provisions of law it would have B
      had the effect of making the Prohibition Order of 1119
      inoperative if it had been a valid Order. If the Prohibition
      Order of 1950 is found to be void ab initio, it could never
      make the Prohibition Order of 1119 inoperative.
      Consequently on the 30th March. 1950. either the C
      Prohibition Order of 1119 or the Prohibition Order of 1950
      must be held to have been in force in Travancore-Cochin.
      so that the provisions of Section 73(2) of Act 5 of 1950
      would apply to that Order and would continue it in force. D
      This further continuance after Act 5 of 1950, of course,
      depends on the validity of Section 3 of Act 5 of 1950,
      because Section 73(2) purported to continue the Order in
      force under that section, so that we proceed to exa.mine
      the argument relating to the validity of Section 3 of Act 5 of E
       1950."
      A perusal of the conclusion drawn hereinabove,
apparently supports the contention advanced at the hands of
the respondents, that if the amendment to an erstwhile
legislative enactment, envisages the substitution of an existing    F
provision, the process of substitution must be deemed to
comprise of two steps. The first step would envisage, that the
old rule would cease to exist, and the second step would
envisage, that the new rule had taken the place of the old rule.
And as such, even ifthe new rule was to be declared as invalid,     G
the first step depicted above, namely, that the old rule has
ceased to exist, would remain unaltered. Thereby, leading to
the inference, that in the present controversy, even if the
impugned constitutional amendment was to be set aside, the
                                                                    H
502       SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A same would not lead to the revival of the unamended Articles
  124, 127, 128,217,222,224,224Aand231. lnourconsidered
  view, the observations made in the judgment leading to the
  submissions and inferences recorded above, are not
  applicable to the present case. The highlighted portion of the
B judgment extracted above, would apply to the present
  controversy. 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
C 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. Consequently, if reliance must
  be placed on the above judgment, the conclusion would be
0
  against the proposition canvassed. It would however be
  relevant to mention, that the instant judgment, as also, some
  of the other judgments relied upon by the learned counsel for
  the respondents, have been explained and distinguished in
E the State of Maharashtra v. Central Provinces Manganese Ore
  Co. Ltd. 76 , which will be dealt with chronologically hereinafter.
  (v) The learned Solicitor General then placed reliance on, the
  Mulchand Odhavji case 74 , and invited our attention to the
  observations recorded in paragraph 8 thereof. Reliance was
F even placed on, the Mohd. Shaukat Hussain Khan case 75 , and
  in particular, the observations recorded in paragraph 11 thereof.
  We are satisfied, that the instant two judgments are irrelevant
  for the determination of the pointed contention, advanced at
  the hands of the learned counsel for the respondents, as the
G subject matter of the controversy dealt with in the above cases,
  was totally different from the one in hand.
   (vi) Reference was then made to the Central Provinces
   Manganese Ore Co. Ltd. case 76 , and our attention was drawn
 H to the following observations recorded therein:
  SUPREME COURT ADVOCATES-ON-RECORD                                      503
ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

   "18. We do not think that the word substitution necessarily           A
   or always connotes two severable steps, that is to say,
   one of repeal and another of a fresh enactment even if it
   implies two steps. Indeed, the natural meaning of the word
   "substitution" is to indicate that the process cannot be split
   up into two pieces like this. If the process described as             B
   substitution fails, it is totally ineffective so as to leav~ intact
   what was sought to be displaced. That seems to us to be
   the ordinary and natural meaning of the words "shall be
   substituted". This part could not become effective without
   the assent of the Governor-General. The State Governor's              C
   assent was insufficient. It could not be inferred that, what
   was intended was that, in case the substitution failed or
   proved ineffective, some repeal, not mentioned at all, was
   brought about and remained effective so as to create what             D
   may be described as a vacuum in the statutory law on the
   subject-matter. Primarily, the question is one of gathering,
   the intent from the use of words in the enacting provision
   seen in the light of the procedure gone through. Here, no
   intention to repeal. without a substitution. is deducible. In         E
   other words, there could be no repeal if substitution failed.
   The two were a part and parcel of a single indivisible
   process and not bits of a disjointed operation.
   19. Looking at the actual procedure which was gone
   through, we find that, even if the Governor had assented to           F
   the substitution, yet, the amendment would have been
   effective, as a piece of valid legislation, only when the assent
   of the Governor-General had also been accorded to it. It
   could not be said that what the Legislature intended or what
   the Governor had assented to consisted of a separate                  G
   repeal and a fresh enactment. The two results were to
   follow from one and the same effective Le§islative process.
   The process had, therefore, to be so viewed and
   interpreted.
                                                                         H
504   SUPREME COURT REPORTS                      [2015] 13 S.C.R.

A     20. Some help was sought to be derived by the citation of
      B.N. Tewari v. Union of India [1965]2 SCR 421 and the case
      of Firm A. T. B. Mehtab Majid and Co. v. State of Madras.
      Tewari's case related to the substitution of what was
      described as the "carry forward" rule contained in the
B     departmental instruction which was sought to be
      substituted by a modified instruction declared invalid by
      the court. It was held that when the rule contained in the
      modified instruction of 1955 was struck down the rule
      contained in a displaced instruction did not survive. Indeed,
c     one of the arguments there was that the original "carry
      forward" rule of 1952 was itself void for the very reason for
      which the "carry forward" rule, contained in the modified
      instructions of 1955, had been struck down. Even the
      analogy of a merger of an order into another which was
D
      meant to be its substitute could apply only where there is a
      valid substitution. Such a doctrine applies in a case where
      a judgment of a subordinate court merges in the judgment
      of the appellate court or an order reviewed merges in the
      order by which the review is granted. Its application to a
E
      legislative process may be possible only in cases of valid
      substitution. The legislative intent and its effect is gathered,
      inter alia, from the nature of the action of the authority which
      functions. It is easier to impute an intention to an executive
F     rule-making authority to repeal altogether in any event what
      is sought to be displaced by another rule. The cases cited
      were of executive instructions. We do not think that they
      could serve as useful guides in interpreting a Legislative
      provision sought to be amended by a fresh enactment. The
G     procedure for enactment is far more elaborate and formal.
      A repeal and a displacement of a Legislative provision by a
      fresh enactment can only take place after that elaborate
      procedure has been followed in toto. In the case of any
      rule contained in an executive instruction, on the other hand,
H     the repeal as well as displacement are capable of being
    SUPREME COURT ADVOCATES-ON-RECORD                                    505
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      achieved and inferred from a bare issue of fresh instructions      A
      on the same subject.
      21. In Mehtab Majid & Co.'s case a statutory role was held
      not to have revived after it was sought to be substituted by
      another held to be invalid. This was also a case in which
      no elaborate legislative procedure was prescribe~ for a            B
      repeal as it is in the case of statutory enactment of statutes
      by legislatures. In every case, it is a question of intention to
      be ga~hered from the language as well as the acts of the
      rule-making or legislating authority in the context in which
      these occur.                                                       C
      22. A principle of construction contained now in a statutory
      provision made in England since 1850 has been:
      Where an Act passed after 1850 repeals wholly or partially
      any former enactment and substitutes provisions for the            D
      enactment repealed, the repealed enactment remains in
      force until the substituted provisions come into operation.
      (See: Halsbury's Laws of England, Third Edn. Vol. 36, P.
      474; Craies on "Statute Law", 6th Edn. p.386).
      Although, there is no corresponding provision in our General       E
      Clauses Acts, yet, it shows that the 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. We have as explained
      above, reached the same conclusion by considering the              F
      ordinary and natural meaning of the term "substitution"
      when it occurs without anything else in the language used
      or in the context of it or in the surrounding facts and
      circumstances to lead to another inference. It means,
      ordinarily that unless the substituted provision is there to       G
      take its place. in law and in effect. the pre-existing provision
      continues. There is no guestion of a "revival"."
    It would be relevant to mention, that the learned Solicitor
General conceded, that the position concluded in the instant
                                                                         H
506         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A judgment, would defeat the stance adopted by him. We
  endorse the above view. The position which is further
  detrimental to the contention advanced on behalf of the
  respondents is, that in recording the above conclusions, this
  Court in the above cited case, had taken into consideration,
B the juagments in the FirmA.T.B. Mehtab Majid case 71 , the B.N.
  Tewari case 72 , the Koteswar Vittal Karnath case 73 , and the
  Mulchand Odhavji case 74 • The earlier judgments relied upon
  by the learned counsel for the respondents would, therefore,
  be clearly inapplicable to the controversy in hand. In this view
C of the matter, there is hardly any substance in the pointed issue
  canvassed on behalf of the respondents.
      (vii) The learned Solicitor General, then placed reliance on
      Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of
o     lndia95 , and invited our attention to the following observations
      recorded therein:
             "107. In the cases before us we do not have rules made by
             two different authorities as in Mulchand case (1971) 3 SCC
             53 and no intention on the part of the Central Government
 E           to keep alive the exemption in the event of the subsequent
             notification being struck down is also established. The
             decision of this Court in Koteswar Vittal Karnath v.. K.
             Rangappa Baliga and Co. (1969) 3 SCR 40) does not also
             support the Petitioners. In that case again the question was
 F           whether a subsequent legislation which was passed by a
             legislature without competence would have the effect of
             reviving an earlier rule which it professed to supersede.
             This case again belongs to the category of Mohd. Shaukat
             Hussain Khan case, AIR 1974 SC 1480. It may also be
 G
             noticed that in Koteswar Vittal Karnath case, AIR 1969 SC
             504, the ruling in the case of FirmA.T.B. Mehtab Majid and
             Co. AIR 1963 SC 928 has been distinguished. The case of
             State of Maharashtra v. Central Provinces Manganese Ore
 H    "(1985) 1 sec 641
     SUPREME COURT ADVOCATES-ON-RECORD                                     507
   ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

        Co. Ltd., AIR 1977 SC 879 is again distinguishable. In this        A
        case the whole legislative process termed substitution was
        abortive, because, it did not take effect for want of the assent
        of the Governor-General and the Court distinguished that
        case from Tiwari case, AIR 1965 SC 1430. We may also
        state that the legal effect on an earlier law when the later       B
        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."
 What needs to be noticed from the extract reproduced above
                                                                           c
 is, that this Court in the above judgment clearly concluded, that
 the legal effect on an earlier law, when the later law enacted in
 its place was declared invalid, did not depend merely upon
 the use of the words like 'substitution' or, 'supersession'. And          D
 further, that it would depend on the totality of the circumstances,
 and the context, in which the provision was couched. If the
 contention advanced by the learned Solicitor General is
 accepted, it would lead to a constitutional breakdown. The
 tremors of such a situation are already being felt. The retiring          E
·Judges of the higher judiciary, are not being substituted by
 fresh appointments. The above judgment, in our considered
 view, does not support the submission being canvassed,
 because on consideration of the" ... totality of circumstances
 and the context. .. " the instant contention is just not acceptable.      F
 We are therefore of the considered view, that even the instant
 judgment can be of no avail to the respondents, insofar as the
 present controversy is concerned.
(viii) Reliance was next placed on the judgment rendered by
this Court in Bhagat Ram Sharma v. Union of lndia96 • The instant          G
judgment was relied upon only to show, that an enactment
purported to be an amendment, has the same qualitative effect
as a repeal of the existing statutory provision. The aforesaid
 " 1988 (Supp) sec 30                                                      H
508               SUPREME COURT REPORTS .                    [2015] 13 S.CR.


A     inference was drawn by placing reliance on Southerland's
      Statutory Construction, 3rd Edition, Volume I. Since there is no
      quarrel on the instant proposition, it is not necessary to record
      anything further. It however needs to be noticed, that we ·are
      not confronted with the effect of an amendment or a repeal.
B     We are dealing with the effect of the striking down of a
      constitutional amendment and a legislative enactment, through
      a process of judicial review.
      (ix) Reliance was then placed on State of Rajasthan v. Mangilal
c     Pindwal 97 , and particularly on the observations/conclusions
      recorded in paragraph 12 thereof. All that needs to be stated
      is, that the issue decided in the above judgment, does not arise
      for consideration in the present case, and accordingly, the
      conclusions drawn therein cannot be made applicable to the
D     present case.
      (x) Next in order, reliance was placed on the India Tobacco
      Co. Ltd. case 77 , and our attention was invited to the following .
      observations recorded therein:
                  "15. The general rule of construction is that the repeal of a
E
                  repealing Act does not revive anything repealed thereby.
                  But the operation of this rule is not absolute. It is subject to
                  the appearance of a "different intention" in the repealing
                  statute. Again, such intention may be explicit or implicit.
 F                The questions, therefore, that arise for determination are:
                  Whether in relation to cigarettes, the 1941 Act was repealed
                  by the 1954 Act and the latter by the 1958 Act? Whether
                  the 1954 Act and 1958 Act were repealing enactments?
                  Whether there is anything in the 1954 Act and the 1958 Act
G                 indicating a revival of the 1941 Act in relation to cigarettes?
                  16. It is now well settled that "repeal" connotes abrogation
                  or obliteration of one statute by another, from the statute
                  book as completely "as if it had never been passed"; when

H     •
          1
              (1996) 5   sec 60
    SUPREME COURT ADVOCATES-ON-RECORD                              509
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

      an Act is repealed, "it must be considered (except as to A
      transactions past and closed) as if it had never existed".
      (Per Tindal, C.J. in Kay v. Goodwin (1830) 6 Bing 576,
      582 and Lord Tenterdon in Surtees v. Ellison (1829) 9 B&C
      750, 752 cited with approval in State of Orissa v. M.A.
      Tulloch & Co .. AIR 1964 SC 1284).                             B
      17. Repeal is not a matter of mere from but one of
      substance. depending upon the intention of the Legislature.
      If the intention. indicated expressly or by necessary
      implication in the subsequent statute. was to abrogate or
      wipe off the former enactment wholly or in part. then it C
      would be a case of total or pro tanto repeal. If the intention
      was merely to modify the former enactment by engrafting
      an exception or granting an exemption. or by super-adding
      conditions. or by restricting. intercepting or suspending its D
      operation. such modification would not amount to a repeal
      - (see Craies on statute Law, 7th Edn. pp. 349, 353, 373,
      374 and 375; Maxwell's Interpretation of Statutes, 11th Edn.
      pp. 164,. 390 based on Mount v. Taylor (1868) L.R. 3 C.P.
      645; Southerland's Statutory Construction 3rd Edn. Vol. I, E
      paragraphs 2014 and 2022, pp. 468 and 490). Broadly
      speaking, the principal object of a Repealing and Amending
      Act is to 'excise dead matter, prune off superfluities and
      reject clearly inconsistent enactments' -see Mohinder Singh
      v. Mst. Harbhajan Kaur."                                       F
      What needs to be kept in mind, as we have repeatedly
expressed above is, that the issue canvassed in the judgments
relied upon, was the effect of a voluntary decision of a
legislature in amending or repealing an existing provision. That
position would arise, if the Parliament had validly amended or G
repealed an existing constitutional provision. Herein, the
impugned constitutional amendment has definetly the effct of
substituting some of the existing provisions of the Constitution,
and also, adding to it some new provisions. Naturally
                                                                    H
5tO.         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


 A  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
 B 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 are the stages or steps of the
  · .call Se and effect of the amendment,. all the stages and steps
                               ;

    will stand negated, in the same fashion as they were introduced
 C by the amendment, when the amended provisions are set
     aside.
     (xi) l_n adgition to the above judgment, reliance was also placed
     on the Kolhapur Canesugar Works Ltd. case 78 , West U.P.
 o   Sugar Mills Association v. state of U.P. 98 , Gammon India Ltd.
     v. Special Chief Secretary99 , the Hirendra Pal Singh case 79 ;
     the Joint Action Committee of Air Line Pilots' Associations of
     India case 80 , and the K. Shyam Sunder case81 • The conclusions
     drawn in the above noted judgments were either based on the
 E judgments already dealt with by us hereinabove, or on general
     principles. It is not necessary to examine all the above
   . judgments, by expressly taking note of the observations
     recorded in each of them.
 F        251. Even though we have already recorded our
   determination with reference to the judgments cited by the
   learned Solicitor General, it is imperative for us to record, that
   it is evident from the conclusions returned in the Central
   Provinces Manganese Ore Co. Ltd. case 76 , that in the facts
 G and circumstances of the present case, it would have to be
   kept in mind, that if the construction suggested by the learned
   Solicitor General was to be adopted, it would result in the
   creation of a void. We say so, because if neither the impugned
       •• (2002) 2   sec 645
 H     " (2006) 3 sec 354
  . ·. ,. SUPREME
          .       COURT
                    ..... ADVOCATES-ON-RECORD
                          .•'
                                                                    511
    ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

  constitutiona.1 provision, nor the amended provisions of the A
  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,
  in our view, cannot be the result of any sound process of B
, interpretation. Likewise, from the observations emerging out
  of the decision rendered in.the Indian Express Newspapers
  (Bombay) Pvt. Ltd. case95 , we are satisfied, that the clear intent
 .of the Parliament, While .enacting .the Constitution (99th
  Amendment) Act, was to pr<;>Vide for a nevv process of selection C
 ·and appointment of Judges to the higherjudiciary by amending
  the existingprovisions. Naturallyt_herefore, when the amended
· provl.sion postulating a different procedure is set aside, the
  original process of s~lectic;m arid appointment under the
                                                                      0
· unamended provisions would revive. The above position also
 ·emerges from the legal position declated in the Koteswar Vittal
  Karnath case 73 •
         252. It is not possible for us to accept the inferential
   contentions, advanced at the hands of the learned cou·nsel for E
. the respondents by pfacmg reliance on Sections 6, 7 and 8 of
  the General Clauses Act. We say so, because the contention
· •ofthe learned Solicitor General was 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. F
   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 G
  judicial process. It is not necessary to repeat the consideration
   recorded in paragraph 250(ix) above. 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.
                                                                     H
512         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A          253. For the reasons recorded hereinabove, we are of
      the view, that 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.
 B VI. CONCLUSIONS:
          254. Article 124A constitutes the edifice of the
   Constitution (99thAmendment)Act, 2014. The striking down
   of Article 124A would automatically lead to the undoing of the
 C amendments made to Articles 124, 1248, 124C, 127, 128,
   217, 222, 224, 224A and 231. This, for the simple reason,
   that the latter Articles are sustainable only if Article 124A is
   upheld. Article 124A(1) provides for the constitution and the
   composition of the National Judicial Appointments
 D 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 Supreme Court, next to the Chief
 E    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.
 F        If the inclusion of anyone of the Members of the NJAC is
   held to be unconstitutional, Article 124A will be rendered
   nugatory, in its entirety. While adjudicating upon the merits of
   the submissions advanced at the hands of the learned counsel
 G for the rival parties, I have arrived atthe conclusion, that clauses
   (a) and (b) of Article 124A(1) do not provide an adequate
   representation, to the judicial component in the NJAC, clauses
   (a) and (b) of Article 124A(1) are insufficient to preserve the
   primacy of the judiciary, in the matter of selection and
 H
    SUPREME COURT ADVOCATES-ON-RECORD                            513
  ASSOCIATION v. U.0.1. [JAGDISH SINGH KHEHAR, J.]

appointment of Judges, to the higher judiciary (as also transfer A
of Chief Justices and Judges, from one High Court to another).
The same are accordingly, violative of the principle of
"independence of the judiciary". I have independently arrived
atthe conclusion, that clause (c) of Article 124A(1) is ultra vires
the provisions of the Constitution, because of the inclusion of B
the Union Minister in charge of Law and Justice as an ex officio
Member of the NJAC. Clause (c)of Article 124A(1 ), in my view,
impinges upon the principles of "independence of the judiciary",
as well as, "separation of powers". It has also been concluded
by me, that clause (d) of Article 124A(1)which provides for the C
inclusion of two "eminent persons" as Members of the 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. In the above view of the matter, I D
am of the considered view, that all the clauses (a) to (d) of
Article 124A(1) are liable to be set aside. The same are,
accordingly struck down. In view of the striking down of Article
124A(1 ), the entire Constitution (99th Amendment) Act, 2014
is liable to be set aside. The same is accordingly hereby struck E
down in its entirety, as being ultra vires the provisions of the
Constitution.
      255. The contention advanced !'It the hands of the
respondents, to the effect, that the provisions of the
Constitution which were sought to be amended by the F
impugned constitutional amendment, would not revive, even if
the challenge raised by the petitioners was accepted (and the
Constitution (99th Amendment) Act, 2014, was set aside), has
been considered under a separate head, to the minutest detail,
in terms of the submissions advanced. I have concluded, that G
with the setting aside of the impugned Constitution (99th
Amendment) Act, 2014, the provisions of the Constitution
sought to be amended thereby, would automatically revive, and
the status quo ante would stand restored.
                                                               H
514          SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A        256. The National Judicial Appointments Commission
  Act, 2014 inter alia emanates from Article 124C. It has no
  independent existence in the absence of the NJAC, constituted
  under Article 124A(1 ). Since Articles 124A and 124C have
  been set aside, as a natural corollary, the National Judicial
B Appointments Commission Act, 2014 is also liable to be set
  aside, the same is accordingly hereby struck down. In view of
  the above, it was not essential for us, to have examined the
  constitutional vires of individual provisions of the NJAC Act. I
  have all the same, examined the challenge raised to Sections
C 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8
  of the NJACActare ultra viresthe provisions of the Constitution.
            VII. ACKNOWLEDGEMENT:
             257. Before parting with the order, I would like to record
 D    my appreciation for the ablest assistance rendered to us, by
      the learned counsel who addressed us from both the sides. I
      would also like to extend my deepest sense of appreciation to
      all the assisting counsel, who had obviously whole heartedly
      devoted their time and energy in the preparation of the case,
 E    and in instructing the arguing counsel. I would be failing in my
      duty, if I do not express my gratitude to my colleagues on the Bench,
      as also, learned counsel who agreed to assist the Bench, during
      the summer vacation'. I therefore, express my gratefulness and
 F    indebtedness to them, from the bottom of my heart.
            Note: The emphases supplied in all the quotations in the
      instant judgment, are mine.
                                    ORDER*
 G         CHELAMESWAR, J. 1. Very important and far reaching
      questions fall for the consideration of this Court in this batch of
      matters. The constitutional validity of the Constitution (Niilety-
      ninth Amendment) Act, 2014 and the National Judicial
      * Ed. Note: Pronounced by Hon'ble Mr. Justice J. Chelameswar for himself
 H    and Hon'ble Mr. Justice Adarsh Kumar Goel.
      SUPREME COURT ADVOCATES-ON-RECORD                                           . 515
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

Appointments Commission Act, 2014 are under challenge.                             A
       2. When these matters were listed for preliminary hearing
on 21.04.2015, an objection was raised by Shri Fali S.
Nariman, learned senior counsel appeciring for one of the
petitioners, that it is inappropriate for Justice Jagdish Singh B
Khehar to participate in the proceedings as the Presiding
Judge of this Bench. The objection is predicated on the facts
: Being the third senior most Puisne Judge of this Court,
Justice Khehar is a member of the collegium propounded
under the Second Judges case 1 exercising "significant c
constitutional power" in the matter of selection of Judges, of
this Court as well as High Courts of this country; by virtue of
the impugned legislation, until he attains the position of being
the third senior most Judge of this Court, Justice Khehar would
cease to enjoy such pow~r; and therefore, there is a possibility D
of him not being impartial.
       3. When the objection was raised, various counsel
appearing on behalf of either side expressed different
viewpoints regarding the appropriateness of participation of
Justice Khehar in these proceedings. We, therefore, called                         E
upon learned counsel appearing in this matter to precisely state
their respective points of view on the question and assist the
Court in identifying principles of law which are relevant to arrive
at the right answer to the objection raised by Shri Fali S.
                                                                                    F
Nari man.
       4. The matter was listed again on 22.04.2015 on which
date Shri Nariman filed a brief written statement 2 indicating
 1
    Supreme Court Advocates-on-Record Association & Others v. Union of
India, (1993) 4 sec    441                                                         G
2
   The position of the Presiding Judge ori this Bench hearing these cases of
constitutional challenge is not consistent with (and apparently conflicts with)
his position as a member of the 'Collegium'; and is likely to be seen as such;
always bearing in .mind that if the Constitution Amendment and the statute
pertaining thereto are held constitutionally valid and are upheld, the present
Presiding Judge would no longer be part of the Collegium - The Collegium,
it must be acknowledged exercises significant constitutional power.                 H
516            SUPREME COURT REPORTS                          [2015] 13 S.C.R.


A     reasons which according to him make it inappropriate for
      Justice Khehar to preside over the present Bench.
           5. On the other hand, Shri Arvind P. Datar, learned senior
      counsel appearing for one of the petitibners made elaborate
B     submissions explaining the legal principles which require a
      Judge to recuse himself from hearing a particular case and
      submitted that in the light of settled principles of law in this
      regard there is neither impropriety in Justice Khehar hearing
      these matters nor any need for him to do so.
C          6. Shri Mukul Rohatgi, learned Attorney General very
      vehemently opposed the suggestion of Shri Nariman and
      submitted that there is nothing in law which demands the
      recusal of Justice Khehar nor has the Union of India any
      objection to Justice Khehar hearing these batch of matters.
 D
           7. Shri Harish N. Salve and Shri K.K. Venugopal, learned
      senior counsel who proposed to appear on behalf of different
      States also supported the stand of the learned Attorney General
      and made independent submissions in support of the
 E    conclusion.
            8. After an elaborate hearing of the matter, we came to
      the unanimous conclusion that there is no principle of law which
      warrants Justice Khehar's recusal from the proceedings. We
      recorded the conclusion of the Bench in the proceedings dated
 F    22.04.2015 and indicated that because of paucity of time, the
      reasons for the conclusion would follow later3
      3
          Order dated 22.04.2015 insofar as it is relevant reads thus:
      "A preliminary objection, whether Justice Jagdish Singh Khehar should
 G    preside over this Bench, by virtue of his being the fourth senior most Judge of
      this Court, also happens to be a member of the collegium, was raised by the
      petitioners. Elaborate submissions were made by the learned counsel for
      the petitioners and the respondents. After hearing all the learned counsel, we
      are of the unanimous opinion that we do not see any reason in law requiring
      Justice Jagdish Singh Khehar to recuse himself from hearing the matter.
      Reasons will follow.
 H              Issue rule. "
       SUPREME COURT ADVOCATES-ON-RECORD                                    517
        ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

       9. At the outset, we must record that each of the learned A
 counsel who objected to the participation of Justice Khehar in
 these proceedings anchored this objection on distinct
 propositions of law. While Shri Nariman put it on the ground
 of inappropriateness, Shri Santosh Paul invoked the principle
 of bias, on the ground of him having conflicting interests - one B
 in his capacity as member of the Collegium and the other in
 his capacity as a Judge to examine the constitutional validity
 of the provisions which seek to displace the Collegium system.
 In substance, some of the petitioners are of the opinion that
 Justice Khehar should recuse 4 •                                 C
       10. It is one of the settled principles of a civilised legal
 system that a Judge is required to be impartial. It is said that
 the hallmark of a democracy is the existence of an impartial
 Judge.                                                                     D
       11. It all started with a latin maxim Nemo Judex in Re
  Sua which means literally- that no man shall be a judge in his
  own cause. There is another rule which requires a Judge to
  be impartial. The theoretical basis is explained by Thomas
  Hobbes in his Eleventh Law of Nature. He said "If a man be                E
. trusted to judge between man and man, it is a precept of the
  law of Nature that he deal equally between them. For without
  that, the controversies of men cannot be determined but by
  war. He therefore, said that is partial in judgment doth what in          F
  him lies, to deter men from the use of judges and arbitrators;
  and consequently, against the fundamental law of Nature, is
  the cause of war.".
       12. Grant Hammond, a former Judge of the Court of
 Appeal of New Zealand and an academician, in his book titled G
 "Judicial Recusal" 5 traced out principles on the law of recusal
 ' The expression 'recuse' according to the New Oxford Dictionary English
 means - (the act of a Judge) to excuse himself from a case because of
 possible conflict of interest"for lack of impartiality.
 5
    R. Grant Hammond, Judicial Recusal: Principles, Process and Problems,
  (Hart Publishing, 2009).                                                  H
518         SUPREME COURT REPORTS                  (2015] 13S.C.R.


A     as developed in England in the following words :-
           'The central feature of the early English common
           law on recusal was both simple and highly
           constrained: a judge could only be disqualified for
           a direct pecuniary interest. What would today be
B
           termed 'bias', which is easily the most controversial
           ground for disqualification, was entirely rejected as
           a ground for recusal of judges, although it was not
           completely dismissed in relation to jurors.
c          This was in marked contrast to the relatively
           sophisticated canon law, which provided for recusal
           if a judge was suspected of partiality because of
           consanguinity, affinity, friendship or enmity with a
           party, or because of his subordinate status towards .
D          a party or because he was or h_ad been a party's
           advocate."
           He also pointed out that in contrast in the United States
      of America, the subject is covered by legislation.
 E       13. Dimes v. Proprietors of Grand Junction Canal,
  (1852) 10 ER 301, is one of the earliest.cases where the
  question of disqualification of a Judge was considered. The
  ground was that he had some pecuniary interest in the matter.
  We are not concerned with the details of the dispute between
F the parties to the case. Lord Chancellor Cottenham heard the
  appeal against an order of the Vice-Chancellor and confirmed
  the order. The order went in favour of the defendant company.
  A year later, Dimes discovered that Lord Chancellor
G Cottenham had shares in the defendant company. He
  petitioned the Queen for her intervention. The litigation had a
  long and chequered history., the details of which are not material
  for us. Eventually, the matter reached the House of Lords. The
  House dismissed the appeal of Di_mes on the ground that
H setting aside of the order of the Lord Chancellor would still
     SUPREME COURT ADVOCATES-ON-RECORD                             519
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

leave the order of the Vice-Chancellor intact as Lord Chancellor   A
had merely affirmed the order of the Vice-Chancellor. However,
the House of Lords held that participation of Lord Cottenham
in the adjudicatory process was not justified. Though Lord
Campbell observed:
                                                                   B
     "No one can suppose that Lord Cottenham could
     be, in the remotest degree, Influenced by the interest
     he had in this concern: but, my Lords, it is of the
     last importance that the maxim that no man is to be
     a judge in his own cause be held sacred. And that             c
     is not to be confined to a cause in which he is a
     party, but applies to a cause in which he has an
     interest .... This will be a lesson to all inferior
     tribunals to take care not only that in their decrees
     they are not influenced by their personal interest,           D
     but to avoid the appearance of labouring under such
     an influence."
    14. Summing up the principle laid down by the
abovementioned case, Hammond observed as follows:
                                                                   E
      "The 'no-pecuniary interest' principle as expressed
      in Dimes requires a judge to be automatically
      disqualified when there is neither actual bias nor
      even an apprehension of bias on the part of that
      judge. The fundamental philosophical underpinning            F
      of Dimes is therefore predicated on a conflict of
      interest approach."
      15. The next landmark case on the question of "bias" is
Regina v. Gough, (1993)AC 646. Gough was convicted for G
an offence of conspiracy to rob and was sentenced to
imprisonment for fifteen years by the Trial Court. It was a trial
by Jury. After the conviction was announced, it was brought to
the notice of the Trial Court that one of the jurors was a neighbour
of the convict. The convict appealed to the Court of Appeal H
520         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     unsuccessfully. One of the grounds on which the conviction
      was challenged was that, in view of the fact that one of the
      jurors being a neighbour of the convict presented a possibility
      of bias on her part and therefore the conviction is unsustainable.
      The Court of Appeal noticed that there are two lines of authority
B     propounding two different tests for determining disqualification
      of a Judge on the ground of.bias:
            (1) "real danger" test; and
            (2) "reasonable suspicion" test.
c           The Court of Appeal confirmed the conviction by applying
      the "real danger" test.
            16. The matter was carried further to the House of Lords.
            17. Lord Goff noticed that there are a series of authorities
D     which are "not only large in number but bewildering in their
      effect". After analyzing the judgment in Dimes (supra), Lord
      Goff held:
            "In such a case, therefore, not only is it irrelevant
 E          that there was in fact no bias on the part of the
            tribunal, but there is no question of investigating,
            from an objective point of view, whether there was
            any real likelihood of bias, or any reasonable
            suspicion of bias, on the facts of the particular case.
 F          The nature of the interest is such that public
            confidence in the administration of justice requires
            that the decision should not stand."
         In other words, where a Judge has a pecuniary interest,
G no further inquiry as to whether there was a "real danger" or
  "reasonable suspicion" of bias is required to be undertaken.
  But in other cases, such an inquiry is required and the relevant
  test is the "real danger'' test.
            "But in other cases, the inquiry is directed to the
 H          question whether there was such a degree of
     SUPREME COURT ADVOCATES-ON-RECORD                           521
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

    . possibility of bias on the part of the tribunal that the   A
      court will not allow the decision to stand. Such a
      question may arise in a wide variety of
      circumstances. These include .... cases in which
      the member of the tribunal has an interest in the
      outcome of the proceedings, which falls short of a         B
      direct pecuniary interest. Such interests may vary
      widely in their nature, in their effect, and in their
      relevance to the subject matter of the proceedings;
      and there is ho rule .... that the possession of such
      an interest automatically disqualifies the member          c
      of the tribunal from sitting. Each case falls to be
      considered on its own facts. "
      18. The learned Judge examined various important cases
on the subject and finally concluded:                            D
     "Finally, for the avoidance of doubt, I prefer to state
     the test in terms of real danger rather than real
     likelihood, to ensure that the court is thinking in
     terms of possibility rather than probability of bias.
     Accordingly, having ascertained the relevant                E
     circumstances, the court should ask itself whether,
     having regard to those circumstances, there was a
     real danger of bias on the part of the relevant
     member of the tribunal in question, in the sense that
                                                                 F
     he might unfairly regard (or have unfairly regarded)
     with favour, or disfavour, the case of a party to the
     issue under consideration by him."
     19. Lord Woolf agreed with Lord Goff in his separate
judgment. He held:                         ·                     G
    . "There is only one established special cate19ory and
      that exists where the tribunal has a pecuniary or
      proprietary interest in the subject matter of the
      proceedings as in Dimes v. Proprietors of Grand
                                                                 H
522         SUPREME COURTREPOR\S                     · [2015] 13 S.C.R.


A           Junction Canal, 3 H.L. Case 759. The courts
            should hesitate long before creating any other
            special category since this will immediately create
            uncertainty as to what are the parameters of that
            category and what is the test to bf? applied in tb.e
B           case of that category. The real danger test is quite
            capable of producing the right answer and ensure
            that the purity of ju~tice is maintaine.d across the
            range of situations.where bias may exist."

c           20. In substance, the Court held that in cases where the
      Judge has a pecuniary interest in the outc~me of the
      proceedings, his disqualification is automatic. No further
      enquiry whether such an interest lead to 9 "real dang~r" or ga'v'.e •..
      rise to a "reasonable suspicion" is necessary.· In cases Of
o     other interest, the test to determille Whether the· Judge is • · ·
      disqualified to hear the c;ase is the "real danger:" .test.
            21. The Pinochet6 case added 9ne more category to
  the cases of automatic disqualification for a judge. Pinochet,
  a.former Chilean dictator, was sought to. be arrested and
E extradited from England for his conduct during his incumbency
  in office. The issue was whether Pinochet was entitled to
  immunity from such arrest.or extradition. Amnesty International,
  a charitable organisation, participated in the said proceedings
F with the leave of the Court. The House of Lords held that
  Pinochet did not enjoy any such immunity. Subsequently, jt .
  came to light that Lord Hoffman, one of the members of the.
  Board which heard the Pinochet case, was a Director and
  Chairman of a company (known asA.l.C.L.) which was closely
G linked with Amnesty International. An application was made .
  to the House of Lords to set aside the earlier judgment on the
  ground of bias on the part of Lord Hoffman.               ·

      6
        Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte .
 H    Pinochet Ugarte, (1999) 1 All E.R. 577
   . :suPREMECOURTADV0CATES-ON-RECORD                                 .   523
       ASSOCIATION v. U.O.L[CHELAMESWAR, J.]

     22. _The House· of Lords examined the following                      A
questions;
     (i) Whether the connection of Lord Hoffman with Amnesty
         International required him to be automatic
         disqualified?
                                                                          B
     (ii) Whether an enquiry into the question wl:lether cause
          of -Lord Hoffrnan'.s connection with Amnesty
        -f.   :   .    •   •   ·.•   •   '   ·'


           International posed a real danger or caused a
       .· ·reawnable,apprehension that his judgment is biased
          - is necessary?                                                 c
     (iii) Did it make any difference that Lord Hoffman was
          only a member of a company associated with Amnesty
          International which was in fact interested in securing
          the extradition of SenatorPinochet?
                                                                          D
     23. Lord W'ilkinson summarised the principles on which
a Judge is disqualified to hear a case. As per Lord Wilkinson -
     "The fundamental principle is that a man may not
     be a judge in his own cause. This principle, as
                                                                          E
     developed by the courts, has two very similar but
     not identical implic;ations. First it may be applied
     literally: if a judge is in fact a P(3rtY to the litigation or
     has a financial or proprietary interest in its outcome
     then he is indeed sitting as a judge in his own cause.
                                                                          F
     In that case, the mere fact that he is a party to the
     action or has a financial or proprietary interest in
     its outcome is sufficient to cause his automatic
     disqualification. The second application of the
     principle is where a judge is not a party to the suit                G
     and does not have a financial interest in its outcome,
     but in some other way his conduct or behaviour may
     give rise to a suspicion that he is not impartial, for

                                                                          H
524         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A          example because of his friendship with a party.
           This second type of case is not strictly speaking an
           application of the principle that a man must not be
           judge in his own cause, since the judge will not
           normally be himself benefiting, but providing a
 B         benefit for another by failing to be impartial.
           In my judgment, this case falls within the first
           category of case, viz. where the judge is disqualified
           because he is a judge in his own cause. In such a
 c         case, once it is shown that the judge is himself a
           party to the cause, or has a relevant interest in its
           subject matter, he is disqualified without any
           investigation into whether there was a likelihood or
           suspicion of bias. The mere fact of his interest is
 D         sufficient to disqualify him unless he has made
           sufficient disclosure.
           And framed the question;
           " .... the question then arises whether, in non-
 E         financial litigation, anything other than a financial
           or proprietary interest in the outcome is sufficient
           automatically to disqualify a man from sitting as
           judge in the cause."
            He opined that although the earlier cases have "all dealt
 F    with automatic disqualification on the grounds of pecuniary
      interest, there is no good reason in principle for so limiting
      automatic disqualification."
            24. Lord Wilkinson concluded thatAmnesty International
 G and its associate company known as A.l.C.L., had a non-
   pecuniary interest established that Senator Pinochet was not
   immune from the process of extradition. He concluded that,
   " .... the matter at issue does not relate to money or economic

 H
        SUPREME COURT ADVOCATES-ON-RECORD                                    525
         ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

advantage but is concerned with the promotion of the cause,                  A
the rationale disqualifying a judge applies just as much if the
judge's decision will lead to the promotion of a cause in which
the judge is involved together with one of the parties"
      25. After so concluding, dealing with the last question,
                                                                             8
whether the fact that Lord Hoffman was only a member of
A.l.C.L. but not a member of Amnesty International made any
difference to the principle, Lord Wilkinson opined that even
though a judge may not have financial interest in the outcome
of a case, but in some other way his conduct or behaviour may                c
give rise to a suspicion that he is not impartial and helctthat if
the absolute impartiality of the judiciary is to be maintained,
there must be a rule which automatically disqualifies a judge
who is involved, whether personally or as a director of a
company, in promoting the same causes in the same                            D
organisation as is a party to the suit. There is no room for fine
distinctions. This aspect of the matter was considered in P.D.
Dinakaran case 7•
      26. From the above decisions, in our opinion, the
following principles emerge;                                                 E
        (i) If a Judge has a financial interest in the outcome of a
            case, he is automatically disqualified from hearing the
            case.
        (ii) In cases where the interest of the Judge in the case is F
             other than financial, then the disqualification is not
             automatic but an enquiry is required whether the
             existence of such an interest disqualifies the Judge
             tested in the light of either on th_e principle of "real G
             danger'' or "reasonable apprehension" of bias.
7
    P.O. Dinakaran(1) v. Judges Inquiry Committee, (2011) 8 SCC 380, paras
49 to 53.


                                                                             H
526         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A          (iii) The Pinochet case added a new category i.e that
                the Judge is automatically disqualified from hearing a
                case where the Judge is interested in a cause which
                is being promoted by one of the parties to the case.
            27. It is nobody's case that, in the case at hand, Justice
 8
      Khehar had any pecuniary interest or any other interest falling
      under the second of the above-mentioned categories. By the
      very nature of the case, no such interest can arise at all.
            28. The question is whether the principle of law laid down
C     in Pinochet case is attracted. In other words, whether Justice
      Khehar can be said to be sharing any interest which one of the
      parties is promoting. All the parties to these proceedings
      claim to be promoting the cause of ensuring the existence of
      an impartial and independent judiciary. The only difference of
 D    opinion between the parties is regarding the process·bywhich
      such a result is to be achieved. Therefore, it cannot be said
      that Justice Khehar shares any interest which any one of the
      parties to the proceeding is seeking to promote.
 E           29. The implication of Shri Nariman's submission is that
      Justice Khehar would be pre-determined to hold the impugned
      legislation to be invalid. We fail to understand the stand of the
      petitioners. If such apprehension of the petitioners comes true,
      the beneficiaries would be the petitioners only. The grievance,
 F    if any, on this ground should be on the part of the respondents.
            30. The learnedAttomeyGeneral appearing for the Union
      of India made an emphatic statement that the Union of India
      has no objection for Justice Khehar hearing the matter as a
G     presiding Judge of the Bench.
            31. No precedent has been brought to our notice, where
      courts ruled at the instance of the beneficiary of bias on the
      part of the adjudicator, that a judgment or an administrative

 H
      SUPREME COURT ADVOCATES-ON-RECORD                                       527
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

decision is either voidable or void on the ground of bias. On                 A
the other hand, it is a well established principle of law that an
objection based on bias of the adjudicator can be waived.
Courts generally did not entertain such objection raised
belatedly by the aggrieved party.
                                                                              B
      "The right to object to a disqualified adjudicator may
      be waived, and this may be so even where the
      disqualification is statutory. 8 The court normally
      insists that the objection shall be taken as soon as
      the party prejudiced knows the facts which entitle                      c
      him to object. If, after he or his advisers know of
      the disqualification, they let the proceedings
      continue without protest, they are held to have
      waived their objection and the determination cannot
      be challenged." 9                                                       D
      In our opinion, the implication of the above principle is
that only a party who has suffered or likely to suffer an adverse
adjudication because of the possibility of bias on the part of
the adjudicator can raise the objection.
                                                                              E
     32. The significant power as described by Shri Nariman
does not inhere only to the members of the Collegium, but
inheres in every Judge of this Court who might be called upon
to express his opinion regarding the proposals of various
appointments of the High Court Judges, Chief Justices or                      F
Judges of this Court, while the members of the Collegium are
required to exercise such "significant power" with respect to
•Wakefield Local Board of Health v. West Riding and Grimsby Rly Co. (1865)
1Q.B.84.
9
   R V. Byles ex p. Hollidge (1912) 77 J.P. 40; R. v. Nailsworth Licensing    G
Justices exp. Bird [1953] 1W.L.R.1046; R v. Lilydale Magistrates Court exp.
Ciccone (1973] V.R. 122; and see R. v. Antrim Justices (1895] 2 l.R. 603;
Tolputt (H.) & Co. Ltd. v. Mole [1911] 1 K.B. 836; Corrigan v. Irish Land
Commission (1977] l.R. 317.


                                                                              H
528         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     each and every appointment of the above-mentioned
      categories, the other Judges of this Court are required to
      exercise such "significant power", at least with respect to the
      appointments to or from the High Court with which they were
      earlier associated with either as judges or Chief Justices. The
B     argument of Shri Nariman, if accepted would render all the
      Judges of this Court disqualified from hearing the present
      controversy. A result not legally permitted by the "doctrine of
      necessity".
c          33. For the above-mentioned reasons, we reject the
      submission that Justice Khehar should recuse from the
      proceedings.


                              JUDGMENT
 D
          CHELAMESWAR, J. 1. 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
 E 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
 F 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 5th
 G October, 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 by which the petitioners question the validity of


 H
     SUPREME COURT ADVOCATES-ON-RECORD                            529
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

the Constitution (99th Amendment) Act, 2014 and The National A
Judicial Appointments Commission Act, 2014 (hereinafter
referred to as the "AMENDMENT" and the "ACT", for the sake
of convenience).
       2. To understand the present controversy, a look at the
                                                                  8
relevant provisions of the Constitution of India, as they stood
prior to and afterthe impugned AMENDMENT, is required.
     Prior to theAMENDMENT
     Article 124. Establishment and constitution of
     Supreme Court
                                                                  c
     (1) There shall be a Supreme Court of India constituting
     of a Chief Justice of India and, until Parliament by law
     prescribes a larger number, of not more than thirty other
     Judges.                                                   D
     (2) Every Judge of the Supreme Court shall be appointed
     by the President by warrant under his hand and seal after
     consultation with such of the Judges of the Supreme
     Court and of the High Courts in the States as the E
     President may deem necessary for the purpose and shall
     hold office until he attains the age of sixty five years:
     Provided that in the case of appointment of a Judge other
     than the chief Justice, the chief Justice of India shall
     always be consulted:                                         F
       )()()()(       )()()()()(    )()()()()(     )()()()()(


     Article 217. Appointment and conditions of the
     office of a Judge of a High Court
     (1) Every Judge of a High Court shall be appointed by G
     the President by warrant under his hand and seal after
     consultation with the Chief Justice of India, the Governor


                                                                  H
530          SUPREME COURT REPORTS                              [2015] 13 S.C.R.


A           of the State, and, in th~ case of appointment of a Judge
            other than the chief Justice, the chiefJustice of the High
            court, ............... ..
              xxxx               )()()()()(        )()()()()(         )()()()()(


B           3. The pre AMENDMENT text stipulated that the
      President of India shall appoint Judges of this Court and High
      Courts of this country (hereinafter the CONSTITUTIONAL
      COURTS) in consultation with the Chief Justice of India
      (hereinafter CJI) and other constitutional functionaries
C     indicated in Article 124 and 217. In practice, the appointment
      process for filling up vacancies was being initiated by the Chief
      Justice of the concerned High Court or the CJI, as the case
      may be. Such a procedure was stipulated by a memorandum
      of the Government of lndia 1 •
D
            After the AMENDMENT
           4. Articles 124 and 217 insofar as they are relevant for
      our purpose read
            "Article 124         xxxxx             )()()()()(         xxxx
E
            (2) Every Judge of the Supreme Court shall be appointed
            by the President by warrant under his hand and seal on
            the recommendation of the National Judicial
            Appointments Commission referred to in article 124A
 F          and shall hold office until he attains the age of sixty-five
            years.
            Article 217. Appointment and conditions of the
            office of a Judge of a High Court-(1) Every Judge of
            a High Court shall be appointed by the President by
G
            warrant under his hand and seal on the recommendation
            of the National Judicial Appointments Commission
      'The details of which are already noted in the judgment of my brother Khehar, J.


H
    SUPREME COURT ADVOCATES-ON-RECORD                            531
     ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

    referred to in article 124A, and shall hold office, in the   A
    case of an additional or acting Judge, as provided in
    article 224, and in any other case, until he attains the
    age of sixty-two years."
    5. TheAMENDMENT inserted Articles 124A, 1248 and             B
124C. These provisions read:
    "124A (1) There shall be a Commission to be known
    as the National Judicial Appointments Commission
    consisting of the following, namely:-
          (a) the Chief Justice of India, Chairperson, ex C
          officio;
          (b) two other senior Judges of the Supreme Court
          next to the Chief Justice of India - Members, ex
          officio;                                         D
          (c) the Union Minister in charge of Law and Justice
          - Member, ex officio
          (d). two eminent persons to be nominate? by the
          committee consisting of the Prime Minister, the        E
          Chief Justice of India and the Leader of Opposition
          in the House of the People or where there is no
          such Leader of Opposition, then, the Leader of
          single largest Opposition Party in the House of the
          People - Members:                                      F
          Provided that one of the eminent person shall be
          nominated from amongst the persons belonging to
          the Scheduled Castes, the Scheduled Tribes, Other
          Backward Classes, Minorities or Women;
                                                                 G
          Provided further that an eminent person shall be
          nominated for a period of three years and shall not
          be eligible for renomination.

                                                                 H
532         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A             (2)°No act or proceedings of the National Judicial
              Appointments Commission shall be questioned or be
              invalidated merely on the ground of the existence of
              any vacancy or defect in the constitution of the
              Commission.
B
           1248. It shall be the duty of the National Judicial
           Appointments Commission to-
              (a) recommend persons for appointment as Chief
              Justice of India, Judges of the Supreme Court, Chief
c             Justices of High Courts and other Judges of High
              Courts;
              (b) recommend transfer of Chief Justices and other
              Judges of High Courts from one High Court to any
              other High Court; and
D
              (c) ensure that the person recommended is of ability
              and integrity.
           124C. Parliament may, by law, regulate the procedure
           for the appointment of Chief Justice of India and other
E
           Judges of the Supreme Court and Chief Justices and
           other Judges of High Courts and empower the
           Commission to lay down by regulations the procedure
           for the discharge of its functions, the manner of selection
 F         of persons for appointment and such other matters as
           may be considered necessary by it.
            Consequent amendments to other Articles are also made,
      details are not necessary.
            6. The crux of the AMENDMENT is that the institutional
G
      mechanism by which selection and appointment process of
      the Judges of CONSTITUTIONAL COURTS was undertaken
      came to be substituted by a new body called the National


H
           SUPREME COURT ADVOCATES-ON-RECORD                                   533
            ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

      Judicial Appointments Commission (hereinafter referred to as             A
      NJAC). It consists of six members. The CJI is its ex-officio
      Chairperson. Two senior Judges of the Supreme Court next
      to the CJI and the Union Law Minister are also ex-officio
      members, apart from two eminent persons to be nominated
      by a Committee contemplated in Article 124A (1 )(d).                     B

           7. Under Article 124B, the NJAC is charged with the duty
      of recommending persons of ability and integrity for
      appointment as Chief Justice of India, Judges of the Supreme
      Court, Chief Justices of High Courts and other Judges of High            c
      Courts and of recommending transfer of Chief Justices and
      other Judges of High Courts from one High Court to any other
      High Court.
            8. Article 124C authorizes Parliament to regulate by law,
      the procedure for the appointment of Chief Justice and other             D
      Judges of the Supreme Court etc. It also empowers the NJAC
      to make regulations laying down the procedure for the
      discharge of its functions.
           9. Pursuant to the mandate of Article 124C, Parliament E
      made the ACT. For the present, suffice it to note that though
      the amended text of the Constitution does not so provide,
      Section 6(6) 2 of the ACT provides that the NJAC shall not
      recommend a person for appointment, if any two members of
      the Commission do not agree for such recommendation.          F
            10. The 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
                                                                               G
       appointments to CONSTITUTIONAL COURTS to consult the
      2
       Section 6 (6). "The Commission shall not recommend a person for
·1    appointment under this section if any two members of the Commission do

II
      not agree for such recommendation."

                                                                               H
534         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     CJI, the Chief Justices of High Courts and Governors of the
      States but is obliged to consult the NJAC.
            11. The challenge to the AMENDMENT is principally on
      the ground that such substitution undermines the independence
      of the judiciary. It is contended that independence of judiciary
8
      is a part of the basic structure of the Constitution and the
      AMENDMENT is subversive of such independence. Hence, it
      is beyond the competence of the Parliament in view of the law
      declared by this Court in His Holiness Kesavananda Bharati
C     Sripadagalvaru v. State of Kera/a & Another, ( 1973) 4 SCC
      225 (hereinafter referred to as Bharati case).
         12. Fortunately there is no difference of opinion between
   the parties to this /is regarding the proposition that existence
   of an independent judiciary is an essential requisite of a
D 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.
           13. The only issue is what is the permissible procedure
 E    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
 F             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
G               (NJAC) sought to be established by the AMENDMENT
                transgresses the boundaries of the constituent power?
             14. In the last few weeks, after the conclusion of hearing
      in this batch of matters, I heard many a person - say that the

H
      SUPREME COURT ADVOCATES-ON-RECORD                                            535
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

whole country is awaiting the judgment. Some even said the                         A
whole world is awaiting. There is certainly an element of
hyperbole in those statements. Even those who are really
waiting, I am sure, have concerns which vary from person to
person. Inquisitiveness regarding the jurisprudential and
political correctness, impact on the future of the judiciary,                      B
assessment of political and personal fortunes etc. could be
some of those concerns. I am only reminded of Justice Fazal
Ali's view in S.P Gupta v. Union of India & Ors. 3 AIR 1982
SC 149 {for short S.P Gupta case) that the issue is irrelevant
for the masses and litigants. They only want that their cases                      C
should be decided quickly by judges who generate confidence.
The question is - what is the formula by which judges - who
can decide cases quickly and also generate confidence in the
masses and litigants - be produced. What are the qualities                         D
which make a Judge decide cases quickly and also generate
confidence?

 3 "Para 520. There is another fact of life which, however unpleasant, cannot

be denied and this is that precious little are our masses or litigants concerned
with which Judge is appointed or not appointed or which one is continued or        E
not continued. The high sounding concept of independence of judiciary or
primacy of one or the other of the Constitutional functionaries or the mode of
effective consultation are matters of academic interest in which our masses
are least interested. On the other hand, they are mainly concerned with
dangerous forces at work and evils reflected in economic-pressures,
inflationary tendencies, gruelling poverty, emancipation of women,
maintenance of law and order, food and clothing, bread and butter, and above       F
all the serious problem of unemployment,
521. It is only a sizeable section of the intellectuals consisting of the press
and the lawyers who have made a prestigious issue of the independence of
judiciary. I can fully understand that lawyers or other persons directly
connected with the administration of justice may have a grievance however
ill-founded that proper selection of Judges or interference with the
appointment of Judges strictly according to constitutional provisions may          G
mar the institution of judiciary and therefore they may to some extent be
justified in vindicating their rights. But at the same time, however biting or
bitter, distasteful and diabolical it may seem to be, the fact remains that the
masses in general are not at all concerned with these legal niceties and so
far as administration of justice is concerned they merely want that their
cases should be decided quickly by Judges who generate confidence."
                                                                                   H
536       .       SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A            15. Deep learning in law, 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 above-mentioned qualities need not
B     automatically be a Judge who can ·generate confidence in the
      litigants unless the litigant believes that the Judge is absolutely
      fair and impartial.
         16. Belief regarding the impartiality of a Judge depends
c  upon the fact that 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.
D Because, it is the State which establishes the judiciary. Funds
 · required to run the judicial system including the salaries and
   allowances of Judges necessarily flow from the State
   exchequer.
                  17. Democratic societies believe that the State not only
 E    has authority to govern but also certain legally enforceable
      obligations to its subjects. The authority of judicial fora to
      command the State to discharge its obligations flows from the
      existence of such enforceable obligations. To generate
 F    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 organized by the State as a part of its larger obligation to govern.
                  18. Judiciary is the watchdog of the Constitution and its
G fundamental values. It is also said to be the lifeblood of
  constitutionalism in democratic societies. At least since
  Marbury v. Madison 4 the authority of courts functioning under
      4
              5 u.s 137 (1803)

 H
     SUPREME COURT ADVOCATES-ON-RECORD                              537
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

a written democratic constitution takes within its sweep the A
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 B
the legislative action struck the constitutionally demanded
balance between the larger interests of society and liberties
of subjects.
      19. Independence of such fora rests on two integers -         c
independence of the institution and of individuals who man
the institution.
       "(Judicial independence) connotes not merely a
      state of mind or attitude in the actual exercise of
      judicial functions, but a status or relationship to           D
      others, particularly to the executive branch of
      government, that rests on objective conditions or
      guarantees.
                                  *         *      *                E
      It is generally agreed that judicial independence
      involves both individual and institutional
      relationships: the individual independence of a
      judge, as reflected in such matters as security of
      tenure, and the institutional independence of the             F
      court or tribunal over which he or she presides, as
      reflected in its institutional or administrative
      relationships to the executive and legislative
      branches of Government."5
                                                                    G
      20. It is not really necessary for me to trace the entire
history of development of the concept independence of the
5 Supreme Court of Canada in Valente v.   Queen. (1985) 2 SCR 673


                                                                    H
538          SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A 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
B 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
C ·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
0
   independent and fearless in discharge of his duties.
            21. Democratic societies by and large recognize the
      necessity of the above mentioned protections for the judiciary
      and its members. Such protections are either entrenched in
 E    the Constitution or provided by legislation. A brief survey of
      the constitutions of a few democratic Republics to demonstrate
      the point;
            22. Prior to 1701, the British Crown had the power to
 F    dismiss the judges at will. The Act of Settlement, 1701 6
      removed from the Crown the power to dismiss Judges of the
      Superior Courts at will. It enabled the Monarch to remove
      Judges from office upon address of both Houses of Parliament.
      Interestingly till 1720 Judges ceased to hold office on the death
G     of the Monarch who issued Commissions. A 1720 enactment
      provided that Judges should continue in office for six months
      after demise of the monarch. In 1761 a statute provided that
      ' " ••• judges commissions be made quamdiu se bene gesserint, and their
      salaries ascertained and established; but upon the address of both houses
      of parliament it may be lawful to remove them." This clause has been
 H    repealed b y _
       SUPREME COURT ADVOCATES-ON-RECORD                                               539
        ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

commissions of the Judges shall remain in full force and effect                        A
during good behaviour notwithstanding the demise of His
Majesty or of any of his heirs and successors - thus granting a
life tenure. According to Blackstone,
       "(I) In this distinct and separate existence of the
                                                                                       B
       judicial power in a peculiar body of men, nominated
       indeed, but not removable at pleasure by the
       Crown, consists one main preservative of the public
       liberty which cannot subsist long in any State unless
       the administration of common justice be in some                                 c
       degree separated both from the legislative and
       from the executive power." 7
      23. Article Ill (1)8 of the American Constitution stipulates
that Judges of the Supreme Court and also the inferior Courts
established by Congress shall hold their office during good                            D
behavior and they cannot be removed except through the
process of impeachment9 • It also stipulates that they shall
receive a compensation for their services which shall not be
diminished during their continuance in office.
                                                                                       E
       24. Section 72 10 of the Constitution of Australia stipulates
' Sir. William Blackstone's, Commentaries on the Laws of England, (1765)
Vol. I p.269
 'Article Ill Section I. The judicial power of the United States, shall be vested
in one Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish. T.he judges, both of the supreme and                F
inferior courts, shall hold their offices during go9d behaviour, and shall, at
stated times, receive for their services, a compensation, which shall not be
diminished during their continuance in office.
9
   Article II Section 4. The President, Vice President and ail civil officers of the
United States, shall be removed from office on impeachment for, and
conviction of, treason, bribery, or other high crimes and misdemeanors,
 10
    Section 72. Judges' appointment, tenure, and remuneration:                         G
       The Justices of the High Court ... .
      (ii) shall not be removed except ...... on an address from both Houses
of the Parliament in the same session, praying for such removal on the
ground of proved misbehaviour or incapacity;
       (iii) shall receive such remuneration as the Parliament may fix; but
the remuneration shall not be diminished during their continuance in office.           H
540          SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A     that Judges of the High Court and other Courts·created by
      Parliament shall be appointed for a term expiring upon the
      Judge attaining the age of seventy years and shall not be
      removed except on an address from both Houses of the
      Parliament in the same session praying for removal of the
 B    Judge on the ground of proved misbehaviour or incapacity. It
      also stipulates that remuneration of Judges shall not be
      diminished during their continuance in office.
            25. When India became a Sovereign Republic, we did
c     not adopt the British Constitutional system in its entirety- though
      India had been a part of the British Empire Ever since, the
      British Crown started asserting sovereignty over the territory
      of India, the British Parliament made Acts which provided legal
      framework for the governance of India from time to time known
 o    as Government of India Acts. The last of which was of 1935.
      Canada 11 and Australia 12 which were also part of the British
      Empire continue to be governed by Constitutions enacted by
      the British Parliament. We framed a new Constitution through
      a Constituent Assembly.
 E       26. Members of the ConstituentAssembly 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
 F 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
 G diff~rent features from different constitutional systems after
   suitably modifying them to the needs of Indian society.
      11
        The British North America Act. 1867 renamed by the Amendment in 1982 as
      the Constitution Act. 1867
      " Commonwealth of Australia Constitution Act. 1900.

 H
          SUPREME COURT ADVOCATES-ON-RECORD                                           541
           ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

          27. Framers of the Constitution had the advantage of an A
  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 13 • ·Though there
  several distinctions in the architecture of the judicial systems
  under each of the above-mentioned regimes, one feature B
  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.
                                                                                      c
       28. 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 Judges of Q
 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 14 •
          L a Judge's appointment and continuance in office is not
            subject to any election process;                                          E
 13 The existing constitution and organization of constitutional courts in this
 country is discussed in some detail by Justice Verma in the Second Judges
 case at paras 444, 445, 446.
 444.    The Government of India Act, 1919 provided in Section 101 for the
 Constitution of High Courts; and the appointment of the Chief Justice and the        F
 permanent Judges was in the absolute discretion of the Crown, subject only
 the prescribed conditions of eligibility. The tenure of their office, according to
 Section 102, was dependent entirely on the Crown's pleasure.
           xxxxx             xxxxxx             xxxxxx             xxxxx
 445. Then, in the Government of India Act, 1935, provision for the
 establishment and Constitution of the Federal Court was made in Section
 200, while the Constitution of High Courts was provided for in Section 220.          G
           xxxxx             xxxxxx             xxxxxx             xxxxx
 446. Thus, even under the Government of ln~ia Act, 1935, appointments of
 Judges of the Federal Court and the High Courts were in the absolute
 discretion of the Crown or, in other words, of the executive, with no specific
 provision for consultation with the Chief Justice in the appointment process.
 14
    L Chandra Kumar& Ors v. Union oflndia & Ors., (1997) 3 SCC 261, para 78
                                                                                      H
542           SUPREME COURT REPORTS                             [2015] 13 S.C.R.


A            II. the termination of judicial appointment {during
                 subsistence of the tenure) is made virtually impossible.
           The Constitution prescribes that' a Judge of
      CONSTITUTIONAL COURT shall not be removed from office
      except by following an elaborate procedure of impeachment
 8
      prescribed under Article 124(4 )15 which is applicable even for
      High Court Judges by virtue of Article 217(1 )(b) 16 •
             Ill. The salaries, privileges, allowances and rights in
                 respect of leave of absence and pension of Judges of
c                the CONSTITUTIONAL COURTS may be determined
                 by or under law made by Parliament. But, they cannot
                 be varied to the disadvantage of the Judge 17 after the
                 appointment.
             IV. The salary, allowances and pension payable to Judges
D
                of CONSTITUTIONAL COURTS are charged on the
                Consolidated Fund of India or the Consolidated Fund
                of the concerned State 18 • Further under Articles
      15
         Article 124(4) A Judge of the Supreme Court shall not be removed from his
 E    office except by an order of the President 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 two thirds of the members of that
      House present and voting has been presented to the President in the same
      session for such removal on the ground of proved misbehaviour or incapacity.
      16
         Article 217(1 )(b) A Judge may be removed from his office by the President
 F    in the manner provided in clause (4) of article 124 for the removal of a Judge
      of the Supreme Court;
      17
         Under the proviso to Article 125(2) and proviso to Article 221 (2) respectively.
      "Article 112(3)(d) - (3) The following expenditure shall be expenditure
      charged on the Consolidated Fund of India -
                                            ***"'*   *****     *****     ******
      (d) (i) the salaries, allowances and pensions payable to or in respect of
G     Judges of the Supreme Court;
      Article 202(3)(d)- (3) The following expenditure shall be expenditure charged
      on the Consolidated Fund of each State -
                                                     *****     ****"'    ******
      (d) expenditure in respect of the salaries and allowances of Judges of any
      High Court;

 H
      SUPREME COURT ADVOCATES-ON-RECORD                                        543
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

         113(1 )19 and 203(1 )20 , the expenditure charged upon                A
         the Consolidated Fund of India or the State as the case
         may be shall not be submitted to vote.
      29. Unscrupulous litigants constantly keep searching for
ways to influence judges. Attitude of the State or its
                                                                               8
instrumentalities (largest litigants in modern democracies)
would be no different21 • 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                   c
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                     D
will be able to discharge their functions with absolute
independence and efficiency.
       30. 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.              E
19
   113(1) - So much of the estimates as relates to expenditure charged upon
the Consolidated Fund of India shall not be submitted to the vote of
Parliament, but nothing in this clause shall be construed as preventing the
discussion in either House of Parliament of any of those estimates.
20
   203 (1) - So much of the estimates as relates to expenditure charged upon   F
the Consolidated Fund of a State shall not be submitted to the vote of the
Legislative Assembly, but nothing in this clause shall be construed as
preventing the discussion in the Legislature of any of those estimates.
21 Fali S. Nariman, Before Memory Fades: An Autobiography, (First Edition

Hay House (2010 ), p.348 )
"I once knew a fine, independent judge in South Africa during the days of
apartheid - Judge- President John Milne of the Natal Supreme Court. We         G
used to correspond, and Milne said something similar. Milne wrote to me on
one occasion (in despair) :
    It seems that however much they may pay lip service to the idea that
    the Judiciary is totally independent of the Executive, politicians
    throughout the ages and throughout the world would actually much
    prefer to have executive minded lackeys and are considerably irritated
    by independent Judges functioning in an independent manner."               H
5'44           SUPREME COURT REPORTS                           [2015] 13 S.C.R.


 A 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 -
 B individual ambition, loyalty-based on political, religious or
   sectarian considerations, incompetence and lack of integrity.
   Any one of the above-mentioned factors is sufficient to make
   a Judge pliable. A combination of more than one of them
   makes a Judge more vulnerable. Combination of
 C 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
 0
   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.
         31. In order to ensure that at least in the matter of
 E 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. To demonstrate the same, it is useful to examine the
 F judicial systems of some of the English speaking countries.
            32. The Constitution of.the United States of America
       empowers the President to appoint Judges of the Supreme
       Court22 with the advice and consent of the Senate 23 • Insofar
 G     22 Article II Section 2

       The President "shall have power ::. to .. nominate and by and with the advise
       and consent of the Senate .. appoint .. Judges of the Supreme Court .."
               In the case of the appointment of Judges of the other Statutory Federal
       Courts, the Congress can by law entrust the power to the Supreme Court
       itself.
        23
           The Federal Legislature of America is called the Congress of the United
 H     States consisting of two chambers - Senate and House of Representatives.
      SUPREME COURT ADVOCATES-ON-RECORD                                       545
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

as the appointment of the Judges of the highest court in United A
States is concerned, neither the Chief Justice of America nor
the Supreme Court is assigned any role. The Head of the
Executive-is conferred with exclusive power to make the choice
of the Judges of the highest court subject to the advice and
consent of the Senate. A check on the possibility of arbitrary B
exercise of the power by the President.
      33. The Canadian legal system depicts another
interesting model. The Supreme Court of Canada is not
established by the Constitution i.e. the Constitution Act of 1867.            c
Chapter VII of the Act deals with the judicature. Section 101 24
only authorises the Parliament of Canada to provide for the
constitution, maintenance and organisation of a general court
of appeal of Canada and for the establishment of any additional
courts for the better administration of the laws of Canada. It is             o
in exercise of such power, the Parliament of Canada in 1875
by a statute, (the Supreme and Exchequer Courts Act, 187525 )
established the Supreme Court of Canada. The Supreme
Court of Canada's existence, its composition and jurisdiction
depend upon an ordinary federal statute and these underwent                   E
many changes over time. In theory, the Court could be
abolished by unilateral action of the Federal Parliament.
Judges of the Supreme Court are appointed by the Governor
in Council (the federal cabinet) in exercise of the power
conferred under Section 2 of the Supreme Court Act (supra).                   F
There is no requirement in Canada that such appointments
be ratified by the Senate or the House of Commons.

24
    Section 101. The Parliament of Canada may. notwithstanding anything in
this Act, from Time to Time provide for the Constitution, Maintenance, and    G
Organization of a General Court of Appeal for Canada, and for the
Establishment of any additional Courts for the better Administration of the
Laws of Canada.
 25
    Now replaced by Supreme Court Act, 1985.

                                                                              H
546           SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A      34. In Australia, the highest Federal Court is called the
  High Court of Australia established under Section 71 26 of the
  Australian Constitution. It consists of a Chief Justice and other
  Judges not less than two as the Parliament prescribes.
  Judges of the High Court are appointed by the Governor
B General in Council.
        35. Neither Canada nor Australia provide the Chief
  Justice or Judges of the highest court any role in the choice of
  Judges of the Constitutional Courts. In Australia, unlike the
C American model, there is no provision in the Constitution
  requiring ·consent of the federal legislature for such
  appointments.
          36. England is unique in these matters. It has no written
   constitution as understood in India, US, Canada and Australia.
 D Till 2006, appointments of Judges were .made exclusively by
   the Lord Chancellor of the Exchequer who is a member of the
   Cabinet.
            37. The makers of the Indian Constitution after a study of
 E    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 concerned High Court are required to be consulted by
      the President who is the appointing authority of Judges of these
 F    Courts. The text of the Constitution clearly excluded any role
      either for the Parliament or for the State Legislatures.
          38. Dr. Ambedkar explained the scheme of the
      Constitution insofar as it pertains to appointment of Judges of
 G    26
         Section 71. Judicial power and Courts
               The judicial power of the Commonwealth shall be vested in a Federal
      Supreme Court, to be called the High Court of Australia, and in such other
      federal courts as the Parliament creates, and in such other courts as it invests
      with federal jurisdiction. The High Court shall consist of a Chief Justice, and
      so many other Justices, not less than two, as the Parliament prescribes.

 H
     SUPREME COURT ADVOCATES-ON-RECORD                        547
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

the CONSTITUTIONAL COURTS and the competing concerns          A
which weighed with the drafting committee for adopting such
m.odel:
     'There can be no difference of opinion in the
     House that our judiciary must both be
                                                              B
     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        c
     appointments are made by the Crown, without
     any kirid of limitation whatsoever, which means
     by the executive of the day. There is the
     opposite system in the United States where,
     for instance, officers of the Supreme Court as           D
     well as other offices ofthe 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          E
     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            F
      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                 G
      provision. Apartfrom its being cumbrous, it also
      involves the possibility of the appointment


                                                              H
548             SUPREME COURT REPORTS                       [2015] 13S.C.R.


A              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
B              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
c              judgment is that this sort of provision may be
               regarded as sufficient for the moment.
               With regard to the question of the
               concurrence of the Chief Justice, it seems
D              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 personc;illy feel no doubt that the
               Chief Justice is a very eminent person. But
 E             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
 F             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 ."27
G
                                                  (emphasis supplied)
      27
           Constituent Assembly Debates, 24th May 1949 (Vol. VIII)



H
      SUPREME COURT ADVOCATES-ON-RECORD                                        549
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

     The following are salient features of Dr. Ambedkar's                      A
statement:
       1. That the judiciary must be both independent and
          competent.
       2. It is dangerous to confer an unchecked power of B
          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.                                                 C
       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                       D
          prejudices which common people are supposed to
          have28•
         (c) Providing for the concurrence of CJI would be
          conferring a power of veto on the CJI which in                       E
          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 F
         arrangements, specified under Articles 124 and 217
         (as they stood prior to the AMENDMENT), would
         ensure requisite independence and competence of
         the judiciary and such arrangements would be
         sufficient for the "moment".                       G
26 Recall the words of Jackson, J. in Sacherv. United States 343 US 1 (1952)
"Men who make their way to the Bench sometimes exhibit vanity, irascibility,
narrowness, arrogance, and other weaknesses to which human flesh is heir."


                                                                               H
550           SUPREME COURT REPORTS                             [2015] 13 S.C.R.


A       39. 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
B much controversy. This Court in Supreme Court Advocates-
  on-Record Association v. Union of India, ( 1993} 4 SCC 441
  (hereinafter referred to as the Second Judges case) recorded so29
           40. Article 22230 authorises the President to transfer High
 c    Court Judges in consultation with the CJI. Till 1975, that power
      was very rarely exercised by the President. In 197631 , the power
      under Article 222 was invoked to make a mass transfer of 16
      High Court Judges32 • One of the 16 Judges, though complied
      29 Para 371


 D         (iii) All the appointments to the Supreme Court from 1950 to 1959 were
           made with the concurrence of the Chief Justice of India. 210 out of 211
           appointments made to the High Courts during that period were also with
           the concurrence of the Chief Justice of India.
           (iv) Mr. Go bind Ballabh Pant, Home Minister of India, declared on the floor
           of the Parliament on November 24, 1959 that appointment of Judges
           were virtually being made by the Chief Justice of India and the Executive
 E         was only an order - issuing authority.
           (v) Mr. Ashok Sen, the Law Minister reiterated in the Parliament on
           November 25, 1959 that almost all the appointments made to the Supreme
           Court and the High Courts were made with the concurrence of the Chief
           Justice of India.
           (vi) Out of 547 appointments of Judges made during the period January 1,
 F         1983 to April 10, 1993 only 7 were not in consonance with the views
           expressed by the Chief Justice of India."
       30
          Article 222 - Transfer of a Judge from one High Court to another
      ill The President may, after consultation with the Chief Justice of India, transfer
      a Judge from one High Court to any other High Court
      .(2} When a Judge has been or is so transferred, he shall, during the period
      he serves, after the commencement of the Constitution (Fifteenth Amendment)
 G    Act, 1963 , as a Judge of the other High Court, be entitled to receive in addition
      to his salary such compensatory allowance as may be determined by
       Parliament by law and, until so determined, such compensatory allowance
      as the President may by order fix
      31
          During the subsistence of a (partially controversial) declaration of
       emergency
 H    32
          Union of India v. Sankalchand Himatla/ Sheth & Anr., (1977) 4 SCC 193
       (Bhagwati, J. - Para 46)
        SUPREME COURT ADVOCATES-ON-RECORD                            551
         ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

with the order of transfer but challenged the transfer by filing a   A
petition pro bono publico to assert and vindicate the
independence of the Judiciary33 , It was in the context of that
case, for the first time, the true meaning of the expression
consultation occurring under Article 222(1) fell for the
consideration of this Court. · The matter, Union of India v.         B
Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193 (for
short Sankalchand case) was heard by five Judges. Four
separate judgments were delivered by Chandrachud, Bhagwati,
Krishna Iyer, and Untwalia, JJ. Justice Chandrachud opined
that "consultation" in the context means an effective consultation   C
and sharing of complete data on the basis of which transfer is
sought to be effected but concluded that -After an effective
consultation with the Chief Justice of India, it is open to the
President to arrive at a proper decision of the question whether     D
a Judge should be transferred to another High Court because,
what the Constitution requires is consultation with the Chief
Justice, not his concurrence with the proposed transfer>'. After
re.cording such a conclusion, His Lordship went on to observe
as follows:
                                                                     E
         "41.     . ....... But it is necessary to reiterate what
         Bhagwati and Krishna Iyer JJ. said in Shamsher
         Singh (supra) that in all conceivable cases,
         consultation with the Chief Justice of India should
         be accepted by the Government of India and that             F
         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          G
         must belong to the Chief Justice of India, the
         rejection of his advice being ordinarily regarded as
33
     Para 47 of Sanka/chand case, Bhagwati, J.
34
     Para 41 of Sankalchand case - Chandrachud, J.
                                                                     H
552            SUPREME COURT REPORTS                         [2015) 13 S.C.R.


A             prompted by oblique considerations vitiating the
              order." (page 873). It is 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
 B            mutual deliberation each, party treating the views
              of the other with respect and consideration."
           41. Justice Bhagwati, was entirely in agreement with
      what has been said by Krishna Iyer in his judgment. 35
C           42. Justice Krishna Iyer spoke for himself and for Justice
      Fazat Ali. Justice Krishna Iyer, while reiterating the views
      expressed by this Court in two earlier judgments, i.e.
      Chandramouleshwar Prasad v. Patna High Court and Ors. ,
      (1969) 3 SCC 56 and Samsher Singh v. State of Punjab, AIR
 D    1974 SC 2192, opined 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 .......... 36 with a caveat:
 E            "115 ........ It must also be borne in mind that ifthe
              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
 F            that a case was made out for not accepting the
              advice of the Chief Justice of India. It seems to us
              that the word 'consultation' has been used in
              Article 222 as a matter of constitutional courtesy in
              view of the fact that two very high dignitaries are
 G            concerned in the matter, namely, the President and
              the Chief Justice of India. Of course, the Chief
      35
           Para 62 of Sankalchand case - Bhagwati, J.
      36
           Para 115 of Sanka/chand case - Krishna Iyer, J.

 H
        SUPREME COURT ADVOCATES-ON-RECORD                                             553
         ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

        Justi~e has no power of veto, as Dr. Ambedkar                                 A
        explained in the ConstituentAssembly."
       Justice Untwalia agreed with the views expressed by
 Justice Chandrachud on the question of consultation with the
 Chief Justice of India and added:
                                                                                      B
        "125.    .. .. .. .. . The Government, however, as
        rightly conceded by Mr. Seervai, is not bound to
        accept and act upon the advice of the Chief Justice.
        It may differ from him and for cogent reasons may
        take a contrary view. In other words, as held by this                         c
        Court in the cc;ise of Chandramouleshwar Prasad
        v. Patna High Court and Ors. [1970]2SCR666 ,
        the advice is not binding on the Government
        invariably and as a matter of compulsion in law.
        Although the decision of this Court in                                        D
        Chandramouleshwar Prasad's case was with
        reference            to   the  interpretation      of
        Articles 233 and 235 of the Constitution, on
        principle there is hardly any difference."
                                                                                      E
       43. One interesting factor that is required to be noted
 from the abovementioned case is that all the 16 transfers were
 made in consultation with the then CJI. Within a year thereafter,
 in March 1977, general elections took place and a new political
 party came to power. The Government on a re-examination of                           F
 the matter opined thatthere was no justification for transferring
 Justice Sheth from Gujarat. It is a matter of history that all 16
 Judges who were transferred during emergency, were sent
 back to their parent High Courts along with Justice Sheth 37 •
                                                                                      G
 37
    Per Fazal Ali, J. - SP. Gupta case, p.403- "It is true that there were, quite a
 few transfers during the emergencywhich were not in consonance with the
 spirit of Article 222 and that is why the -Government had conceded this fact
 and took steps tci revoke the transfers by retransferring, almost all the Judges
_to the High Courts from where they had been transferred."

                                                                                      H
554         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     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 Constitutional Courts would be
      destructive of independence of the judiciary.
        44. Within three years thereafter, another significant event
 8
  in the constitutional history of this country occurred. The then
  Law Minister of the Government of India sent a circular dated
  181h March 1981 to Chief Ministers of various States. Chief
  Ministers were requested to obtain from all the Additional
C Judges (working in the concerned High Courts) consent to be
  appointed as permanent Judges in any other High Court in
  the country. It also advised Chief Ministers to obtain similar
  consent letters fro.m persons who have already been or may in
  future be proposed for initial appointment as Judges of the
o High Court. The said letter was challenged in S.P. Gupta case
  on the ground it was a direct attack on the independence of
  the judiciary which is a basic feature of the Constitution 38 (Para
  2). The matter was heard by seven Judges of this Court. Seven
  separate judgments were delivered. One of the questions
E before this Court was whether the opinion of CJI be given
  primacy over the opinion of other constitutional functionaries.
  Substantially, this Court took the same view as was taken in
  Sanka/chand case 39
 F       45. Growth of population, increasing awareness of legal
   rights in the population, expansion of the scope of judicial
   review as a consequence of a change in the understanding of
   the amplitude of various fundamental rights and their inter-
   relationship, a sea change in the law on the procedural
 G limitations in the exercise of the jurisdiction under Article 32
      38
        Para 2 of S.P. Gupta case - Bhagwati, J.
       39
         See paras 30 & 31 - Bhagwati, J.; Para 134 - Gupta, J., Para 632:..
      Tulzapurkar, J.; Para 726 - Desai, J.
      Paras 890 & 891 - Pathak, J.; Paras 1031 & 1032- ES Venkataramaiah,J

 H
      SUPREME COURT ADVOCATES-ON-RECORD                                              555
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

and 226 led to the explosion of dockets of the A
CONSTITUTIONAL COURTS of this country. But, the Judge
strength remained relatively stagnant. By 80s, the problem
became more acute and complex. Government of India did
not undertake the requisite exercise to make a periodic
assessment of the need to increase the judge strength. In the B
case of some High Courts, there was even a reduction 40 •
Even, the appointment process of High Court Judges was
taking unreasonably long periods on legally untenable
grounds41 • A three Judge Bench of this Court in Subhash
Sharma v. Union of India (1991) Supp.1 SCC 574 (for short C
Subhash Sharma case) took note of such a situation.
     46. There was a turmoil with regard to appointment of
Judges of CONSTITUTIONAL COURTS in 1970s and 1980s.
Senior Judges were superceded for appointment to the office                          D
of CJI. Perhaps, emboldened by judgments of this Court in
Sankalchand and S.P. Gupta the executive (at the National
as well as the State level) resorted to unhealthy manipulation
of the system. The Informal Constitution : Unwritten
Criteria in Selecting Judges for the Supreme Court of E
lndia42 records some instances of such manipulations based
 40 Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, at page 586:

Para 18. "We gather that the Kerala High Court where the sanctioned strength
has been reduced by 2, has a sanctioned strength of 22 while its pendency
as on January 1, 1990 being 34,330 cases justifies a Judge strength of               F
almost 50 on the basis of the measure of 650 cases per Judge per year. We
intend to indicate that there was no justification for reduction of the sanctioned
strength."
 41 Pata 19. "For the present we suggest to government that the matter should

be reviewed from time to time and steps should be taken for determining the
sanctioned strength in a pragmatic way on the basis of the existing need. If
there be no correlation between the need and the sanctioned strength and             G
the provision of Judge-manpower is totally inadequate, the necessary
consequence has to be backlog and sluggish enforcement of the Rule of
Law...... ."                                                      ·
 ., Abhinav Chandrachud, The Informal Constitution : Unwritten Criteria in
Selecting Judges for the Supreme Court of India, (Oxford University Press,
United Kingdom 2014) See Pages 113 to 120
                                                                                     H
556           SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     on news items published in print media of some reputation by
      Commentators of well established credentials on
      Contemporary issues and scholars. It appears that out of 53
      appointments of Judges to some High Courts made in 1984-
      85, 32 were made on the recommendations of acting Chief
B     Justices. It is believed that the senior most Judges of some
      High Courts (from where the said 32 recommendations had
      originated) who initiated those recommendations as acting
      Chief Justices, were made permanent Chief Justices only after
      they agreed to recommend names suggested by the Executive.
C     A particular Additional Judge was not confirmed as a
      permanent Judge for several years notwithstanding the
      recommendations for his confirmation by three successive
      Chief Justices of the High Court and three CJ ls allegedly on
      the ground that the Judge had delivered a judgment not
 0
      palatable to the State Government. It appears that the
      Government headed by Prime MinisterV.P. Singh had stalled
      appointments of 67 persons recommended by the Chief
      Justices of various High Courts. Charges were freely traded
 E    against each other by the constitutional functionaries who are
      part of the appointment process of the CONSTITUTIONAL
      COURTS. It appears that a Law Minister for the Union of India
      complained that State Governments were trying to pack High
      Courts with their 'own men' 43 • The basic facts are verifiable,
 F    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.
        4 7. The question is not whether the various statements
 G made in the above-mentioned book are absolutely accurate.
   The observatipns made by this Court in Subhash Sharma case
      43
         From 1978, Governments at the State level and the Union level ceased to
      be necessarily of the same political party. Regional parties in parts of the
      country had captured power putting an end to one party rule at both the levels.
 H
       SUPREME COURT ADVOCATES-ON-RECORD                                              557
        ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

can lead to a safe conclusion, that there must be some truth in                       A
the various statements made in the book. The above scenario
whether true or partially true formed the backdrop of the
observations made in Subhash Sharma case (supra). As a
consequence, the Bench thought it fit that the correctness of
S.P. Gupta case should be considered by a larger Bench.                               B
       "49.     . ....... majority view in S.P. Gupta's case
       should be considered by a larger Bench we direct
       the papers of W.P. No. 1303of1987 to be placed
       before the learned Chief Justice for constituting a                            c
       Bench of nine Judges to examine the two questions
       we have referred to above, namely, the position of
       the Chief Justice of India with reference to primacy
       and, secondly, justiciability of fixation of Judge
       strength ....... "                                                             D
       48. This led to the Second Judges case. The matter was
heard by nine Judges. Five separate judgments were delivered.
Justice Verma spoke for five of them. Justice Pandian and
Justice Kuldip Singh wrote separate judgments but agreed
with tile conclusions of Justice Verma, but Justice Ahmadi and                        E
Justice Punchhi did not. One proposition on which all nine
Judges were unanimous is that under the scheme of the
Constitution, independence of judiciary is indispensable.
Justice Verma categorically held that it is a part of the basic                       F
structure of the Constitution 44 • The point of disagreement
 44
    Para 421 - These questions have to be considered in the context of the
independence of the judiciary. as a part of the basic structure of the
Constitution, to secure the 'rule of law', essential for the preservation of the
democratic system. The broad scheme of separation of powers adopted in
the Constitution, together with the directive principle of 'separation of judiciary   G
from executive' even at the lowest strata, provides some insight to the true
meaning of the relevant provisions in the Constitution relating to the
composition of the judiciary. The construction of these provisions must accord
with these fundamental concepts in the constitutional scheme to preserve
the vitality and promote the growth essential for retaining the Constitution as
a vibrant organism.
                                                                                      H
558           SUPREME COURT REPORTS                               [2015] 13 S.C.R.


A     between the majority and minority is only regarding the mode
      by which the establishment and continuance of such an
      independent judiciary can be achieved.
              49. Textually, provisions which indicate that the judiciary
      is required to be independent of the executive are Article 50 45
 8
      and the form of oath required to be taken by the Judges of
      CONSTITUTIONAL COURTS prescribed in Forms IV46 and
      Vlll 47 under the Third Schedule to the Constitution of India.
         50. However, structurally there are many indications in
 C 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,
 D State Legislatures have absolutely no role in matters pertaining
   to the establishment of CONSTITUTIONAL COURTS of this
   country. Parliament alone is authorized to deal with certain
      45
          Article 50. Separation of judiciary from executive - "The State shall take
      steps to separate the judiciary from the executive in the public services of the
 E    State."
      46 Form of oath or affirmation to be made by the Judges of the Supreme

      Court and the Comptroller and Auditor-General of India:-
      "!, A.B., having been appointed Chief Justice (or a Judge) of the Supreme
      Court of India (or Comptroller and Auditor-General of India) do swear in the
      name of God that I will bear true faith and solemnly affirm faith and allegiance
 F    to the Constitution of India as by law established, that I will uphold the
      sovereignty and integrity of India, that I will duly and faithfully and to the best of
      my ability, knowledge and judgment perform the duties of my office without
      fear or favour. affection or illwill and that I will uphold the Constitution and the
      laws."
      47
           Form of oath or affirmation to be made by the Judges of a High Court:-
      " I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at
 G    (or of) ......... -..... do swear in the name of God that I will bear solemnly affirm
      true faith and allegiance to the Constitution of India as by law established,
      that I will uphold the sovereignty and integrity of India, that I will duly and
      faithfully and to the best of my ability, knowledge and judgment perform the
      duties of my office without fear or favour, affection or ill-will and that I will
      uphold the Constitution and the laws."

 H
      SUPREME COURT ADVOCATES-ON-RECORD                                         559
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

aspects of the establishment of the CONSTITUTIONAL                              A
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                      B
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) 48 that the
procedure for investigation and proof of misbehaviour or                        C
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 til voting and approval by a special
majority of the Parliament specified under Article 124(4) 49 •                  D
Prior to the AMENDMENT, the power to appoint Judges of
CONSTITUTIONAL COURTS vested in the President to be
exercised in consultation with the various constitutional
functionaries mentioned under Articles 124 and 217, as the
case may be. Consultation with the CJI was mandatory for the                    E
appointment of Judges of all CONSTITUTIONAL COURTS.
Consultation with the Chief Justices of High Courts was
mandatory for appointment of Judges of High Courts.
     51. In the backdrop of such scheme, a question arose
whether the appointment process, in any way, impacts                            F
independence of the judiciary, which, admittedly, formed a part
48
   Article 124(5). Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of the
misbehaviour or incapacity of a Judge under clause (4).
49
   Article 124(4). A Judge of the Supreme Court shall not be removed from his   G
office except by an order of the President 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 two thirds of the members of that
House present and voting has been presented to the President in the same
session for such removal on the ground of proved. misbehaviour or incapacity.

                                                                                H
560           SUPREME COURT REPORTS                              [2015] 13 S.C.R.


A     of the basic structure of the Constitution. Majority of the Judges
      opined that it does 50 • Their Lordships drew support for such
       "'(per Hon. Pandian, J.)- Para 49."one other basic and inseparable vital
      c.ondition is absolutely necessary for timely securing the independence of
      judiciary; and that concerns the methodology followed in the matter of
      sponsoring, selecting and appointing a proper and fit candidate to the
 8    (Supreme Court or High Court) higher judiciary. The holistic condition is a
      major component that goes along with other constitutionally guaranteed
      service conditions in securing a complete independence of judiciary. To say
      differently, a healthy independent judiciary can be said to have been firstly
      secured by accomplishment of the increasingly important condition in regard
      to the method of appointment of judges and, secondly, protected by the
c     fulfilment of the rights, privileges and other service conditions. The resultant
      inescapable conclusion is that only the consummation or totality of all the
      requisite conditions beginning with the method and strategy of selection and
      appointment of judges will secure and protect the independence of the
      judiciary. Otherwise, not only will the cgidibility of the judiciary stagger and
      decline but also the entire judicial system will explode which in turn may
      cripple the proper functioning of democracy and the philosophy of this
 D    cherished concept will be only a myth rather than a reality."
      (per Hon. Kuldip Singh, J.) - Para 335. ''Then the question which comes up
      for consideration is, 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 the basic feature of our Constitution and if it
 E    means what we have discussed above, then 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
 F    courts. In this view of the matter the judiciary being the mediator - between
      I.he 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."
      (per Hon. Verma, J.)- Para 447. "When the Constitution was being drafted,
      there was general agreement that the appointments of Judges in the
       superior judiciary should not be left to the absolute discretion of the
 G    executive, and this was the reason for the provision made in the Constitution
       imposing the obligation to consult the Chief Justice of India and the Chief
      Justice of the High Court. This was done to achieve independence of the
      Judges of the superior judiciary even at the time of their appointment, instead
       of confining it only to the provision of security of tenure and other conditions of
      service after the appointment was made. It was realised that the independence
      of the judiciary had to be safeguarded not merely by providing security of
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                            561
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

conclusion from history and debates in the Constituent                             A
Assembly apart from the observations made in the cases of
Sankalchand and S.P. Gupta. Their Lordships also took note
of the fact that the Constituent Assembly consciously excluded
any role to the Parliament in the process of appointments, a
conscious departure from the American Constitutional model                         B
where Federal Judicial appointments are subject to consent
of the Senate.
      52. In the background of such an analysis, consultation
with the Chief Justice of India in Articles 124 and 217 was C
interpreted as conferring primacy to the opinion of CJI.
Consultation with the CJ I 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 D
power in the Parliament to which the Executive is otherwise
accountable under the scheme of the Constitution. This 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 E
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, Justice
Verma categorically declared-                                      F
      "438. The debate on primacy is intended to
      determine, who amongst the constitutional

tenure and other conditions of service after the appointment, but also by
preventing the influence of political considerations in making the                 G
appointments, if left to the absolute discretion of the executive as the
appointing authority. It is this reason which impelled the incorporation of the
obligation of consultation with the Chief Justice of India and the Chief Justice
of the High Court in Articles 124(2) and 217(1 ). The Constituent Assembly
Debates disclose this purpose in prescribing for such consultation, even
though the appointment is ultimately an executive act.'"
                                                                                    H
562         SUPREME COURT REPORTS                   [2015) 13 S.C.R. .


A           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
B           to greater importance or is to take the winner's
            prize at the end of the debate. The task before
            us has to be performed with this perception.
            450.     . ............ The indication is, that in the
            choice of a candidate suitable for appointment, the
c           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
D
            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
E           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 any one, not even to the Chief Justice
F           of India as individual, much less to the
            executive, which earlier had absolute discretion
            under the Government of India Acts."
                                             [emphasis supplied]
            53. This Court also indicated the circumstances on which
G     the President of India would be constitutionally justified in not
      acting in accordance with the opinion expressed by the CJI.
      This 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 AMENDMENT.
H
      SUPREME COURT ADVOCATES-ON-RECORD                                          563
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

      "As regards the appointment of Judges of the                               A
      Supreme Court and High Courts, the Supreme
      Court, in the matters of the Supreme Court
      Advocates-on-Record Association v. Union of India
      and its Advisory Opinion 1998 in Third Judges
      case, had interpreted articles 124(2) and 217(1)                           B
      of the Constitution with respect to the meaning
      of "consultation" as "concurrence". It was also
      held that the consultation of the Chief Justice of India
      means collegium consisting of the Chief Justice and
      two orfour Judges, as the case may be. This has                            c
      resulted in a Memorandum of Procedure laying
      down the process which is being presently followed
      for appointment of Judges to both the High Courts
      and the Supreme Court. The Memorandum of
                                                                                 D
      Procedure confers upon the Judiciary itself the
      power for appointment of Judges."
                                       [emphasis supplied]
      54. There are conflicting opinions 51 regarding the
jurisprudential soundness of the judgment of Second Judges                       E

 51 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 A.O.
"Article 124 of the Constitution empowers the President (acting on the advice
of the Prime Minister and Cabinet) to appoint the judges of the Supreme          F
Court. The President is given a discretion about consulting judges of the
Supreme Court and High Courts but in the case of appointments of a Judge
other than the Chief Justice, the Chief Justice of India shall always be
consulted. Similarly, Article 217 requires the Chief Justice of India to be
consulted concerning the appointment of a judge of the High Court of a state.
In 1993, in the Supreme Court Advocates on Record Association case the
Supreme Court by a majority held that, having regard to the independence of      G
the judiciary and the separation of powers which the Court held to be implicit
in the Constitution, the views of the Chief Justice of India expressed when he
was consulted must be supreme. The Court also laid down guidelines
governing the appointment and duration of office of temporary acting judges.
The majority decision has been criticized as an extension of the meaning of
the word 'consultation'. However, having regard to the earlier experience in
                                                                                 H
564           3UPREMECOURTREPORTS                             [2015] 13 S.C.R.


A     case. I do not think it necessary to examine that aspect of the
      matter for the purpose of determining the present controversy.
            55. After some 20 years of the working of the regime
      created under the Second Judges case, serious questions
B     arose whether the regime emanating as a consequence of
      the interpretation placed by this Court in the Second Judges
      case, yielded any constitutionally aspired result of the
      establishment of an independent and efficient judiciary- the
      CONSTITUTINONAL COURTS. Answer regarding the
c     independence can be subjective, and efficiency perhaps may
      not be very pleasant.
        56. 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
D judgment of the Second Judges case leading to the opinion
  of this Court reported in Special Reference No.1 of 1998,
  (1998) 7 SCC 739 (hereinafter referred to as 'Third Judges·
  case). Unfortunately, the factual matrix on which doubts were
  entertained by the Government of India are not recorded in the
E opinion. But para 41 of the Third Judges case records:
             "41. . .. We take the optimistic view that successive Chief

      India of attempts by the executive to influence the personalities and attitudes
      of members of the judiciary, and having regard to the successful attempts
 F    made in Pakistan to control the judiciary and having regard to the unfortunate
      results of the appointment of Supreme Court judges of the United States by
      the President subject to approval by Congress, the majority decision of le
      Supreme Court of India in the Advocates on Record 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 such advantage."                -    Lord Templeman
G     "All in all, the opinion of the Supreme Court in the third Judges case must be
      one of the most remarkable rulings ever issued by a supreme national
      appellate court in the coomon law world. Since, in some respects, I have had
      to voice respectful doubts about the soundness of the constitutional
      foundations of that opinion .... "             -    Lord Cooke of Thorndon


 H
       SUPREME COURT ADVOCATES-ON-RECORD                                             565
        ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

       Justices of India shall henceforth act in accordance with                     A
       the Second Judges case and this opinion."
      57. No wonder, gossip and speculations gather
momentum and currency in such state of affairs. If a nine-Judge
Bench of this Court takes an optimistic view that successive
                                                                                     8
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                            c
comments. Instead of Ministers, Judges patronised. 52
      58. 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 system established by the Second and Third Judges D
cases in its operational reality is perhaps not the best system
for securing an independent and efficient judiciary. 53
      59. Two events are part of the record of this Court and
can be quoted without attracting the accusation of being                             E
irresponsible and unconcerned about the sanctity of the

52 Iyer, V.R. Krishna, Judiciary: A reform agenda-II, The Hindu (online edition)

 15.08.2002
 53
    "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal at
the 5th V.M. Tarkunde Memorial Lecture on 10th November 2011.                        F
"As I have said elsewhere 'the process by which a judge is appointed to a
superior court is one of the best kepi 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         G
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."


                                                                                     H
566          SUPREME COURT REPORTS                            [2015] 13 S.C.R.


A     institution. These events led to the decisions reported in Shanti
      Bhushan & Another v. Union of India & Another, (2009) 1
      SCC 657, P.O. Oinakaran (1) v. Judges Inquiry Committee
      & Others, (2011) 8 SCC 380, P.O. Oinakaran (2) v. Judges
      Inquiry Committee & Another, (2011) 8 SCC 474.
B
            While the 1st of the said two events pertains to the
      appointment of a Judge of the Madras High Court, the 2"d
      pertains to the recommendation made by the CJI (Collegium)
      regarding elevation of the Chief Justice of a High Court to this
c     Court.
          60. The dispute in Shanti Bhushan case (supra) 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 Third Judges cases had not been
 D followed. I use the expression appears to be because it is
   difficult to identify what was the exact pleading in the case 54 , It
   is only by inference such a conclusion can be reached. Even
   the conclusion recorded by this Court does not really throw
   any light. In para 22 of the judgment of this Court it is recorded
 E as follows:
             "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
 F           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
       54 Shanti Bhushan (supra) - Para 2. The primary ground urged is that the

      opinion of the Chief Justice of India has to be formed collectively after taking
 G    into account the views of his senior colleagues who are required to be
      consulted by him for the formation of opinion and no appointment can be
      made unless it is in conformity with the final opinion of the Chief Justice of
      India formed in the aforesaid manner. .... It is, therefore, submitted that the
      appointment of Respondent No.2 as a permanent Judge as notified on
      2.2.2007 has no sanctity in law.

 H
     SUPREME COURT ADVOCATES-ON-RECORD                          567
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

     India was of the view that name of Respondent 2             A
     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             B
     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              c
     surrender of primacy by jugglery of words."
                                          [emphasis supplied]
      Even if I choose to ignore the controversial statements
made (in the recent past) with regard to the appointment in D
question in the case, by persons who held high constitutional
offices and played some role in the appointment process
including former Members of this Court, 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 E
subversion of the law laid down by the Second and Third
Judges cases by both the executive and the judiciary which
neither party is willing to acknowledge.
      61. The grievance of the petitioners in that case appears F
to be that" .... 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
me with an uncomfortable feeling that there was some
departure from the law perhaps under some political pressure. G
I wish that I were wrong.
      62. The second event is a recommendation made by
the then CJI apparently with the concurrence of the Collegium
                                                                 H
568          SUPREME COURT REPORTS                             [2015) 13 S.C.R.


A for elevation of the petitioner. [See: P.O. Oinakaran (1) (supra);
  P.O. Oinakaran (2) (supra)]. 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
B 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
  Second and Third Judges cases in making the ill-fated
  recommendation. But, the recommendation certainly exposed
C the shallowness (at least for once) of the theory propounded
  by this Court in the trilogy of cases commencing from S.P.
   Gupta and ending with the Third Judges case that the CJ I and
  the Collegium are the most appropriate authorities to make
  an assessment of the suitability of candidates for appointment
0
  as Judges of 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 the recommendations by the Collegium have not
E 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.
 F         63. I am aware 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 already noticed earlier. Both branches
   of government are accusing each other of not being worthy of
 G trust. 55 At least a section of the civil society believes that both
      55
          Mehta, Pratap Bhanu, 'Whom do you trust', The Indian Express, May 14,
      2015- "The implicit constitutional accusation is this. The judiciary had, through
      improvisation, created a method of appointing judges that effectively sidelined
      other branches of government. This arrangement was tolerated, not because
 H    it conformed to a constitutional text or some hallowed principle, but because
      SUPREME COURT ADVOCATES-ON-RECORD                                            569
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

are right. The impugned AMENDMENT came in the backdrop                             A
of the above-mentioned experience.
      64. Independence of the judiciary is one of the basic
features of the Constitution. A seven-Judge Bench of this Court
in L Chandra Kumarv. Unionoflndia & Ors., (1997) 3 SCC                             B
261 already held that the power of judicial review of legislative
action by the CONSTITUTIONAL COURTS is pcirt of the basic
structure of the constitution and the exercise of such important
function demands the existence of an independent judiciary.
      "78. The legitimacy of the power of courts within                            c
      constitutional democracies to review legislative ·
      action has been questioned since the time it was
      first conceived. The Constitution of India, being
      alive to such criticism, has, while conferring such
      power upon the higher judiciary, incorporated                                D
      important safeguards. An analysis of the manner
      in which the Framers of our Constitution
      incorporated provisions relating to the judiciary
      would indicate that ·they were very greatly
      concerned with securing the independence of                                  E
      the judiciary. These attempts were directed at
      ensuring that the judiciary would be capable of
      effectively discharging its wide powers of judicial
      review. While the Constitution confers the power
                                                                                   F
      to strike down laws upon the High Courts and the

it seemed to maintain judicial independence. The experience of the 1970s
made the prospect of political packing of the judiciary a live fear. This
arrangement is being challenged, not because we have discovered a new
principle, but because the credibility of the judiciary has declined. We are, in   G
effect, saying that any arrangement that relies solely on the judiciary has
proved untrustworthy. Those challenging the NJAC are relying on the ghost of
the 1970s: Do you really want the political ·class to have a greater say in
appointments? Both branches of government are accusing each other of not
being worthy of trust. In the process, they have dragged each other down. The
problem is that both are right."
                                                                                   H
570    SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A       Supreme Court, it also contains elaborate
        provisions dealing with the tenure, salaries,
       allowances, retirement age of Judges as well
        as the mechanism for selecting Judges to the
        superior courts. The inclusion of such
B       elaborate provisions appears to have been
        occasioned by the belief that, armed by such
        provis•ons, the superior courts would be
        insulated from any executive or legislative
        attempts to interfere with the making of their
c       decisions. The Judges of the superior courts have
        been entrusted with the task of upholding the
        Constitution and to this end, have been conferred
        the power to interpret it. It is they who have to ensure
        that the balance of power envisaged by the
D
        Constitution is maintained and that the legislature
       and the executive do not, in the discharge of their
        functions, transgress constitutional limitations. It is
        equally their duty to oversee that the judicial
      . decisions rendered by those who man the
E
        subordinate courts and tribunals do not fall foul of
        strict standards of legal correctness and judicial
        independence. The constitutional safeguards
        which ensure the independence of the Judges
 F      of the superior judiciary, are not available to the
        Judges of the subordinate judiciary or to those who
        man tribunals created by ordinary legislations.
        Consequently, Judges of the latter category can
        never be considered full and effective substitutes
G       for the superior judiciary in discharging the function
        of constitutional interpretation. We, therefore, hold
        that the power of judicial review over legislative
        action vested in the High Courts under Article

H
       SUPREME COURT ADVOCATES-ON-RECORD                         571
        ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

        226 and in this Court under Article 32 of the            A
        Constitution is an integral and essential
        feature of the.Constitution, constituting part
        of its basic structure. Ordinarily, therefore, the
        power of High Courts and the Supreme Court
        to test the constitutional validity of legislations      B
        can never be ousted or excluded."
                                           [emphasis supplied]
       This aspect of the matter is not in issue. None of the
respondents contested that proposition. The text of the C
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 D
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. The scheme of the E
 Constitution in that regard is already noticed. 56 Such
 protections are felt necessary not only under our Constitution,
 but also several other democratic Constitutions (the details of
 some of them are already noticed in paras 25 to 27). Such F
 protections are incorporated in the light of the experience and
 knowledge of history. Various attempts made by Governments
 to subvert the independence of the judiciary were known to
the makers of those Constitutions and also the makers of our
 Constitution.
                                                                 G
       65. Articles 124 and 217 deal with one of the elements
 necessary to establish an independent judiciary - the
56
     See para 31 (supra)

                                                                 H
572          SUPREME COURT REPORTS                           [2015] 13S.C.R.


A 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 1h May 194957 (quoted supra) is proof of such
B 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
C exclusively to the CJI or allowing any role to the 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
D 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 Articles 124 and 217 (as they stood prior to the
E AMENDMENT) - may be regarded as sufficient for the
  moment. Various alternative models suggested by the
  members were not accepted. 58 The legislative history clearly
      57 Constituent Assembly Debates, 24th May 1949 (Vol.      VIII)
      58
         On 24'" May 1949 while draft Article 103 of the draft Constitution was being
      discussed corresponding to present Article 124, four members, Prof. Shibban
 F    Lal Saksena and Prof. K.T. Shah, who represented the United Provinces of
      Bihar and Mr. B. Pocker Sahib and Mr. Mahboob Ali Beig Sahib, who
      represented Madras Provinces suggested amendments to Article 103, the
      relevant portions of which read as follows:

      "Prof. Shibban Lal Saksena:
G     That for clause (2) of article 103, the following clauses be substituted-
      (2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme
      Court, shall be appointed by the President subject to confirmation by two-
      thirds .majority of Parliament assembled in a joint session of both the Hous.es
      of Parliament."


 H
          SUPREME COURT ADVOCATES-ON-RECORD                                              573
           ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

  indicates that the members of the Constituent Assembly clearly                         A
  refused to vest an absolute and unfettered power to appoint
· Judges of the CONSTITUTIONAL COURTS in any one of the
  3 branches of the Constitution. Constituent Assembly declined
  to assign any rol~ to the Parliament. It declined to vest an
  unbridled power in the executive. At the same time did not                             B
  agree with the proposal that the CJ l's concurrence is required
  for any appointment.
       66. The system of Collegium the product of an
 interpretative gloss on the text of Articles 124 and 217                                c
 undertaken in the Second and 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 59 , both on the jurisprudential
 soundness of the judgments and the manner in which the                                  o
 Collegium system operated in the last two decades.
 "Prof. K.T. Shah:
 Every judge of the Supreme Court shall be appointed by the President by
 warrant under his hand and seal after consulta.tion with the Council of States
 and such of the judges of the Supreme Court and of the High Courts in the
 States as may be necessary for the purpose and shall hold office until he               E
 attains the age of sixty-five years."

 "Mr. B. Pocker Sahib:
 That for clause (2) and the first proviso of clause (2) of article 103, the following
 be substituted-
 (2)       Every judge of the Supreme Court other than the Chief Justice of
 India shall be appointed by the President by warrant under his hand and seal            F
 after consultation with the concurrence of the Chief Justice of India; and the
 Chief Justice of India shall be appointed by the President by a warrant under
 his hand and seal after consultation with the judges of the Supreme Court
 and the Chief Justices of the High Court in the States and every judge of the
 Supreme Court."

 "Mr. MahboobAli Beig Sahib:                                                             G
 That in the first proviso to clause (2) of article 103, for the words 'the Chief
 Justice of India shall always be consulted' the words 'it shall be m~de with
 the concurrence of the Chief Justice of India' be substituted."

  59
       See Footnote 50 (supra)
                                                                                         H
574         SUPREME COURT REPORTS                     [2015] 13S.C.R.


A           67. 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
 B    mechanism for selection and appointment of the members of
      CONSTITUTIONAL COURTS of this country.
            68. The basic objection for the impugned AMENDMENT
      is that it is destructive of the Constitutional objective of
c     establishment of an independent judiciary, and consequently
      the basic structure of-the Constitution. Therefore, it falls foul of
      the law laid down by this Court in Bharati case.
           69. To decide the correctness of the submission, it is
      necessary:
 D
            ( 1) to identify the ratio decidendi of Bharati case where
                the theory of "basic structure" and "basic features"
                originated.
            (2) Whether the expressions "basic features" and "basic
 E             structure" of the Constitution are synonyms or do they
               convey different ideas or concepts? If so, what are
               the ideas they convey?
            (3) Have they been clearly identified by earlier decisions
 F             of this Court?
            (4 )Are there any principles of law laid down by this Court
                to identify the basic features of the Constitution?
            (5) If the two expressions "basic features" and "basic
               structure" mean two different things, is it the destruction
G
               of any one of them which renders any Constitutional
               amendment void or should such an amendment be
               destructive of both of them to become void.


 H
      SUPREME COURT ADVOCATES-ON-RECORD                                        · 575
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

      (6) When can a Constitutional amendment be said to                           A
         destroy or abrogate either a "basic feature" of the
         Constitution or the "basic structure" of the
         Constitution?
      70. In Bharati case, one of the questions was-whether
                                                                  8
Article 368 confers unbridled power on the Parliament to
amend the Constitution. That question arose in the background
of an earlier decision of this Court in /. C. Golak Nath & Others
v. State of Punjab & Another, (1967) 2 SCR 76260 wherein it
was held that Article 368 conferred on Parliament a limited                        c
power to amend the Constitution. A Constitutional amendment
is 'law' within the meaning of Article 13(3)(a) 61 • Any
Constitutional amendment which seeks to take away or even
abridge any one of the rights guaranteed under Part-Ill of the
Constitution would be violative of the mandate contained under D
Article 13(2)62 and therefore illegal.
      71. The correctness of/. C. Go/ak Nath was one of the
questions which fell for consideration of the larger Bench of
this Court in Bharati case. Eleven opinions were rendered.
This Court by majority held that every Article 'Jf the Constitution E
including the articles incorporating fundamental rights are
amenable to the amendatory power of the Parliament63 under
60   Heard by a Bench of 11 Judges and decided by ·a majority of 6:5
61
     Article 13(3)(a). "law" includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India the     F
force of law.
' 2 Article13(2). The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.

 63
    (Per Sikri, CJ) - Para 292, "fundamental rights cannot be abrogated but        G
reasonable abridgements of fundamental rights can be effected in public
interest".... 'That every provision of the Constitution can be amended provided·
in the result the basic foundation and structure of the Constitution remains
the same. The basic structure may be said to consist of the following features:



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576           SUPREME COURT REPORTS                            [2015] 13 S.C.R.


A     Article 368 which is a constituent oower but such power does
      not enable Parliament to alter the basic structure or
      framework of the Constitution. 64
             (1) Supremacy of the Constitution;
             (2) Republican and Democratic form of Government;
             (3) Secular character of the Constitution;
 B           (4) Separation of powers between the legislature, the executive and
                  the judiciary;
             (5) Federal character of the Constitution."
      (Per Shela!, J. who spoke for himself and Grover, J.) - Paras 582, 583, "there
      can be no difficulty in discerning that the following can be regarded as the
      basic elements of the constitutional structure. These cannot be catalogued
c     but can only be illustrated:
             (1) The supremacy of the Constitution.
             (2) Republican and Democratic form of government and sovereignty
                  of the country.
              (3) Secular and federal character of the Constitution.
              (4) Demarcation of power between the Legislature, the executive and
                  the judiciary.
 b            (5) The dignity of the individual secured by the various freedoms and
                  basic rights in Part Ill and the mandate to build a welfare State
                  contained in Part IV.
              (6) The unity and the integrity of the Nation."
      and, therefore, "the power under Article 368 is wide enough to permit
      amendment of each and every article ... so long as its basic elements are not
      abrogated or denuded of their identity".
 E    (Per Hegde, J, who also spoke for Mukherjea, J.)- Para 666, "Parliament has
      no power to abrogate or emasculate the basic elements or fundamental
      features of the Constitution such as the sovereignty of India, the democratic
      character of our polity, the unity of the country, the essential features of the
      individual freedoms secured to the citizens." ... and "mandate to build a
      welfare State and egalitarian society."
      (Per P. Jaganmohan Reddy, J.)- paras 1159, 1162, "A sovereign democratic
 F    republic. Parliamentary democracy, the three organs of the State ... constitute
      the basic structure." He further held that "without either the fundamental
      rights or directive principles it cannot be democratic republic. Therefore, the
      power of amendment under Article 368 ..... is not wide enough to totally
      abrogate ..... any one of the fundamental rights or other essential elements
      of the basic structure of the Constitution and destroy its identity".
 G    (Per Khanna, J.) - para 1426,, "the power under Article 368 does not take
      within its sweep the power to destroy the old Constitution" ... means "the
      retention of the basic structure or framework of the old Constitution" ... "it is
      not permissible to touch the foundation or to alter the basic institutional
      pattern." According to Justice Khanna, "such limitations are inherent and
      implicit in the word "amendment"."
       64
          See the summary of the majority of the judgment signed by 9 Judges, p.
 H     1001 of (1973) 4 sec      225.
     SUPREME COURT ADVOCATES-ON-RECORD                          577
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

       72. That is the origin of the theory of basic structure of A
the Constitution. Justice Shelat and Grover, J. used the
expression basic elements and held that they cannot be
abrogated or denuded of their identity. Justice Hegde and
Mukherjea, J. used the expression basic elements or
fundamental features and held that they cannot be abrogated B
or emasculated. Justice Jaganmohan Reddy used the
expression essential elements of the basic structure and held
that they cannot be abrogated thereby destroying the identity
9f the Constitution. Justice Sikri and Khanna, J. employed the
expressions basic structure or framework, foundation, the C
basic institutional pattern, which is beyond the power of the
Parliament under Article 368 of the Constitution. Some of the
learned Judges mentioned certain features which according
to them constitute basic or essential features etc. of the
                                                                  D
Constitution. All of them were cautious to make it explicit that
such features or elements mentioned by them are only
illustrative but not exhaustive. In Minerva Mills Ltd. & Ors. v.
Union of India & Ors., (1980) 3 SCC 625, Justice
Chandrachud, speaking for the majority of the Constitution E
Bench, observed that para No.2 of the summary signed by the
nine Judges correctly reflects the majority view.
     "12. The summary of the various judgments in
     Kesavananda Bharati (Supra) was signed by nine
     out of the thirteen Judges. Paragraph 2 of the              F
     summary reads to say that according to the majority,
     "Article 368 does not enable Parliament to alter
     the basic structure or framework of the
     Constitution". Whether or not the summary is a
     legitimate part of the judgment, or is per incuriam
     for the scholarly reasons cited by authors, it is
     undeniable that it correctly reflects the majority
     view."
                                         [emphasis supplied]     Ii
578        SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A           73. Again in Waman Rao & Ors. etc. etc. v. Union of
      India & Ors., (1981) 2 SCC 362, Chief Justice Chandrachud
      speaking for another Constitution Bench observed:
           "The judgment of the majority to which seven out of
           the thirteen Judges were parties, struck a bridle
 B
           path by holding that in the exercise of the power
           conferred by Article 368, the Parliament cannot
           amend the Constitution so as to damage or
           destroy the basic structure of the Constitution."
 c         (Para 15)
                                                  [emphasis supplied]
         By then Justice Chandrachud had already expressed his
   opinion in Indira Nehru Gandhi v. Raj Narain, (1975) Supp
 D SCC 1 as follows:
           "663.    There was some discussion at the Bar as
           to which features of the Constitution form the basic
           structure of the Constitution according to the
           majority decision in the Fundamental Rights case.
 E         That, to me, is an inquiry both fruitless and irrelevant.
           The ratio of the majority decision is not that
           some named features of the Constitution are
           a part of its basic structure but that the power
           of amendment cannot be exercised so as to
 F         damage or destroy the essential elements or
           the basic structure of the Constitution,
           whatever these expressions may comprehend."
                                                   [emphasis supplied]
 G           The above passages, indicate that it is not very clear
      from Bharati case whether the expression basic structure,
      basic features and essential elements convey the same idea
      or different ideas. Therefore, it is necessary to examine some

 H
      SUPREME COURT ADVOCATES-ON-RECORD                                           579
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

decisions where the legality of the constitutional amendments                     A
was considered by this Court subsequent to Bharati case.
      74. The earliest of them is Indira Nehru Gandhi case
(supra). By the Constitution 391h Amendment Article 329Awas
inserted. Clauses (4) and (5) of the said Article sought to B
exclude the complaints of violation of the provisions of The
Representation of the People Act, 1951 from scrutiny of any
forum whatsoever in so far as such complaints pertain to the
election of the Prime Minister or the Speaker of the Lok Sabha.
The question whether such an amendment violated any one of                        c
the basic features of the Constitution arose. It was argued
that the amendment was violative of four basic features of the
Constitution. They are: (1) Democratic form of Government;
(2) Separation of Powers between the legislature, the executive
and the judiciary; (3) the principle of Equality of all before the D
law; and (4) the concept of the rule of law. A Constitution Bench
of this Court held that the impugned clauses were beyond the
competence of the Parliament's power under Article 368. 65
     75. Four out of the five Judges agreed upon the
conclusion that the impugned amendment was destructive of                         E
65
   The judgment in Indira Nehru Gandhi case (supra) is neatly summarised
by Chandrachud, J. in Waman Rao case at para 15:
"15 .......... in Indira Gandhi v. Raj Narain Article 329-A(4) was held by the
Court to be beyond the amending competence of the Parliament since, by
making separate and special provisions as to elections to Parliament of the       F
Prime Minister and the speaker, it destroyed the basic structure of the
Constitution. Ray, C.J. based his decision on the ground that the 39th
Amendment by which Article 329-A was introduced violated the Rule of Law
(p. 418) (SCC p. 44); Khanna, J. based his decision on the ground that
democracy was a basic feature of the Constitution, that democracy
contemplates that elections should be free and fair and that the clause in
question struck at the basis of free and fair elections (pp. 467 and 4 71) (SCC   G
pp. 87 and 91 ); Mathew, J. struck down the clause on the ground that it was in
the nature of legislation ad hominem (p. 513) (SCC p. 127) and that it damaged
the democratic structure of the Constitution (p. 515) (SCC p. 129); while one
of us, Chandrachud, J., held that the clause was bad because it violated the
Rule of Law and was an outright negation of the principle of equality which is
a basic feature of the Constitution (pp. 663-65) (SCC p. 257)."
                                                                                  H
580          SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     the basic structure of the Constitution. Each one of the Judges
      opined that the impugned provision violated a distinct basic
      feature of the Constitution leading to the destruction of the
      basic structure of the Constitution.
B           76. In Minerva Mills case (supra), this Court once again
      was confronted with the problem of "basic structure of the
      Constitution". 66 By the Constitution (42"d Amendment) Act
      among other things, Clauses (4) and (5) came to be added in
      Article 368 and Article 31-C came to be amended by
c     substituting certain words in the original Article. Chief Justice
      Chandrachud spoke for the majority of the Court and declared
      Sections 4 and 55 of the Constitution (42"d Amendment) Act
      to be violative of the basic structure of the Constitution. Dealing
      with the amendment to Article 368, this Court held:
D           "Para 16 ...... The majority (in Bharati case)
            conceded to the Parliament the right to make
            alterations in the Constitution so long as they are
            within its basic framework. And what fears can that
            judgment raise or misgivings generate if it only
E           means this and no more. The preamble assures
            to the people of India a polity whose basic
            structure is described therein as a Sovereign
            Democratic Republic; Parliament may make
            any amendments to the Constitution as it deems
 F
            expedient so long as they do not damage or
            destroy India's sovereignty and its
            democratic, republican character. Democracy
            is not an empty dream. It is a meaningful concept
G           whose essential attributes are recited in the
       66
          Para 1_3. The question which we have to determine on the basis of the
      majority view in Kesavananda Bharati is whether the amendments introduced
      by Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage
      the basic structure of the Constitution by destroying any of its basic features
      or essential elements.
 H
     SUPREME COURT ADVOCATES-ON-RECORD                            581
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

     preamble itself: Justice - social, economic and              A
     political; Liberty of thought, expression, belief, faith
     and worship; and Equality of status and opportunity.
     Its aim, again as set out in the preamble, is to
     promote among the people an abiding sense of
     "fraternity assuring the dignity of the individual and       B
     the unity of the nation". The newly introduced clause
     (5) of Article 368 demolishes the very pillars on which
     the preamble rests by empowering the Parliament
     to exercise its constituent power without any
     "limitation whatever". No constituent power can              c
     conceivably go higher than the sky-high power
     conferred by clause (5), for it even empowers the
     Parliament to "repeal the provisions of this
     Constitution", that is to say, to abrogate the
                                                                  D
     democracy and substitute for it a totally antithetical
     form of Government. That can most effectively be
     achieved, without calling a democracy by any other
     name, by a total denial of social, economic and
      political justice to the people, by emasculating
                                                                  E
     liberty of thought, expression, belief, faith and
     worship and by abjuring commitment to the
      magnificent ideal of a society of equals. The power
     to destroy is not a power to amend."
                                            [emphasis supplied]   F
      The issue arising from the amendment to Article 31-C
was identified to be - whether the directive principles of the
State Policy contained in Part-IV can have primacy over the
fundamental rights contained in Part-Ill of the Constitution - G
because the 42"d amendment sought to subordinate the
fundamental rights conferred by Articles 14 and 19 to the
directive principles. This Court formulated the question -
whether such an amendment was within.the amendatory power
                                                                  H
582         SUPREME COURT REPORTS                   [2015] 13S.C.R.


A     of the Parliament in view of the law laid down by this Court in
      Bharati case. The Court propounded that:
           "41 . ..... It is only if the rights conferred by these
           two Articles are not a part of the basic structure of
           the Constitution that they can be allowed to be
B
           abrogated by a constitutional amendment. If they
           are a part of the basic structure, they cannot be
           obliterated out of existence in relation to a category
           of laws described in Article 31-C or, for the matter
c          of that, in relation to laws of any description
           whatsoever, passed in order to achieve any object
           or policy whatsoever. This will serve to bring out
           the point that a total emasculation of the essential
           features of the Constitu.tion is, by the ratio in
 D         Kesavananda Bharati, not permissible to the
           Parliament."
           The Court finally reached the conclusion that the Parts Ill
      and IV of the Constitution are like two wheels of a chariot both ·
      equally important and held:
 E
           "56.     . .... To give absolute primacy to one over
           the other is to disturb the harmony of the
           Constitution. This harmony and balance between
           th,e fundamental rights and directive principles is
 F         an essential feature of the basic structure of
           the Constitution."
                                                 [emphasis supplied]
           This Court concluded that the amendment to Article 31 C
G     is destructive of the basic structure as it abrogated the
      protection of Article 14 & 19 against laws which fall within the
      ambit of the description contained in Article 31 C.
          77. In Waman Rao case (supra), Article 31-A(1)(a)which
      came to be introduced by the Constitution (First Amendment)
 H
     SUPREME COURT ADVOCATES-ON-RECORD                          583
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

Act was challenged on the ground that it damages the basic A
structure of the Constitution. The said Article made a
declaration that no law providing for acquisition by the State of
any 'estate' or of 'any rights therein' etc. shall be deemed to
be void on the ground that such law violated Articles 14, 19
and 31 of the Constitution. In other words, though Articles 14, B
19 and 31 remain on the statute book, the validity of the
category of laws described in Article 31-A(1 )(a) cannot be
tested on the anvil of Articles 14, 19 and 31. Dealing with the
permissibility of such an amendment, the Court held as follows:
                                                                c
     "In any given case, what is decisive is whether,
      insofar as the impugned law is concerned, the rights
     available to persons affected by that law under any
     of the articles in Part Ill are totally or substantially
     withdrawn and not whether the articles, the                D
      application of which stands withdrawn in regard to
      a defined category of laws, continue to be on the
      statute book so as to be available in respect of laws
      of other categories. We must therefore conclude
      that the withdrawal of the application of Articles 14,    E
      19 and 31 in respect of laws which fall under clause
      (a) is total and complete, that is to say, the
      application of those Articles stands abrogated, not
      merely abridged, in respect of the impugned
      enactments which indubitably fall within the ambit        F
      of clause (a). We would like to add that every case
      in which the protection of a fundamental right is
      withdrawn will not necessarily result in damaging
    . or destroying the basic structure of the Constitution.
      The question as to whether the basic structure            G
      is damaged or destroyed in any given case would
      depend upon which particular Article of Part
      Ill is in issue arid whether what is withdrawn is

                                                                H
584          SUPREME COURT REPORTS                         [2015] 13 S.C.R.


A           quintessential to the basic s.tructure of the
            Constitution." (Para 14)      ·
                                                        [emphasis supplied]
            But this Court finally reached the conclusion that the
 B    Amendment did not damage or destroy the basic structure
      and, therefore, upheld theAmendment 67 • Such a conclusion
      was reached on the basis of the logic-
         "29. The FirstAmendment is aimed at removing social and
         economic disparities in the agricultural sector. It may happen
c        that while existing inequalities are being removed, new
         inequalities may arise marginally and incidentally. Such
         marginal and incidental inequalities cannot damage or
         destroy the basic· structure of the Constitution. It is
         impossible for any government, howsoever expertly
 D
         advised, socially oriented and prudently managed, to
         remove every economic disparity without causing some
         hardship or injustice to a class of persons who also are
         entitled to equal treatment under the law. . .... "
 E          This Court held that though the protection of Articles 14
      and 19 is totally abrogated, the withdrawal or abrogation of
      such protection does not necessarily result in damage or
      destruction of the basic structure of the Constitution. In other
      words, this Court held that if in the process of seeking to
 F    achieve a larger constitutional goal of removing social and
      economic disparities in the agricultural sector and effectuating
      the twin principles contained in Article 39(b) and (a) if new
      inequalities result marginally and incidentally they cannot be
      said to be destructive of the basic structure of the Constitution.
 G
       67
          Para 31. For these reasons, we are of the view that the Amendment
      introduced by Section 4 of the Constitution (First Amendment) Act, 1951 does
      not damage or destroy the basic structure of the Constitution. The Amendment
      must, therefore, be upheld on its own merits.

 H
                 SUPREME COURT ADVOCATES-ON-RECORD                                              585
                  ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

               78. Both Minerva Mills and Waman Rao dealt with the A
          abrogation of Articles 14 and 19 or absolute withdrawal of the
          protection of those fundamental rights with reference to certain
          classes of legislation. This Court held in the first of the above
          mentioned cases that such withdrawal amounted to abrogation
          of a basic feature and, therefore, destructive of the basic B
          structure of the Constitution and in the second case this Court
          carved out an exception to the rule enunciated in Minerva Mills
          and held that such abrogation insofar as the law dealing with
          agrarian reforms did not destroy the basic structure. These .
          cases· only indicate that; (i) the expressions 'basic structure' c
          and 'basic features' convey two different ideas, (ii) the basic
          features are COMPONENTS of basic structure. It also follows
          from these cases that either a particular Article or set of Articles
          can constitute a basic feature of the Constitution. Amendment
                                                                               D
          of one or some of the Articles constituting a basic feature may
          or may not result in the destruction of the basic structure of the
          Constitution. It all depends on the context.
              79. This Court in S.R. Bommaiv. Unionof/ndia, (1994)
          3 sec 1, recognised the concept of secularism as one of the E
          basic features of the Constitution not because any one of the
          Articles of the Constitution made any express declaration to
          that effect but such a conclusion followed from the scheme of
          the various provisions of the Constitution. 68
                                                                                                F
               80. This Court in M. Nagaraj & Others v. Union of India
          & Others69 , (2006) 8 SCC 212, deduced the principle that the
          process of identifying the basic features of the Constitution
          66
               See paras 25 to 29 -Ahmadi, J., para 145- Sawant, J., paras 183 to 186
          - Ramaswamy, J., para 304 - Jeevan Reddy, J.
           69
                                                                                                G
              In this case, this Court had to decide the validity of the Constitution (Eighty
           Fifth) Amendment Act 2001 by which Article 16(4A) was amended in the
           Constitution with retrospective effect. It provided a rule of reservation in the
4   -~'    context of the promotion in the Government service. Such an amendment
          -was challenged to be violative of the basic structure of the Constitution.

                                                                                                H
586         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     lies in the identification of some concepts which are beyond
      the words of any particular provision but per\tade the scheme
      of the Constitution. Some of these concepts may be so
      important and fundamental as to qualify to be called essential
      features of the Constitution or part of the basic structure of the
B     Constitution therefore not open to the amendment.
            This Court specified the process by which the basic
      features of the Constitution are to be identified. The Court
      held:
c           "23 ..... Therefore, it is important to note that the
            recognition of a basic structure in the context of
            amendment provides an insight that there are,
            beyond the words of particular proyisions,
            systematic principles underlying and
D           connecting the provisions of the Constitution.
            These principles give coherence to the Constitution
            and make it an organic whole. These principles are
            part of constitutional law even if they are not
            expressly stated in the form of rules. An instance is
E           the principle of reasonableness which connects
            Articles 14, 19 and 21 ..Some of these principles
            may be so important and fundamental, as to qualify
            as "essential features" or part of the "basic structure"
            of the Constitution, that is to say, they are not open
F
            to amendment. However, it is only by linking
            provisions to such overarching principles that one
            would be able to distinguish essential from less
            essential features of the Constitution.
G.          24. The point which is important to be noted is that
            principles of federalism,              secularism,
            reasonableness and socialism, etc. are beyond the
            words of a particular provision. They ate systematic

H
    SUPREME COURT ADVOCATES-ON-RECORD                           587
     ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

     and structural principles underlying and connecting        A
     various provisions of the Constitution. They give
     coherence to the Constitution. They make the
     Constitution an organic whole. They are part of
     constitutional law even if they are not· expressly
     stated in the form of rules.                               B
     25. For a constitutional principle to qualify as an
     essential feature, it must be established that the
     said principle is a part of the constitutional law
     binding on the legislature. Only thereafter, is the        c
     second step to be taken, namely, whether the
     principle is so fundamental as to bind even the
     amending power of Parliament i.e. to form a part
     of the basic structure. The basic structure concept
     accordingly limits the amending power of                   D
     Parliament.. To sum up: in order to qualify as
     an essential feature, a principle is to be first
     established as part of the constitutional law
     and as such binding on the legislature. Only
     then, can it be examined whether it is so                  E
     fundamental as to bind even the amending power
     of Parliament i.e. to form part of the basic structure
     of the Constitution. This is the standard of judicial
     review of constitutional amendments in the context
     of the doctrine of basic structure."                       F
                                          [emphasis supplied]
    81. In l.R. Coelho (Dead) By LRs v. State ofT.N. (2007)
2 SCC 1, this Court ruled;
                                                                G
     "129.  Equality, rule of law, judicial review and
     separation of powers form parts of the basic
     structure of the Constitution. Each of these
     concepts are intimately connected. There can be
                                                                H
588       SUPREME COURT REPORTS                   (2015] 13 S.C.R.


A        no rule of law, if there is no equality before the law.
         These would be meaningless if the violation was
         not subject to the judicial review. All these would be
         redundant if the legislative, executive and judicial
         powers are vested in one organ. Therefore, the duty
B        to decide whether the limits have been
         transgressed has been placed on the judiciary.
         130. Realising that it is necessary to secure the
         enforcement of the fundamental rights, power for
c        such enforcement ~as been vested by the
         Constitution in the Supreme Court and the High
         Courts. Judicial Review is an essential feature of
         the Constitution. It gives practical content to the
         objectives of the Constitution embodied in Part Ill
o        and other parts of the Constitution. It may be noted
         that the mere fact that equality, which is a part of
         the basic structure, can be excluded for a limited
         purpose, to protect certain kinds of laws, does not
         prevent it from being part of the basic structure.
 E       Therefore, it follows that in considering whether any
         particular feature of the Constitution is part of
         the basic structure - rule of law, separation of
         powers - the fact that limited exceptions are made
         for limited purposes, to protect certain kind of laws,
 F       does not mean that it is not part of. the basic
         structure."
                                               [emphasis supplied]
        82. An analysis of the judgments of the above mentioned
 G cases commencing from Bharati case yields the following
   propositions:
          (i) Article 368 enables the Parliament to amend any
              provision of the Constitution;
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                589
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

     (ii) The power under Article 368 however does not enable         A
          the 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;
                                                                      8
     (iv) The expressions "basic structure" and "basic features"
         convey different ideas though some of the learned
         Judges used those expressions interchangeably.
     (v) The basic structure of the Constitution is the sum total     C
        of the basic features of the Constitution;
     (vi) Some of the basic features identified so far by this
         Court are democracy, secularism, equality of status,
         independence of judiciary, judicial review and some
         of the fundamental rights;                                   D
     (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           E·
         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-
         a-vis all the basic features.                                F
      83. Most of the basic features identified so far in the
various cases referred to earlier 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
                                                                G
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,
                                                                      H
590         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A          emerges from the various articles of the Constitution
           which provide for the establishment of the legislative
           bodies 70 (Parliament and the State Legislatures) and the
           Articles which prescribe a periodic election to these
           bodies 71 based on adult franchise 72 ; the role assigned
B          to these bodies, that is, to make laws for the governance
           of this Country in their respective spheres 73 ; and the
           establishment of an independent machinery 74 for
           conducting the periodic elections etc.;
c          ·(b) the concept of secularism emanates from various
            articles contained in the fundamental rights chapter like
            Articles 15 and 16 which prohibits the State from
            practicing any kind of discrimination on the ground of
            religion and Articles 25 to 30 which guarantee certain
 o          fundamental rights regarding the freedom of religion to
            every person and the specific mention of such rights with
            reference to minorities.
            84. The abrogation of a basic feature may ensue as a
      consequence of the amendment of a single Article in the cluster
 E    of Articles constituting the basic feature as it happened in
      Minerva Mills case and Indira Nehru Gandhi case.
         85. On the other hand, such a result may not ensue in
   the context of some basic features. For example, Article 326
 F prescribes that election to Lok Sabha and the Legislative
   Assemblies shall be on the basis of adult suffrage. Adult
   suffrage is explained in the said Article as:
            " ... that is to say, every person who is a citizen of
            India and who is not less than eighteen years of
 G
      10
         Articles 79-84 and 168-173
      71
         Articles 83 and 172
      12
         Article 326
      73
         Articles 245 and 246 etc.
      74
         Article 324

 H
     SUPREME COURT ADVOCATES-ON-RECORD                         . 591
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

     age on such date as may be fixed in that behalf by           A
     or under any law made by the appropriate
     Legislature and is not otherwise disqualified under
     this Constitution or any law made by the appropriate
     Legislature on the ground of non-residence:
     unsoundness of mind, crime or corrupt or illegal             B
     practice, shall be entitled to be registered as a voter
     at a("ly such election."
       One of the components is that the prescription of the
minimum age limit of 18 years. Undoubtedly, the right created     c
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 the Parliament were to D
amend Article 326 fixing a higher .minimum age limit, it is
doubtful whether such an amendment would be abrogative of
the ba.sic 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 E
occurring under Article 326 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.
      86. As held by this Court in Minerva Mills case, the F
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 G
Constitution.
      87. In my opinion, these cases also are really of no help
for determining the case on hand as they do not lay down any

                                                                  H
592         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     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 wh.ether
      the AMENDMENT is abrogative of the independence of
 B    judiciary-(a basic feature) resulting in the destruction of the
      basic structure of the Constitution.
             88. By the very nature of the basic feature with which we
      are dealing, it does not confer any fundamental or constitutional
 c    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.
 D       89. The challenge to the AMENDMENT is required to be
   examined in the light of the preceding discussion. The
   petitioners argued that (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
 E constitutional courts is an essential ingredient (ELEMENT) of
   such COMPONENT; (iii) the process prescribed under
   unamended Articles 124 and 217, as interpreted by this Court
   in the Second and Third Judges cases, is a basic feature and
 F was so designed by framers of the Constitution for ensuring
   independence of the judiciary, by providing for primacy of the
   opinion of the CJI (Collegium); and not of the opinion of the
   President (the Executive); (iv) the AMENDMENT dilutes such
   primacy and tilts the balance in favour of the Executive, thereby
 G abrogating a basic feature, leading to destruction of the basic
   structure.
            90. The prime target of attack by the petitioners is Section
      2(a) of the AMENDMENT by which the institutional mechanism
      for appointment of judges of constitutional courts is replaced.
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                        593 .·
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

According to the petitioners, the AMENDMENT is a brazen A
attempt by the Executive branch to grab the power of
appointing Judges to CONSTITUTIONAL COURTS. Such
shift of power into the hands of Executive would enable packing
of the CONSTITUTIONAL COURTS with persons who are likely
to be less independent.                                         B
       91. It is further argued that the principles laid down in the
Second and Third Judges cases are not based purely on the
interpretation of the text of the Constitution as it stood prior to
the impugned AMENDMENT but also on the basis of a                             c
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 D
conclusion not only flows from the text of the Articles 124 and
217 as they stood prior to the impugned 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.                                  E
     92. Mr. Nariman, learned Senior Counsel appearing for
one of the petitioners emphatically submitted that he is not
against change of the mechanism provided under Articles 124
and 217. He submitted that this aspect of the matter fell for                  F
consideration of Justice M.N. Venkatachaliah Commission 75 ,
which also recommended creation of a National Judicial
Appointments Commission but with a slightly different
composition 76 • If really Parliament wanted to change in the
 75 The National Commission to Review the Working of the Constitution          G
(NCRWC), 2002 chaired by Justice M.N. Venkatachaliah
 76
    7.3.7 '"The matter relating to manner of appointment of judges had been
debated over a decade. The Constitution (Sixty-seventh Amendment) Bill,
1990 was introduced on 18'" May, 1990 (9'" Lok Sabha) providing for the
institutional frame work of National Judicial Commission for recommending
the appointment of judges to the Supreme Court and the various High            H
594           SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A mechanism for the selection of the members of the superior
  judiciary, the model recommended by the Justice M.N.
  Venkatachaliah Commission could well have been adopted.
  According to Mr. Nariman the model identified by
  Venkatachaliah Commission is more suitable for preservation
B of independence of the judiciary than the model adopted in
  the AMENDMENT. Mr. Nariman further argued that no reasons
  are given by the Union of India explaining why
  recommendations of the Justice M.N. Venkatachaliah
  Commission were not accepted.
c
            93. On the other hand, it is submitted by the learned
      Attorney General and other senior counsel appearing for
      various respondents;

 D    Courts. Further, it appears that latterly there is a movement throughout the
      world to move this function away from the exclusive fiat of the executive and
      involving some institutional frame work whereunder consultation with the
      judiciary at some level is provided for before making such appointments. The
      system of consultation in some form is already available in Japan, Israel and
      the UK. The Constitution (Sixty-seventh Amendment) Bill, 1990 provided for
      a collegium of the Chief Justice of India and two other judges of the Supreme
 E    Court for making appointment to the Supreme Court. However, it would be
      worthwhile to have a participatory mode with the participation of both the
      executive and the judiciary in making such recommendations. The
      Commission proposes the composition of the Collegium which gives due
      importance to and provides for the effective participation of both the executive
      and the judicial wings of the State as an integrated scheme for the machinery
      for appointment of judges. This Commission, accordingly, recommends the
 F    establishment of a National Judicial Commission under the Constitution.
           The National Judicial Commission for appointment of judges of the
      Supreme Court shall comprise of:
              1. The Chief Justice of India                          Chairman
              2. Two senior most judges of the Supreme Court: Member
              3 The Union Minister for Law and Justice:              Member
G             4 One eminent person nominated by the                  Member
                 President after consulting the CJI
         The recommendation for the establishment of a National Judicial
      Commission and its composition are to be treated as integral in view of the
      need to preserve the independence of the judiciary." ·


 H
SUPREME COURT ADVOCATES-ON-RECORD                            595
 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

(i) Parliament's power to amend the Constitution is A
plenary subject only to the limitation that it cannot abrogate
the basic structure of the Constitution. The
AMENDMENT in no way abrogates the basic structure
of the Constitution.
                                                               B
(ii) Independence of judiciary is not the only objective
envisaged by the Constitution, it also envisages an
efficient judiciary. To achieve such twin objects,
Parliament in its wisdom thought that the selection
process of the members of the CONSTITUTIONAL                  c
COURTS as it existed prior to the AMENDMENT
required modification. The wisdom of Parliament is not
amenable to the scrutiny of this Court, even in the context
of ordinary legislation. Logically, a constitutional
amendment therefore should enjoy a greater degree of D
immunity.
In other words, 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. They are (i) lack of E
legislative competence, (ii) the legislation violates any
one of the f~ndamental rights enumerated in Part 111 of
the Constitution, or is in contravention of some other
express prohibition of the Constitution. Absent such F
objectionable features, the possibility that the goal sought
to be achieved by the legislation can be achieved through
modes other than the one chosen by the legislation can
never be a ground for invalidating even an ordinary
legislation as has been consistently held by this Court. G
In the case of a constitutional amendment question of
legislative competence in the above-mentioned sense
and conflict with the other provisions of the Constitution
are irrelevant and does not arise.
                                                              H
596   SUPREME COURT REPORTS                   [2015) 13 S.C.R.


A     (iii) Checks and balances of powers conferred by the
      Constitution on the three great branches of governance
      - Legislature, Executive and Judiciary is the most basic
      feature of all democratic constitutions. Absolute,
      independence of any one of the three branches is
B     inconsistent with core democratic values and the scheme
      of our Constitution. This Court by an interpretative
      process of the Constitution as it stood prior to the
      AMENDMENT disturbed such balance. The
      AMENDMENT only seeks to restore such balance and
c     therefore cannot be said to be destructive of the basic
      structure of the Constitution.
      (iv) That the law laid down by this Court in Second and
      Third Judges case is no more relevant in view of the fact
D     that the text of the Constitution which was the subject
      matter of interpretation in the said cases stands
      amended. In the light of well settled principles of
      interpretation of statutes the law laid down in those two
      cases is no more a good law. It is further argued that in
 E    the event this Court comes to the conclusion that the law
      laid down in the abovementioned two judgments has
      some relevance for determining the constitutional validity
      of the AMENDMENT and also the correctness of the
      principles laid down in those judgments requires
 F    reconsideration by a Bench of appropriate strength.
      According to the Attorney General and other learned
      counsel for respondents, the abovementioned two
      judgments are contrary to the text of the Constitution as
      it stood then and in complete disregard of the
G     constitutional history and background of the relevant
      provisions. It is further submitted that under the scheme
      of the Constitution, neither this Court nor High Courts are
      conferred unqualified autonomy though a large measure

 H
SUPREME COURT ADVOCATES-ON-RECORD                          597
 ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

of autonomy is conferred under various provisions. For     A
example the salaries, privileges and allowances, pension
etc. could still be regulated by law made by Parliament
under Article 125 and 221, 137, 140, 145 etc.
 (v) It is submitted that independence of the judiciary is B
indisputably a basic feature of the Constitution. An
essential element of this basic feature is that the
President (Executive) should not have an unfettered
discretion in such appointment process but not that the
opinion of the CJI (Collegium) should have primacy or      c
dominance. The judgments of this Court in the Second
and Third Judges cases are not only counter textual but
also plainly contrary to the intent of the Constituent
Assembly and clearly beyond limits of judicial power, it
is an e~ercise of constituent authority in the disguise of D
interpretation. Under the AMENDMENT, the President
has no discretion in the matter of appointment of Judges
of CONSTITUTIONAL COURTS. He is bound by the
recommendation of the NJAC wherein members of the
judiciary constitute the single largest group. Parliament E
exercising constituent power (under Article 368)
considered it appropriate that representatives of the Civil
Society should be accorded a participatory role in the
process of appointments to CONSTITUTIONAL
COURTS and that their presence would be a check on F
potential and consequently ruinous 'trade offs'; (i)
between and amongst the three members representing
the judiciary and (ii) between the judiciary and the
executive; and would accentuate transparency to what
had hitherto been an opaque process. Such wisdom of G
the Parliament in not open to question. It is an
established and venerated principle that the Court would
not sit in judgment over the wisdom of Parliament even

                                                           H
598       . SUPREME COURT REPORTS                              [2015] 13 S.C.R.


A            in respect of an ordinary legislation; a constitutional
             amend~ent invites a greaterdegree of deference.

             (vi) Even under the scheme of the AMENDMENT,
             judiciary has a pre-dominant role. The apprehension that,
             under the new dispensation, Executive would have the
B
             opportunity of packing the CONSTITUTIONAL COURTS
              of this country with cronies is illogical and baseless. The
             presence of three senior most Judges of this Court in
             the. NJAC is a wholesome safeguard against such
c             possibility. Any two of the three Judges can stall such
              an effort, if ever attempted by the Executive.
             (vii) The fact that a Commission headed by Justice
             M.N.Venkatachaliah made certain recommendations
             need not necessarily mean that the model suggested by
 D           the Commission is the only model for securing
             independence of the judiciary or the best model. At any
             rate, the choice of the appropriate model necessarily
             involves a value judgment. The model chosen by the
             Parliament in exercise of its constituent powers cannot
 E           be held to be unconstitutional only on the ground that in
             the opinion of some, there are better models or
             alternatives. Such a value judgment is exclusively in the
             realm of the Parliament's constituent powers. It is also
             argued that the mechanism for selection of members
 F
             of the constitutional courts as expounded in the Second
             and the Third Judges cases, even according to Mr.
             Nariman's opinion is not the best. Mr. Nariman is on
             record stating so in one of the books authored by him
G            "Before Memory Fades :AnAutobiography"77 •
       77
          Fali S. Nariman, Before Memory Fades -An Autobiography,
      p. 389 - "If there is one important case decided by the Supreme Court of India
      in which I appeared and won, and which I have lived to regret, it is the decision
      that goes by the title - Supreme Cowt Advocates-on-Record Association vs
      Union of India. It is a decision of the year 1993 and is better known as the
 H    Second Judges Case."
      SUPREME COURT ADVOCATES-ON-RECORD                                         599
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

       94. Any appointment process established under the                        A
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.
      "In order to lay a due foundation for that separate
                                                                                B
      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                           c
      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                            D
      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                       E
      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 insfst rigorously on the                                   F
      principle: first, because peculiar qualifications
      being essential in the members, the pri.mary

p.400 - "I don't see what is so special about the first five judges of the
Supreme Court. They are only the first five in seniority of appointment - not   G
necessarily in superiority of wisdom or competence. I see no reason why all
the judges in the highest court should not be consulted when a proposal is
made for appointment of a high court judge (or an eminent advocate) to be a
judge of the Supreme Court. I would suggest that the closed-circuit network
of five judges should be disbanded. They invariably hold their 'cards' close
to their chest. They ask no one. They consult no one but themselves."
                                                                                H
600            SUPREME COURT REPORTS                       [2915] 13 S.C.R.


A             consideration ought to be to select that mode
              of choice which best secures these
              qualifications."78
                                                        [emphasis supplied]
 B       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 AMENDMENT yielded such appointments
C has been deeply contentious. As submitted by the learned
  Attorney General, the history of appointments to
  CONSTITUTIONAL COURTS in our Republic could be divided
  into two phases - pre and post Second Judges case. No
  doubt during both phases, the appointment process yielded
D mixed results, on the in<;lex 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.
E Such systemic deficit has pathological consequences.
          95. Parliament representing the majoritarian will was
   satisfied that the existing process warrants change and acted
   in exercise of its constituent power and concomitant discretion.
 F Such constituent assessment of the need is clearly off limits to
   judicial review. Whether curative ushered in by the
   AMENDMENT transgresses the permissible limits of
   amendatory power is certainly amenable to Judicial Review
   because of the law declared in Bharati case and followed
 G consistently thereafter.
               96. The text and scheme of the AMENDMENT excludes
      discretion to the President in making appointments to
      78
           See Federist No.51 - (Hamilton or Madison) (1788)
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                     601
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

CONSTITUTIONAL COURTS and the President is required                         A
to accept recommendations by the NJAC. The amended
Articles stipulate that judges of CONSTITUTIONAL COURTS
shall be appointed by the President ....... on the
recommendation of the NJAC.
                                                                            B
      97. Prior to the 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 AMENDMENT makes three important
changes - (i) primacy of judiciary is whittled down; (ii) role of           c
the executive is also curtailed; and (iii) representatives of civil
society are made part of the mechanism.
       98. 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              D
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               E
an assumption has been proved to be of doubtful accuracy. It
is Parliament's asserted assumption that induction of civil
society represen.tation will bring about critically desirable
transparency, commitment and participation of the ultimate                  F
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                G
 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
 AMENDMENT would yield a more independent and efficient
                                                                            H
602         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     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.
             99. As rightly pointed out by the Attorney General, the
      basic feature of the Constitution is not primacy of the opinion
8
      of the CJI (Collegium) but lies in non investiture of absolute
      power in the President (Executive) to choose and appoint
      judges of CONSTITUTIONAL COURTS. That feature is not
      abrogated by the AMENDMENT. The Executive may at best
c     only make a proposal through its representative in the NJAC,
      i.e. the Law Minister. Such proposal, if considered unworthy,.
      can still be rejected by the other members of the NJAC. The
      worth of a candidate does oot depend upon who proposes
      the name nor the candidate's political association; if any, should
o     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. Justice K.S. Hegde served as a member
E           of Rajya Sabha from 1952 to 1957 and was
            elevated as a High Court judge directly from Rajya
            Sabha. Though he was a congress MP, he proved
            to be so independent that he was superseded in
            1973 in the appointment of the CJI by his own
 F
            party's government. Justice Tekchand was also a
            member of Rajya Sabha before becoming a judge.·
            He was appointed when he was a sitting MP, but
            he proved to be a fine judge whose report on
G           prohibition is a landmark. Another prominent
            example is Justice V.R. Krishna Iyer who was made
            a judge of the Kerala High Court in 1968, though
            he had not only been an MLA but also a minister in

H
     SUPREME COURT ADVOCATES-ON~RECORD                             603
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

      the Namboodiripad government (1957-59) in                    A
    · Kerala. In 1973, Justice S.M. Sikri, the CJI, was
      totally opposed to the elevation of Justice Iyer to
      the apex court on the ground that he had been a
      politician who held the office of a cabinet minister
      in Kerala. It was AN. Ray who cleared his elevation,         B
      and Justice Iyer proved to be a luminous example
      of what a judge ought to be. He was one of the
      finest judges who ever sat on the bench of the
      Supreme Court who tried to bridge the gap between
      the Supreme Court and the common people. There               c
      is also the example of Justice Bahrul Islam who
      served as a member of Raj ya Sabha for 10 years
      before being appointed a High Court judge. He
      was subsequently elevated to the Supreme Court.
                                                                   D
      He absolved Jagannath Mishra, the Chief Minister
      of Bihar, in the urban cooperative bank scandal,
      and immediately thereafter resigned to contest the
    · Lok Sabha election as a Congress( I) candidate
      from Barpeta - he never enjoyed a clean reputation.
                                                                   E
      So, it is not proper to make any generalization.
       People of impeccable rectitude have to be
      handpicked." 79
     100. Critical analysis of Articles 124, 217 and 124-Aand
124-B leads to the position that the Executive Branch of           F
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        G

79
   Sudhanshu Ranjan, 'Justice, Judocracy and Democracy in India:
Boundaries and Breaches', p.185-186


                                   ..                              H
604         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     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.
 B         101. 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. True, there are many variants of democracy.
  Analysis of the variants is outside the scope of this judgment.
C 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
D 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.
E        102. 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. Eminent constitution jurist and .
 F teacher Laurence H. Tribe has the following to say in the context
     of the American experience.
           "No one should assume that the Supreme Court
           need always strike down laws and executive actions
           in order to protect our liberties. On the contrary,
 G         sometimes the Court best guarantees our rights by
           deferring to, rather than overruling, the political
           branches. When the Supreme Court, from 1900
           to 1937, struck down dozens of child labor laws,

 H                                 .
        SUPREME COURT ADVOCATES-ON-RECORD                                       605
         ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

        minimum wage laws, working condition regulations,                       A
        and laws protecting workers; rights to organize
        unions, on the ground that such rules infringed on
        property rights and violated "liberty of contract," the
        only rights the Court really vindicated were the rights
        to be overworked, underpaid, or unemployed. The                         B
        Court eventually reversed itself on the~e issues
        when it recognized that, in twentieth-century
        America, such laws are not intrusions upon human
        freedom in any meaningful sense, but are instead
        entirely reasonable and just ways of combating                          c
        economic subjugation. In upholding a minimum
        wage law in the watershed case of we·st Coast
        Hotel v. Parrish, the Supreme Court concluded in
        1937 that, in the light of "recent economic
                                                                                D
        experience", such statutes were justified because
        they prevent "the exploitation of a class of workers
        in ways detrimental to their health and well being."
       Naturally, in this imperfect world, the Supreme Court has
not always guarded our liberties as jealously as it should.                     E
During the First World War and again in the McCarthy era, the
Court often shrank from the affirmation of our rights to think
and spes:ik as we believe. And in the war hysteria following
bombing of Pearl Harbor, the Supreme Court in Korematsu v.
United States upheld the imprisonment of thousands of                           F
Americans of Japanese ancestry who had committed no crime.
In light of such lapses, some have argued that when it comes
to protecting fundamental rights, the Supreme Court is
essentially redundant: on most occasions the Congress and
the President will adequately safeguard our rights, and in those                G
difficult times when the political branches cannot be counted
on, neither can the Court."80
80
     Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10-11

                                                                                H
606          SUPREME COURT REPORTS                          [2015] 13S.C.R.


A         103. Our experience is not dissimilar. Judgments in A. K.
   Gopalan 81 , Sanka/chand82 and ADM Jaba/puri3 (to mention
   a few) should lead to an identical inference that in difficult times
   when political branches cannot be counted upon, neither can
   the Judiciary. The point sought to be highlighted is that judiciary
 B 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
 C 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 normatively fallacious apart from being contrary to political
   theory.
 0
            104. I now deal with the submission that presence of the
      law minister in the NJAC undermines independence of
      judiciary. According to the petitioners, the presence of a
      member of the Executive invariably has the effect of shifting
 E    the power dynamics. The presence of the Law Minister in the
      NJAC which confers 1/6 of the voting power per se undermines
      the independence of the judiciary. The submission is untenable.
      The Executive with a vast administrative machinery under its
      control is capable of making enormous and valuable
 F    contribution to the selection process. The objection is justified
      to some extent on the trust deficit in the Executive Branch in
      the constitutional sense 84, to be a component of the NJAC.
      " A.K Gopalan v. State of Madras AIR 1950 SC 27
      82 Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193

 G    83 ADM Jabalpur Vs_ s_s. Shukla Etc. Etc. AIR 1976 SC 1207

       "Laurence H. Tribe (American Constitutional Law) Second Edition, Page 2
      of Chapter 1 "Approaches to Constitutional Analysis" - "That all lawful power
      derives from the people and must be held in check to preserve their
      freedom is the oldest and mol!t central tenet of American constitutionalism.
      At the outset, only a small number of explicit substantive limitations on the
      exercise of governmental authority were thought essential; in the main, it was
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                           607
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

The same logic applies a fortiari to the Judicial branch, A
 notwithstanding the belief that it is the least dangerous branch.
 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 government in a democracy is by B
 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 C
 aspect of the administration of the Nation and lives of its
 people. In this context, to hold that it should be totally excluded
 fromthe process of appointing judges would be wholly illogical
 and inconsistent with the foundations of the theory of D
 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
                                                                                  E
believed that personal freedom could be secured more effectively by
decentralization than by express command. From the thought of seventeenth
century English liberals, particularly, as elaborated in eighteenth century
France by Montesquieu, the Constitution"s framers had derived the
conviction that human rights could best be preserved by inaction and
indirection-shielded behind the lay of deliberately fragmented centers of         F
countervailing power, in a vision almost Newtonian in its inspiration. In this
first model, the centralized accumulation of power in any man or single
group of men meant tyranny; the division and separation of powers, both
vertically (along the axis of federal, state and local authority) and
horizontally (along the axis of legislative, executive and judicial authority)
meant liberty. It was thus essential that no department, branch, or level of      G
government be empowered to achieve dominance on its own. If the.
legislature would punish, it must enlist the cooperation of the other branches-
the executive to prosecute, the judicial to try and convict. So too with each
other center of governmental power; exercising the mix of functions delegated
to it by the people in the social compact that was the Constitution, each
power center would remain dependent upon the others for the final efficacy
of the social designs."                                                           H
608          SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     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 Attorney General is right in his submission
      that exclusion of the Executive Branch is destructive of the basic
 B    feature of checks and balances - a fundamental principle in
      constitutional theory.
          105. That takes me to the second provision which is
   under challenge. Article 124A.(1 )(d) which stipulates that the
 c NJAC should consist of two eminent persons85 • Considerable
   debate took place during the course of hearing regarding
   validity of this provision, the gist of which is captured in the
   judgment of Khehar, J. The attack is again on the ground that
   the provision is utterly without guidance regarding the choice
 o of eminent persons. Petitioners argued that (i) there could be
   bipartisan compromise between the party in power and the
   opposition, resulting in sharing the two slots earmarked for
   eminent persons. Such possibility would eventually enable
   political parties to make appointments purely on political
 E considerations, thereby destroying independence of judiciary;
   (ii) even assuming that the two eminent persons nominated
   are absolute political neutrals, but are strangers to the judicial
      65 Article 124A. National Judicial Appointments Commission.- (1) There
 F    shall be a Commission to be known as the National Judicial Appointments
      Commission consisting of the following, namely-
               JOO<              JOO(              JOO(              JOO(

      (d)       two eminent persons to be nominated by the committee consisting
      of the Prime Minister, the Chief Justice of India and the Leader of Opposition
      in the House of the People or where there is no such Leader of Opposition,
      then. the Leader of single largest Opposition Party in the House of the People-
 G    Members.
                Provided that one of the eminent person shall be nominated from
      amongst the persons belonging to the Scheduled Castes, the Scheduled
      Tribes, Other Backward Classes. Minorities or Women.
                Provided further that an eminent person shall be nominated for a
      period of three years and shall not be eligible for renomination ..

 H
        SUPREME COURT ADVOCATES-ON-RECORD                            609
         ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

system, they would not be able to make any meaningful A
contribution to the selection process, as they would have no
resources to collect appropriate data relevant for the decision
making process; (iii) the possibility of two eminent persons
vetoing the candidature of a person approved unanimously by
the three judicial members of the NJAC itself is destructive of B
the basic structure.
        106. Transparency is a vital factor in constitutional
governance. This Court in innumerable cases noted that
constitutionalism demands rationality in every sphere of State       c
action. In the context of judicial proceedings, this Court held in
Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra &
Anr.B6:
        "20 .................... Public trial in open court is
        undoubtedly essential for the healthy, objective and         D
        fair administration of justice. Trial held subject to
        the public scrutiny and gaze naturally acts as a check
        against judicial caprice or vagaries, and serves as
        a powerful instrument for creating confidence of the
        public in the fairness, objectivity, and impartiality of .
                                                                     E
        the administration of justice. Public confidence in
        the administration of justice is of such great
        significance that there can be no two opinions on
        the broad proposition that in discharging their
                                                                     F
        functions as judicial tribunals, courts must generally
        hear causes in open and must permit the public
        admission to the court-room. As Bentham has
        observed:
        "In the darkness of secrecy sinister interest, and           G
        evil in every shape, have full swing. Only in
86
     AIR 1967 SC 1, para 20.



                                                                     H
610          SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A           proportion as publicity has place can any of the
            checks applicable to judicial injustice operate.
            Where there is no publicity there is no justice.
            Publicity is the very soul of justice. It is the keenest
            spur to exertion, and surest of all guards against
 B          improbity. It keeps the Judge himself while trying
            under trial (in the sense that) the security of
            securities is publicity."
           Transparency is an aspect of rationality. The need for
c     transparency is more in the case of appointment process.
      Proceedings of the collegium were absolutely opaque and
      inaccessible both to public and history, barring occasional
      leaks. Ruma Pal , J. is on record -
            "Consensus within the collegium is sometimes
 D          resolved through a trade-off resulting in dubioµs
            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
 E          'lobbying' within the system."87
             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
 F    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.. Iyer, J. cautioned -
            "74 ............. And when criteria for transfers of
G
            Judges are put forward by the President which may
            upset past practices we must, as democrats,
      " "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal
      at the 5'" V.M. Tarkunde Memorial Lecture on 10.11.2011

 H
     SUPREME COURT ADVOCATES-ON-RECORD                           611
      ASSOCIATION v. U.0.1. [CHELAMESWAR; J.]

     remember Learned Hand who once said that the                A
     spirit of liberty is "the spirit which is not too sure
     that it is right". That great Judge was fond of
     recalling Cromwell's statement : "I beseech ye in
     the bowels of Christ, think that ye may be mistaken."
     He told a Senate Committee. "I should like to               B
     have that written over the portals of every
     church, every school and every court-house,
     any may I say, of every legislative body in the
     United States. I should like to have every court
     begin "I beseech ye in the bowels of Christ,                c
     think that we may be mistaken." (Yale Law
     Journal: Vol.71 : 1961, November part)." 88
                                          [emphasis supplied]
     Replace "transfers" and "President" with "appointments"     D
and "Parliament" and Iyer, J's admonition is custom made to
answer the objections (ii) and (iii) of the petitioners.
       107. There is a possibility that the apprehension
expressed by the petitioners might come true. The possibility    E
of abuse of a power conferred by the Constitution is no ground
for denying the authority to confer such power. Bachawat, J.
in/. C. Golak Nath (supra) opined as follows:
     "235. It is said that the Parliament is abusing its
     power of amendment by making too many frequent              F
     changes. If the Parliament has the power to make
     the amendments, the choice of making any
     particular amendment must be left to it. Questions
     of policy cannot be debated in this Court. The
                                                                 G
     possibility of abuse of a power is not the test of its
     existence: In Webb v. Outrim (1907]A.C. 81, Lord

88 Sanka/chand case (supra) para   78.

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612         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A          Hobhouse said, "If they find that on the due
           construction of the Act a legislative power falls within
           S. 92, it would be quite wrong of them to deny its
           existence because by some possibility it may of
           be abused, or limit the range which otherwise would
B          be open to the Dominion Parliament". With
           reference to the doctrine of implied prohibition
           against the exercise of power ascertained in
           accordance with ordinary rules of construction,
           Knox C.J., in the Amalgamated Society of
c          Engineers v. The Adelaide Steamship Company
           Limited 129 C.L.R. 151, said, "It means the
           necessity of protection against the aggression of
           some outside and possibly hostile body. It is based
           on distrust, lest powers, if once conceded to the
D
           least degree, might be abused to the point of
           destruction. But possible abuse of power is no
           reason in British law for limiting the natural force of
           the language creating them".
 E          However, it was a dissenting opinion. But this Court in
      l.R. Coelho (supra), Sabharwal, J. speaking for a unanimous
      Bench of nine Judges, held as follows:
           "76. It is also contended that the power to pack up
           laws in the Ninth Schedule in absence of any indicia
 F
           in Article 31 B has been abused and that abuse is
           likely to continue. It is submitted that the Ninth
           Schedule which commenced with only 13
           enactments has now a list of 284 enactments. The
G          validity of Article 31 B is not in question before us.
           Further, mere possibility of abuse is not a
           relevant test to determine the validity of a
           provision. The people, through the Constitution,

 H
     SUPREME COURT ADVOCATES-ON-RECORD                              613
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

     have vested the power to make laws in their                    A
     representatives through Parliament in the same
     manner in which they have entrusted the
     responsibility to adjudge, interpret and construe law
     and the Constitution including its limitation in the
     judiciary. We, therefore, cannot make any                       B
     assumption about the alleged abuse of the power."
                                            [emphasis supplied]
      In the final analysis, all power could be misused including
judicial power. The remedy is not to deny grant of power but to C
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 D
Opposition would always have conflicting political interests and
would rarely agree upon any issue. Nonetheless, 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 E
 compromise or helplessness in the event of such compromise,
cannot be ruled out.
      108. It is incontestable that nomination of eminent
persons is not immune to judicial review. There is thus F
possibility of delay in functioning of NJAC and inevitably the
process of appointments to CONSTITUTIONAL COURTS. It
is, therefore, essential that there must be an entrenched
process of nomination of eminent persons which eliminates
risk of possible bipartisan q:mipromises. The only conceivable G
curative is to incorporate another tier of scrutiny in the process
of nomination. In my considered view, the following safeguard
would bring this process within permissible contours of the

                                                                     H
614        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A   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
B 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 the NJAC. Such
    procedure would still preserve the choice of eminent persons
    primarily with the Committee contemplated under Article 124-
C A, while incorporating sufficient safeguard against possible
    abuse of the power by the Committee.
          109. The third provision whose validity is under attack is
   Article 124 B(c), which obligates NJAC to ensure that the
 D person recommended is of ability and integrity. The challenge
   is on the ground that the AMENDMENT does not lay down any
   guidelines to be followed by the NJAC for assessing ability
   and integrity. Even in the absence of any express declaration,
   such an obligation is inherent and implied, having regard to
 E functional responsibilities entrusted to the NJAC. The
   precision is only an abundanti cautela. Perhaps prompted
   by certain bad experiences of the past, both pre and post
   Second Judges case .
.F        110. 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
 G 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.
   In the context of the American Constitution, it is said that the
 H
     SUPREME COURT ADVOCATES-ON-RECORD                           615
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

Constitution is an intentionally incomplete, often deliberately A
indeterminate structure for the participatory evolution of political
ideals and governmental practices. Constitutions enumerate
structural arrangements of Government and specify the outer
limits of powers of each organ of the State. Within such limits,
how the various organs of the State ought to discharge their B
allocated functions is a matter of detail, either to be provided
by law or convention. All written democratic Constitutions are
full of abstract moral commands!
      111. Three members of the highest judicial body of this     c
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 the NJAC. To
suggest that the NJAC requires detailed guidelines expressly
spelt out in the text of the Constitution amounts to judicially D
mandating inflexible standards for constitutional drafting. The
task of expounding a Constitution is crucially different from that
of construing a statute.
      112. Provisions of the Constitution are not to be
interpreted in a· broad and liberal way. They are not to be E
construed in the manner in which a piece of subordinate
legislation or, for that matter, even a statute is required to be
interpreted. This Court in S.R. Bommai had an occasion to
consider this question. Dealing with the authority of the F
President under Article 356 of the Constitution of India and
whether the exercise of such authority by the President is
amenable to judicial review on the parameters enunciated by
this Court in Barium Chemicals Ltd. v. Company Law Board,
AIR 1967 SC 295, rejected the submission.                         G
      "35.     . ........... The test laid down by this Court
      in Barium Chemicals Ltd. v. Company Law Board
      and subsequent decisions for adjudging the validity

                                                                  H
616         SUPREME COURT REPORTS                  (2015] 13 S.C.R.


A          of administrative action can have no application for
           testing the satisfaction of the President under
           Article 356. It must be remembered that the power
           conferred by Article 356 is of an extraordinary
           nature to be exercised in grave emergencies and,
B          therefore, the exercise of such power cannot be
           equated to the power exercised in administrative
           law field and cannot, therefore, be tested by the
           same yardstick ....... .

c          255.      .. .. . ... The exercise of the power under
           Article 356 is a constitutional exercise of the power.
           The normal subjective satisfaction of an
           administrative decision on objective basis applied
           by the courts to administrative decisions by
 D         subordinate officers or quasi-judicial or subordinate
           legislation does not apply to the decision of the
           President under Article 356.
            373.     . ....... So far as the approach adopted by
           this Court in Barium Chemical& is concerned, it
 E          is a decision concerning subjective satisfaction of
            an authority created by a statute. The principles
            evolved then cannot ipso facto be extended to the
            exercise of a constitutional power under Article 356.
            Having regard to the fact that this is a high
 F
            constitutional power exercised by the highest
          . constitutional functionary of the Nation, it may not
            be appropriate to adopt the tests applicable in the
            case of action taken by statutory or administrative
 G          authorities - nor at any rate, in their entirety."
            113. Such a test is relevant only for bodies created by
      statutes and subordinate legislation. The functioning of any
      constitutional body is only disciplined by appropriate

 H
     SUPREME COURT ADVOCATES-ON-RECORD                              617
      ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

legislation. Constitution does not lay down any guidelines for      A
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    B
prior to the 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-AMENDMENT selection
scenario conferred any uncanalised discretion and therefore
resulted in some undesirable judicial appointments. If in           C
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      D
of the participants in the selection process. After the
AMENDMENT, the obligation is unvaried. The qnly 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            E
 process. To contend that the 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!
      114: The next submission which is required to be dealt F
is that Section 6(6) of the ACT which stipulates that if any two
members of the NJAC do not agree with the recommendation
proposed by the NJAC, the NJAC shall not recommend such·
candidate. In the opinion of the petitioners, it is a provision
which confers veto power on two members of the NJAC to G
scuttle proposa!s. It is submitted that though the provision is
facially innocuous, in practice, this would result in giving the
Executive a power of veto to reject the proposals made by the

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                                                                            -
618         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     three judicial members of the NJAC. Such a provision is
      violative of the basic structure of the Constitution. It is further
      argued that though the provision is not part of the
      AMENDMENT, since the AMENDMENT and the ACT are
      made simultaneously and the ACT being complementary to
 B    the AMENDMENT, the ACT must be understood to be a part
      of the design of the AMENDMENT and, therefore, Section 6(6)
      is required to be struck down on the ground it is violative of the
      basic structure of the Constitution.
 c       115. The respondents submitted that Section 6(6) of the
   ACT only prescribes a special majority for sanctifying the
   recommendations of NJAC. Prescription of special majorities
   in law is a known phenomenon. The Constitution itself
   prescribes special majorities in certain cases. For example,
 D Article 368(2) prescribes a special majority for amending the
   Constitution. Similarly, Article 124(4) prescribes a special
   majority for the impeachment of judges of the
   CONSTITUTIONAL COURTS. It is argued that the petitioners
   presumption that only Government could take advantage of
 E the prescription under Section 6(6) is totally baseless. In a
   given case it may happen that two judicial members of the
   NJAC can turn down the proposal of the NJAC. Learned
   Attorney General also submitted that such a prescription of a
   special majority is also a part of the regime created under
 F Second Judges case and, therefore, there is nothing
   constitutionally objectionable in such a prescription.
         116. The question whether the content of Section 6(6)
   confers a power of veto or prescribes a special majority is
 G only of semantic relevance. Whatever name we call it, the
   result is the same. The two members of the NJAC can override
   the opinion of the other four and stall the recommendation. I
   do not find anything inherently illegal about such a prescription.
   For the purpose of the present case, I do not even want to
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                      619
       ASSOCIATION v. U.0.1. [CHELAMESWAR, J.]

embark upon an enquiry whether the constitutional fascination                A
for the basic structure doctrine be made a Trojan horse to
penetrate the entire legislative camp. For my part, I would like
to examine the question in greater detail before answering
the question. There are conflicting views of this Court on this
proposition.89 In my opinion, such an enquiry is not required in             B
this case in view of the majority decision that the
AMENDMENT is unsustainable. Some of the learned counsel
for the petitioners placed reliance on S.R. Bommai case as a
justification for the invocation of the doctri~e of basic structure.
                                                                             c
      117. Only to indicate but not determine conclusively the
scope of the enquiry to answer the submission of the
petitioners, I examine S.R. Bommai case. The question
before this Court was whether the action of the President in
invoking the powers under Article 356 was constitutionally                   D
tenable? In other words, whether the material on which the
President acted was constitutionally relevant for the invocation
of powers under Article 356. The submission of the petitioners
before this Court was that the exercise of powers under Article
356 was inconsistent with two features of the Constitution, i.e.             E
the democracy and federalism, therefore, destructive of the
basic structure, as the Presidential action under Article 356
resulted in the super session of the democratically elected
State Governments by the Union Government.
                                                                             F
     118. Repelling the contention, this Court held that
secularism is also one of the basic features of the Constitutioa.
The conscious inaction of the various State Governments and
consequential failure to prevent certain activities which in
the opinion of the petitioners (endorsed by this court by the                G

 89
    Maharao Sahib Shri Bhim Singhji v. Union of India & Ors., (1981) 1 SCC
166, Krishna Iyer, J. -                                     .
"20. The question of basic structure .being breached cannot arise when we
examine the vires of an ordinary legislation as distinguished from a
constitutional .amendment."
                                                                             H
620        SUPREME COURT REPORTS                    [2015] 13S.C.R.


A  judgment) would ultimately result in the destruction of the
   secular fabric of the Constitution has certainly a relevant
   consideration for the exercise of extraordinary powers vested
   in the President under Article 356. Because Article 356
   obligates the President to resort to the action contemplated
 B thereunder only if the President is satisfied that a situation has
   arisen in which the Government of the State cannot be carried
   on in accordance with the provisions of the Constitution. Failure
   of the State Government to prevent activities which are bound
   to destroy the communal harmony between people following
 C different religions is certainly inconsistent with the constitutional
    obligation of the State to upheld the Constitution of which
    secularism is a basic feature. S.R. Bommai case is no authority
   for the proposition that the validity of a legislation is amenable
    to judicial review on the ground of the basic structure doctrine.
 0
         119. The fiasco created in Dinakaran case (supra) and
   Shanti Bhushan case (supra) 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
 E 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, number of recommendations made by the collegia of
   High Courts came to be rejected by the collegium of the
 F 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
 G make such a quick volteface. 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

 H
-
          SUPREME COURT ADVOCATES-ON-RECORD                                   621
                   ASSOCIATION v. U.0.1.

    Court who are not lucky enough to become the Chief Justice                A
    of India. S.uch a state of affairs does not either enhance the
    credibility of the institution or good for the people of this country.
          120. For all the abovementioned reasons, I would upheld
    the AMENDMENT. However, in view of the majority decision,
                                                                              8
    I do not see any useful purpose in examining the constitutionality
    of the ACT.
           121. Only an independent and efficient judicial system
    can create confidence in the society which it serves. The ever
    increasing pendency of matters before various C
    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 trivicil and some profound coupled with bewildering D
    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, E
    unfortunately, failed to secure the approval of this Court leaving ·
    this 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 F
    that you may preserve" 90 • Future alone can tell whether I am
     rightly reminded of those words or not.
                               ORDER
         MADAN B. LOKUR, J. 1. I have had the benefit of going
    through the draft order prepared by my learned brothers Justice G
    Khehar, Justice Chelameswar and Justice Kurian Joseph.·
    90
      Thomas Babington Macaulay's address on 2"' March 1831 in the House of
    Commons on Parliamentary Reforms

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622         SUPREME COURT REPORTS                    [2015] 13S.C.R.


A     While endorsing the view expressed by my learned brothers
      Justice Khehar and Justice Chelameswar, I would like to add
      a few words on the procedural aspect of dealing with an
      application for recusal.
            2. Justice Khehar has mentioned in Paragraph 17 of the
B     draft order as follows:-
            "The decision to remain as a member of the reconstituted
             Bench was mine, and mine alone."
            3. In my respectful opinion, when an application is made
C     for the recusal of a judge from hearing a case, the application
      is made to the concerned judge and not to the Bench as a
      whole. Therefore, my learned brother Justice Khehar is
      absolutely correct in stating that the decision is entirely his,
      and I respect his decision.
 D          4. In a .detailed order pronounced in Court on its own
      motion v. State & Others 1 reference was made to a decision
      of the Supreme Court of the United States in Jewell Ridge
      Coal Corporation v. Local No. 6167, United Mine Workers
      of America2 , wherein it was held that a complaint as to the
 E    qualification of a justice of the Supreme Court to take part in
      the decision of a cause cannot properly be addressed to the
      Court as a whole and it is the responsibility of each justice to
      determine for himself the propriety of withdrawing from a case.
 F        5. This view was adverted to by Justice Rehnquist in
      Hanrahan v. Hampton 3 in the following words:-
             "Plaintiffs-respondents and their counsel in these cases
             have moved that I be recused from the proceedings in
             this case for the reasons stated in their 14-page motion
 G           and their five appendices filed with the Clerk of this Court
             on April 3, 1980. The motion is opposed by the state-
      1
        MANU/DE/9073/2007
      2
        325 us 897 (1945)
      J 446 us 1301 (1980)


 H
     SUPREME COURT ADVOCATES-ON-RECORD                               623
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

       defendant petitioners in the action. Since generally the A
       Court as an institution leaves such motions, even though
       they be addressed to it, to the decision of the individual
       Justices to whom they refer, see Jewell Ridge Coal
       Corp. v. Mine Workers, 325 U.S. 897 (1945) (denial of
       petition for rehearing) (Jackson, J., concurring), I shall B
       treat the motion as addressed to me individually. I have
       considered the motion, the Appendices, the response
       of the state defendants, 28 U.S.C. 455 (1976 ed. And
       Supp. II), and the current American Bar Association
       Code of Judicial Conduct, and the motion is accordingly       c
       denied."
      6. The issue of recusal may be looked at slightly
differently apart from the legal nuance. What would happen if,
in a Bench of five judges, an application is moved for the recusal
of Judge A and after hearing the application Judge A decides         D
to recuse from the case but the' other four judges disagree
and express the opinion that there is no justifiable reason for
Judge A to recuse from the hearing? Can Judge A be
compelled to hear the case even though he/she is desirous of
recusing from the hearing? It is to get over such a difficult        E     \
situation that the application for recusal is actually to an
individual judge and not the Bench as a whole.
       7. As far as the view expressed by Justice Kurian Joseph
that reasons should be given while deciding an application for F
recusal, I would prefer not to join that decision. In the first place,
giving or not giving reasons was not an issue before us. That
reasons are presently being given is a different matter
altogether. Secondly, the giving of reasons is fraught with some
difficulties. For example, i.t is possible that in a given case, a G
learned judge of the High Cou~ accepts an application for his/
her recusal from a case and one of the parties challenges that
order in this Court. Upon hearing the parties, this Court comes
to the conclusion that the reasons given by the learned judge

                                                                     H
624         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     were frivolous and therefore the order is incorrect and is then
      set aside. In such an event, can this Court pass a consequential
      order requiring the learned judge to hearthe case even though
      he/she genuinely believes that he/she should not hear the case?
         8. The issue of recusal from hearing a case is not as
 B simple as it appears. The questions thrown up are quite
   significant and since it appears that such applications are
   gaining frequency, it is time that some procedural and
   substantive rules are framed in this regard. If appropriate rules
   are framed, then, in a given case, it would avoid
 C embarrassment to other judges on the Bench.
                               JUDGMENT
        MADAN B. LOKUR, J. 1. The questions for
   consideration are: Firstly, whether the Constitution (Ninety-ninth
 D Amendment) Act, 2014 which substitutes and replaces the
   extant procedure for the appointm.ent of judges of the Supreme
   Court and the High Courts with a radically different procedure
   impinges on the independence of the judiciary and violates
   the basic structure of the Constitution; Secondly, whether the
 E National Judicial Appointments Commission Act, 2014 is a
   constitutionally valid legislation.
         2. In my opinion, the Constitution (Ninety-ninth
   Amendment) Act, 2014 (for short the 99 1h Constitution
 F Amendment Act) alters the basic structure of the Constitution
   by introducing substantive changes in the appointment of
   judges to the Supreme Court and the High Courts and rewriting
   Article 124(2) and Article 217(1) of the Constitution, thereby
   seriously compromising the independence of the judiciary.
 G Consequently, the ggth Constitution Amendment Act is
   unconstitutional. Since the 991h Constitution Amendment Act
   is unconstitutional, the National Judicial Appointments
   Commission Act, 2014 (for short the NJACAct) which is the

 H
     SUPREME COURT ADVOCATES-ON-RECORD                               625
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

child of the 99 1h Constitution Amendment Act cannot                 A
independently survive on the statute books. Even otherwise, it
violates Article 14 of the Constitution by enabling substantive
arbitrariness in the appointment of judges to the Supreme
Court and the High Courts.
                                                                     B
      3. Having had the benefit of reading the draft judgment
of Justice Khehar, Justice Kurian Joseph and Justice Adarsh
Kumar Goel, I am in respectful agreement with the conclusions
arrived at with regard to the constitutional validity of the 991h
Constitution Amendment Act but prefer to supplement them             c
with additional reasons. I am in respectful disagreement with
the view of Justice Chelameswar. I believe all the submissions
made by various learned counsel led by Mr. Fali S. Nariman
on .behalf of the petitioners and by Mr. Mukul Rohatgi the
learned Attorney-General on behalf of the respondents have           D
been noted and dealt with by Justice Khehar in his draft
judgment and in respect of some of them, I have nothing to
add to what has already been said.
      Historical background
                                                                     .E
      4. 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        F
judges in the Indian judiciary, the various alternatives discussed
and debated and then to consider and analyze the solution
given by the Constitution (Ninety-ninth Amendment) Act, 2014
and the National Judicial Appointments Commission Act, 2014.
This is important for another reason - some of the 'mistakes'        G
made before Constituent Assembly accepted the Constitution
of India, have been revived and enacted, even though the
Constituent Assembly debated and rejected them.

                                                                      H
626         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A            5. Section 101 of the Government of India Act, 1919
      provided for the appointment of the Chief Justice and judges
      of the High Court and Section 102 provided for their tenure. It
      was provided that the appointment shall be made by His
      Majesty and the judge shall hold office 'during His Majesty's
B     pleasure.' Since the appointment process and the tenure of a
      judge depended upon the Crown's pleasure, perhaps the issue
      of the independence of the judiciary was not the subject of
      discussion in India. In any event, nothing was pointed out in
      this regard one way or the other during the submissions made
C     by learned counsel.
            6. The Government of India Act, 1935 partially changed
      the procedure for the appointment of judges to the High Courts
      and introduced a procedure for the appointment of judges to
o     the Federal Court constituted by the said Act. Section 200
      and 201 dealt with the appointment of judges of the Federal
      Court and while the Crown continued to make the appointments
      (apparently without any formal consultation process); their
      tenure was fixed at the age of 65 years. Removal of a judge
 E    was possible only on the ground of misbehavior or of infirmity
      of mind or body. Section 201 provided for the salary,
      allowances, leave and pension of a judge and this could not
      be varied to his/her disadvantage after appointment. Section
      220 and 221 related to the appointment of a judge of the High
 F    Court and the provisions thereof were more or less similar to
      the appointment of a judge of the Federal Court.
           7. The Government of India Act, 1935 gave a semblance
      of an independent judiciary in that it provided some basic
G     requirements of independence such as eligibility for
      appointment, security of tenure including the removal process,
      assurance of salary, allowances and pension etc. Again,
      nothing specific was shown to us, one way or the other, which
      could throw light on the contemporaneous practice regarding
 H
        SUPREME COURT ADVOCATES-ON-RECORD                       627
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

the appointment process or the independence of the judiciary. A
A general practice on the appointment of judges was, however,
subsisting and this has been adverted to by the Supreme Court
of Pakistan in Al-Jehad Trust v. Federation of Pakistan. 1 It
was observed that ever since 1911 when the Indian High Courts
Act was enacted and certainly from 1915/1919 onwards when B
the Government of India Act was enacted, the recommendation
of the Chief Justice for the appointment of a judge was
accepted even though the appointment of a judge was a matter
of the pleasure of the Crown. ltwas said:
                                                                c
        "Act of appointment of a Chief Justice or a Judge
        in the superior Court is an executive act. No doubt
        this power is vested in the Executive under the
        relevantArticles of the Constitution, butthe question
        is, as to how this power is to be exercised.            D
        Conventions can be pressed into service while
        construing a provision of the Constitution and for
        channelising and regulating the exercise of power
        under the Constitution: whereas undertt}e Islamic
        Jurisprudence, a convention which is termed as Urf      E
        has a binding force on the basis of various Islamic
        sources, it has been a consistent practice which
        has acquired the status of convention during pre
        partition days of India as well as post partition
        period that the recommendations of the Chief            F
        Justice of a High Court and the Chief Justice of the
        Supreme Court in India as well as in Pakistan have
        been consistently accepted and acted upon except
        in very rare cases. The practice of consultation of
        the Chief Justice of a High Court and the Indian        G
        Federal Court was obtaining even under the Indian
        High Courts Act [1911] as well as under the
1
    PLD 1996 SC 324 (Five Judges Bench)
                                                                H
628         SUPREME COURT REPORTS                     [2015] 13S.C.R.


A           Government of India Act 1915, though the
            appointment of Judges of superior Courts in India
            was a matter of pleasure vested in the Crown. The
            recommendations of the Chief Justices even in
            those days were accepted as a matter of course."
 B
            Sapru Committee
             8. The issue of the appointment of judges (for
      Independent India) first came up for discussion (as itappears)
      before the Sapru Committee. A Report prepared by this
C     Committee in 1945 dealt with the Legislature, the Executive
      and the Judiciary in Chapter V thereof. The relevant paragraphs
      pertaining to the appointment of judges are paragraphs 259,
      261 and 268. 2 The Committee was of the opinion that the
      independence of the judiciary is of 'supreme importance for
 D    the satisfactory working of the Constitution and nothing can
      be more detrimental to the well-being of a Province or
      calculated to undermine public confidence than the possibility
      of executive interference with the strength and independence
      of the highest tribunal of the Province.' It was dearth at it desired
 E    to secure the 'absolute independence' of the High Court and
      to put the judges above party politics or influences. The
      Committee proposed a limited consultative system of
      appointment of judges completely leaving out the Legislature
 F    and the Executive. The Committee proposed consultation only
      between the Head of the State and the Chief Justice of India
      for appointments to the Supreme Court and for the High Courts,
      in addition, the Head of the Unit (Province) and the Chief Justice
      of the High Court. The relevant paragraphs of the Report read
 G    as follows:
            "259. In our Recommendation No.13 we first
            recommend that there shall be a Supreme Court
      'https://archive.org/stream/saprucommittee035520mbp/saprucommittee
      035520mbp djvu txt
 H
SUPREME COURT ADVOCATES-ON-RECORD                      629
ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

for the Union and a High Court in each of the units.   A
Then in the second clause we recommend that the
strength of judges in each of these Courts at the
inception of the Union as well as the salaries to be
paid to them shall be fixed in the Constitution Act
and no modification in either shall be made except     B
on the recommendation of the High Court, the
Government concerned and the Supreme Court
and with the sanction of the Head of the State,
provided, however, that the salary of no judge shall
be varied to his disadvantage during his term of       c
office. In sub-clause (3) we recommend:-
     "(a) The Chief Justice of India shall be
     appointed by the Head of the State and the
     other judges of the Supreme Court shall be        D
     appointed by the Head of the State in
     consultation with the Chief Justice of India."
     "(b) The Chief Justice of a High Court shall
     be appointed by the Head of the State in
     consultation with the Head of the Unit and the    E
     Chief Justice of India."
      "(c) Other judges of a High Court shall be
      appointed by the Head of the State in
      consultation with the Head of the Unit, the      F
      Chief Justice of the High Court concerned and
      the ChiefJustice of India."
261. Our main object in making these
recommendations is to secure the absolute
                                                       G
independence of the High Court and to put them
above party politics or influences. Without some
such safeguards, it is not impossible that a
Provincial Government may under political pressure
                                                       H
630   SUPREME COURT REPORTS                      [2015) 13S.C.R.


A     affect prejudicially the strength of the High Court
      within its jurisdiction or the salary of its Judges. If it
      is urged that the High Court and the Government
      concerned will be more or less interested parties
      in the matter, the intervention of the Supreme Court
8     and of the Head of the State would rule out all
      possibility of the exercise of political or party
      influences. The imposition of these conditions, may,
      on a superficial view, seem to be inconsistent with
      the theoretical autonomy of the Provinces, but, in
c     our opinion, the independence of the High Court
      and of the judiciary generally is of supreme
      importance for the satisfactory working of the
      Constitution and nothing can be more detrimental
      to the well-being of a Province or calculated to
D
      undermine public confidence than the possibility of
      executive interference with the strength and
      independence of the highest tribunal of the
      Province.
E     268. We now come to the method of appointment
      of Judges. Under the existing law Judges of High
      Courts and of the Federal Court are appointed by
      the Crown. We have recommended that the Chief
      Justice of India should be appointed by the Head
 F    of the State. In this connection we would refer to
      our discussion of the phrase 'Head of the State' in
      Chapter VI. Similarly we have recommended that
      the other Judges of the Supreme Court shall be
      appointed by the Head of the State in consultation
G     with the Chief Justice of India. The Chief Justice of
      a High Court shall be appointed by the Head of the
      State in consultation with the Head of the Unit and
      the Chief Justice of India, and the other judges of a

H
     SUPREME COURT ADVOCATES-ON-RECORD                           631
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     High Court shall be appointed by the Head of the            A
     State in consultation with the Head of the Unit, the
     Chief Justice of the High Court concerned and the
     Chief Justice of India. We have deliberately placed
     the appointment of these Judges, including Judges
     of the Provincial High Courts outside the purview           B
     of party politics, and we make the same
     observations as above in justification of this
     provision notwithstanding its seeming interference
     with the theoretical autonomy of the Provinces."
                                                                 c
     9. As mentioned, 'Head of State' was discussed in
Chapter VI of the Report and in so far as the judiciary is
concerned, the Head of State was expected to act 'on his own'
as the occupant of the office of Head of State and not on the
advice of the Federal Ministry. More specifically, the Head of   D
State was to act on his/her own in the matter of appointment
and removal of judges. This is what was said in the Report:
     ''The Union will be a democratic federal State and
     the Head of the State who will replace both the
     Governor-General and the Crown Representative               E.
     and might be given a suitable indigenous
     designation, if necessary should exercise such
     functions as are given to him only on the advice of
     his Federal Ministry, barring a few very exceptional
                                                                 F
     cases, to be specifically mentioned in the
     Constitution Act, where discretion is given to him
     to act on his own or on advice other than that of the
     Federal Ministry (1) for avoiding political or
     communal graft, or (2) for taking the initiative in the     G
     national interest, especially in exceptional and fast
     moving situations such as exist at the present day.
     Under exception (1) will fall the suggestions we have
     made under paragraph 13 of our recommendations
                                                                 H
632         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A          as regard the alteration of the strength of High
           Courts and the appointment and removal of judges
           of the Supreme Court and the High Courts." 3
           Ad hoc Committee on the Supreme Court
B           10. After the Constituent Assembly was formed, an Ad
  hoc Committee on the Supreme Court was set up which
  presented its Report of 21st May, 1947 to the Constituent
  Assembly. Paragraph 14 of the Report is of relevance to the
  issue of appointment of judges of the Supreme Court. It
C accepted, in principle, the qualification for the appointment of
  judges to the Supreme Court, as mentioned in the Government
  of India Act, 1935 but found it inexpedient 'to leave the power
  of appointing judges of the Supreme Court to the unfettered
  discretion of the President of the Union.' It made two
D suggestions in the appointment procedure, both of which
  necessitated consultation between the President and the Chief
  Justice of India and the opinion of a panel of 11 (eleven)
  persons comprising of, inter alia, some Chief Justices of the
  High Courts, some members of both the Houses of the Central ..
E Legislature and some law officers of the Union. It was proposed
  that the executive be kept out of the appointment process. The
  said paragraph reads as follows:
           "14. The qualifications of the judges of the Supreme
 F         Court may be laid down on terms very similar to
           those in the Act of 1935 as regards the judges of
           the Federal Court, the possibility being borne in
           mind (as in the Act of 1935) that judges of the
           superior courts even from the States which may join
G          the Union may be found fit to occupy a seat in the
           Supreme Court. We do not think that it will be
           expedient to leave the power of appointing judges
           of the Supreme Court to the unfettered discretion
H     ' Paragraph 288
        SUPREME COURT ADVOCATES-ON-RECORD                            633
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        of the President of the Union. We recommend that             A
        either of the following methods may be adopted.
        One method is that the President should in
        consultation with the Chief Justice ofthe Supreme
        Court (so far, as the appointment of puisne judges
        is concerned) nominate a person whom he                      B
        considers fit to be appointed to the Supreme Court
        and the nomination should be confirmed by a
        majority of at least 7 out of a panel of 11 composed
        of some of the Chief Justices of the High Courts of
        the constituent units, some members of both the              c
        Houses of the Central Legislature and some of the
        law officers of the Union. The other method is that
        the panel of 11 should recommend three names
        out of which the President, in consultation with the
                                                                     D
        Chief Justice, may select a judge for the
        appointment. The same procedure should be
        followed for the appointment of the Chief Justice
        except of course that in this case there will be no·
        consultation with the Chief Justice. To ensure that
                                                                     E
        the panel will be both independent [and] command
        confidence the panel should not be an ad hoc body
        but must be one appointed for a term of years." 4
        11. There was clearly a divergence of opinion between
the Sapru Committee and the Ad hoc Committee on the                  F
consultation process for the appointment of judges. The Sapru
Committee felt that the appointment of judges should be left to
the Head of State acting on his/her own while the Ad hoc
Committee did not approve of the appointment process being
left to the 'unfettered discretion of the President' but suggested   G
it to be broad-based involving a panel.               ·
        12. However, what is apparent from both the Report of
4
    http-([164 100 47 132/LssNew/cons!j!ueotlyol4p6 html
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634          SUPREME COURT REPORTS                         [2015] 13S.C.R.


A      the Sapru Committee and the Report of the Ad hoc Committee
     · is that tfle executive was not to be involved at all in the process
       of appointment of judges. This is of considerable significance. 5
          Memorandum on the Union Constitution and Draft
      Clauses
8
          13. On 3Qth May, 1947 the Constitutional Advisor to the
   ConstituentAssembly, Sir B.N. Rau submitted a Memorandum
   on the Union Constitution and Draft Clauses. The
   Memorandum provided in Chapter VI (The Union Judicature)
C that there shall be a Supreme Court 'with powers and
   jurisdiction as recommended by the ad hoc Committee on the
   Union Judiciary. '6 In the draft clauses of the Union Constitution
   appended to the Memorandum, it was provided that every judge
   of the Supreme Court shall be appointed by the President with
D the approval of not less than 2f3rd of the members of the Council
 . of State.7 In this regard, the Law Commission of India notes in
   its 8Qth Report as follows:
             "The Constitutional Adviser, in his memorandum
 E           dated May 3Qth, 1947 suggested that the
             appointment of Judges should be made by the
             President with the approval of at least two-thirds of
             the Council of State. The Council of State,
           · according to him, was to be a body in the nature of
 F           a Privy Council for advising the President on certain
             matters on which decisions were required on
             independent non-party lines. The Council of State
             was to include the Chief Justice of India among its
             members and its composition was to be such as
 G           to secure freedom from party bias. Such a Council
       5 Lay persons were also not included in the consultation process.

      • B. Shiva Rao: 'The Framing of India's Constitution' Select Documents,
      Volume II page 486
      7 B. Shiva Rao: 'The Framing of India's Constitution' Select Documents,

 H    Volume II page 519
      SUPREME COURT ADVOCATES-ON-RECORD                            635   •
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      of State, it was suggested by the Constitutional             A
      Adviser, would be a satisfactory substitute for the
      panel recommended by the Special Committee.
      The Union Constitution Committee did not accept
      the proposal of the Constitutional Adviser for setting
                                                                   B
      up of a Council of State, and suggested that the
      procedure for the appointment of judges should be
      that the President should consult the Chief Justice
      and such other judges of the Supreme Court as
      might be necessary."8                                        c
      14. It appears that by this time, the independence of the
judiciary was taken for granted, the only question being the
procedure for the appointment of judges -whether it should
be the exclusive responsibility of the President or it should be
broad-based involving a panel or a Council of State. In any        D
event, the exclusion of the executive in the appointment process
appears to have been taken as accepted.
      Union Constitution Committee
      15. The Union Constitution Committee which presented E
a Report to the Constituent Assembly on 4 1h July, 1947
did not adopt the proposal for setting up a Council of
State. Consequently, an alternative procedure for the
appointment of a judge of the Supreme Court was suggested,
namely, for the appointment by consultation between the F
President and the Chief Justice of the Supreme Court and
such other judges of the Supreme Court and judges of the High
Court as may be necessary. In other words, the limited
consultative process as originally envisaged by the Sapru G
Committee (between the President and the Chief Justice of
India) was accepted though with modifications. Chapter IV
paragraph 18 of the Report concerns itself with the

• Paragraphs 4.4 and 4.5
                                                                   H
-   636          SUPREME COURT REPORTS                      [2015) 138.C.R.


    A     appointment of judges of the Supreme Court and this reads
          as follows:
                "18. Supreme Court.-There shall be a Supreme
                Court with the constitution, powers and jurisdiction
                recommended by the ad hoc Committee on the
    B
                Union Judiciary, except that a judge of the Supreme
                Court shall be appointed by the President after
                consulting the Chief Justice and such other judges
                of the Supreme Court as also judges of the High
    c           Courts as may be necessary for the purpose.
                [NOTE - The ad hoc Committee on the Supreme
                Court has observed that it will not be expedient to
                leave the power of appointing judges of the
                Supreme Court to the unfettered discretion of the
    D           President of the Federation. They have suggested
                two alternatives, both of which involve the setting
                up. of a special panel of eleven members.
                According to one alternative, the President, in
                consultation with the Chief Justice, is to nominate
    E           a person for appointment as puisne judge and the
                nomination has to be confirmed by at least seven
                members of the panel. According to the other
                alternative, the panel should recommend three
                names, out of which the President, in consultation
     F
                with the Chief Justice, is to select one for the
                appointment. The provision suggested in the above
                clause follows the decision of the Union Constitution
                Committee.]"9
    G          Again, the executive had no role to play in the
          appointment of judges, specifically of the Supreme Court.
          9
            B. Shiva Rao: 'The Framing of India's Constitution' Select Documents,
          Volume II page 583

    H
      SUPREME COURT ADVOCATES-ON-RECORD                                     637
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      Provincial Constitution Committee                                     A
     16. With regard to the High Courts, a Report of 27111 June,
1947 was submitted to the Constituent Assembly by the
Provincial Constitution Committee. Part II thereof pertained to
the Provincial Judiciary and the recommendations made for
                                                                            8
the appointment of judges of the High Court incorporated the
provisions of the Government of India Act, 1935 and the
recommendations made by the Union Constitution Committee.
These read as follows:
        "The Provincial Judiciary                                           c
      1. The provisions of the Government of India Act, 1935,
      relating to the High Court should be adopted mutatis
      mutandis; but judges should be appointed by the
      President of the Federation in consultation with the Chief            D
      Justice of the Supreme Court, the Governor of the
      Province and the Chief Justice of the High Court of the
      Province (except when the Chief Justice of the High Court
      himself is to be appointed).
      2. Jhe judges of the High Court shall receive such                    E
      emoluments and allowances as may be determined by
      Act of the Provincial Legislature and until then such as
      are prescribed in Schedule ........... .
      3. The emoluments and allowances of the judges shall                  F
      not be diminished during their term of office." 10
      The above discussion indicates that the executive was
to be kept out of the process of appointing judges to the
Supreme Court and the High Courts. This is clear from the
views of: ( 1) The Sapru Committee; (2) The Ad hoc Committee                G
on the Supreme Court; (3) The Union Constitution Committee,
10
  B. Shiva Rao: 'The Framing of India's Constitution' - Select Documents,
Volume II page 662

                                                                            H
638         SUPREME COURT REPORTS                    [2015) 13 S.C.R.


A     and (4) The Provincial Constitution Committee. This will have
      some bearing when the composition of the National Judicial
      Appointments Commission is examined.
            17. In this background pertaining to the judiciary, the first
      draft of the Constitution was placed before the Drafting
 8
      Committee in October, 194 7. This was followed by another
      (revised) draft submitted to the President of the Constituent
      Assembly on 21st February, 1948. There was no significant
      change between these two drafts as far the appointment
 c    process for the Federal Judicature (or the High Courts in the
      Provinces/States) is concerned. But, it is important to note that
      the Drafting Committee did not throw overboard the view of
      any of the committees mentioned above, that is, to keep the
      executive out of the process of appointment of judges.
 D          Conference of Chief Justices
         18. Wide publicity was given to the Draft Constitution to
   enable interested persons to express their views through
   comments and suggestions. The views expressed by the
 E Conference of Chief Justices (the Chief Justice of the Federal
   Court and Chief Justices of the High Courts), the Minorities
   Sub-Committee and the Advisory Committee on Fundamental
   Rights, Minorities and Tribal and Excluded Areas are important
   since they explain the interplay between the Executive and the
 F Judiciary in the matter of appointment of judges.
        19. These views also make it clear that almost
   immediately after Independence (or thereabouts) the executive
   began to interfere in the appointment of judges of the High
   Courts. This interference by the executive (or in the present
 G day language, the political executive) is the genesis of the
   problem that we are grappling with even today.
          20. The Conference of Chief Justices was held on 26th
      and 27th March, 1948 to consider the proposals in the
 H
       SUPREME COURT ADVOCATES-ON-RECORD                                      639
        ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

 Draft Constitution concerning the judiciary. A Memorandum                    A
 representing the views of the Federal Court and of the Chief
 Justices representing all the Provincial High Courts of the Union
 of India was prepared and submitted by the Conference. 11 This
 Memorandum is of immense importance in understanding the
 prevailing appointment process.                                              B
        21. Very briefly, in what may be described as the
  'preamble' to the Memorandum, a few salient points were
  assumed and noticed. It was assumed that the independence
- and integrity of the judiciary is of the 'highest importance' not           c
  only to the judges but to the citizens seeki~g resort from a court
  of law against the high handed and illegal exercise of power
. by the executive. It was noticed that there is a tendency to
  whittle down the powers, rights and authority of the judiciary
  which, if allowed to continue, would be 'most unfortunate'.                 D
  Therefore, there was a need to col.interact this tendency which
  was likely to grow witl;J,_greater power being placed in the hands
  of the political parties."lt was said:    ·
       "We have assumed that it is recognized on all hands that
       the independence and integrity of the judiciary in a                   E
       democratic system of government is of the highest
       importance and interest not only to the judges but to the
       citizens at large who may have to seek redress in the
       last resort in courts of law against any illegal acts or the           F
       high-handed exercise of power by the executive. Thanks
       to the system of administration of justice established by
       the British in this country, the judiciary until now has, in
       the main, played and independent role in protecting the
       rights of the individual citizen against encroachment and              G
       invasion by the executive power. Unfortunately, however,
       a tendency has, of late, been noticeable to detract from

  11
   The text of the Memorandum is available in B. Shiva Rao: ;The Framing of
 India's Constitution' - Select Documents, Volume IV page 193
                                                                              H
640        SUPREME COURT REPORTS                  [2015] 13 S.C.R..


A         the status and dignity of the judiciary and to whittle down
          their powers, rights an authority which if unchecked would
          be most unfortunate. While we recognize that the Draft
          Constitution proposes to liberalize in some respects the
          existing safeguards against executive interference and
 B        to enlarge their present powers, it is felt that further
          provision should be made in the same direction in order
          effectively to counteract the aforesaid tendency which is
          bound to become more pronounced as more power
          passes into the hands of political parties who will control
c         and dominate the governmental machinery in the years
          to come. In making the following proposals and
          suggestions, the paramount importance of securing the
          fearless functioning of an independent, incorruptible and
          efficient judiciary has been steadily kept in view."
 D
         The Memorandum specifically pointed out (sadly) that
   after 15th August, 1947 the appointment of judges to the High
   Courts, on merit, was not always assured in view of the practice
   followed (by some States). Also, recommendations by the
 E Chief Justice of the High Court were not always forwarded to
   the Central Government, implying thereby that some other
   recommendations were forwarded. In this regard it was said:
          "Discussions at the conference revealed that the
          procedure followed after 15th August 1947 does not in
 F
          practice always ensure appointment being made purely
          on merit without political, communal and party
          considerations being imported into the matter. Though
          it is acknowledged readily enough in principle that such
 G        considerations should not influence the appointment, this
          is not always kept in view in working the procedure in
          practice. The Chief Justice sends his recommendation
          to the Premier who consults his Home Minister. The
          recommendation of the Premier is then forwarded to the
 H


                                                                   /
     SUPREME COURT ADVOCATES-ON-RECORD                          641
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     Home Ministry at the Centre without even sending the        A
     recommendation of the Chief Justice along with it, the
     prescribed procedure being apparently understood as
     not rendering it obligatory for the Premier to do so."
      22. Consequently, a modified procedure for making
                                                                 8
recommendations was unanimously recommended by the
Conference which would ensure that the recommendation of
the Chief Justice reaches the President and that the
appointment be made with the concurrence of the Chief Justice
of India to avoid any political pressures. It was said:          c
     "The Chief Justice should send his recommendation in
     that behalf directly to the President. After consultation with
     the Governor the President should make the appointment
     with the concurrence of the Chief Justice of India. This
     procedure would obviate the need for the Chief Justice D
     of the High Court discussing the matter with the Premier
     and his Home Minister and "justifying" his
     recommendations before them. It would also ensure the
     recommendation .of the Chief Justice of the High Court
     being always placed before the appointing authority, E
     namely, the President. The necessity for obtaining the
     "concurrence" of the Chief Justice of India would provide
     a safeguard against political and party pressure at the
     highest level being brought to bear in the matter."
                                                                 F
     23. Significantly, the Memorandum tacitly and implicitly
acknowledged that apart from a recommendation for the
appointment of a judge of a High Court originating from the
Chief Justice of the High Court, recommendations were being
made by or at the instance of the political executive. Whether G
such a procedure was right or wrong was not considered but it
was suggested that in the event of such a recommendation
being maoe, the concurrence of the Chief Justice of India
should be obtained before the appointment is made. The
                                                                 H
642         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A     Memorandum proposed that Article 193(1) of the Draft
      Constitution concerning the appointment of a judge of a High
      Court should read as under:
        "Every judge of the High Court shall be appointed by the
        President by a warrant under his hand and seal on the
B
        recommendation of the Chief Justice of the High Court
        after consultation with the Governor of the State and with
        the concurrence of the Chief Justice of India ... "
                                     '    .
        The Memorandum acknowledged that a
C recommendation for the appointment of a judge of the High
  Court could also be made by the President (in an individual
  capacity). In the event of such a proposal (by the President),
  there was no likelihood of the Chief Justice of India not
  accepting it and, therefore, the concurrence of the Chief
D Justice of India was not required to be incorporated in the
  Constitution. It was, therefore, noted:
           "We do not think it necessary to make any provision in
           the Constitution for the possibility of the Chief Justice of
 E         India refusing to concur in an appointment proposed by
           the President. Both are officers of the highest
           responsibility and so far no case of such refusal has arisen
           although a convention now exists that such appointments
           should be made after referring the matter to the Chief
 F         Justice of India and obtaining his concurrence. If per
           chance such a situation were ever to arise it could of
           course be met by the President making a different
           proposal, and no express provision need, it seems to
           us, be made in that behalf.
G
           The foregoing applies mutatis mutandis to the
           appointment of the judges of the Supreme Court, and
           article 103(2) may also be suitably modified ..... "


H
     SUPREME COURT ADVOCATES-ON-RECORD                              643
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      24. The significance of this Memorandum cannot be             A
overemphasized and it can be summarized as follows: (1) The
independence and integrity of the judiciary was of the highest
importance. (2) A tendency had developed in the executive to
whittle down the power and authority of the judiciary. (3) It was
noted that recommendations for the appointment of a judge of        B
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          C
that the political executive at the provincial level cannot
suppress it. (4) 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   D
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. (5) It was acknowledged
that a recommendation for the appointment of a judge of a           E
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        F
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         G
be made after referring the matter to the Chief Justice of India
and obtaining his concurrence.'


                                                                    H
644         SUPREME COURT REPORTS                       [2015] 13 S.C.R.



A         Amendments to Article 61 and Article 62 of the Draft
      Constitution
            25. The Minorities Sub-Committee and the Advisory
      Committee on Fundamental Rights, Minorities and Tribal and
      Excluded Areas adverted to and considered Article 61 and
 8
      Article 62 (amongst others) of the Draft Constitution. Article
      61 and Article 62 of the Draft Constitution pertain to the Council
      of Ministers to aid and advice the President and other
      provisions as to Ministers. In this regard, Shiva Rao mentions
 c    in his excellent effort 'The Framing of India's Constitution -A
      Study' as follows:                                              ·
             "There was considerable discussion in the Minorities
             Sub-Committee and in the Advisory Committee on
             Fundamental Rights, Minorities and Tribal and Excluded
 D           Areas on the need for the inclusion of minority
             representatives in the Union and State Cabinets ..... They
             considered that it would be sufficient if, following the
             precedent furnished by the Government of India Act of
             1935, an Instrument of Instructions was drawn up, to be
 E           included as a schedule to the Constitution, enjoining the
             Governors and the President as far as practicable to
             include members of the minority communities in their
             Ministries. In the Draft Constitution of February 1948, however,
             an Instrument of Instructions for this purpose was drawn
 F
           . up only for Governors but not for the President. Possibly
             in order to rectify this omission, the Drafting Committee
             decided, on further consideration of the articles relating
             to the Council of Ministers, that an Instrument of
 G           Instructions for the President would also be necessary" 12
           26.Apparently, pursuant to this, the Drafting Committee
      gave a notice in October 1948 of an amendment to Article 62
      proposing to add the following clause:
      12 Page 373-374

 H
     SUPREME COURT ADVOCATES-ON-RECORD                              645
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     "In the choice of his Ministers and the exercise of his        A
     other functions under this Constitution, the President shall
     be generally guided by the Instructions set out in
     Schedule Ill-A, but the validity of anything done by the
     President shall not be called in question on the ground
     that it was done otherwise than in accordance with such        B
     Instructions."
       27. Schedule Ill-A incorporated the Instrument of
tnstructions to the President and this is important and it reads
as follows:                                                         c
                      New Schedule 111-A
                       [Article 62(5a)]

           INSTRUCTIONS TO THE PRESIDENT
     1. In these instructions, unless the context otherwise D
     requires, the term "President" shall include every person
     for the time being discharging the functions, of, or acting
     as, the President according to the provisions of this
     Constitution.
                                                                    E
     2.       xxx
     3.       xxx
     4.        (1) The President shall make rules for the
     constitution of an Advisory Board consisting of not less F
     than fifteen members of.the Houses of Parliament to be
     elected by both Houses in accordance with the system
     of proportional representation by means of the single
     transferable vote for the purpose of advising the
     President in the matter of making certain appointments G
     under this Constitution and shall take all necessary steps
     for the due constitution of such Board as soon as may
     be after the commencement of this Constitution.

                                                                    H
646   SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     (2) Such rules shall provide that the Leader of the
      Opposition, if any, in either House of Parliament shall, if
      he is not elected to the Advisory Board, be nominated to
      the Board by the President.
      (3) Such rules shall also define the terms of office of the
B
      members of the Advisory Board and its procedure and
      may contain such ancillary provisions as the President
      may consider necessary.
      5. (1)   In making any appointment of-
c     (a) the Chief Justice of India or any other judge of the
      Supreme Court;
      (b) the Chief Justice or any other judge of a High Court;
      (c) an Ambassador in a foreign State;
D
      (d) the Auditor-General of India;
      (e) the Chairman or any other member of the Union Public
      Service Commission;

E     (f) any member of the Commission to superintend, direct
      and control all elections to Parliament and elections to
      the offices of President and Vice-President,
      The President shall consult the Advisory Board
      constituted under paragraph 4.
 F
      (2) The President shall also consult the Advisory Board
      so constituted in making appointment by virtue of the
      powers conferred on him by this Constitution to any other
      office under the Government of India or the Government
G     of a State other than the office of Governor of a State, if
      Parliament by resolutions passed by both Houses
      recommend to the President that the Advisory Board shall
      be consulted in making appointment to such office.
      6. (1) In making appointment of judges of the Supreme
H
      SUPREME COURT ADVOCATES-ON-RECORD                                     647
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      Court and of the High Courts, the President shall before              A
      obtaining the advice of the Advisory Board shall follow
      the following procedure:
      (a) In the case of appointment of the Chief Justice of India,
      he shall consult the judges of the Supreme Court and the              B
      Chief Justices of the High Courts within the territory of
      1.ndia except the States for Jhe time being specified in
      Part Ill of the First Schedule.
      (b) In the case of appointment of a judge of the Supreme
      Court other than the Chief Justice of India, he shall consult         C
      the Chief Justice of India and the other judges of the
      Supreme Court and also the Chief Justices of the High
      Courts within the territory of India except the States for
      the time being specified in Part Ill of the First Schedule.
                                                                            D
      (c) In the case of appointment of the Chief Justice of a
      High Court, he shall consult the Governor of the State in
      which the High Court has its principal seat, and the Chief
      Justice of India.
      (d) In the case of appointment of a judge of a High Court             E
      other than the Chief Justice, he shall consult the Governor
      of the State in which the High Court has its principal seat,
      the Chief Justice of India and the Chief Justice of the
      High Court.
                                                                            F
      (2) The President shall place the recommendations of
      the authorities consulted by him under sub-paragraph ( 1)
      before the Advisory Board at the time of obtaining the
      advice of that Board with regard to any appointment
      referred to in that sub-paragraph.                                    G
      7.xxx
      8.xxx"13

"The Framing of India's Constitution - Select Documents, Volume -IV, Page
84.                                                                         H
648          SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A           28. It is significant that the Instrument of Instructions also
      kept the executive completely out of the picture in so far as the
      appointment of judges is concerned. No one from the executive
      was to be consulted or involved in the appointment process.
            29. The Drafting Committee also proposed, apparently
8
      in view of the insertion of Schedule Ill-A that Article 103(2) of
      the Draft Constitution (relating to the appointment of judges of
      the Supreme Court and corresponding to Article 124(2) of the
      Constitution of lndia) 14 be modified as follows:
C            "(i) the words "after consultation with such of the judges
             of the Supreme Court and of the High Courts in the States
             as may be necessary for the purpose" be deleted in
             clause (2); and
D·           (ii) the first proviso to clause (2) be deleted ." 15
            30. In other words, the President was not expected to
      consult the Council of Ministers at all or to act on its advice but
      was to consult the Chief Justice oflndia and other judges and
      then take the advice of the Advisory Board. This was a mixture
 E    of the Sapru Committee recommendation of the Head of State
      (or President as the high office came to be designated) acting
      on his/her own and yet the President not having 'unfettered
      discretion' in the appointment of judges.
 F          31. All the proposals, including those given by the
      Conference of Chief Justices, the Minorities Sub-Committee
      and the Advisory Committee on Fundamental Rights, Minorities
      and Tribal and Excluded Areas, were considered by the Drafting
      14 Article 103(2) of the Draft Constitution reads: "Every judge of the Supreme
      Court shall be appointed by the President by warrant under his hand and
 G    seal after consultation with such of the judges of the Supreme Court and of
      the High Courts in the States as may be necessary for the purpose and shall
      hold office until he attains the age of sixty-five years:
      Provided that in the case of appointment of a judge, other than the Chief
      Justice, the Chief Justice of India shall always be consulted."
       15 The Framing of India's Constitution - Select Documents, Volume - IV,

 H    Page 147.
      SUPREME COURT ADVOCATES-ON-RECORD                                       649
       ASSOCIATION v. U.0.1..[MADAN B. LOKUR, J.]

Committee and on 4th November, 1948 the second draft of the                   A
Constitution was introduced in the Constituent Assembly by
Dr. B.R. Ambedkar, Chairman of the Drafting Committee.
However, the decision of the Drafting Committee taken in
October, 1948 was not incorporated in the Draft Constitution.
Therefore, Dr. Ambedkar moved an amendment in the                             B
Constituent Assembly on 31st December, 1948 to insert clause
(5)a in Article 62 of the Draft Constitution. The amendment
proposed by Dr. Ambedkar reads as follows:
      "That after clause 5 of Article 62 the following new clause             c
      be inserted:-
      (5)a In the choice of his Ministers and the exercise of his
      other functions under this Constitution, the President shall
      be generally guided by the instructions set out in
      Schedule Ill-A, but the validity of anything done by the                D
      President shall not be called in question on the ground
      that it was done otherwise than in accordance with such
      instructions."
        32. The amendment was discussed briefly and adopted                   E·
by the Constituent Assembly on the same day. Although the
decision of the Drafting Committee was to insert clause (5)a
in Article 62 of the Draft Constitution and simultaneously delete
a part of clause (2) of Article 103 of the Draft Constitution, the
amendment relating to the deletion of clause (2) of Article 103               F
of the Draft Constitution was apparently not moved by Dr.
Ambedkar. It is not clear why. As far as the Instrument of
Instructions is concerned, it is pointed out by Granville Austin
that it was not actually, but implicitly, adopted by the Constituent
Assembly. 16                                                                  G
      33. A combined reading of the views of the Drafting
Committee read with the Instrument of Instructions and the
" Indian Constitution - Cornerstone of a Nation by Granville Austin at page
126, footnote 39
                                                                              H
650        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A  insertion of clause (5)a in Article 62 of the Draft Constitution
   indicates that the thinking at the time was that in the matter of
   appointment of judges the President was to act in his/her
   individual capacity. This is very significant otherwise there was
   absolutely no need for an Instrument of Instructions or an
 B Advisory Board to be set up or for the complete exclusion of
   the Council of Ministers or the executive in the appointment of
   judges. However, this thinking was later on given up.
          Constituent Assembly Debates
C           34. This historical background has an impact on
     understanding the subsequent debate in the Constituent
    Assembly that took place on 23rd and 24th May, 1949 when
    Article 103 of the Draft Constitution was considered and
     debated in the Constituent Assembly. It needs to be·
 0 . emphasized at this stage that when the debate took place on
     23'd and 24th May, 1949 it~as in the backdrop of the fact that
     clause (5)a had already been inserted in Article 62 of the Draft
     Constitution to the effect that in respect of several matters,
     including the appointment of judges, the President would act
 E in his/her individual capacity and the Council of Ministers was
     not even in the picture. The debate will be referred to a little
     later.
          35. After a few months, on 11th October, 1949 the
 F President of the Constituent Assembly was informed by Mr.
   T.T. Krishnamachari that Schedule 111-Ais not being moved and
   that it could be taken out of the list. He also moved for the
   deletion of Schedule IV from the Draft Constitution. Explaining
   the move to delete Schedule IV from the Draft Constitution it
 G was stated that the matter should be left entirely to convention
   rather than be put in the body of the Constitution as a Schedule
   in the shape of an Instrument of Instructions and that there is a
   fairly large volume of opinion which favours that idea.
           36. Dr. Ambedkar added as follows:
 H
SUPREME COURT ADVOCATES-ON-RECORD                                 651
 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

 "Sir, with regard to the Instrument of Instructions, there A
 are two points which have to be borne in mind. The
 purpose of the Instrument of Instructions as was originally
 devised in the British Constitution for the Government of
 the colonies was to give certain directions to the head of
 the States as to how they should exercise their B
 discretionary powers that were vested in them. Now the
 Instrument of Instructions were effective in so far as the
 particular Governor or Viceroy to whom these instructions
 were given was subject to the authority of the Secretary
 of State. If in any particular matter which was of a serious C
 character, the Governor for instance, persistently refused
 to carry out the Instrument of Instructions issued to him, it
 was open to the Secretary of State to remove him, and
 appoint another and thereby secure the effective carrying D
"out of the Instrument of Instructions. So far as our
 Constitution is concerned, there is no functionary created
 by it who can see that these Instruments of Instructions is
 carried out faithfully by the Governor.
Secondly, the discretion which we are going to leave with         E
the Governor under this Constitution is very very meagre.
He has hardly any discretion at all., He has to act on the
advice of the Prime Minister in the matter of the selection
of Members of the Cabinet. He has also to act on the
advice of the Prime Minister and his Ministers of State           F
with respect to any particular executive or legislative
action that he takes. That being so, supposing the Prime
Minister does not propose, for any special reason or
circumstances, to include in his Cabinet members of the
minority community, there is nothing which the Governor           G
can do, notwithstanding the fact that we shall be charging
him through this particular Instrument of Instructions to
act in a particular manner. It is therefore felt, having regard
under the Constitution who can enforce this, that no such
                                                                  .H
652            SUPREME COURT REPORTS                            [2015] 13S.C.R.


A             directions should be given. They are useless and can
              serve no particular purpose. Therefore, it was felt in the
              circumstances it is not desirable to have such Instrument
              of Instructions which really can be effective in a different
              set of circumstances which can by no stretch of
B             imagination be deemed to exist after the new Constitution
              comes into existence. That is the principal reason why it
              is felt that this Instrument of Instructions is undesirable." 17
            37. On the basis of the above discussion, Schedule IV
c     to the Draft Constitution was deleted and a motion to that effect
      was adopted.
            38. Thereafter on 141h October, 1949 an ~mendment was
      moved by Mr. T.T. Krishnamachari to omit clause (5)a of Article
      62 of the Draft Constitution. It was stated that since Schedule
 D    lll~A was not moved, this clause becomes superfluous and
      therefore its omission was moved. The amendment to omit
      clause (5)a of Article 62 of the Draft Constitution was adopted.
      In support of this, Dr. Ambedkar [perhaps the main advocate
      of clause (5)a] had this to say, while emphasizing constitutional
 E    obligations and constitutional conventions:
               "Every Constitution, so far as it r.elates to what we call
               parliamentary democracy, requires three different organs
               of the State, the executive, the judiciary and the
 F             legislature. I have not anywhere found in any Constitution
               a provision saying that the executive shall obey the
               legislature, nor have I found anywhere in any Constitution
               a provision that the executive shall obey the judiciary.
               Nowhere is such a provision to be found. That is because
 G             it is generally understood that the provisions of the
               Constitution are binding upon the different organs of the
               State. Consequently, it is to be presumed that those who
               work the Constitution, those who compose the
      17
           http://parliamentofindia.nic.in/ls/debates/vol1 Op4 him
 H
SUPREME COURT ADVOCATES-ON-RECORD                                 653
 ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

Legislature and those who compose the executive and               A
the judiciary know their functions, their limitations and their
duties. It is therefore to be expected that if the executive
is honest in working the Constitution, then the executive
is bound to obey the Legislature without any kind of
compulsory obligation laid down in the Constitution.              B
Similarly, if the executive is honest in working the
Constitution, it must act in accordance with the judicial
decisions given by the Supreme Court. Therefore my
submission is that this is a matter of one organ of the           c
State acting within its own limitations and obeying the
supremacy of the other organs of the State. In so far as
the Constitution gives a supremacy to that is a matter of
constitutional obligation which is implicit in the
Constitution itself.                                              D
I remember, Sir, that you raised this question and I looked
it up and I had with me two decisions of the King's Bench
Division which I wanted one day to bring here and refer
in the House so as to make the point quite clear. But I am
sorry I had no notice today of this point being raised. But       E
this is the answer to the question that has been raised.
No constitutional Government can function in any country
unless any particular constitutional authority remembers
the fact that its authority is limited by the Constitution and    F
that if there is any authority created by the Constitution
which has to decide between that particular authority and
any other authority, then the decision of that authority shall
be binding upon any other organ. That is the sanction
which this Constitution gives in order to see that the            G
President shall follow the advice of his Ministers, that the
executive shall not exceed in its executive authority the
law made by Parliament and that the executive shall not
give its own interpretation of the law which is in conflict
                                                                  H
654         SUPREME COURT REPORTS                       [2015] 13S.C.R.


A          with the interpretation of the judicial organ created by
           the Constitution.
           Shri H V. Karnath : If in any particular case the President
           does not act upon the advice of his Council of Ministers,
           will that be tantamount to a violation of the Constitution
 B
           and will he be liable to impeachment?
           . The Honourable Dr. B. R. Ambedkar: There is not the
             slightest doubt about it." 18
 C          Referring tothis extremely important exposition, Granville
      Austin concludes:
            "From this, one is forced to deduce thatAmbedkar and
            the members of the Drafting Committee, perhaps under
            pressure from Nehru or Patel, had come to the conclusion
 D          that the written provisions of a non-justiciable Instrument
            of Instructions and the tacit conventions of cabinet
            government had equal value: both were legally
            unenforceable, but both provided a mechanism by which
            the legislature could control the Executive; and of the two,
 E          conventions were the tidiest and the simplest way of
            limiting Executive authority." 19
         Transposing this to the relationship between the Judiciary
   and the Executive, it is quite dear that Dr. Ambedkar and indeed
 F 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
 G respect to judicial decisions but also in other matters that
   directly impact on the independence of the judiciary.


      " http'lipar!jamentofindja.nic jn/lsldebates/vol1 Op?c.htm
 H    19
        Indian Constitution - Cornerstone of a Nation, pages 138-139
       SUPREME COURT ADVOCATES-ON-RECORD                           655
        ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

       Debates on 23'd and 241h May, 1949                           A
      39. It is important to appreciate that the Constituent
 Assembly Debates (for short the CAD) to which our attention
 was drawn refer to the appointment of a judge of the Supreme
 Court and not specifically to the appointment of a judge of a
                                                                    8
 High Court. But the sum and substance of the debate is equally
 applicable to the appointment of a judge of a High Court.
           40. On 23'd and 24th May, 1949 three significant
    amendments to Article 103(2) of the Draft Constitution relating
    to the appointment of judges of the Supreme Court were C
    considered in the Constituent Assembly. The first was moved
 . by Prof. K.T. Shah (Bihar: General) who suggested that the
    appointment of a judge of the Supreme Court should be after
    consultation with the Council of State. This suggestion was
    .intended to avoid political influence, party maneuvers and D
··. pressures in the appointment process. The second was moved
  . by Prof. Shibban Lal Saksena (United Provinces: General) who
    suggested that the appointment-Of the Chief Justice of India
   be subject to confirmation by two~thirds majority of the total E
    number of Members of Parliament assembled in a joint
    session of both the Houses of Parliament. The third was moved
    by Mr. B. Pocker Sahib (Madras: Muslim} who suggested that
. the appointment of a judge of the Supreme Court should have
  ··the concurrence of the Chief Justice of India. In support of his F
 · amendment Mr. B. Pocker Sahib extensively referred to and
     relied on: the Merhoraridum submitted by the Conference of
     Chief Justices.As he put it:
        "I submit, Sir, the views expressed by the Federal Court
        and the Chief Justice of the .various High Courts G
        assembled in.conference are entitled to the highest
        weight befor-e this Assembly, before this provision is
      . passed. It is of the highest importance that the Judges of
        the· Supreme Court should not be made to feel that their
                                                                    H
656   SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     existence or their appointment is dependent upon political
      considerations or on the will of the political party.
      Therefore, it is essential that there should be sufficient
      safeguards against political influence being brought to
      bear on such appointments. Of course, if a Judge owes
 8    his appointment to a political party, certainly in the course
      of his career as a Judge, also as an ordinary human
      being, he will certainly be bound to have some
      consideration for the political views of the authority that
      has appointed him. That the Judges should be above all
c     these political considerations cannot be denied.
      Therefore, I submit that one of the chief conditions
      mentioned in the procedure laid down, that is the
      concurrence of the Chief Justice of India in the
      appointment of the Judges of the Supreme Court, must
 D    be fulfilled. This has been insisted upon in this memo.
      and that is a very salutary principle which should be
      accepted by this House. I submit, Sir, that it is of the
      highest importance that the President must not only
      consult the Chief Justice of India, but his concurrence
 E
      should be obtained before his colleagues, that is the
      Judges of the Supreme Court, are appointed. It has been
      very emphatically stated in this memo. that it is absolutely
      necessary to keep them above political influences. No
,F    doubt, it is said in this procedure that the Governor of the
      State also may be consulted; but that is a matter of minor
      importance. It is likely that the Governor may also have
      some political inclinations. Therefore, my amendment
      has omitted the name of the Governor. That the judiciary
 G    should be above all political parties and above all political
      consideration cannot be denied. I do not want to enter
      into the controversy at present, which was debated
      yesterday, as to the necessity for the indepen<;Jence of
      the judiciary so far as the executive is concerned. It is a
 H
        SUPREME COURT ADVOCATES-ON-RECORD                        657
         ASSOCIATION v. U.0,1. [MADAN B. LOKUR, J.]

        matter which should receive very serious consideration A
        at the hands of this House and I hope the Honourable the
        Law Minister will also pay serious attention to this aspect
        of the question, particularly in view of the fact that this
        recommendation has bee.n ma<!e by the Federal Court
        and the Chief Justice of the other High Court assembled B
        in conference. I do not think, Sir, that there can be any
        higher authority on this subject than this conference of
        the Federal Court and the Chief Justices of the various
        High Courts in lndia."20
                                                                  c
    Mr. MahboobAli Baig Sahib (Madras: Muslim) moved a
somewhat similar amendment. The reason given by Mr.
Mahboob Ali Baig Sahib was:
        "Under our proposed constitution the President would
        be the constitutional Head of the executive. And the D
        constitution envisages what is called a parliamentary
        democracy. So the President would be guided by the
        Prime Minister or the Council of Ministers who are
        necessarily drawn from a political party. Therefore the
        decision of the President would be necessarily influenced E
        by party considerations. It is therefore necessary that the
        concurrence of the Chief Justice is made a pre-requisite
        for the appointment of a Judge of the Supreme Court in
        order to guard ourselves against party influences that may F
        be brought to bear upon the appointment of Ju,Pges."21
        41. It is clear that both these Hon'ble Members made
the 'concurrence' suggestion since they desired the
appointment of a judge of the Supreme Court to be free from
any sort of political or executive interference. It appears that G
these amendments were moved unmindful of the insertion of
clause (5)a in Article 62 ofthe Draft Constitution and Schedule
Ill-A thereto.
20
     http'/lparljamentofindia njc jo/ls/debates/yo!Bp?a htm
21
     http://parliamentofindia nic in/ls/debates/vol8p?a htm       H
658         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A           42. Be that as it may, there appears to have been some
      discordance in the views and perception of different persons
      on the exact role of the President in the process of appointment
      of judges. Is the Presi2ent expected to act on the advice of the
      Council of Ministers or in his/her personal capacity?
B
         43. One view, as expressed by Dr. Ambedkar was that
  the President would be guided by the Council of Ministers.
  The other view or perception was that with the insertion of
  clause (5)a in Article 62 of the Draft Constitution and Schedule
c 111-A the President was to act in his/her individual capacity and
  not be guided by the Council of Ministers since the executive
  was to be kept completely out of the appointment process. It
  is not clear which of the two views found favour with Mr. B.
  Packer Sahib and Mr. MahboobAli Baig Sahib- but both were
D clear that the President could be put under political or party
  pressure in the recommendation ofa person for appointment
  and that this should be avoided and the pressure could be
  negated by the requirement of the concurrence of the Chief
  Justice of India, an impartial person.
 E          44. But what is more significant is that Mr. B. Packer
      Sahib and Mr. Mahboob Ali Baig Sahib adverted only to a
      recommendation for the appointment of a judge by the
      President - hence the necessity of concurrence by the Chief
 F    Justice of India. They did not, quite obviously, advert to the
      recommendation for the appointment of a judge by the Chief
      Justice of India.
        45. It is in this background of divergence of perceptions
  that the speech of Dr. Ambedkar on 241h May, 1949 should be
G appreciated. Replying to the debate, Dr.Ambedkar stated:
             "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
H          . Judges of the Supreme Court to be appointed? Now
 SUPREME COURT ADVOCATES-ON-RECORD                            659
  ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

 grouping the different amendments which are related to A
 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 B
 to the confirmation of two-thirds vote by Parliament; and
 the third suggestion is that they should be appointed frr . ·
 consultation with the. Council of States.
·· With regard to this matter, I quite agree that the point c
   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 in other D
   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,
   officers of the Supreme Court as well as other officers of E
   the State shall be made [appointed] 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 F
   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 G
   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 H
660            SUPREME COURT REPORTS                          [2015] 13S.C.R.


A             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
 B            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.
 c            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
 D            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
 E            the Chief Justice which we are not prepared to vest in
              the President or the Government of the day. I, therefore,
              think that is also a dangerous proposition." 22
         46. Dr. Ambedkar was quite clear that there could be no
 F 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. Dr.
 G Ambedkar seems to have lost sight of the existence of the
   Instrument of Instructions (or it was 'given up' by him) since
   that document mentioned the advice of the Advisory Board
   and not the executive and also that that document enabled the
      22
           ht!p"/lpar!iamento!indja nic jo/ls/debateslvolBpZb htm
 H
     SUPREME COURT ADVOCATES-ON-RECORD                               661
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

President to act on his/her own, and not on the advice of the        A
executive.
       47. If this dichotomy between the role of the President
and the executive and the binding or non-binding effect of the
advice of the executive on the President is appreciated, the
                                                                     8
views of Dr. Ambedkar become very clear. 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
or. his/her own. As far as the concurrence of the Legislature is     c
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           D
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.'                                       E
       48. 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          F
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'.
      49. Dr. Ambedkar was of the view that neither the G
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
                                                                     H
662            SUPREME COURT REPORTS                          [2015] 13 S.C.R.


A     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 visualize a stalemate arising in this regard.
            50. A small diversion - apart from the reasons already
 8
      mentioned for keeping the executive out of the decision-taking
      process in the appointment of judges, it would be of interest to
      know that, on a different topic altogether, while replying to the
      debate 'on acceptance of office by members of the judiciary
c     after retirement' Dr. Ambedkar observed that the judiciary is
      very rarely engaged in deciding issues between citizens and
      the Government. He said:
               "The judiciary decides cases in which the Government
               has, if at all, the remotest interest, in fact no interest at
 D             all. The judiciary is engaged in deciding the issue
               between citizens and very rarely between citizens and
               the Government. Consequently the chances of influencing
               the conduct of a member of the judiciary by the
               Government are very remote, and my personal view,
 E             therefore, is that the provisions which are applied to the
               Federal Public Services.Commission have no place so
               far as the judiciary is concerned." 23
            51. Times have changed dramatically since then and far
 F    from disputes 'very rarely' arising between citizens and the
      Government, today the Government is unashamedly the
      biggest litigant in the country. It has been noticed in Supreme
      Court Advocates on Record Association v. Union of
      /ndia 24 that:
 G
               "No one can deny that the State in the present day has
               become the major litigant and the superior courts
               particularly the Supreme Court, have become centres
      23
           htH:rUparliamentofindia nic jn/lsldebates/vol8p7b htm
 H    24
           (1993) 4 sec 441 (Nine Judges Bench)
      SUPREME COURT ADVOCATES-ON-RECORD                                       663
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

       for turbulent controversies, some of which with a flavour              A
       of political repercussions and the Courts have to face
       tempest and storm because their vitality is a national
       imperative. In such circumstances, therefore, can the
       Government, namely, the major litigant be justified in
       enjoying absolute authority in nominating and appointing               B
       its arbitrators. The answer would be in the negative. If
       such a process is allowed to continue, the independence
     . of judiciary in the long run will sink without any trace." 25
      52. Given this fact situation, since there was this reason              c
in 1949 to insulate the judieiary and the appointment process
from the direct or indirect influence ofthe executive and political
or party pressures, there is a.II the more reason to do so today
ifthe independence of the judiciary is to be maintained.
       53. In England too the executive is the 'most frequent                 D
litigator' and the position seems to be no better than in our
country. In a lecture on Judicial Independence, Lord Phillips 26
had this to say:
      "In modern society the individual citizen is subject to E
      controls imposed by the executive in respect of almost
      every aspect of life. The authority to impose most of those
      controls comes, directly or indirectly, from the legislature.
      The citizen must be able to challenge the legitimacy of
      executive action before an independent judiciary. F
      Because it is the executive that exercises the power of
      the State and because it is the executive, in one form or
      another, that is the most frequent litigator in the courts, it
      is from executive pressure or influence that judges
      require particularly to be protected." 27                      G
25
   Paragraph 207 (Justice Pandian). A similar view was expressed by Justice
Kuldip Singh in paragraph 327.
26
   Former President of the Supreme Court of the United Kingdom and Lord
Chief Justice of England and Wales
27
   https:/(www.ucl ac uk/constitution-unit/eventsOudjcjal-jndependence-
events/lord-phillips-transcri pt.pdf                                          H
664         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A          Summation
            54. The discussion leading up to the Constituent
      Assembly Debates and relating to the appointment of judges
      clearly brings out that:
B         (1) The independence of the judiciary was unflinchingly
      accepted by all policy and decision makers;
           (2) The appointment of judges of the Supreme Court and
      the High Courts was to be through a consultative process
C     between the President and the Chief Justice of India, neither
      of whom had unfettered discretion in the matter;
           (3) 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
D     appointment process as evidenced by the Memorandum
      prepared in the Conference of Chief Justices by, inter alia,
      recommending persons for appointment as j\,ldges of the High
      Court. Resultantly, the appointment of judges to the High Courts
      was not always on merit and sometimes without the
 E    recommendation of the Chief Justice of the High Court;
           (4) A constitutional convention existed that the
      appointment of judges should be made in conformity with the
      views of the Chief Justice of India;
 F     (5) 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
G or party pressures was not outside the realm of imagination.
        (6) Historically, the Chief Justice of India was always
   consulted in the matter of appointment of judges, and
   conventionally his concurrence was always taken regardless
 H of whether a recommendation for appointment originated from
      SUPREME COURT ADVOCATES-ON-RECORD                                      665
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

the Chief Justice of the High Court or the political executive. It A
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.
      (7) It remained a grey area whether in the appointment                 B
of judges, the President was expected to act on his/her own or
on the advice of the political executive.
      Views of the Law Commission of India
       55. The issue of the appointment of judges of the
Supreme Court and the High Courts was first addressed, after C
Independence, in the 14th Report of the Law Commission of
India (for short the LCI), then in the 8Qth Report and finally in the
121st Report. (A reference was made in the 2141h Report and
the 23Qth Report but they are of no immediate consequence). D
The issue also came to be addressed in S.P. Gupta v. Union
of Jndia 28 and in Subhash Sharma v. Union of Jndia. 29 It
was also the subject matter of three Constitution amendment
Bills and two other pronouncements of this Court rendered by
larger Benches. This is mentioned only to highlight the E
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:                                         F
      "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." 30
                                                                             G
      {a) 141h Report- 26.9.1958
28
   1981 (Supp) SCC 87 (Seven Judges Bench)
"1991 supp (1) sec 574
30
   Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection
Systems, 10 WM & MARY BILL RTS J. 7, n.9 (2001) (quoting Philip Dubois).
                                                                             H
666              · SUPREME COURT REPORTS                           [2015] 13 S.C.R. .·



A                . Appointment of judges of the Supreme Court
          56. Within less than a decade of the promulgation of the
    Constitution, the process of appointment of judges of the
    Supreme Court and the High Courts came in for sharp criticism·
    from the LCI. Chapter 5 and Chapter 6 of the 14th Report of
8
    the LCI relating, inter alia, to the appointment of judges to the
    Supreme ~ourt and judges to the High Courts respectively
  . makes for some sad reading, more particularly since the
    Attorney-General for India was the Chair of the LCI. 31 It must
C be noted here that the LCI travelled through the length and
    breadth of the country for about one year and examined as
    many as 4 73 witnesses from a cross-section of society before
    giving its Report. It also adopted a novel procedure of co-opting
    two members from the States that were visjted so a:s to
o understand the local problems. The monumental and
    ~uthoritative work can onlybe admired.
                 57. The LCI observed that the Constitution endeavorecj
          to putjudges of the Supreme Court 'above executive control' ..
 E        It very specifically acknowledged the importance of .
          safeguarding the independence of the judiciary and obser,ved .
          that '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 responsibifity to be exercised with greafcare.' 32
 F·      .         ?8..
               Thereafter three central issue~ 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·
 G B~nch. (3) The best talent among.the judges of the High Courts
    did not find its way to the Supreme Court .


          31
      .        The Report is titled 'Reforms of the Judicial Administration'
          32 Chapter 5 paragraph 5

 H
      SUPREME COURT ADVOCATES-ON-RECORD                              667
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      59. The Report said:                                           A
      "It is widely felt that communal and regional considerations
      have prevailed in making the selection of the Judges.
      The idea seems to have gained ground that the
      component States of India should have, as it were,             B
      representation on the Court. Though we call ourselves a
      secular State, ideas of communal representation, which
      were viciously planted in our body politic by the British,
      have not entirely lost their influence. What perhaps is
      still more to be regretted is the general impression, that     c
      now and again executive influence exerted from the
      highest quarters has been responsible for some
      appointments to the Bench. It is undoubtedly true, that
      the best talent among the Judges of the High Courts has
      not always found its way to the Supreme Court. This has        D
      prevented the Court from being looked upon by t.he
      subordinate Courts and the public generally with that
      respect and indeed, reverence to which it by its status
      entitled."33
      60. On the basis of its findings, the LCI recommended,         E
inter alia, that 'communal and regional considerations shouh;l
play no part in the making of appointments to the Supreme
Court.' However, the LCI did not proffer any solution to the
vexed issue of making more satisfactory appointments to the          F
Supreme Court.
      Appointment of judges of the High Courts .
      61: 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               G
were pointed out as: (1) The selections have. been
unsatisfactory and induced by executive influence. (2) There

33 Chapter 5 p;;iragraph 6

                                                                     H
668         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     is no recognizable 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.
B          62. It was said that these inadequacies were well founded
      and there was acute public dissatisfaction with the
      appointments made:
           "We have visited all the High Court centres and on all
           hands we have heard bitter and reviling criticism about
c          the appointments made to High Court judiciary give in
           recent years. This criticism has been made by Supreme
           Court Judges, High Court Judges, Reti~ed Judges, Public
           Prosecutors numerous representatives, associations of
           the Bar, principals and professors of Law Colleges and
 D         very responsible members of the legal profession all over
           the country. One of the State Governments had to admit
           that some of the selections did not seem to be good and
           that careful scrutiny was necessary. The almost universal
           chorus of comment is that the selections are
 E         unsatisfactory and that they have been induced by
           executive influence. It has been said that these selections
           appears to have proceeded on no recognizable principle
           and seem to have been made out of consideration of
           political expediency or regional or communal sentiments.
 F
           Some of the members of the Bar appointed to the Bench
           did not occupy the front rank in the profession either in
           the matter of legal equipment or of the volume of their
           practice at the bar. A number of more capcrble and
 G         deserving persons appear to have been ignored for
           reasons that can stem only from political or communal or
           similar grounds. Equally forceful or even more
           unfavourable comments have been made in respect of
           persons selected form the services. We are convinced
 H
        SUPREME COURT ADVOCATES-ON-RECORD                             669
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        that the views expressed to us show a well founded and        A
        acute public dissatisfaction at these appointments." 34
     63. On the procedure followed for the appointment of a
judge of the High Court and the administrative working of Article
217 of the Constitution, the LCI had this to say:
                                                                   B
        "The Chief Justice forwards his recommendation to the
        Chief Minister who in tum forwards this recommendation
        in consultation with the Governor to the Minister of Home
        Affairs in the Central Government. If, however, the Chief
        Minister does not agree with the recommendation of the C
        Chief Justice, he makes his own recommendation. It
        appears that in such a case, the Chief Justice is given
        an opportunity for making his comments on the
        recommendation made by the Chief Minister. This
        practice is not, however, invariably followed so that, in D
        some cases it happens that the recommendation made
        by the Chief Minister does not come to the knowledge of
        the Chief Justice. The rival recommendations are then
        forwarded to the Minister of Home Affairs who, in
         consultation with the Chief Justice of India, advises the E
         President as to the selection to be made. The person
         recommended by the Chief Minister may be, and
         occasionally is, selected in preference to the person
         recommended by the. Chief Justice."35
                                                                      F
       64. The LCI recorded that no less a personage than the
Chief Justice of India had this to say about executive
interference in the appointment of judges to the High Courts
(for reasons other than merit):
           'The Chief Minister now has a hand direct or indirect in   G
         the matter of the appointment to the High Court Bench.
         The inevitable result has been that the High Court
34
     Chapter 6 paragraph 8
35
     Chapter 6 paragraph 11
                                                                      H
670            SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A             appointments are not always made on merit but on
              extraneous considerations of community, caste, political
              affiliations, and likes and dislikes have a free play. This
              necessarily encourages canvassing which, I am sorry to ·
              say, has become the order of the day. The Chief Minister
B             holding a political office dependent on the goodwill of
              his party followers may well be induced to listen and give
              way to canvassing. The Chief Justice on the other hand
              does not hold his office on sufferance of any party and
              he knows the advocates and their merits and demerits
c             and a recommendation by the Chief Justice is therefore
              more likely to be on merit alone that the one made by the
              Chief Minister who may know nothing about the
              comparative legal acumen of the advocates." 36

D           65. To conclude this aspect, the Report observes that
      extraneous factors have influenced the appointments and that
      there seems to be canvassing for appointment as a judge of
      the High Court:
              'This indeed is a dismal picture and would seem to show
 E            that the atmosphere of communalism, regionalism and
              political patronage, have in a considerable measure
              influenced appointments to the High Court Judiciary.
              Apart from this very disquieting feature, the prevalence
 F            of canvassing for judgeships is also a distressing
              development. Formerly, a member of the Bar was invited
              to accept a judgeship and he considered it a great
              privilege and honour. Within a few years of Independence,
              however, the judgeship of a High Court seems to have
G             become a post to be worked and canvassed for." 37
           66. Based on its findings, the LCI reached the following
      conclusions, amongst others:
      36
           Chapter 6 paragraph 14
      37
           Chapter 6 paragraph 14 and 15
 H
      SUPREME COURT ADVOCATES-ON-RECORD                              671
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      "(8) Many unsatisfactory appointments have been made A
      to the High Courts on political regional and communal or
      other grounds with the result that the fittest men have not
      been appointed. This has resulted in a diminution in the
      out-turn of work of the Judges.
                                                                   B
      (9) These unsatisfactory appointments have been made
      notwithstanding the fact that in the vast majority of cases,
      appointments have been concurred in by the Chief
      Justice of the High Court and the Chief Justice of India.
       (10) Consultation with the State executive is necessary       C
       before appointments are made to the High Court.
       (11) While it should be open to the State executive to
       express its own opinion on a name proposed by the Chief
       Justice, it should not be open to it to propose a nominee D
       of its own and forward it to the Centre.
       (12) The role of the State executive should be confined
       to making its remarks about the nominee proposed by
       the Chief Justice and if necessary asking the Chief
       Justice to make a fresh recommendation.                       E
       (14)     Article 217 of the Constitution should be
       amended to provide that a Judge of a High Court should
       be appointed only on the recommendation of the Chief
       Justice of that State and with the concurrence of the Chief   F
       Justice of lndia."38
      67. Unlike in the appointment of judges to the Supreme
Court, the LCI suggested, for the High Courts, thatArticle 217
of the Constitution ought to be amended to incorporate the
concurrence of the Chief Justice of India to the appointment.        G
This recommendation was made so that, .in future, no
appointment could be made without the concurrence'Of the
Chief Justice of India.
'·" Chapter 6 paragraph 82
                                                                     H
672            SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A        68. The Report was considered in Parliament on 23'd,
   24th and 25th November, 1959 and the Government of the day
   gave its point of view, as did several Hon'ble Members. But
   what is more important is that in the debate on 24th November,
   1959 it was stated by Shri Govind Ballabh Pant, Hon'ble
 B Minister of Home Affairs 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
 C the support of all persons who were connected with this
   matter.' 39
              69. A little later it was stated:
              "But as I said, these 196 appointments were made in
 D            accordance with the unanimous advice of the Chief
              Justice of the High Court, the Chief Minister of the State,
              the Governor and the Chief Justice of India. There were
              fifteen cases in which there was a difference of opinion
              between the Chief Justice and the Chief Minister or the
 E            Governor. So, these cases also were referred to the Chief
              Justice of India. In some of these he accepted the
              proposal made by the Chief Minister and in others he
              accepted the advice or the suggestion received from the
              Chief Justice of the High Court. But we on our part had
 F
              his advice along with that of the Chief Justice of the High
              Court concerned and of the Chief Minister concerned.
              So, these cases do not even come to five per cent. But
              even there, so far as we are concerned, out of these 211
 G            cases, as I said, except in one case where there was a
              difference of opinion between the Chief Minister and the
              Chief Justice, we had accepted in 210 cases the advice
              of the Chief Justice of lndia."40
      39
           Page 287
 H    40
           Page 288-289
      SUPREME COURT ADVOCATES-ON-RECORD                                   673
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.)

      70. On the next day, that is, 251h November, 1959 Shri A
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.           B
      71. The discussion ended with an Hon'ble Member
suggesting that the recommendations of the LCI be taken note
of and implemented as quickly as possible.
      72. What is of importance in this Report (apart from C
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. D
But in all cases, except one, the concurrence of the Chief
Justice of India was taken.
      (b) 801h Report-10.8.1979
      Appointment of judges of the Supreme Court                          E
    73. The 8Q 1h Report of the LCI was submitted on 10th
August, 1979 and it was mainly prepared by Justice H.R.
Khanna when he was its Chair. 41
      74. It was observed that an independent judiciary is F
absolutely indispensible for ensuring the Rule of Law. Generally
in regard to appointment of judges, it was observed that wrong
appointments have affected the image of the Courts and have
undermined the confidence of the people in them. Further, it
was observed that an appointment not made on merit but G
because of favouritism or other ulterior considerations can
hardly command real and spontaneous respect of the Bar and
41
  Although Justice H.R. Khanna did not sign the Report. it had his full
concurrence
                                                                          H
674          SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A     that the effect of an improper appointment is felt not only for
      the time being but its repercussions are felt long thereafter. 42
             75. In this background, and in relation to the appointment
      of judges of the Supreme Court, it was concluded that (1) Only
      persons who enjoy the highest reputation for independence,
8
      dispassionate approach and detachment should be elevated
      to the Supreme Court. (2) No one should be appointed a judge
      of the Supreme Court unless he has severed affiliations with
      political parties for at least 7 (seven) years. (3)Aperson should
c     be appointed as a judge if he has distinguished himself for his
      independence, dispassionate approach and freedom from
      political prejudice, bias or leaning. 43
        76. Significantly, the LCI recommended adopting a
  consultative process in that the Chief Justice of India should
D consult his three senior-most colleagues while making a
  recommendation for an appointment. He should reproduce
  their views while making the recommendation. This would
  minimize the chances of any possible arbitrariness or
  favouritism. 44
 E
            77. These recommendations were incorporated by the
      LCI in its summary of recommendations. I am concerned with
      the following recommendation:
            "(32) The Chief Justice of India, while recommending the
 F          name of a person for appointment as a Judge of the
            Supreme Court should consult his three senior most
            colleagues and should in the communication
            incorporating his recommendation specify the result of
            such consultation and reproduce the views of each of
G
            his colleagues so consulted regarding his
            recommendation. The role of these colleagues would
      42
         Paragraphs 2.2 to 2.5 are relevant in this context
      43
         Chapter 7
      44
         This later on became what is commonly called the 'collegium system' of
 H    appointment of judges
        SUPREME COURT ADVOCATES-ON-RECORD                         675
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        be confined to commenting on the recommendation of        A
        the Chief Justice. Such consultation would minimize
        possible arbitrariness or favoritism"45
        Appointment of judges of the High Court
     78. In relation to the appointment of judges of the High     B
Court, it was generally observed by the LCI in Chapter 6 of the
Report that the prevailing impression was that their
appointment 'has not been always made on merit and that this
has affected the image of the High Courts.' 46
       79. The LCI suggested a consultation process for the
                                                                  c
appointment of a judge of the High Court. It was suggested
that the Chief Justice should, when making a recommendation,
consult his two senior-most colleagues and indicate their views
in writing. This would have a 'healthy effect' and considerably D
minimize the chances of possible favoritism. It was opined that
any recommendation of the Chief Justice which is concurred
with by the two senior-most judges should normally be
accepted. The LCI was, in principle, against the selection of
persons as judges of the High Court on grounds or E
considerations of religion, caste or region.
        80. With regard to the recommendations originating from
the political executive it was said:
        "Another question which has engaged attention is as to F
        whether the role of the Chief Minister should be that of
        commenting on the name recommended by the Chief
        Justice, or whether, in case he disagrees with the
        recommendation of the Chief Justice, he (the Chief
        Minister) can also suggest another name. This question G
        was agit;:ited in the past, and after due consideration it
        was decided that the Chief Minister would be entitled, in
        case he disagrees with the recommendation of the Chief
45
     Chapter 9
46
     Paragraph 5.9                                                H
676            SUPREME COURT REPORTS                  [2015] 13S.C.R.


A             Justice to suggest another name. The Chief Minister in
              such an event has to invite the comments of the Chief
              Justice and send the matter thereafter along with the
              comments of the Chief Justice, to the Union Minister of
              Law and Justice. In view of the fact that a decision
 B            referred to above has already been taken after due
              consideration, we need not say anything further in the
              matter."47
           81. Keeping all these factors in mind, some of the
c     recommendations made by the LCI were as follows:
              "(3) When making a recommendation for appointment
              of a judge of a High Court, the Chief Justice should
              consult his two seniormost colleagues. The Chief Justice,
              in his letter recommending the appointment, should state
 D            the fact of such consultation and indicate the views of his
              two colleagues so consulted.
              (4) Any recommendation of the Chief Justice which
              carries the concurrence of his two seniormost colleagues
 E            should normally be accepted.
              (7) The Commission is, in principle, against selection to
              the High Court Bench on ground of religion, caste or
              region. Merit should be the only consideration. Even
              when matters of State policy make it necessary to give
 F            representation to persons belonging to some religion,
              caste or region, every effort should be made to select
              the best person. The number of such appointments
              should be as few as possible.

 G            (12) On the question whether the role of the Chief Minister
              should be that only of commenting on the name
              recommended by the Chief Justice, or whether the Chief
              Minister can also suggest another name, a decision has
      47
           Paragraph 6.14
 H
      SUPREME COURT ADVOCATES-ON-RECORD                             677
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      already been taken and nothing further need be said in        A
      the matter."48
     82. Generally speaking, the LCI was of the view that the
constitutional scheme of appointment of judges was basically
sound, had worked satisfactorily and did not call for any radical
                                                                    8
change, though some aspects needed improvement. The
recommendations mentioned above were made in that light.
      (c) 121•1 Report- 31.7.1981
      A new forum for judicial appointments
                                                                    c
       83. It is important to note that this Report was prepared
after the decision of this Court in S.P. Gupta. In its 121 st Report,
the LCI noted that over the last four decades, mounting
dissatisfaction has been voiced over the method and strategy
of selection and the selectees to man the superior judiciary. 49 D
Further, in paragraph 7 .1 of its Report, the LCI noted that
'Everyone is agreed that the present scheme or model or
mechanism for recruitment to superior judiciary has failed to
deliver the goods.' This was with reference to the executive
primacy theory in the appointment of judges propounded in E
S.P. Gupta. In view of this the LCI recommended a new broad-·
based model called a National Judicial Service Commission. 50
      84. The LCI observed that two models were available
for the appointment of judges. The first was the existing model     F
which conferred overriding powers on the executive in selecting
and appointing judges .. But, Article 50 of the Constitution
mandates a separation between the Executive and the
Judiciary. The second model involved diluting (not excluding)
the authority of the executive by associating more people in        G
the decision making process and setting up a body in which
the judiciary has a pre-eminent position. This participatory
48
   Chapter 9
49
   Chapter 1 paragraph 1.4
50
   Paragraph 7 .8
                                                                    H
678         SUPREME COURT REPORT:                   [2015) 13 S.C.R.


A     model was called by the LCI as the National Judicial Service
      Commission.
            85. The Commission was envisaged as a multi-member
      body headed by the Chief Justice of India whose 'pre-eminent
B     position should not be diluted at all', his predecessor in office,
      three .senior-most judges of the Supreme Court, three Chief
      Justices of the High Courts in order of their seniority, the Law
      Minister, the Attorney-General for India and an outstanding law
      academic. Thus, an 11 (eleven) member body was proposed
c     by the LCI for the selection and appointment of judges of the
      Supreme Court and the High Courts. To give effect to the
      recommendation, it was proposed to suitably amend the
      Constitution. 51
            86. The recommendation of the LCI was partially
D     accepted by the government of the day and the Constitution
      (Sixty-seventh Amendment) Bill, 1990 was introduced in
      Parliament. This will be adverted to a little later.
            Arrears Committee -1989-90
 E        87. Between 11th and 13th December, 1987 a Conference
  ·of Chief Justices was held with the Chief Justice of India in the
   Chair. The Conference discussed, inter alia, issues relating
   to arrears of cases in the High Courts and the District Courts
   in the country. Grave concern was expressed over the problem
F of arrears and it was pointed out by most Chief Justices that
   delay in the appointment of judges is responsible for the
   arrears. Even after recommendations are sent, the Chief
   Justice has to wait for a long time for the Government to make
G the appointment with the result that for a number of years Courts
   have been working with about 50% of their strength.
           88. After a detailed discussion of the matter, it was
      decided to appoint a committee of Chief Justices to thoroughly
      51 Paragraph 7.10 and 7.15

 H
      SUPREME COURT ADVOCATES-ON-RECORD                             679
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

examine the issues raised and a Resolution was passed A
appointing such a committee. The composition of the
committee called the Arrears Committee changed over a
period of time but finally it consisted of Chief Justice V.S.
Malimath (Kerala High Court), Chief Justice P.O. Desai
(Calcutta High Court) and Chief Justice Dr. A.S. Anand (Madras B
High Court). The Arrears Committee gave its Report in two
volumes to the Conference of Chief Justices held between 31st
August and 2nd September, 1990 which accepted the Reports,
subject to a few modifications.
                                                                    c
       89. Chapter 5 of Volume 2 of the Report deals with the
unsatisfactory appointment of judges to the High Courts. It
was observed by the Arrears Committee that unsatisfactory
appointments have contributed in a large measure to the
accumulation of arrears in the High Courts. It was observed         o
that merit and merit alone, coupled with a reputation for
integrity, suitability and capability has to be the criterion for
selection of judges and judges not selected on that basis or
who are appointed on considerations other than merit, may
not be able to act impartially and fairly. It was noted that for    E
this reason the selection of judges should be made with utmost
care and concern. 52
   . 90. The Arrears Committee also considered the Report
given in the recent past by the Satish Chandra Committee            F
which was of the confirmed view that some judges have not
been directly recommended by the Chief Justice of the High
Court but have been foisted on the High Court and that if this
trend continued, it would be very difficult for the Chief Justice
to effectively transact the judicial business of the Court. 53      G
      91. Thereafter, the selection of a judge of the High Court
for reasons other than merit was discussed and it was
observed as follows:
52 Paragraph 5.1
53 Paragraph 5.4
                                                                    H
680   SUPREME COURT REPORTS                   [2015] 13 S.C.R.



A     "The selection of a person, on considerations other than
      merit, has far reaching consequences and does more
      damage than what appc.t"ently meets the eye. Such an
      appointee does not even receive from the members of
      the Bar the measure of respect and co-operation which
 B    is imperative for proper administration of justice. He may
      not have confidence even in himself and a command over
      the proceedings of the Court. All this would be at the
      cost of proper administration of justice. The effect would
      be felt not only on the quality but also on the quantity of
c     the work turned out.
      According to Satish Chandra Committee, the sea
      change which has gradually come into the political
      process is directly responsible for the grave deterioration
 D    and the fall in the high standards of appointments to the
      High Court Bench previously maintained. Barring
      exceptions, the Chief Ministers to-day have come to think
      that even filling up vacancies on the High Court Bench is
      a matter of patronage, political or otherwise. It noticed
 E    that formerly members of the Bar were invited to accept
      judge-ship. Now, the judge-ship of the High Court seems
      to have become a post to be canvassed for. It was found
      that as long as the State executive has an effective hand
      in such appointments, this· disquieting feature would
 F    continue and that it could be remedied only by providing
      the safeguard of the executive having no final say in the
      matter of app9intment and that the last word in the matter
      should be of the Chief Justice of the High Court
      concerned and the Chief Justice of India. The
 G    Committee, therefore, suggested amendment of the
      Constitution, as a guarantee for ensuring the quality, that
      an appointment to the High Court must have the
      concurrence of the Chief Justice of India and should not
       be made merely in consultation with him. An amendment
 H
        SUPREME COURT ADVOCATES-ON-RECORD                             681
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

         was suggested to Article 217(1) of the Constitution on       A
         those lines."54
      92. It was concluded that for the judicial system to function
effectively and forthe people to have faith and confidence in it,
the appointment of judges should be made only on
                                                                      8
considerations of merit, suitability, integrity and capability and
not on political expediency or regional or communal
sentiments. It was observed in this regard as follows:
        "This Committee is of the firm view that to ensure that
        the judicial system functions effectively and to maintain C
        both the quality and quantity of judicial work, as well as
        the faith and confidence of the public, the appointments
        be made only on considerations of merit, suitability,
        integrity and capability and not of political expediency or
        regional or communal sentiments. The apprehension that D
        the recommendation made by him may not meet with
        the approval of the executive, may sometimes !nduce a
        Chief Justice to propose the name of a person who does
        not measure upto the requisite standard, which is rather
        unfortunate. It is fundamental for the preservation of the E
        independence of the judiciary that it be free from threats
        and pressures from any quarter. It is the duty of the State
        to ensure that the judiciary occupies, and is seen to
        occupy, such position in the polity that it can effectively F
        perform the functions entrusted to it by the Constitution
        and that can be done only if the process of appointment
        is left unpolluted." 55
       93. Commenting on the existing system of appointment
of judges, the Arrears Committee reviewed the system in               G
Chapter 6 of the Report. Amongst other things it was observed
that the system of appointment of judges had been prevailing
for four decades and it was functioning satisfactorily so long
54
     Paragraphs 5.5 and 5.6
55 Paragraph 5.8
                                                                      H
682            SUPREME·COURT REPORTS                  [2015] 13 S.C.R.


A     as well-established conventions were honoured and followed
      and that it is not the system that has failed but those operating
      it had failed it by allowing it to be perverted. It was observed
      as follows:
              'The present system of appointment of Judges to the
B
              High Courts has been in vogue for about four decades. It
              functioned satisfactorily as long as the well-established
              conventions were honoured and followed. The gradual,
              but systematic violation and virtual annihilation of the
c             conventions over the past two decades or so is
              essentially responsible for the present unfortunate
              situation. Has the system, therefore, failed or have the
              co~cerned failed the system is an all important question.
              It is apparent that the system has not failed, but all those
D             concerned with operating the system have failed it by
              allowing it to be perverted." 56
         94. While dealing with the Memorandum of Procedure
  in existe'nce at that time for the appointment of judges, the
  Arrears Committee was rather scathing in its observations to
E the effect that there had been cases where there was
  agreement between the Chief Justice of India, the Chief Justice
  of the concerned High Court.and the Governor of the State but
  the Union Law Minister either choose not to make the
F appointment or inordinately delayed the appointment. It was
  observed that sometimes the Union Law Minister adopted a
  pick and choose policy to appoint judges or disturb the order
  in which the recommendations were made. There had been
  political interference in this regard and undesirable influence
G of extra-constitutional authorities in the appointment of judges.
  The appointment process therefore was undermined leaving
  the executive to appoint judges not on excellence but on ·
  influence. It was observed as follows:
      56
           Paragraph 6.11
-H
        SUPREME COURT ADVOCATES-ON-RECORD                                   683
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR. J.]

         "There are cases that even where the Chief Justice of              A
         India on being consulted, agrees with the
         recommendation made by the Chief Justice of the
         concerned High Court which is also concurred to by the
         Governor of the State and forwards his recommendation
         to the Union Law Minister, appointments are either not             B
         made or made after inordinate delay. Sometimes, the
         Union Law Minister even adopts the "pick and choose"
         policy to appoint Judges out of the list of selectees
         recommended by the Chief Justice of the High Court duly
         concurred in by the Chief Justice of India or makes                C
         appointments by disturbing the order in which the
         recommendations have been made. The malady has
         become more acute in view of the political interference
         and undesirable influence of "extra constitutional
                                                                            D
         authorities" in the appointment of judges. Thus, the
       · authority of the Chief Justice of India and the role of the
         Chief Justice of the High Courts in the matter of
         appointment of superior judiciary have, to a great extent,
         been undermined, leaving to the executive to appoint               E
         Judges not on "excellence" but on "influence". Thus, merit,
         ability and suitability which undoubtedly the Chief Justice
         of the High Court is the most proper person to judge, are
         sacrificed at the altar of politital or other expediency. This
         attitude is essentially responsible for the deterioration          F
         and the fall in the high standards of appointments to the
         High Court Benches. It is unfortunate, but absolutely true,
         that the Chief Ministers have come to think and the Union
         Law Minister has come to believe that the vacancy in the
         High Court Bench is a matter of political patronage which          G
         they are entitled to distribute or dole out to their favourites.
         This veto power with the executive has played havoc in
         the matter of appointment of Judges."57
57
     Paragraph 6.9
                                                                            H
684         SUPREME COURT REPORTS                        [2015] 13 S.C.R.

A          95. In its recommendations, the Arrears Committee
      recommended dilution of the role of the executive and
      measures to avoid the existing system of appointment from
      being perverted. It was recommended as follows:
            "The role of the executive in the matter of appointment of
 B
            judges should be diluted and that the cause for most of
            the ills in the functioning of the present system could be
            traced back to the veto power of the executive. This,
             indeed, is capable of being remedied by making certain
 c           amendments to Article 217 providing for concurrence of
            the Chief Justice of India, instead of consultation with
             him, in the matter of appointment of Judges of the High
             Courts."58
            "The Committee is of the view that the present
 D          constitutional scheme which was framed by the founding
            fathers after great deliberation and much reflection is
            intrinsically sound and that it worked in the true spirit it
            does not require any radical change. In order to guard
            against and obviate the perversion revealed in tile
 E          operation of the scheme, the Committee has made
            suitable recommendations. The Committee believes that
            if these recommendations are given effect to, there would
            not be any need to substitute it by a different
            mechanism."59
 F
         96. In view of the scathing indictment of the system of
   appointment of judges where the executive had the 'ultimate
   power' 60 which was being abused and perverted to take away
   the independence of the judiciary, contrary to the intention of
 G the Constituent Assembly, there was no option but to have a
   fresh look into the entire issue of appointment of judges and
       ss Paragraph 124
       ~· Paragraph 130
        0
       • This expression was used by Justice Bhagwati and by Justice D.A. Desai
 H    in paragraph 719 of S.P. Gupta v. Union of India.
     SUPREME .COURT ADVOCATES-ON-RECORD                               685
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

that eventually led to the issue being referred in the early 1990's   A
to a Bench of 9 (nine) judges of this Court. Quite clearly, the
executive had made a mess of the appointment of judges,
taken steps to subvert the independence of the judiciary, gone
against the grain of the views of the Constituent Assembly and
acted in a manner that a responsible executive ought not to.          B
      97. Post Independence till the early 1990s, the judiciary
saw the slow but sure interference of the executive in the
appointment of judges. This was in the form of the executive
recommending persons to the Chief Justice of the High Court           c
for appointment as a judge of the High Court. There were
occasions when the executive completely by-passed the Chief
Justice of the High Court and directly recommended persons
to the Union Government for appointment as judges. The third
stratagem adopted by the executive was to withhold                    D
recommendations made by the Chief Justice and instead
forward its own recommendation to the Union Government.
The fourth method was to reopen approved recommendations
on some pretext or the other. The fifth method was to delay
processing a recommendation made by the Chief Justice.                E
       98. Tragically, almost all the appointments made during
this period 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              F
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 14 1h Report of the LCI was generally critical of the
appointments made to the High Courts and in this regard               G
reliance was placed by the LCI on information collected from
various sources including judges of the Supreme Court. It is
true that the 801h Report of the LCI found nothing seriously wrong
with the system of appointment of judges, but it still needed a
                                                                      H
686               SUPREME COURT REPORTS                          [2015] 13 S.C.R.


A     change. The Arrears Committee, however, was derisive of the
      existing system of appointment of judges and made some
      positive recommendations within the existing system, while
      the 121 st Report of the LCI suggested wholesale changes.
 B       99. This discussion in the historical perspective 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
 C independent only by securing the salary, allowances, conditions
   of service and pension ofsuch judges. The meat lies in the
   caliber of the judges and not their perks.
         100. In his concluding address to the Constituent
   Assembly on 26th November, 1949 Dr. Rajendra Prasad
 D referred to the independence of the judiciary and had this to
   say:
                 "We have provided in the Constitution for a judiciary which
                 will be independent. It is difficult to suggest anything
 E               more to make the Supreme Court and the High Courts
                 independent of the influence of the executive. There is
                 an attempt made in the Constitution to make even the
                 lower judiciary independent of any outside or extraneous
                 influence. One of our articles makes it easy for the State
 F               Governments to introduce separation of executive from
                 judicial functions and placing the magistracy which deals
                 with criminal cases on similar footing as civil courts. I
                 can only express the hope that this long overdue reform
                 will soon be introduced in the States."61
 G
            101. Providing for an independent judiciary is not enough
      - access to quality justice achieved through the appointment
      of independent judges is equally important It has been said of
      6
          '   h!!p-/fparliameotofindja ojc jol!s/debates/yo!11pl2 htm
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                      . 687
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

the judges during apartheid in South Africa:                                  A
      "Now during apartheid judges had the formal guarantees
      of independence - life tenure, salary, administrative
      autonomy - that judges in the United States of America,
      Canada, the United Kingdom, New Zealand or Australia                    B
      had. It is in seeing why it was the case that apartheid-era
      judges for the most part lacked independence even
      though they had its formal trappings that we see that
      judicial independence is also a kind of dependence; it
      depends on something positive - the judicial pursuit of                 c
      the justice of the law. One has to ask not only what judges
      have to be shielded from in order to be independent, but
      what we want them to be independent for. "62
      102. This review indicates that one of the important
features of the Rule of Law and the independence of the                       D
judiciary is the appointment process. It is, therefore, necessary
to objectively appreciate the evolution of the appointment
process post Independence and how the Judiciary understood
it.
                                                                              E
      Judicial pronouncements
      103. The question of the appointment of judges (mainly
of the High Courts) came up for consideration in this Court on
three occasions. The decision rendered in each of these cases
is not only of considerable importance but also indicates the F
complexity in the appointment of judges and the struggle by
the Bar to maintain the independence of the judiciary from
executive interference and encroachment. These three cases
are referred to as the First Judges case, 63 the Second G
Judges case64 and the Third Judges case. 65 There have
62 Judicial Independence, Transitional Justice and the
                                                     Rule of Law by David
Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at 345-346
63 S.P. Gupta v. Union of India, 198f Supp SCC 87 (Seven Judges Bench)
64
   Supreme Court Advocates-on-Record Association v. Union of India, (1993)
4 SCC 441 (Nine Judges Bench)
65 Special Reference No. 1of1998, (1998) 7 SCC 739 (Nine Judges Bench)        H
688         SUPREME COURT REPORTS                    [2015] 13 S.C.R.



A     been other significant pronouncements on the subject and they
      will be considered at the appropriate stage.
           First judges case - 30.12.1981
            104. The First Judges case is important for several
 B    reasons, but I am concerned with a few of them. These are: (1)
      The independence of the judiciary was held to be a part of the
      basic feature of the Constitution. 66 This was the first judgment
      to so hold.
          (2) The appointment of a judge is serious business and
 C is recognized as a very vital component of the independence
   of the judiciary. 'What is necessary is to have Judges who are
   prepared to fashion new tools, forge new methods, innovate
   new strategies and evolve a new jurisprudence, who are judicial
   statesmen with a social vision and a creative faculty and who
 0
   have, above all, a deep sense of commitment to the Constitution
   with an activist approach and obligation for accountability, not
   to any party in power nor to the opposition nor to the classes
   which are vociferous but to the half-hungry millions of India who
 E are continually denied their basic human rights. We need
   Judges who are alive to the socio-economic realities of Indian
   life, who are a·nxious to wipe every tear from every eye, who
   have faith in the constitutional values and who are ready to
   use law as an instrument for achieving the constitutional
 F objectives. This has to be the broad blueprint of the appointment
   project for the higher echelons of judicial service. It is only if
   appointments of Judges are made with these considerations
   weighing predominantly with the appointing authority that we
   can have a truly independent judiciary committed only to the
 G Constitution and to the people of lndia.' 67 Justice
   Venkataramiah, however, was of the view that the
   independence of the judiciary is relatable only to post-
      66 Paragraphs 27, 320 and 634. This view has been upheld in several
      decisions thereafter.
 H    67
         Paragraph 27
     SUPREME COURT ADVOCATES-ON-RECORD                              689
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

appointment and that 'It is difficult to hold that merely because   A
the power of appointment is with the executive, the
independence of the judiciary would become impaired. The
true principle is that after such appointment the executive
should have no scope to interfere with the work of a Judge.' 68
                                                                    B
      (3) In the appointment of a judge of the Supreme Court
or the High Court, the word 'consultation' occurring in Article
124(2) and in Article 217(1) of the Constitution does not mean
'concurrence'. 69 However, for the purposes of consultation, each
constitutional functionary must have full and identical facts       c
relating to the appointment of a judge and the consultation
should be based on this identical material. 70
      (4) In the event of a disagreement between the
constitutional functionaries required to be consulted in the
appointment of a judge, the Union Government would decide           D
whose opinion should be accepted and whether an
appointment should be made or not. In such an event, the
opinion of the Chief Justice of India has no primacy. 71 The
'ultimate power' of appointment of judges to the superior Courts
rests with the Union Government.72 (This is completely contrary     E
to the view of the Constituent Assembly and Dr. Ambedkar).
      (5) The extant system of appointment of judges is not an
ideal system of appointment. The idea of a consultative panel
(called a collegium or Judicial Commission) was floated as a        F
replacement. This body was to consist of persons expected
to have knowledge of persons who might be fit for appointment
on the Bench and possessed of qualities required for such an
appointment. Countries like Australia and New Zealand 'have
veered round to the view that there should be a Judicial            G
68
   Paragraph 1033
69
   Paragraph 30 and paragraph 890
70
   Paragraphs 30, 632 and 848
71
   Paragraph 30
72
   Paragraph 30
                                                                    H
690            SUPREME COURT REPORTS                   . [2015] 13 S.C.R.


A     Commission for appointment of the higher judiciary.' 73
      Incidentally, we were informed during, the course of hearing
      that even about 35 years after the decision in the First Judges
      case neither Australia nor New Zealand have established a
      Judicial Commission as yet.
 B
             105. On the meaning of 'consultation' for the purposes
      of Article 124(2) and Article 217(1) of the Constitution, Justice
      Bhagwati who spoke for the majority relied upon Union of
      India v. Sankalchand Himmatlal Sheth 74 and R. Pushpam
c     v. State of Madras75 to hold that:
              "Each of the constitutional functionaries required to be
              consulted under these two articles must have for his
              consideration full and identical facts bearing upon
              appointment or non-appointment of the person
 D            concerned as a Judge and the opinion of each of them
              taken on identical material must be considered by the
              Central Government before it takes a decision whether
              or not to· appoint the person concerned as a Judge." 76

 E        106. The majority view in the First Judges case was
   overruled in the Second Judges case and it was held that
   'consultation' in Article 217 and Article 124 of the Constitution
   meant that 'primacy' in the appointment of judges must rest
   with the Chief Justice of India. 77 The evolution of the collegium
 F system and a Judicial Commission will be discussed a little
   later, although it must be noted that the seeds thereof were
   sown (apart from the Reports of the LCI) in the First Judges
   case.
               107. I do not think it necessary to further discuss the First
 G
      73 Paragraph 30 and 31
      74
           (1977) 4 SCC 1993 (Five Judges Bench)
      7 s AIR 1953 Mad 392




                                                                                 -
      76
        Paragraph 30
      77
        I entirely agree with Justice Chelameswar when he says that the Second
      Judges case did not hold that consultation means concurrence.
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                 691
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.)

Judges case since it has been elaborately considered by A
Justice Khehar.
     Subhash Sharma's case
     108. In a writ petition filed in this Court praying for filling
up the vacancies of judges in the Supreme Court and several B
High Courts of the country, a three judge Bench was of the
view that the First Judges case required reconsideration. 78 It
was observed that the decision of the majority not only rejects
the primacy of the Chief Justice of India but also whittles down
the significance of 'consultation'.                              C
   109. It was noted that the Constitution (Sixty-seventh
Amendment) Bill, 1990 was pending consideration in
Parliament and that the Statemel'.lt of Objects and Reasons
for the Amendment Act acknowledged that there was criticism            D
of the existing system of appointment of judges (where the
executive had the primacy) and that this needed change, hence
the need for an AmendmentAct. 79
      110. On the issue of executive interference in the
appointment of judges, the Bench found that interference went          E
to the extent of impermissibly re-opening the appointment
process even though a recommendation for the appointment
of a judge had been accepted by the Chief Justice of India. It
was observed:
                                                               F
      "From the affidavits filed by the Union of India and the
      statements made by learned Attorney General on the
      different occasions when the matter was heard we found
      that the Union Government had .adopted the policy of
      reopening recommendations even though the same had G
      been cleared by the Chief Justice of India on the basis
      that there had in the meantime been a change in the
      personnel of the Chief Justice of the High Court or the
78 Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574

" Paragraph 27
                                                                       H
692               SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A                Chief Minister of the State. The selection of a person as
                 a Judge has nothing personal either to the Chief Justice
                 of the High Court or the Chief Minister of the State. The
                 High Court is an institution of national importance wherein
                 the person appointed as a Judge functions in an
B                impersonal manner. The process of selection is intended
                 to be totally honest and upright with a view to finding out
                 the most suitable person for the vacancy. If in a given
                 case the Chief Justice of the High C.ourt has
                 recommended and the name has been considered by
c                the Chief Minister and duly processed through the
                 Governor so as to reach the hands of the Chief Justice
                 of India through the Ministry of Justice and the Chief
                 Justice of India as the highest judicial authority in the
                 country, on due application of his mind, has given finality
D
                 to the process at his level, there cannot ordinarily be any
                 justification for reopening the matter merely because
                 there has been a change in the personnel of the Chief
                 Justice or the Chief Minister of the State concerned." 80
 E           111. Apart from the above, the Bench was of the view
      that the interpretation given by the majority in the First Judges
      case to 'consultation' was not correctly appreciated in the
      constitutional scheme. It was also felt that the role of the
      institution of the Chief Justice of India in the constitutional
 F    scheme had been denuded in the First Judges case. Keeping
      all these factors in mind, particularly the functioning of the
      appointment process and the acknowledgement of the Union
      Government that a change was needed, it was observed:
G                'The view taken by Bhagwati, J., Fazal Ali, J., Desai, J.,
                 and Venkataramiah, J., to whicb we will presently advert,
                 in our opinion, not only seriously detracts from and
                 denudes the primacy of the position, implicit in the
          0
      •       Paragraph 28
 H
       SUPREME COURT ADVOCATES-ON-RECORD                                693
        ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

       constitutional scheme, of the Chief Justice of India in the      A
       consultative process but also whittles down the very
       significance of "consultation" as required to be
       understood in the constitutional scheme and context. This
       bears both on the substance and the process of the
       constitutional scheme ..... Consistent with the                  B
       constitutional purpose and process it becomes
       imperative that the role of the institution of the Chief
       Justice of India be recognised as of crucial importance
       in the matter of appointments to the Supreme Court and
       the High Courts of the States. We are of the view that           C
       this aspect dealt with in Gupta case requires
       reconsideration by a larger bench." 81
      112. The issues for consideration of a larger Bench were
then formulated in the following words:                                 D
       "The points which require to be reconsidered relate to
       and arise from the views of the majority opinion touching
       the very status of "consultation" generally and in particular
       with reference to "consultation" with Chief Justice of India
       and, secondly, as to the primacy of the role of the Chief        E
       Justice of India. The content and quality of consultation
       may perhaps vary in different situations in the interaction
       between the executive and the judicial organs of the State
       and some aspects may require clarification." 82
                                                                        F
         113. It was ·also observed 't1'r.1t a view was expressed in
  the First Judges case that the government of the State could
. initiate a proposal for the appointment of a judge but that the
  proposal could not be sent directly to the Union Government,
  but should first be sent to the Chief Justice of the High Court. 83   G
  Notwithstanding this clear exposition, the procedure was being
 distorted by the executive and a proposal for the appointment
 81
    Paragraph 31
 82
    Paragraph 32
 83
    Paragraph 728 of the First Judges case
                                                                        H
694            SUPREME COURT REPORTS                  [2015] 13 S.C.R.

A     of judge of the High Court was being sent directly to the Union
      Government. It was said in this regard:
              "But it has been mentioned that a practice is sought to
              be developed where the executive government of the
              State sends up the proposals directly to the Centre without
B
              reference to the Chief Justice of the State. This is a
              distortion of the constitutional scheme and is wholly
              impermissible. So far as the executive is concerned, the
              'right' to initiate an appointment should be limited to
c             suggesting appropriate names to the Chief Justice of
              the High Courts or the Chief Justice of India. If the
              recommendation is to emanate directly from a source
              other than that of the Chief Justices of the High Courts in
              the case of the High Courts and the Chief Justice of India
o             in the case of both the High Courts and the Supreme
              Court it would be difficult for an appropriate selection to
              be made. It has been increasingly felt over the decades
              that there has been an anxiety on the part of the
              government of the day to assert its choice in the ultimate
E             selection of Judges. If the power to recommend would
              vest in the State Government or even the Central
              Government, .the picture is likely to be blurred and the
              process of selection ultimately may turn out to be
              difficult."84
 F
         114. By-passing the Ghief Justice of the High Court in
  the matter of recommending a person for appointment as a
  judge of the High Court was an unhealthy practice that the
  political executive of the State was trying to establish since
G around the time of Independence. This 'subterfuge' was
  deprecated on more than one occasion, as noticed above.
             115. Another practice that the political executive was
      trying to establish was to recommend persons for appointment
      84
           Paragraph 34
 H
     SUPREME COURT ADVOCATES-ON-RECORD                           695
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

as a judge of the High Court to the Chief Justice of that High A
Court. In this context, it was also stated in Subhash Sharma
(as quoted above) that: 'It has been increasingly felt over the
decades that there has been an anxiety on the part of the
government of the day to assert its choice in the ultimate
selection of Judges.' 85 This unequivocally indicates that the B
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 LCI in its 14th Report, continued in some form or the other
through the entire period from Independence till the early 1990s. C
In addition, the recommendation given in the 14th Report of
the LCI in Chapter 6 regarding the executive not being entitled
to 'propose a nominee of its own and forward it to the Centre'
was not given the due weight and consideration that it deserved D
from the executive.
      116. Quite clearly, some complex issues arose in the
matter of appointment of judges primarily due to the
interference of the political executive and these needed
consideration by a larger Bench. Well established and            E
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.                     F
      Second Judges case- 6.10.1993
       117. As mentioned above, the Second Judges case
was the result of an acknowledgement that: (1) The existing
system of appointment of judges in which the executive had G
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
•• Paragraph 34
                                                                 H
696          SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     merit was overlooked due to executive interference or for
      extraneous considerations. The Chief Justice of the High Court
      was occasionally by-passed oy the political executive and a
      recommendation forthe appointment of a person as a judge
      of the High Court was made directly to the Union Government.
B     This unfortunate situation had continued for more than 40 years
      and an attempt to bring about a change was made and so a
      Constitution Amendment Bill was introduced in Parliament, but
      it lapsed.
c          118. In the Second Judges case it was held by Justice
   Pandian: (1) The selection and appointment of a proper and
   fit candidate to the superior judiciary is one of the inseparable
   and vital conditions for securing the independence of the
   judiciary.86 'The erroneous appointment of an unsuitable person
 o is bound to produce irreparable damage to the faith of the
    community in the administration of justice and to inflict serious
   injury to the public interest .. .' 87 (2) Yet another facet of the
   independence of the judiciary is the separation between the
    executive and the judiciary (including the superior judiciary) 88
 E postulated by Article 50 of the Constitution. 89 (3) The
   Memorandum of Procedure forthe selection and appointment
    of judges filed by the Union of India along with the written
    submissions relating to the pre First Judges case period and
   the extant procedure as mentioned in the 121 st Report of the
 F LCI relating to the post First Judges case period are more or
    less the same. They indicate that the recommendation for filling
    up a vacancy in the Supreme Court is initiated by the Chief
   Justice of India and the recommendation for filling up a vacancy
    in the High Court is initiated by the Chief Justice of the High
 G Court. The Chief Minister of a State may recommend a person
      86 Paragraph 49
      87
         Paragraph 63
      88 Paragraph 81
      89
         50. Separation of judiciary from executive - The State shall take steps to
 H    separate the judiciary from the executive in the public services of the State.
      SUPREME COURT ADVOCATES-ON-RECORD                                          697
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

for filling up a vacancy in the High Court, but that is to be routed A
only through the Chief Justice of the High Court. 90 (4)
Reiterating the view expressed in Sankalchand Sheth and
the First Judges case it was held that for the purposes of
consultation, the materials before the President and the Chief
Justice of India must be identical. 91 (5) For the appointment of B
a judge of the Supreme Court (under Article 124(2) of the
Constitution) or a judge of a High Court (under Article 217(1)
of the Constitution) consultation with the Chief Justice of India
is mandatory. 92 (6) In the process of constitutional consultation
in selecting judges to the Supreme Court or the High Court C
and transfer of judges of the High Court, the opinion of the
Chief Justice of India is entitled to primacy. 93 (?)Agreeing with
the majority opinion written by Justice J.S. Verma, it was held
that if there are weighty and cogent reasons for not accepting D
the recommendation of the Chief Justice of India for the
appointment of a judge, then the appointment may not be made.
However, if the 'weighty and cogent' reasons are not acceptable
to the Chief Justice of India, and the recommendation is
reiterated, then the appointment shall be made. 94 (8) The E
majority opinion in the First Judges case regarding the
primacy of the executive in the matter of appointment of judges
was overruled. 95
       119. Justice Ahmadi dissented with the opinion of the
majority and concluded: (1) Judicial independence is ingrained                   F
in our constitutional scheme and Article 50 of the Constitution
'illuminates it'. 96 (2) The First Judges case was not required
 90
     Paragraphs 95 to 99. Though such a practice exists and is accepted, there
have been some aberrations in this regard as mentioned in the 14" Report of
the LCI and in the Conference of Chief Justices.                                 G
 91 Paragraph 164
 92 Paragraph 172
 93 Paragraph 197 and 209
 94
     Paragraph 212
 95
     Paragraph 254
  96
     Paragraph 313
                                                                                 H
698           SUPREME COURT REPORTS                              (2015] 13 S.C.R.


A     to be overruled but on the question of primacy in the matter of
      appointment of judges, the opinion of the Chief Justice of India
      is entitled to 'graded weight' .97
          120. Justice Kuldip Singh agreed with the majority and
   laid great stress on constitutional conventions that had evolved
 8
   over several decades. The learned judge held: (1) Security of
   tenure is not the only source of independence of the judiciary
   but 'there has to be an independent judiciary as an institution.' 98
   (2) Independence of the judiciary is inextricably linked and
c  connected with the constitutional process of appointment of
   judges of the higher judiciary. There cannot be an independent
   judiciary when the power of appointment of judges vests in the
   executive. 99 (3) The President is bound by the advice given by
   the Council of Ministers. 100 (4) A constitutional convention is
 D established since the Government of India Act, 1935 (I would
   add the words 'at least') that the appointment of judges was
   invariably made with the concurrence of the Chief Justice of
   India. The opinion and recommendation of the Chief Justice
   of India in the matter of appointment of judges binds the
 E executive. 101 (5) In the matter of appointment of judges,
    consultation with the Chief Justice of India is mandatory. 102 (6)
    In the consultation process under Article 124(2) and 217(1) of
   the Constitution, the advice and recommendation of the Chief
   Justice of India is binding on the executive and must be the
 F final word. The majority view in the First Judges case does
      97 Paragraph 303 and 313. It was observed in paragraph 303: "If the President

      has to act on the aid and advice of the Council of Ministers it is difficult to hold
      that he is bound by the opinion of the Chief Justice of India unless we hold
      that the Council of Ministers including the Prime Minister would be bound by
 G    the opinion of the Chief Justice of India, a construction which to our mind is
      too artificial and strained to commend acceptance."
       98 Paragraph 334
       99 Paragraph 335
       100 Paragraph 277, 356, 383 and 411
       101
           Paragraph 359, 371,373 and 376. The figures relating to the appointment
      of judges have been mentioned in paragraphs 367 and 369.
 H     102 Paragraph 377 and 411
         SUPREME COURT ADVOCATES-ON-RECORD                              699
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

not lay down the correct law. 103                                       A
     (7) For the purposes of Article 124(2) and 217(1) of the
Constitution, the Chief Justice of India and the Chief Justice of
the High Court mean the functionaries representing their
respective Court. 104
                                                                        B
       121. One of the more interesting facts pointed out by
Justice Kuldip Singh is that from 1st January, 1983 (after the
decision in the First Judges case) till 1Qth April, 1993 (that is
during a period of ten years) the opinion of the Chief Justice of
India was not accepted by the President in as many as seven C
cases. This is worth contrasting with a part of the period before
the 'ultimate power' theory was propounded when the opinion
of the Chief Justice of India was not accepted by the President
only in one case and in that case, the opinion of the Chief Justice
of the High Court (not the political executive) was accepted. D
This is what the learned judge had to say:
         "Mr S.K. Bose, Joint Secretary, Department of Justice,
         Ministry of Law and Justice has filed an affidavit dated
         April 22, 1993 before us. In para 6 of the said affidavit it   E
         is stated as under:
            "As regards the appointments of Judges made, not in
            consonance with the views expressed by the Chief
            Justice of India, it is respectfully submitted that since
            January 1, 1983 to April 10, 1993, there have been          F
            only seven such cases, five of these were in 1983 (2
            in January 1983, 2 in July 1983, 1 in August 1983);
            one in September 1985 and one in March 1991, out
            of a total of 547 appointments made during this             G
            period."
         It is thus obvious from the facts and figures given by the
         executive itself that in actual practice the
103
      Paragraph 385, 387 and 411
104
      Paragraph 392 and 411
                                                                        H
      ..
700             SUPREME COURT REPORTS              [2015] 138.C.R.


A               recommendations of the Chief Justice of India have
                invariably been accepted." 105
            122. Justice Verma speaking for the majority held: (1)
      Independence of the judiciary has to be safeguarded not only
      by providing security of tenure and other conditions of service,
 8
      but also by preventing political considerations in making
      appointments of judges to the superior judiciary. 106
            (2) In the matter of appointment of judges, primacy was
      given to the executive in the Government of India Act, 1919
 C    and the Government of India Act, 1935 but in the constitutional
      scheme, primacy of the executive is excluded. 107
          (3) The Chief Justice of India and the Chief Justice of the
   High Court are 'best equipped to know and assess the worth
   of a candidate, and his suitability for appointment as a superior
 0
   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 echoed Dr.
   Ambedkar's view that consultation would be between persons
 E 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 lndia. 108 This
    certainly does not exclude the executive from the appointment
   process. The executive might be aware (unlike a Chief Justice)
 F of some antecedents or some information relatable to the
    personal character or trait of a lawyer or a judge which might
   have a bearing on the potential of a person becoming a good
   judge: 1o9 This might form the basis for rejecting a
   recommendation for the appointment of a person as a judge
 G by the Chief Justice of lndia. 110
       105 Paragraphs   369 and 370
       106 Paragraph 44 7
       107
             Paragraph 444, 446, ~48 and 450
       108 Paragraph 450, 451, 455, 478 and 486
       109
             Paragraph 462
 H     110
             Paragraph 478(7)
      SUPREME COURT ADVOCATES-ON-RECORD                                701
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      (4) Primacy of the opinion of the Chief Justice of India is      A
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. 111 Therefore, the President may not accept the
recommendation of a person for appointment as a judge, if              B
the recommendation of the Chief Justice of India is not
supported by the unanimous opinion of the other senior
judges. 112 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   C
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.' 113 (The key word here is               D
unanimous - both at the stage of the initial recommendation
 and at the stage of reiteration).
     (5) 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. 114                      E
     (6) 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
atthe head. 115
                                                                       F
      (7) The advice given by the Council of Ministers to the
President should be in accord with the Constitution. Such an
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        G
111
    Paragraph 456 and 466
112
    Paragraph 478(8)
113
    Paragraph 478(7)
114
    Paragraph 448
115
    Paragraph 457
                                                                       H
702            SUPREME COURT REPORTS                [2015] 13 S.C.R.


A     in accordance with the opinion of the Chief Justice of lndia. 116
             (8) 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.
 8
      There is no reason to depart from this convention. 111
           (9) The law laid down in the First Judges case is not the
      correct view. 118
 C         123. In his otherwise dissenting opinion, Justice
      Punchhi supported the view taken by Justice Verma to the
      extent that the executive could not disapprove the views of the
      Chief Justice of India or the views of the Chief Justice of the
      High Court (as the case may be) when a recommendation is
      made for the appointment of a judge to a superior court. 119
 0
          124. The most significant feature of the Second Judges
   case is that it introduced what has come to be called a
   'collegium system' of consultation for the appointment of judges
   of the Supreme Court and the High Courts. As far as the Chief
 E Justice of India is concerned, the collegium system broad-
   based his/her role in the appointment of judges of the High
   Courts and the Supreme Court and.(in one sense) diluted his/
   her role in the appointment process by taking it out of the
   individualized or personalized role of the Chief Justice of India
 F as thought of by Dr. Ambedkar. The consultative role of the
   Chief Justice of India in Article 124 of the Constitution was
   radically transformed through a pragmatic interpretation of that
   provision. How did this happen?
 G          125. In the Second Judges case certain norms were
      laid down by Justice Verma in the matter of appointment of
      judges. These norms were: For the appointment of judges in
      116
            Paragraph 457 and 476
      117 Paragraph 478(10) and 486(2)
      118
            Paragraph 486
 H    119
            Paragraph 500
      SUPREME COURT ADVOCATES-ON-RECORD                                 703
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

the Supreme Court, the Chief Justice of India must ascertain A
the views of the two senior-most judges of the Supreme Court
and of the senior-most judge in the Supreme Court from the
High Court of the candidate concerned. Through this process,
the individual opinion of the Chief Justice of India was
substituted by the collective opinion of several judges. In this B
sense the opinion of the Chief Justice of India in the consultative
process was made broad-based and ceased to be
individualized. At this stage it is worth recalling the words of
Dr. Ambedkar that 'the Chief Justice, despite his eminence,
had aJ! the failings, sentiments and prejudices of common C
people.' The apprehension or fear that Dr. Ambedkar had in
this regard in case the Chief Justice of India were to act in an
individual or personal capacity was now buried. 120 A somewhat
similar norm was laid down for consultation for the appointment D
of a judge of the High Court. This is what was said:
      "This opinion has to be formed in a pragmatic manner
      and past practice based on convention is a safe guide.
      In matters relating to appointments in the Supreme Court,
      the opinion given by the Chief Justice of India in the E
      consultative process has to be formed taking into
      account the views of the two seniormost Judges of the
      Supreme Court. The Chief Justice of India is also
      expected to ascertain the views of the senior-most Judge
      of the Supreme Court whose opinion is likely to be F
      significant in adjudging the suitability of the candidate,
      by reason of the fact that he has come from the same
      High Court, or otherwise. Article 124(2) is an indication
      that ascertainment of the views of some other Judges of
      the Supreme Court is requisite. The object underlying G
      Article 124(2) is achieved in this manner as the Chief
      Justice of India consults them for the formation of his
120
  According to the learned Attorney-General, this would have made Dr.
Ambedkar turn in his grave. Not so and quite to the contrary.
                                                                        H
704         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A           opinion. This provision in Article 124(2) is the basis for
            the existing convention which requires the Chief Justice
            of India to consult some Judges of the Supreme Court
            before making his recommendation. This ensures that
            the opinion of the Chief Justice of India is not merely his
B           individual opinion, but an opinion formed collectively by
            a body of men at the apex level in the judiciary.
            In matters relating to appointments in the High Courts,
            the Chief Justice of India is expected to take into account
c           the views of his colleagues in the Supreme Court who
            are likely to be conversant with the affairs of the
            concerned High Court. The Chief Justice of India may
            also ascertain the views of one or more senior Judges
            of that High Court whose opinion, according to the Chief
o           Justice of India, is likely to be significant in the formation
            of his opinion. The opinion of the Chief Justice of the
            High Court would be entitled to the greatest weight, and
            the opinion of the other functionaries involved must be
            given due weight, in the formation of the opinion of the
 E          Chief Justice of India. The opinion of the Chief Justice of
            the High Court must be formed after ascertaining the
            views of at least the two seniormost Judges of the High
            Court." 121
 F      126. The importance of the role of the Chief Justice of
  India was acknowledged in that it was observed that the
  constitutional convention was that no appointment should be
  made by the President under Article 124(2) and Article 217(1)
  of the Constitution unless it was in conformity with the final
G opinion of the Chief Justice of India. It was said:
            'The opinion of the Chief Justice of India, for the purpose
            of Articles 124(2) and 217(1 ), so given, has primacy in
            the matter of all appointments; and no appointment can
      "' Paragraph 478(1 )
 H
        SUPREME COURT ADVOCATES-ON-RECORD                          705
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        be made by the President under these provisions to the A
        Supreme Court and the High Courts, unless it is in
        conformity with the final opinion of the Chief Justice of
        India, formed in the manner indicated."122
      127. The 'manner indicated' was that if a                     B
recommendation is returned by the executive (for cogent
reasons) to the Chief Justice of India and the Chief Justice of
India reiterates the recommendation with the unanimou~
agreement of the judges earlier consulted, then the
appointment should be made 'as a matter of healthy
convention'. This is what was said in this context:
                                                                    c '
        "Non-appointment of anyone re~ommended, on the
        ground of unsuitability, must be for good reasons,
        disclosed to the Chief Justice of India to enable him to
        reconsider and withdraw his recommendation on those D
        considerations. If the Chief Justice of India does not find
        it necessary to withdraw his recommendation even
        thereafter, but the other Judges of the Supreme Court
        who have been consulted in the matter are of the view
        that it ought to be withdrawn, the non-appointment of that E
        person, for reasons to be recorded, may be permissible
        in the public interest. If the non-appointment in a rare
        case, on this ground, turns out to be a mistake, that
        mistake in the ultimate public interest is less harmful than F
        a wrong appointment. However, if after due consideration
        of the reasons disclosed to the Chief Justice of India,
        that recommendation is reiterated by the Chief Justice
        of India with the unanimous agreement of the Judges of
        the Supreme Court consulted in the matter, with reasons G
        for not withdrawing the recommendation, then that
        appointment as a matter of healthy convention ought to
        be made." 123
122
      Paragraph 478(5)
123
      Paragraph 478(7)
                                                                    H
706         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A           128. The norms took the form of conclusions that became
      binding on the Judiciary and the Executive. It is not necessary
      to reproduce the conclusions arrived at.
         129. An important aspect of the appointment process,
   which was adverted to by Justice Verma, is the constitutional
 8
   convention that the recommendation must be initiated by and
   must originate from the Chief Justice of the High Court (for
   appointment to the High Court) and from the Chief Justice of
   India (for appointment to the Supreme Court). In the event the
c  Chief Minister of a State recommends a person for
   appointment as a judge of the High Court, it must be routed
   only through the Chief Justice of the High Court. It is then for
   the said Chief Justice to consult his colleagues (and others, if
   necessary) and decide whether or not the person should be
 o formally recommended. If the Chief Justice of the High Court
   recommends that person, the procedure as mentioned in the
   Second Judges case would thereafter follow. If the Chief
   Justice of the High Court decides not to recommend that
   person for appointment, the matter stands closed and,
 E therefore, the question of making an appointment without the
   consent of the Chief Justice of India simply does not and cannot
   arise. It is this constitutionally and conventionally accepted
   procedure, which is apparently not acceptable to the political
   executive, that has led to the political executive by-passing
 F the Chief Justice of a High Court and directly recommending
   to the Union Government a person for appointment as a judge
   of the High Court. Be that as it may, the majority view expressed
   in the Second Judges case restored the constitutional
   position envisaged by Dr: Ambedkar by diluting the individual
 G authority of the Chief Justice of India and conferring it on a
   collegium of judges, which is perhaps in consonance with the ·
   views of Dr.Ambedkar.
            130. According to the learned Attorney-General, these
 H
         SUPREME COURT ADVOCATES-ON-RECORD                                      707
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

conclusions turned Article 124(2) and Article 217(1) of the A
Constitution 'on their head' and even Justice Verma, the author
of the judgment felt that the decision required a rethink. The
reference was to an interview given by Justice Verma post his
retirement. In that, it was said by Justice Verma:
                                                                B
      "My 1993 judgment which holds the field, was very much
      misunderstood and misused. It was in that context that I
      said the working of the judgment now for some time is
      raising serious questions, which cannot be called
      unreasonable. Therefore some kind of rethink is                           c
      required." 124
       131. It appears that the misunderstanding of the decision
in the Seconc;f 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 this Court but D
due to the discomfort in the 'working of the judgment'. I say
this because it was submitted by the learned Attorney-General
and learned counsel for some States 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 E
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 ca·ses, the final say in the appointment of a judge - the F
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 G
and maneuvered by the political executive any which way only .
to suit its immediate needs.
          132. In an article found on the website of the Tamil Na du
124
      The Frontline, Volume 25 Issue 20 September 27, 2008 to October 10,2008
                                                                                H
708            SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A     State Judicial Academy, Justice Verma adverted to the
      appointment process in the Second Judges case and the
      role of the executive and said:
              "The clear language of the decision leaves no room for
              any doubt that the executive has a participatory role in
 B
              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
 c
              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
 D            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
 E            India had returned it for reconsideration, are not only
              inexplicable but also a misapplication of the decision,
              which the CJ I, 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
 F
              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
 G            accountability." 125
            A little later in the article Justice Verma says (and this is
      also adverted to in the interview referred to by the learned
      Attorney-General):
      125   ht!p-f/www tnsja to ojc jo/artjc!e/Judjcia!%20!ndependence%20JSVJ pdf
 H
      SUPREME COURT ADVOCATES-ON-RECORD                             709
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      'The recent aberrations are in the application of the . A
      Second Judge's case in making the appointments, and
      not because of it. This is what I had pointed out in my
      letter of 5 December 2005 to CJI, Y.K.Sabharwal with
      copy to the two senior most judges, who included the
      present CJI, K.G. Balakrishnan."                        B
       133. The misunderstanding is, therefore, of the.political
·executive and no one else. However, as pointed out by the
 learned Attorney-General, the merits or demerits of the Second
 Judges case is not in issue after the 99 1h Constitution           c
 Amendment Act and therefore no further comment is made,
 although it must be said, quite categorically, that the political
 executive has completely misunderstood the scope and impact
 of the Second Judges case and the working of the collegium
 system.                                                           D
      Third Judges case - 28.10.1998
      134. Special Reference No. 1of1998 is commonly
referred to as the Third Judges case. The President sought
the advisory opinion of this Court under Article 143 of the         E
Constitution on the foUowing, amongst other, questions:
      "( 1) whether the expression 'consultation with the Chief
      Justice of India' in Articles 217(1) and 222(1) requires
      consultation with a plurality of Judges in the formation of
      the opinion of the Chief Justice of India or does the sole    F
      individual opinion of the Chief Justice of India constitute
      consultation within the meaning of the said articles.
      (3) whether Article 124(2) as interpreted in the said
      judgment [Second Judges case] requires the Chief G
      Justice of India to consult only the two seniormost Judges
      or whether there should be wider consultation according
      to past practice.
      (4) whether the Chief Justice of India is entitled to act
                                                                    H
710         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A          solely in his individual capacity, without consultation with
           other Judges of the Supreme Court in respect of all
           materials and information conveyed by the Government
           of India for non-appointment of a Judge recommended
           for appointment;"
 B
            135. At the outset, it must be noted that the learned
      Attorney-General stated at the hearing of the Presidential
      Reference that the Central Government was neither seeking a .
      review nor a reconsideration of the Second Judges case.
C     Therefore, the answers to the Presidential Reference do not
      depart from the conclusions arrived at by this Court in the
      Second Judges case. In that sense, this opinion did not take
      the substantive discussion much further though it substantially
      resolved some procedural issues and filled in the gaps relating
 o    to the process of appointment of judges to the superior
      judiciary. In any event, the answers to the three questions
      mentioned above are:
           "1. The expression "consultation with the Chief Justice
           of India" in Articles 217(1) and 222(1) of the Constitution
 E         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.
 F
           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
 G         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
 H
        SUPREME COURT ADVOCATES-ON-RECORD                            711
         ASSOCIATIONv. U.0.1. [MADAN B. LOKUR, J.]

        his individual capacity, without consultation with other     A
        Judges of the Supreme Co.urt, in respect of materials
        and information conveyed by the Government of India
        for non-appointment of a Judge recommended for
        appointment."126
                                                                     B
      136. The decision in the Second Judges case read with
the opinion given by this Court to the various questions raised
in the Presidential Reference or the Third Judges case fully
settled the controversies surrounding the procedure to be
adopted in the appointment of judges to the superior judiciary.      c
Issues of primacy of views and consultation with the Chief
Justice of India were all answered by the decision and the
opinion.
       137. It is important to note that the Third Judges case
modified one important norm or conclusion of the Second D
Judges case. The modification was that the 'collegium' for
appointment of judges in the Supreme Court was expanded
to consist of the Chief Justice of India and four senior-most
judges rather than the two senior-most judges as concluded in
the Second Judges case. In this manner, the consultation with E
the Chief Justice of India was further broad-based. It was
clarified in conclusion 9 as follows:
         "9. Recommendations made by the Chief Justice of India
         without complying with the norms and requirements of        F
         the consultation process, as aforestated, are not binding
         upon the Government of India."
     This conclusion is important, but seems to have been
ignored or overlooked by the President.
                                                                     G
         Samsher Singh's case
     138. For a complete picture of the judicial
pronouncements on the subject, it is also necessary to refer to
126
      Paragraph 44
                                                                     H
712            SUPREME COURT REPORTS                 [2015) 13 S.C.R.


A     the decision rendered by this Court in Samsher Singh v. State
      of Punjab. 121
           139. This case related to the termination of the services
    of two officers of the subordinate judicial service by the
    Governor of the State. The issue was whether the Governor
8
    could exercise his discretion in the matter personally or should
    act on the advice of the Council of Ministers. The judicial
    officers contended that the Governor was obliged to exercise
    his personal discretion and reliance was placed on Sardari
c Lal v. Union of lndia 128 in which it was held that for invoking
    the 'pleasure doctrine' under Article 311 (2) of the Constitution,
    the personal satisfaction of the President is necessary for
    dispensing with an inquiry under clause (c) of the proviso to
    Article 311 (2) of the Constitution. On the other hand, the State
o contended that the Governor was obliged to act only on the
  . advice of the Council of Ministers.
               140. This Court speaking through Chief JusticeA.N. Ray
      (for himself and four other learned judges) overruled Sardari
      Lal and held that the decision did not correctly state the law. It
 E    was held that under the Rules of Business, the decision of the
      concerned Minister or officer is the decision of the President
      or the Governor as the case may be. It was then concluded:
                "For the foregoing reasons we hold that the President or
 F            . the Governor acts on the aid and advice of the Council
                of Ministers with the Prime Minister at the head in the
                case of the Union and the Chief Minister at the head in
                the case of State in all matters which vests in the
                Executive whether those functions are executive or
·G              legislative i[1 character. Neither the President nor the
                Governor is to exercise the executive functions
                personally. The present appeals concern the appointment
                of persons other than District Judges to the Judicial
      127
            (1974) 2 SCC 831 (Seven Judges Bench)
H     128
            0 971 ) 1 sec 411 (Five Judges Bench)
      SUPREME COURT ADVOCATES-ON-RECORD                            713
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      Services of the State which is to be made by the Governor A
      as contemplated in Article 234 of the Constitution after
      consultation with the State Public Service Commission
      and the High Court. Appointment or dismissal or removal
      of persons belonging to the Judicial Service of the Sta"te
      is not a personal function but is an executive functiqn of B
      the Governor exercised in accordance with the rules in
      that behalf under the Constitution." 129
      141. In a separate but concurring judgment authored by
Justice Krishna Iyer (for himself and Justice Bhagwati) the view   c
expressed by Chief Justice Ray was accepted in the following
words:
      "We declare the law of this branch of our Constitution to
      be that the President and Governor, custodians of all
      executive and other powers under various articles shall,     D
      by virtue of these provisions, exercise their formal
      constitutional powers only upon and in accordance with
      the advice of their Ministers save in a few well-known
      exceptional situations. Without being dogmatic pr
      exhaustive, these situations relate to (a) the choice of     E
      Prime Minister (Chief Minister), restricted though this
      choice is by the paramount consideration that he should
      command a majority in the House; (b) the dismissal of a
      Government which has lost its majority in the House, but     F
      refuses to quit office; (c) the dissolution of the House
      where an appeal to the country is necessitous, although
      in this area the head of State should avoid getting
      involved in politics and must be advised by his Prime
      Minister (Chief Minister) who will eventually take the       G
      responsibility for the step. "130
     142. An additional reason was given by the two learned
judges for coming to this conclusion and that is also important
129
   Paragraph 88
"' Paragraph 154                                                   H
714          SUPREME COURT REPORTS                         [2015] 13 S.C.R.


A     for our present purposes. The additional reason relates to the
      independence of the judiciary. For this, reference was made
      to Jyoti Prakash Mitter v. Chief Justice, Ca/cutta. 131 The
      question in that case related to the determination of the age of
      a !>itting judge of the High Court under Article 217(3) of the
B     Constitution. 132 This Court held that the age determination
      should be by the President uninfluenced by the views of the
      executive. This was on the ground that were the executive to
      make the determination of the age of a sitting judge, it would
      'seriously affect the independence of the Judiciary.' This view
C     was subsequently reiterated in Union of India v. Jyoti
      Prakash Mitter. 133
            143. The learned judges then held, on the basis of the
      scheme of the Constitution that had already been adverted to,
o     that the President means the Council of Ministers and the
      independence of the judiciary has been safeguarded by Article
      217(3) of the Constitution by making mandatory the consultation
      with the Chief Justice of India in regard to age determination.
      This would prevent the possibility of extraneous considerations
 E    entering into the decision of the Minister if he/she departs from
      the views of the Chief Justice of India. It was held that in all
      conceivable cases, consultation with the Chief Justice of India
      should be accepted by the executive and if there is a departure
      from the views of the Chief Justice of India, the Court can
 F    examine the issue in the light of the available facts. In such a
      'sensitive subject' the last word should be with the Chief Justice
      of India. On this interpretation, it becomes irrelevant who
      formally decides the issue. This is what was held:
G     131
           [1965) 2 SCR 53 (Five Judges Bench)
      132
            217. Appointment and conditions of the office of a Judge of a High
      Court.-
      (3) If any question arises as to the age of a Judge of a High Court, the
      question shall be decided by the President after consultation with the Chief
      Justice of India and the decision of the President shall be final.
 H     '33 (1971) l SCC396(FivcJudgesBench)
        SUPREME COURT ADVOCATES-ON-RECORD                                 715
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        "In the light of the scheme of the Constitution we have           A
        already referred to, it is doubtful whether such an
        interpretation as to the personal satisfaction of the
        President is correct. We are of the view thatthe President
        means, for all practical purposes, the Minister or the
        Council of Ministers as the case may be, and his opinion,         B
        satisfaction or decision is constitutionally secured when
        his Ministers arrive at such opinion satisfaction or
        decision. 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   C
        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 lridia and the Court will           D
        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            E
        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." 134                                                   F
        144. This decision is important for three key reasons:
(1) It recognized, judicially, the independence of the judiciary.
(This was before the First Judges case which recognized
that the independence of the judiciary was a basic feature of
the Constitution). (2) It cleared the air by concluding that the G
President was obliged to act on the advice of the Council of
Ministers, even on the issue of appointment of judges. This
was 'formalized' by the Constitution (Forty-second Amendment)
134
      Paragraph 149
                                                                          H
716             SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A     Act, 1976. (3) In a sense, this decision was a precursor to the
      primacy conclusion in the Second Judg.es case with the last
      word on the subject being with the Chief Justice of India.
               145. There are two observations that need to be made
 B at this stage. Firstly, Justice Krishna Iyer penned the decision
   in Samsher Singh on behalf of Justice Bhagwati as well.
   Surprisingly, Justice Bhagwati did not refer to this decision in
   the First Judges case. The significance of this failure is that
   while in Sams her Singh it was held by Justice Bhagwati that
c  the 'last word' must belong to the Chief Justice of India, in the
   First Judges case it was held by Justice Bhagwati 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
 o 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
 E reason to go back on it or to repudiate it. It may be mentioned
   in the 'last word' context that ever since the Constitution came
   to be enacted, writes Granville Austin, quoting from Chief
   Justice Mehr Chand Mahajan's 'A Pillar of Justice':
               "Nehru 'has always acted in accordance with the advice
 F
               of the CJI', he recalled, except in rare circumstances,
               despite efforts by state politicians with 'considerable pull'
               to influence him." 135
                Sankalchand Sheth's case
 G
            146. Another decision of considerable significance is
      Union of India v. Sankalchand Himatlal Sheth. 136 That case
      pertained to the transfer of judges from one High Court to
      135
            Granville Austin: Working a Democratic Constitution page131
 H    136
            (1977) 4 sec 193 (Five Judges Bench)
       SUPREME COURT ADVOCATES-ON-RECORD                                            717
        ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

another and the interpretation of Article 222(1) of the A
Constitution. 137 Referring to the independence of the judiciary
as also Article 50 of the Constitution it was said by Justice Y.V.
Chandrachud:
       "Having envisaged that the judiciary, which ought to act B
       as a bastion of the rights and freedom of the people,
       must be immune from the influence and interference of
       the executive, the Constituent Assembly gave to that .
       concept a concrete form by making various provisions
       to secure and safeguard the independence of the                              c
       judiciary. Article 50 of the Constitution, which contains a
       Directive Principle of State Policy, provides that the State
       shall take steps to separate the judiciary from the
       executive in the public services of the State."
      147. On the meaning of consultation by the President D
with the Chief Justice of India in the context of Article 222 of
the Constitution, it was held that it has to be full and effective
consultation and not formal or unproducti~e. It was said:
       "Article 222(1) which requires the President to consult E
       the Chief Justice of India is founded on the principle that
       in a matter which concerns the judiciary vitally, no
       decision ought to be taken by the executive without
       obtaining the views of the Chief Justice of India who, by
       training and experience, is in the best position to consider F
       the situation fairly, competently and objectively. But there
       can be no purposeful consideration of a matter, in the
137
    222. Transfer of a Judge from one High Court to another.-(1) The
President may, after consultation with the Chief Justice of India, transfer a
Judge from one High Court to any other High Court.                                  G
(2) When a Judge has been or is so transferred, he shall, during the period
he serves, after the commencement of the Constitution (Fifteenth Amendment)
Act, 1963, as a Judge of the other High Court, be entitled to receive in addition
to his salary such compensatory allowance as may be determined by
Parliament by law and, until so determined, such compensatory allowance
as the President may by order fix.                                                  H
718          SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           absence of facts and circumstances on the basis of
            which alone the nature of the problem involved can be
            appreciated and the right decision .taken. It must,
            therefore, follow that while consulting the Chief Justice,
            the President must make the relevant data available to
 B          him on the basis of which he can offer to the President
            the benefit of his considered opinion. If the facts
            necessary to arrive at a proper conclusion are not made
            available to the Chief Justice, he must ask for them
            because, in casting on the President the obligation to
c           consult the Chief Justice, the Constitution at the same
            time must be taken to have imposed a duty on the Chief
            Justice to express his opinion on nothing less than a full
            consideration of the matter on which he is entitled to be
            consulted. The fulfilment by the President, of his
 D
            constitutional obligation to place full facts before the Chief
            Justice and the performance by the latter, of the duty to
            elicit facts which are necessary to arrive at a proper
            conclusion are parts of the same process and are
            complementary to each other. The faithful observance of
 E
            these may well earn a handsome dividend useful to the
            administration of justice. Consultation within the meaning
            of Article 222(1 ), therefore, means full and effective, not
            formal or unproductive, consultation." 138
 F       148. It was observed that though 'consultation' did not
   mean 'concurrence' yet, as held in Samsher Singh
   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
 G from the counsel of the Chief Justice of India, the Court would
   have the opportunity to examine if any extraneous
   considerat1ons entered into the decision. 139
      "' Paragraph 37
      139 Paragraph 41
 H
     SUPREME COURT ADVOCATES-ON-RECORD                               719
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

       149. This view was reiterated by Justice Krishna lyer(for A
himself and Justice Fazl Ali). 140 Significantly, it was added that:
'It seems to us that the word, 'consultation' has been used in
Article 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 lndia.' 141           B
      150. The greater significance of Sankalchand Sheth
lies in the conclusion, relying upon R. Pushpam, that for a
meaningful consultation, both parties must have for
consideration full and identical facts. It was said:                 c
      "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       D
      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." 142
      151. This view was accepted in the First Judges case E
by Justice Bhagwati, 143 Justice Fazal Ali, 144 Justice V.D.
Tulzapurkar145 and Justice D.A. Desai. 146 It was also accepted
in the Second Judges case by Justice Pandian. 147
      Memorandum of Procedure- 30.6.1999
                                                                     F
       152. 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
"' Paragraph 115                                                     G
141
     Paragraph 115
 142
     Paragraph 39
143
     Paragraph 30
144
     Paragraph 563, 564 and 569
1
  "  Paragraph 632 and 663
 140 Paragraph 848 and 849
 147
     Paragraphs 129 to 133 and 164                                   H
720          SUPREME COURT REPORTS                          [2015] 13 S.C.R.


A   of a judge of the Supreme Court and another for the
    appointment of a judge of the High Court. These were shared
    with the Chief Justice of India. None of the each successive
    Chief Justices of India have complained or criticized any of
    the Memoranda or adversely commented on them, or at least
· B we have not been told of any such complaint or objection. 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 this Court in the two
  C decisions mentioned above or that they did not conform to
    any provision of the Constitution, either in letter or in spirit or
    even otherwise, or at least we have not been told of any such
    constraint. These Memoranda remained operational and the
    appointment of judges to the superior judiciary made
  0
    subsequent thereto has been in conformity with them. No one
    complained about the inability to effectively work any
    Memorandum of Procedure.
            153. We were invited by Mr. Fali S. Nariman to mention
 E    the procedure for the appointment of judges both in public
      interest and for reasons of transparency. 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 lndia 148 and
 F    therefore it is not necessary to make a detailed mention of the
      procedure. Similar Memoranda have been referred to in the
      Second Judges case by Justice Pandian. 149
       154. A reading of the Memoranda makes it explicit that
G 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
      148
          http"{ldoi gov jn/si!es/defau!Vfiles/memohc pdf <for High Court Judges)
      http:lldoi gov in/si!es/defau!Vfi!es/memosc pdf (for Supreme Court judges)
 H    149
          Paragraph 96 and 97
     SUPREME COURT ADVOCATES-ON-RECORD                               721
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

the name of any person he should forward the same to the             A
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.
      155. It is al&o significant and important to note that in the
                                                                    8
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 prohiblied 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             c
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:        D
      "For every Supreme Court appointment, I consulted
      senior lawyers like Fali S. Nariman and Shanthi Bhushan.
      I used to consult five or six top lawyers. I used to consult
      even lawyers belonging to the middle level. Similar
      consultation took place in the case of High Courts. I          E
      recorded details of every consultation. I wish all my
      correspondence is made public."
       156. Therefore, during the evolution of the system of
appointment of judges four cobwebs were cleared. They were: F
(1) 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; (2) 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 appofntment of a judge of the G
Supreme Court from the Chief Justice of India; (3) 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
                                                                     H
722         SUPREME COURT REPORTS                  [2015) 13 S.C.R.


A     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 (4) The Union of India accepted these
      propositions without hesitation in the Third :1udges case.
B
           Amendments to the Constitution
            157. Apart from judicial discourses on the appointment
      of judges, Parliament too hasllad its share of discussions. On
      as many as four occasions, it was proposed to amend the
C     Constitution in relation to the procedure for the appointment of
      judges of the Supreme Court and the High Courts. These
      proposed amendments are considered below.
             (a) The Constitution (Sixty-seventh Amendment)
D     Bill, 1990
             158. The Constitution (Sixty-seventh Amendment) Bill,
      1990 was introduced in the Lok Sabha on 181h May, 1990 and
      it proposed to set up a National Judicial Commission (for short
      the NJC), though not in line with the recommendations of the
E     LCI. The composition of the NJC was to vary with the subject
      matter of concern, namely, the appointment of a judge of the
      Supreme Court or the appointment of a judge of the High Court.
        159. For the appointment of a judge of the Supreme
F Court, in terms of the proposed Article 307Aofthe Constitution,
  the NJC was to consist of the Chief Justice of India and two
  other judges of the Supreme Court next in seniority to the Chief
  Justice of India. For the appointment of a judge of the High
  Court, the NJC was to consist of the Chief Justice of India, the
G Chief Minister or Governor (as the case may be) of the
  concerned State, one other judge of the Supreme Court next
  in seniority to the Chief Justice of India, the Chief Justice of
  the High Court and the judge of the High Court next in seniority
  to the Chief Justice of the High Court. There was no provision
H
         SUPREME COURT ADVOCATES-ON-RECORD                         723
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

for the appointment ofthe Chief Justice of India or the Chief A
Justice of the High Court.
       160. The procedare for the transaction of business of
the NJC was to be determined by the President in consultation
with the Chief Justice of India and was subject to any law made
                                                                    8
by Parliament.
      161. TheAmendmentACt also provided that in the event
the recommendation of the NJC is not accepted, the reasons
therefor shall be recorded in writing.
         162. The Bill was criticized (in part) by the Arrears
                                                                    c
Committee which stated that:
         "The Committee is unable to find any logic or justification
         for different commissions .... Keeping in view the objects
         and reasons for the constitution of the commission, D
         namely, to obviate the criticism of executive arbitrariness
         in the matter of appointment and transfer of High Court
         judges and to prevent delay in making appointments,
         there is no justification for the executive through the Chief
         Minister to be on the commission. Instead of removing E
         the vice of executive interference which has vitiated the
         working of the present system the presence of the Chief
         Minister on the recommendatory body actual alleviates
         him from the status of a mere consultee to the position of
         an equal participant in the selection process of the F
         recommendatory body. By making the Chief Minister an
         equal party when he is not equipped to offer any view in
         regard to the merit, ability, competency, integrity and
         suitability of the candidates for appointments, the scope G
         of executive interference is enhanced." 150                 ·

      163. The Bill was not taken up for consideration due to
the dissolution of the Lok Sabha in May, 1991.
150
      Paragraph 7.8
                                                                    H
724          SUPREME COURT REPORTS                        [2015] 13 S.C.R.


A            (b) The Constitution (Ninety~eighth Amendment)
      Bill, 2003
             164. On 22"d February, 2000 - barely 8 months after the
      issuance of the (Revised) Memorandum of Procedure
      mentioned above - the Government of India issued a
8
      notification setting up a National Commission to Review
      the Working of the Constitution (for short the NCRWC),
      including the procedure for the appointment of judges of the
      superior judiciary. The terms of reference of the NCRWC were
c     as follows:
            "The Commission shall examine, in the light of the
            experience of the past 50 years, as to how best the
            Constitution can respond to the changing needs of
            efficient, smooth and effective system of governance and
 D          socio-economic development of modern India within the
            framework of parliamentary democracy and to
            recommend changes, if any, that are required in the
            provisions of the Constitution without interfering with its
            basic structure or features."
 E
         165. On 26th September, 2001 an Advisory Panel of the
   NCRWC issued a Consultation Paper on Superior Judiciary. 151
   This Paper dealt with the procedure for appointment of judges
   of the Supreme Court and the High Courts, the age of
 F retirement of judges, the transfer of judges of the High Courts
   and the procedure for dealing with 'deviant' behavior of a judge
   and for his/her removal.
         166. In the context of appointment of judges of the
 G superior judiciary, paragraph 8.20 of the Paper is significant
   since it tacitly acknowledges that the procedure evolved over
   the years particularly as a result of the Second Judges case
      151
         The Consultation Paper can be found on the website of the Law Ministry.
      This was accessed on 2°• May, 2015: http://lawmin.nic.in/ncrwc/finalreporU
 H    v2b1-14.htm
         SUPREME COURT ADVOCATES-ON-RECORD                      725
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

and the Third Judges case was quite satisfactory. Paragraph      A
8.20 reads as follows:
         "8.20 Purpose of 671h Amendment Bill served by the
         judgement in SCAORA: We have set out hereinabove
         the several methods of appointment (to Supreme Court B
         and High Courts) suggested by the various bodies,
         committees and organizations. We have also set out the
         method and procedure of appointment devised by the
         1993 decision of the Supreme Court in SCAORA152 and
         in the 1998 opinion rendered under Article 143. It would c
         be evident therefrom that the 1993 decision gives effect
         to the substance of the Constitution (Sixty-sev~nth
         Amendment) Bill, without of course calling it a 'National
         Judicial Commission', and without the necessity of
         amending the Constitution as suggested by the said D
         Amendment Bill. Indeed, it carries forward the object
         underlying the Amendment Bill by making the
         recommendations of the Chief Justice of India and his
         colleagues binding on the President. The 1998 opinion
         indeed enlarges the 'collegium'. In this sense, the E
         purpose of the said Amendment B.ill evidenced by the
         proviso to Article 124(2) and the Explanation appended
         thereto, is served, speaking broadly. The method of
         appointment evolved by these decisions has indeed
         been hailed by ~everal jurists and is held out as a F
         precedent worthy of emulation by U.K. and others. (See
         the opinion of Lord Templeman, a member of the House
         of Lords, cited hereinabove.) The said decisions lay
         down the proposition that the "consultation" contemplated
         by Articles 124 and 217 should be a real and effective G
         consultation and that having regard to the concept of
         Judicial independence, which is a basic feature of the
         Constitution, the opinion rendered by the Chief Justice
152   Second Judges case
                                                                 H
726         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A          of India (after consulting his colleagues) shall be binding
           upon the Executive. In this view of the matter, much of
           the expectations from a National Judicial Commission
           (N.J.C) have been met. The said Constitution
           Amendment Bill was, it would appear, prepared after a
 B         wide and elaborate consultation with all the political
           parties and other stakeholders. However, the aspect of
           disciplinary jurisdiction remains unanswered. We may
           however discuss the concept of an N.J.C. which may
           cover both appointments and matters of discipline."
c
           167. The 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
 D    Commission (N.J.C) 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
 E    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
 F    worthyofemulation'.
         168. Be that as it may, the NCRWC submitted its Report
   to the Prime Minister on 31"1 March, 2002. In Chapter? of the
   Report relating to the judiciary, the NCRWC recommended in
 G paragraph 7 .3.7 thereof the establishment of a National Judicial
   Commission (for short the NJC)". It was observed that such a
   commission was necessary for 'the effective participation of
   both the executive and the judicial wings of the State as an
   integrated scheme for the machinery for appointment of judges'
 H
     SUPREME COURT ADVOCATES-ON-RECORD                             727
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

in line with the integrated participatory consultative process     A
suggested by this Court in the Second Judges case·and the
Third Judges case. This is what the NCRWC had to say:
     "The matter relating to manner of appointment of judges
     had been debated over a decade. The Constitution              B
     (Sixty-seventh Amendment) Bill, 1990 was introduced on
     181h May, 1990 (9 1h Lok Sabha) providing for the
     institutional frame work of National Judicial Commission
     for recommending the appointment of judges to the
     Supreme Court and the various High Courts. Further, it        c
     appears that latterly there is a movement throughout the
     world to move this function away from the exclusive fiat
     of the executive and involving some institutional frame
     work whereunder consultation with the judiciary at some
     level is provided for before making such                      D
     appointments. The system of consultation in some form
     is already available in Japan, Israel and the UK. The
     Constitution (Sixty-seventh Amendment) Bill, 1990
     provided for a collegium of the Chief Justice of India and
     two other judges of the Supreme Court for making              E
     appointment to the Supreme Court. However, it would
     be worthwhile to have a participatory mode with the
     participation of both the executive and the judiciary in
     making such recommendations. The Commission
     proposes the composition of the Collegium which gives         F
     due importance to and provides for the effective
     participation of both the· executive and the judicial wings
     of the State as an integrated scheme for the machinery
     for appointment of judges. This Commission, accordingly,
     recommends the establishment of a National Judicial           G
     Commission under the Constitution.
     The National Judicial Commission for appointment of
     judges of the Supreme Court shall comprise of:
                                                                   H
728             SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A              (1) The Chief Justice of India:         Chairman
               (2) Two senior most judges of the        Member
                   Supreme Court:
               (3) The Union Minister for Law           Member
B                 and Justice:
               (4) One eminent person nominated         Member
                  by the President after consulting
                  the Chief Justice of India:
               The recommendation for the establishment of a National
c              Judicial Commission and its composition are to be
               treated as integral in view of the need to preserve the
               independence of the judiciary."153
         169. Pursuant to the recommendations of the NCRWC,
D the Constitution (Ninety-eighth Amendment) Bill, 2003
  was introduced in Parliament on or about 81h May, 2003. The
  Statement of Objects and Reasons of the Bill states, inter alia,
  that the Government of India has been committed to the setting
  up of an NJC for appointment of judges of the Supreme Court,
E Chief Justices and Judges of the High Courts as well as their
  transfer so as to provide for the effective participation of both
  the executive and the judicial wings of the Government. It is
  mentioned that the NCRWC also considered this matter and
  recommended the establishment of an NJC.
F
         170. The Statement of Objects and Reasons refers to
  the composition of the NJC and while the NCRWC had
  recommended the nomination 'in the NJC of one eminent
  person by the President of India after consulting the Chief
G Justice of India, the Constitution (Ninety-Eighth Amendment)
  Bill modified this recommendation and proposed that one
  eminent citizen be nominated by the President of India in
  consultation with the Prime Minister of India for a period of
H     153
            Paragraph 7.3.7
     SUPREME COURT ADVOCATES-ON-RECORD                                    729
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

three years.                                                              A
      171. The Constitution (Ninety-eighth Amendment) Bill
proposed the insertion of Chapter IVA in the Constitution
consisting of one Article namely Article 147A. This Article
related to the establishment of the NJC in terms of the                   B
Statement of Objects and Reasons.
       172. The Bill was not passed in any House of Parliament
due. to the dissolution of the Lok Sabha in March 2004 and the
general elections being called.
   (c) The Constitution (One Hundred and Twentieth
                                                                          c
Amendment) Bill, 2013
       173. A third attempt was made to amend the Constitution
for the purposes of appointment of judges of the superior
judiciary. This was by the introduction of the Constitution (One          D
Hundred and Twentieth Amendment) Bill, 2013 introduced in
the Rajya Sabha on 24th August 2013.
       174. The Statement of Objects and Reasons to the Bill
referred to the Second Judges case and the Third Judges E
case as well as the Memorandum of Procedure. It was
mentioned that the Memorandum confers upon the judiciary
itself the power of appointment of judges of the superior
judiciary. 154 It was further stated that after a review of the
pronouncements of this Court and relevant constitutional F
provisions, a broad based judicial appointment commission
could be established· for making recommendations for the
selection of-judges. This commission would provide a
meaningful role to the executive and the judiciary to present
their viewpoint and make the participants accountable while G
introducing transparency in the selection process. The
Statement of Objects and Reasons also mentioned that the
proposed Bill would enable equal participation of the judiciary
154
    This is factually incorrect. The Memorandum was drawn up by the Law
Minister and did not confer any power upon the judiciary.                 H
730         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     and the executive in the appointment of judges to the superior
      judiciary and also make the system more accountable and
      thereby increase the confidence of the public in the judiciary.
            175. The Constitution (One Hundred and Twentieth
B     Amendment) Bill proposed the insertion of Article 124A in the
      Constitution establishing a commission known as the National
      Judicial Appointments Commission (for short the NJAC). The
      composition of the NJAC, the appointment of its Chairperson
      and Members, their qualifications, conditions of services,
c     tenure, functions and the procedure as well as the manner of
      selection of persons for appointment as Chi.ef Justice of India,
      judges of the Supreme Court, Chief Justices and other judges
      of the High Courts was to be provided by law made by
      Parliament.
D           176. The Constitution (One Hundred and Twentieth
      Amendment) Bill was passed by the Rajya Sabha on 5 1h
      September 2013 but the Lok Sabha was dissolved in May
      2014 before the Bill could be sent to it and the general elections
      called.
E
            177. Strangely, the Statement of Objects and Reasons
      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
 F    Judges case it was clearly, explicitly and unequivocally stated
      that:
            "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
G
            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
H
      SUPREME COURT ADVOCATES-ON-RECORD                                           731
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

       the occasion of primacy does not arise." 155                               A
       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                      B
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                        c
case gave this shared responsibility to the President and the
Chief Justice of lndia. 156 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                                D
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               E
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.                                          F
   (d) The Constitution (One Hundred and Twenty-first
Amendment) Bill, 2014
     178. The fourth and final attempt (presently successful
and under challenge in these petitions) to amend the G
Constituti.on was by the introduction on 11 1h August, 2014 of
 "' Paragraph 486(1)
 156 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 LCI in its 14th Report seems
more appropriate.                                                                 H
732         SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A  the Constitution (One Hundred and Twenty-first Amendment)
   Bill, 2014. This Bill was passed by the Lok Sabha on 13th
   August, 2014 and by the Rajya Sabha on 14th August, 2014. It
   received the ratification of more than one half of the States as
   required by Article 368(2) of the Constitution and received the
 B assent of the President on 31st December, 2014 when it
   became the Constitution (Ninety-ninth Amendment) Act 2014.
             179. It may be mentioned en passant that the learned
      Solicitor General was requested to place on record the
 c    procedure adopted by the State Legislatures for ratification of
      the Constitution (One Hundred and Twenty-first Amendment)
      Bill, 2014 but that information was not forthcoming, for reasons
      that are not known. The intention was not to question the factum
      of ratification but only to understand the process and to add
 o    transparency to the process, since there have been instances
      in the United States where the courts have examined the issue
      of the ratification of an amendment to the Constitution. 157
      Transparency is not a one-way street.
         180. Section 1(2) of the Constitution (Ninety-ninth
 E Amendment) Act 2014 provides that it shall come into force
   on such date as the Central Government may by notification in
   the official gazette, appoint. The appointed date is 13th April,
   2015.
 F       181. Simultaneous with the passage of the Constitution
   (One Hundred and Twenty-FirstAmendment) Bill, Parliament
   also considered the National Judicial Appointment
   Commission Bill, 2014. The Bill was introduced in Parliament
   on 11th August, 2014. It was passed by the Lok Sabha on 13th
 G August, 2014 and by the Rajya Sabha on 14th August, 2014.
      157See for example: Hammond v. Clark, 136 Ga. 313 (1911 ), Fahey v.
      Hackmann, 291 Mo. 351 (1922), Associated Industries of Oklahoma v.
      Oklahoma Tax Commission, 176 Okla. 120 (1936), State of Wisconsin v.
      Adam S. Gonzales, 253 Wis.2d 134 (2002), The State v. Swift, 69 Ind. 505
 H    (1880) etc.
     SUPREME COURT ADVOCATES-ON-RECORD                              733
      ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.]

The National Judicial Appointments Commission Act also              A
received the assent of the President on 31 •1 December, 2014
and it was brought into force by a gazette notification issued
on 131hApril, 2015.
     182. Both the Constitution (Ninety-ninthAmendment)Act, _
                                                              8
2014 and the National Judicial Appointments Commission Act,
2014 are challenged in this and a batch of connected writ
petitions.
      Conclusions on the factual background
      183. The conclusions that can be drawn from the C
background historical facts are as follows:
     ( 1) The independence of the judiciary has been always
recognized and acknowledged by all concerned.
      (2) Prior to Independence, the appointment of a judge to D
a superior court was entirely the discretion of the Crown. The
Constituent Assembly felt that such a 'supreme and absolute'
power s~ould not vest in the President or the government of
the day or the Chief Justice of India (as an individual) and E
therefore a fetter was placed on that power 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 F
was mandatory. In addition, consultation with the Chief Justice
of the High Court and the Governor of the State was mandatory.
Significantly, there is no mention of consultation with anybody
from civil society.
      (3) Any doubt about the individual role of the President in   G
the process of appointment of judges came to rest and it was
clear that the President was expected to act only on the advice
of the Council of Ministers.

                                                                    H
734         SUPREME COURT REPORTS                   (2015] 13 S.C.R.


A           (4) Similarly, the Chief Justice of India is not expected to
      act in an individual or personal capacity but must consult his/
      her senior judges before making a recommendation for the
      appointment of a judge.
 B          (5) Dr. Ambedkar and the Constituent Assembly did not
      accept the 'unfettered discretion' theory in the CAD but this
      view was subsequently rejected in the First Judges case
      which brought in the 'ultimate power' theory propounded by
      Justice Bhagwati and Justice Desai.
 C          (6) 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.
 D        (7) Not a single instance was given to us where the
   President recommended a person for appointment as a judge
   of the Supreme Court or the High Court. The Chief Minister of
   a State might have made a recommendation (although no
   instance was given to us) but that was required to be routed
 E through the Chief Justice of the High Court, as per the
   Memorandum of Procedure.
         (8) Only one instance was given to us, pre the First
   Judges case where an appointment as a judge of the High
   Court was made without the concurrence of the Chief Justice
 F of India. Post the First Judges case as many as seven such
   appointments were made. This is a clear indication that the
   'ultimate power' theory propounded in the First Judges case
   translated into 'absolute executive primacy'. The dream of Dr.
 G Ambedkar became a nightmare, thanks to the political
   executive.
           (9) The 'ultimate power' theory or the 'absolute executive
      primacy' theory is now diluted and the last word in the
      appointment of a judge of the Supreme Court is shared
 H
     SUPREME COURT ADVOCATES-ON-RECORD                           735
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

between the President and the Chief Justice of India in terms    A
of the Second Judges case and the Third Judges case.
Historically, giving the last word to the executive has been
criticized by no less than the Attorney-General Shri M.C.
Setalvad who chaired the Law Commission of India when the
14th Report was given. That system has not worked well at all    B
as noted from time to time.
      (10) 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        c
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 me.thod for appointment of judges of the superior
Courts.                                                          D
       184. 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 this Court which, it was submitted by the learned
Attorney-General would not have been possible were it not for E
the failure of the collegium system. Even the petitioners were
critical of the collegium system. However, I must express my
anguish at the manner in which an 'attack' was launched by
some learned counsel appearing for the respondents. It was F
vitriolic at times, lacking discretion and wholly unnecessary.
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 G
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 .
                                                                 H
736             SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     developments can be incorporated in the justice delivery
      system (in the larger context) they should be so incorporated.
             185.  In this context, it is interesting to recall the words
      of Dr. Ambedkar on the working of the Constitution:
B              ' ... 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
C              does not depend wholly .upon the nature of the
               Constitution." 158
        186. 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
0
  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
E the constitutional provisions were revisited at the instance of
  the Bar of this 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
F interpretation of the Constitution.
       187. That the Second Judges case was correctly
  decided by the majority was accepted in the Third Judges
  case by the Attorney-General and, what is more important, by
G 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.
               188. To say, as was conveyed to us during the hearing of
      158
            http://parliamentofindia.nic in/lsldebateslvol11 p11 him
 H
      SUPREME COURT ADVOCATES-ON-RECORD                            737
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

the case, that the collegium system has failed and that it needs A
replacement would not be a correct or a fair post mortem. It is
true that there has been criticism (sometimes scathing) of the
decisions bf 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 B
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 C
be described as the erroneous decisions of the collegium.
      189. To say that the executive had no role to play (as
was suggested to us) is incorrect to say the least, as is clear
from a close reading of the Second Judges case and the D
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 evident from an article titled "Merit" in the
Appointment of Judges' 159 which quotes from an issue of India E
Today magazine of 25 1h January, 1999 the following noting
made by the President concerning the appointment of judges
of the Supreme Court:
      "I would like to record my views that while recommending     F
      the appointment of Supreme Court judges, it would be
      consonant with constitutional principles and the nation's
      social objectives if persons b!31onging to weaker sections
      of society like SCs and STs, who comprise 25 per cent
      of the population, and women are given due                   G
      consideration. Eligible persons from these categories
      are available and their under-representation or non-
      representation would not be justifiable. Keeping
159 By Professor M.P. Singh, (1999) 8 SCC (Jour) 1

                                                                   H
738         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A          vacancies unfilled is also not desirable given the need
           for representation of different sections of society and the
           volume of work the Supreme Court is required to handle."
             The Chief Justice of India is reported to have responded
      as follows:
8
           "I would like to assert that merit alone has been the
           criterion for selection of Judges and no discrimination
           has been done while making appointments. All eligible
           candidates, including those belonging to the Scheduled
c          Castes and Tribes, are considered by us while
           recommending names for appointment as Supreme
           Court Judges. Our Constitution envisages that merit
           alone is the criterion for all appointments to the Supreme ·
           Court and High Courts. And we are scrupulously adhering
D          to these provisions. An unfilled vacancy may not cause
           as much harm as a wrongly filled vacancy."
            190. All that was needed to keep the collegium system
      on the rails was the unstinted cooperation ofthe executive and
E     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 this Court.
F            191. On the other hand, an independent and impartial
      jurist, Lord Templeman praised the integrated consultative
      collegium system and recommended it as a method that the
      British could follow with advantage. The learned judge wrote:

G          "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
H
      SUPREME COURT ADVOCATES-ON-RECORD                                        739
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      results of the appointment of Supreme Court judges of A
      the United States by the Pre~ident subject to approval
      by Congress, the majority decision of the Supreme Court
      of India in the Advocates on Record case marks a
      welcome assertion of the independence of the judiciary
      and is the best method of obtaining appointments of B
      integrity and quality, a precedent method which the British
      could follow with advantage." 160
      While others shower praise on our system of appointment
of judges, we can only heap scorn!                                             c
    Preliminary issue - reconsideration of the Second
Judges case and the Third Judges case
       192. With this rather detailed history, the preliminary
objections raised by the learned Attorney-General need D
consideration. The learned Attorney-General raised three
preliminary issues: (1) The writ petitions are premature and
not maintainable since the 99th Constitution Amendment Act
and the NJAC Act have not come into force; (2) The writ
petitions are premature and not maintainable since the National E
Judicial Appointments Commission has not been constituted
and so there is no adverse impact of the 99th Constitution
Amendment Act and the NJAC and no facts have been pleaded
by the petitioners in this regard; (3) This batch of cases ought
to be heard by a Bench of 9 (nine) or more judges since the F
decision of this Court in the Second Judges case 161 and the
Third Judges case162 do not lay down the correct law but
require reconsideration. It was submitted that the decisions
have the effect of usurping the powers of the President under
Article 124(2) and Article 217(1) of the Constitution and that G
the judiciary has effectively converted the appointment of judges
160
     Supreme But Not Infallible, Essays in Honour of the Supreme Court of
India page 48, 53
161
     Supreme Court Advocates-on-Record Association v. Union of India, (1993)
4 SCC 441 (Nine Judges Bench)
 162
     Special Reference No. 1 of 1998, (1998) 7 sec 739 (Nine Judges Bench)     H
740        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A to the Supreme Court and the High Courts from 'consultation'
  between the President and the Chief Justice of India (as
  occurring in Article 124(2) of the Constitution) into 'concurrence'
  of the Chief Justice of India and giving birth to a 'right to insist'
  on the acceptance of a recommendation of the Chief Justice
B of India. Moreover, the doctrine of separation of powers
  between the Legislature, the Executive and the Judiciary has
  been thrown overboard as also the system of checks and
  balances inherent in the Constitution. To decide this particular
  preliminary issue, the learned Attorney-General referred to the
C separation of powers in our Constitution, the law and the
  principles on which this Court should proceed to decide
  whether an earlier or prior decision rendered requires to be
  reconsidered.
 o       193. As far as the first preliminary objection is concerned,
   it was raised before the 99lh Constitution Amendment Act and
   the NJAC Act came into force. Now the preliminary objection
   does not survive since the ggih Constitution Amendment Act
   and the NJAC Act have in fact been brought into force. The
 E second preliminary objection has no substance since the
   question in these petitions relates to the basic structure of the
   Constitution and the independence of the judiciary. It would be
   facetious to say that the writ petitions should have been filed
   after an adverse impact is felt by the alteration of the basic
 F structure of the Constitution and after the independence of the
   judiciary is bartered away. If the petitioners were expected to
   wait that long it would perhaps be too late. That apart, since
   we have heard these petitions at length, it is advisable to
   pronounce on the substantive issues raised. Really speaking,
 G it is only the third preliminary objection that needs
   consideration.
           The third preliminary objection and the separation
      of powers
 H
        SUPREME COURT ADVOCATES-ON-RECORD                              741
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     194. The issue of the separation of powers has been the           A
subject matter of discussion in several cases. Broadly, the
consistent vie"'! of this Court has been that while the Constitution
recognizes the separation of powers, it .is not a rigid separation
and there is some overlap.
                                                                       B
     195. In Ram Jawaya Kapur v. State of Punjab 163 it
was held by Chief Justice Mukherjea speaking for this Court:
        "It may not be possible to frame an exhaustive definition
         of what executive function means and implies. Ordinarily
         the executive power connotes the residue of C
         governmental functions that remain after legislative and
        judicial functions are taken away. The Indian Constitution
         has not indeed recognised the doctrine of separation of
         powers in its absolute rigidity but the functions of the
         different parts or branches of the Government have been D
         sufficiently differentiated and consequently it can very well
         be said that our Constitution does not contemplate
         assumption, by one organ or part of the State, of functions
         that essentially belong to another. The executive indeed
         can exercise the powers of departmental or subordinate E
         legislation when such powers are delegated to it by the
         legislature. It can also, when so empowered exercise
         judicial functions in a limited way. The executive
       _ Government, however, can never go against the F
         provisions of the Constitution or of any law." 164
      196, 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 recognized by our Constitution and Article 226 and G
Article 32 Oudicial review) is one of the features of checks and
balances. It was so held in Kesavananda Bharati v. State of
163 [1955] 2 SCR 225 (Five Judges Bench)
164
      Paragraph 12
                                                                       H
742           SUPREME COURT REPORTS                             [2015] 13S.C.R.


A     Kera/a 165 where it was said by Justice Shelat and Justice
      Grover as follows:
             "There is ample evidence in the ConstitlJtion itself to
             indicate that it creates a system of checks and balances
             by reason of which powers are so distributed that none
B
             of the three organs it sets up can become so pre-
             dominant as to disable the others from exercising and
             discharging powers and functions entrusted to them.
             Though the Constitution does not lay down the principle
c            of separation of powers in all its rigidity as is the case in
             the United States Constitution yet it envisages such a
             separation to a degree as was found in Ranasinghe
             case. 166 The judicial review provided expressly in our
             Constitution by means of Articles 226 and 32 is one of
D            the features upon which hinges the system of checks and
             balances." 167
            197. In Indira Nehru Gandhi v. Raj Narain 168 the
      constitutional validity of the Constitution (Thirty-ninth
      Amendment) Act, 1975 was challenged. By this Amendment
 E    Act, Article 39-A was inserted in the Constitution and the
      challenge was, inter alia, to clause (4) thereof. 169 While striking
      165
           (1973) 4 SCC 225 (Thirteen Judges Bench)
      166
           1965AC 172
       167
           Paragraph 577
 F    166
           1975 Supp SCC 1 (Five Judges Bench)
       169
            (4) No law made by Parliament before the commencement of the
      Constitution (Thirty-ninth Amendment) Act, 1975, insofar as it relates to election
      petitions and matters connected therewith shall apply or shall be deemed
      ever to have applied to or in relation to the election of any such person as is
      referred to in clause (1) to either House of Parliament and such election shall
 G    not be deemed to be void or ever to have become void on any ground on
      which such election could be declared to be void, or has, before such
      commencement, been declared to be void under any such law and
      notwithstanding any order made by any court, before such commencement,
      declaring such election to be void, such election shall continue to be valid in
      all respects and any such order and any finding on which such order is
      based shall be and shall be deemed always to have been void and of no
 H    effect.
         SUPREME COURT ADVOCATES-ON-RECORD                           743
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

down the offending clause, it was held by Justice H.R. Khanna:       A
         "A declaration that an order made by a court of law is
         void is normally part of the judicial function and is not a
         legislative function. Although there is in the Constitution
         of India no rigid separation of powers, by and large the
                                                                       6
         spheres of judicial function and legislative function have
         been demarcated and it is not permissible for the
         legislature to encroach upon the judicial sphere. It has
         accordingly been held that a legislature while it is entitled
         to change with retrospective effect the law which formed    c
         the basis of the judicial decision, it is not permissible to
         the legislature to declare the judgment of the court to be
         void or not binding (see Shri Prithvi Cotton Mills Ltd. v.
         Broach Borough Municipality, Janapada Sabha,
         Chhindwara v. Central Provinces Syndicate Ltd., D
         Municipal Corporation of the City of Ahmedabad v. New
         Shorock Spg. & Wvg. Co. Ltd. and State of Tamil Nadu
         v. M. Rayappa Gounder)." 170 (Internal citations omitted).
      198. Justice Mathew held that ours is a cooperative
federalism that does not contain any rigid separation of powers       E
and there exists a system of checks and balances. Harold Laski
was quoted as saying that 'Separation of powers does not
mean the equal balance of powers. ' 171 In that context it was
held that the exercise of judicial power by the Legislature is        F
impermissible. The learned judge expressed the view that:
         "Montesquieu was the first to conceive of the three
         functions of Government as exercised by three organs,
         each juxtaposed against others. He realised that the
         efficient operation of Government involved a certain         G
         degree of overlapping and that the theory of checks and
         balances required each organ to impede too great an
         aggrandizement of authority by the other two powers. As
110
      Paragraph 190
111
      A Grammar of Politics (Works of Harold J. Laski), 297           H
744             SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A              Holdsworth says, Montesquieu convinced the world that
               he had discovered a new constitutional principle which
               was universally valid. The doctrine of separation of
               governmental powers is not a mere theoretical,
               philosophical concept. It is a practical, work-a-day
B              principle. The division of Governmentinto three branches
               does not imply, as its critics would have us think, three
               watertight compartments. Thus, legislative impeachment
               of executive officers or judges, executive veto over
               legislation, judicial review of administrative or legislative
c              actions are treated as partial exceptions which need
               explanation." 172
            199. Justice Y.V. Chandrachud made a distinction
      between the separation of powers as understood in the United
o     States and Australia and as understood in India and expressed
      the following view in this regard:
                "The American Constitution provides for a rigid
                separation of governmental powers into three basic
                divisions, the executive, legislative and judicial. It is an
E               essential principle of that Constitution that powers
                entrusted to one department should not be exercised by
                any other department. The Australian Constitution follows
                the same pattern of distribution of powers. Unlike these
                Constitutions, the Indian Constitution does not expressly
F
                vest the three kinds of power in three different organs of
                the State. But the principle of separation of powers is
                not a magic formula for keeping the three organs of the
                State within the strict confines of their functions. As
G               observed by Cardozo, J. in his dissenting opinion in
                Panama Refining Company v. Ryan 173 the principle of
                separation of powers "is not a doctrinaire concept to be
              . made use of with pedantic rigour. There must be sensible
      172
            Paragraph 318
H     173
            293 U.S. 388 (1935)
         SUPREME COURT ADVOCATES-ON-RECORD                               745
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

         approximation, there must be elasticity of adjustment in        A
         response to the practical necessities of Government
         which cannot foresee today the developments of
         tomorrow in their nearly infinite variety". Thus, even in
         America, despite the theory that the legislature cannot
         delegate its power to the executive, a host of rules and        B
         regulations are passed by non-legislative bodies, which
         have been judicially recognized as valid." 174
         200. In Minerva Mills Ltd. v. Union of lndia 175 Justice
Bhagwati opined that the Constitution has devised a structure            c
for the separation of powers and checks and balances and
held:
         "It is clear from the majority decision in Kesavananda
         Bharati case that our Constitution is a controlled
         Constitution which confers powers on the various                D
         authorities created and recognised by it and defines the
         limits of those powers. The Constitution is suprema lex,
         the paramount law of the land and there is no authority,
         no department or branch of the State which is above or
         beyond the Constitution or has powers unfettered and            E
         unrestricted by the Constitution. The Constitution has
         devised a structure of power relationship with checks and
         balances and limits are placed on the powers of every
         authority or instrumentality under the Constitution. Every      F
         organ of the State, be it the executive or the legislature
         or the judiciary, derives its authority from the Constitution
         and it has to act within the limits of such authority." 176
         201. A little later, it was observed by the learned judge:
         "It is a fundamental principle of our constitutional scheme,    G
         and I have pointed this out in the preceding paragraph,

    74
'   Paragraph 87
175
    (1980) 3 SCC 625 (Five Judges Bench)
176
    Paragraph 86
                                                                         H
746           SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A             that every organ of the State, every authority under the
              Constitution, derives its power from the Constitution and
              has to act within the limits of such power. But then the
              question arises as to which authority must decide what
              are the limits on the power conferred upon each organ
B             or instrumentality of the State and whether such limits
              are transgressed or exceeded. Now there are three main
              departments of the State amongst which the powers of
              government are divided; the executive, the legislature and
              the judiciary. Under our Constitution we have no rigid
c           . separation of powers as in the United States of America,
              but there is a broad demarcation, though, having regard
              to the complex nature of governmental functions, certain
              degree of overlapping is inevitable. The reason for this
              broad separation of powers is that "the concentration of
D
              powers in any one organ may" to quote the words of
              Chandrachud, J;, (as he then was) in Indira Gandhi case
              'by upsetting that fine balance between the three organs,
              destroy the fundamental premises of a democratic
              government to which we are pledged'." 177
E
             202. In l.R. Coelho v. State of Tamil Nadu 176 it was
      held by Chief Justice Sabharwal speaking for the Court that
      the doctrine of separation bf powers is a part of the basic
      structure of the Constitution. It was held:
F
             "The separation of powers between Legislature,
             Executive and the Judiciary constitutes basic structure,
             has been found in Kesavananda Bharati case by the
             majority. Later, it was reiterated in Indira Gandhi case. A
G            large number of judgments have reiterated that the
             separation of powers is one of the basic features of the
             Constitution." 179
      177
          Paragraph 87
      178
          (2007) 2 SCC 1 (Nine Judges Bench)
H     179
          Paragraph 63. This has been reiterated in paragraphs 67, 125 and 129.
     SUPREME COURT ADVOCATES-ON-RECORD                               747
      ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.]

     203. In Bhim Singh v. Union of lndia 180 it was held that . A
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 B
essential function of another branch, then there is a violation
of the principle. It was observed by Justice Sathasivam
speaking for the Court, while considering the constitutional
validity of the Members of Parliament Local Area Development
Scheme:                                                             C
      "The concept of separation of powers, even though not
      found in any particular constitutional provision, is inherent
      in the polity the Constitution has adopted. The aim of
      separation of powers is to achieve the maximum extent D
      of accountability of each branch of the Government.
      While understanding this concept [of separation of
      powers], two aspects must be borne in mind. One, that
      separation of powers is an essential feature of the
      Constitution. Two, that in modern governance, a strict         E
      separation is neither possible, nor desirable.
      Nevertheless, till this principle of accountability is
      preserved, there is no violation of separation of powers.
      We arrive at the same conclusion when we assess the            F
      position within the constitutional text. The Constitution
      does not prohibit overlap of functions, but in fact provides
      for some overlap as a parliamentary democracy. But what
      it prohibits is such exercise offunction of the other branch
      which results in wresting away of the regime of                G
      constitutional accountability.
      Thus, the test for the violation of separation of powers
      must be precisely this. A law would be violative of
180 (2010) 5 SCC 538 (Five Judges Bench)

                                                                     H
748           SUPREME COURT REPORTS                        [2015] 13 S.C.R.


A            separation of powers not if it results in some overlap of
             functions of different branches of the State, but if it takes
             over an essential function of the other branch leading to
             lapse in constitutional accountability." 181
            204. Finally, in State of Tamil Nadu v. State of Kerala 182
8
      there is an elaborate discussion on the separation of powers
      with reference to several cases decided by this Court. 183 It was
      held therein that in view of the doctrine of the, separation of
      powers (and for other reasons as well) the Kerala Irrigation
c     and Water Conservation (Amendment) Act, 2006 passed by
      the Kera la Legislature is unconstitutional since it seeks to nullify
      the decision of this Court in Mul/aperiyar Environmental
      Protection Forum v. Union oflndia. 184
            205. The submission of the learned Attorney-General was
D     that the appointment of a judge of the Supreme Court or a
      High Court is an executive function and this has been so held
      even in the Second Judges case. Justice Ahmadi held that
      the appointment of judges is an executive function 185 as did
      Justice Verma. 186 By an unsustainable interpretation of the
E     Constitution (an interpretation which, according to the learned
      Attorney-General must have made Dr. Ambedkar turn in his
      grave), this executive function has been taken over or usurped
      by the judiciary and that is the reason why the Second Judges
F     case requires to be reconsidered and the correct constitutional
      position deserves to be restored. In other words, by a process
      of judicial encroachment, the separation of power theory has
      been broken down by this Court, in violation of the basic
      structure of the Constitution.

G     181
           Paragraphs 77 and 78
      162
           (2014) 12 SCC 696 (Five Judges Bench)
       163
           Paragraphs 98 to 126.7. The conclusions are stated in paragraphs 126.1
      to 126.7.
       184
           (2006) 3 SCC 643 (Five Judges Bench)
       185
           Paragraph 298 and 304
H      186
           Paragraph 443
      SUPREME COURT ADVOCATES-ON-RECORD                                        749
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     Constituent Assembly Debates and the third                                A
preliminary issue
      206. In further support of his contention that the Second
Judges case and the Third Judges case do not lay down the
correct law and need reconsideration, the learned Attorney-
                                                                               8
General placed great reliance on the CAD. It is necessary,
therefore, to consider the law on the subject and then the
debates.
      207. In Administrator-General of Bengal v. Prem Lal
Mullick187 the Privy Council did not approve of a reference to C
debates in the Legislature as a legitimate aid to the
construction of a statute. It was held:
      "Their Lordships observe that the two learned Judges
      who constituted the majority in the Appellate Court, D
      although they do not base their judgment upon them, refer
      to the proceedings of the Legislature which resulted in
      the passing of the Act of 1874 [Administrator-General's
      Act] as legitimate aids to the construction of Section 31.
      Their Lordships think it right to express their dissent from E
      that proposition. The same reasons which exclude these
      considerations when the clauses of an Act of the British
      Legislature are under construction are equally cogent in
      the case of an Indian statute."
      208. This view was partially accepted, with reference to                 F
                                                             188
the CAD in A.K. Gopalan v. State of Madras            by Chief
Justice Harilal Kania who held that reference may be made to
the CAD with great caution and only when 'latent ambiguities
are to be resolved.' 189 The learned Chief Justice observed:
                                                                               G
      "Our attention was drawn to the debates and report of
      the drafting committee of the Constituent Assembly in
187
    (1894-95) 221.A. 107, 118
188
    1950 SCR 88 (6 Judges Bench)
169
    Quoted from Willoughby on the Constitution of the United States, page 64   H
750            SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A              respect of the wording of this clause. The report may be
               read not to control the meaning of the article, but may be
               seen in case of ambiguity. In Municipal Council of
               Sydney v. The Commonwea/th 190 it was thought that
               individual opinion of members of the Convention
B              expressed in the debate cannot be referred to for the
               purpose of construing the Constitution. The same opinion
               was expressed in United States v. Wong Kim Ark. 191 The
               result appears to be that while it is not proper to take into
               consideration the individual opinions of Members of
c              Parliament or Convention to construe the meaning of the
               particular clause, when a question is raised whether a
               certain phrase or expression was up for consideration
               at all or not, a reference to the debates may be permitted.
               In the present case the debates were referred to show
D
               that the expression "due process of law" was known to
               exist in the American Constitution and after a discussion
               was not adopted by the Constituent Assembly in our
               Constitution. In Administrator General of Bengal v.
               Prem/al Mullick a reference to the proceedings of the
 E
               legislature which resulted in the passing of the Act was
               not considered legitimate aid in the construction of a
               particular section. The same reasons were held as cogent
               for excluding a reference to such debates in construing
 F             an Indian statute. Resort may be had to these sources
               with great caution and only when latent ambiguities are
               to be resolved." 192
        209. This view was endorsed by Fazl Ali, J who referred
  to the expression 'due process of law' which was originally
G interpreted by the United States Supreme Court as referring
  to matters of procedure but was subsequently widened to cover
  substantive law as well. The learned judge held:
      190
            (1904) 1 Com LR 208
      191
            169 us 649, 699
 H    192
            Page 110 and 111
              SUPREME COURT ADVOCATES-ON-RECORD                          751
               ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.J

              "In the course of the arguments, the learned Attorney- A
              General referred us to the proceedings in the Constituent
              Assembly for the purpose of showing that the article as
              originally drafted contained the words "without due
              process of law" but these words were subsequently
              replaced by the words "except according to procedure B
              established by law". In my opinion, though the
              proceedings or discussions in the Assembly are not
              relevant for the purpose of construing the meaning of the
              expressions used in Article 21 , especially when they are
              plain and unambiguous, they are relevant to show that C
              the Assembly intended to avoid the use of the expression
              "without due process of law" ....... In the earliest times,
              the American Supreme Court construed "due process
              of law" to cover matters of procedure only, but gradually D
              the meaning of the expression was widened so as to
              cover substantive law also, by laying emphasis on the
              word "due". 193
              210. Justice Patanjali Sastri was of the same opinion
    and so the learned judge held as follows:                             E
              "Learned counsel drew attention to the speeches made
              by several members of the Assembly on the floor of the
              House for explaining, as he put it, the "historical
              background".Aspeech·made in the course of the debate F
              on a bill could at best be indicative of the subjective intent
              of the speaker, but it could not reflect the inarticulate
              mental processes lying behind the majority vote which
              carried the bill. Nor is it reasonable to assume that the
              minds of all those legislators were in accord. The Court G
              could only search for the objective intent of the legislature
              primarily in the words used in the enactment, aided by
              such historical material as reports of statutory
    1
·       "   Page 158 and 159
                                                                          H
752            SUPREME COURT REPORTS                     [2015) 13 S.C.R.


A              committees, preambles etc. I attach no importance,
               therefore, to the speeches made by some of the
               members of the ConstituentAssembly in the course of
               the debate on Article 15 (now Article 21 )". 194
           211. Justice Mukherjea noted the concession of the
 8
      learned Attorney-General that the CAD are not admissible to
      explain the meaning of the words used - a position quite the
      opposite from what is now taken by the learned Attorney-
      General. The learned judge then observed that such extrinsic
c     evidence is best left out of account and held as follows:
               'The learned Attorney-General has placed before us the
               debates in the Constituent Assembly centering round the
               adoption of this recommendation of the Drafting
               Committee and he has referred us to the speeches of ·
D              several members of the Assembly who played an
               important part in the shaping of the Constitution. As an
               aid to discover the meaning of the words in a Constitution,
               these debates are of doubtful value. "Resort can be had
               to them"' says Willoughby, "with great caution and only
E              when latent ambiguities are to be solved. The
               proceedings may be of some value when they clearly
               point out the purpose of the provision. But when the
               question is of abstract meaning, it will be difficult to derive
               from this source much· material assistance in
 F
               interpretation."
               The learned Attorney-General concedes that these
               debates are not admissible to explain the meaning of
               the words used and he wanted to use them only for the
G              purpose of showing that the Constituent Assembly when
               they finally adopted the recommendation of the Drafting
               Committee, were fully aware of the implications of the
               differences between the old form of expression and the
      194
            Page 201 and 202
H
        SUPREME COURT ADVOCATES-ON-RECORD                           753
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        new. In my opinion, in interpreting the Constitution, it will A
        be better if such extrinsic evidence is left out of account.
        In matters like this, different members act upon different
        impulses and from different motives and it is quite
        possible that some members accepted certain words in
        a particular sense, while others took them in a different B
        light."195
        212. Justice S.R. Das specifically stated that he
expresses no opinion on the question of admissibility or
otherwise of the CAD to interpret the Constitution.                  c
      213. In State .of Travancore-Cochin v. The Bombay
Co. Ltd. 196 it was unanimously held that reference to the CAD
is unwarranted and such an extrinsic aid to the interpretation
of statutes is not admissible. Speaking for the Court, Chief
Justice Patanjali Sastri held:                                 D
        "It remains only to point out that the use made by the
        learned Judges below of the speeches made by the
        members of the Constituent Assembly in the course of
        the debates on the draft Constitution is unwarranted. That E
        this form of extrinsic aid to the interpretation of statutes
        is not admissible has been generally accepted in
        England, and the same rule has been observed in the
        construction of Indian statutes - see Administrator-
        General of Bengal v. Prem Lal Mallick. The reason F
        behind the rule was explained by one of us in Gopalan
        case thus:
            "A speech made in the course of the debate on a bill
            could at best be indicative of the subjective intent of G
            the speaker, but it could not reflect the inarticulate
            mental process lying behind the majority vote which
            carried the bill. Nor is it reasonable to assume that
195
      Page 273 and 27 4
196
      1952 SCR 1112 (5 Judges Bench)
                                                                     H
754          SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A              the minds of all those legislators were in accord,"
            or, as it is more tersely put in an American case-
               ''Those who did not speak may not have agreed with
               those who did; and those who spoke might differfrom
B              each other- United States v. Trans-Missouri Freight
               Association. 197" 198
           214. In Golak Nath v. State of Punjab 199 Chief Justice
      Subba Rao noted the submissions of the petitioners, one of
      which was:
c
            'The debates in the Constituent Assembly, particularly.
            the speech of Mr Jawahar Lal Nehru, the first Prime
            Minister of India, and the reply of Dr Ambedkar, who
            piloted the Bill disclose clearly that it was never the
D           intention of the makers of the Constitution by putting in
            Article 368 to enable the Parliament to repeal the
            fundamental rights; the circumstances under which the
            amendment moved by Mr H.V. Karnath, one of the
            members of Constituent Assembly, was withdrawn and
E           Article 368 was finally adopted, support the contention
            that amendment of Part Ill is outside the scope of Article
            368."200
            215. The submissions of the learned Attorney-General
 F    were also noted and one of which was, again, diametrically
      opposed to the submission made before us by the learned
      Attorney-General:
            "Debates in the Constituent Assembly cannot be relied
            upon for construing Article 368 of the Constitution and
G           even if they can be, there is nothing in the debates to
            prove positively that fundamental rights were excluded
      197
          169 us 290, 318
      '"Page 1121
      199
          (1967) 2 SCR 762 (11 Judges Bench)
H     200
          Page 782
        SUPREME COURT ADVOCATES-ON-RECORD                               755
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        from amendment."201                                             A
      216. The learned Chief Justice (speaking for the majority)
referred to the CAD and observed:
        "We have referred to the speeches of Pandit Jawaharlal
        Nehru and Dr. Ambedkar not with a view to interpret the B
        provisions of Art. 368, which we propose to do on its
        own terms, but only to notice the transcendental character
        given to the fundamental rights by two of the important
        architects of the Constitution."202 .
      217. Justice Wanchoo dealt with the issue a bit more C
elaborately and on a consideration of the law (drawing support
from Prem Lal Mullick and A.K. Gopalan) held that the CAD
could not be looked into for interpreting Article 368 of the
Constitution and that the said Article 'must be interpreted on D
the words thereof as they finally found place in the Constitution.'
It was said:
        "Copious references were made during the course of
        arguments to debates in Parliament and it is urged that
        it is open to this Court to look into the debates in order to   E
        interpret Article 368 to find out the intention of the
        Constitution-makers. We are of opinion that we cannot
        and should not look into the debates that took place in
        the Constituent Assembly to determine the interpretation
        of Article 368 and the scope and extent of the provision        F
        contained therein. It may be conceded that historical
        background and perhaps what was accepted or what
        was rejected by the Constituent Assembly while the
        Constitution was being framed, may be taken into
        account in finding out the scope and extent of Article 368.     G
        But we have no doubt that what was spoken in the
        debates in the Constituent Assembly cannot and should
201
      Page 783
202
      Page 792
                                                                        H
756          SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A           not be looked into in order to interpretArticle 368 .......... .
            We are therefore of opinion that it is not possible to read
            the speeches made in the Constituent Assembly in order
            to interpret Article 368 or to define its extent and scope
            and to determine what it takes in and what it does not.
B
            As to the historical facts, namely, what was accepted or
            what was avoided in the Constituent Assembly in
            connection with Article 368, it is enough to say that we
            have not been able to find any help from the material
c           relating to this. There were proposals for restricting the
            power of amendment under Article 368 and making
            fundamental rights immune therefrom and there were
            counter proposals before the Constituent Assembly for
            making the power of amendment all-embracing. They
D           were all either dropped or negatived and in the
            circumstances are of no help in determining the
            interpretation of Article 368 which must be interpreted
            on the words thereof as they finally found place in the
            Constitution, and on those words we have no doubt that
E           there are no implied limitations of any kind on the power
            to amend given therein."203
            218. Justice Bachawat concluded his judgment by
      referring to the issue of the CAD being an aid to interpreting
 F    the Constitution. In rather terse words, the learned judge
      rejected the submission made in this regard and relied upon
      State of Travancore-Cochin. This is what was said:
            "Before concluding this judgment I must refer to some of
            the speeches made by the members of the Constituent
G           Assembly in the course of debates on the draft
            constitution. These speeches cannot be used as aids
            for interpreting the Constitution. See State of Travancore-
            Cochin and others v. Bombay Co. Ltd. Accordingly, I do
      20 3 Page 836, 837 and 838
H
       SUPREME COURT ADVOCATES-ON-RECORD                            757
        ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.]

       not rely on them as aids to construction." 204               A
       219. Justice Bachawat also makes a rather interesting
reference to a special article written by Sir 8.N. Rau
(Constitutional Adviser) on 151h August, 1948. Sir Senegal
remarked:
                                                                    8
       "It seems rather illogical that a constitution should be
       settled by simple majority by an assembly elected
       indirectly on a very limited franchise and that it should .
       not be capable of being amended in the same way by a
       Parliament elected - and perhaps for the most part C
       elected directly by adult suffrage."205
      This is mentioned, without any comment, only to throw
open the thought whether the interpretation of the Constitution
can be tied down forever to the views expressed by a few            D
Hon'ble Members of the Constituent Assembly, who were
undoubtedly extremely learned and visionary but who
nevertheless constituted 'an assembly elected indirectly on a
very limited franchise'.
      220. In Kesavananda Bharati it was held by Chief E
Justice Sikri that 'speeches made by members of the
legislature in the course of debates relating to the enactment
of a statute cannot be used as aids for interpreting any
provisions of the statute.' The learned Chief Justice held that
the same rule is applicable to provisions of the Constitution F
as well and for this reliance was placed, inter alia, on Prem
Lal Mullick, A.K Gopalan, State ofTravancore-Cochin and
Golak Nath. Explaining Union of India v. H.S. Dhillon206 the
learned Chief Justice said:
                                                                      G
      "In Union oflndia v. H.S. Dhillon I, on behalf of the majority,
      before referring to the speeches observed at p. 58 that
20
  ' Page 922
205
     Page 917
20s (1972) 2 SCR 331
                                                                     H
758            SUPREME COURT REPORTS                     [2015) 13 S.C.R.


A              "we are however, glad to find from the following extracts
               from the debates that our interpretation accords with what
               was intended". There is no harm in finding confirmation
               of one's interpretation in debates but it is quite a different
               thing to interpret the provisions of the Constitution in the
B              light of the debates."207
            221. Apart from relying on case law, the learned Chief
      Justice gave an additional reason for concluding that reliance
      on the CAD was not advisable for interpreting the provisions
c     of the Constitution. This is best understood in the words of the
      learned Chief Justice:
               'There is an additional reason for not referring to debates
               for the purpose of interpretation. The Constitution, as far
               as most of the Indian States were concerned, came into
D              operation only because of the acceptance by the Ruler
               or Rajpramukh. This is borne out by the following extract
               from the statement of Sardar Vallabhbhai Patel in the
               Constituent Assembly on October 12, 1949, (CAD, Vol.
               X, pp. 161-63):
E
                  "Unfortunately we have no properly constituted
                  legislatures in the rest of the States (apart from Mysore,
                  Saurashtra and Travancore and Cochin Union) nor will
                  it be possible to have legislatures constituted in them
 F                before the Constitution of India emerges in its final
                  form. We have, therefore, no option but to make the
                  Constitution operative in these States on the basis of
                  its acceptance by the Rulers or the Rajpramukh, as
                  the case may be, who will no doubt consult his Council
G                 of Ministers."
               In accordance with this statement, declarations were
               issued by the Rulers or Rajpramukhs accepting the

      201
            Paragraph 183
H
           SUPREME COURT ADVOCATES-ON-RECORD                                759
            ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.]

            Constitution.                                                   A
            It seems to me that wh.en a Ruler or Rajpramukh or the
            people of the State accepted the Constitution of India in
            its final form, he did not accept it subject to the speeches
            made during the Constituent Assembly debates. The
                                                                            8
            speeches can, in my view, be relied on only in order to
            see if the course of the progress of a particular provision
            or provisions throws any light on the historical background
            or shows that a common understanding or agreement
            was arrived at between certain sections of the people."208      c
      222. Justice Hegde and Justice AK Mukherjea also held
that reliance could not be placed on the CAD to interpret any
provision of the Constitution. Reference was made to State
of Travancore-Cochin and it was held:
                                                                            D
            "For finding out the true scope of Article 31(2) as it stands
            now, the learned Advocate-General of Maharashtra as
            well as the Solicitor-General has taken us through the
            history of this article. According to them the article as it
            stands now truly represents the intention of the                E
            Constitution-makers. In support of that contention, we
            were asked to go through the Constituent Assembly
            debates relating to that article. In particular we were
            invited to go through the speeches made by Pandit
            Nehru, Sir Alladi Krishnaswami Ayyar, Dr Munshi and Dr          F
            Ambedkar. In our opinion, it is impermissible for us to do
            so. It is a well-settled rule ofconstruction that speeches
            made by members of a Legislature in the course of
            debates relating to the enactment of a statute cannot be
            used as aids for interpreting any of the provisions of the      G
            statute. The same rule is applicable when we are called
            upon to interpret the provisions of a Constitution." 209
20
     •   Paragraph 184 to 186
209 Paragraph 683

                                                                            H
760            SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A          The learned judges observed that no decision was
      brought to their notice dissenting with the view mentioned
      above.
            223. Justice HR Khanna was also of the opinion that the
      CAD could be referred only for the limited purpose of
8
      determining the history of the constitutional provision. The CAD
      'cannot form the basis for construing the provisions of the
      Constitution.' The learned judge further said that the intention
      of the draftsman of a statute would have to be gathered from
c     the words used. The learned judge said:
               "The speeches in the Constituent Assembly, in my
               opinion, can be referred to for finding the history of the
               Constitutional provision and the background against
               which the said provision was drafted. The speeches can
D              also shed light to show as to what was the mischief which
               was sought to be remedied and what was the object which
               was sought to be attained in drafting the provision. The
               speeches cannot, however, form the basis for construing
               the provisions of the Constitution. The task of interpreting
E
               the provision of the Constitution has to be done
               independently and the reference to the speeches made
               in the Constituent Assembly does not absolve thecourt
               from performing that task. The draftsmen are supposed
               to have expressed their intentions in the words used by
 F
               them in the provisions. Those words are final repositories
               of the intention and it would be ultimately from the words
               of the provision that the intention of the draftsmen would
               have to be gathered."210
G         224. Justice Y.V. Chandrachud relied upon State of
      Travancore-Cochin, A.K. Gopalan and Golak Nath to
      conclude:
               "Debates of the Constituent Assembly and of the First
H     210
            Paragraph 1368
        SUPREME COURT ADVOCATES-ON-RECORD                             761
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        Provisional Parliament were extensively read out to us        A
        during the course of arguments. I read the speeches with
        interest, but in my opinion, the debates are not admissible
        as aids to construction of constitutional provisions." 211
        A little later it was said:
                                                                 B
        "It is hazar-dous to rely upon parliamentary debates as
        aids to statutory construction. Different speakers have
        different motives and the system of "Party Whip" leaves
        no warrant for assuming that those who voted but did not
        speak were of identical persuasion. That assumption may C
        be difficult to make even in regard to those who speak.
        The safest course is to gather the intention of the
        legislature from the language it uses. Therefore,
        parliamentary proceedings can be used only for a limited
        purpose as explained in Gopalan case."212         ·      D
      225. A contrary view was rhetorically expressed by
Justice Jaganmohan Reddy but it was eventually held that the
CAD could aid in interpretation, being 'valuable material' unlike
legislative debates which could be motivated by partisan views        E
and party politics. Constituent Assembly Debates were not
motivated by such partisan considerations. It was said:
         "Speaking for myself, why should we not look into them
         [CAD] boldly for ascertaining what was the intention of
        ·our framers and how they translated that intention? What F
         is the rationale for treating them as forbidden or
         forbidding material. The Court in a constitutional matter,
         where the intent of the framers of the Constitution as
         embodied in the written document is to be ascertained,
         should look into the proceedings, the relevant data G
         including any speech which may throw light on
         ascertaining it. It can reject them as unhelpful, if they throw
211   Paragraph 2137
212
      Paragraph 2140
                                                                      H
762            SUPREME COURT REPORTS                      [2015] 13S.C.R.


A              no light or throw only dim light in which nothing can be
               discerned ........... In proceedings of a legislature on an
               ordinary draft bill, as I said earlier, there may be a partisan
               and heated debate, which often times may not throw any
               light on the issues which come before the Court but the
B              proceedings in a Constituent Assembly have no such
               partisan nuances and their only concern is to give the
               national a working instrument with its basic structure and
               human values sufficiently balanced and stable enough
               to allow an interplay of forces which will subserve the
c              needs of future generations. The highest Court created
               under it and charged with the duty of understanding and
               expounding it, should not, if it has to catch the objectives
               of the framers, deny itself the benefit of the guidance
               derivable from the records of the proceedings and the
D
               deliberations of the Assembly. "213
             226. Justice K.K. Mathew supported the view of Justice
      Jaganmohan Reddy and observed that: 'Logically, there is no
      reason why we should exclude altogether the speeches made
E     in the Constituent Assembly by individual members if they throw
      any light which will resolve latent ambiguity in a provision of
      Constitution.' The learned judge went on to hold in a subsequent
      paragraph of the decision:
               "If the debates in the Constituent Assembly can be looked
 F
               into to understand the legislative history of a provision of
               the Constitution including its derivation, that is, the various
               steps leading up to and attending its enactment, to
               ascertain the intention of the makers of the Constitution,
G              it is difficult to see why the debates are inadmissible to
               throw light on the purpose and general intent of the
               provision. After all, legislative history only tends to reveal
               the legislative purpose in enacting the provision and
      213
            Paragraph 1088
H
        SUPREME COURT ADVOCATES-ON-RECORD                               763
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        thereby sheds light upon legislative intent. It would be        A
        drawing an invisible distinction if resort to debates is
        permitted simply to show the legislative history and the
        same is not allowed to show the legislative intent in case
        of latent ambiguity in the provision." 214
                                                                        8
      227. In Samsher Singh in their concurring opinion, .
Justice Krishna Iyer (for himself and Justice P.N. Bhagwati)
extensively referred to the CAD for arriving at their conclusion,
while Chief Justice Ray (for himself and four other learned
judges) made no reference to the CAD.                                   c
       228. Be that as it may, reference to the CAD again came
up for consideration in Indra Sawhney v. Union oflndia. 215
Speaking for the learned Chief Justice, Justice M.N.
Venkatachaliah, Justice Ahmadi and himself, Justice B.P.
Jeevan Reddy clarified that though the CAD or the speeches              D
of Dr. Ambedkar cannot be ignored, they are not conclusive or
binding on the Court but can be relied upon as an aid to
interpreting a constitutional provision. The CAD were referred
to for 'furnishing the context and the objective' to be achieved
by clause (4) of Article 16 of the Constitution. Reference was          E
made, inter alia, to Go/aknath, Dhillon and Kesavananda
Bharati and it was held:
         "We are aware that what is said during these debates is
         not conclusive or binding upon the Court because several       F
         members may have expressed several views, all of which
         may not be reflected in the provision finally enacted. The
         speech of Dr Ambedkar on this aspect, however, stands
         on a different footing. He was not only the Chairman of
         the Drafting Committee which inserted the expression           G
         "backward" in draft Article 10(3) [it was not there in the
         original draft Article 10(3)], he was virtually piloting the
214
      Paragraph 1598
215
      1992 Supp (3) SCC 217 (9 Judges Bench)
                                                                        H
764         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           draftArticle. In his speech, he explains the reason behind.
            draft clause (3) as also the reason for which the Drafting
            Committee added the expression "backward" in the
            clause. In this situation, we fail to understand how can
            anyone ignore his speech while trying tci ascertain the
 B          meaning of the said expression. That the debates in
            Constituent Assembly can be relied upon as an aid to
            interpretation of a constitutional provision is borne out
            by a series of decisions of this Court ......... Since the
            expression "backward" or "backward class of citizens"
c           is not defined in the Constitution, reference to such
            debates is permissible to ascertain, at any rate, the
            context, background and objective behind them.
            Particularly, where the Court wants to ascertain the
            'original intent' such reference may be unavoidable."216
 D
            229. In S.R. Chaudhuri v. State of Punjab 217 it was
      held that it is settled that the CAD may be relied upon 'as an
      aid to interpret a constitutional provision ·because it is the
      function of the court to find out the intention of the framers of
 E    the Constitution.' This view was followed by me in Manoj
      Narula v. Union of lndia. 218
            230. In T.M.A. Pai Foundation v. State ofKarnataka219
      Justice Khare referred to Kesavananda Bharati and
 F    observed therein that though the CAD are not conclusive, yet
      they can throw light into the intention of the framers in enacting
      provisions of the Constitution. On this basis the learned judge
      held:
            "Thus, the accepted view appears to be that the report
 G          of the Constituent Assembly debates can legitimately be
            taken into consideration for construction of the provisions
      216
          Paragraph 772
      211
          (2001 l 1 sec 126
      218
          (2014) 9 SCC 1 (5 Judges Bench)
 H    219
          (2002) 8 sec 481 (11 Judges Bench)
        SUPREME COURT ADVOCATES-ON-RECORD                             765
         ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.]

        of the Act or the Constitution." 220                           A
      231. Justice Variava (for himself and Justice Bhan) also
referred to Kesavananda Bharati and held that though the
CAD are not conclusive, but 'in a constitutional matter where
the intent of the framers of the Constitution is to be ascertained,
                                                                       8
the Court should look into the proceedings and the relevant
data, including the speeches, which throw light on ascertaining
the intent.'
      232.Justice Syed Shah Quadri stated an interesting
principle in the following words:                                      C
         "The correct way to interpret an article is to go by its plain
         language and lay bare the meaning it conveys. It would
         no doubt be useful to refer to the historical and political
         background which supports the interpretation ·given by D
         the court and in that context the debates of the Constituent
         Assembly would be the best record of understanding all
         those aspects. A host of considerations might have
         prompted the people of India through Members of
         Constituent Assembly to adopt, enact and to give to E
         themselves the Constitution. We are really concerned
         with what they have adopted, enacted and given to
         themselves in these documents. We cannot and we
         should not cause scar on it which would take years for
         the coming generations to remove from its face.'' 221          F
       233. The learned judge then went on to hold, relying on
Prem Lal Mullick, A.K. Gopalan, State of Travancore-
Cochin, Kesavananda Bharati and Indra Sawhney that
'admissibility of speeches made in the Constituent Assembly            G
for interpreting provisions of the Constitution is not permissible'
and that 'The preponderance of opinion appears to me not to
rely on the debates in the Constituent Assembly or the
220 This  conclusion appears to be doubtful
221
      Paragraph 286
                                                                       H
766               SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A     Parliament to interpret a constitutional provision although they
      may be relevant for other purposes.' The learned judge quoted
      a sentence from Black Clawson International Ltd. v.
      Papierwerke           Waldhof                Aschaffenburg
      Aktiengesellschaff 22 to the following effect:
 B
                  "We are seeking not what Parliament meant but the true
                  meaning of what Parliament said.'' 223
            234. In re: Special Reference No. 1 of 2002 (Gujarat
      Assembly Election Matter)224 the issue of relying on the CAD
C     again came up for consideration. Justice Khare (for the Chief
      Justice, Justice Bhan and himself) referred to Kesavananda
      Bharati and held:
                  "Constituent Assembly Debates although not conclusive,
                  yet show the intention of the framers of the Constitution
 D
                  in enacting provisions of the Constitution and the
                  Constituent Assembly Debates can throw light in
                  ascertaining the intention behind such provisions." 225
            235. In a decision rendered by the Constitutional Court
 E    of the Republic of South Africa in The State v. T.
      Makwanyane 226 a brief survey of the law in the United States
      Supreme Court, German Constitutional Court, Canadian
      Supreme Court, this Court, European Court of Human Rights
      and the United Nations Committee on Human Rights was
 F    carried out and it was held (per Justice Chaskalson):
                  In countries in which the constitution is similarly the
                  supreme law, it is not unusual for the courts to have regard
                  to the circumstances existing at the time the constitution
 G                was adopted, including the debates and writings which
                  formed part of the process. The United States Supreme
      222
               [1975] AC 591
      223      Paragraph 297
      22
           •   (2002i s sec 237
      225 Paragraph       16
 H    226
               1995 (3) SA 391 (CC) (Eleven Judges Bench) paragraph 16
        SUPREME COURT ADVOCATES-ON-RECORD                              767
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        Court pays attention to such matters, and its judgments        A
        frequently contain reviews of the legislative history of the
        provision in question, including references to debates,
        and statements made, at the time the provision was
        adopted. The German Constitutional Court also has
        regard to such evidence. The Canadian Supreme Court            B
        has held such evidence to be admissible, and has
        referred to the historical background including the pre-
        confederation debates for the purpose of interpreting
        provisions of the Canadian Constitution, although it
        attaches less weight to such information than the United       C
        States Supreme Court does. It also has regard to
        ministerial statements in Parliament in regard to the
        purpose of particular legislation. In India, whilst speeches
        of individual members of Parliament or the Convention
                                                                       D
        are apparently not ordinarily admissible, the reports of
        drafting committees can, according to Seervai, "be a
        helpful extrinsic aid to construction." Seervai cites Kania
        CJ in A. K. Gopalan v The State for the proposition that
        whilst not taking "... into consideration the individual       E
        opinions of Members of Parliament or Convention to
        construe the meaning of a particular clause, when a
        question is raised wl:lether a certain phrase or expression
        was up for consideration at all or not, a reference to
        debates may be permitted." The European Court of               F
        Human Rights and the United Nations Committee on
        Human Rights all allow their deliberations to be informed
        by travaux preparatoires." 227 (Internal citations omitted)
     236. Earlier, on a consideration of the law in England it
was held (per Justice Chaskalon):                              G
         "Debates in Parliament, including statements made by
         Ministers responsible for legislation, and explanatory
227
      Paragraph 16
                                                                       H
768          SUPREME COURT REPORTS                        [2015] 13 S.C.R.


.A          memoranda providing reasons for new bills have not
            been admitted as background material. It is, however,
            permissible to take notice of the report of a judicial
            commission of enquiry for the limited purpose of
            ascertaining "the mischief aimed at the statutory
 B          enactment in question." These principles were derived
            in part from English law. In England, the courts have
            recently relaxed this exclusionary rule and have held, in
            Pepper (Inspector of Taxes) v Hart that, subject to the
            privileges of the House of Commons:
c
               ... reference to Parliamentary material should be
               permitted as an aid to the construction of legislation
               which is ambiguous or obscure or t~e literal meaning
               of which leads to an absurdity. Even in such cases
 D             references in court to Parliamentary material should
               only be permitted where such material clearly
               discloses the mischief aimed at or the legislative
               intention lying behind the ambiguous or obscure
               words."228 (Internal citations omitted)
 E
         237. It is quite clear that the overwhelming view of the
   various learned judges in different decisions rendered by this
   Court and in other jurisdictions as well is that: (1) A reference
   may be made to the CAD or to Parliamentary debates (as
 F 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 the CAD or the
 G Parliamentary debates ought not to be made only because
   they are there; 229 (2) The CAD or Parliamentary debates ought
   not to be relied upon to interpret the provisions of the
      228
          Paragraph 14
      229
          With due apologies to George Mallory who is famously quoted as having
      replied to the question "Why do you want to climb Mount Everest?" with the
 H    retort "Because it's there."
      SUPREME COURT ADVOCATES-ON-RECORD                                          769
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

Constitution or the statute if there is no ambiguity in the                      A
language used. These provisions ought to be interpreted
independently- or at least, if reference is made to the CAD or
Parliamentary debates, the Court should not be unduly
influenced by the speeches made. Confirmation of the
interpretation may be sought from the CAD or the Parliamentary                   B
debates but not vice versa.
      238. This discussion has been necessitated by the
submission of the learned Attorney-General that the Constituent
Assembly did not intend that for the appointment of a judge of                   c
the Supreme Court or of the High Court the concurrence of the
Chief Justice of India is necessary. The word 'consultation' in
Article 124 of the Constitution and in Article 217 of the
Constitution did not and could not mean 'concurrence'. This,
according to the learned Attorney-General is specifically and                    D
clearly borne out from the CAD. In fact, the learned Atti,irney-
General drew our attention to the discussion that took place in
the Constituent Assembly on 23rc1 and 241h May, 1949.
      239. It was submitted that under the circumstances there
was no ambiguity in the meaning of the word 'consultation' E
and a reference to the CAD was necessary, applying the dictum
of Chief Justice Sikri, only to confirm the interpretation of
'consultation' as not meaning 'concurrence'. It is for this reason,
apart from others that the Second Judges case and the Third F
Judges case required reconsideration.
       240. The learned Attorney-General also drew our attention
to the following expression of opinion by Mr. T.T.
Krishnamachari in the ConstituentAssembly on 271h May, 1949
in relation to clause (3) of the draft Article 122 concerning the G
officers and servants and expenses of the Supreme Court. 230
230
    (3) The administrative expenses of the Supreme Court, including all
salaries, allowances and pensions payable to or in respect of the officers
and servants of the court, shall be charged upon the revenues of India. and
any fees or other moneys taken by the court shall form part of those revenues.   H
770         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     The contention was that it was not the intention of the Constituent
      Assembly to make the Chief Justice of India or the Supreme
      Court above the executive or the Legislature thereby discarding
      the theory of separation of powers, and if 'consultation' is
      interpreted to mean 'concurrence', then that would be the
 B    inevitable result. Reliance was placed on the following speech:
            "While I undoubtedly support the amendment moved by
            Dr. Ambedkar, I think it should be understood by the
            Members of this House, and I do hope by those people
c           who will be administering justice and also administering
            the country in the future that this is a safeguard rather
            than an operative provision. The only thing about it is that
            a matter like the employment of staff by the Judges should
            be placed ordinarily outside the purview of the Executive
D           which would otherwise have to take the initiative to include
            these items in the budget for the reason that the
            independence of the Judiciary should be maintained and
            that the Judiciary should not feel that they are subject to
            favours that the Executive might grant to them from time
 E          to time and which would naturally influence their decision
            in any matter they have to take where the interests of the
            Executive of the time being happens to be concerned.
            At the same time, Sir, I think it should be made clear that
            it is not the intention of this House or of the framers of
 F        . this Constitution that they want to create specially
            favoured bodies which in themselves becomes an
            lmperium in /mperio, completely independent of the
            Executive and the Legislature and operating as a sort of
            superior body to the general body politic. If that were so,
 G          I think we should be rather chary of introducing a provision
            of this nature, not merely in regard to the Supreme Court
          . but also in regard to the Auditor-General, in regard to the
            Union Public Service Commission, in regard to the
            Speaker and the President of the two House of
 H
         SUPREME COURT ADVOCATES-ON-RECORD                               771
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

         Parliament and so on, as we will thereby be creating a          A
         number of bodies which are placed in such a position
         that they are bound to come into conflict with the
         Executive in every attempt they make to display their
         superiority. In actual practice, it is better for all these
         bodies to more or less fall in line with the regulations that   B
         obtain in matters of recruitment to the public services,
         conditions of promotion and salaries paid to their staff."231
      Replying to this debate, Dr. Ambedkar clarified the
position that there was no question of creating an /mperium              c
in lmperio. Dr. 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          D .
        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 "lmperium in lmperio". We do not want to         E
        create an lmperium in lmperio, and at the same time
        we want to give the Judiciary ample independence so
        that it can act without fearorfavourofthe Executive. My
        friend, if they will carefully examine the provisions of the     F
         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 lmperium
         in lmperio, and I think it gives the Judiciary as much
        independence as is necessary for the purpose of                  G
        administering justice without fear or favour. I need not
        therefore, dilate on all the provisions contained in this
        new article 122 ..... "232
231
      http://parliamentofindia nic.in/ls/debates/vol8p1 Ob.him
232   http·Uparliamentofindia.njc jn/ls/debates/vol8p10b htm
                                                                         H
772            SUPREME COURT REPORTS              [2015] 13 S.C.R.


A         241. It is quite clear from the above that the endeavour
    of Dr. Ambedkar was to ensure the independence of the
   judiciary from the executive witho.ut creating any power
    imbalance and this, therefore, needed steering a middle course
    whether in the appointment of judges or the officers of the
B Supreme Court. There can be no doubt about this at all. But
    what is the 'independence of the judiciary' and how can it be
  . maintained and does the 99 1h Constitution Amendment Act
    impact on that independence? These are some troubling
    questions that need an answer with reference to the issue
C before us, namely, the constitutional validity of the ggth
    Constitution Amendment Act.
           Judicial pronouncements and the third preliminary
      issue
 D           242. The learned Attorney-General submitted that in any
      event the Second Judges case requires reconsideration.
      There is large volume of case law which gives guidance on
      the circumstances when an earlier decision of this Court should
      be reconsidered. It is necessary to consider these cases
 E    before deciding whether a platform for reconsideration of the
      Second Judges case has been made.
          243. Beng~l Immunity Co. Ltd. v. State of Bihar &
   Ors. concerned the interpretation of Article 286 of the
              233

 F Constitution which, it was contended, had been incorrectly
   interpreted in State of Bombay v. The United Motors {India)
   Ltd. 234 This Court addressed the issue of reconsideration of a
   previous decision rendered by it. Chief Justice Das (speaking
   for himself, Justice Vivian Bose and Justice Syed Jafer Imam)
 G discussed the judgments delivered in England, Australia, the
   United States and by the Privy Council and was of the view
   (for several reasons) that a previous decision rendered by this
   Court could be departed from. It was observed that it was not
      233 AIR 1955 SC 661   (7 Judges Bench)
 H    234
            (1953) 4 SCR 1069 (5 Judges Bench)
     SUPREME COURT ADVOCATES-ON-RECORD                                773
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

easy to amend the Constitution and if an erroneous A
interpretation was put upon a provision thereof it could
'conceivably be perpetuated or may at any rate remain
unrectified for a considerable time to the great detriment to
public well being.' It was held, inter alia, that if this Court was
convinced of its error and 'baneful effect' on the general B
interests of the public of an erroneous interpretation of a
provision of the Constitution, then there is nothing in the
Constitution that prevents this Court in departing from its earlier
decision. It could also depart from a previous decision if it was
vague or inconsistent or plainly erroneous. It was held that the C
doctrine of stare decisis 'is not an inflexible rule of law and
cannot be permitted to perpetuate our errors to the detriment
to the general welfare of the public or a considerable section
thereof.'
                                                                    D
      244. In a significant passage (one that will have a bearing
on this subject), it was observed:
     ''The majority decision does not merely determine the
     rights of the two contending parties to the Bombay appeal.
     Its effect is far reaching as it affects the rights of all       E
     consuming public. It authorises the imposition and levying
     of a tax by the State on an interpretation of a constitutional
     provision which appears to us to be unsupportable. To
     follow that interpretation will result in perpetuating what,     F
     with humility we say, is an error and in perpetuating a tax
     burden imposed on the people which, according to our
     considered opinion, is manifestly and wholly
     unauthorised.
     It is not an ordinary pronouncement declaring the rights         G
     of two private individuals inter se. It involves an
     adjudication on the taxing power of the States as against
     the consuming public generally. If the decision is
     erroneous, as indeed we conceive it to be, we owe it to
                                                                      H
774            SUPREME COURT REPORTS                  [2015] 13S.C.R.


A             that public to protect them against the illegal tax burdens
              which the States are seeking to impose on the strength
              of that erroneous recent decision."235
         245. Justice N.H. Bhagwati also reviewed several
B  decisions from various jurisdictions and agreed with Chief
   Justice Das but drew 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
c of the former by the Court could be corrected by the Legislature,
   it was not easy to amend the Constitution to correct its
   erroneous interpretation by the Court. It is for this reason tha.t
   Justice N.H. Bhagwati held that if the previous decision
   interpreting the provisions of the Constitution was 'manifestly
D wrong or erroneous' and that 'public interest' demanded its
   reconsideration then the Court should have no hesitation in
  ·doing so.
         246. Justice Jagannadhadas also held that this Court is
  competent to reconsider its earlier decisions. It was added
E that: 'But, it does not follow that such power can be exercised
  without restriction or limitation or that a prior decision can be
  reversed on the ground that, on later consideration, the Court
  disagrees with the prior decision and thinks it erroneous.' It
F was held that though the power to reconsider a prior decision
  does exist, the actual exercise of that power should be confined
  'within very narrow limits.' The learned Judge preferred to adopt
  the view expressed by Justice Dixon of the High Court of
  Australia in Attorney-General for N.S. W. v. The Perpetual
G Trustee Co. Ltd. 236 to the effect that a prior decision should
  not be reconsidered simply because an opposite conclusion
  is to be preferred.
              24 7. Justice Venkatarama Aiyar also held the view that
      235 Paragraph 17

H     236
            85 CLR 237
         SUPREME COURT ADVOCATES-ON-RECORD                        775
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

this Court could reconsider an earlier decision rendered by it. A
However, the learned Judge was of the opinion that the power
to reconsider should be 'exercised very sparingly and only in
exceptional circumstances, such as when a material provision
of law had been overlooked, or where a fundamental
assumption on which the decision is based, turns out to be B
mistaken.' Agreeing with the view canvassed by Justice
Jagannadhadas (and Justice Dixon) the learned Judge posed
the following question and also answered it: 'Can we differ
from a previous decision of this Court, because a view contrary
to the one taken therein appears to be preferable? I would C
unhesitatingly answer it in the negative, not because the view
previously taken must necessarily be infallible but because it
is important in public interest that the law declared should be
certain and final rather than that it should be declared in one D
sense or the other.'
      248. Justice B.P. Sinha agreed with Justice
Jagannadhadas and Justice VenkataramaAiyar and held that
a previous judgment of this Court ought not to be reviewed
simply because another view may be taken of the points in         E
controversy. This Court should review its previous decisions
only in exceptional circumstances. It was observed that
'Definiteness and certainty of the legal position are essential
conditions for the growth of the rule of law.'
                                                                  F
      249. Lt. Col. Khajoor Singh v. Union of lndia 237
concerned the interpretation of Article 226 of the Constitution
and Article 32(2-A) of the Constitution (as applicable to Jammu
& Kashmir). Though Justice Subba Rao (dissenting) and
Justice Das Gupta (concurring) delivered separate judgments,      G
they did not advert to the question of reconsideration of a
decision of this Court. Chief Justice B.P. Sinha speaking for
the remaining learned judges took the view that a previous
decision rendered by this Court may be reconsidered if there
237
      AIR 1961 SC 532 (7 Judges Bench)                            H
776             SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     are 'clear and compelling reasons' to do so or if there is a fair
      amount of unanimity that the previous decision is 'manifestly
      wrong' or if it is demonstrated that the earlier decision was
      erroneous 'beyond all reasonable doubt' particularly on a
      constitutional issue. If any inconvenience is felt on the
 B    interpretations of the provisions of the Constitution under
      consideration. then the remedy 'seems to be a constitutional
      amendment.'
             250. In Keshav Mills v. C/P- 38 the question for
c     consideration was the scope of the High Court's powers under
      Section 66(4) of the Income Tax Act, 1922. It was submitted by
      the learned Attorney-General that two earlier decisions on the
      subject, that is, New Jehangir Vakil Mills Ltd. v. CIP- 39 and
      Pet/ad Turkey Red Dye Works Co. Ltd., Pet/ad v. C/P-40
 o    needed reconsideration. In considering this submission, it was
      held that when this Court interprets a statutory provision, merely
      because an alternative view different from an opinion earlier
      expressed by this Court is more reasonable is not necessarily
      an adequate reason for reconsidering the earlier opinion. This
 E    Court should ask itself the question whether in the interests of
      the public good or for any other valid and compulsive reasons.
      it is necessary that the earlier decision should be revised. This
      Court held:
                "When this Court decides questions of law, its decisions
 F
                are, under Article 141 binding on all courts within the
                territory of India and so it must be the constant endeavour
                and concern of this Court to introduce and maintain an
                element of certainty and continuity in the interpretation of
 G              law in the country ..... That is not to say that if on a
                subsequent occasion, the Court is satisfied that its earlier
                decision was clearly erroneous, it should hesitate to
      236
             AIR 1965 SC 1636 (7 Judges Bench)
      23 9   (1960) 1 SCR 249
 H    240
             (1963) Supp 1 SCR 871
        SUPREME COURT ADVOCATES-ON-RECORD                            777
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      correct the error; but before a previous decision is A
      pronounced to be plainly erroneous, the Court must be
      satisfied with a fair amount of unanimity amongst its .
      members that a revision of the said view is fully
      justified."241
                                                                     B
      251. Magan/al Chhaganlal v. Municipal Corporation
of Greater Bombay242 concerned the validity of proceedings
under Chapter V-A of the Bombay Municipal Corporation Act,
1888 and the Bombay Government Premises (Eviction)Act,
1955 in the context of the decision of this Court in Northern        c
India Caterers v. State of Punjab. 243 Justice H.R. Khanna
alone considered the question of overruling an earlier decision
of this Court, namely, in Northern India Caterers. It was
observed that certainty in law would be eroded if a decision
that 'held the field' for several years is readily overruled - D
'certainty and continuity are essential ingredients of rule of law.'
It was held that if two views are possible then, simply because
the earlier decision does not take a view that is more
acceptable would not be a ground for overruling the earlier
decision. An earlier decision ought to be overruled only for E
compelling reasons otherwise it would create 'uncertainty,
instability and confusion if the law propounded by this Court
on the basis of which numerous cases have been decided
and many transactions have taken place is held to be not the
correct law.' Justice Khanna observed that new ideas and F
developments in the field of law and that the fullness of
experience and indeed subsequent experience cannot be
wished away. The learned judge held:
         "As in life so in law things are not static. Fresh vistas and G
         horizons may reveal themselves as a result of the impact
         of new ideas and developments in different fields of life.
241
      Paragraph 23
242 (1974) 2 SCC 402 (7 Judges Bench)

243   AIR 1967 SC 1581
                                                                      H
778            SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A              Law, if it has to satisfy human needs and to meet the
               problems of life, must adapt itself to cope with new
               situations. Nobody is so gifted with foresight that he can
               divine all possible human events in advance and
               prescribe proper rules for each of them. There are,
B              however, certain verities which are of the essence of the
               rule of law and no law can afford to do away with them. At
               the same time it has to be recognized that there is a
               continuing process of the growth of law and one can
               retard it only at the risk of alienating law from life itself.
c              There should not be much hesitation to abandon an
               untenable position when the rule to be discarded was in
               its origin the product of institutions or conditions which
               have gained a new significance or development with the
               progress of years. It sometimes happens that the rule of
D
               law which grew up in remote generations may in the
               fuHness of ·experience be found to serve another
               generation badly. The Court cannot allow itself to be tied
               down by and become captive of a view which in the light
               of the subsequent experience has been found to be
E
               patently erroneous, manifestly unreasonable or to cause
               hardship or to result in plain iniquity or public
               inconvenience."244
        252. Ganga Sugar Corporation v. State of Uttar
F Pradesh 245 related to the constitutional validity of a levy under
  the U.P. Sugarcane (Purchase Tax) Act, 1961. The decision
  does not contain any detailed discussion on the subject of
  reconsideration of an earlier decision of this Court. But it was
  nevertheless held that decisions of a Constitution Bench must
G be acceptea as final unless the subject is of fundamental
  importance to national life or the reasoning of the previous
  decision is so plainly erroneous that 'it is wiser to be ultimately
      244
            Paragraph 22
      245
            (1980) 1 SCC 223 (5 Judges Bench)
H
      SUPREME COURT ADVOCATES-ON-RECORD                                     779
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

right rather than to be consistently wrong. Stare decisis is not A
a ritual of convenience but a rule with limited exceptions.
Pronouncements by Constitution Benches should not be
treated so cavalierly as to be revised frequently.'
      253. A rather exhaustive reference to the cases and the
                                                                   8
law laid down in different jurisdictions was adverted to in Union
of India v. Raghubir Singh. 246 This decision concerned itself
with the grant of solatium under the Land Acquisition Act, 1894
as amended by the Land Acquisition (Amendment) Act, 1984.
Reference was made to the 'guidelines' culled out from the                  c
decisions of the House of Lords 247 which suggest that the
freedom to reconsider an earlier decision ought to be
exercised sparingly; a decision ought not to be overruled if it
upsets the legitimate expectation of persons who have made
arrangements based on the earlier decision or causes great D
uncertainty in the law; decisions involving the interpretation of
statutes or documents ought not to be overruled except in rare
or exceptional circumstances; if the consequences of
departing from an earlier decision are not foreseeable; merely
because an earlier decision was wrongly taken is not a good E
enough justification for overruling it. On the other hand, a prior
decision ought to be overruled 'if in relation to some broad
issue or principle it is not considered just or in keeping with
contemporary social conditions or modern conceptions of
public policy.'                                                    F
      254. Reference was also made to several decisions
earlier rendered by this Court (including those mentioned
above) and though no new or different principles or guidelines
were laid down, the law as stated by this Court was iterated,               G
and it was observed: 'It is not necessary to refer to all the cases
on the point. The broad guidelines are easily deducible from
246
   (1989) 2 SCC 754 (5 Judges Bench)                           .
247
   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. 156-157'              H
780          SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     what has gone before. The possibility of further defining these
      guiding principles can be envisaged with further juridical
      experience, and when common jurisprudential values linking
      different national systems of law may make a consensual
      pattern possible. But that lies in the future.'
B
            255. Echoing the views expressed in Magan/al
      Chhaganlal and Raghubir Singh with regard to
      acknowledging changes with the passage of time and modern
      conceptions of public policy, it was said:
c           "Not infrequently, in the nature of things there is a gravity-
            heavy inclination to follow the groove set by precedential
            law. Yet a sensitive judicial conscience often persuades
            the mind to search for a different set of norms more
            responsive to the changed social context. The dilemma
D           before the Judge poses the task of finding a new
            equilibrium prompted not seldom by the desire to
            reconcile opposing mobilities. The competing goals,
            according to Dean Roscoe Pound, invest the Judge with
            the responsibility "of proving to mankind that the law was
 E          something fixed and settled, whose authority was beyond
            question, while at the same time enabling it to make
            constant readjustments and occasional radical changes
            under the pressure of infinite and variable human desires".
            The reconciliation suggested by Lord Reid in The Judge
 F
            as Law Maker lies in keeping both objectives in view,
            "that the law shall be certain, and that it shall be just and
            shall move with the times"." 248 (Internal citations have been
            omitted).
 G          256. In Gannon Dunkerley & Co. v. State of
      Rajasthan249 the question related to 'the imposition of tax on
      the transfer of property in goods involved in the execution of
      works contracts. The power to impose this tax became
      248 Paragraph   13
 H    ,., (1993) 1 sec 364
      SUPREME COURT ADVOCATES-ON-RECORD                               781
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

available to the State Legislatures as a result of the                A
amendments introduced in the Constitution by the Constitution
(Forty-sixth Amendment) Act, 1982.' The constitutional validity
of this Amendment Act had been upheld in Builders'
Association of India v. Union of India. 250 One of the issues
raised was whether Builders'Association had been correctly            B
decided or not. This Court did not add to the discourse on the
subject but concluded, relying upon Khajoor Singh, Keshav
Mills and Ganga Sugar Corporation that there was no
occasion to reconsider the decision in Builders'Association.
                                                                      c
       257. Another decision (which is rather interesting) on the
subject of reconsideration of an earlier decision is Pradeep
Kumar Biswas v. /ndian Institute of Chemical Biology. 251
The question before this Court was whether the Council for
Scientific and Industrial Research was 'the State' as 'defined'       D
in Article 12 of the Constitution. The answer to this question
required consideration of an earlier unanimous decision of this
Court in Sabhajit Tewary v. Union of lndia2 52 which had stood
undisturbed for about 25 years. While answering this question,
this Court did not detail the law on the subject of reconsideration   E
of an earlier decision of this Court, but on a consideration of             ,.,.
the facts (and the law) concluded that Sabhajit Tewary had
been wrongly decided and was overruled. This Court referred
to Magan/a/ Chhagan/al and Raghubir Singh and held:
                                                                      F
      "From whichever perspective the facts are considered,
      there can be no doubt that the conclusion reached in
      Sabhajit Tewaty was erroneous ........
      In the assessment of the facts, the Court had assumed
      certain principles, and sought precedential support from        G
      decisions which were irrelevant and had "followed a
      groove chased amidst a context which has long since
250
    (1989) 2 sec 645
251
    (2002) 5 SCC 111 (7 Judges Bench)
252
    (1975) 1 SCC 485 (5 Judges Bench)                                 H
782          SUPREME COURT REPORTS                         [2015] 13 S.C.R.


A           crumbled." 253 Had the facts been closely scrutinised in
            the proper perspective, it could have led and can only
            lead to the conclusion that CSIR is a State within the
            meaning of Article 12.
            Should Sabhajit Te wary still stand as an authority even
 B
            on the facts merely because it has stood for 25 years?
            We think not. Parallels may be drawn even on the facts
            leading to an untenable interpretation of Article 12 and a
            consequential denial of the benefits offundamental rights
 c          to individuals who would otherwise be entitled to them
            and
                "[T]here is nothing in our Constitution which prevents
                us from departing from a previous decision if we are
                convinced of its error and its baneful effect on the
 D              general interests of the public".
            Since on a re-examination of the question we have come
            to the conclusion that the decision was plainly erroneous,
            it is our duty to say so and not perpetuate our mistake."
            254
 E              (Internal citations have been omitted).
          258. One of the more interesting aspects of Pradeep
   Kumar Biswas is that out of the 7 (seven) learned judges
   constituting the Bench, 5 learned judges overruled the
   unanimous decision of another set of 5 learned judges in
 F Sabhajit Tewary. Two of the learned judges in Pradeep
   Kumar Biswas found that Sabhajit Tewary 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
 G actually holds the field today. Is the weight of numbers irrelevant?
   Is it that only the numbers in a subsequent Bench are what
      253
          Sabhajit Tewary was a unanimous decision of 5 learned judges of this
      Court. To conclude that it "sought precedential support from decisions which
      were irrelevant" is, with respect, rather uncharitable.
 H    254
          Paragraph 59 to 61
        SUPREME COURT ADVOCATES-ON-RECORD                              783
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

really matters? What would have been the position if only 4 A
learned judges in Pradeep Kumar Biswas had decided to
overrule Sabhajit Tewarywhile the remaining 3 leamed 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 B
7 learned judges? Pradeep Kumar Biswas 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 leamed judges in the Third
Judges case can be overruled (as sought by the learned C
Attorney-General) by 6 leamed 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 D
law!
     259. Be that as it may, two other decisions of importance
on the subject of reconsidering a prior decision of this Court
are Kesavananda Bharati and the Second Judges case.
        260. In Kesavananda Bharati it was pithily stated by E
Chief Justice S.M. Sikri that the question before the Court was
whether Golak Nath was correctly decided. The learned Chief
Justice observed:
         "However, as I see it, the question whether Golak Nath        F
       . case was rightly decided or not does not matter because
         the real issue is different and of much greater importance,
         the issue being: what is the extent of the amending power
         conferred by Article 368 of the Constitution, apart from
         Article 13(2), on Parliament ?" 255                           G
        .261. It follows from this that where a matter is of 'great
importance', this Court may refer the issue to a larger Bench
to reconsider an earlier decision of this Court.
255
      Paragraph 1O
                                                                       H
784            SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A        262. In the Second Judges case it was observed by
   Justice Pandian that an earlier decision rendered by this Court
   may be reconsidered if, amongst others, 'exceptional and
   extraordinarily compelling' circumstances so warrant. It was
   observed that 'no decision enjoys absolute immunity from
 B judicial review or reconsideration on a fresh outlook of the
   constitutional or legal interpretation and in the light of the
   development of innovative ideas, principles and perception
   grown along with the passage of time.' 256 Recalling the
   observations in Magan/a/ Chhaganlal, Raghubir Singh and
 C Pradeep Kumar Biswas it was held that:
              "Therefore, in exceptional and extraordinarily compelling
              circumstances or under new set of conditions, the court
              is on a fresh outlook and in the light of the development
 o            of innovative ideas, principles and perception grown
              along with the passage of time, 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
 E            retroactive invalidity'. Otherwise even the wrong judicial
              interpretation that the Constitution or law has received
              over decades will be holding the field for ages to come
              without that wrong being corrected. Indeed, no historic
              precedent and long-term practice can supply a rule of
 F            unalterable decision."257
         263. There is absolutely no dispute or doubt that this Court
   can reconsider (and set aside) an earlier decision rendered
   by it. But what are the circumstances under which the
 G reconsideration can be sought? This Court has debated and
   discussed the issue on several occasions as mentioned above
   and the broad principles that can be culled out from the various
   decisions suggest that:
      256 Paragraph 17

 H    257
            Paragraph 19
     SUPREME COURT ADVOCATES~ON-RECORD                             785
      ASSOCIATION v. U.0.1. [MADAN B. LQKUR, J.]

       (1) If the decision concerns an interpretation of the       A
Constitution, perhaps the bar for reconsideration might be
lowered a bit (as in Kesavananda Bharati). 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.     B
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.
                                                                   c
      (2) 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.                                                    D
     (3) 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.
                                                                   E
      (4) 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.
      (5) If the decision only concerns two contending private     F
parties or individuals, then perhaps it might not be advisable
to reconsider it. Each and every error of law cannot obviously
be corrected by this Court.
      (6) The power to reconsider is not unrestricted or G
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
                                                                   H
786                SUPREME COURT REPORTS              (2015] 13 S.C.R.


A     earlier. is preferable is no reason to reconsider an earlier
      decision. The endeavour of this Court must always be to ensure
      that the law is definite and certain and continuity in the
      interpretation of the law is maintained.
        In this regard, Raghubir Singh presents an interesting
 8
  picture. Section 23(2) of the Land Acquisition Act, 1894 (as
  amended in 1984) was interpreted by this Court on 14 1h
  February, 1985 in K. Kamalajammanniavaru v. Special
  Land Acquisition Officer. 258 That decision was overruled six
c months later on 141h August, 1985 in Bhag Singh v. Union
  Territory of Chandigarh. 259 That decision was in turn
  overruled on 161h May, 1989 in Raghubir Singh and the law
  laid in Kamalajammanniavaru was reiterated. It is this
  uncertainly and absence of continuity in the law that is required
D to be avoided.
         (7) An earlier decision may be reconsidered if a material
   provision of law is overlooked 260 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
 E 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
 F arrangements based on the earlier decision and also because
   the consequences of such a decision might not be foreseeable.
          (8) Whether a decision has held the field for a long time
   or not is not of much consequence. In Bengal Immunity a
   recent decision delivered by the Constitution Bench was
 G overruled; in Pradeep Kumar Biswas a decision holding the
   field for a quarter of a century was overruled.
                    (9) Significantly, this Court has taken note of and
      2
          "    (1985) 1 sec 582
      2
          '•   (1985) 3 sec 737
 H    260
               How is this to be ascertained?
        SUPREME COURT ADVOCATES-ON-RECORD                                                787
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

 approved the view that the changing times might require the A
 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 B
 that ought to be acknowledged as has been done by this Court
 in Magan/al Chhaganlal and by Chief Justice Dickson of the
 Canadian Supreme Court in The Queen v. Beauregard. 261
 Similarly, the social context or 'contemporary social conditions
 or modern conceptions of public policy' cannot be overlooked. C
 Oliver Wendell Holmes later a judge of the Supreme Court of
 the United States put it rather pithily when he said that: 'But the
 present has a right to govern itself so far as it can; and it ought
 always to be remembered that histOric continuity with the past
                                                                     D
 is not a duty, it is only a necessity.' 262
        264. It is trite that the Constitution is a living document263 .
   261 [1986) 2 SCR 56 wherein it is stated: With respect to the first of these

  arguments, I do not think s.100 [of the Constitution Act. 1867) imposes on
  Parliament the duty to continue to provide judges with precisely the same type of
• pension they received in 1867. The Canadian Constitution is not locked forever         E
  in a 119 year old casket. It lives and breathes and is capable of growing to keep
  pace with the growth of the country and its people. Accordingly, if the Constitution
  can accommodate, as it has, many subjects unknown in 1867 airplanes, nuclear
  energy, hydroelectric power it is surely not straining s. 100 too much to say that
  the word 'pensions', admittedly understood in one sense in 1867, can today
  support federal legislation based on a different understanding of 'pensions'.          F
   262
       "The law, so far as it depends on learning, is indeed, as it has been called,
  the government of the living by the dead. To a very considerable extent no
  doubt it is inevitable that the living should be so governed. The past gives us
  our vocabulary and fixes the. limits of our imagination; we cannot get away
  from it. There is, too, a peculiar logical pleasure in making manifest the
  continuity between what we are doing and what has been done before. But
  the present has a right to govern itself so far as it can; and it ought always to      G
  be remembered that historic continuity with the past is not a duty, it is only a
  necessity."
  "Learning and Science", speech at a dinner of the Harvard Law School
  Association in honor of Professor C. C. Langdell (June 25, 1895); reported
  in Speeches by Oliver Wendell Holmes (1896). p. 67-68
  263 l.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 paragraph 42

                                                                                         H
788          SUPREME COURT REPORTS                      [2015] 13 S.C.R.


A     and it is also wise to remember, in this context, what was said
      in R. C. Poudya/ v. Union of Jndia 264 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
B
            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 g"rowth. It is aptly said that 'the intention of a
c           Constitution is rather to outline principles than to engrave
            details' ."265
            265. On the oasis of the law as laid down by this Court
      and considering the historical developments over the last six
      decades, it was submitted by the learned Attorney-General
D     that a fundamental and significant question as to the
      interpretation of the Constitution has arisen; that the Second
      Judges case and the Third Judges case did not correctly_
      appreciate the Constituent Assembly Debates on the Judiciary
      and that the time has now come to make a course correction.
E
            Conclusions on the preliminary issue
            266. 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
F     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. 266
G           267. There are several examples of this 'overlap' and
      the learned Attorney-General has taken us through the various
      26
        ' 1994 supp (1   J sec 324
      265
           -1994 Supp (1) SCC 324 paragraph 124
       266
            In his concluding speech, Br. Rajendra Prasad used the expression
      'distribution of powers' and not 'separation of powers'. See: hlliLlf
H     parHamentofindja.nic jo/lsldebates/vol11 0 12.htm
    . SUPREME COURT ADVOCATES-ON-RECORD                            789
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

provisions of the Constitution in this regard: Article 124(1) of   A
the Constitution enables Parliament to pass a law prescribing
the composition of the Supreme Court as consisting of more
than seven judges. Pursuant to this the Supreme Court
(Number of Judges) Act, 1956 was passed; Article 124(4)
provides for the impeachment process for the removal of a          B
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 misbehavior or incapacity of a judge; Article 125(1)
enables Parliament by law to determine the salary of a judge       C
while Article 125(2) enables Parliament to pass a law with
regard to the privileges, allowances, etc. of a judge. Pursuant
to this the Supreme Court Judges (Conditions of Service)Act,
 1958 has been enacted; Article 134(2) enables Parliament to       D
confer on the Supreme Court by legislation, further powers to
entertain and hear appeals and criminal proceedings. Pursuant
to this, Parliament has enacted the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970;
Article 135 enables Parliament to make a law with regard to        E
the jurisdiction and power of the Supreme Court with respect
of any matter to which the provisions of Article 133 and Article
 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     F
 138 enables Parliament by law to enlarge the jurisdiction of
the Supreme Court with respect to any matter as the
Government of India and the Government of any State may by
special agreement confer and Article 139 enables Parliament
to make a law to issue writs other than those mentioned in         G
Article 32 of the Constitution; 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
                                                                   H
790         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     Supreme Court and the exercise of power by the Supreme
      Court 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 Parliaf!lent to make any law for regulating
B     the practice and procedure of 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
C     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.
           268. There is quite clearly an entire host of parliamentary
o 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
E 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 99 1h Constitution
F 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.
       269. The learned Attorney-General is not right in his
G submission that the· Second Judges case overlooked the
  separation of powers and the CAD 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.
H
         SUPREME COURT ADVOCATES-ON-RECORD                       791
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

interpretation of Article 50 of the Constitution, constitutional A
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 B
(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 C
judiciary and there can be no doubt about this. This was pithily
stated in Marbury v. Madison 267 : 'It is emphatically the
province and duty of the Judicial Department to say what the
law is.' It was also explicitly held in Re: Powers, Privileges D
and Immunities of State Legislatures 268 where it was said:
         "[W]hether or not there is distinct and rigid separation of
         powers under the Indian Constitution, there is no doubt
         that the Constitution has entrusted to the Judicature in
         this country the task of construing the provisions of the E
         Constitution and of safeguarding the fundamental rights
         of the citizens. When a statute is challenged on the ground
         that it has been passed by a legislature without authority,
         or has otherwise unconstitutionally trespassed on
         fundamental rights, it is for the courts to determine the F
         dispute and decide whether the law passed by the
         legislature is valid or not. Just as the legislatures a_re
         conferred legislative authority and their functions are
         normally confined to legislative functions, and the
         functions and authority of the executive lie within the G
         domain of executive authority, so the jurisdiction and
         authority of the Judicature in this country lie within the
267
      5 U.S. (1 Cranch} 137, 177 (1803)
268
      [1965] 1 SCR 413 (Seven Judges Bench)
                                                                  H
792            SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A             domain of adjudication. If the validity of any law is
              challenged before the courts, it is never suggested that
              the material question as to whether legislative authority
              has been exceeded or fundamental rights have been
              contravened, can be decided by the legislatures
B             themselves." 269
            270. The learned Attorney-General is also not right in
      reducing the Second Judges case to only one aspect- the
      decision of this Court has to be appreciated as a part of the
c     larger constitutional scheme relating to the independence of
      the judiciary. The learned Attorney-General may or may not
      agree with the interpretation given by this 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
 o    interpretation al error, it can be corrected only by the judiciary,
      or by a suitable amendment to the Constitution that does not
      violate its basic structure.
         271. No one thought that this Court, in the Second
  Judges case, had erroneously interpreted or misunderstood
E the constitutional scheme concerning the appointment of
  judges and the independence of the judiciary. There were some
  problem areas and these were referred to this Court in the
  form of questions raised by the President seeking the advisory
F opinion of this 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 learned Attorney-General categorically stated
  in the Third Judges case that 'the Union of India is not seeking
G a review or reconsideration of the judgment in the Second
  Judges case.' Therefore, neitherthe President nor the Union
  of India nor anybody else for that matter sought a
  reconsideration of the Second Judges case. There is no
      269
            Page 446
 H
      SUPREME COURT ADVOCATES-ON-RECORD '                             793
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

  reason (apart from an absence of a reason at law) why such a        A
  request should be entertained at this stage, except on a fanciful
· misunderstanding of the law by the Union of India.
       272. The contention of the learned Attorney-General is
 that the appointment of a judge of the Supreme Court or a .
                                                                     8
 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. It is not possible to accept this line of thought.
 The appointment of a judge is an executive function of the           c
 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 of India or
 the Chief Justice of the High Court gives his/her nod to the
 appointment. This position continued even after D
 Independence. Justice Kuldip Singh summarized the
 appointments position in the Second Judges case in the
 following words:
       "(i) The executive had absolute power to appoint the
       Judges under the Government of India Act, 1935.                E
       Despite that all the appointments made thereunder were
       made with the concurrence of the Chief Justice of India.
       (ii)Aconvention had come to be established by the year
       1948 that appointment of a Judge could only be made            F
       with the concurrence of the Chief Justice of India.
       (iii) All the appointments to the Supreme Court from 1950
       to 1959 were made with the concurrence of the Chief
       Justice of India. 210 out of 211 appointments made to
       the High Courts during that period were also with the          G
       concurrence of the Chief Justice of India.
       (iv) Mr Gobind Ballabh Pant, Home Minister of India,
       declared on the floor of the Parliament on November 24,
                                                                      H
794          ' SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A              1959 that appointment of Judges were virtually being
               made by the Chief Justice of India and the executive was
               only an order-issuing authority.
               (v) Mr Ashoke Sen, the Law Minister reiterated in the
               Parliament on November 25, 1959 that almost all the
B
               appointments made to the Supreme Court and the High
               Courts were made with the concurrence of the Chief
               Justice of India.
               (iv) Out of 54 7 appointments of Judges made during the
C              period January 1, 1983 to April 10, 1993 only 7 were not
               in consonance with the views expressed by the Chief
               Justice of lndia."270
          273. These facts and figures clearly indicate that at least
   since 1935, if not earlier, the appointment of judges was made
 0
   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, as mentioned above. But even in
 E those cases where there were aberrations pre-1959 (with the
   Chief Justice of the High Court having been by-passed) 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
 F executive exerted its newly given absolute primacy in the
   appointment of judges and the aberrations increased. Surely,
   the executive cannottake advantage of the aberrations caused
   at its instance and then employ them as an argument that no
   constitutional convention existed regarding the concurrence
 G of the Chief Justice of India. On the contrary, the aberrations
   indicate the stealthy attempt of the political executive to sub¥ert
   the independence of the judiciary through appointments that
   were not necessarily merit-based, and the submissions
      210
            Paragraph 371.
 H
        SUPREME COURT ADVOCATES-ON-RECORD                          795
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

advanced before us suggest that henceforth the independence A
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.
                                                                   B
      27 4. In The Pocket Veto case271 the US Supreme Court
referred to a long standing practice as an interpretation to a
constitutional provision, which would be equally applicable to
India. It was said:
         "The views which we have expressed as to the C
         construction and effect of the constitutional provision here
         in question are confirmed by the practical construction
         that has been given to it by the Presidents through a long
         course of years, in which Congress has acquiesced.
         Long settled and established practice is a consideration D
         of great weight in a proper interpretation of constitutional
         provisions of this character. Compare Missouri Pac. Ry.
         Co. v. Kansas2 72 ; Myers v. United States2 73 ; and State v.
         South Norwalk274 in which the court said that a practice
         of at least twenty years' duration on the part of the E
         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 F
         phraseology of which is in any respect of doubtful
         meaning."
     275. By claiming absolute executive primacy, the learned
Attorney-General is, in effect, propagating the view that the
President can exercise a veto on the proposal to appoint a          G
judge, even if that proposal has the approval of all other
271 279 U.S. 655, 689 (1929)
272 248 U.S. 276
273
      272 U.S. 52
274
      77 Conn. 257
                                                                    H
                                           •
796            SUPREME COURT REPORTS               [2015] 13 S.C.R.


A 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
B 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
C over the years, to the Chief Justice of India since that
  constitutional functionary is b~st 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
0
  initial appointment of a Judge' 275 and as the head of the
  judiciary, his/her judgment ought to be trusted in this regard.
  That this could be characterized as a 'right to insist' is not at all
  justified, nor can any voice of disagreement by the executive
E 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.
          276. What did the Second Judges case and the Third
      Judges case decide that should lead the political executive
 F 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
 G 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
      275
            Second Judges case, paragraph 450
 H
     SUPREME COURT ADVOCATES-ON-RECORD                               797
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

recommendation for reconsideration for strong and cogent             A
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          B
out by Justice Verma, the President occasionally failed to
exercise this particular constitutional power, for unknown
reasons or due to a misunderstanding of the dicta laid down
by this Court. The path taken by this Court was in consonance
with the views of the Constituent Assembly, in that in the           C
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    D
as long as it was unanimous.
      277. The debate on 24th May, 1949 discloses that a
variety of options were available before the Constituent
Assembly with regard to the procedure for the appointment of
judges of the Supreme Court and the High Court.                      E
      278. One of the available methods was to have the
appointment of a judge approved by the Council of State. This
was opposed by Mr. R.K. Sidhwa (C.P. &Berar: General) who
was of the opinion that if the appointment is left to the Council F
of State then there is a possibility of canvassing in which event
the issue of ability etc. of a person recommended for
appointment as a judge will cease to be relevant. Mr. Sidhwa
was of the opinion that this method would be the same as an
election, although Prof. K.T. Shah thought otherwise. The G
proposal was also opposed by Mr. Biswanath Das (Orissa:
General) who referred to this method of appointment as laying
down a very dangerous principle.
      279. Another method of appointment discussed was fo
                                                                     H
798        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A leave the process entirely to the President. Mr. Rohini Kumar
  Chaudhari (Assam: General) apparently supported that view
  and went on to suggest that the amendment proposed by Dr.
  Ambedkar for deletion of consultation by the President with
  judges of the Supreme Court and the High Court should be
B accepted. He was of the opinion that the matter should be
  dealt with only by the President who could consult anybody,
  why only judges of the Supreme Court and the High Court. If
  the President knew a person to be of outstanding ability, it
  might r:iot be necessary for him/her to consult anybody for
C making the appointment. This view was supported by Mr. M.
  Ananthasayanam Ayyangar (Madras: General) who also felt
  that it should be left to the President to decide whom to consult,
  if necessary.
D       280. Yet another method of appointment was the British
   system where appointments were made by the Crown without
   any kind of limitation whatsoever, that is, by the political
   executive. A fourth method discussed was that prevailing in
   the United States where appointments were made with the
 E concurrence of the Senate.
           281. Dr. Ambedkar was of the view that none of the
     methods proposed was suitable for a variety of reasons and
     therefore a middle path was taken which required the President
 F . to consult the Chief Justice of India and other judges. Dr.
     Ambedkar felt that consultation with the Chief Justice of India
     and other judges was necessary since they were ex hypothesi
     well qualified to give advice in a matter of this nature.
        282. The Chief Justice of India and other judges are
G 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
H
     SUPREME COURT ADVOCATES-ON-RECORD                             799
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

judges should not be accepted by the executive, which is           A
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 as postulated in Sanka/chand Himatla/ Sheth           B
and in the Second Judges case 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           C
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,                D
peculiarities and angularities, there can be no earthly reason
why that collective view should not be accepted. The Chief
Justice of India is in a sense the captain of the ship as far as
the judiciary is concerned and his/her opinion (obtained
collectively and unanimously) should be accepted rather than       E
the opinion of someone who is a passenger (though an
important one) in the ship. Dr. Ambedkar was of the confirmed
view that the judiciary should be independent and impartial
and if the Chief Justice of India does not have the final say in
the matter then the judiciary is, in a sense, under some other     F
authority and therefore not independent to that extent. This
would be a rejection of the views of Dr. Ambedkar and a
negation of the views of the Constituent Assembly.
      283. From the debates of the Constituent Assembly it is
evident that Dr. Ambedkar's objection was to the suggestion G
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 mentioned in
                                                                   H
800           SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     the Second Judges case and the Third Judges case or, as
      Dr. Rajeev Dhavan described it as '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
B     Justice of India) could possibly suffer from the same frailties
      as any one of us and this is what Dr. Ambedkar sought to
      emphasize in his objection. It must be appreciated that when
      the debate took place (on 241h May, 1949) the appointment of
      judges was, due to the insertion of clause (5)a in Article 62 of
C     the Draft Constitution 276 considered to be the responsibility of
      the President ac~ing on his own and not through the Council of
      Ministers. That this theory was in the process of being given
      up (and was actually given up) is a different matter altogether.
 D    Alternatively, if the thinking at that time was that the President
      was to act only 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
 E    desired by Dr. Ambedkar, as an individual. In other words,
      constitutionalism in India has undergone a positive
      transformation and the objection that Dr. Ambedkar had to any
      individual having the final say is rendered non-existent. In view
      of Samsher Singh the President cannot act in an individual
 F    capacity (except to a limited extent) and in view of the Second
      Judges case and the Third Judges case the Chief Justice
      of India cannot act in an individual capacity (except to a limited
      extent). The Constitution being an organic and living document
      must be and has been interpreted positively and meaningfully.
 G     276 Clause 5(a) of Article 62 reads:

      "(5)a In the choice of his Ministers and the exercise of his other functions
      under this Constitution, the President shall be generally guided by the
      instructions set out in Schedule Ill-A, but the validity of anything done by the
      President shall not be called in question on the ground that it was done
 H    otherwise than in accordance with such instructions."
                                                                           i



         SUPREME COURT ADVOCATES-ON-RECORD                           801
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        284. It is this philosophy, of the Constitution being an     A
organic and living document that ought to be positively and
meaningfully interpreted, that is to be found in Samsher Singh.
It is this constructive interpretation read with the 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'    B
with the Chief Justice of India has to be understood in this light
and not as a 'consulted and opinion rejected' situation.
      285. It is not correct to suggest, as did the learned
Attorney-General, that the theory of separation of powers in         c
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 recognize
the responsibility of the judiciary in the appointment of judges D
and this was merely formalized 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. To rephrase Justice Jackson of the
US Supreme Court in Youngstown Sheet & Tube Co. v. E
Sawyer277 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 F
the appointment of judges.
       286. Taking all these factors and the CAD into account,
all of which were discussed in the Second Judges case it is
difficult to accept the contention of the learned Attorney General G
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 this Court, it
277
      343 U.S. 579, 635 (1952)
                                                                     H
802        SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A is difficult to conclude that a decision rendered by 8 out of 9
  judges who decided the Second Judges case (Justice
  Punch hi 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
B 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 Article 124(2) and Article 217(1) of the
  Constitution. These constitutional authorities having accepted
C 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
0
  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.
E        287. It may also be mentioned that it was categorically
   laid down in Samsher Singh that the last word in matters
   ~ertaining to judiciary should be with the Chief Justice of India.
   Samsher Singh was decided by a Bench of seven learned
   judges and no one has said that that decision requires
 F reconsideration or that it does not lay down the correct law.
   The Second Judges case merely reiterates the 'last word'
   view in a limited sense.
         288. The consensus of opinion across the board is quite
G 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.
          289. This is not to say that the Second Judges case
H
     SUPREME COURT ADVOCATES-ON-RECORD                            803
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

and the Third Judges case do not leave any gaps. Perhaps A
better institutionalization and fine tuning of the scheme laid
down in these decisions is required, but nothing more. But, in
view of the submission made by the learned Attorney-General
that the only question for consideration is the constitutional
validity of the 991h Constitution Amendment Act and the NJAC B
Act the issue of reconsideration becomes academic and it is
not at all necessary at present to express any further view on
this. By the 99th Constitution Amendment Act the word
'consultation' has been deleted from Article 124(2) and Article
217(1) of the Constitution. Therefore the question whether that C
word has been correctly interpreted in the Second Judges
case or not is today completely academic. A new constitutional
regime has been put in place and that has to be tested as it is.
It is only if the 99th Constitution Amendment Act is held as D
violating the basic structure of the Constitution and is declared
unconstitutional that the fine tuning and filling in the gaps in the
Second Judges case and the Third Judges case would
arise.
     290. Hence the only question now is whether the 99 1h        E
Constitution Amendment Act violates the basic structure of the
Constitution and to decide this question 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.                                 F
     Rule of Law
     291. On the merits of the controversy before us, it is
necessary to proceed on the basis that there is no doubt that
the CAD, the Constitution and judicial pronouncements             G
guarantee the independeRce of the judiciary. Does the
independence of the judiciary include the appointment of a
judge? According to the learned Attorney-General, the
appointment of judges is a part of the independence of the
                                                                  H·
804          SUPREME COURT REPORTS                        [2015] 13S.C.R.


A     judiciary, but not a predominant part.
            292. Before considering these issues, it is necessary to
      appreciate the role of the Ruie of Law in our constitutional
      history. It has been said: 'Ultimately, it is the rule of law, not the
B     judges, which provides the foundation for personal freedom
      and responsible government.' 278
            293. The Rule of Law is recognized 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
C     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.

D
            294. Justice Mathew concluded in Indira Nehru Gandhi
      that according to some judges constituting the majority in
      Kesavananda Bharati the Rule of Law is a basic structure of
      the Constitution. 279
             295. In Sam sher Singh the independence of the judiciary
E     was held to be a cardinal principle of the Constitution by Justice
      Krishna Iyer speaking for himself and Justice Bhagwati. 280 That
      it is a part of the basic structure of the Constitution was
      unequivocally stated for the first time in the First Judges case
      by Justice Bhagwati, 281 by Justice Faza1Ali 282 and by Justice
 F    V.D. Tulzapurkar. 283
            296. In the Second Judges case Justice Pandian
      expressed the view that independence of the judiciary is
      'inextricably linked and connected with the judicial process.' 284
G     278
           Judicial Independence and the Rule of Law by Jonathan K. Van Patten,
      Volume 2 Benchmark page 117, 129 (1986)
      279
           Paragraph 335
      280 Paragraph 149
      281
           Paragraph 27 and paragraph 83
      282
           Paragraph 320
      "' Paragraph 634
H     2
        84
           Paragraph 56
      SUPREME COURT ADVOCATES-ON-RECORD                              805
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

This was also the view expressed by Justice Kuldip Singh who A
held that the independence of the judiciary is a basic feature
of the Constitution: 285 Justice J.S. Verma speaking for the
majority and relying upon a few decisions held that the Rule of
Law is a basic feature of the Constitution. 286 Similarly, Justice
Punchhi (dissent) held that the Rule of Law is a basic feature B
of the Constitution and the independence of the judiciary is its
essential attribute:
      "It is said that Rule of Law is a basic feature the
      Constitution permeating the whole constitutional fabric. I     c
      agree. Independence of the judiciary is an essential
      attribute of Rule of Law, and is part of the basic structure
      of the Constitution. To this I also agree." 287
      297. In Sub-Committee on Judicial Accountability v.
Union of /ndia 288 it was held by Justice B.C. Ray speaking          D
for the majority that the Rule of Law is a basic feature of the
Constitution and an independent judiciary is an essential
attribute thereof. It was said:
      "Before we discuss the merits of the arguments it is           E
      necessary to take a conspectus of the constitutional
      provisions concerning the judiciary and its independence.
      In interpreting the constitutional provisions in this area
      the Court should adopt a construction which strengthens
      the foundational features and the basic structure of the       F
      Constitution. Rule of law is a basic feature of the
      Constitution which permeates the whole of the
      constitutional fabric and is an integral part of the
      constitutional structure. Independence of the judiciary is
      an essential attribute of rule of law."289                     G

285 Paragraph  331
286
    Paragraph 421
287
    Paragraph 502
288
    (1991) 4 SCC 699 (Five Judges Bench)
289
    Paragraph 16                                                     H
806         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A         298. Similarly, in Kartar Singh v. State of Punjab 290 it
      was said by Justice K. Ramaswamy (dissent) that an
      independent judiciary is the most essential attribute of the Rule
      of Law:
            "Independent judiciary is the most essential attribute of
B
            rule of law and is indispensible to sustain democracy.
            Independence and integrity of the judiciary in a
            democratic system of Government is of the highest
            importance and interest not only to the judges but to the
c           people at large who seek judicial redress against
            perceived legal injury or executive excesses." 291
            299. This view was reiterated by the learned judge in yet
      another dissent, that is, in Krishna Swami v. Union of
      lndia. 292
D
           300. In Union of India v. Madras Bar Association 293
      speaking for the Court, Justice Raveendran held:
             "The rule of law has several facets, one of which is that
            disputes of citizens will be decided by Judges who are
E           independent and impartial; and that disputes as to legality
            of acts of the Government will be decided by Judges who
            are independent of the executive." 294
            301. Finally, in State of Tamil Nadu it was unanimously
 F    held by the Bench speaking through Chief Justice Lodha that
      the independence of the judiciary is fundamental to the Rule of
      Law:
             "Independence of courts from the executive and
            legislature is fundamental to the rule of law and one of
G           the basic tenets of Indian Constitution. Separation of
      290 (1994) 3 SCC 569 (Five Judges Bench)
      291 Paragraph 412
      292
          (1992) 4 sec 605 paragraph 66
      293
          (2010) 11 SCC 1 (Five Judges Bench)
H     294
          Paragraph 101
      SUPREME COURT ADVOCATES-ON-RECORD                                    807
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      judicial power is a significant constitutional principle             A
      under the Constitution of lndia."295
      302. 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             B
other decisions as well and is no longer in dispute, nor was it
disputed by any of the learned counsel before us. It is, therefore,
not necessary to cite a train of cases in this regard, except to
conclude that the Rule of Law and the independence of the
judiciary are intertwined and inseparable and a part of the basic          c
structure of our Constitution.
     Independence of the judiciary - its nature and
content
      303. What are the attributes of an independent judiciary? D
It is impossible to define them, except illustratively. 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                  E
institution, a fragile bastion indeed.' 296 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.
      304. The independence of the judiciary takes within its              F
fold two broad concepts: (1) Independence of an individual
judge, that is, decisional independence; and (2) Independence
of the judiciary as an institution or an organ of the State, that is,
functional independence. In a lecture on Judicial
Independence, Lord Phillips 297 said: 'In order to be impartial a          G
judge must be independent; personally independent, that is
295
    Paragraph 126.2
296
    Southey Memorial Lecture, 1981
297
    Former President of the Supreme Court of the United Kingdom and Lord
Chief Justice of England and Wales                                         H
808             SUPREME COURT REPORTS                [2015] 13S.C.R.


A     free of personal pressures and institutionally independent, that
      is free of pressure from the State.'
             305. As far as individual independence is concerned,
      the Constitution provides security of tenure of office till the age
      of 65 years for a judge of the Supreme Court. 298 However, the
 8
      judge may resign earlier or may be removed by a process of
      impeachment on the ground of proved misbehavior or
      incapacity. 299 To give effect to this, Parliament has enacted
      the Judges (Inquiry) Act, 1968. The procedure for the
 c    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
 o    independence of the judiciary, the impeachment process is
       not a cake walk.
           306. 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
 E    Constitution are protected and will not be varied to his/her
      disadvantage after appointment. 300 To give effect to this,
      Parliament has enacted the Supreme Court Judges
      (Conditions of Service)Act, 1958.
 F          307. The salary, allowances and pension payable to or
      in respect of a judge of the Supreme Court is charged to the
      Consolidated Fund of lndia. 301 The estimate of this expenditure
      may be discussed but shall not be submitted to the vote of
      Parliament. 302
 G
               308. As far as this subje~t is concerned in respect of a
      298 Article 124(2}
      299 Article 124(4)
      300 Article 125
      301 Article 112(2}(d}

 H    302
            Article 113
            SUPREME COURT ADVOCATES-ON-RECORD                       809
             ASSOCIATION v. U:O.I. [MADAN B. LOKUR, J.]

judge of the High Court, there is an extensive reference in         A
Sankalchand Sheth. Broadly, the constitutional protections
and provisions for a judge of the High Court are the same as
for a judge of the Supreme Court.
       309. A judge of the High Court has security of tenure till
                                                                    8
the age of 62 years 303 and the removal process is the same as
for a judge of the Supreme Court. 304 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          c
State, 305 the pension payable is charged to the Consolidated
Fund of lndia. 306 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. 307 The
conditions of service of a High Court judge are governed by         D
the High .Court Judges (Salaries and Conditions of Service)
Act, 1954 in terms of Article 221 of the Constitution.
      310. The 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/        E
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      F
Law. This is the essence of decisional independence, not that
judges can do as they please.
     311. In this context, Justice Anthony M. Kennedy of the
US Supreme Court had this to say before the United States
Senate Committee on the Judiciary (Judicial Security and            G
Independence) on 14th February, 2007:
    03
'        Article 217
3
    °' Article 218
305
    Article 202
306
    Article 112(3)(d)
307
    Article 203                                                     H
810         SUPREME COURT REPORTS                     (2015] 13 S.C.R.


A          "Judicial independence is not conferred so judges can
           do as they please. Judicial independence is conferred
           so judges can do as they must. A judiciary with permanent
           tenure, with a sufficient degree of separation from other
           branches of government, and with the undoubted
B          obligation to resist improper influence is essential to the
           Rule of Law as we have come to understand that term." 308


           312.As far as decisional independence is concerned, a
c     good example of the protection is to be found in Anderson v.
      Gorrie309 where it was said by Lord Esher M.R.:
           "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
 D         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 Mee (A
      Minor), Re 310 :
 E          ''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
 F          be harassed by vexatious litigation alleging malice in the
            exercise of their proper jurisdiction."
             313. As far as institutional independence is concerned,
      our Constitution provides for it as well. For the Supreme Court,
 G    institutional independence is provided for in Article 129 which
      enables the institution to punish for contempt of itself. Asimilar
      provision is made for the High Court in Article 215. The law
      306 http·l/www        judjcjary senate·goy/imo/media/doc/
      kennedy testimony 02 14 07 pdf
      '"' [1895] 1 Q.B. 668, 670
 H    3\0 [1985] A.C. 528, 540
      SUPREME COURT ADVOCATES-ON-RECORD                                             811
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

declared by the Supreme Court shall be binding on all courts                        A
within the territory of India. 311 All authorities, civil and judicial
are obliged to act in aid of the Supreme Court. 312 The Supreme
Court is entitled to pciss 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                            B
enforceable throughout the territory of lndia.313 Subject to a law
made by Parliament, the Supreme Court is entitled to frame
rules to regulate its practice and procedure. 314 The Chief
Justice of India is empowered to appoint officers and 'servants'
of the Supreme Court but their conditions of service shall be                       C
regulated by rules made by the Supreme Court (subject to
approval by the President) or by law made by Parliament. 315
The administrative expenses of the Supreme Court, including
expenses related to its officers and 'servants' shall be charged                    D
upon the Consolidated Fund of lndia. 316
      314. 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. 317 Similarly, the Legislature of a State shall not                    E
discuss the conduct of a judge of the Supreme Court or the
High Court in the discharge of his or her duties. 318
       315. In addition to the above, there are other general
 311
     Article 141. There is no corresponding constitutional provision for the High   F
Court.
 "'Article 144. There is no corresponding constitutional provision for the High
Court.
 313
     Article 142. There is no corresponding constitutional provision for the High
Court.
 314
     Article 145. There is no corresponding constitutional provision for the High   G
Court.
 315
     Article 146. The corresponding constitutional provision for the High Court
is Article 229.
 316
     Article 146. The corresponding constitutional provision for the High Court
is Article 229.
 317
     Article 121
 318 Article 211
                                                                                    H
812          SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     protections available to an individual judge or to the institution
      as such. Through Article 50 319 which is a provision in Part IV of
      the Constitution (Granville Austin in 'The Constitution:
      Cornerstone of a Nation' describes Part Ill and Part IV of the
      Constitution as 'the conscience of the Constitution') 320 the
B     judiciary shall be insulated from executive interference. Justice
      Krishna Iyer speaking for himself and Justice Fazl Ali pointed
      out in Sankalchand Sheth that:
             "Under the general law of civil liability (Tort) words spoken
c            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
 D           discharge their duty fearlessly."321
            316. 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
 E    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
      Indian Penal Code which provides that: 'Nothing is an offence
 F    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.'
       317. In the overall conspectus and structure of the
  independence of the judiciary, it was stated in the First Judges
G case by Justice D.A. Desai that: 'Independence of judiciary
  under the Constitution has to be interpreted within the
      319
          Article 50: The State shall take steps to separate the judiciary from the
      executive in the public services of the State.
      320
          Page 50
 H    321
          Paragraph 77
        SUPREME COURT ADVOCATES-ON-RECORD                             813
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

framework and the parameters of the Constitution.' 322 It may A
be added that the framework and parameters of the law are
also required to be taken into consideration. Justice Bhagwati
put it quite succinctly when he said:
        "The concept of independence of the judiciary is not
                                                                      8
        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 polittcal, and            c
        freedom from prejudices acquired and nourished by the
        class to which the Judges belong." 323
       318. Generally speaking, therefore, the independence
of the judiciary is manifested in the ability of a judge to take a
decision independent of any external (or internal) pressure or D
fear of any external (or internal) pressure and that is 'decisional
independence'. It is also manifested in the ability of the
institution to have 'functional independence'. A comprehensive
and composite definition of 'independence of the judiciary' is E.
elusive but it is easy to perceive.
     319. The Constituent Assembly fully appreciated the
necessity of having an independent judiciary and perhaps
devoted more time to discussing this than any other issue.
Granville Austin points out the following:                            F
        "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 G
        ensure that the courts would be independent, devoting
        more hours of debate to this subject than to almost.any
322
      Paragraph 709
323 Paragraph 27

                                                                      H
814             SUPREME COURT REPORTS                         [2015] 13 S.C.R.


A              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."324
               Separation between the judiciary and the executive
B
        320. Another facet of the discussion relating to the
  independence of the judiciary can be resolved by considering
  Article 50 of the Constitution. 325 This Article was referred to in
  the Second Judges case and, according to learned counsel
C for the petitioners, overlooked in the First Judges case. It was
  urged that that Article is of great importance in as much as the
  Constituent Assembly was quite explicit that there should be a
  separation between the executive and the judiciary. The
  learned Attorney-General submitted, on the other hand, that
D the separation postulated by Article 50 of the Constitution was
  only limited to the public services of the State and not the
  judiciary as a whole.
           321. Article 50 was incorporated in the Constitution in
 E    the chapter on Directive Principles of State Policy at the
      instance of Dr. Ambedkar who moved a proposal on 24 1h
      November, 1948 to insert Article 39A in the Draft
      Constitution. 326
         322. Explaining the necessity of inserting Article 39A in
 F 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. The
 G British Government, however, did not give any effect to this
      324
            Granville Austin - "Indian Constitution: Cornerstone. of a Nation"' pages
      164-164
       325
           50. Separation of judiciary from executive.-The State shall take steps to
      separate the judiciary from the executive in the public services of the State.
       326
           39-A. That State shall take steps to secure that, within a period of three
      years from the commencement of this Constitution, there is separation of the
 H    judiciary from the executive in the public services of the State.
         SUPREME COURT ADVOCATES-ON-RECORD                         815
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

demand. Dr. Ambedkar moved for the insertion of Article 39A         A
in the Draft Constitution in the following words:
         "I do not think it is necessary for me to make any very
         lengthy statement in support of the amendment which I
         have moved. It has been the desire of this country from B
         long past that there should be separation of the judiciary
         from the executive and the demand has been continued
         right from the time when the Congress was founded.
         Unfortunately, the British Government did not give effect
         to the resolutions of the Congress demanding this c
         particular principle being introduced into the
         administration of the country. We think that the time has
         come when this reform should be carried out. It is, of
         course, realized that there may be certain difficulties in
         the carrying out of this reform; consequently this D
         amendment has taken into consideration two particular
         matters which may be found to be matters of difficulty.
         One is this: that we deliberately did not make it a matter
         of fundamental principle, because if we had made it a
         matter of fundamental principle it would have become E
         absolutely obligatory instantaneously on the passing of
         the Constitution to bring about the separation of the
         judiciary and the executive. We have therefore
         deliberately put this matter in the chapter dealing with
         directive principles and there too we have provided that F
         this reform shall be carried o_ut within three years, so that
         there is no room left for what might be called
         procrastination in a matter of this kind. Sir, I move." 327
      323. Mr. B. Das (Orissa: General) opposed the                 G
amendment on the ground that when the people were harassed
by the British Government, the feeling was that no justice was
given an<;l that is why there was a demand for the separation
327
      http://par!iamentofindja.njc jn/lsldebates/yo!?p12 him
                                                                    H
816         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     of the judiciary from the executive. After Independence that
      su~picion did not exist and therefore it was essential to
      examine whether separation was necessary.
            324. The debate continued the next day on 25th
      November, 1948 when, as soon as the Constituent Assembly
8
      met, Dr. Ambedkar moved an amendment for the deletion of
      certain words from Article 39A of the Draft Constitution. As a
      result of this proposed amendment, Article 39Awould read as
      follows:
C          "The State shall take steps to separate the judiciary from
           the executive in the public services of the State."
             325. During the course of the debate on 25th November,
      1948 a self-evident truth came into focus. It was pointed out by
D     Pandit Jawaharlal Nehru (United Provinces: General) that the
      Constitution is expected to last a long time and that it should
      not be rigid. As far as the 'basic nature' of the Constitution is
      concerned it must deal with fundamental aspects of the
      political, social, economic and other spheres and not with the
E     details which are matters for legislation. It was stated in this
      context as follows:
           "Coming to this present amendment, if I may again make
           some general observations with all respect to this House,
           it is this: that I have felt that the dignity of a Constitution
 F         is not perhaps maintained sufficiently if one goes into
           too great detail in that Constitution. A Constitution is
           something which should last a long time, which is built
           on a strong foundation, and which may of course be
           varied from time to time - it should not be rigid -
G
           nevertheless, one should think of it as something which
           is going to last, which is not a transitory Constitution, a
           provisional Constitution, a something which you are
           going to change from day to day, a something which has
           provisions for the next year or the year after next and so
H
        SUPREME COURT ADVOCATES-ON-RECORD                          817
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        on and so forth. It may be necessary to· have certain A
        transitory provisions. It will be necessary, because there
        is a change to have some such provisions, but so far as
        the basic nature of the Constitution is concerned, it must
        deal with the fundamental aspects of the political, the
        social, the economic and other spheres, and not with the B
        details which are matters for legislation. You will find that
        if you go into too great detail and mix up the really basic
        and fundamental things with the important but
        nevertheless secondary things, you bring the basic things
        to the level of the seconds:iry things too. You lose them in C
        a forest of detail. The great trees that you should like to
        plant and wait for them to grow and to be seen are hidden
        in a forest of detail and smaller trees. I have felt that we
        are spending a great deal of time on undoubtedly D
        important matters, but nevertheless secondary matters
        - matters which are for legislation, not for a Constitution.
        However, that is a general observation." 328
      326. The significance .of the view expressed by Pandit
Jawaharlal Nehru is that the existence of the 'basic nature' of E
the Constitution was recognized and it appears that this is what
we call today as the basic structure or basic features of the
Constitution. Undoubtedly there was an acknowledgement of
certain fundamental aspects of the Constitution but it was not
possible to go into details in respect of each and every one of F
them. Explaining this in the context of the 'matters of extreme
moment' Pandit Jawaharlal Nehru said that India is a very
mixed country 'politically, judicially, economically and in many
ways and any fixed rule of thumb to be applied to every area
may be disadvantageous and difficult in regard to certain G
areas. On the one hand, that rule will really prevent progress in
one area, and on the other hand, it may upset the apple-cart in
some other area. Therefore, a certain flexibility is desirable.' 329
326   http·l/parliamentofindia nic in/ls/debates/vol7p13.htm
329
      http://parliamentofindia.nic.in/ls/debates/vo17p13 htm        H
818         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A          327. The views expressed by Dr. Bakshi Tek Chand (East
      Punjab: General) are extremely important in this regard. The
      Hon'ble Member gave a detailed historical background for the
      demand of separation of the executive and the judiciary and
      expressed the view that as far back as in 1852 when public
B     opinion in Bengal began to express itself in an organized
      manner that the matter of separation was first mooted. In other
      words, the separation of the executive from the judiciary had
      been in demand for almost 100 years.

c           328. Dr. Bakshi Tek Chand was of the view that with
      Independence, the necessity· of this reform had become
      greater. The Hon'ble Member cited three illustrative insta~ces
                                                                     0


      of interference with the judiciary by Ministers of some
      Provinces and members of political parties i~ the fair
D     administration of justice. Dr. Bakshi Tek Chand gave these
      extremely telling examples and it is best to quote what was
      said:
           "One word more I have to say in this connection and that
           is, that with the advent of democracy and freedom, the
E
           necessity of this reform has become all the greater.
           Formerly it was only the district magistrate and a few
           members of the bureaucratic Go'ilernment front whom
           interference with the judiciary was apprehended, but now,
           I am very sorry to say that even the Ministers in some
 F
           provinces and members of political parties have begun
           to interfere with the.administration of justice. Those of
           you, who may be reading news paper reports of judicial
           decisions lately, must have been struck with this type of
G          interference which has been under review in the various
           High Courts lately. In one province we found that in a case
           pending in a Criminal Court, the Ministry sent for the
           record and passed an order directing the trying
           Magistrate to stay proceedings in the case. This was
H
        SUPREME COURT ADVOCATES-ON-RECORD                                819
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

         something absolutely unheard of. The matter eventually A
         went up to the High Court and the learned Chief Justice
         and another Judge had to pass very strong remarks
         against such executive interference with the
         administration of justice
                                                                     B
         In another province a case was being tried against a
         member of the Legislative Assembly and a directive went
         from the District Magistrate to the Magistrate trying the
         case not to proceed with it further and to release the man.
         The Magistrate who was a member of the Judicial                 c
         Service and was officiating as a Magistrate had the
         strength to resist this demand. He had all those letters
         put on the record and eventually the matter went to the
         High Court and the Chief Justice of the Calcutta High
         Court made very strong remarks about this matter.           D
         Again in the Punjab, a case has recently occurred in
         which a Judge of the High Court, Mr. JusticeAchru Ram,
         heard a habeas corpus petition and delivered a judgment
         of 164 pages at the conclusion of which he observed
         that the action taken by the District Magistrate and the        E
         Superintendent of Police against a member of the
         Congress Party was mala fide and was the result of a
         personal vendetta. These were his remarks.
         In these circumstances, I submit that with the change of        F
         circumstances and with the advent of freedom and the
         introduction of democracy, it has become all the more
         necessary to bring about the separation of the judiciary
         from the executive at the earliest possible opportunity." 330
      329. The debate concluded on 25th November, 1948 with G
the Constituent Assembly eventually accepting the insertion of
Article 39A in the Draft Constitution. This is now Article 50 in
our Constitution.
330
      http://par\iamentofindia.nic.in/ls/debates/vo\7p 13 htm
                                                                         H
820       SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A        330. The importance of the debate must be looked at
  not only from a historical perspective but also what was
  intended for the future by the ConstituentAssembly. In the past
  there had been unabashed interference by the executive in
  the administration of justice by the subordinate judiciary and
B this definitely needed to be checked. In that sense, the debate
  on 24th and 25th November, 1948 was a precursor to the debate
  on Article 103 of the Draft Constitution held on 23rd and 24th
  May, 1949. By that time it was becoming clear (if it was not
  already clear) to the Constituent Assembly that there should
C 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
D to be continued after Independence was of equal significance.
         331. With the need for avoiding details in the Constitution,
  the Draft Constitution did not specifically provide for the
  independence of the judiciary other than the subordinate
  judiciary. If this is looked at quite plainly, it would appear
E anachronistic to hold a view that Article 39A of the Draft
  Constitution 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
F to the Constituent Assembly. One must, therefore, assume
  that either the superior judiciary was already independent (and
  this needed no iteration) or that if it was not independent then,
  like the subordinate judiciary, it must be made independent,
  with the executive not being permitted to interfere in the
G administration of justice. Either way, separation between the
  judiciary and the executive with the intention of having an
  independent judiciary was a desirable objective.
          332. No one can doubt and, indeed, even the learned
H
      SUPREME COURT ADVOCATES-ON-RECORD                                     821
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

Attorney-General did not doubt that the independence of the                 A
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.' 331 In addition, the judiciary should clearly be              B
separate from the executive.
       333. By way of digression, a word may also be said about
the financial independence of the judiciary. In a letter of 151h
June, 2008 forwarding the Report of the Task Force on 'Judicial             c
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 realization of the basic human rights of 'access to           D
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, 101h and 11th Plan are wholly insufficient.' Financial
independence is one area which is also critical to the
independence of the judiciary but is among the least                        E
discussed.
    Independence of the judiciary and the appointment
process
      334. We must proceed on the basis that the F
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. Granville Austin says: 'An independent
judiciary begins with who appoints what calibre of judges.' 332 G
331
     J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under
Commonwealth Principles: A Compem:lium and Analysis. of Best Practice
(Report of Research Undertaken by Bingham Centre for the Rule of Law)
paragraph 0.2.9
 332
      Granville Austin - "Working a Democratic Constitution: The Indian
Experience" page 124                                                        H
822         SUPREME COURT REPORTS                          [2015] 13 S.C.R.


A     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. 333 If a pers.on of doubtful ability
      or integrity is appointed as a judge, there is a probability of
B     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
C     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. 334
o          335. Chief Justice Marshall in Marbury v. Madison
      observed that in respect of the commissioning of all officers of
      the United States, the clauses in the Constitution and the laws
      of the United States 'seem to contemplate three distinct
      operations', namely:
 E          "1. The nomination. This is the sole act of the president,
            and is completely voluntary.
            2. The appointment. This is also the act of the president,
            and is also a voluntary act, though it can only be performed
 F          by and with the advice and consent of the senate.
            3. The commission. To grant a commission to a person
            appointed, might perhaps be deemed a duty enjoined
            by the constitution. "He shall," says that instrument,
            "commission all the officers of the United States." 335
G
            336. Transposing this to the appointment of judges in
      333
          Second Judges case, paragraph 49, 335 and 447.
      334
          14'" Report of the LCI, Chapter 5
      " 5 Pages 155 and 156

H
     SUPREME COURT ADVOCATES-ON-RECORD                              823
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

our country, the first step is a recommendation (or nomination)     A
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       B
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.
                                                                    c
        337. 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              D
Judges case have laid that to rest with a shared primacy and
responsibility between the President and the Chief Justice of
India. This has already been discussed above.
     338. The third step is the issuance of a warrant of
appointment (or commission). It is quite clear that the warrant     E
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, unlike what the learned Attorney-         F
General says and there is no scope for the recitation of the
'judges appointing judges' mantra.
       339. 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     G
the first and second steps.
      340. In a Report entitled 'Judicial Independence: Law
and Practice of Appointments to the European Court of Human
                                                                    H
824          SUPREME COURT REPORTS                        [2015] 13 S.C.R.


A     Rights' 336 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. This
B     is what was said:
            "The independence of the judiciary is one of the
            cornerstones of the rule of law. Rather than being elected
            by the people, judges derive their authority and legitimacy
c           from their independence from political or other
            interference. It is clear from the existing international
            standards that the selection and appointment of judges
            plays a key role in the safeguarding of judicial
            independence and ensuring the most competent
o           individuals are selected."
         341. India is a part of the Commonwealth and The
  Commonwealth Principles on the accountability of and the
  relationship between the three branches of government 337
  provide, inter alia, with regard to the appointment of judges,
E as follows:
            "An independent, impartial, honest and competent
            judiciary is integral to upholding the rule of law,
            engendering public confidence and dispensing justice.
 F          The function of the judiciary is to interpret and apply
            national constitutions and legislation, consistent with
            international human rights conventions and international
            law, to the extent permitted by the domestic law of each
            Commonwealth country. To secure these aims: (a)
G           Judicial appointments should be made on the basis of
      336
          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.
      Available at http·flwww jnterjghts org/docymenV142/jndex html
      337
          As agreed by Law Ministers and endorsed by the Commonwealth
H     Heads of Government Meeting, Abuja, Nigeria, 2003
      SUPREME COURT ADVOCATES-ON-RECORD                                       825
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      clearly defined criteria and by a publicly declared A
      process. The process should ensure: equality of
      opportunity for all who are eligible for judicial office;
      appointment on merit; and that appropriate consideration
      is given to the need for the progressive attainment of
      gender equity and the removal of other historic factors of B
      discrimination;"338
     342. Jack Straw was the Lord Chancellor in the United
Kingdom from 2007 to 2010. He delivered the 64 1h series of
Hamlyn Lectures in 2012 titled 'Aspects of Law Reform -An                     c
Insider's Perspective'. The 3rd lecture in that series was
delivered by him on 4 1h December, 2012 on 'Judicial
Appointments'. In that lecture, he says:
      "The appointment of judges - by whom, according to what
      standards and process, and with what outcome - is of D
      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 E
      is serving.
      And we need to get it right 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                   F
      extreme of circumstances." 339
      343. 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 G
judges of the High Court and the best amongst the judges of
338
    http·Uthecommonwea!th ora/sjtes/defau!tlfiles/hjstor:y-jtemsldocumentsl
LatimerHousePrincjp!es.pdf
339
    Page 52
                                                                              H
826         SUPREME COURT REPORTS                     [2015] 13S.C.R.


A     the High Courts or amongst advocates or distinguished jurists
      should be appointed to the Supreme Court. It has been stated
      in the 141h Report of the LCI that the selection of judges is of
      pivotal importance to the progress of the nation and that
      responsibility must be exercised with great care.
 B
            344. In the Report on Judicial Independence: Law and
      Practice of Appointments to the European Court of Human
      Rights, great emphasis was laid on the procedure for the
      appointment of judges and the criteria for appointment. It was
c     said:
           "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
 D         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. It would be anomalous and unacceptable
 E         ifthe Court (European Court of Human Rights] failed to
           meet the international human rights standards that it is
           charged with implementing, including the requirement
           that cases are heard by an independent and impartial
           court of law.
 F
            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
 G          and abilities to discharge their mandate. Declining
            standards will ultimately impact negatively on the standing
            of the Court [European Court of Human Rights], as well
            as on the application and development of human rights
            law on the international and (ultimately) national level."
 H
      . SUPREME COURT ADVOCATES-ON-RECORD                          827
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      345. In the First Judges case, the question of A
appointment bf judges as being integral to the independence
of the judiciary was not an issue but Justice Venkataramiah
expressed the view that it is difficult to hold that if the
appointment of judges is left to the executive, it will impair the
independence of the judiciary. The learned judge was of the B
view that it is only 'after such appointment the executive should
have no scope to interfere with the work of a judge.' 340 This
view is, with respect, far too narrow and constricted. However,
Justice D.A. Desai held a different view which was expressed
in the following words:                                            c
      "Now, the independence of the judiciary can be fully
      safeguarded not by merely conferring security on the
      Judges during their term of office but by ensuring in
      addition that persons who are independent, upright and D
      of the highest character are appointed as Judges.
      Moreover, there is always the fear that appointments left
      to the absolute discretion of the appointing executive
      could be influenced by party considerations." 341
       346. In the Second Judges case Justice Pandian was E
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. 342 Similarly, Justice Kuldip F
 Singh 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.' 343 G
Justice Verma, speaking for the majority, expressed the view
that all constitutional authorities involved in the process of
340
    Paragraph 1033
341
    Paragraph 886
342
    Paragraph 49
343
    Paragraph 335                                                   H
828              SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     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.' 344 The learned judge further said
      that the independence of the judiciary can be safeguarded by
B     preventing the influence of political consideration in making
      appointment of judges to the superior judiciary. 345
             34 7. There is, therefore, no doubt that the appointment
      of a judge to the Supreme Court or the High Court is an integral
c     part of the independence of the judiciary. It is not possible to
      agree with the learned Attorney-General when he says 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. I would say that it is really the foundational
 o    part of the independence of the judiciary.
            348. Shimon Shetreet has this to say on the appointment
      of judges:
                "In any system, the methods of appointment have direct
 E              bearing on both the integrity and independence of the
                judges. Weak appointments lower the status of the
                judiciary in the eyes of the public and create a climate in
                which the necessary independence of the judiciary is
                likely to be undermined. Similarly, political appointments
 F              that are seen by the public as not based on merit may
                arouse concern about the judge's independence and
                impartiality on the bench. The quality of judicial
                appointments depends upon the process and standards
                applied by the appointing authorities, yet every
 G              appointment system has its limitation. It is difficult to
                predict what sort of judge a man or woman will be and
                irreversible mistakes in judicial appointments are bound
                to occur, even when the method of appointment is fair
      34 '   Paragraph 431
 H    345
             Paragraph 44 7
      SUPREME co·uRTAbVOCATES-ON-RECORD                                        829
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      and efficient and the standards are high, as they are in                 A
      England. Such errors in selection apply equally to
      appointing persons who were unfit for occupying a
      judicialoffice as well as failing to appoint a person who
      might have been a good judge." 346
                                                                               B
       349. How do international conventions look at this issue?
The Beijing Statement of Principles of the Independence of
the Judiciary in the LAWASIA Region 347 provides, inter alia,
as follows:
      "Independence of the Judiciary requires that; a) The C
      judiciary shall decide matters before it in accordance with
      its impartial assessment of the facts and its
      understanding of the law without improper influences,
      direct or indirect, from any source; and b) The judiciary
      has jurisdiction, directly or by way of review, over all D
      issues of a justiciable nature. 346
      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                         E
      independence. 349
      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                F
      persons of competence, integrity and independence are
      appointed." 350
      This document was signed by Justice S.C. Agrawal of
346
    Judges on Trial: The Independence and Accountability of the English        G
Judiciary, Chapter 4
347
    As amended at Manila on 28 1h August, 1997. This has been referred to in
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 in paragraph 11 of the
Report.
346 Clause 3
349
    Clause 11
 °
 35
    Clause 12                                                                  H
830           SUPREME COURT REPORTS                              [2015) 13 S.C.R.


A     this Court representing Chief Justice A. M. Ahmadi.
         350. The Bangalore Principles of Judicial Conduct, 2002
  which lay down six essential values for a judge (and which are
  accepted world-wide both in civil law and common law
  countries) would be totally unworkable if a person appointed
8
  as a judge, at the time of appointment, lacks basic competence
  and independence. 351 Given all these considerations, it must
  be held and is held that the process for appointment and 1he
  actual appointment of a judge to a High Court or the Supreme
C Court is a predominant part of the independence of the
  judiciary and, therefore, an integral part of the basic structure
  of the Constitution.         "
         351. Therefore, the procedure for the appointment of
   judges of the Supreme Court or the High Courts can impact
 D on the independence of the judiciary and Hie basic structure of
   the Constitution.
             The recommendation process
            352. How can the President ensure that the most
 E    deserving persons are appointed as judges or that they are
      not denied appointment? This is the nub of the controversy
      before us 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
 F    the responsibility of the judiciary, therefore, the judiciary
      (symbolized 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. 352
 G         353. The process of consideration of a person for
      appointment as a judge is important both at a stage prior to
      351
          The six values are: Independence, Impartiality, Integrity, Propriety, Equality,
      Competence and Diligence
      352
           It is not necessary, for the purposes of this discussion, to get into the
      controversy whether the recommendation of a person to be considered for
 H    appointment should originate from the executive or the judiciary.
         SUPREME COURT ADVOCATES-ON-RECORD                         831
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

·the recommendation being made by the Chief Justice of India A
 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 B
 his/her colleagues, constituting the collegium. 353 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 C
 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
                                                                     D
 objection to the appoin.tment of a particular person for strong
 and cogent reasons to be recorded in writing. 354 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 E
 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?                                 F
      354. 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 G
then, of course, there are no hurdles to the issuance of a warrant
of appointment.
 353
       Second Judges case, paragraph 293 and 428
 354
       Second Judges case, paragraph 442, 450, 461, 486 and 509
                                                                    H
832            SUPREME COURTREPORTS ·                  .. [2015] 13S.C.R.


A          355. 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.
          356. At the pre-recommendation stage, it is quite
8
  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
c disentitle that person from being appointed a judge .. It.is then
  for the executive, as a consultant, to bring this information or
  material to the notice of the Chief Justice of lndia. 355 Since the
  judiciary has the responsibility of recommending an
  appropriate candidate for appointment as a judge, primacy is
o accorded to the view of the judiciary (symbolized 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 appbintment. 356 The Chief Justice of
  India· may, for good rec:{so,n, accept the view of the executive
E or may, also for good reason, not accept the view of the
  executive. It is in this sense that 'consultation' occurring in
  Article 124(2) and Article 217(1) of the Constitution has to be
  understood. Primacy to the judiciary is accorded only to this
  limited extent, but subject to a proviso which will be discussed
F a little later..                  ·       .      .           .

          357. Why is it that limited primacy has been acc,arded to
   the judiciary? That the judiciary is the best suited to take a
   decision whether a person should be appointed a judge or not
 G is implicit in Article 124(2) and Article 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
      355
            Second Judges case paragraph 462 and 478(6)
 H    356
            Second Judges case paragraph 467, 468 and 478(6)
     SUPREME COURT ADVOCATES.-ON-RECORD                              833
      ASSOCIATION Y. U.0.1. [MADAN B. LOKUR, J.]

President may deem necessary.' That the President may A
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. B
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.                   C
      358. 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       o
turn down therecommendation. But ifthe 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.                           E
      359. Since the Constitution is a flexible document, neither
the President nor the Chief Justice of India is precluded from
taking the advice of any person, lay or professional. In fact,
Justice Verma stated in an interview in this regard as follows:      F
      "Can you throw light on how, during your tenure as the
      CJI, appointments took place?
      For every Supreme Court appointment, I consulted senior
      lawyers like Fali S. Nariman and Shanthi Bhushan. I used G
      to consult five or six top lawyers. I used to consult even
      lawyers belonging to the middle level. Similar consultation
      took place in the case of High Courts. I recorded details
      of every consultation. I wish all my correspondence is
      made public. After the appointment, why should it be H
834         SUPREME COURT REPORTS                        [2015] 13 S.C.R.


A           secret? If there is a good reason to appoint the Judges,
            then at least the doubts people cast on them even now
            will not be there. And if there is a good reason why they
            should not have been appointed, then it would expose
            the persons who were responsible for their
 B          appointment."357
            360. 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,
c     as indeed it was not possible to do so.
           361. 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
 D 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
 E exhaustively dealt with by Justice Kuldip Singh in the Second
   Judges case and it was concluded that a constitutional
   convention is as binding as constitutional law. 358 In any event,
   there is no cogent reason to discard a constitutional convention
 F if it is working well. At this stage, it is useful to recall the
   comment of Chief Justice Beg in State of Rajasthan v. Union
   of /ndia 359 that: ' ... constitutional practice and convention
   become so interlinked with or attached to constitutional
   provisions and are often so important and vital for grasping
 G 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
      357
          Frontline, Volume 25 - Issue 20: September 27-0ctober 10, 2008
      356
          Second Judges case paragraph· 353 and 376
      359
          (1977) 3 sec 592 at paragraph 56
 H
        SUPREME COURT ADVOCATES-ON-RECORD                              835
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

conventions and practices are so interlinked to the                    A
constitutional provisions that they are difficult to disassemble.
       362. It is this constitutional interpretation and
constitutional convention that results in binding the
recommendation of the Chief Justice of India on the executive
                                                                       8
that is objected to by the learned Attorney-General as being
contrary to the Constitution as framed and it is this that is sought
to be 'corrected' by the 99 1h Constitution Amendment Act.
      363. The issue may be looked at from yet another angle.
Assuming, the executive rejects the recommendation of the C
Chief Justice of India even after its ur.ianimous reiteration, what
is the solution to the impasse that is created? The answer is
to be found in Samsher Singh and reiterated in Sankalchand
Sheth. It was held in Samsher Singh that in such an event,
the decision of the executive is open to judicial scrutiny. It was D
said:
         "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            E
         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 lndia."360
      This view was reiterated in Sankalchand Sheth. 361 Of F
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 G
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
360 Paragraph 149
361
      Paragraph 41
                                                                       H
        836         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


        A     least to some extent.
                     364. But is judicial review necessarily the only answer to
              a problem of this nature? Should the executive and the judiciary
              ever be on a collision course in the appointment of a judge?
              Not only did Dr. Ambedkar think that such a situation would not
        B     occur, he never visualized it. Dr. Ambedkar made provision
              for virtually every contingency, except a stalemate or deadlock
              situation - he never imagined that such an eventuality would
              ever arise .
..\).
        c       365. That there would be no difference or little difference
          or a manageable difference of opinion between the President
          and the Chief Justice of India or that the judiciary should have
          a final say in the matter so as not to make the consultation
          process a mere formality, is quite apparent from the fact that
        D the Constituent Assembly deliberately drew a distinction
          between the appointment by the President of a judge of the
          Supreme Court and a judge of the High Court (on the one hand)
          and the appointment by the President of other constitutional
          authorities. For the appointment of a judge, it is mandated in
        E the Constitution that the President must consult the Chief
          Justice of India. However, to appoint the Comptroller and
          Auditor' General under Article 148 of the Constitution (for
          example); the President is under no such obligation to consult
          anybody even though the position is one of vital importance.
        F Dr. Ambedkar had said in this regard:

                   "I cannot say I am very happy about the position which
                   the Draft Constitution, including the amendments which
                   have been moved to the articles relating to the Auditor-
        G          General in this House, assigns to him. Personally
                   speaking for myself, I am of opinion that this dignitary or
                   officer is probably the most important officer in the
                   Constitution of India. He is the one man who is going to
                   see that the expenses voted by Parliament are not
        H          exceeded, or varied from what has been laid down by
        SUPREME COURT ADVOCATES-ON-RECORD                                 837
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

          Parliament in wbat is called the Appropriatio~ Act. If this A
          functionary is to carry out the duties - and his duties, I
          submit, are far more important than the duties eveh of
          the judiciary - he should have been certainly                as .
          independent as the Judiciary. But, comparing the articles
          about the Supreme Court and the articles relating to the B
          Auditor-General, I cani:iot help saying that we have not
      · . given him the same independence which we have given
          to the Judiciary, although I personally feel that he ought
          to have far. greater independence than the Judiciary .·
        . itself." 362 ·               ·      · ··         ·       '  C

       Similarly, the appointment of the Chief Election
Commissioner and the Election Commissioners under Article
324 of the Constitution does not require the President to consult
anybody, even though free and fair elections are undoubtedly D
vital to our democracy. Since the consultation provision was
incorporated only for the appointment of judges, surely; the
Constituent Assembly had good reasons for making this
distinction. Justice Khehar has referred to other Presidential
appointments in his draft judgment and it is not necessaryto E
repeatthem: What is importanris the 'message'· sought to be
conveyed by the ConstituentAsserrihly'and the sanctity given
to a recommendation by the GhiefJusUce of India for the·
appointment of a judge of ttie Supreme Court or the High C'ourt
       366 .. It is trite that the Constitution is a living document. 363 F
Keeping this in mind, could it be said that a strained·
interpretation has been given to Article 124(2) and Article
217 ( 1) of the Constitution particularly when the substitution of
'consultation' with 'concurrence' in the draft of Article 124 was G
discussed in the Constituent Assembly and not accepted? 364 ·
Definitely not, particularly if one looks at the context .in which
362
    http'//par!iamentofindia ojc in/ls/debates/vol8p11 a htm
363
    1.R. Coelho v. State of Tamil Na du, (2007) 2 SCC 1 paragraph 42
364
    Foot Nofe 16
                                                                              H
838         SUPREME COURT REPORTS                    (2015] 13 S.C.R.


A     '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. ·
            367. But, as mentioned earlier, it is not necessary to dwell
      at length upon the correctness or otherwise of the procedure
8
      for the appointment of a judge as laid down in the Second
      Judges case and the Third Judges case. The question really
      is whether the change in the procedure of appointment of judges
      violates the basic structure of the Constitution. Can the
c     Judiciary be independent if the appointment process is in the
      hands of the National Judicial Appointments Commission?
            Amendment of the Constitution through Article 368
            368. Proceeding on the basis, as we should, that the
      independence of the judiciary is a part of the basic structure of
 0
      the Constitution, and that 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, the question that
      arises is to what extent, if at atl, can the appointment process
 E    be tinkered with by Parliament.
         369. 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
 F of that power has inherent limitations as explained in
   Kesavananda Bharatiwhich is that the basic structure of the
   Constitution cannot be altered. What constitutes the basic
   structure of the Constitution has been considered in several
 G decisions of this Court and democracy (for example) 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,
 H and no one has disputed it, that the independence of the
       SUPREME COURT ADVOCATES-ON-RECORD                                839
        ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

 judiciary is also a part of the basic structure of the Constitution.   A
       370. The constitutional requirement for amending the
 Constitution is: (a) The amendment may be initiated only by
 the introduction of a Bill for the purpose;
       (b) The Bill may be moved in either House of Parliament; B
 (c) The Bill ought to be passed in each House by a majority of
 the total membership of that House and by a majority of not
 less than two-thirds of the members of that House present and
 voting; (d) The Bill shall be presented to the President who
 shall give his assent to the Bill and thereupon the Constitution C
 shall stand amended in accordance with the terms of that Bill.
       371. There is a proviso to Article 368 of the Constitution
· and for the present purposes, the further requirement is that 'if
  such amendment seeks to make any change' in Chapter IV of             D
  Part V (The Union Judiciary) and Chapter V of Part VI (The
  High Courts in the States) the amendment 'shall also require
  to be ratified by the Legislatures of the States by resolution to
  that effect passed by those Legislatures before the Bill making
  provision for such amendment is presented to the President            E
  for assent.'
       372. As far the Constitution (One Hundred and Twenty-
 firstAmendment) Bill, 2014 is concerned, there is no doubt or
 dispute that the procedure mentioned above was followed and
 that it received the assent of the President on 31 51 December,        F
 2014. To that extent the Constitution (Ninety-ninth)Amendment
 Act, 2014 is a procedurally valid legislation.
       Limitations to amending the Constitution
       373. To appreciate the inherent limitations placed on G
 Parliament with regard to an amendment to the Constitution, it
 is necessary to consider the views constituting the majority in
 Kesavananda Bharati. In that case, the question before this
 Court (as framed by Chief Justice Sikri) was: What is the extent
                                                                        H
840.            SUPREME COURT REPORTS                           [2015]13S.C.R.


A    of the amending power conferred by Article 368 of the
     Constitution, apart from Article 13(2) on Parliament?
          374. The learned Chief Justice noted that the word
   'amendment' has not been defined in the Constitution. In some
   provisions of the Constitution it has a narrow meaning, while
 8
   in other provisions it has an expansive meaning. This view
   was expressed by Justice Shelat and Justice Grover as well,
   who observed that the words 'amendment' and 'amend' have
   been used to convey different meanings in different provisions
c  of the Constitution. In some Articles these words have a narrow
   meaning while in others the meaning is much larger or broader.
   The word is not one of precise import and has not been used
   in different provisions of the Constitution to convey the same
   meaning. This is of some significance since it is on this basis
 D that this Court referred to the CAD to interpret the words
   'amendment' and 'amend'.
         375. On a reading of various provisions of the
   Constitution the learned Chief Justice concluded that the
   expression 'amendment of this Constitution' occurring in Article
 E 368 thereof would mean any addition or change in any
   provision of the Constitution 'within the broad contours of the
   Preamble and the Constitution to carry out the objectives in
   the Preamble and the directive principles. Applied to
 F fundamental rights, it would mean that while fundamental rights
   cannot be abrogated, reasonable abridgments of fundamental
   rights can be effected in the public interest.' 365 In this context,
   the learned Chief Justice referred to the Universal Declaration
   of Human Rights to conclude that certain rights of individuals
 G are inalienable. 366
       365
             Paragraph 287
       366 Article 8 and 10 of the UDHR are relevant in    this regard:
     Article 8: Everyone has the right to an effective remedy by the competent
     national tribunals for acts violating the fundamental rights granted him by the
     constitution or by law.
     Article 10: Everyone is entitled in full equality to a fair and public hearing by an
 H   independent and impartial tribunal, in the determination of his rights and
     obligations and of any criminal charge against him.
        SUPREME COURT ADVOCATES-ON~RECORD                                841
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

       376. The learned Chief Justice concluded by holding,. A
inter alia:
        "The expression "amendment of this Constitution" does
        not enable Parliament to abrogate or take away
        fundamental rights or to completely change the
                                                                         8
        fundamental features of the Constitution so as to destroy
        its identity. Within these limits Parliament can amend
        every article." 367
       377. Justice Shelat and Justice Grover looked at the text
of Article 368 as it stood prior to its amendment by the 24 1h C
Constitution Amendment Act and observed that there is intrinsic
evidence to suggest that the amending power of Parliament
is limited. However widely worded the power might be, it cannot
be used to render the Constitution to lose its character or
nature or identity and it has to be exercised within the D
framework of the Constitution. It was observed that an unlimited
power of amendment cannot be conducive to the survival of
the Constitution. On this basis, it was concluded that:
        "The meaning of the words "amendment of this                     E
        Constitution" as used in Article 368 must be such which
        accords with the true intention of the Constitution-makers
        as ascertainable from the historical background, the
        Preamble, the entire scheme of the Constitution, its
        structure and framework and the intrinsic evidence in            F
        various articles including Article 368. It is neither possible
        to give it a narrow meaning nor can such a wide meaning
        be given which can enable the amending body to change
        substantially or entirely the structure and identity of the
        Constitution."368                                                G
      378. Justice Hegde and Justice Mukherjea observed that
Article 368 cannot be interpreted in a narrow and pedantic
367
      Paragraph 475
368
      Paragraph 546
                                                                         H
842        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A  manner but must be given a broad and liberal interpretation. It
   was observed that the word 'amendment' has no precise
   meaning and that it is a 'colourless' word. In fact, the words
   'amendment' and 'amend' have been used in the Constitution
   in different places with different connotations. Notwithstanding
 B this, the learned judges were of the view that the meaning of
   these expressions cannot be as expansive as to enable
   Parliament to change the 'personality' of the Constitution since
   its scheme and structure proceed 'on the basis that there are
   certain basic features which are expected to be permanent.'
 C Therefore, the amending power under Article 368 of the
   Constitution is subject to implied limitations.
           379. Having considered all these factors, the learned
      judges concluded that:
 D         "On a careful consideration of the various aspects of the
           case, we are convinced that the Parliament has no power
           to abrogate or emasculate the basic elements or
           fundamental features of the Constitution such as the
           sovereignty of India, the democratic character of our
 E         polity, the unity of the country, the essential features of
           the individual freedoms secured to the citizens._ Nor has
           the Parliament the power to revoke the mandate to build
           a welfare State and egalitarian society. These limitations
           are only illustrative and not exhaustive. Despite these
 F
           limitations, however, there can be no question that the
           amending power is a wide power and it reaches every -
           Article and every part of the Constitution. That power can
           be used to reshape the Constitution to fulfil the obligation
 G         imposed on the State. It can also be used to reshape the
           Constitution within the limits mentioned earlier, to make
           it an effective instrument for social good. We are unable
           to agree with the contention that in order to build a welfare
           State, it is necessary to destroy some of the human
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                 843
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     freedoms. That, at any rate is not the perspective of our         A
     Constitution. "369
     380. Justice Khanna dwelt on the basic structure of the
Constitution and expressed the view that 'amendment'
postulates the survival of the 'old' Constitution without loss of
                                                                       8
its identity and the retention of the basic structure or framework
of the 'old' Constitution. It was held:
      "Although it is permissible under the power of
      amendment to effect changes, howsoever important, and
      to adapt the system to the requirements of changing C
      conditions, it is not permissible to touch the foundation
      or to alter the basic institutional pattern. The words
      "amendment of the Constitution" with all their wide sweep
      and amplitude cannot have the effect of destroying or
      abrogating the basic structure or framework of the D
      Constitution."
      381. Thereafter, Justice Khanna travelled much further
than necessary and held that as long as the basic structure
and framework of the Constitution is retained, the plenary power       E
of amendment 'would include within itself the power to add,
alter or repeal the various articles including those relating to
fundamental rights.' The rationale for this was given a little later
in the judgment in the following words:
      "The word "amendment" in Article 368 must carry the F
      same meaning whether the amendment relates to taking
      away or abridging fundamental rights in Part Ill of the
      Constitution or whether it pertains to some other provision
      outside Part 111 of the Constitution. No serious objection
      is taken to repeal, addition or alteration of provisions of G
      the Constitution other than those in Part 111 under the power
      of amendment conferred by Article 368. The same
      approach, in my opinion, should hold good when we deal
'" Paragraph 666                                                       H
844          SUPREME COURT REPORTS                          [2015) 13 S.C.R.


A           with amendment relating to fundamental rights contained
            in Part Ill of the Constitution. It would be impermissible to
            differentiate between scope and width of power of
            amendment when it deals with fundamental right, and the
            scope and width of that power when it deals with
 B          provisions not concerned with fundamental rights." 370
            382. The conclusion arrived at by Justice Khanna is stated
      by the learned judge in the following words:
            "The power of amendment under Article 368 does not
c           include the power to abrogate the Constitution nor does
            it include the power to alter the basic structure or
            framework of the Constitution. Subject to the retention of
            the basic structure or framework of the Constitution, the
            power of amendment is plenary and includes within itself
D           the power to amen·d the various articles of the
            Constitution, including those relating to fundamental rights
            as well as those which may be said to relate to essential
            features. No part of a fundamental right can claim
            immunity from amendatory process by being described
 E          as the essence, or core of that right. The power of
            amendment would also include within itself the power to
            add, alter or repeal the various articles." 371
            383. It may be mentioned en passantthat the aforesaid
 F view expressed by Justice Khanna generated much
   controversy. That was adverted to by the learned judge in Indira
   Nehru Gandhi and it was clarified in paragraphs 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
 G 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. 372
      370
          Paragraph 1435
      371
          Paragraph 1537
 H    372
          Paragraphs 251 and 252. Justice Bhagwati also adverts to this in Minerva
      Mills v. Union of India, (1980) 3 SCC 625.
       SUPREME COURT ADVOCATES-ON-RECORD                                            845
        ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      384. Simplistically put, the sum and substance of the                         A
decision in Kesavananda Bharati is that it recognized 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                          B
summary of the conclusions was prepared. This summary was
signed by nine of the thirteen judges. Among the nine
signatories were 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                            C
Parliament to alter the basic structure or framework of the
Constitution.'
       Judicial review of an amendment to the Constitution
         385. In Indira Nehru Gandhi it was held that an D
amendment to the Constitution can be challenged only on the
ground of violation of the basic structure, while a statute cannot
be so challenged. A statute can be challenged only if it is
passed by a Legislature beyond its legislative competence or
if it offends Article 13 of the Constitution. 373                  E

373
    13. Laws inconsistent with or in derogation of the fundamental rights -
(f) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be void.   F
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law;
{b) "laws in force" includes laws passed or made by a Legislature or other          G
competent authority in the territory of India before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law
or any part thereof may not be then in operation either at all or in particular
areas.
(4) Nothing in this article shall apply to any amendment of this Constitution
made under Article 368.
                                                                                    H
846            SUPREME COURT REPORTS                      [2015] 13S.C.R.


A              "The constitutional amendments may, on the ratio of the
               Fundamental Rights case,374 be tested on the anvil of
               basic structure. But apart from the principle that a case
               is only an authority for what it decides, it does not logically
               follow from the majority judgment in the Fundamental
B              Rights case that ordinary legislation must also answer
               the same test as a constitutional amendment. Ordinary
               laws have to answer two tests for their validity: ( 1) The
              ·law must be within the legislative competence of the
               legislature as defined and specified in Chapter I, Part XI
 c             of the Constitution, and (2) it must not offend against the
               provisions of Article 13(1) and (2) of the Constitution.
               "Basic structure", by the majority judgment, is not a part
               of the fundamental rights nor indeed a provision of the
               Constitution. The theory of basic structure is woven out
 D
               of the conspectus of theConstitution and the amending
               power is subjected to it because it is a constituent power.
               "The power to amend the fundamental instrtJment cannot
               carry with it the power to destroy its essential features-
               this, in brief, is the arch of the theory of basic structure. It
 E
               is wholly out of place in matters relating to the validity of
               ordinary laws made under the Constitution."
            386. A similar view was taken in State of Karnataka v.
      Union of /ndia 375 wherein the above passage from Indira
 F    Nehru Gandhi was quoted with approval. It was said by
      Justice Untwalia in a concurring judgment for himself, Justice
      Shinghal and Justice Jaswant Singh:
               "Mr. Sinha also contended that an ordinary law cannot
 G             go against the basic scheme or the fundamental
               backbone of the Centre-State relationship as enshrined
               in the Constitution. He put his argument in this respect in
               a very ingenious way because he felt difficulty in placing
      374
            Kesavananda Bharati
 H    375
            (1977) 4 sec 608 paragraph 238 (Seven Judges Bench)
     SUPREME COURT ADVOCATES-ON-RECORD                                 847
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     it in a direct manner by saying that an ordinary law cannot A
     violate the basic structure of the Constitution. In the case
     of Smt Indira Nehru Gandhi v. Shri Raj Narain such an
     argument was expressly rejected by this Court. We may
     rest content by referring to a passage from the judgment
     of our learned brother Chandrachud, J. which runs B
     thus ..........."
    387. In Ku/dip Nayarv. Union oflndia 376 a Constitution
Bench reiterated the above view in the following words:
     "The basic structure theory imposes limitation on the             C
     power of Parliament to amend the Constitution. An
     amendment to the Constitution under Article 368 could
     be challenged on the ground of violation of the basic
     structure of the Constitution. An ordinary legislation
     cannot be so challenged. The challenge to a law made,             D
     within its legislative competence, by Parliament on the
     ground of violation of the basic structure of the
     Constitution is thus not available to the petitioners."
      388. Finally, in Ashoka Kumar Thakur v. Union of E
     377
lndia it was held that a law can be challenged if it violates a
provision of the Constitution but an amendment to the
Constitution can be challenged only if it violates a basic feature
of the Constitution which is a part of its basic structure. It was
h~d:                                                               F
       "For determining whether a particular feature of the
       Constitution is part of the basic structure or not, it has to
       be examined in each individual case keeping in mind
       the scheme of the Constitution, its objects and purpose         G
       and the integrity of the Constitution as a fundamental
       instrument for the country's governance. It may be noticed
       that it is not open to challenge the ordinary legislations
376
    (1996) 7 sec 1 paragraph 107 (Five Judges Bench)
377 (2008) 6 sec 1 paragraph 116 (Five Judges Bench)
                                                                       H
848            SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A              on the basis of the basic structure principle. State
               legislation can be challenged on the question whether it
               is violative of the provisions of the Constitution. But as
               regards constitutional amendments, if any challenge is
               made on the basis of basic structure, it has to be
 B             examined based on the basic features of the
               Constitution."
            389. A different opinion was expressed in Madras Bar
      Association v. Union of lndia 378 wherein it was held that the
c     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. This was
      assumed to be a logical extension of a principle. It was held:
               "This Court has repeatedly held that an amendment to
 D             the provisions of the Constitution would not be
               sustainable if it violated the "basic structure" of the
               Constitution, even though the amendment had been
               carried out by following the procedure contemplated
               under "Part XI" of the Constitution. This leads to the
 E             determination that the "basic structure" is inviolable. In
               our view, the same would apply to all other legislations
               (other than amendments to the Constitution) as well, even
               though the legislation had been enacted by following the
               prescribed procedure, and was within the domain of the
 F
               enacting legislature, any infringement to the "basic
               structure" would be unacceptable."
         390. For the purposes of the present discussion, I would
   prefer to follow the view expressed by a Bench of seven learned
 G judges in State of Karnataka v. Union of India 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
      378
            (2014) 10 SCC 1 paragraph 109 (Five Judges Bench)
 H
     SUPREME COURT ADVOCATES-ON-RECORD                            849
      ASSOCIATION v. U.O:I. [MADAN B. LOKUR, J.]

the basic structure of the Constitution. [The only exception to   A
this perhaps could be a statute placed in the Ninth Schedule
of the Constitution]. The principles for challenging the
constitutionality of a statute are quite different.
      Challenge to the 99 1h Constitution Amendment Act
                                                                  8
- the preliminaries
     (a) Limitations to the challenge
       391. The first submission made by the learned Attorney-
General for upholding the constitutionality of the 99th C
Constitution Amendment Act was on the basis of
Kesavana.nda Bharati. 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 D
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 E
or a High Court does not emasculate, abrogate or shake the
foundations or the pillars of the independence of the judiciary.
Consequently the 99 1h Constitution Amendment Act does not
fall foul of the basic structure of the Constitution.
       392. This argument fails to appreciate that a majority of F
the learned judges constituting the Bench that decided
Kesavananda Bharati 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 G
the learned judges have used very strong words in the course
of their judgment - emasculate, destroy, abrogate, and
substantially change tne 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 H
850          SUPREME COURT REPORTS                           [2015] 13 S.C.R.


A     structure or framework of the Constitution. ' 379
             393. This was reiterated and explained by Justice Khanna
      in Indira Nehru Gandhi. The words 'destroy' and 'abrogate'
      etc. were used with reference to the words 'amendment' and
 B    '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
c     the basic structure of the Constitution. The learned judge clearly
      said that 'the power of amendment under Article 368 [of the
      Constitution] does not enable the Parliament to alter the basic
      structure of [or] framework of the Constitution ... .' In fact, this
      was the precise submission of learned counsel for the election
 o    petitioner, namely, that the constitutional amendment 'affects
      the basic structure or framework of the Constitution and is,
      therefore, beyond the amending power under Article 368 [of
      the Constitution].' 380 The learned judge explained this crucial
      distinction in the following words:
 E           "The proposition that the power of amendment under
             Article 368 does not enable Parliament to alter the basic
             structure of framework of the Constitution was laid down
             by this Court by a majority of 7 to 6 in the case of His
             Holiness Kesavananda Bharati v. State of Kera/a. Apart
 F
             from other reasons which were given in some of the
             judgments of the learned Judges who constituted the
             majority, the majority dealt with the connotation of the word
             "amendment". It was held that the words "amendment of
 G           the Constitution" in Article 368 could not have the effect
             of destroying or abrogating the basic structure of the
             Constitution. Some of us who "'(ere parties to that case
       379
           Justice Khanna refers to this conclusion in paragraph 198 in the decision
      rendered in Indira Nehru Gandhi
 H     380
           Paragraph 173
        SUPREME COURT ADVOCATES-ON-RECORD                       851
                      .
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

        took a different view and came to the conclusion that the A
        words "amendment of the Constitution" in Article 368 did
        not admit of any limitation. Those of us who were in the
        minority in Kesavananda case may still hold the same
        view as was given expression to in that case. For the
        purpose of the present case, we shall have to proceed B
        in accordance with the law as laid down by the majority
        in that case." 381
      394. While dealing with the constitutional validity of
Clause (4) of Article 329-A of the Constitution as introduced    c
by the 391h Constitution Amendment Act, Justice Khanna
expressed the view that 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.                                                           D
         "The question to be decided is that if the impugned
         amendment of the Constitution violates a principle which
         is part of the basic structure of the Constitution, can it
         enjoy immunity from an attack on its validity because of
         the fact that for the future, the basic structure of the E
         Constitution remains unaffected. The answer to the
         above question, in my opinion, should be in the negative.
         What has to be seeh in such a matter is whether the
         amendrrient contravenes or runs counter to an imperative F
         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. If an amendment striking at the basic G
         structure of the Constitution is not permissible, it would
         not acquire validity by being relat~d only to one case. To
         accede to the argument advanced in support of the
381
      Paragraphs 175 and 176
                                                                 H
852            SUPREME COURT REPORTS                    [2015] 13 S.C.R.



A             validity of the amendment would be tantamount to holding
              that even though it is not permissible to change the basic
              structure of the Constitution, whenever the authority
              concerned deems it proper to make such an amendment,
              it can do so and circumvent the bar to the making of such
 B            an amendment by confining it to one case. What is
              prohibited cannot become permissible because of i~s
              being confined to one matter." 382
              In conclusion it was said by Justice Khanna as follows:
c             "As a result of the above, I strike down clause (4) of Article
              329-A on the ground that it violates the principle of free
              and fair elections which is an essential postulate of
              democracy and which in its turn is a part of the basic
              structure of the Constitution inasmuch as (1) it abolishes
 D            the forum without providing for another forum for going
              into the dispute relating to the validity of the election of
              the appellant and further prescribes that the said dispute
              shall not be governed by any election law and that the
              validity of the said election shall be absolute and not
 E            consequently be liable to be assailed, and (2) it
              extinguishes both the right and the remedy to challenge
              the validity of the aforesaid election." 383
           395. Similarly, Justice K.K. Mathew who was in the
 F    minority in Kesavananda Bharati expressed the view (in
      Indira Nehru Gandhi) that the majority decision was that by
      an amendment, the basic structure of the Constitution cannot
      be damaged or destroyed, and the learned judge proceeded
      on that basis and held that Clause (4) of Article 329-A of the
 G    Constitution as introduced by the 39t11 Constitution Amendment
      Act damaged or destroyed the basic structure of the
      Constitution. 384
      382 Paragraph 210
      383   Paragraph 213
 H    384
            Paragraph 264 and 265
      SUPREME COURT ADVOCATES-ON-RECORD                              853
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      396. Justice Y.V. Chandrachud who too Was in the               A
minority in Kesavananda Bharati took the view that according
to the majority opinion in that decision the principle that
emerged was that Article 368 of the Constitution 'does not
confer power on Parliament to alter the basic structure or
framework of the Constitution.' 385 The learned judge further said   B
that the ratio decidendi in Kesavananda Bharati was that
'the power of amendment [in Article 368 of the Constitution]
cannot be exercised to damage or destroy the essential
elements or basic structure of the Constitution, whatever these
expressions may comprehend.' 386                                     C
      397. The issue again came up for consideration in
Minerva Mills v. Union of India. 387 The question in that case
was whether Section 4 and Section 55 of the 42°d Constitution
Amendment Act transgress the limitation of the amending D
power of Article 368 of the Constitution. Speaking for himself
and the other learned judges in the majority (Justice A.C Gupta,
Justice N.L. Untwalia and Justice P.S. Kailasam) it was held
by Chief Justice Chandrachud that:
      "In Kesavananda Bharati, this Court held by a majority E
      that though by Article 368 Parliament is given the power
      to amend the Constitution, that power cannot be
      exercised so as to damage the basic features of the
      Constitution or so as to destroy its basic structure. The F
      question for consideration in this group of petitions under
      Article 32 is whether Sections 4 and 55 of the
      Constitution (42ndAmendment)Act, 1976 transgress that
      limitation on the amending power." 388
      A little later in the judgment, it was held as follows:        G
      'The summary of the various judgments in Kesavananda
385
    Paragraph 651
386
    Paragraph 663
387
    (1980) 3 SCC 625 (Five Judges Bench)
'" Paragraph 1                                                       H
854          SUPREME COURT REPORTS                            [2015] 13 S.C.R.


A           Bharati was signed by nine out of the thirteen Judges.
            Para ·2 of the summary reads to say that according to
            the majority, "Article 368 does not enable Parliament to
            alter the basic structure or framework of the Constitution".
            Whether or not the summary is a legitimate part of the
B           judgment, or is per incuriam for the scholarly reasons
            cited by authors, it is undeniable that it correctly reflects
            the majority view.
             The question which we have to determine on the basis
 c           of the majority view in Kesavananda Bharati is whether
             the amendments introduced by Sections 4 and 55 of the
             Constitution (42nd Amendment) Act, 1976 damage the
             basic structure of the Constitution by destroying any of
             its basic features or essential elements." 389
 D           It appears from the above exposition of the ratio
      decidendi in Kesavananda Bharatithat 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
 E    the basic features'. 390 The bottom line is what is contained in
      the 'summary' of Kesavananda Bharati, namely: Article 368
      does not enable Parliament to alter the basic structure or
      framework of the Constitution. There are two reasons for this.
 F    Firstly, it is a contemporaneous exposition of the views of the
      majority in Kesavananda Bharati 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.
 G           398. It may be mentioned that some misgivings were
       '" Paragraphs 12 and 13
       390
           I am unable to agree with Justice Chelameswar 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,
 H    is not relevant.
      SUPREME COURT ADVOCATES-ON-RECORD                              855
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

expressed 'about' Minerva Mills in Sanjeev Coke                      A
Manufacturing Co. v. Bharat Coking Coal Ltd. 391 The
misgivings were not spelt out by the Bench except that it is
stated that the case 'has left us perplexed' seemingly for the
reason that no question had arisen regarding the constitutional
validity of Section 4 and Section 55 of the 42"d Constitution        B
Amendment Act. 392 This is rather odd since the majority
desision in Minerva Mills begins by stating: The question for
consideration in this group of petitions under Article 32 is
whether Sections 4 and 55 of the Constitution (42nd
Amendment) Act, 1976 transgress that limitation on the               C
amending power.' Justice Bhagwati who partly dissented from
the -¥iews of the majority also stated that the constitutional
validity of Sections 4 and 55 of the Constitution (42nd
Amendment) Act, 1976 were under challenge. 393 However, it           D
is not necessary tci enter into this thicket, but it must be n?ted
that Sanjeev Coke did not disagree with Minerva Mills in its
understanding of Kesavananda Bharati.
      399. More recently, in M. Nagaraj v. Union of lndia 394 it
was held (rephrasing Justice Khanna in Indira Nehru Gandhi)          E
that the basic structure doctrine is really a check on the
amending power of Parliament. The basic structure of the
Constitution consists of constitutional principles that are so
fundamental that they limit the amending power of Parliament.
It was concluded that the basic structure theory is based on         F
the concept of constitutional identity (rephrasing Justice
Bhagwati in Minerva Mills). It was then said:
      "The basic structure jurisprudence is a preoccupation with
      constitutional identity. In Kesavananda Bharativ. State G
      of Kera/a it has been observed that "one cannot legally
391
    (1983) 1 SCC 147 (Five Judges Bench)
392
    Paragraph 11
393 Paragraph 77-A
394
    (2006) 8 SCC 212 (Five Judges Bench)
                                                                     H
856            SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A             use the Constitution to destroy itself'. It is further observed
              "the personality of the Constitution must remain
              unchanged". Therefore, this Court in Kesavananda
              Bharatiwhile propounding the theory of basic structure,
              has relied upon the doctrine of constitutional identity. The
 B            word "amendment" postulates that the old Constitution
              survives without loss of its identity despite the change
              and it continues even though it has been subjected to
              alteration. This is the constant theme of the opinions in
              the majority decision in Kesavananda Bharati. To destroy
 c            its identity is to abrogate the basic structure of the
              Constitution. This is the principle of constitutional
              sovereignty ...... The main object behind the theory of the
              constitutional identity is continuity and within that continuity
              of identity, changes are admissible depending upon the
 D            situation and circumstances of the day."
            400. The 'controversy' is now set at rest with the decision
      rendered in /.R. Coelho where alteration of the basic structure
      has been accepted as the test to determine the constitutional
 E    validity of an amendment to the Constitution. It was said:..
               'The decision in Kesavananda Bharati case was
               rendered on 24-4-1973 by a thirteen-Judge Bench and
               by majority of seven to six Golak Nath case 395 was
               overruled. The majority opinion held thatArticle 368 did
 F
               not enable Parliament to alter the basic structure or
               framework of the Constitution." 396
               And again,
               "In Kesavananda Bharati case- the majority held that the
 G
               power of amendment of the Constitution under Article
               368 did not enable Parliament to alter the basic structure
               of the Constitution." 397
      395
            [1967] 2 SCR 762 (Eleven Judges Bench)
      396 Paragraph 21

 H    3
       "    Paragraph 119
        SUPREME COURT ADVOCATES-ON-RECORD                               857
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

    The attack, therefore, is not on the basic structure of the         A
Constitution but on the amending power of Parliament.
       401. The learned Attorney-General placed reliance on
the following passage from the judgment of Justice Krishna
Iyer in Bhim Singhji v. Union of lndia 398 to contend t~at for a        B
constitutional amendment to violate the basic structure, it must
be shocking, unconscionable or an unscrupulous travesty of
the quintessence of equal justice. That case .dealt with the
constitutional validity of the Urban Land (Ceiling and
Regulation)Act, 1976 which was placed in the Ninth Schedule             c
to the Constitution by the 40 1h Constitution Amendment Act,
1976 and therefore had the protection of Article 31-B and Article
31-C of the Constitution. In that context, it was hEtld that the
question of the basic structure of the Constitution does not
arise if the constitutional validity of legislation (as distinguished   D
from a constitutional amendment) is under challenge. It was
then said:
         'The question of basic structure being breached cannot
         arise when we examine the vi res of an ordinary legislation
         as distinguished from a constitutional amendment. E
         Kesavananda Bharati cannot be the last refuge of the
         proprietariat when benign legislation takes away their
         "excess" for societal weal. Nor, i_ndeed, can every breach
         of equality spell disaster as a lethal violation of the basic F
         st~ucture. Peripheral inequality is inevitable when large-
         scale equalisatton processes are put into action. If all
         the Judges of the Supreme Court in solemn session sit
         and deliberate for half a year to produce a legislation for
         reducing glaring economic inequality their genius will let G
         them down if the essay is to avoid even peripheral
         inequalities. Every large cause claims some martyr, as
         sociologists will know. Therefore, what is a betrayal of
399
      (1981) 1SCC166 (Five Judges Bench)
                                                                        H
858            SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A             the basic feature is not a mere violation of Article 14 but
              a shocking, unconscionable or unscrupulous travesty of
              the quintessence of equal justice. If a legislation does
              go that far it shakes the democratic foundation and must
              suffer the death penalty." 399
 B
            402. This decision dealt with a statute placed in the Ninth
      Schedule of the Constitution and is, therefore, a class apart
      as far as the present discussion is concerned.
         403. From this analysis, it must be concluded that if a
C  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
   and adopted in M. Nagaraj and now rechristened in l.R.
 D Coelho as the direct impact and effect test 'which means the
   form of an amendment is not relevant, its consequence would
   be [the] determinative factor.' 400
         404. In the light of the above discussion the question,
 E therefore, is this: How does the 991h Constitution Amendment
   Act alter the basic structure of the Constitution, if at all? There
   is no doubt or dispute that the independence of the judiciary is
   a basic structure of the Constitution. I have already held that
   the appointment of a judge to the Supreme Court and a High
 F Court is an integral part of the independence of the judiciary.
   Therefore, has the introduction of th~ NaHonal Jl:ldicial
   Appointments Commission by the 99 1h Constitution
   Amendment Act so altered the appointment process as to
   impact on the independence of the judiciary thereby making
 G the 991h Constitution Amendment Act unconstitutional? The
   learned Attorney-General answered this in the negative.
               (b) Presumption of constitutionality
      399
            Paragraph 20
 H    •00 Paragraph 70 and 151
      SUPREME COURT ADVOCATES-ON-RECORD                                859
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      405. The learned Attorney-General submitted that there A
is a presumption in law that the 99th Constitution Amendment
Act is constitutionally valid and that the petitioners have not
been able to rebut that presumption.
      406 .. In Charanjit Lal Chowdhuri v. Union of lndia 401
                                                                       8
Justice Fazal Ali expressed the view that 'the presumption is
always in favour of the constitutionality of an enactment.'
       407. Similarly, in Ram Krishna Dalmia v. Justice S.R.
Tendolkar4° 2 it was held, on a consideration of the decisions
of this Court by Chief Justice S.R. Das that 'there is always a        C
presumption in favour of the constitutionality of an enactment
and the burden is upon him who attacks it to show that there
has been a clear transgressions of the constitutional principles.'
      408. In Kesavananda Bharati it was held by Justice D
Hegde and Justice Mukherjea that:
      "But the courts generally proceed on the presumption of
      constitutionality of all legislations. The presumption of the
      constitutional validity of a statute will also apply to
      constitutional amendments."403                                   E
      409. Finally, in R.K. Garg v. Union of /ndia 404 it was
held by Justice Bhagwati, speaking for the Court as follows:
      "Now while considering the constitutional validity of a
      statute said to be violative of Article 14, it is necessary      F
      to bear in mind certain well established principles which
      have been evolved by the courts as rules of guidance in
      discharge of its constitutional function of judicial review.
      The first rule is that there is always a presumption in favour
      of the constitutionality of a statute and the burden is upon     G
      him who attacks it to show that there has been a clear
401
    [1950) SCR 869 (Five Judges Bench)
402
    [1959) SCR 279 (Five Judges Bench)
403
     Paragraph 661
404
    (1981) 4 SCC 675 (Five Judges Bench)
                                                                       H
860         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A           transgression of the constitutional principles. This rule is
            based on the assumption, judicially recognised and
            accepted, that the legislature understands and correctly
            appreciates the needs of its own people, its laws are
            directed to problems made manifest by experience and
 B          its discrimination are based on adequate grounds. The
            presumption of constitutionality is indeed so strong that
            in order to sustain it, the Court may take into
            consideration matters of common knowledge, matters
            of common report, the history of the times and may
c           assume every state of facts which can be conceived
            existing at the time of legislation."405
         410. It is not possible to disagree with the learned
   Attorney-General in this regard. A statute or a constitutional
 o 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
 E that the 99 1h 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
 F diminished or perhaps eliminated and substituted by the NJAC.
   The question is not whether the alternative model is good or
   not good but whether it is constitutionally valid or not.
            (c) Basis of judgment is removed
 G          411. The third submission was that Article 124(2) of the
      Constitution has been amended by the 99 1h Constitution
      Amendment Act and, therefore, the basis of the judgment
      delivered by this Court in the Second Judges case has been
      405 Paragraph   7
 H
        SUPREME COURT ADVOCATES-ON-RECORD                          861
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

completely taken away or that the Constitution has been A
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 991h Constitution Amendment
Act will have to be adjudicated independently and regardless
of the law laid down in the Second Judges case or the Third B
Judges case.
        412. In Shri Prithvi Cotton Mills Ltd. v. Broach
Borough Municipality4° 6 it was said by Chief Justice
Hidayatullah that granted legislative competence, it is not c
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 D
altered that the decision could not have been given in the
altered circumstances.· uwas said:
         "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 E
         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 b~sed are so
         fundamentally altered that the decision could not have F
         been given in the altered circumstances. Ordinarily, a
         court holds a tax to be invalidly imposed because the
         power to tax is wanting or the statute or the rules or both
         are invalid or do not sufficiently create the jurisdiction.
         Validation of a tax so declared illegal may be done only G .
         if the grounds of illegality or invalidity are capable of being
         removed and are in fact removed and the tax thus made
         legal. Sometimes this is done by providing for jurisdiction
406
      (1969) 2 SCC 283 (Five Judges Bench)
                                                                    H
862            SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A              where jurisdiction had not been properly invested before.
               Sometimes this is done by re-enacting retrospectively a
               valid and legal taxing provision and then by fiction making
               the tax already collected to stand under the re-enacted
               law. Sometimes the Legislature gives its own meaning
 B             and interpretation of the law under which tax was collected
               and by legislative fiat makes the new meaning binding
               upon courts. The Legislature may follow any one method
               or all of them and while it does so it may neutralise the
               effect of the earlier decision of the court which becomes
 c             ineffective after the change of the law. Whichever method
               is adopted it must be within the competence of the
               legislature and legal and adequate to attain the object of
               validation." 407

 D         413. Similarly, in Indira Nehru Gandhi it was held by
      Chief Justice Ray as follows:
               "The effect of validation is to change the law so as to
               alter the basis of any judgment, which might have been
               given on the basis of old law and thus make the judgment
 E             ineffective. A formal declaration that the judgment
               rendered under the old Act is void, is not necessary. If
               the matter is pending in appeal, the appellate court has
               to give effect to the altered law and reverse the judgment.
               The rendering of a judgment ineffective by changing its
 F
               basis by legislative enactment is not an encroachment
               on judicial power but a legislation within the competence
               of the Legislature rendering the basis of the judgment
               non est."
 G       414. In K. Sankaran Nair v. Devaki Amma Malathy
      Amma408 it was observe9 as follows:
               "It is now well settled that the legislature cannot overrule
      4
          °' Paragraph 4
      408
            (1996) 11 sec 428
 H
         SUPREME COURT ADVOCATES~ON-RECORD                               863
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

         any judicial decision without removing the substratum or A
         the foundation of that judgment by a retrospective
         amendment of the legal provision concerned." 409
      It was further stated, relying upon Shri Prithvi Cotton
Mills Ltd. as follows:
                                                                         B
         "It is now well settled by a catena of decisions of this
         Court that unless the legislature by enacting a competent
         legislative provision retrospectively removes the
         substratum or foundation of any judgment of a competent
         court the said judgment would remain binding and C
         operative and in the absence of such a legislative
         exercise by a competent legislature the attempt to upset
         the binding effect of such judgments rendered against
         the parties would remain an incompetent and forbidden
         exercise which could be dubbed as an abortive attempt D
         to legislatively overrule binding decisions of courts." 410
         415. Similarly, in Bhubaneshwar Singh v. Union of
         411
lndia reliance was placed on Shri Prithvi Cotton Mills Ltd.
and a host of other decisions rendered by this Court and a               E
similar conclusion arrived at in the following words:
         "From time to time controversy has arisen as to whether
         the effect of judicial pronouncements of the High Court
         or the Supreme Court can be wiped out by amending
         the legislation with retrospective effect. Many such            F
         Amending Acts are called Validating Acts, validating the
         action taken under the particular enactments by removing
         the defect in the statute retrospectively because of which
         the statute or the part of it had been declared ultra vi res.   G
         Such exercise has been held by this Court as not to
         amount to encroachment on the judicial power of the
  09
•    Paragraph 5
410 Paragraph 5
411
      (1994) 6 sec 77
                                                                         H
864         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           courts. The exercise of rendering ineffective the
            judgments or orders of competent courts by changing
            the very basis by legislation is a well-known device of
            validating legislation. This Court has repeatedly pointed
            out that such validating legislation which removes the
 B          cause of the invalidity cannot be considered to be an
            encroachment on judicial power. At the same time, any
            action in exercise of the power under any enactment
            which has been declared to be invalid by a court cannot
            be made valid by a Validating Act by merely saying so
c            unless the defect which has been pointed out by the court
             is removed with retrospective effect. The validating
            legislation must remove the cause of invalidity. Till such
            defect or the lack of authority pointed out by the court
             under a statute is removed by the subsequent enactment
 D
            with retrospective effect, the binding nature of the
            judgment of the court cannot be ignored."412
            416. In Re Cauvery Water Disputes Tribuna/4 13 it was
   pithily stated, on a review of several decisions of this Court
 E that:
             'The principle which emerges from these authorities is
            that 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
 F
            at large. It cannot, however, set aside an individual
            decision inter parles 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
 G          functioning as an appellate court or tribunal."414
            417. More recently, in State of Tamil Nadu this Court
      approved the following conclusion arrived at in Indian
      412
          Paragraph 11
      "' (1993) Supp (1) sec 96
 H    415
          Paragraph 76
           SUPREME COURT ADVOCATES-ON-RECORD                             865
            ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

Aluminium Co. v. State of Kera/a 415 :                                    A
           "In exercising legislative power, the legislature by mere
           declaration, without anything more, cannot directly
           overrule, revise or override a judicial decision. It can
           render judicial decision ineffective by enacting valid law
                                                                           8
           on the topic within its legislative field fundamentally
           altering or changing its character retrospectively. The
           changed or altered conditions are such that the previous
           decision would not have been rendered by the court, if
           those conditions had existed at the time of declaring the      c
           law as invalid. It is also empowered to give effect to
           retrospective legislation with a deeming date or with effect
           from a particular date. The legislature can change the
           character of the tax or duty from impermissible to
           permissible tax but the tax or levy should answer such D
           character and the legislature is competent to recover the
           invalid tax validating such .a tax on removing the invalid
           base for recovery from the subject or render the recovery
           from the State ineffectual. It is competent for the legislature
           to enact the law with retrospective effect and authorise E
           its agencies to levy and collect the tax on that basis, make
           the imposition of levy collected and recovery of the tax
           made valid, notwithstanding the declaration by the court
           or the direction given for recovery thereof." 416
                                                                          F
     418. Without commenting on the view canvassed by the
learned Attorn~y-General that the 99th Constitution Amendment
Act has actually removed the basis of the judgment delivered
by this Court in the Second Judges case the constitutional
validity of the said amendment will nevertheless need to be               G
tested on that assumption, keeping in mind the above
decisions.                                           ·

•
    15
         (1996) 1 sec 637
416
         Paragraph 111
                                                                          H
866          SUPREME COURT REPORTS                  [2015] 13S.C.R.


A           (d) Wisdom of an amendment to the Constitution
            419. The next submission of the learned Attorney-General
      was that the wisdom of Parliament in enacting the 99 1h
      Constitution Amendment Act cannot be disputed. Hence, this
      Court ought not to substitute its own views on the necessity or
8
      otherwise of the 991h Constitution Amendment Act over the law
      laid down in the Second Judges case.
          420. In Lochner v. New York4 17 Justice Oliver Wendell
      Holmes famously stated (in dissent) almost a century ago:
c           "This case is decided upon an economic theory which a
            large part of the country does not entertain. If it were a
            question whether I agreed with that theory, I should desire
            to study it further and long before. making up my mind.
            But I do not conceive that to be my duty, because I strongly
D
            believe that my agreement or disagreement has nothing
            to do with the right of a majority to embody their opinions
            in law."
            In other words, one may or may not agree with the content
 E    or wisdom of a legislation, but that has nothing to do with the
      correctness or otherwise of the majority decision taken by a
      Legislature. This view has been followed in our country as well.
           421. The Courts in our country do not question the wisdom
 F    or expediency of the Legislature enacting a statute, let alone a
      constitutional amendment.
        422. In one of the earliest cases relating to the wisdom
   of Parliament in enacting a law, it was contended in A.K.
   Gopalan v. The State of Madras 418 that the Preventive
 G Detention Act, 1950 was unconstitutional. Justice Das
   expressed the view that:
            "The point to be noted, however, is that in so far as there
      417
          198 us 45
 H    418
          [1950] 1 SCR 88 (Five Judges Bench)
         SUPREME COURT ADVOCATES-ON-RECORD                           867
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]
                                                    ..
         is any limitation on the legislative power, the Court must, A
         on a complaint being made to it, scrutinise and ascertain
         whether such limitation has been transgressed and if
         there has been any transgression the Court will
         courageously declare the law unconstitutional, for the
         Court is bound by its oath to uphold the Constitution. But B
         outside the limitations imposed on the legislative powers
         our Parliament and the State Legislatures are supreme
         in their respective legislative fields and the Court has no
         authority to question the wisdom or policy of the law duly
         made by the appropriate legislature."                       C
      423. The Payment of Bonus Act, 1965 and the scheme
for payment of minimum bonus were under challenge in Ja/an
Trading Company (P) Ltd v. Mill Mazdoor Sabha Union. 419
Speaking for the Court, Justice J.C. Shah observed that the           D
wisdom of the scheme selected by the Legislatu!e may be
open to debate but it would not be invalid merely because
some fault can be found with the scheme. It was said:
         "Whether the scheme for payment of minimum bonus is
         the best in the circumstances, or a more equitable method E
         could have been devised so as to avoid in certain cases
         undue hardship is irrelevant to the enquiry in hand. If the
         classification is not patently arbitrary, the Court will not
         rule it discriminatory merely because it involves hardship F
         or inequality of burden. With a view to secure a particular
         object a scheme may be selected by the Legislature,
         wisdom whereof may be open to debate; it may even be
         demonstrated that the scheme is not the best in the
         circumstances and the choice of the legislature may be G
         shown to be erroneous, but unless the enactment fails to
         satisfy the dual test of intelligible classification and
         rationality of the relation with the object of the law, it will
419
      [1967] 1 SCR 15 (Five Judges Bench)
                                                                      H
868         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A           not be subject to judicial interference under Article 14.
            Invalidity of legislation is not established by merely finding
            faults with the scheme adopted by the Legislature to
            achieve the purpose it has in view.
            424. In Kesavananda Bharati it was observed by Chief
 8
      Justice Sikri that: 'It is of course for Parliament to decide
      whether an amendment [to the Constitution] is n.ecessary. The
      Courts will not be concerned with the wisdom of the
      amendment.' 420 The learned Chief Justice further observed:
c     'If Parliament has power to pass the impugned amendment
      acts, there is no doubt that I have no right to question the
      wisdom of the policy of Parliament.' 421
            425. Similarly, Justice Shelat and Justice Grover held:
            "It is not for the courts to enter into the wisdom or policy
 D
            of a particular provision in a Constitution or a statute.
            Thatis for the Constitution-makers or for the Parliament
            or the legislature."422
            426. Justice A.N. Ray expressed his view in the following
 E    words: 'Courts are not concerned with the wisdom or policy of
      legislation. The Courts are equally not concerned with the
      wisdom and policy of amendments to the Constitution.' 423
         427. Justice Jaganmohan Reddy expressed the same
 F ·sentiments when the learned judge said:
            "The citizen whose rights are affected, no doubt, invokes
            the aid of the judicial power to vindicate them, but in
            discharging its duty, the Courts have nothing to do with
            the wisdom or the policy of the Legislature."424
 G
            428. On the question of the wisdom of a constitutional
      420
          Paragraph 288
      421
          Paragraph 317
      422
          Paragraph 532
      423
          Paragraph 909
 H    424
          Paragraph 1106
      SUPREME COURT ADVOCATES-ON-RECORD                                   869
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

amendment which ostensibly improves an existing situation,                A
Justice Khanna expressed the view that this was not justiciable.
The Court cannot substitute its opinion for that of Parliament
in this regard. It was held:
      "Whether the amendment is in fact, an improvement or
                                                                  8
      not, in my opinion, is not a justiciable matter, and in
      judging the validity of an amendment the courts would
      not go into the question as to whether the amendment
      has in effect brought about an improvement. It is for the
      special majority in each House of Parliament to decide c
      as to whether it constitutes an improvement; the courts
      would not be substituting their own opinion for that of the
      Parliament in this respect. Whatever may be the personal
      view of a judge regarding the wisdom behind or the
      improving quality of an amendment, he would be only D
      concerned with the legality of the amendment and this,
      in its tum, would depend upon the question as to whether
      the formalities prescribed in Article 368 have been
      complied with."425
      429. With reference to the Lochner dissent, Justice                 E
Khanna noted that the view was subsequently accepted by
the US Supreme Court in Ferguson v. Skrupa 426 in the
following words:
      "In the face of our abandonment of the use of the 'vague            F
      contours' of the Due Process clause to nullify laws which
      a majority of the Court believed to be economically
      unwise, reliance on Adams v. Tanner4 27 is as mistaken
      as would be adherence to Adkins v. Children's HosP.itaf 26
      overruled by West Coast Hotel Co. v. Parrish429 • • • • • • • • •   G
425
    Paragraph 1436. This view was reiterated in paragraph 1534.
426
    372 us 726
427
    244 U.S. 590 (1917)
426
    261 U.S. 525 (1923)
429
    300 U.S. 379 (1937)
                                                                          H
870         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           We refuse to sit as a 'super legislature to weigh the
            wisdom of legislation', and we emphatically refuse to go
            back to the time when courts used the Due Process
            clause 'to strike down State laws, regulatory of business
            and industrial conditions, because they may be unwise,
B           improvident, or out of harmony with a particular school of
            thought'. "430                                   ·


          430. Justice Kbanna reiterated his views in Indira Nehru
      Gandhi wherein the learned judge held:
c           "Before dealing with the question as to whether the
            impugned amendment affects the basic structure of the
            Constitution, I may make it clear that this Court is not
            concerned with the wisdom behind or the propriety of
            the impugned constitutional amendment. These are
 D          matters essentially for those who are vested with the
            authority to make the constitutional amendment. All that
            this Court is concerned with is the constitutional validity
            of the impugned amendment."431

 E          431. Justice Chandrachud also expressed the same
      view, that is to say:
            "The subject-matter of constitutional amendments is a
            question of high policy and courts are concerned with
            the interpretation of laws, not with the wisdom of the policy
 F          underlying them."432
            432. A similar view was expressed in Karnataka Bank
      Ltd. v. State ofAndhra Pradesh 433 wherein it was specifically
      observed by this Court that:
 G                                                            a
            "In pronouncing on the constitutional validity of statute,
            the court is not concerned with the wisdom or unwisdom,
      430
          Paragraph 1442
      431
          Paragraph 176
      432
          Paragraph 661
 H    433
          (2008) 2 sec 254
        SUPREME COURT ADVOCATES-ON-RECORD                               871
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

         the justice or injustice of the law. If that which is passed   A
         into law is within the scope of the power conferred on a
         legislature and violates no restrictions on that power, the
         law must be upheld whatever a court may think of it."434
      433. In view of the judicial pronouncements, there is
                                                                  8
absolutely no difficulty in accepting this proposition canvassed
by the learned Attorney-General. The constitutional validity of
the 991h 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         c
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 D
substitute introduced by the ggth 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.              E
      434. The collegium system of appointment of judges
has undoubtedly been the subject of criticism. In fact, Mr. Fali
Nariman who led the submissions on behalf of the Advocates
on Record Association was quite critical of the collegium F
system of appointments. Some of the learn~d counsel for the
respondents went overboard in their criticism. But personal
opinions do not matter. Lord Templeman of the House of Lords
was of the view that the collegium system of appointments is
best suited to ensure the independence of the judiciary- but G
there are other eminent persons who are critical of the Second
Judges case.
         435. In the final analysis, therefore, the Courts must defer
434
      Paragraph 19
                                                                        H
872            SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     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 ggth
      Constitution Amendment Act cannot be tested on opinions,
      however strong they may be or however vividly expressed.
 B
               (e) Needs of the people
        436. It was also submitted by the learned Attorney-
  General that Parliament is aware of the needs of the people
  and the people want a change from the collegium system of
C appointment of judges. Parliament has responded to this
  demand and this Court should not reject this demand only
  because it believes that the collegium system is working well
  and that the ggth Constitution Amendment Act introduces a
  different system which reduces the role of the judiciary in
D making appointments by taking away its primacy in this regard.
            437. Apart from the presumption that an enactment is
      constitutionally valid, there is also a presumption that the
      Legislature understands and correctly appreciates the needs
 E    of the people. This was observed in Charanjit Lal Chowdhuri
      and reliance was placed on the following passage from
      Middleton v. Texas Power and Light Co. 435 :
               "It must be presumed that a legislature understands and
               correctly appreciates the need of its own people, that its
 F             laws are directed to problems made manifest by
               experience and that its discriminations are based upon
               adequate grounds."
          438. Similarly, in Ram Krishna Dalmia the presumption
 G that the Legislature understands and correctly appreciates the
   needs of the people was reiterated.
           439. Finally in Mohd. Hanif Quareshi v. State of
      Bihar4 36 this view was endorsed by Chief Justice S.R. Das
      435 249 US 152, 157 paragraph   11
 H    436
            [1959] SCR 629 (Five Judges Bench)
        SUPREME COURT ADVOCATES-ON-RECORD.                               873
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

speaking for this Court (though it may be mentioned that this            A
decision was subsequently overruled qn another issue) in the
following words:
        "The courts, it is accepted, must presume that the
        legislature understands and correctly appreciates the
                                                                         8
        needs of its own people, that its laws are directed to
        problems made manifest by experience and that its
        discriminations are based on adequate grounds."
      440. It was observed (on an issue relating to the
constitutionality of the death penalty) in Makwanyane437 as              C
follows:
         "Public opinion may have some relevance to the enquiry,
         but in itself, it is no substitute for the duty vested in the
         Courts to interpret t~e Constitution and to uphold its          D
         provisions without fear or favour. If public opinion were
         to be decisive there would be no need for constitutional
         adjudication. The protection of rights could then be left
         to Parliament, which has a mandate from the public, and
         is answerable to the public for the way its mandate is          E
         exercised, but this would be a return to parliamentary
         sovereignty, and a retreat from the new legal order
         established by the 1993 Constitution ...... .
         This Court cannot allow itself to be diverted from its duty
         to act as an independent arbiter of the Constitution by         F
         making choices on the basis that they will find favour with
         the public. Justice Powell's comment in his dissent in
       · Furman v Georgia bears repetition:
            ... the weight of the evidence indicates that the public G
            generally has not accepted either the morality or the
            social merit of the views so passionately advocated
            by the articulate spokesmen for abolition. But however
437
      Per Chaskalon, J paragraphs 88 and 89
                                                                         H
874        · SUPREME
                . . ... COURT REPORTS                        [2015] 13 S.C.R.


A              one may assess amorphous ebb and flow of public
               opinion generally on this volatile issue, this type of
               inquiry lies at the periphery- not the core - of the judicial
               process in constitutional cases. The assessment of
               popular opinion is essentially a legislative, and not a
 B             judicial, function. 438
            So too does the comment of Justice Jackson in West
            Virginia State Board of Education v Barnette:
                The very purpose of a Bill of Rights was to withdraw
C               certain subjects from the vicissitudes of political
                controversy, to place them beyond the reach of
                majorities and officials and to establish them as legal
                principles to be applied by the courts. One's right to
                life, liberty, and property, to free speech, a free press,
 D              freedom of worship and assembly and other
                fundamental rights may not be submitted to vote; they
                depend on the outcome of no elections. 439
            To put it differently: 'The legitimacy of the Judicial Branch
 E    ultimately depends on its reputation for impartiality and
      nonpartisanship.' 440 Public opinion, manifested through
      Parliament or otherwise, really pales into insignificance over
      the law that is interpreted impartially and in a non-partisan ·
      manner.
 F        441. 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
 G 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
      4
       " 408 U.S. 238, 290 (1972)
      439 319 U.S. 624, 638 (1943)

 H    440 Mistretta v. United States, 488 U.S. 361, 407 (1989)
        SUPREME COURT ADVOCATES-ON-RECORD                            875
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

struck down as unconstitutional.                                     A
        (f) Passage of time
      442. Finally, it was submitted by the learned Attorney-
General that the passage of time over the last over sixty years
has shown that the system of appointment of judges that was B
originally operational (in which the executive has the 'ultimate
power') and the collegium system (in which the judiciary had
shared responsibility) had both yielded some negative results.
It was submitted that millions of cases are pending, persons
who should have been appointed as judges were not C
recommended for appointment and persons who did not
deserve to be judges were not only appointed but were brought
to this Court. The 99 1h Constitution Amendment Act seeks to
correct the imbalances created over a period of time and since
constitutional experiments are permissible, the 99 1h D
Constitution Amendment Act should be allowed to pass muster.
      443. 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. In State of West          E
Bengal v. Anwar Ali Sarkar44 1 it was acknowledged by
Justice Mehr Chand Mahajan that good faith and knowledge
of existing conditions on the part of the Legislature has to be
presumed. Appreciating this, it was later observed in Ram
Krishna Dalmia that:                                                 F
         "In order to sustain the presumption of constitutionality
         the court may take into consideration matters of common
         knowledge, matters of common report, the history of the
         times and may assume every state of facts which can be
         conceived existing at the time of legislation."             G
      444. In Kesavananda Bharati Justice Hegde and
Justice Mukherjea observed that: 'The society grows, its
441
      [1952] SCR 284 (Seven Judges Bench)
                                                                     H
876         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     requirements change. The Constitution and the laws may have
      to be changed to suit those needs. No single generation can
      bind the course of the generation to come.' 442
             445. Justice Khanna expressed the view (and this was
      relied on by the learned Attorney-General) that the Constitution
 8
      is also intended for the future and must contain ample provision
      for experiment and trial. This is what Justice Khanna said:
            "It has also to be borne in mind that a Constitution is not
            a gate but a road. Beneath the drafting of a Constitution
C           is the awareness that things do not stand still but move
            on, that life of a progressive nation, as of an individual, is
            not static and stagnant but dynamic and dashful. A
            Constitution must therefore contain ample provision for
            experiment and trial in the task of administration. A
 D          Constitution, it needs to be emphasised, is not a
            document for fastidious dialectics but the means of
            ordering the life of a people. It had its roots in the past,
            its continuity is reflected in the present and it is intended
            forthe unknown future.'' 443
 E
            446. A little later on in the judgment, the learned judge
      cited Abrams v. United States444 and quoting Justice Holmes
      said:
            "The Constitution of a nation is the outward and visible
 F          manifestation of the life of the people and it must respond
            to the deep pulsation for change within. "A Constitution
            is an experiment as all life is an experiment." If the
            experiment fails, there must be provision for making
            another.''445
 G
            447. fortunately for the people of the country, the
      442 Paragraph 634
      443
          Paragraph 1437
      444
          250 us 616 (1919)
      445
          Paragraph 1563
 H
     SUPREME COURT ADVOCATES-ON-RECORD                          877
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

independence of the judiciary is not a 'task of administration' A
nor is the Constitution of India a failed experiment nor is there
any need for 'making provision for another'. 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 thatcan be experimented with or B
changed through a cut and paste method. Even though the
independence of the judiciary is a 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. The independence of the judiciary is a concept C
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 D
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.
      448. This is not to say that the Constitution must recognize
only physical changes with the passage of time - certainly not. E
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 F
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 G
 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.
                                                                 H
878            SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A These concepts are far too precious for experimentation.
        449. Yes, the Constitution has to be interpreted as a living
   organic document for years and years to come, but within
   accepted parameters. It was said by Chief Justice Dickson of
 B the Canadian Supreme Court in The Queen v. Beauregarcf46 :
              "The Canadian Constitution is not locked forever in a 119
              year old casket. It lives and breathes and is capable of
              growing to keep pace with the growth of the country and its
              people. Accordingly, if the Constitution can accommodate,
C             as it has, many subjects unknown in 1867 airplanes, nuclear
              energy, hydroelectric power it is-surely not straining section
              100 too much to say that the word 'pensions', admittedly
              understood in one sense in 1867, can today support federal
              legislation based on a different understanding of
 D            'pensions'."447
          450. It is this that Justice Khanna possibly had in mind
      when the learned judge spoke of the 'unknown future'.
               Challenge to a statute and the package deal
 E
          451. The learned Attorney-General also adverted to the
   legal bases for challenging a statute. This was necessary since
   he desired to segregate the challenge to the 99 1h Constitution
   AmendmentAct and the NJACAct. In principle, the segregation
 F would be justified, but as far as this case is concerned, the
   learned Attorney-General had argued that the 99th Constitution
   Amendment Act and the NJAC Act were a 'package deal' and
   in this he is correct. Both were discussed and debated in both
   Houses of Parliament almost at the same time, both were sent
 G 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 99 1h
   Constitution Amendment Act had to undergo the ratification
      446
            [1986] 2 SCR 56 paragraph
 H    447
            Paragraph 46
     SUPREME COURT ADVOCATES-ON-RECORD                                879
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

process, the NJAC Act did not. It was therefore a 'package            A
deal' presented to the country in which the ggth Constitution
Amendment Act and the NJAC Act were so interlinked that
one could not operate without reference to the other. In fact,
Mr. Nariman submitted that the NJAC Act should also have
undergone the ratification process, but he was unable to              B
support his argument with any law, judicial precedent,
convention or practice. This question is left open for greater
discussion at an appropriate stage should the occasion arise.
      452. Be that as it may, in the context of a challenge to a      c
statute, it was submitted by the learned Attorney-General that
the principles for such a challenge are quite different from a
challenge to a constitutional amendment. He is right in this
submission.
      453. The accepted view is that a Parliamentary statute          D
can be struck down only if it is beyond legislative competence
or violatesArt.13 or the fundamental rights. The basic structure
doctrine is not available for striking down a statute. It was held
in State of A.P. v. McDowell & Co448 that:
                                                                      E
      "The power of Parliament or for that matter, the State
      Legislatures is restricted in two ways. A law made by
      Parliament or the legislature can be struck down by courts
      on two grounds and two grounds alone, viz., (1) lack of
      legislative competence and (2) violation of any of the          F
      fundamental rights guaranteed in Part Ill of the
      Constitution or of any other constitutional provision. There
      is no third ground."
     454. This view was followed in Public Services Tribunal
Bar Assn v. State of U.P. 449 in the following words:        G
       "The constitutional validity of an Act can be challenged
       only on two grounds viz. (1) lack of legislative competence;
448
    (1996) 3 sec 709 paragraph 43
449
    (2003) 4 sec 104 paragraph 26
                                                                      H
880            SUPREME COURT REPORTS                     (2015] 13 S.C.R.


A              and (ii) violation of any of the fundamental rights
               guaranteed in Part 111 of the Constitution or of any other
               constitutional provisions. In State ofA.P v. McDowell &
               Co this Court has opined that except the above two
               grounds there is no third ground on the basis of which
 B             the law made by the competent legislature can be
               invalidated and that the ground of invalidation must
               necessarily fall within the four corners of the
               aforementioned two grounds."
 c           455. Earlier, this Court had taken a much broader view
      of the issue of a challenge to a statute in Chhotabhai
      Jethabhai Patel v. Union of lndia. 450 It was held therein that
      apart from the question of legislative competence and violation
      of Article 13 of the Constitution, a i;tatute could be challenged
 o    if its enactment was prohibited by a provision of the
      Constitution. It was held as follows:
               "If by reason of Article 265 every tax has to be imposed
               by "law" it would appear to follow that it could only be
               imposed by a law which is valid by conformity to the
 E             criteria laid down in the relevant Articles of the
               Constitution. These are that the law should be ( 1) within
               the legislative competence of the legislature being
               covered by the legislative entries in Schedule VII of the
               Constitution; (2) the law should not be prohibited by any
 F
               particular provision of the Constitution such as for
               example, Articles 276(2), 286 etc., and (3) the law or the
               relevant portion thereof should not be invalid under Article
               13 for repugnancy to those freedom which are
 G             guaranteed by Part Ill of the Constitution which are
               relevant to the subject-matter of the law."
               456. This view was taken forward in Kihoto Hol/ohan
      v. Zachillhu451 wherein it was held that the procedure for
      450
            1962 Supp (2) SCR 1 =AIR 1962 SC 104 (Five Judges Bench)
 H    451
            1992 Supp (2) sec 651 paragraph 61 and 62 (Five Judges Bench)
        SUPREME COURT ADVOCATES-ON-RECORD                                   881
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

enacting a 'law' should be followed. Although it is not expressly           A
stated, but it appears that if the procedure is not followed then
the 'law' to that extent will have no effect. In this case, It was
held that Paragraph 7 of the Tenth Schedule to the Constitution
needed ratification in terms of clause (b) of the proviso to Article
368(2) of the Constitution. It was held:                                    B
        "That having regard to the background and evolution of
        the principles underlying the Constitution (Fifty-second
        Amendment) Act, 1985-, insofar as it seeks to introduce
        the Tenth Schedule in theConstitution of India, the                 c
        provisions of Paragraph 7 of the Tenth Schedule of the
        Constitution in terms and in effect bring about a change
        in the operation and effect of Articles 136, 226 and 227
        of the Constitution of India and, therefore, the amendment
        would require to be ratified in accordance with the proviso         D
        to sub-article (2) of Article 368 of the Constitution of India.''
      457. 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           E
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.
       458. At the same time, it has been emphasized by this                F
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. In D.K. Trivedi & Sons v. State of Gujarat4 52 it was said:
         "Where a statute confers discretionary powers upon the G
         executive or an administrative authority, the validity or
         constitutionality of such power cannot be judged on the'
         assumption that the executive or such authority will act in
452
      1986 Supp SCC 20 in paragraph 50
                                                                            H
882         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A          an arbitrary manner in the exercise of the discretion
           conferred upon it. If the executive or the administrative
           authority acts in an arbitrary manner, its action would be
           bad in law and liable to be struck down by the courts but
           the possibility of abuse of power or arbitrary exercise of
 B         power cannot invalidate the statute conferring the power
           or the power which has been conferred by it."
           459. Similarly, Justice B.P. Jeevan Reddy (speaking for
      Justice J.S. Verma, Justice S.C .•Agrawal, Justice A.S.Anand,
 c    Justice B.N. Kirpal and himself) held in Mafatlal Industries
      Ltd. v. Union of Jndia 453 :
            "It is equally well-settled that mere possibility of abuse of
            a provision by those in charge of administering it cannot
            be a ground for holding the provision procedurally or
 D          substantively unreasonable. In Col/ectorofCustomsv.
            Nathe/la Sampathu Chetty, this Court observed: "The
            possibility of abuse of a statute otherwise valid does not
           ·impart to it any element of invalidity." It was said in State
            of Rajasthan v. Union of India, "it must be remembered
 E          that merely because power may sometimes be abused,
            it is no ground for denying the existence of power. The
            wisdom of man has not yet been able to conceive of a
            government with power sufficient to answer all its
            legitimate needs and at the same time incapable of
 F
            mischief'. (Also see Commr., H.R.E. v. Sri Lakshmindra
             Thirtha Swamiar of Sri Shirur Mutt." (Internal citations
            omitted)
            Article 122 of the Constitution
 G
           460. Before dealing with the substantive issue of the
      challenge before us, it may be mentioned that Mr. Fali S.
      Nariman contended that Parliament did not have the
      competence to pass the NJAC Act until the ggth Constitution
 H    •53 (1997) 5 sec 536 in paragraph 88
        SUPREME COURT ADVOCATES-ON-RECORD                            883
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

Amendment Act was brought into force or at least it had the A
assent of the President. It is not possible to accept this
submission since the passage of the 99 1h Constitution
Amendment Act and the NJACActwas contemporaneous, if
not more or less simultaneous. In view of Article 122(1) of the
Constitution which provides that the validity of any proceedings B
in Parliament shall not be called in question on the ground of
any alleged irregularity of procedure, it is not possible to delve
into the proceedings in Parliament.
      461. In Babula/ Parate v. State ofBombay4 54 this Court        c
added, byway of a post-script, its view on Article 122(1)ofthe
Constitution. It was observed that in a given hypothetical
situation the question will not be the validity of proceedings in
Parliament but the violation of a constitutional provision. It was
said as follows:                                                     D
         "It is advisable, perhaps, to add a few more words about
         Art. 122(1) of the Constitution. Learned counsel forthe
         appellant has posed before us the question as to what
         would be the effect of that Article if in any Bill completely
         unrelated to any of the matters referred to in Cls. (a) to E
         (e) of Art. 3 an amendment was to be proposed and
         accepted changing (for example) the name of a State.
         We do not think that we need answer such a hypothetical
         question except merely to say that if an amendment is of F
         such a character that it is not really an amendment and
         is clearly violative of Art. 3, the question then will be not
         the validity of proceedings in Parliament but the violation
         of a constitutional provision."
      462. In Raja Ram Pal v. Lok Sabha 455 the question of G
the extent of judicial review of parliamentary matters came up
for consideration. Speaking for Justices K.G. Balakrishnan,
454
      [1960 (1) SCR 605 (Five Judges Bench)
455
      (2007) 3 SCC 184 (Five Judges Bench)
                                                                     H
884            SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A     D.K. Jain and himself, it was held by Chief Justice Sabharwal,
      with reference to the CAD that procedural irregularities in
      Parliament cannot undo or vitiate what happens within its four
      walls, that is, internal parliamentary proceedings. However,
      proceedings that are substantively illegal or unconstitutional,
 B    as opposed to irregular are not protected from judicial scrutiny
      by Article 122(1) of the Constitution. 456
             463. Insofar as the NJACAct is concerned, nothing has
      been shown by way of any substantive illegality in its passage
c     or anything unconstitutional in its passage in· the sense that
      any provision of the Constitution or any substantive rule
      regulating parliamentary activity has been violated. At best, it
      can be argued that procedurally there was a violation but our
      attention was drawn to the rules of procedure and the decision
o     taken in accordance with the rules which indicate that there
      was no procedural violation in the introduction of the NJAC
      Act and its passage. Justice Khehar has elaborately dealt with
      this issue in substantial detail in his draft judgment and it is not
      necessary to repeat what has been said.
 E             The amendments that are challenged - discussion
         464. 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
F 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
G 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. There were
  reasons for this as mentioned above. Prior to the ggth
      456
            Paragraphs 360 (Two), 366
 H
     SUPREME COURT ADVOCATES-ON-RECORD                            885
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

Constitution Amendment Act, under Article 124(2) of the           A
Constitution, the President had the discretion to consult some
other judges of the Supreme Court or the High Courts, as the
President thought necessary for the purpose. The same
constitutional position prevailed (mutatis mutandis) so far as
the appointment of a judge of a High Court under Article 217(1)   B
of the Constitution was concerned. Article 124(2) of the
Constitution had three basic ingredients: The power of the
President to appoint a judge of the Supreme Court; a
mandatory requirement of consultation with the Chief Justice
of India; a discretionary consultation with otherjudges of the    C
Supreme Court and the High Courts.
      465. The ggth Constitution Amendment Act has
completely changed this constitutional position and has .
changed the role of the President in the appointment process D
as also substantially modified the mandatory consultation with
the Chief Justice of India and substituted or replaced the entire
process by a recommendation of the NJAC. The table below
gives the textual changes made in Article 124(2) of the
Constitution.                                                     E
           Pre-Amendment              Post-Amendment
               provisions                provisions
        124. Establishment         124. Establishment
       and constitution of        and constitution of
       Supreme Court. - (1)        Supreme Court. - (1)           F
       There shall be a           There shall be a
       Supreme Court of           Supreme Court of
        India consisting of a      India consisting of a
       Chief Justice of India      Chief Justice of India
       and, until Parliament      and, until Parliament           G
       by law prescribes a        by law prescribes a
       larger number, of not       larger number, of not
       more than seven other more than seven other
       Judges.                    Judges.
                                                                  H
886     SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A
      (2) Every Judge of the (2) Every Judge of the
      Supreme Court shall be        Supreme Court shall be
      appointed       by      the   appointed        by      the
      President by warrant          President by warrant
B     under his hand and seal       unaer his hand and seal
      after consultation with       on the recommendation
      such of the Judges of         of the National Judicial
      the Supreme Court and         Appointments
      of the High Courts in         Commission referred to
      the States as the             in article 124A and shall
c     President may deem            hold office until he attains
      necessary       for     the   the age of sixty-five
      purpose and shall hold        years:
      office until he attains the
      age of sixty-five years:
D
      Provided that in the omitted
      case of appointment of
      a Judge other than the
      Chief Justice, the Chief
E     Justice of India shall
      always be consulted:      Provided that- (a) a
                                Judge may, by writing
      Provided further that- under         his       hand
      (a) a Judge may, by addressed            to     the
      writing under his hand President,      resign    his
F
      addressed        to   the office;
      President,     resign his (b) a Judge may. be
      office;                   removed from his office in
      (b) a Judge may be the manner provided in
      removed from his office clause (4).
G     in the manner provided
      in clause (4).


       466. The composition of the NJAC is provided for in
H
     SUPREME COURT ADVOCATES-ON-RECORD                            887
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

Article 124A of the Constitution. Therefore, Article 124A of the A
Constitution and Article 124(2) are required to be read in
conjunction with each other. The Chief Justice of India is the
Chairperson of the NJAC. The members of the NJAC are two
other judges of the Supreme Court next to the Chief Justice of
India, the Union Minister in charge of Law and Justice and two B
eminent persons to be nominated by a Committee consisting
of the Prime Minister, the Chief Justice of India and the Leader
of Opposition in the Lok Sabha, failing which the leader of the
single largest Opposition Party in the Lok Sabha.
                                                                  c
      467. The duty of the NJAC as provided for in Article 1248
of the Constitution is to recommend persons for appointment
as the Chief Justice of India, judges of the Supreme Court,
Chief Justices of High Courts and other judges of High Courts
and to recommend the transfer of Chief Justices and other         D
judges of a High Court from one High Court to any other High
Court. The NJAC has the duty to ensure that the person
recommended has ability and integrity.
     468. Article 124C of the Constitution provides that
Parliament may by law regulate the procedure for the              E
appointment of the Chief Justice of India and other judges of
the Supreme Court, the Chief Justice and other judges of the
High Courts. The Article empowers the NJAC to lay down, by
regulations, the procedure for the discharge of its functions,    F
the manner of selection of persons for appointment and such
other matters as may be considered necessary.
      469. Simultaneous' with the above amendments in the
Constitution, the NJAC Act was passed by Parliament. The
NJAC Act provides for recommending the senior-most judge          G
of the Supreme Court as the Chief Justice of India 'if he is
considered fit to hold the office' and for recommending names
for appointment as a judge of the Supreme Court persons who
are eligible to be so appointed. Interestingly, the NJAC 'shall
                                                                  H
888         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     not recommend a person for appointment if any two members
      of the Commission do not agree for such recommendation'
      (Section 5 of the NJAC Act). A somewhat similar procedure
      has been provided for recommending the appointment of the
      Chief Justice of a High Court and a judge of a High Court
B     (Section 6 of the NJAC Act).
           470. The President may accept the recommendation of
      the NJAC for the appointment of a particular person as a judge,
      but may also require the NJAC to reconsider its
c     recommendation. If the NJAC affirms its earlier
      recommendation the President shall issue the warrant of
      appointment (Section 7 of the NJAC Act).
       471. The officers and employees of the NJAC shall be
  appointed by the Central Government in consultation with the
D NJAC and the convener of the NJAC shall be the Secretary to
  the Government of India in the Department of Law and Justice
  (Section 8 of the NJACAct).
            472. The procedure for the transfer of judges from one
 E    High Court to another has been left to be determined by
      regulations to be framed by the NJAC (Section 9 of the Act).
      Similarly, the NJAC shall frame regulations with regard to the
      procedure for the discharge of its functions (Section 10 of the
      Act).
 F      473. The Central Government is empowered to make
   Rules to carry out the provisions of the NJAC Act (Section 11
   thereof) and the Commission may make Rules to carry out the
   provisions of the NJAC Act (Section· 12 thereof). The Rules
   and Regulations framed by the Central Government and by
 G the NJAC shall be laid before Parliament and these may be
   modified if both the Houses of Parliament agree to the
   modification and Parliament may also provide that a Rule or
   Regulation shall have no effect (Section 13 thereof).
 H
     SUPREME COURT ADVOCATES-ON-RECORD                            889
      ASSOCIATION v.·u.O.I. [MADAN B. LOKUR, J.]

     4 74. The sum and substance of the controversy is this: If A
the establishment of the NJAC by the 99 1h Constitution
Amendment Act alters the basic structure of the Constitution,
the 99 1h Constitution Amendment Act and the NJAC Act must
be declared unconstitutional. Since the establishment of the
NJAC by Article 124A of the Constitution is integral to the 991h B
Constitution Amendment Act and the NJACAct and they are
not severable and cannot stand alone, they too must be
declared unconstitutional.
      475. While considering the constitutional validity of the    c
99 1h 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. This is because it was referred, in the course of
submissions, on more than one occasion. It was sought to be        D
suggested that judges in the UK Supreme Court are appointed
by the Judicial Appointments Commission constituted in terms
of the CRA and there is nothing wrong if a somewhat similar
procedure is adopted by our Parliament where judges of the
High Courts and the Supreme Court are recommended by the           E
NJAC.
      476. The 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 F
the Lord Chancellor was nevertheless responsible 'for upholding
the independence of the judiciary'. In the 3rd lecture on 'Judicial
Appointments' delivered on 41h December, 2012 of the 64 1h
series of Hamlyn Lectures titled 'Aspects of Law Reform -An
Insider's Perspective' he said:                                     G
     "The CRA provided for the establishment of an
     independent Judicial Appointments Commission (JAC).
     The JAC was made responsible for operating the
     appointments process and making recommendations to            H
890            SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A             the Lord Chancellor for all but the most senior
              appointments. For these very senior appointments (to
              the Court of Appeal, and the offices of Head of Division,
              Lord Chief Justice, and the president, deputy president
              and members of the UK Supreme court), separate
 B            provision was made for recommendations to be made
              to the Lord Chancellor by specially constituted selection
              panels.
              For each appointment, the JAC, or the specially
c             constituted selection panel, was required to make one
              recommendation to the Lord Chancellor."457
              "In practice, as I found out through painful experience,
              there were a number of problems with this set-up."458
              "I accept that the role of the Lord Chancellor in relation to
 D
              High Court and Court of Appeal appointments shoLJld be
              limited. But for the two groups of our most senior judges,
              and for different reasons, in my view the Lord Chancellor
              should have a greater role than is provided for by the
 E            Constitutional Reform Act, or than is likely to be provided
              for by the current Crime and Courts Bill.
              The two groups of judges I am talking about are, first, the
              most senior members of the Court of Appeal - th'at is,
              the Heads of Division and Lord Chief Justice- and,
 F            second, the members of the UK Supreme Court. The
              conclusion is the same, but the arguments are
              different. "459
            The 'specially constituted selection panel' for the
 G    appointment of judges of the UK Supreme Court (for example)
      is provided for in Section 26(5) of the CRA read with Schedule
      8 thereof and the selection panel consists of (a) the President
      457 Page 54
      458
            Page 55
 H    459
            Page 56
     SUPREME COURT ADVOCATES-ON-RECORD                               891
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

of the Supreme Court, (b) the Deputy President of the Supreme        A
Court, (c) one member each of (i) the Judicial Appointments
Commission, (ii) the Judicial Appointments Board for Scotland,
(iii) the Northern Ireland Judicial Appointments Commission.
At least one member in category (c) must be 'non-legally
qualified'. With this sort of a composition of the 'specially        B
constituted selection panel' Jack Straw could not go against
the wishes of the judiciary in respect of one appointment, as
obliquely referred to by him below:
     "All of this is already recognized, in principle at least, by   c
     the Constitutional Reform Act, which provides that these
     two groups of very senior appointments should not be
     made by the normal Judicial Appointments Commission
     process.
     The reality of a connection between the senior judiciary D
     and the executive is also recognized in almost every other
     jurisdiction. By far the most usual approach elsewhere
     in the world, including in well-functioning common-law
     jurisdictions, is for the relevant minister to be
     recommended three to five names, and for that minister E
     then to be able to choose from among these nominees.
      In the United Kingdom we are very unusual in insisting
     that the minister receives one name alone. This is
     explicable only in the context of where we have come
     from: the untrammeled discretion of the Lord Chancellor F
      until the mid 1990s, the non-statutory nature of the pre-
     2005 arrangements, the opaque decision-making
      process and the mounting criticism of it.
      But these literally peculiar arrangements for these very G
      senior appointments, intended to create a partnership
      approach between the judiciary and the Lord Chancellor
      in recognition of the requirements of the offices in
      question, have proved to be unsatisfactory.
                                                               H
892            SUPREME COURT REPORTS                   [2015] 13S.C.R.


A              Both the detailed wording and the expectation in practice
               make it very difficult for the Lord Chancellor to exercise
               even his limited powers to reject or request a
               reconsideration of a recommendation. As is a matter of
               record in the press, there was one occasion when, as
B              Lord Chancellor, I sought to use these powers.
               Since I have always observed the confidentiality
               necessary for the consideration of such appointments, I
               am not here going into any detail. I hope, however, that it
c              will be accepted that I would not have sought to exercise
               these powers unless I believed that I had good grounds
               within the Act for doing so I did - good grounds, as many
               can now see. I went to considerable lengths to ensure
               that my actions could not be construed, which they were
D              not remotely, as party political. In the event, the matter
               was not seen through to a conclusion. Partisans to the
               appointment- not anyone directly involved in the process
               - leaked extensive detail to the press, an election was
               looming; I confirmed the appointment." 460
E       4 77. Adverting to this lecture and the actual working of
   the CRA, it is said that for making senior level judicial
   appointments, it is 'impossible for the Lord Chancellor to
   against the wishes of the judiciary'. In a recent article published
 F in Public Law it is said:
               "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
G              Appointments Commission (JAC), but in practice the
               process is heavily influenced by the judiciary at every
               stage. The Lord Chief Justice is consulted at the start of
               each competition. Judges prepare case studies and
      460
            Page 57-59
1-t
      SUPREME COURT ADVOCATES-ON-RECORD                                     893
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      qualifying tests. Judges write references. A judge sits on A
      the panels that interview candidates; and judges are
      consulted in statutory consultation. On the JAC, 7 of the
      15 commissioners are judges. Once the JAC has
      completed its selection, at lower levels (Circuit judges
      and below) all judicial appointments are now formally B
      made by the Lord Chief Justice, and tribunal
      appointments are made by the Senior President of
      Tribunals. The Lord Chief Justice and SPT are now
      responsible for 97 per cent of all judicial appointments.
      At more senior levels appointments are still formally                 c
      decided by the Lord Chancellor; but in practice it has
      proved impossible for the Lord Chancellor to go against
      the wishes of the judiciary."461
     So much for the appointment process in the UK and the                  D
'judges appointing judges' criticism in India!
       4 78. It is not possible for any one of us to comment (one
way or another) on the 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             E
a full understanding of their problems and issues. We ought to
better understand the situation in our country (and the decisions
rendered by this Court) and how best to protect and preserve
judicial independence in the circumstances that exist in our
                                                                            F
country and not have grand illusions of the systems in place in
other countries.
    Validity of Articles 124A and 124(2) of the
Constitution - the package deal
                                                                            G
     479. The submission of the learned Attorney-General (as
mentioned above) is that the 991h Constitution Amendment Act
461 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
                                                                            H
894             SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A     and the NJAC Act are a 'package deal' and one cannot be
      appreciated without the other. The discussion will be in the
      light of this submission.
             480. At the outset, it is important to note thatthe package
B     is incomplete. The 99 1h Constitution Amendment Act and the
      NJAC Act raise a series of unanswered questions. For
      example, how is the NJAC expected to perform its duties?
      Will there be any transparency in the working of the NJAC and
      if so to what extent? Will privacy concerns of the 'candidates'
c     be taken care of? Will issues of accountability of the NJAC be
      addressed? The learned Attorney-General 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
o     composite law and regulations being framed in accordance
      with the postulates of the 99 1h Constitution Amendment Act.
      This submission of the learned Attorney-General cannot be
      appreciated particularly in view of his contention, raised on
      more than one occasion, that what is enacted by the ggth
E     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 ggth
      Constitution Amendment Act. If it is not possible to answer all
 F    the questions in the absence of a composite law, rules and
      regulations, what was the hurry in bringing the ggth Constitution
      Amendment Act and the NJAC Act into force as a half-baked
      measure?
G           481. It is true that the Constitution cannot specify and
      incorporate each and every detail, particularly procedural
      details. 462 But the same time, the substantive requirements of
      the NJAC scheme must be apparent from the 991h Constitution
      462 See State of Punjab v. Salil Sablok, (2013) 5 SCC 1 paragraph 115 of the

 H    Report.
      SUPREME COURT ADVOCATES-ON-RECORD                        895
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

  Amendment Act read with the NJAC Act, particularly when it A
  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 B
  created, making matters worse.
      482. The package deal must survive as whole or fall as
 a whole - there cannot be piecemeal existence.
       483. Viewed in this light, the constitutional validity of C
 Article 124(2) read with Article 124A of the Constitution as
 introduced by the ggth Constitution Amendment Act is suspect
 for several reasons.
      (a) The NJAC and the role of the President
                                                                D
       484.Article 124(2) of the Constitution requires the NJAC
 constituted under Article 124A thereof to make a
 recommendation to the President for the appointment of a
 judge of the Supreme Court or a High Court. Mr. Fali S.
 Nariman pointed out that as far as the NJAC is concerned, it E
 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 ggth
 Constitution Amendment Act and the NJAC Act would be F
 creating an lmperium in lmperio whfch 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 the NJAC (under G
 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 the NJAC through the
  Law Minister. Can the PresidenUCouncil of Ministers/Prime
  Minister ask for reconsideration of a recommendation made H
896         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     by the NJAC to which the Law Minister (a member of the
      Cabinet) is a party? Would this be permissible particularly since
      the Law Minister represents the Union Government/President
      in the NJAC and would it not go against the well established
      principle of Cabinet responsibility? Alternatively, would it not
 B    undermine the authority of the Law Minister if in a given case
      the Law Ministers agrees to an appointment but the Council of
      Ministers does not accept it? More importantly, is the Council
      of Ministers/President an oversight body as far as the NJAC
      is concerned?
c
           485. Assuming (despite the above doubts) that the
   Council of Ministers/President requires the NJAC to reconsider
   its recommendation and on reconsideration the NJAC
   reiterates its recommendation, the President will be bound
 o thereby even if it means overruling the objections of the Chief
   Justice of India. The objection to this process of appointment
   of judges is two-fold. Firstly, the authority that is statutorily
   conferred on the NJAC to bind the President by the NJAC Act
   is well beyond the power conferred by Article 124(2) of the
 E Constitution or the 991h Constitution Amendment Act. Secondly,
   in the event of such a reiteration, the opinion of the Chief
   Justice of India eventually counts for nothing, contrary to the
   intention of the Constituent Asse!T]bly and the constitutional
   conventions followed over decades. Historically, no
 F appointment (except perhaps one) has been made without the
   consent of the ChiefJustice of India. Is the 99 1h Constitution
   AmendmentAct intended, wittingly or unwittingly, to give a short
   shrift to the views of the Constituent Assembly and constitutional
   conventions and to sublimate the views of the Chief Justice of
 G India? This procedure may be contrasted with the collegium
   system of appointment in which the President could turn down
   a recommendation made by the collegium if it was not
   unanimous. In the present dispensation, this entitlement of the
 H President is taken away, even if the recommendation is not
     SUPREME COURT ADVOCATES-ON-RECORD                          897
     ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

unanimous, and thereby the importance of the President is       A
considerably downsized.
      486. Additionally, the decision of the President is, in one
sense, made to depend upon the opinion of two members of
the NJAC, who may in a given case be the two eminent persons
                                                                   8
nominated to the NJAC in terms of Article 124A(1 )(d) of the
Constitution. These two eminent persons can actually stymie
a recommendation of the NJAC for the appointment of a judge
by exercising a veto conferred on each member of the NJAC
by the second proviso to sub-section (2) of Section 5 of the c
NJAC Act, and without assigning any reason. In other words,
the two eminent persons (or any two members of the 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 D
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
the NJAC, with a veto being conferred on any two unspecified
members, without any·specific justification. This is a very E .
significant constitutional change brought about by the ggth
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 the NJAC. To make matters worse, the President cannot F
even seek the views of anybody (other judges or lawyers or
civil society) which was permissible prior to the ggth
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 G
consult judges of the Supreme Court and the High Court but
that entitlement is now taken away by the 99 1h Constitution
Amendment Act. The President, in the process, is actually
 reduced to a dummy.
                                                                   H
898         SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A           487. It may also be recalled that the President (as an
      individual) had expressed a viewpoint as reported in India
      Today magazine of 25 1h January, 1999 concerning the
      appointment of judges of the Supreme Court. The existence
      of such a possibility is now not possible since the President
B     (as an individual) has really no role to play in the appointment
      process except issuing a warrant of appointment when asked
      to do so.
            488. The sum and substance of this discussion is that
c     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
o     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 99 1h Constitution Amendment Act makes
      serious and unconstitutional inroads into Article 124(2) of the
 E    Constitution, as originally framed.        ·
           (b) Role of the Chief Justice of India and the
      Judiciary
            489. The Chief Justice of India is undoubtedly the
 F Chairperson of the NJAC. However, the participation of the
   Chief Justice of India as an individual and the participation of
   the judiciary as an institution in the NJAC is made farcical by
   the 991h Constitution Amendment Act and the NJAC Act. Even
   though the opinion of the Chief Justice of India, a pre-eminent
 G constitutional authority in the judiciary, regarding the suitability
   of a person for appointment as a judge is acceptable to a
   majority of members of the 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
 H
     SUPREME COURT ADVOCATES-ON-RECORD                             . 899
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

 (representing the President) and an eminent person or two          A
 eminent persons neither of whom represent or purport 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.
                                                                    B
     490. The 99th Constitution Amendment Act reduces the
Chief Justice of India, despite being the head of the ju9iciary,
to one of six in the NJAC making a recommendation to the
President thereby denuding him/her of conventional, historical
and legitimate constitutional significance and authority and        c
substantially skewing the appointment process postulated by
the ConstituentAssembly 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 99 1h Constitution Amendment Act and        D
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 the NJAC is certainly not a solace or a solution
to downsizing the head of the Judiciary.
       491. The participation of the judiciary as an institution in E
the NJAC is also farcical. The 99 1h Constitution Amendment
Act does not postulate a 'veto' being conferred on any person
in the NJAC. But the NJAC Act effectively gives that power to
all members of the NJAC despite the 99th Constitution F
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 G
(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 the NJAC, one of whom
may very well include the Law Minister representing the political
                                                                    H
900          SUPREME COURT REPORTS                     (2015] 13 S.C.R.


A     executive and another having perhaps nothing to do with justice
      delivery. This is certainly not what the Constitution, as framed,
      postulated or intended.
            492. To get over this outlandish situation it was
      suggested (as an alternative argument) by Mr. K.K. Venugopal
 8
      appearing for the State of Madhya Pradesh 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'. Mr.
      Venugopal puts this Court in. a Catch-22 situation. The
c     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
 o    the language of the statute is express.
           493. As mentioned above in considerable detail, 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
 E 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 991h
 F Constitution Amendment Act and the NJAC Act, this
   independence is subtly put to jeopardy. The President has
   virtually no role to play in the appointment of judges, the Chief
   Justice of India is sidelined in the process and a system that
   is subject to possible erosion is put in place. Justice O'Connor
 G said: 'Judicial independence doesn't happen all by itself .....
   It's tremendously hard to create, and easier than most people
   imagine to destroy.' The 991h Consti.tution Amendment Act and
   the NJAC Act puts us face to face with this truism in respect of
   the fragile bastion.
 H
     SUPREME COURT ADVOCATES-ON-RECORD                          901
     -ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      494. The sum and substance of this discussion is that A
the unanimous opinion of the Judiciary can be rejected by two
eminent persons or one eminent person and the Law Minister
(whose opinion is subject to the opinion of the Council of
Ministers, whom he/she represents); the unanimous opinion
of the judiciary as an institution, an opinion that was respected B
(and deservedly so) counts for virtually nothing with the passage
of the 99 1h Constitution Amendment Act and the NJAC Act; the
Chief Justice of India is rendered, by the 99 1h Constitution
Amendment Act to a mere voting statistic and one among six
in the NJAC virtually stripping him/her of the constitutional C
responsibility of appointing judges to the superior courts and
denuding him/her of the authority conferred by history,
constitutional convention and the Constitution; the Chief Justice
of India and the institution of the judiciary is now subject to a D
veto by civil society in its decisions. The entire scheme of
appointment of judges postulated by the Constituent Assembly
is made topsy-turvy by the 991h Constitution Amendment Act
and the NJAC Act. If this does not alter the basic structure of
the Constitution, what does?
                                                                 E
     (c) Eminent persons and the veto
      495. The inspiration for having eminent persons in the
NJAC comes from the Report of the NCRWC which made
this recommendation as a part of the democratic process of F
selecting a )udge of the Supreme Court or the High Court.
Article 124A( 1)( d) of the Constitution provides for two eminent
persons to be nominated as members of the NJAC. The
nomination is by a Committee consisting of the Prime Minister,
the Chief Justice of India and the Leader of the Opposition in G
the Lok Sabha or where there is no such Leader, then the
Leader of the single largest Opposition Party in the Lok Sabha.
The first proviso mandates that one of the eminent persons
shall be nominated from amongst persons belonging to the
                                                                 H
902            SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     Scheduled Castes, the Scheduled Tribes, Other Backward
      Classes, Minorities or Women.
       496. The apprehension expressed by some learned
  counsel appearing forthe petitioners is that since no guidelines
B 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 the NJAC or that their
  appointment will be politically motivated. So also,
  acknowledged eminent persons might not be nominated to
c the NJAC. But then, who is an eminent person?
         497. In A.K. Roy v. Union of /ndia 463 reference was
   made to the difficulty in framing precise definitions. Although
   the decision pertained to preventive detention and criminal
   law, the following observation is pertinent in the context of the
 D present discussion:
                "The impossibility of framing a definition with
               mathematical precision cannot either justify the use of
               vague expressions or the total failure to frame any
 E             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 thilt
 F             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."464
 G          498. It is also necessary to notice the view expressed in
      the Second Judges case by Justice Verma speaking for the
      majority. The learned judge was of the opinion that arbitrariness
      in the exercise of discretion can be minimized through a
      463 (1982) 1 SCC 271   (Five Judges Bench)
      464
            Paragraph 61
 H
     SUPREME COURT ADVOCATES-ON-RECORD                            903
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

collective decision. It was observed as follows:                  A
     "The rule of law envisages the area of discretion to be
     the minimum, requiring only the application of known
     principles or guidelines to ensure non-arbitrariness, but
     to that limited extent, discretion is a pragmatic need. B
     Conferring discretion upon high functionaries and,
     whenever feasible, introducing the element of plurality
     by requiring a collective decision, are further checks
     against arbitrariness. This is how idealism and
     pragmatism are reconciled and integrated, to make the c
     system workable in a satisfactory manner. Entrustment
     of the task of appointment of superior judges to high
     constitutional functionaries; the greatest significance
     attached.to the view of the Chief Justice of India, who is
     best equipped to assess the true worth of the candidates D
     for adjudging their suitability; the opinion of the Chief
     Justice of India being the collective opinion formed after
     taking into account the views of some of his colleagues;
     and the executive being permitted to prevent an
     appointment considered to be unsuitable, for strong E
     reasons disclosed to t)1e Chief Justice of India, provide
     the best method, in the constitutional scheme, to achieve
     the constitutional purpose without conferring absolute
     discretion or veto upon either the judiciary or the
     executive, much less in any individual, be he the Chief F
     Justice of India or the Prime Minister."465
      499. Justice Pandian in a separate but concurring opinion
held the same view and expressed it in the following words:
     "It is essential and vital for the establishment of real G
     participatory democracy that all sections and classes of
     people, be they backward classes or Scheduled Castes
     or Scheduled Tribes or minorities or women, should be
"' Paragraph 468
                                                                  H
904         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A           afforded equal opportunity so that the judicial
            admiflistration is also participated in by the outstanding
            and meritorious candidates belonging to all sections of
            the society and not by any selective or insular group." 466
             500. In Centre for PIL v. Union of lndia 467 the question
 8
      related to the appointment of the Central Vigilance
      Commissioner and the Vigilance Commissioners under the
      Central Vigilance Commission Act, 2003. The relevant
      provision was to the effect that a Selection Committee
 C    consisting of the Prime Minister, the Minister of Home Affairs
      and the Leader of the Opposition in the Lok Sabha would make
      a recommendation to the President who would then appoint
      the Central Vigilance Commissioner or the Vigilance
      Commissioners, as the case may be, by warrant under his or
 o    her hand and seal. In this context, this Court held that
      Parliament had put its faith in a High Powered Committee 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.
 E          501. It was pointed out by Mr. Arvind Datar, learned senior
      counsel appearing for one of the petitioners that a large
      number of statutes mention the presence of eminent persons
      in a body, including some that are subject specific. However, it
 F    was pointed out by the learned Attorney-General that in a
      random sampling of some of these statutes, it has been found
      that none of them has such a High Powered Committee as in
      the Central Vigilance Commission Act for nominating or
      recommending a person for appointment to a post.
 G          502. Apart from anything else, it was submitted by the
      learned Attorney-General that the presence of eminent persons
      in the NJAC would lend diversity in the composition of the
      'selection panel' .and that this would necessarily reflect the
      466 Paragraph   216(3)
 H    4 1
       • (2011) 4sec 1
        SUPREME COURT ADVOCATES-ON-RECORD                                 905
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

views of society. Reference in this context was made to                   A
Registrar General, High Court of Madras v. R. Gandhi468
wherein it was held as follows:
        "Appointments cannot be exclusively made from any
        isolated group nor should it be pre-dominated by
                                                                          8
        representing a narrow group. Diversity therefore in judicial
        appointments to pick up the best legally trained minds
        coupled with a qualitative personality, are the guiding
        factors that deserve to be observed uninfluenced by mere
        considerations of individual opinions. It is for this reason      c
        that collective consultative process as enunciated in the
        aforesaid decisions has been held to be an inbuilt
        mechanism against any arbitrariness." 469
        503. Under these circumstances, there can be little
objection to the participation by eminent persons as                      D
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 Committee cannot be trusted to nominate
'eminent' persons, perhaps no other committee can. The trust              E
placed on the Committee is not a simple or statutory trust but
a constitutional trust. In this regard, it is worth recalling the words
of Justice Krishna Iyer in Bhim Singhji:
         "The confusion between the power and its oblique                 F
         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." 470          G
         504. It is, therefore, not advisable to be alarmist, as some
4ss (2014) 11 sec 547
  9
"     Paragraph 163
470
      Paragraph 20
                                                                          H
906             SUPREME COURT REPORTS                         [2015] 13 S.C.R.


A     learned counsel for 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
 B    decision-making) process of the Committee. It was pointed
      out in Centre for PIL that 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. 471 What this means
 C    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 in the process of nomination of eminent persons. In
      other words, from the word 'go' the Chief Justice of India is
 0
      sidelined, directly or indirectly, in the process of appointment
      of judges of the High Courts and the Supreme Court.
           505. It is also not possible to accept the contention that
     the presence of eminent persons with a voting right in the NJAC
 E 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.
 F
         506. 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,
 G 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 the NJAC
   and influence its decisions to accept a committed judiciary
      471
            The discussion in paragraphs 79 to 86 of the Report is quite useful.
 H
       SUPREME COURT ADVOCATES-ON-RECORD                                         907
        ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.]

  rather than an independent judiciary. 472 It is unlikely that this             A
  would happen, butifthe political executive is determined, at
  some point of time, to have a committed judiciary, the
  nomination of politically active eminent persons to the NJAC
  disregarding the view of the Chief Justice of India is a real
· possibility.                                                                   B
       507. Another objection raised to the 'eminent person'
 category is that such a person might not have any knowledge
 of the requirements of the judiciary and would not be able to
 make any effective contribution in the selection of a judge. It                 c
 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 D
 glorious Constitution. One of the finest minds that we have today
 - Professor Amartya Sen - has had no training or background
 in law and yet has given us The Idea of Justice an important
 contribution to jurisprudence, the idea of justice in an
 organizational sense (niti) and the idea of realized justice E
 (nyaya). Therefore, it would not be correct to say that an
 eminent person in the 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.                F
        508. Finally, it was argued that the requirement that one
 eminent person should be from a specified category as
 mentioned in the first proviso to Article 124A(1)(d) of the
 Constitution is discriminatory and serves no purpose at all. In                 G
 472
     It was held in lshwar Chandra v. Satyanarain Sinha, (1972) 3 SCC 383 in
 paragraph 10 of the Report: " ... 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."                                                  H
908        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A response, the learned Attorney-General submitted that the
  presence of an eminent person, outside the field of law would
  bring about a much needed diversity in the appointment of
  judges. The experience in the United Kingdom, as explained
  by Jack Straw, does not seem to bear out this assumption. In
B his lecture, he stated: 'The assumption on diversity- na"lve as
  it turned out-was that if we changed the process, we would
  change the outcome.' In any event, which category should or
  should not be represented in the NJAC through an eminent
  person is essentially a matter of policy and that policy does
C not appear to be perverse in any manner, but does require a
  rethink.
         509. The real cause for unhappiness is the second
   proviso to Section 5(2) of the NJAC Act which effectively
 o confers a veto on each member of the NJAC. What is
   objectionable about the veto (a part of the package deal
   referred to by the learned Attorney-General) is that it can also
   be exercised by two eminent persons whose participation in
   the appointment process was not even imagined by the
 E 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
 F '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 paralyze the
   appointment process, reducing the President and the Chief
 G Justice of India to ciphers for reasons that might have nothing
   to do with the judicial potential or fitness and suitability of a
   peirson considered for appointment as a judge. That they might
   not do so is another matter altogether but in a constitutional
 H issue as grave as the appointment of judges, all possibilities
         SUPREME COURT ADVOCATES-ON-RECORD                                  909
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

    require to be taken into consideration since it affects the             A
    independence of the judiciary and eventually the rights,
    including the fundamental rights, of the people. The conferment
    of a veto to any member of the NJAC, eminent person or
    otherwise, is clearly an unconstitutional check on the authority
    of the President and the Chief Justice of India.                        B
          510. The sum and substance of this discussion is that 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              c
    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 the NJAC, a
    power without any accountability; the categories of eminent             D
    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        E
    of nomination to the NJAC, but that the choice is left to a high
     powered committee is a sufficient check, provided the decision
    of the committee is unanimous.
          (d) Law Minister
                                                                            F
.         511. The presence of the Law Minister in the NJAC was
    objected to by the petitioners for several reasons. 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 the
    NJAC might prove detrimental to a fair selection, if not counter-       G
    productive.
          512. It is true that the Union of India is the largest litigant
    in the country and that was recognized in the Second Judges
    case. It was said by Justice Pandian as follows:
                                                                            H
910            SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A             "No one can deny that the State in the present day has
              become the maj9r litigant and the superior courts
              particularly the Supreme Court, have become centres
              for turbulent controversies, some of which with a flavour
              of political repercussions and the Courts have to face
 B            tempest and storm because their vitality is a national
              imperative. In such circumstances, therefore, can the
              Government, namely, the major litigant be justified in
              enjoying absolute authority in nominating and appointing
              its arbitrators. The answer would be in the negative. If
c             such a process is allowed to continue, the independence
              of judiciary in the long run will sink without any trace."473
           513. Similarly, Justice Kuldip Singh also mentioned that
      the Union of India is the single largest litigant in the country.
 D    The learned judge said:
              "In S.P. Gupta case this Court construed the words in
              Articles 124(2) and 217(1) of the Constitution by taking
              the clock back by forty years. The functioning of the Apex
              Judiciary during the last four decades, the expanding
 E            horizon of, 'judicial review', the broader concept of
              'independence of judiciary', practice and precedents in
              the matter of appointment of judgeswhich ripened into
              conventions and the role of the executive being the
              largest single litigant before the courts, are some of the.
 F
              vital aspects which were not adverted to by this Court
              while interpreting the constitutional provisions."474
           514. The learned judge expressed the same sentiment
      far more emphatically in the following words:
 G
               "Then the question which comes up for consideration is,
               can there be an independent judiciary when the power
               of appointment of judges vests in the executive? To say
      473
            Paragraph 207
      474
            Paragraph 327
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                         911
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      yes, would be illogical. The independence of judiciary is                 A
      inextricably linked and connected with the constitutional
      process of appointment of judges of the higher judiciary.
      'Independence of Judiciary' is the basic feature of our
      Constitution and if it means what we have discussed
      above, then the Framers of the Constitution could have                    B
      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                       C
      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                D
      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. This Court in S.P. Gupta case
      proceeded on the assumption that the independence of
      judiciary is the basic feature of the Constitution but failed             E
      to appreciate that the interpretation, it gave, was not in
      conformity with broader facets of the two concepts -
      'independence of judiciary' and 'judi9ial review' - which
      are interlinked ."475
      In view·ofthis, there can be no doubtthat the Government                  F
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. 476
                                                                                G
     515. Historically, and I have quoted chapter and verse
from virtually every relevant committee in this regard, the
475
   Paragraph 335
476
   The position that the State is a major litigant in the country remains the
same even today.                                ·
                                                                                H
912         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A  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 the
   NJAC is to cast a doubt on the wisdom of legal luminaries, Dr.
   Ambedkar and the Constituent Assembly in keeping the
 B executive out of the decision-taking process in the appointment
   of judges.
            516. Nevertheless, it is true that inputs from the executive
      are important in the process of taking a decision whether a
c     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
 o    Law Minister is only one of six in the NJAC but being a Cabinet
      Minister representing the entire Cabin~t and the Government
      of India in the 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
 E    members of the NJAC may hold. Since the Law Minister is, by
      virtue of the office held, potentially capable of influencing the
      decision of a member of the 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
 F    be fair.                  ·
          517. It must be realize.d and appreciated that the tectonic
   shift in several countries towards constituting a judicial
   appointment commission is taking place only to ensure that
 G the executive does not have a role in the appointment of judges.
   The learned Attorney-General supported the shift but 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 the NJAC.
   Therefore, while the ggth Constitution Amendment Act and the
 H
       SUPREME COURT ADVOCATES-ON-RECORD                                         913
        ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

NJAC Act attempt to set up a body intended to be independent                     A
of the executive, the NJAC that has been set up has an
important member of the political executive as a part of this
body, which is rather anachronistic.
      518. It must also be realized that as mentioned in the
                                                                                 B
First Judges case two countries Australia (today having a
total of about 200 judges in the High Court and the State
Supreme Courts) and New Zealand (today having a total of
about 20 judges [in the Supreme Court and in the Court of
Appeal]) were veering round to having a judicial appointment                     c
commission for the higher judiciary.477 We were informed during
the hearing of these petitions that these countries have not,
even after four decades, established such commissions, while
our country seems to be in a great rush to do so. The issues,
debates, discussions and considerations in these countries                       D
would be different from ours, but merely because these and
other countries are looking towards a judicial appointment
commission is no reason for India to do so. A reference was
also made to South Africa but, as everyone knows, diversity
issues in that country are of great concern post apartheid. It is,               E
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.
                                                                                 F
     519. In Australia, an article suggesting adoption of the
UK Judicial Appointments Commission introduced by the CRA
477
   Justice Bhagwati: "We may point out that even countries like Australia and
New Zealand have veered round to the view that there should be a Judicial
Commission for appointment of the higher judiciary. As recently as July 1977     G
the Chief Justice of Australia publicly stated that the time had come for such
a commission to be appointed in Australia. So also in New Zealand, the
Royal Commission on the Courts chaired by Mr Justice Beattle, who has now
become the Governor-General of New Zealand, recommended that a Judicial
Commission should consider all judicial appointments including
appointments of High Court Judges." [Paragraph 31)
                                                                                 H
914        SUPREME COURT REPORTS                   [2015] 13S.C.R.

A     has this to say about jµdicial appointments and political
      patronage (which might be possible in the NJAC as
      established):
           "While the collective strength and quality of the Australian
           judiciary is not in doubt, it is the case that particular
B
           appointments have attracted criticism, either in relation
           to the character and ability of the individual chosen or
           their conduct while in office. It is a notorious fact that
           judicial officers have been appointed, including to the
c          High Court, whose character and intellectual and legal
           capacities have been doubted and whose appointments
           have been identified as instances of political patronage.


           What is essential is that decisional independence be
 D
           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
 E         private parties, and (in a federation) between
           compon.ents of the State. The core is protected through
           institutional arrangements such as tenure, remuneration
           and the jurisdictional separation of powers. As we have
           already noted, it is inescapable that politics will have a
 F         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) decision.al independence. It is
           impossible - and undesirable- to remove the political
 G         entirely from the appointments process. Indeed, in our
           view, '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
 H
      · SUPREME COURT ADVOCATES-ON-RECORD                              915
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.)

       the direct influence of the political branch on the             A
       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. "478                                              B
     520. In South Africa, while dealing with judicial
appointments, Justice Yvonne Mokgoro, former judge of the
Constitutional Court had this to say: .
        'Thus, judicial transformation in South Africa must include    C
        a new judicial appointments procedure which is open
        and independent of external influence; changing the
        demographics of the Bench, in particular with regards to
        race and gender as critical aspects of shaping the form
        of a judiciary which serves an open and democratic             D
        society; appreciating that judicial competence and how
        judges manage their judicial power and independence
        are major aspects of enhancing access to justice and
        judicial accountability. Enforcing and embracing the
         principles and values of a fundamentally new legal order      E
      · is also a critical attitudinal change that will have
        substantive implications for the judicial interpretation of
        the law and the creation of a new constitutional
        jurisprudence. These reforms are all no doubt necessary
         considerations for judicial transformation. Courts must       F
        therefore function efficiently so that judges can dispense
        justice to all, most competently. Fundamental to this
         principle is that when appointing judges consideration
         must be given to the need for the judiciary to reflect        G
         broadly the racial and gender composition of South
        Africa.

478
   Appointing Australian Judges: A New Model by Simon Evans and John
Williams. [2008] Sydney Law Review Volume 30 page 295. See hllQ1L
sydney edu au/Jawlslrls!r30 2/Evans.pdf                                H
916          SUPREME COURT REPORTS                       [2015] 13 S.C.R.


A           In a society such as ours, where patriarchy is so deeply
            entrenched, affecting adversely the everyday lives of so
            many women, including women in the law, the strategic
            value of women's participation on the Bench and
            positions of power and authority should not be
B           underestimated. Their development management style,
            the influence of the unique perspectives they bring to the
            adjudicative task and even the mere symbolism of their
            presence there could bring enormous returns for the
            transformation process itself and respect for women in
c           society at large. The need for women both in the judiciary
            as a whole and in leadership positions in particular
            cannot be exaggerated. Although, we have come a long
            way, we must agree that we have just scratched the
            surface. We must step up our efforts. Some things must
 D
            change."479
            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.
 E         521. In a Position Paper of 11th December, 2011 on the
      Appointment of Judges, the Law Society of Botswana
      emphasized that different legal systems require different
      responses in the appointment of judges. It was said:
 F          "Throughout the region, the relevance of judicial
            independence to the rule of law, democracy and the
            protection and promotion of human rights is undisputed.
            This acknowledgment notwithstanding, judicial
            independence continues to face threats that compromise
G           not only individual judges but more so the institutions
            vested with the responsibility of dispensing justice. To
            that end, judicial independence remains one of the
            cornerstones of democracy and constitutionalism the
      479
          http :l/www.sabar.co .za/Jaw-iournals/201 O/decem ber/2010-decem ber-
 H    voJ023-no3-pp43-48.odf
      SUPREME COURT ADVOCATES-ON-RECORD                               917
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      world over, remaining the central goal of most legal            A
      systems. It has been noted that the independence of the
      judiciary necessitates that there should be freedom from
      influence or control from the executive and legislative
      branches of the Government.
                                                                      B
      To achieve this important goal, systems of appointment
      of judicial officers are seen as crucial to ensuring that
      the independence of the judiciary is achieved. Whilst there
      is general consensus on the importance           of  judicial
      independence, different legal systems have utilized             c
      various methods of appointing occupants of judicial
      office. These include; a) appointment by political
      institutions; b) appointment by the judiciary itself; c)
      appointment by a judicial council (which may include non-
      judge members) and sometimes d) selection through an            o
      electoral system. This diversity at the very least indicates
      that there exists no general consensus on the best
      approach to guarantee judicial independence. That
      notwithstanding, the mechanisms for the appointment of
      judges remain crucial in maintaining judicial                   E
      independence and public confidence in the judiciary."480
      522. It was pointed out by the learned Attorney-General
that at all times since Independence, the Law Minister has been
a part of the process in the appointment of judges. In fact it is     F
through the Law Minister that important inputs are placed
before the Chief Justice of India particularly with regard to
matters that the Chief Justice of India may not be aware of,
such as the antecedents and personal traits of the person being
considered for appointment as a judge. There is, therefore,           G
no reason to now exclude the Law Minister from this process.
      523. There is a distinction, as mentioned above, between
480
  http://www. lawsoci ety.org bw/news/Positio n %20 Pa per%20on%20
Appointment%20of%20Judges%20Einal%2014%2Qjune%2Q2012%2Q'Einal'pdf
                                                                      H
918         SUPREME COURT REPORTS                 [2015] 13S.C.R.


A 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
B 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 99 1h Constitution
  Amendm·ent Act) but ought not to be a part of the decision-
  taking process. This distinction is quite crucial. The voting
C 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.
 o           524. It was faintly contended by Mr. Nariman that having
      only the Law Minister of the Government of India as a member
      of the NJAC and not having his/her counterpart from the State
      Government as a member of the NJAC may have an impact
      on federalism in our Constitution. Apart from mentioning it, no
 E    serious argument was advanced in this regard, perhaps
      because the principal objection is to the representation of the
      Government of India in the NJAC. In view of the fact that no
      detailed submissions were made in this regard, I would not
      like to express any opinion on this contention.
 F
         525. The sum and substance of this discussion is that
   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 the NJAC is
 G 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 the NJAC is totally unnecessary and ill-advised;
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                   919
       ASSOCIATION v. U.0.1. [MADAN 8. LOKUR, J.]

the presence of the Law Minister in the NJAC casts a doubt                A
on the principle of Cabinet responsibility.
    (e) The NJAC and the impact on mandatory
consultation
      526. Article 124(2) of the Constitution as originally framed B
made it mandatory for the President to consultthe Chief Justice
of India in the appointment of judges. The rationale behind this
has already been discussed. The 99 111 Constitution Amendment
Act completely does away with the mandatory consultation.
The President is not expected to consult anybody in the C
appointment process- he/she is expected to act only on the
recommendation of the 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 the NJAC D
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. 481 Similarly, as mentioned E.
above the Chief Justice of India is reduced to just another
number in the NJAC.
        527. Mandatory consultation between the President and
the Chief Justice of India was well thought out by the Drafting
Committee and the Constituent Assembly but has now been F
made farcical by the 99 1h Constitution Amendment Act, for the
reasons mentioned above. Article 124(2) of the Constitution
(prior to its c:imendment) 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 G
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
481
   This may be contrasted with the direct exchange of views between the
President and the Chief Justice of India referred to earlier.             H
920        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A and blood through, what Dr. Rajeev Dhavan referred to as
  '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
B participation of the President. This is now missing.
           528. What is the importance of the mandatory
    consultation? There are two crucial factors to be carefully
    considered before a person is appointed as a judge of the
c 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,
 o  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,
l:: 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
F (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
G appointment as. a judge. In other words, the Chief Justice of
     India is the 'expert' with regard to potential while the executive
    is ttie 'expert' with regard to the antecedents and personal
    traits. Since these two facets of the personality of a would-be
H judge are undoubtedly distinct, there cannot be a difference of
      SUPREME COURT ADVOCATES-ON-RECORD                                          921
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

opinion between the judiciary and the executive in this regard                   A
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.
                                                                      B
         529. 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                 c
on the potential of becoming a good judge. As stated by Jack
Straw, what is important is that iris 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 D
situation where the personal traits, though otijected 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 E
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 F
 of that person to be a good judge. 482 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 G
 the Chief Justice of India, unanimously expressed.
482
    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.
                                                                                 H
922          SUPREME COURT REPORTS                          [2015] 13 S.C.R.


A          530. The 991h Constitution AmendmentAct and the NJAC
    Act not only reduce the Chief Justice of India to a number in
    the NJAC but also convert the mandatory consultation between
    the President and the Chief Justice of India to a dumb charade
    with the NJAC acting as an intermediary. On earlier occasions,
B Parliament enhanced its power through constitutional
    amendments, which were struck down, inter alia, in Indira
    Nehru Gandhi and Minerva Mil/s. 483 The ggih Constitution
    Amendment Act unconstitutionally minimizes the role of the
    Chief Justice of India and the judiciary to a vanishing point in
C the appointment of judges. It also 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
0
    striking at the very basis of the independence of the judiciary.
        531. The entire issue may be looked at in another light:
   Why did the Constituent Assembly make it mandatory for the
   President to consult the Chief Justice of India for the
 E appointment of judges of the Supreme Court or the High Court
   when equally important, if not more important constitutional
   authorities could be appointed by the President without
   consulting anybody and in his/her 'unfettered discretion'? The
      483
          In l.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 this Court observed
 F    in paragraph 138 of the Report: "The relevance of Indira Gandhi case, Minerva
      Mills case and Waman Rao case [(1981) 2 SCC 362] lies in the fact that every
      improper enhancement of its own power by Parliament, be it clause (4) of
      Article 329-A or clauses (4) and (5) of Article 368 or Section 4 of the 42nd
      Amendment has been held to be incompatible with the doctrine of basic
 G    structure as they introduced new elements which al\ered ~he identity of the
      Constitution or deleted the existing elements from the Constitution by which
      the very core of the Constitution is discarded. They obliterated important
      elements like judicial review. They made directive principles en bloc a
      touchstone for obliteration of all the fundamental rights and provided for
      insertion of laws in the Ninth Schedule which had no nexus with agrarian
      reforms."
 H
                                                   ·'"'


      SUPREME COURT ADVOCATES-ON-RECORD                                   923
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

reason for the 'special' treatment in the case of appointments A
to the judiciary is because the Constituent Assembly
appreciated and acknowledged and, therefore, accepted the
necessity of preserving and protecting the independence of
the judiciary, a significant pillar of parliamentary democracy. It
also acknowledged that the most appropriate person to guide B
and advice the President in the appointment of judges would
be none other than the Chief Justice of India. It was known to
the Constituent Assembly that the rights of the people, including
their fundamental rights, need protection against arbitrary
executive power and excessive legislative action and unless C
the judiciary steps in and grants that protection, such arbitrary
power or excessive action can be misused and abused. This
had happened in pre Independent India and has happened in
our recent history. The 99 1h Constitution Amendment Act and
the NJACAct positively indicate (unconstitutionally) that now D
the Chief Justice of India and the other judges are not
necessarily the best persons to advise the President on the
appointment of judges.
      532. Underscoring the importance of the appointment of              E
independent judges (toAmericans, 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                     F
      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                   G
      process breeds contention." 484
      533. Without an independent judiciary, not only 'everyday
484
   Carly Van Orman, Introduction to the Symposium: The Judicial Process
Appointments Process. 10 Wm. & Mary Bill Rts. J. 1 (2001 ). http://
scholarship.law.wm.edu/wmborj/vol1 O/iss1 /2                              H
924          SUPREME COURT REPORTS                           [2015) 13 S.C.R.


A     life decisions' are 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
 B    and interests of individuals, Chief Justice Mason 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
 c          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." 485
 D          534. 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
 E    judiciary and perhaps spent more time debating it than any
      other topic.
            535. In this regard, it is worth recalling the submission of
      Mr. Palkhivala in Kesavananda Bharatiwhile laying the basis
 F    for the 'width of power' test (later adopted in M. Nagaraj) that:
             "... the test of the true width of a power is not how probable
             it is that it may be exercised but what can possibly be
             done under it; that the abuse or misuse of power is entirely
             irrelevant; that the question of the extent of the power
 G
             cannot be mixed up with the question of its exercise and
             that when the real question is as to the width of the power,
      485 'The Appointment and Removal of Judges' by Sir Anthony Mason AC KBE,

      formerly Chief Justice of Australia http://www judcom nsw gov au/publications/
      educatjon-monographs-1 /monograph 1/fbmason .htm
 H
      SUPREME COURT ADVOCATES-ON-RECORD                                         925
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      expectation that it will never be used is as wholly irrelevant A
      as an imminent danger of its use. The court does not
      decide what is the best and what is the worst. It merely
      decides what can possibly be done under a power if the
      words conferring it are so construed as to have an
      unbounded and limitless width, as claimed on behalf of B
      the respondents."486
      536. Now, consider this - given the width of the power
available under the 99 1h Constitution Amendment Act if
committed judges are appointed (as was propagated at one c
point of time and it can get actualized after the 991h Constitution
Amendment Act) then no one can expect impartial justice as
commonly understood from a 'committed' Supreme Court or
a High Court. The Constituent Assembly wished to completely
avoid this and that is why considerable importance was given D
to the process of appointing judges and the independence of
the judiciary. 'Common to all forms of judicial function is
independent, impartial and neutral adjudication, though there
is a question as to the possibility of achieving completely neutral
adjudication.' 487 The 991h Constitution Amendment Act and the E                      \
NJAC Act lead to the clear possibility of a committed judiciary
being put in place. If this does not violate the basic structure of
the Constitution, what does?
      537. The sum and substance of this discussion is that                     F
mandatory consultation between the President and the Chief
Justice of India postulated in the Constitution is by-passed -
bringing about a huge alteration in the process of appointment
of judges; the 99 1h Constitution Amendment Act and the NJAC
Act have reduced the consultation process to a farce - a                        G
meaningful participatory consultative process no longer exists;
486
    Paragraph 531
487
   'The Appointment and Removal of Judges' by Sir Anthony Mason AC KBE.
formerly Chief Justice of Australia http:Uwww.judcom nsw gov au/publications/
education-monographs-1/monograph1/fbmason htm                                   H
926         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     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
 B    might not be independent is unimaginable.
            (f) The NJAC and the appointment of High Court
      judges
         538. As far as the appointment of a judge of a High Court
 C is concerned, the ggth 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
 D 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 has now been left out in the
   cold. Secondly, the constitutional obligation and constitutional
 E 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-bye by the 99 1h Constitution
 F Amendment Act and the NJAC Act. The entire initiation of the
   appointment process has now been overhauled.
         539. 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
 G the 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 the NJAC. There is a
   qualitative difference between the Chief Justice of a High Court
 H
     SUPREME COURT ADVOCATES-ON-RECORD                           927
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

nominating a person for appointment as a judge of a High Court   A
on the initiative of the 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      B
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
LCI in its 141h Report.
                                                                 c
     540. 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 D
participatory process but by virtue of the 99 1h Constitution
Amendment Act and the NJACAct only a nomination is sought
from the Chief Justice of a High Court by the NJAC. Thereafter,
the Chief Justice has no role to play. This is clear from Section
6(7) of the NJAC Act which mandates the NJAC to elicit in E
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.                   F
      541. The combined effect of the 99 1h Constitution
Amendment Act and Section 6 of the NJAC Act is that the
entire control over the appointment of a judge of a High Court
is taken over by the NJAC and the paradigm is completely         G
altered with the Chief Justice of a High Court downgraded from
a mandatory consultant, and the originator of a
recommendation for appointment as postulated by Article
217(1) of the Constitution as conventionally understood, to
                                                                 H
928           SUPREME COURT REPORTS                           [2015] 13S.C.R.


A someone who merely makes a nomination and thereafter is
  not required to be consulted one way or the other with respect
  to the nomination 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 High
B Court judges that most Supreme Court judges would be
  appointed, ifthe 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.
c
            542. The appointment of judges is a very serious matter
      and it is difficult to understate its importance. Referring to a
      view expressed by Shimon Shetreet 488 it is stated by Sarkar
      Ali Akkas of the University of Rajshahi, Bangladesh that:
D            "The appointment of judges is an important aspect of
             judicial independence which requires that in
             administering justice judges should be free from all sorts
             of direct or indirect interference or influences. The
             principle of the independence of the judiciary seeks to
 E           ensure the freedom of judges to administer justice
             impartially, without any fear or favour. This freedom of
             judges has a close relationship with judicial appointment
             because the appointment system has a direct bearing
             on the impartiality, integrity and independence of
 F
             judges."489
         543. Essentially, the ggth Constitution Amendment Act
   replaces or substitutes the collegium system of appointment
   of judges by the NJAC. It must be realized that a judicial
 G appointments commission (by whatever name called) is a
      488
           Shimon Shetreet, Judges on Trial (North-Holland Publishing Company,
      Amsterdam, (1976), p 46.
       469
           Akkas, Sarkar Ali (2004) "Appointment of Judges: A Key Issue of Judicial
      Independence," Bond Law Review: Vol. 16: lss. 2, Article 8. Available at: http:/
 H    /epublications.bond.edu.au/blr/vol 16/iss2/8
         SUPREME COURT ADVOCATES-ON-RECORD                                 929
          ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

worldwide reaction to the executive taking over and appointing A
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 Hamlyn lecture of Jack Straw illustrates, the executive B
desires greater control in the appointment of judges but the
judiciary eventually has the upper hand, as it should - but not
so with the NJAC.
         544. The decision of this Court in Kumar Padma Prasad             c
v. Union of lndia     490
                       is an example of how wrong the executive
can be in the matter of appointment of judges. In that case, a
judicial officer was recommended for appointment as a judge
of the Gauhati High Court at the instance of the Chief Minister
of Mizoram. The recommendation was agreed to by the Chief D
Justice of India and the warrant of appointment of the
recommended person was issued by the President but it was
subsequently not given effect to since the person was found
not qualified to be appointed as a judge of the High Court.
Recently, the Canadian Supreme Court answered a reference E
made by the Governor General in Council as a result of which
the appointment and swearing in of a judge of the Supreme
Court was declared void ab initio since he did not possess
the eligibility requirement. 491 Instances of this nature, fortunately
few and far between have shaken public confidence in a system F
of appointment of judges where primacy is with the executive,
hence the desire to shift to an efficacious alternative. While
there might be a need for a more efficient or better system of
appointment of judges, the NJAC is not the stairway to Heaven,
particularly in view of the various gaps in its functioning, the G
NJAC system downgrading the President and the Chief Justice
of India and incorporating a host of other features that severely
490 (1992) 2  sec 428
491
      Reference Re Supreme Court Act, sections 5 and 6, [2014] 1 SCR 433
                                                                           H
930         SUPREME COURT REPORTS                  [2015] 13 S.C.R


A     impact on the appointment of judges and thereby on the
      independence of the judiciary and thereby on the basic structure
      of the Constitution.
           545. It was submitted by the learned Attorney-General
  that there is a disenchantment with the collegium system of
 8
  appointment of judges and that is why it needs to be replaced
  or substituted and that is precisely what the ggth Constitution
  Amendment Act has achieved. The learned Attorney-General
  referred to the NJAC as the third chapter in the appointment
c of judges - the first chapter being one in which the executive
  had the 'ultimate power' in the appointment process and the
  second chapter being one in which the Executive and the
  Judiciary have a shared responsibility with the judiciary having
  institutional participation. This may be so, but through the ggth
o Constitution Amendment Act the 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
E independence of the judiciary.
            546. Working within the parameters suggested by the
   learned Attorney-General, namely, the presumption of
   constitutionality of the 991h Constitution Amendment Act, that
 F 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 this Court must
   recognize that society and its requirements have changed with
   the passage of time, it is not possible to uphold the
 G constitutional validity of the ggth 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. 547. Taking an overall and
 H composite view of the ggth Constitution Amendment Act and
      SUPREME COURT ADVOCATES-ON-RECORD                               931
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

the NJAC Act, rather than a piecemeal discussion or a                 A
dissection of each provision, there can be little doubt thatArticle
124A of the Constitution (as amended) is unconstitutional.
Article 124A of the Constitution having been declared
unconstitutional, there is nothing of substance left in Article
1248 and Article 124C of the Constitution and the other               B
provisions of the 991h ConstitutionAmendmentAct, which are
not severable and therefore these provisions must be and are
declared unconstitutional being in violation of and altering the
basic structure of the Constitution.
                                                                      c
       548. The sum and substance of this discussion is that
the process of initiating a recommendation for the appointment
of a judge, generally accepted since Independence, has been
radically changed, with well entrenched constitutional
conventions being given short shrift; the Chief Justice of the D
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
  a
of High Court has been completely whittled down virtually to E
a vanishing point.
      Convenor of the NJAC
      549. There are some peripheral issues that need to be
discussed. The involvement of the executive in the NJAC does F
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 the 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 G
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.
      550. That apart, the Secretary is an officer of the             H
932            SUPREME COURT REPORTS                [2015] 13 S.C.R.


A government and is not answerable to the 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
B 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,
C depriving the NJAC of continuity and, in a sense, leaving it
  high and dry whenever it pleases the executive. This is clearly
  objectionable. However, to be fair to the learned Attorney-
  General, it was submitted that if necessary a Registrar in the
D Supreme Court may be appointed as the convenor, but with
  respect that is not at all an answer to the issue raised.
               Transparency
        551. In the context of confidentiality r~uirements, the
  submission of the learned Attorney-General was that the
E functioning of the NJAC would be completely transparent.
  Justifying the need for transparency it was submitted that so
  far the process of appointment of judges in the collegium
  system has been extremely secret in the sense that no one
F outside the collegium or the Department of Justice is aware of
  the recommendations made by the Chief Justice of India for
  appointment of a judge of the Supreme Court or the High
  Courts. Reference was made to Renu v. District Judge492 to
  contend that in the matter of appointment in all judicial
G institutions 'complete darkness in the light house has to be
  removed.' 493
             552. In addition to the issue of transparency a submission
      was made that in the matter of appointment of judges, civil
        " (2014) 14 sec 50
      4

 H    493
            Paragraph 4
      SUPREME COURT ADVOCATES-ON-RECORD                              933
       ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

society has the right to know who is being considered for            A
appointment. In this regard, it was held in Indian Express
Newspapers v. Union of lndia 494 that the people have a right
to know. Reliance was placed on Attorney General v. Times
Newspapers Ltd. 495 where the right to know was recognized
as a fundamental principle of the freedom of expression and          B
the freedom of discussion.
     553. In State of U.P. v. Raj Narain 496 the right to know
was recognized as having been derived from the concept of
freedom of speech.                                                   c
      554. Finally, in Reliance Petrochemicals Ltd. v.
Proprietors of Indian Express Newspapers Bombay (P)
Ltd. 497 it was held that the right to know is a basic right which
citizens of a free country aspire in the broader horizon of the
right to live in this age in our land under Article 21 of our        D
Constitution.
      555. 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 E
reaching impact on his/her reputation and dignity. The 99 1h
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 learned Attorney-General that
the proceedings of the NJAC will be completely transparent F
and any one can have access to information that is available
with the NJAC. This is a rather sweeping generalization 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 G
the Supreme Court. The right to know is not a fundamental
4 4
 ' (1985) 1  sec 641
495
    1973 3 All ER 54
.,. (1975) 4 sec 428
497
    (1988) 4 sec 592
                                                                     H
934                 SUPREME COURT REPORTS                 [2015] 13S.C.R.


A 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 ggth
  Constitution Amendment Act and the NJAGAct do not even
B attempt to consider, let alone achieve that balance.
                556. 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
c         time, since the information is supplied i.n 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
o         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 a dhobi-ghat.
                   Doctrine of Revival
E
                557. The learned Solicitor-General submitted that when
          a law is amended and the amendment is declared
          unconstitutional, the pre-amendment law does not revive.
          Therefore, even if the ggth Constitution Amendment Act is
 F        declared as altering the basic structure of the Constitution,
          Article 124(2) of the Constitution as it existed prior to the ggth
          Constitution Amendment Act will not automatically revive and
          the collegium system will not resurface.~
G                  558. An interesting discussion is to be found in this regard
          in West U.P. Sugar Mills Assn. v. State of U.P. 498 This Court
          referred to B.N. Tewari v. Union of /ndia 499 and Firm A. T.B.
          Mehtab Majid & Co. v. State of Madras 500 in both of which it
              • (2002) 2 sec 645
           49
          499
      .         AIR 1965 SC 1430 (Five Judges Bench)
H         500
                AIR 1963 SC 928 (Five Judges Bench)
        SUPREME COURT ADVOCATES-ON-RECORD                               935
         ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

was held that if a statutory rule substitutes a rule and the new A
rule is struck down or declared invalid, the substituted or old
rule does not revive since it ceased to exist on its substitution.
The same rationale was applied to a notification in Indian
Express Newspapers (Born) (P) Ltd. v. Union of India. 501
                                                                        B
      559. However, it was further held that if a subsequent
law is held to be void such as in a case where the Legislature
had no competence to enact the law, then the earlier or the old
law would revive. It was held:
        "It would have been a different case where a subsequent C
        law which modified the earlier law was held to be void. In
        such a case, the earlier law shall be deemed to have
        never been modified or repealed and, therefore,
        continued to be in force. Where it is found that the
        legislature lacked competence to enact a law, still D
        amends the existing law and subsequently it is found that
        the legislature or the authority was denuded cif the power
        to amend the existing law, in such a case the old law
        would revive and continue." 502
                                                                        E
       560. In State of T.N. v. K. Shyam Sunder5° 3 the two
extant views on the subject have been noted. In paragraph 56
of the Report, it is pointed out that on the repeal of a statute it
is effectively obliterated from the statute books and even if the
amending [repealing] statute is declared unconstitutional on            F
the ground of lack of legislative competence in the Legislature,
the repealed statute will not revive. This is what was said:
         "In State of U.P. v. Hirendra Pal Singh this Court held:
         (SCC p. 314, para 22)
                                                                        G
              "22. It is a settled legal proposition that whenever an
          Act is repealed, it must be considered as if it had never
'" (1985) 1 sec 641
502
      Paragraph 15
5• 3 (2011)   a sec 737
                                                                        H
936       SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A            existed. The object of repeal is to obliterate the Act
             from the statutory books, except for certain purposes
             as provided under Section 6 of the General Clauses
             Act, 1897. Repeal is not a matter of mere form but is
             of substance. Therefore, on repeal, the earlier
B            provisions stand obliterated/abrogated/wiped out
             wholly i.e. pro tantO repeal. ... "
         . Thus, undoubtedly, submission made by the learned
           Senior Counsel on behalf of the respondents that once
c          the Act stands repealed and the amending Act is struck
           down by the Court being invalid and ultra vires/
           unconstitutional on the ground of legislative
           incompetence, the repealed Act will automatically revive
           is preponderous [preposterous] and needs no further
 D         consideration. This very Bench in State of U.P. v. Hirendra
           Pal Singh, after placinQ reliance upon a large number of
           earlier judgments particularly in Ameer-un-Nissa Begum
           v. Mahboob Begum, B.N. Tewariv. Union oflndia, India
           Tobacco Co. Ltd. v. CTO, Indian Express Newspapers
 E         (Bombay) (P) Ltd. v. Union of India, West UP. Sugar
           Mills Assn. v. State of U.P., Zile Singh v. State of Haryana,
           State of Kera/a v. Peoples Union for Civil Liberties and
           Firm A. T.B. Mehtab Majid and Co. reached the same
           conclusion." (Internal citations omitted)
 F
         On the other hand, it is pointed out in paragraph 57 of
   the Report that if a statute is repealed and the new statute is
   declared unconstitutional on the ground that it violates the
   fundamental rights chapter, then the repealed statute revives.
 G It was said:
          "There is another limb of this legal proposition, that is,
          where the Act is struck down by the Court being invalid,
          on the ground of arbitrariness in view of the provisions of
          Article 14 of the Constitution or being violative of
 H
     SUPREME COURT ADVOCATES-ON-RECORD                           937
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

     fundamental rights enshrined in Part Ill of the Constitution, A
     such Act can be described as void ab initio meaning
     thereby unconstitutional, stillborn or having no existence
     at all. In such a situation, the Act which stood repealed,
     stands revived automatically. (See Behram Khurshid
     Pesikaka and Mahendra Lal Jaini.)" (Internal citations B
     omitted)
       There does appear 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 statute books, under what    c
circumstances does the obliteration vanish, if at all. However,
none of these decisions make any reference to an amendment
of the Constitution, and for the present it is not necessary to
dive into that controversy. This is for the simple reason that the
issue requires considerable debate, of which we did not have D
the benefit. Justice Khehar has elaborately dealt wit~ this issue
in his draft judgment but I would like to leave the question open
for debate on an appropriate occasion. 561.            But, quite
apart from this, if the contention of the learned Solicitor-General
is accepted, then on the facts of this case; the result would be E
calamitous. The simple reason is that if the ggth 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 99 1h Constitution Amendment Act) and F
minus the words struck down (those inserted by the ggth
Constitution AmendmentAct) would read as follows:

    Article    Article 124(2)    Article 124(2) after the
    124(2)     after the gglh    ggth         Constitution        G
    as it was Constitution       Amendment is struck
    originally Amendment         down and the original
               Act               Article 124(2) is not
                                 revived
                                                                  H
938        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A
         (2) Every Judge     (2) Every       (2) Every Judge
         of the Supreme      Judge of the    of the Supreme
         Court shall be      Supreme Court Court shall be
         appointed by the shall be           appointed by the
         President by        appointed by    President by
B        warrant under his the President     warrant under
         hand and seal       by warrant      his hand and
         after consultation ·under his hand seal and shall
         with such of the    and seal on the hold office until
         Judges of the       recommendatio he attains the
c        Supreme Court       n of the        age of sixty-five
         and of the High     National        years:
         Courts in the       Judicial
         States as the       Appointments
         President may       Commission
 D       deem necessary referred to in
         for the purpose     article 124A
         and shall hold      and shall hold
         office until he     office until he
         attains the age of attains the age
       · sixty-five years:   of sixty-five
 E                           years:


           562. This would give absolute power to the President to
      appoint a judge to the Supreme Court without consulting the
 F    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, as James Madison put it in the Federalist
      Papers No. 47:
           "The accumulation of all powers, legislative, executive,
 G         and judiciary, in the same hands, whether of one, a few,
           or many, and whether hereditary, self-appointed, or
           elective, may justly be pronounced the very definition of
           tyranny."

 H
     SUPREME COURT ADVOCATES-ON-RECORD                            939
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

      563. This was put to the learned Solicitor-General and it A
was also put to him that if his submissions are correct, then it
would be better for the Union of India to have the 99 1.h
Constitution Amendment Act struck down so that absolute
power resides in the President making him/her an /mperium
in lmperio as far as the appointment of judges is concerned. B
The learned Solicitor-General smiled but obviously had no
answer to give. It must, therefore, be held that the constitutional
provisions amended by the 991h Constitution Amendment Act
spring back to life on the declaration that the 991h Constitution
AmendmentAct is unconstitutional.                                   C
      Conclusions
      564. Very briefly, 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 D
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. However, the 99 1h
Constitution Amendment Act and the NJAC Act have E
completely taken away the discretion of the President to turn
down a recommendation for the appointment of a judge,
reducing the constitutional significance of the President.
     565. Dr. Ambedkar was of the view that the President F
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 Second Judges case and the Third Judges
case, with the result of the consultation exercise carried out by G
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. However, the 99 1h Constitution Amendment
                                                                  H
940        SUPREME COURT REPORTS                [2015] 13 S.C.R.


A  Act and the NJAC Act have taken away this freedom of
   consultation from the President, who has no option but to take
   into account only the recommendation of the NJAC and not
   travel beyond that. Once again, the constitutional significance
   and importance of the President is considerably reduced, if
 B not taken away.
        566. Dr. Ambedkar 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
C 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
  (as per the 'desire' of Dr. Ambedkar) but became a collective
D or institutional opinion, there being a great deal of difference
  between the two. However, the ggth Constitution Amendment
  Act and the NJAC Act have considerably limited and curtailed
  the authority of the Chief Justice of India (both individually as
  well as institutionally) and the Chief Justice of India is now
E precluded from taking the opinion of other judges or of any
  person outside the NJAC. The Chief Justice of India has been
  reduced to an individual figure from an institutional head.
         567. Dr. Ambedkar was not prepared to accept the
 F 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 Dr. Ambedkar was allayed by the Second
   Judges case and the Third Judges case which made it
 G 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 were ex hypothesi 'well qualified to give proper
 H
     SUPREME COURT ADVOCATES-ON-RECORD                              941
      ASSOCIATION v. U.0.1. [MADAN B. LOKUR, J.]

advice in matters of this sort.' However, the 99th Constitution     A
Amendment Act and the NJACAct reversed the process well
thought out in the Second Judges case and the Third Judges
case and have taken away the constitutional authority of the
Chief Justice of India and placed it on a platter for the NJAC to
exploit.                                                            B
      568. Given our constitutional history, the established
conventions, the views of various committees over the last
seventy years and the views of scores of legal luminaries
beginning with Mr. Motilal Setalvad, the throes through which       c
the judiciary has gone through over several decades and the
provisions of our Constitution, I hold that the Article 124A 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 D
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 cannot
stand by themselves and are therefore also declared E
 unconstitutional. Similarly, the National Judicial Appointments
Commission Act, 2014 confers arbitrary and unchartered
 powers on various authorities under the statute and it violates
Article 14 of the Constitution and is declared unconstitutional.
 Even otherwise, the National Judicial Appointments F
 Commission Act, 2014 cannot stand alone in the absence of
 the Constitution (Ninety-ninth Amendment) Act, 2014.
       569. The result of this declaration is that the 'collegium
system' postulated by the Second Judges case and the Third          G
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. We had requested learned counsel, on the close
                                                                    H
942          SUPREME COURT REPORTS                          [2015] 13 S.C.R.


A of submissions, to give suggestions on the basis that the
  petitions are dismissed and on the basis that the petitions are
  allowed. Unfortunately, we received no response, or at best a
  lukewarm response. Under the circumstances, in my opinion,
  we need to have a 'consequence hearing' to assist us in the
B 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! I would, therefore,
C allow the petitions but list them for a 'consequence hearing' on
  an appropriate date.
                                     ORDER
            KURIAN, J. 1. I wholly agree with the view taken by my
 D    esteemed brother, Chelameswar, J. that there is no situation
      warranting recusal of Justice Khehar in this case. Now, that
      we have to pass a detailed and reasoned order as to why a
      Judge need not recuse from a case, I feel it appropriate also
      to deal with the other side of the coin, whether a Judge should
 E    state reasons for his recusal in a particular case.
             2. One of the reasons for recusal of a Judge is that
      litigants/the public might entertain a reasonable apprehension
      about his impartiality. As Lord Chief Justice Hewart said:
 F           "It is not merely of some importance but is of fundamental
             importance that justice should not only be done, but
             should manifestly and undoubtedly be seen to be done."1
         And therefore, in order to uphold the credibility of the
 G integrity institution, the Judge recuses from hearing the case.
              3. A Judge of the Supreme Court or the High Court, while
      assuming Office, takes an oath as prescribed under Schedule
      Ill to the Constitution of India, that:
      1
        R v. Sussex Justices, Ex parte McCarthy, [1924] 1KB 256, (1923] All ER Rep.
 H    233
       SUPREME COURT ADVOCATES-ON-RECORD                                    943
           ASSOCIATION v. U.0.1. [KURIAN, J.]

       " ... I will bear true faith and allegiance to the Constitution A
       of India as by law established, that I will uphold the
       sovereignty and integrity of India, that I will duly and
       faithfully and to the best of my ability, knowledge and
       judgment perform the duties of my office without fear or
       favour, affection or ill-will and that I will uphold the B
       Constitution and the laws."
        4. Called upon to discharge the duties of the Office
  without fear or favour, affection or ill-will, it is only desirable, if
  not proper, that a Judge, for any unavoidable reason like some            c
  pecuniary interest, affinity or adversity with the parties in the
  case, direct or indirect interest in the outcome of the litigation,
. family directly involved in litigation on the same issue
  elsewhere, the Judge being aware that he or someone in his
  immediate family has an interest, financial or otherwise that             D
  could have a substantial bearing as a consequence of the
  decision in the litigation, etc., to recuse himself from the
  adjudication of a particular matter. No doubt, these examples
  are not exhaustive.
       5. Guidelines on the ethical conduct of the Judges were              E
 formulated in the Chief Justices' Conference held in 1999
 known as "Restatement of Judicial Values of Judicial Life".
 Those principles, as a matter of fact, formed the basis of "The
 Bangalore Principles of Judicial Conduct, 2002" formulated                 F
 at the Round Table Meeting of Chief Justices held at the Peace
 Palace, The Hague. It is seen from the Preamble that the
 Drafting Committee had taken into consideration thirty two such
 statements all over the world including that of India. On Value
 2 "Impartiality", it is resolved as follows:                               G
       "Principle:
       Impartiality is essential to the proper discharge of the
       judicial office. It applies not only to the decision itself but
                                                                            H
944   SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     also to the process by which the decision is made.
      Application:
      2.1 A judge shall perform his or her judicial duties without
         fc;ivour, bias or prejudice.
B     2.2 A judge shall ensure that his or her conduct, both in
         and out of court, maintains and enhances the
         confidence of the public, the legal profession and
         litigants in the impartiality of the judge and of the
         judiciary.
c
      2.3 A judge shall, so far as is reasonable, so conduct
         himself or herself as to minimise the occasions on
         which it will be necessary for the judge to be .
         disqualified from hearing or deciding cases.
D     2.4 A judge shall not knowingly, while a proceeding is
         before, or could come before, the judge, make any
         comment that might reasonably be expected to affect
         the outcome of such proceeding or impair the manifest
         fairness of the process. Nor shall the judge make any
 E
         comment in public or otherwise that might affect ttie
         fair trial of any person or issue.
      2.5 A judge shall disqualify himself or herself from
         participating in any proceedings in which the judge is
 F       unable to decide the matter impartially or in which it
         may appear to a reasonable observer that the judge
         is unable to decide the matter impartially. Such
         proceedings include, but are not limited to, instances
         where
G
         2.5.1 the judge has actual bias or prejudice concerning
              a party or personal knowledge of disputed
              evidentiary facts concerning the proceedings;


 H
    ·SUPREME COURT ADVOCATES-ON-RECORD                             945
         ASSOCIATION v. U.0.1. [KURIAN, J.]

        2.5.2 the judge previously served as a lawyer or was A
             a material witness in the matter in controversy; or
        2.5.3 the judge, or a member of the judge's family,
            has an economic interest in the outcome of the
            matter in controversy:
                                                                   B
     Provided that disqualification of a judge shall not be
     required if no other tribunal can be constituted to deal
     with the case or, because of urgent circumstances, failure
     to act could lead to a serious miscarriage of justice."
      6. The simple question is, whether the adjudication by C
the Judge concerned, would cause a reasonable doubt in the
mind of a reasonably informed litigant and fair-minded public
as to his impartiality. Being an institution whose hallmark is
transparency, it is only proper that the Judge discharging high D
and noble duties, at least broadly indicate the reasons for
recusing from the case so that the litigants or the well-meaning
public may not entertain any misunderstanding that the recusal
was for altogether irrelevant reasons like the cases being very
old, involving detailed consideration, decision on several E
questions of law, a situation where the Judge is not happy with
the roster, a Judge getting unduly sensitive about the public
perception of his image, Judge wanting not to cause
displeasure to anybody, Judge always wanting not to decide
any sensitive or controversial issues, etc. Once reasons for F
recusal are indicated, there will not be any room for attributing
any motive for the recusal. To put it differently, it is part of his
duty to be accountable to the Constitution by upholding it
without fear or favour, affection or ill-will. Therefore, I am of the
view that it is the constitutional duty, as reflected in one's oath, G
to be transparent and accountable, and hence, a Judge is
required to indicate reasons for his recusal from a particular
case. This would help to curb the tendency for forum shopping.

                                                                    H
946            SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A        7. In Public Utilities Commission of District of
  Columbia et al. v. Pollak et al. 2, the Supreme Court of United
  States dealt with a question whether in the District of Columbia,
  the Constitution of the United States precludes a street railway
  company from receiving and amplifying radio programmes
B through loudspeakers in its passenger vehicles. Justice
  Frankfurter was always averse to the practice and he was of
  the view that it is not proper. His personal philosophy and his
  stand on the course apparently, were known to the people.
  Even otherwise, he was convinced of his strong position on
C this issue. Therefore, stating so, he recused from participating
  in the case. To quote his words,
              "The judicial process demands that a judge move within
              the framework of relevant legal rules and the covenanted
 D            modes of thought for ascertaining them. He must think
              dispassionately and submerge private feeling on every
              aspect of a case. There is a good deal of shallow talk
              that the judicial robe does not change the man within it.
              It does. The fact is that on the whole judges do lay aside
 E            private views in discharging their judkial functions. This
              is achieved through training, professional habits, self-
              discipline and that fortunate alchemy by which men are
              loyal to the obligation with which they are entrusted. But
              it is also true that reason cannot control the subconscious
 F            influence of feelings of which it is unaware. When there
              is ground for believing that such unconscious feelings
              may operate in the ultimate judgment, or may not unfairly
              lead others to believe they are operating, judges recuse
              themselves. They do not sit in judgment. They do this
G             for a variety of reasons. The guiding consideration is
              that the administration of justice should reasonably
              appear to be disinterested as well as be so in fact.

H     2
          343 U.S. 451 (1952)
     SUPREME COURT ADVOCATES-ON-RECORD                             947
         ASSOCIATION v. U.0.1. [KURIAN, J.]

     This case for me presents such a situation. My feelings       A
     are so strongly engaged as a victim of the practice in
     controversy that I had better not participate in judicial
     judgment upon it. I am explicit as to the reason for my
     non-participation in this case because I have for some
     time been of the view that it is desirable to state why one   B
     takes himself out of a case."
     8. According to Justice Mathew in S. Parthasarathi v.
State of A.P. 3 , in case, the right-minded persons entertain a
feeling that there is any likelihood of bias on the part of the    c
Judge, he must recuse. Mere possibility of such a feeling is
not enough. There must exist circumstances where a
reasonable and fair-minded man would think it probably or
likely that the Judge would be prejudiced against a litigant. To
quote:                                                             D
     "The tests of "real likelihood" and "reasonable suspicion"
     are really inconsistent with each other. We think that the
     reviewing ·authority must make a determination on the .
     basis of the whole evidence before it, whether a
     reasonable man would in the circumstances infer that E
     there is real likelihood of bias. The Court must look at
     the impression which other people have. This follows
     from the principle that Justice must not only be done but
     seen to be done. If right minded persons would think F
     that there is real likelihood of bias on the part of an
     inquiring officer, he must not conduct the inquiry;
     nevertheless, there must be a real likelihood of bias.
     Surmise or conjecture would not be enough. There must
     exist circumstances from which reasonable men would G
     think it probable or likely that the inquiring officer will be
     prejudiced against the delinquent. The Court will not
     inquire whether he was really prejudiced. If a reasonable
'(1974) 3 sec 459
                                                                   H
948            SUPREME COURT REPORTS                    [2015] 13S.C.R.


A             man would think on the basis of the existing
              circumstances that he is likely to be prejudiced, that is
              sufficient to quash the decision [see per Lord Denning,
              H.R. in (Metropolitan Properties Co. (F.G.C.) Ltd. v.
              Lannon and Others, etc. [(1968) 3 WLR 694 at 707]).
B             We should not, however, be understood to deny that the
              Court might with greater propriety apply the "reasonable
              suspicion" test in criminal or in proceedings analogous
              to criminal proceedings."
c            9. There may be situations where the mischievous
      litigants wanting to avoid a Judge may be because he is known
      to them to be very strong and thus making an attempt for forum
      shopping by raising baseless submissions on conflict of
      interest. In the Constitutional Court of South Africa in The
 o    President of the Republic of South Africa etc. v. South
      African Rugby Football Union etc. 4 , has made two very
      relevant observations in this regard:
              "Although it is important that justice must be seen to be
              done, it is equally important that judicial officers discharge
 E            their duty to sit and do not, by acceding too readily to
              suggestions of appearance of bias, encourage parties
              to believe that by seeking the disqualification of a judge,
              they will have their case tried by someone thought to be
              more likely to decide the case in their favour."
 F
              "It needs to be said loudly and clearly that the ground of
              disqualification is a reasonable apprehension that the
              judicial officer will not decide the case impartially or
              without prejudice, rather than that he will decide the case
 G            adversely to one party."
           10. Ultimately, the question is whether a fair-minded and
      reasonably informed person, on correct facts, would
      reasonably entertain a doubt on the impartiality of the Judge.
 H    4
          1999 (4) SA 147.
     SUPREME COURT ADVOCATES-ON-RECORD                              949
         ASSOCIATION v. U.0.1. [KURIAN, J.]

The reasonableness of the apprehension must be assessed A
in the light of the oath of Office he has taken as a Judge to
administer justice without fear or favour, affection or ill-will and
his ability to carry out the oath by reason of his training and
experience whereby he is in a position to disabuse his mind
of any irrelevant personal belief or pre-disposition or B
unwarranted apprehensions of his image in public or difficulty
in deciding a controversial issue particularly when the same is
highly sensitive.
     11. These issues have been succinctly discussed by the         c
Constitutional Court in The President of the Republic of
South Africa (supra), on an application for recusal of four of
the Judges in the Constitutional Court. After elaborately
considering the factual matrix as well as the legal position, the
Court held as follows:-                                             D
     "While litigants have the right to apply for the recusal of
     judicial officers where there is a reasonable
     apprehension that they will not decide a case impartially,
     this does not give them the right to object to their cases
     being heard by particular judicial officers simply because E
     they believe that such persons will be less likely to decide
     the case in their favour, than would other judicial officers
     drawn from a different segment of society. The nature of
     the judicial function involves the performance of difficult F
     and at times unpleasant tasks. Judicial officers are
     nonetheless required to "administer justice to all persons
     alike without fear. favour or prejudice. in accordance with
     the Constitution and the law". To this end they must resist
     all manner of pressure. regardless of where it comes from. G
     This is the constitutional duty common to all judicial
     officers. If they deviate. the independence of the judiciary
     would be undermined. and in turn. the Constitution itself."
                                          (Emphasis supplied)
                                                                    H
950            SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A            12. The above principles are universal in application.
      Impartiality of a Judge is the sine qua non for the integrity
      institution. Transparency in procedure is one of the major
      factors constituting the integrity of the office of a Judge in
      conducting his duties and the functioning of the court. The
 B    litigants would always like to know though they may not have a
      prescribed right to know, as to why a Judge has recused from
      hearing the case or despite request, has not recused to hear
      his case. Reasons are required to be indicated broadly. Of
      course, in case the disclosure of the 'reasons is likely to affect
C     prejudicially any case or cause or interest of someone else,
      the Judge is free to state that on account of personal reasons
      which the Judge does not want to disclose, he has decided to
      recuse himself from hearing the case.

D                              JUDGMENT
         KURIAN, J. 1. Entia Non Sunt Multiplicanda Sine
  Necessitate (Things should not be multiplied without
  necessity). This is the first thought which came to my mind
  after reading the judgments authored by my noble brothers
E Khehar, Chelameswar, Lokur and Goel, JJ., exhaustively
  dealing with the subject. The entire gamut of the issue has
  been dealt with from all possible angles after referring
  extensively to the precedents, academic discourses and
  judgments of various other countries. Though I cannot, in all
F humility, claim to match the level of such masterpieces, it is a
  fact that I too had drafted my judgment. However, in view of the
  principle enunciated above on unnecessary multiplication, I
  decided to undo major portion of what I have done, also for the
  reason that the judgment of this Bench should not be accused
G of Bharati fate (His Holiness Kesavananda Bharati
  Srjpadagalvaru v. State of Kerala and another1 has always
  been criticized on that account).

      1
          (1973) 4 sec 225
 H
       SUPREME COURT ADVOCATES-ON-RECORD                              951
           ASSOCIATION v. U.0.1. [KURIAN, J.]

       2. Leaving all legal jargons and using a language of the A
common man, the core issue before us is the validity of the
Constitution 99th amendment. It is to be tested on the
touchstone of the theory of the basic structure. The amendment
has introduced a new constitutional scheme for appointment
of Judges to the High Courts and the Supreme Court. During B
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 C
the Executive with the participation of the Chief Justice. This
process fell for scrutiny in one of the celebrated decisions of
this Court in Samsher Singh v. State of Punjab and
another2 .
                                                                       D
     3. In Samsher Singh case (supra), a seven-Judge
Bench of this Court, in unmistakable terms, held at paragraph
149 as follows:
        "149 . ... The independence of the Judiciary, which is a
        cardinal principle of the Constitution and has been relied E
        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 F
        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 G
        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.
2   (1974) 2 sec 831
                                                                       H
952       SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A         In this view it is immaterial whether the President or the
          Prime Minister or the Minister for Justice formally decides
          the issue."
                                              (Emphasis supplied)
B      4. This principle, settled by a Bench of seven Judges,
  should have been taken as binding by the Bench dealing with
  the First Judges Case 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
C case and author of the majority vie·w, was a member who
  concurred with the majority in Samsher Singh case (supra)
  and yet there was not even a reference to that judgment in the
  lead judgment! Had there been a proper advertence to
  Sams her Singh case (supra), probably there would not have
D been any need for the Second Judges Case.
         5. 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
 E the Executive, as endorsed in the First Judges Case, called
   for a serious revisit leading to the Second Judges Case.
   Paragraph 85 of the Judgment gives adequate reference to
   the background. To quote:
          "85. Regrettably. there are some intractable problems
 F        concerned with judicial administration starting from the
          initial stage of selection of candidates to man the
          Supreme Court and the High Courts leading to the
          present malaise. Therefore, it has become inevitable that
          effective steps have to be taken to improve or retrieve
 G
          the situation. After taking note of these problems and
          realising the devastating consequences that may flow,
        · one cannot be a silent spectator or an old inveterate
          optimist, looking upon the other constitutional
          functionaries, particularly the executive, in the fond hope
 H
     SUPREME COURT ADVOCATES-ON-RECORD                               953
         ASSOCIATION v. U.0.1. [KURIAN, J.]

     of getting invigorative solutions to make the justice           A
     delivery system more effective and resilient to meet the
     contemporary needs of the society, which hopes, as
     experience shows, have never been successful.
     Therefore, faced with such a piquant situation, it has
     become imperative for us to solve these problems within         B
     the constitutional fabric by interpreting the various
     provisions of the Constitution relating to the functioning
     of the judiciary in the light of the letter and spirit of the
     Constitution."
                                                                     c
                                           (Emphasis supplied)
      6. The nine-Judges 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', holding that appointment of Judges to the D
High Courts and the Supreme Court forms an integral part of
the independence of judiciary, that independence of judiciary
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. Third Judges Case, E
in 1998, is only an explanatory extension of the working of the
principles in the Second Judges Case by institutionalizing the
procedure of appointment, introducing the Collegium.
     7. Thus, the structural supremacy of the judiciary in the       F
constitutionally allotted sphere was restored by the Second
and Third Judges Cases.
      8. Apparently, on account of certain allegedly undeserving
appointments, which in fact affected the image of the judiciary,
the politico Executive started a new campaign demanding              G
reconsideration of the procedure of appointment. It was
clamoured that the system of Judges appointing Judges is
not in the spirit of the Constitution, and hence, the whole
process required a structural alteration, and thus, the              H
954         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     Constitution 991h Amendment whereby the selection is left to a
      third body, the National Judicial Appointments Commission
      (NJAC). The Parliament also passed the National Judicial
      Appointments Commission Act, 2014.• which is only a creature
      of Constitution 991h Amendment. The validity of the Act is also
B     under challenge.
        9. 'What is the big deal about it?', has been the oft made·
  observation of my esteemed brother Khehar, J., the presiding
  Judge, in the thirty days of the hearing of the case, which
c included an unusual two weeks long sitting during the summer
  vacations with the hearing in three different Courts, viz., Court
  Nos. 3, 4 and 6. When it is held, and rightly so, that there is no
  requirement for reconsideration of the Second Judges Case,
  the fate of the case is sealed; there is no need for any further
o deal, big or small. Though I generally agree with the analysis
  and statement of law, in the matter of discussion and
  summarization of the principles on reconsideration of
  judgments made by Lokur, J. at paragraph 263, I would like to
  add one more, as the tenth. Once this Court has addressed
E an issue on a substantial question of law as to t~e 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. None before us could blur
  the graphic picture on the scheme of appointment of Judges
F and its solid structural base in the Constitution portrayed in
  the Second Judges Case. This Bench is bound by the ratio
  that independence of judiciary is part of the basic structure of
  Constitution and that the appointment of Judges to the High
  Courts and the Supreme Court is an integral part of the concept
G of independence of judiciary. And for that simple reason, the
  Constitution 99 1h 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 amendment is
H unconstitutional and I respectfully disagree with the view taken ·
     SUPREME COURT ADVOCATES-ON-RECORD                                955
         ASSOCIATION v. U.0.1. [KURIAN, J.]

by Chelameswar, J. in that regard. Since it is being held by the A
majority that the amendment itself is bad, there is no point in
dealing with the validity of the creature of the amendment, viz.,
the National Judicial Appointments Commission Act, 2014. It
does not exist under law. Why then write the horoscope of a .
stillborn child!                                                  B
      10. However, I would like to provide one more prod.
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:          c
historical, textual, structural, prudential and doctrinal. To quote
from Chapter 1:
        "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         D
      assertions about the controversies, the attitudes, and
      decisions of the period during which the particular
      constitutional provision to be construed was proposed
      and ratified.
                                                                      E
        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 F
      type of constitutional argument in 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 G
      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),
                                                                   H
956         SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A           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."
 B
             11. Professor (Dr.) Upendra Baxi has yet anothertool-
      '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".
 c          12. Structural argument is further explained in Chapter
      6. To quote a few observations:
            "Structural arguments are inferences from the existence
            of constitutional structures and the relationships which
 D          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."
 E
            xxx.                     xxx                            xxx
            "Structural arguments are largely tactless and depend
            on deceptively simple logical moves from the entire
            Constitutional text rather than from one of its parts. At the
 F          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."

 G
            xxx                      xxx                            xxx
            "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
 H
       SUPREME COURT ADVOCATES-ON-RECORD                                957
           ASSOCIATION v. U.0.1. [KURIAN, J.]

       grants of power or particular prohibitions but instead           A
       those which, by setting up structures of a certain kind,
       permit us to draw the requirements of the relationships
       among structures."
       13. Professor Bobbit has also dealt with a sixth approach
                                                                        8
- ethical, which according to him, is seldom used in
constitutional law. 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          c
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. In support, I shall refer to a recent
judgment of the U.S. Supreme Court in State v. Arizona
Independent Redistricting Commission 3 , decided on                     D
29.06.2015. It is an interesting case, quite relevant to our
discussion. U.S. Constitution Article I, Section 4 ,Clause 1
 (Election Clause) reads as follows:
       "The Times, Places and Manner of holding Elections for
       Senators and Representatives, shall be prescribed in             E
       each State by the Legislature thereof; but the Congress
       may at any time by Law make or alter such Regulations,
       except as to the Places of chusing Senators."
      14. Arizona Constitution, Article IV, Part 1 , to the extent      F
relevant, reads as follows:
       "Section 1. (1) Senate; house of representatives;
       reseNation of power to people. The legislative authority
       of the state shall be vested in the legislature, consisting G
       of a senate and a house of representatives, but the
       people reserve the power to propose laws and
       amendments to the constitution and to enact or reject
       such laws and amendments at the polls, independently
3   Manu/USSC/0060/2015
                                                                        H
958         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A          of the legislature; and they also reserve, for use at their
           own option, the power to approve or reject at the polls
           any act, or item, section, or part of any act, of the
           legislature."
            Thus, under Section 1, people are involved in direct
8
      legislation either by the process known as 'initiative' or
      'referendum'. While the initiative allows the electorate to adopt
      positive legislation, referendum is meant as a negative check.
      Popularly, the process of initiative is said to correct 'sins of
c     omission' by the Legislature while the referendum corrects 'sins
      of commission' by the Legislature.
           15. In 2000, Arizona voters adopted Proposition 106, an
   initiative aimed at the problem of gerrymandering. Proposition
   106 amended Arizona's Constitution, removing redistricting
 D authority from the Arizona Legislature and vesting it in an
   independent commission, the Arizona Independent
   Redistricting Commission (AIRC). After the 2010 census, as
   after the 2000 census, the AIRC adopted redistricting maps
   for congressional as well as state legislative districts. The
 E Arizona Legislature challenged the map which the Commission
   adopted in 2012 for congressional districts arguing that the
   AIRC and its map violated the "Elections Clause" of the U.S.
   Constitution.
 F         16. Justice Ginsburg and four other Justices formed the
      majority and held that the independent commission is
      competent to provide for redistricting. To quote the main
      reasoning:
            "The Framers may not have imagined the modern
 G
            initiative process in which the people's legislative powers
            is coextensive with the state legislature's authority, but
            the invention of the initiative was in full harmony with the
            Constitution's conception of the people as the font of
            governmental power."
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                 959
         ASSOCIATION v. U.0.1. [KURIAN, J.]

       17. However, Chief Justice Roberts and three other A
Justices dissented. Chief Justice Roberts pointed out that the
majority position has no basis in the text, structure, or history
of the Constitution and it contradicts precedents from both
Congress and the Sup·reme Court. The Constitution contains
seventeen provisions referring to the 'Legislature' of a State, B
many of which cannot possibly be read to mean 'the people'.
To quote further:
     "The majority largely ignores this evidence, relying
     instead on disconnected observations about direct                 c
     democracy, a contorted interpretation of an irrelevant
     statute, and naked appeals to public policy. Nowhere
     does the majority explain how a constitutional provision
     that vests redistricting authority in "the Legislature"
     permits a State to wholly exclude "the Legislature" from          D
     redistricting. Arizona's Commission might be a "noble
     endeavor" although it does not seem so "independent"
     in practice but the "fact that a given law or procedure is
     efficient. convenient. and useful ... will not save it if it is
     contrary to the Constitution" INS v. Chadha, 462 U.S.             E
     919, 944 (1983)."
     xxx                      xxx                             xxx

     "The constitutional text, structure, history, and precedent F
     establish a straightforward rule: Under the Elections
     Clause, "the Legislature" is a representative body that,
     when it prescribes election regulations, may be required
     to do so within the ordinary lawmaking process, but may
     not be cut out of that process. Put simply, the state G
     legislature need not be exclusive in congressional
     districting, but neither may it be excluded."
     xxx                      xxx                             xxx
                                                                       H
960         SUPREME COURT REPORTS                  [2015] 13S.C.R.


A          "The majority today shows greater concern about
           redistricting practices than about the meaning of the
           Constitution. I recognize the difficulties that arise from
           trying to fashion judicial relief for partisan
           gerrymandering. See Vieth v. Jubelirer, 541 U.S. 267
 B         (2004 ); ante, at 1. But our inability to find a manageable
           standard in that area is no excuse to abandon a standard
           of meaningful interpretation in this area. This Court has
           stressed repeatedly that a law's virtues as a policy
           innovation cannot redeem its inconsistency with the
 c         Constitution."
                                                (Emphasis supplied)
             18. While wholly agreeing with the historic, textual,
      prudential and doctrinal approaches made by Khehar and
 D    Lokur, JJ., my additional stress is on the structural part. The
      minority in Arizona case (supra), to me, is the correct approach
      to be made in this case.
            19. Separation of powers or say distribution of powers,
 E   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
 F 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
 G 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 forthe
     other branches to detail and demonstrate. As held in Sam sher

 H
     SUPREME COURT ADVOCATES-ON-RECORD                             961
         ASSOCIATION v. U.0.1. [KURIAN, J.]

Singh case (supra) and the Second and Third Judges Cases, A
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 B
quake the Constitution. Once the constitutional structure is
shaken, democracy collapses. That is our own painful history
of the Emergency. It is the Parliament, in post-Emergency,
which corrected the constitutional perversions and restored
the supremacy of rule of law which is the cornerstone of our C
Constitution. As guardian of the Constitution, this 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 D
to structured bargaining in 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. According to Justice Roberts, court has no power to
gerrymanderthe Constitution. Contextually, !would say, the E
Parliament has no power to gerrymander the Constitution. The
Constitution ggth amendment impairs the structural distribution
of powers, and hence, it is impermissible.
     20. One word on the consequence. Though elaborate
arguments have been addressed that even if the constitutional      F
amendment is struck. down, the Collegium does not resurrect,
according to me, does not appeal even to common sense.
The ggth 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   G
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

                                                                   H
962         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     parlance and common parlance may be different but there
      cannot be any legal sense of an issue which does not appeal
      to common sense.
          21. All told, all was and is not well. To that extent, I agree
   with Chelameswar, J. that the present Collegium system lacks
 8
   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
 c beeri 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
 o 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, particuiarly the
 E 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
 F 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, I feel that it is not the trusteeship that failed, but the
   frailties of the trustees and the collaborators whi'ch failed the
   system. To me, it is a ~urable situation yet.
 G
          22. 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 such unworthy appointments was
   actually one of the major problems. The Second and Third
 H
     SUPREME COURT ADVOCATES-ON-RECORD                              963
             "ASSOCIATION v. U.0.1.

Judges Case had provided effective tools in the hands of the        A
Executive to prevent such aberrations. Whether 'Joint venture',
as observed by Chelameswar, J., or not, the Executive seldom
effectively used those tools.
     23. Therefore, the Collegium system needs to be
                                                                    8
improved requiring a 'glasnost' and a 'perestroika', and hence
the case needs to be heard further in this regard.
                         JUDGMENT
      ADARSH KUMAR GOEL, J. Introduction 1. Articles
124, 127, 128, 217, 222, 224 and 231 of the Constitution of C
India ('the Constitution') deal with the appointment of the judges
of the Supreme Court and the High Courts ('the Constitutional
courts'), and other allied matters. The Constitution (Ninety-Ninth
Amendment) Act, 2014 ('the Amendment Act') inter alia seeks
to amend these constitutional provisions. The National Judicial D
Appointments Commission Act, 2014 ('the NJAC Act'),
enacted simultaneously, purports to regulate the procedure of
the National Judicial Appointments Commission (NJAC). The
present batch of petitions challenge the constitutional validity
oftheAmendmentAct and the NJACAct.. The Supreme Court E
Advocates-on-Record Association has filed Writ Petition (Civil)
No.13 of 2015, which has been treated as the lead petition.
      2.1 have perused the erudite opinions of my esteemed
brothers. While I respectfully agree with the conclusions arrived   F
at by Khehar J., Lokur J. and Kurian Joseph J., and respectfully
disagree with the view of Chelameswar J. I prefer to record
my own reasons.
     Pre-Amendment Scheme of Appointment and
Transfer·of Judges                                                  G
       . 3. The scheme of appointment and transfer of Judges in
force prior to the amendment is set out in two memoranda
dated 30 1h June, 1999 issued by the Government of India -
first for appointment of Chief Justice of India (CJI) and judges    H
964         SUPREME COURT REPORTS                [2015] 13 S.C.R.


A     of the Supn:~me Court and second for appointment and transfer
      of Chief Justices and the judges of the High Courts.
          3.1 Broadly the procedure laid down in the first
   memorandum is that appointment to the office of the CJI should
   be of the senior most judge of the Supreme Court considered
 8
   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 senior most judge, consultation is made with the
   other judges under Article 124(2). Thereafter, the Law Minister
 c 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
 o matter to the PM, who in turn advises the President. Opinion
   of the CJ 1is formed in consultation with four senior most judges
   and if successor CJI is not in the said four s.enior most judges,
   he is also made part of the collegium. CJI also ascertains the
   views of the senior most judge in the Supreme Court who hails
 E 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
 F 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.
 G          3.2 The procedure laid down in the second
      memorandum deals with the appointments to the Hign Courts
      and tran~fers. The Chief Justices of High Courts are appointed
      from outside. Inter se seniority in a particular High Court is
      considered for appointment as Chief Justice from that High
 H
    SUPREME COURT ADVOCATES-ON-RECORD                              965
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]
                                               .
Court. Initiation of proposal for appointment of Chief Justice     A
of a High Court is by the CJI. The CJI consults two senior most
Judges of the Supreme Court and also ascertains the views
of his senior most 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              B
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 concerned State Government and then submits the
proposal to the PM who advises the President. As soon as           C
appointment is approved by the President, notification is
issued in the Gazette of India. 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     D
two of his senior most 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        E
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 1.8.    F
report) as may be available to the Government and then
forwards the material to the CJI. CJI consults two senior most
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             G
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
                                                                   H
966           SUPREME COURT REPORTS                [2015] 13 S.C.R.


A     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 seisin writing. As soon as the appointment is approved
 B    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.
         3.3 Proposal for transfer is initiated by the CJI. Consent
C  of the Judge concerned is not necessary. The CJI consults
   four senior most 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
 o 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 senior most Judges. The personal facts relating to the
   Judge and his response to the proposal are invariably taken
 E 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.
 F         3.4 The above memoranda were issued by the
      Government of India in the light of unamended Constitutional
      provisions and the judgment of this Court dated 28 1h October,
      1998 in Special Reference No.1of1998 1 (Third Judges'
      case) which in substance reiterates the earlier Nine Judge
 G    Bench judgment in SCA ORA vs. Union of lndia 2 (Second
      Judges' case).
              3.5 Reference may also be made to the unamended
      1
          (1998) 7 sec 739
      2   (1993) 4 sec 441
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                          967
    ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

  constitutional provisions. Article 124 (2) provides that a Judge A
  of the Supreme Court shall be appointed by the President after
  consultation with such Judges of the Supreme Court and the
  High Courts as are deemed necessary. However, the CJI is
  always to be consulted. Article 217 provides that a Judge of
  the High Court shall be appointed by the President after B
. consultation with CJI, Governor of the State and in case of a
  Judge other than the Chief Justice, the Chief Justice of the
  High Court. The question arose before this Court on several
  occasions as to the value of the opinion of the CJI in the process
  of 'consultation'. This Court held that under the scheme of the C
  Constitution a proposal for appointment to the Supren:ie Court
  must emanate from the CJI and for appointment to the High
  Court it should emanate from the Chief J.ustice of the High
  Court and the last word on appointment must rest with the CJl3. D
  This Court noted that by convention proposals for appointments
  were always initiated by the judiciary and appointments were
  made with the concurrence of the CJ I. This view was reiterated
  in Third Judges' case on the basis of which the above
  memoranda were issued by the Government of India.
                                                                                E
         Scheme under the Amendment
        4. Reference may now be made to the impugned
 Amendment. It amends Article 124 and provides that such
 appointments and transfers will now be on the recommendation                   F
 of the NJAC (Section 2). Requirement of mandatory
 consultation with the CJI and consultation with such Judges as
 may be considered necessary has been deleted. Convention
 of initiation of proposal by Chief Justice for the High Courts
 and CJI forthe Supreme Court and other scheme as reflected                     G
 in the memoranda earlier mentioned and as laid down in
 decisions of this Court has been replaced. The amendment

 3 Paras 210, 214, Pandian, J., Paras 361 to 376, Kuldip Singh, J., Para 486,
 Verma, J., Para 505, Punchhi, J. in Second Judges' case
                                                                                H
968         SUPREME COURT REPORTS               [2015] 13 S.C.R.


A inserts a new Article 124A, under which the NJAC is to be
  constituted. It will comprise the CJ I, two senior most judges of
  Supreme Court next to the CJI, Union Law Minister and two
  eminent persons to be nominated by the Committee
  comprising of the PM, the CJI and the Leader of the Opposition
B in the House of the People/Leader of single largest Opposition
  Party in the House of the People. The nomination of one of ·
  these eminent persons is reserved for persons belonging to
  the Scheduled Castes, the Scheduled Tribes, OBC, minorities
  or women. Under the new scheme, for any proposal five out of
C six members must concur. If any two members disagree, no
  proposql can be made.
            5. The Amendment Act also provides for the Parliament
      to enact law to regulate the procedure for appointment of
 o    judges of higher courts and to empower the Commission to
      lay down, by regulations, the procedure for discharge of its
      functions, the manner of selection of its members and such
      other matters, as may be considered necessary (Section 3).
           6. The NJAC Act provides for the appointment of the
 E senior most judge of the Supreme Court as CJI, if considered
   fit to hold the office; and for recommendation for appointment
   as judge of the Supreme Court (Section 5). The Second
   proviso to Section 5(2) of the NJAC Act states that the
 F Commission shall not recommend a person if two members
   of the Commission do not agree. Apart from its other functions,
   the Commission would also recommend appointments of Chief
   Justice and judges of High Courts (Section 6(1 ), (3)).
   Alternatively, the Commission can seek a nomination from the
 G Chief Justice of the High Court for recommending appointment
   as judge of the High Court( Section 6(2)). For appointment of
   judges of High Courts, however, the Commission must seek
   prior consultation with the Chief Justice of the concerned High
   Court, who in turn has to consult two senior most judges of the
 H
    SUPREME COURT ADVOCATES-ON-RECORD                           969
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

said High Court and such other judges and eminent advocates A
as may be specified. (Section 6(4 )). The Commission is also
to seek views of the Governor and Chief Minister of the
concerned State. The power of appointment of officers and
employees of the Commission is with the Central Government.
The Convener of the Commission is the Secretary, Government B
of India, in the Department of Justice. Central Government is
authorised to make rules for carrying out the provisions of the
Act( section 11 ). The Commission is authorised to make
regulations consistent with the Act and the Rules. The Rules
and the Regulations framed under the Act are required to be C
placed before the Parliament, which may modify such rules or
regulations(sections 12, 13).
       7. The statement of objects and reasons of the
 amendment mentions that this Court had interpreted the word D
 "consultation" as "concurrence" in Articles 124(2) and 217 (2)
·of the Constitution (S.2). It further states that after review of
 the constitutional provisions, pronouncements of this Court and ·'
 consultation with eminent jurists, it was felt that a broad based
 National Judicial Appointments Commission should be E
 established for making recommendation for appointment of
 judges of the Supreme Court and the High Courts. The
 Commission will provide meaningful role to the judiciary, the
 executive and eminent persons to present their view points
 and make the participants accountable while also introducing F
 transparency in the selection process (S.3).
     7.1 Though by notification dated 13th April, 2015, the
Amendment and the Act have been brought into force, the
Commission has not been constituted so far, as two eminent       G
persons have not been so far appointed.
     7.2 Key Constitutional unamended provisions and the
provisions of the Amendment and the Act are as follows:-

                                                                 H
970      SUPREME COURT REPORTS                              [2015] 13 S.C.R.


                                           .
A
      Unamended Provisions                     Provisions of the Amend mer
      Article 124 xxxx    xxxx   xxxx          "124A (1)     There shall be a
      (2) Every Judge of the Suprema           Commission to be known as
      Court shall be appointed by the          the      National     Judicial
      President by warrant under his           Appointments      Commission
 B                                             consisting of the follo'Ning,
      hand      and       seal    after
      consultation with such of the            namely:-
      Judges of the Supreme Court              (a)the Chief Justice of India,
      and of the High Courts in the            Chairperson, ex officio;
      States as the President may
                                               (b two other senior Judges of
      deem necessary for the
c     purpose and shall hold office
                                               the Supreme Court next to
                                               the Chief Justice of India -
      until he attains the age of sixty~
                                               Members, ex officio;
      five years.
                                               (c)the Union Minister in
      Provided that in the case of
                                               charge of Law and Justice -
      appointment of a Judge other
                                               Member, ex officio;
      than the Chief Justice, the
 D    Chief Justice of India shall             (d)two eminent persons to be
      always be consulted:                     nominated by the committee
                                               consisting of the Prime
                                               Minister, the Chief Justice of
      Article 217. Appointment and             India and the Leader of
      conditions of the office of a            Opposition ·in the House of
 E    Judge of a High Court - Every            the People or where there is
      Judge of a High Court shall be           no such Leader of Opposition,
      appointed by the .President by           then, the Leader . of single
      warrant under his hand and               largest Opposition Party in
      seal after consultation with             the House of the People -
      the Chief Justice of India, the          Members:
      Governor of the State, and, in
 F    the case of appointment of a
                                               Provided that one of the
                                               eminent person shall be
      Judge other than the Chief
                                               nominated from amongst the
      Justice, the Chief Justice of
                                               persons belonging to the
      the High court, and shall hold
                                               Scheduled     Castes,    the
      office, in the case of an
                                               Scheduled    Tribes,  Other
      additional or acting Judge, as
 G    provided in Article 224, and in          Backwatd Classes, Minorities
                                               or Woman:
      any other case, until he attains
      the age of sixty two years:              Provided further that an
                                               eminent person shall be
                                               nominated for a period of
                                               three years and shall not be
 H                                             eligible for renorrination.
 SUPREME COURT ADVOCATES-ON-RECORD                       971
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

                                                         A
                     (2)   f:Jo act or proceedings of
                    the .      National       Judicial
                    Appointments' Commission shall
                    be questioned or be invalidated
                    merely on the ground of the
                    existence of any vacancy or          B
                    defect in the constitution of the
                    Commission.
                    1248. It shall be the duty of the
                    National Judicial Appointments
                    Commission t<>-
                    (a)    recommend persons for
                                                         c
                    appointment as Chief Justice of
                    India, Judges of the Supreme
                    Court, Chief Justices of High
                    Courts and other Judges of High
                    Courts;
                                                         D
                    (b)    recommend transfer of
                    Chief Justices and other Judges
                    of High Courts from one High
                    Court to any other High Court;
                    and
                    (c)     ensure that the person       E
                    recommended is of ability and
                    integrity.
                    124C. Parliament may, by law,
                    regulate the procedure for the
                    appointment of Chief Justice of
                                                         F
                    India and other Judges of the
                    Supreme      Court and Chief               •
                    Justices and other Judges of
                    High Courts and empower the
                    Commission to lay down by
                    regulations the procedure for the
                    discharge of its functions, the      G
                    manner of selection of persons
                    for appointment and such other
                    matters as may be considered
                    necessary by it.".

                                                         H
972         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


A          · 7 .3 The relevant constitutional and statutory provisions
      are set out separately in an Appendix to this opinion.
           Rival Contentions
          8. The Amendment Act is challenged as ultra vires, inter
 B a/ia for being beyond the competence of the Parliament as it
    alters and destroys the basic structure of the Constitution, as
    embodied in the independence of judiciary in the context of
    appointment of judges of the higher judiciary. The petitioners
    submit that the power of the Parliament to amend the
 C Constitution under Article 368 is limited and does not extend.
    to altering or destroying the basic structure or basic features
    of the Constitution. The independence of the judiciary is a
    constitutional concept, regarded as a basic feature of the
  · Constitution, and includes insulating the judiciary from
 D executive or legislative control, primacy of higher judiciary in
    the matter of appointment of judges to the High Courts and the
    Supreme Court, non-amendability of conditions of service of
    judges of the Supreme Court and the High Court to their
    disadvantage. The Amendment takes away the primacy of
 E the collective opinion of the CJI and the senior most Supreme
    Court judges by stalling an appointment unanimously proposed
    by them if the same is not concurred by two non-judge
    Commission members [second proviso to Section 5(2) and
 F Section 6(6)]. This endows unchecked veto power to non-
    judges in appointing judges to higher courts, compromising
    the judiciary's independence. The Amendment also dilutes the
    judiciary's constitutionally-conferred power by granting
    unbridled power on the Parliament to control, by ordinary law,
 G the manner of selection of a person for appointment to higher
    judiciary, which also damages the independence of judiciary.
    This power enables the Parliament to substitute judiciary's
    primacy with that of the executive. If allowed to stand, the
    provision could easily be further amended thereby denying any
 H
    SUPREME COURT ADVOCATES-ON-RECORD                               973
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

effective role for the senior most judges of the higher judiciary A
in appointment of judges of the Supreme Court and the High
Courts. Thus, the Amendment does not envisage predominant
voice for the judges and makes the executive element in
appointment of judges dominant which alters and damages
the basic structure of the Constitution. It is also contended B
that the NJAC Act was void as it was passed by the Parliament
before theAmendmentAct became operative.
     9. Thus, the contentions on behalf of the petitioners are:-
     (i) Constitution is supreme and powers of all organs are       C
         defined and controlled thereunder;
     (ii) Amending power of Parliament is limited by the
          concept of basic structure as judicially interpreted;
     (iii) Final interpreter of the Constitution and the scope of   D
           powers thereunder is this Court;
      (iv) Independence of judiciary and separation of powers
          are part of basic structure;
     (v) Primacy of judiciary in appointment of judges is crucial   E
         part of independence of judiciary and separation of
         powers and thus part of basic structure;
      (vi) Role of executive and legislature in appointment of
          judges beif:lg kept at minimum was also part of basic     F
          structure;
      (vii) The composition of the Commission in the impugned
           Amendment severally damages the basic structure
           of the Constitution by destroying primacy of judiciary
           in appointment of judges and giving controlling role G
           to the executive and legislature in such appointments;
      (viii) The impugned amendment enables stalling of
           appointment of judges proposed by the judiciary
           unless candidates suggested by the executive are         H
974        SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A            appointed thereby compromising independence of
             judiciary;
          (ix) The impugned amendment expands the power of
              amendment by delegating crucial issues of
              appointment of judges to Parliament which is against
 B
              the basic structure of the Constitution;
          (x) The composition of the Commission will shake
              confidence of people in Judiciary if Executive or
              Legislature have dominant voice; and
 c        (xi) The impugned Act is beyond legislative competence
               of the Parliament.
         10. The Joint Secretary, Department of Justice has filed
   a counter affid~vit on behalf of the Union of India (UOI),
 D defending the Amendment and the Act. UOl's case is that
   independence of judiciary is only post appointment.
   Appointment is an executive act and the judiciary's
   independence has no relevance with the executive act of
   appointment. UOI submits that judicial independence is to be
 E coupled with checks and balances and that a contextual
   reading of Articles 124(2) and 217(1) with the Constituent
   Assembly Debates (CAD) makes it evident that there is no
   primacy of the CJI in appointment of judges. Consultation with
   the CJI was only by way of a check on executive, which had
 F the final say in the matter. Further, provision for consultation
   with other judges does not justify creation of a collegium. UOl's '
   submission refers to impeachment provisions for removal of
   judges (Article 124(4 ); Parliament's power to regulate
   procedure for presentation of an address and investigation
 G and proof of misbehaviour or incapacity of a judge (Article
   124(5)) and to determine salary of judges and provisions
   pertaining to other aspects of judicial functioning conferring
   power on Parliament to legislate (Article .125). UOI submits
 H that the decisions of this Court in Second Judges' case and
    SUPREME COURT ADVOCATES-ON-RECORD                                975
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

Third Judges' case laying down primacy of the judiciary in           A
the context of consultative process under Articles 124(1) and
217(1) have no relevance to test the validity of the impugned
Ninety Ninth Amendment by which provisions of Artides 124(2)
and 217(1) stand amended. However, it is contended that the
view taken in the said judgments that the judiciary has primacy      B
in appointment is erroneous, and needs to be revisited. In any
case, the UOI contends that the primacy of judiciary in the
matter of appointment of judges of the higher judiciary has no
connection with independence of judiciary and is not the basic
feature of the Constitution. In several countries, such as           C
Australia, independence of judiciary exists without primacy of
the judiciary in appointments of judges to the higher judiciary.
UOI submits that the power conferred on Parliament to enact
law to regulate the procedure of the NJAC or to modify the           D
regulations framed by the NJAC is valid. The NJAC is
accountable to Parliament in framing regulations. The
presence of Law Minister as a member of the NJAC ensures
accountability to public. The presence of two eminent persons
is a check and balance on the functioning of other members.          E
Diversity of members will ensure greater accountability of each
member to the other. This will ensure greater public confidence
in the functioning of the judiciary. The NJAC will fall unde.r the
purview of Right to Information Act, 2005 which will ensure
transparency. Even if the Amendment was struck down, original        F
provisions could not be revived as doctrine of revival does not
apply to Constitutional Amendments. The issue was raised in
Property Owners' Association vs. State of Maharashtra 4
with respect to Article 31 C of the Constitution which is pending
before a nine-judge Bench. It is also submitted that the writ        G
petition is pre-mature as the new system has not been given a
chance to operate and no rights have been affected.
      11. The contentions on behalf of the respondents can be
• (1996) 4 sec 49
                                                                     H
976        SUPREME COURT REPORTS                     [2015] 13 S.C.R.


A     summed up as follows:-
           (a) Power of appointment of judges rests with the
              executive and role of judiciary is confined to
              consultation which may or may not be accepted by
              the executive;
 B
           (b) Primacy of judiciary in appointments was recognised
              by erroneous interpretation of unamended provisions
              of the Constitution and by way of amendment such
              interpretation has been corrected and thus there is no
 c            violation of basic structure. Alternatively larger Bench
              be constituted to correct the earlier interpretation;
           (c) Primacy of judiciary in appointments was not
              inalienable and in changed situation, in the light of
              experiences gained, the primacy could be done away
 D
              with or modified;
           (d) Wisdom of constituent body in making a choice was
              not open to judicial review; .
           (e) Taking the Constitution as a whole, value of
 E
              independence of judiciary could be balanced with other
              constitutional values of democracy, accountability and
              checks and balances;
           (f) Power of amendment was plenary and could not be
 F             questioned unless it results in destruction of a pillar of
               Constitution;
           (g) Even with power being with executive or power of
              veto being with executive, independence of judiciary
              could survive so long as there was protection of tenure
 G
              and service conditions of judges;
           (h)Accountability and transparency in functioning of every
              constitutional organ was part of democracy in which
              case exclusive power of appointment of judges with
 H
    SUPREME COURT ADVOCATES-ON-RECORD                            977
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

        the judiciary was undemocratic;                          A
     (i) The impugned amendment retains primacy by having
         three out of six members, out of which two could stop
         an undesirable appointment. The executive did not
         have predominant role as two eminent persons were
                                                                 8
         appointed by a committee having the Prime Minister,
         the CJI and the Leader of Opposition thereby role of
         Prime Minister being limited. Law Minister and
         eminent persons as members ensured giving of
         relevant feedback and ensuring accountability and       c
         transparency.;
     U) The impugned amendment in conferring power on
        Parliament and the Central Government in procedural
        matters did not violate independence of judiciary; and
                                                                 D
      (k) The impugned Act was within legislative competence
         of Parliament.
      12. Shri Fali S. Nari man, learned senior counsel led the
arguments on behalf of the petitioners in the lead petition
followed by S/Shri Ram Jethmalani, Anil B. Divan, K.N. Bhat, E
Arvind Datar, Dr. Rajeev Dhawan, learned senior counsel and
other counsel appearing either in person or as intervenor or
otherwise. They have been opposed by learned Attorney
General Shri Mukul Rohtagi, learned Solicitor General Shri
Ranjit Kumar and S/Shri K. Parasaran, Soli J. Sorabjee, K.K. F
Venugopal, Harish N. Salve, T.R.Andhyarujina, Dushyant Dave
learned senior counsel and other learned counsel for various
States and intervenors or otherwise. I record my gratitude to
learned counsel for their painstaking assistance to the Court
with their exceptional ability and skill for deciding important G
issues arising for consideration. Their contentions will be
referred to at appropriate stage to the extent necessary.
     13. While generally learned counsel on either side have
                                                                 H
978         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     taken identical stand, Shri Venugopal, appearing for the State
      of M.P., which is otherwise supporting the amendment, in his
      alternative submission, filed on 141h July, 2015 by way of
      additional propositions, inter alia submitted as follows:
           "3 Looking at the scheme of the 99'h Amendment and
 B
           the National Judicial Commission Appointments Act,
           2014 (NJACAct), the scheme evolved provides for the
           constitution of a 6 member Commission and under
           Article 124-C, for the procedure to be provided under a
c          law made by the Parliament. The NJA C Act has certain
           salient features that includes under the second proviso
           to Section 5(2), a provision in the nature of a 'veto', as
           no appointment can be made if two members of the
           Commission do not agree to that appointment. This
 D         provision is challenged by the Petitioners as the 99 1h
           Amendment Act does not make any such provision and
           to provide for a 'veto', as it were, by two out of six
           members, is stated to be ultra vires the Amendment
           Act or, in any event, not a matter of procedure.
 E
           4 This submission appears to be correct for the following
           reasons:
           a. The principle of 'primacy' of the judiciary, which is a
           part ofjudicial independence, must necessarily be read
 F         into the NJAC Act as well. Any Act providing for
           procedure would be ultra vires the Constitutional
           provision if it does not satisfy the requirement of
           primacy. The 'veto' provision, therefore, is clearly
           antithetical to the concept of 'primacy' and must be
 G         struck down as being ultra vires the amendment.
           xxxxxx         xxxxxx          xxxxx
           6. Irrespective of the nine Judges' Bench judgment,
           certain concepts in law exist in the matter of the
 H
 SUPREME COURT ADVOCATES-ON-RECORD                         979
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

 functioning of the judiciary in a democracy. The A
 existence of an independent judiciary is a sine qua non
 for democracy to flourish. Here, we are concerned with
  the issue of appointment of judges to the higher
 judiciary. Whether, the power is executive or not, it
  cannot be gainsaid that it impinges on the B
  independence of the judiciary in case the executive
  were to exclusively have the power to appoint the
 judges. Such a system of appointment could result in
  brining into existence judges who are subservient to .
  the will of the Government, which would be a major C
  litigant in the Courts. Independence therefore, would
  stand affected.
  7. If the 'veto' is invalid, then the common law principle
 of majority would apply. The Chief Justice of India and D
 the two other judges have expertise in the matter of
 selection ofjudges to the higherjudiciary and also have
 full knowledge of the functioning of the potential
 candidates. However, the unanimous view of the three
 judges would not carry the day if opposed by the other E
 three members. In every other case, where all six are
 in agreement on a candidate, no problem in making
  the right decision would arise. The real question,
  therefore, is what would be the position if a deadlock
 arises when the unanimous decision of the three judges F
  is opposed by the other three members. Needless to
  state, that if the three judges are not ad idem on a
  candidate, no 'issue of primacy' would arise and the
  majority would prevail.
                                                             G
  8. It is true that the nine judges case can no more hold
  the field for the purpose of nullifying the ggth
  amendment, which, obviously, is inconsistent with the
  Collegium system evolved by the nine judges
                                                            H
980   SUPREME COURT REPORTS                    [2015] 13 S.C.R.


A     judgment. But that does not mean that the principles
      enunciated by the said judgment could not be relied
       upon as being a juristic principle that would be
      applicable in such cases. In other words, these
      principles can be said to be relevant for all time to come
 B    because of the following reasons:
            a. The power of appointment can be used to affect
              or subvert the independence of the appointees
               when functioning as members of the superior
c             judiciary.
            b. A system of appointment where the executive
               voice predominates would affect such
               independence.
            c. If however, the voice of the Chief Justice of India,
 D
                representing the judiciary prevails, even in a
                system where the executive or anyone else has
                a minor part to play, this will nevertheless not
                affect the independence and on the other hand
 E              would sub-serve independence. In other words,
                primacy in the matter of appointment has to be
                with the judiciary.
      xxxxx      xxxxx        xxxxx
 F    11. These are general principles enunciated by the
      Supreme Court based on the concept of independence
      of the judiciary. That concept is all pervasive and
      whenever that situation arises, the Court would, in the
      same manner as it did in the Second Judges' case ,
 G    interpret the present Article 124-A. This would mean
      that the principle of independence underlying the
      appointment of judges of the higher judiciary would
      require that the views of the three judges of the
      Commission, speaking with a single voice would have
 H
 SUPREME COURT ADVOCATES-ON-RECORD                        981
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

 primacy. This would be the result not because the A
 judgment in the Second Judges' case would bind the
 Court but because the concept of judicial
 independence applicable in the case of appointment
 of judges to the higher judiciary would be applicable
  wherever and whenever a situation arose where no B
  explicit provision in the Constitution gave primacy to
  the judicial wing. In such cases, the validity of the
  constitutional provision would be upheld and legitimized
  exactly on the same basis as the cqncept was evolved
  in the Second Judges' case. As a result, the 99th C
  amendment to the Constitution, would always be
  deemed to have been a valid exercise of Constituent
  power. In the absence of the existence of a 'veto', if the
  three Judges speak with a single voice, their decision D
  would prevail. The President would then have to issue
  the warrant of appointment.
  xx~xx    xxxxx        xxxxx
  16.     Apart from the above, petitioners have also
  contended that the term 'eminent person' is too broad E
  and that the appointment of eminent persons who have
  nothing to do with the law and who are not aware of the
  working of the judicial system would result in a violation
  of the principle of judicial independence. 'The rule of F
  purposive interpretation' can be applied to this provision.
  By application of this rule, the Court can interpret
  eminent persons to mean only 'persons trained in law'
  or 'eminent jurists' (see in this regard, P. Vaikunta
  Shenoy v. P. Hari Sharma (2007) 14 SCC 29 7@ Paras G
  11-13 and VG Shukla v. State (DelhiAmn.) (1980 Supp.
  sec 249@ para 28)"
  The Issue
  14. There being no dispute that a Constitutional         H
982         SUPREME COURT REPORTS                [2015] 13 S.C.R.


A Amendment can be valid only if it is consistent with the basic
  structure of the Constitution, the core issue for consideration
  is whether the impugned amendment alters or damages the
  said basic structure and is void on that ground. According to
  the petitioners the primacy of judiciary in appointment of judges
B and absence of interference by the Executive therein is by itself
  a part of basic feature of the Constitution being integral part of
  independence of judiciary and separation of judiciary from the
  Executive. According to the respondents primacy of judiciary
  in appointment of judges is not part of independence of
C judiciary. Even when appointments are made by Executive,
  independence of judiciary is not affected. Alternatively in the
  amended scheme, primacy of judiciary is retained and
  independence of judiciary is strengthened. The amendment
  promotes transparency and accountability and is a part of
0
  needed reform without affecting the basic structure of the
  Constitution. To determine the question one has to look at the
  concept of basic feature which controls the amending power
  of the Parliament. This understanding will lead to the decision
E whether primacy of judiciary and absence of Executive
  interference in appointment of judges is part of such basic
  structure.
           Discussion
           A. Concept of Basic Features - As limitation on
 F
              Power of the Parliament to amend the
              Constitution
          15. Article 368 of the Constitution provides for power to
      amend the Constitution and procedure therefor. In
G Kesavananda Bharti vs. State of Kera/a 5 (Kesavananda
  Bharti case), the scope of amending power was gone into by
  a bench of 13-Judges. In the concluding para signed by 9-
  Judges it was held that "Article 368 does not enable
      '1973 (4) sec 225
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                          983
    ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

Parliament to alter the basic structure or framework of the A
Constitution". The conclusion was based on interpretation of
the word 'amendment'. It was observed that the word was
capable of wide as well as narrow meaning and while wide
meaning was to be preferred but consistent with the intention
of Constitution makers and the context. It could not be given B
too wide meaning so as to permit damage to the constitutional
values which depict the identity of the Constitution. 6
      15.1 The basic structure or framework was not
exhaustively defined but some of the features of the                            c
Constitution were held to be the illustrations of the basic
structure by the majority of seven Judges- Sikri CJ, Shelat,
Grover, Hegde, Mukherjea, Reddy and Khanna, JJ. Illustrations
by them include Supremacy of the Constitution, democratic
form of Government, secular character of the Constitution,                      D
separation of powers between the Judiciary, the Executive and
the Legislature, federal character of the Constitution, dignity
of the individual secured by basic rights in accordance with
Parts Ill and IV, unity and integrity of the nation. 7
       15.2 It was held that the power of the Parliament to amend E
the Constitution was limited by the requirement that basic
foundation and structure of the Constitution remains the same.
 Power of amendment was envisaged to meet the challenge of
 the problems which may arise in the course of socio economic F
 progress of the country but it was never contemplated that in
 exercise of the power of amendment certain inalienable
features of the Constitution will be changed. The court referred
to various decisions in different jurisdictions dealing with the
.scope of amendment of the Constitution. Sikri, CJ. observed G
 that having regard to importance of freedom of the individual
 and the importance of economic, social and political justice,
6 (Para 284, Sikri, CJ.); (Para 583, Shela! & Grover, JJ.); (Para 651 Hegde &

Mukherjea, JJ.); (Para 1162, Reddy, J.) and (Para 1426, Khanna, J.)
7
  Paras 292, 582, 666, 1159, 1426                                               H
984         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     mentioned in the preamble the word "amendment" could not
      be read in its widest sense. The Fundamental Rights could
      not be amended out of existence. Fundamental features of
      secularism, democracy and freedom of individual should
      always subsist. The expression "amendment" had a limited
B     meaning. Otherwise a political party with two-third majority
      could so amend the Constitution as to debar any other party
      from functioning, establish totalitarianism and enslave the
      people and thereafter make the Constitution unamendable.
      Thus, the appeal to democratic principles to justify absolute
C     amending power, if accepted, could damage the very
      democratic principles. Thus, the amendment m~ant addition
      or change within the broad contours of the preamble of the
      Constitution. The Parliament could adjust the Fundamental
      Rights to secure the objectives of the Directive Principles while
 0
      maintaining freedom and dignity of every citizen. The dignity
      and freedom of the individual was held to be of supreme
      importance. The basic features were held to be discernible
      not only from the preamble but .the whole scheme of the
 E    Constitution. Shelat &Grover, JJ. observed that the Constitution
      makers did not desire that the citizens will not enjoy the basic
      freedoms, equality, freedom of religion etc. so that dignity of
      an individual is maintained. The economic and social changes
      were to be made without taking away dignity of the individual.
 F    The vital provisions of Part Ill or Part IV could not be cut out or
      denuded of their identity. Hegde and Mukherjea, JJ. observed
      that the power of amendment was conferred on the Parliament.
      People as such were not associated with the amendment. The
      Constitution was given by the people to themselves. The voice.
 G    of the members of the Constituent Assembly was of the voice
      of the people. Two-third members of the two Houses of
      Parliament did not necessarily represent even the majority of
      the people. Thus, the two-third members of the two Houses of
      Parliament could not speak on behalf of the entire people of
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                   985
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

the country8 • Even best of the Government was not averse to            A
have more and more powers to carry out their plans and
programmes which they believe to be in public interest, but
freedom once lost could hardly be regained. Every
encroachment of freedom sets a pattern for further
encroachment. The development was envisaged without                     B
destruction of individual freedoms. Reddy, J. observed if any
of the essential features was altered, the Constitutional
structure could not maintain its identity. There could be no
justice, liberty or equality without democracy. There could be
no democracy without justice, equality and liberty. The structure       C
of the Constitution was an organic instrument. The core
commitment to social revolution lies in Parts Ill and IV. They
are the conscience of the Constitution. They had roots deep
in the struggle for independence. They were included with the           D
hope that one day victory of people would bloom in India. They
connect India's future, present and past. The demand for
Fundamental Rights had its inspiration in Magna Carta, the
 English Bill of Rights, the French Revolution, the American Bill
of Rights incorporated in the US Constitution. Referring to the         E
statement of Dr. Ambedkar, that Article 32 was the soul of the
Constitution and the very heart of it, it was observed that such
an article could not be abrogated by an amendment. Kha~na,
J. observed that as a result of amendment, the old Constitution
could not be done away with. Basic structure of framework               F
 must be retained. It was not permissible to touch the foundation
or to alter the basic institutional pattern. What can be amended
 is the existing Constitution and what must emerge as a result
of amendment is not a new and different Constitution but the
 existing Constitution. What was contemplated by amendment              G
was varying of the Constitution here and there and not
 elimination of its basic structure resulting in losing its identity.
      15.3 One of the questions considered was validity of
' Paras 652 and 653
                                                                        H
986           SUPREME COURT REPORTS                              [2015] 13 S.C.R.


A     Section 3 of the Twenty-Fifth Amendment Act, 1971 adding
      Article 31-C as follows:-
             "416. Section 3 of the twenty-fifth amendment, reads thus:
                 3. After Article 31 B of the Constitution, the following
B                article shall be inserted, namely:
                 31. C. Notwithstanding anything contained in Article
                 13, no law giving effect to the policy of the State
                 towards securing the principles specified in Clause
                 (b) or Clause (c) of Article 39 shall be deemed to be
c                void on the ground that it is inconsistent with, or takes
                 away or abridges any of the rights conferred by Article
                 14, Article 19 or Article 31; and no law containing a
                 declaration that it is for giving effect to such policy
                 shall be called in question in any court on the ground
 D
                 that it does not give effect to such policy:
             "Provided that where such law is made by the legislature
             of a State, the provisions of this article shall nof apply
             thereto unless such law, having been reserved for the
 E           consideration of the President, has received his assent."
              The highlighted part was held by majority to be
      unconstitutional, for granting immunity from challenge thereby
      affecting the basic feature of judicial review9
 F    9 Para 1535 A. (Khanna, J.) In my opinion, the second part of Article 31-C is

      liable to be quashed on the following grounds:
      (1) It gives a carte blanche to the Legislature to make any law violative of
      Articles 14, 19 and 31 and make it immune from attack by inserting the
      requisite declaration. Article 31-C taken along· with its second part gives in
      effect the power to the Legislature, including a State Legislature, to amend
 G    the Constitution.
      (2) The Legislature has been made the final authority to decide as to
      whether the law made by it is for the objec!S mentioned in Article 31-C. The
      vice of second part of Article 31-C lies in the fact that even if the law enacted
      is not for the object mentioned in Article 31-C, the declaration made by the
      Legislature precludes a party from showing that the law is not for that
 H    object and prevents a court from going into the question as to whether the
     SUPREME COURT ADVOCATES-ON-RECORD                                                 987
    ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

       15.4 The scope of amending power was again A
considered by this Court in the cours(lof challenge to Thirty-
Ninth Amendment which debarred any challenge to the election
of PM and Speaker of the Lok Sabha in Indira Nehru Gandhi
vs. Raj Narain 10 • Chandrachud, J. (later the Chief Justice)
observed that it is not that only certain named features of the B
Constitution are part of its basic structure. The features named
by individual judges in Kesavananda Bharti case were merely
illustrations and were not intended to be exhaustive. Having
regard to its place in the scheme of the Constitution, its object
and purpose and the consequences of its denial on the integrity C
of the Constitution, a feature of the Constitution could be held
to be a basic feature 11 • He added that undoubted unamendable
basic features are:-
       "(i) India is a Sovereign Democratic Republic; (ii) D
       Equality of status and opportunity shall be secured to
       all its citizens; (iii) The State shall have no religion of
       its own and all persons shall be equally entitled to
law enacted is really for that object. The exclusion by the Legislature, including
a State Legislature, of even that limited judicial review strikes at the basic         E
structure of the Constitution. The second.part of Article 31-C goes beyond the
permissible limit of what constitutes amendment under Article 368.The
second part of Article 31-C can be severed from the remaining part of
Article 31-C and its invalidity would not affect the validity of the remaining part.
I would, therefore, strike down the following words in Article 31-C:
                                                                                       F
"and no law containing a declaration that it is for giving effect to such policy
shall be called in question in any court on the ground that it does not give
effect to such policy."
10 (1975) supp.   sec 1
11 Para 663 - For determining whether a particular feature of the Constitution

is a part of its basic structure, one has perforce to examine in each individual       G
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. But it is
needless for the purpose of these appeals to ransack every nook and cranny
of the Constitution to discover the bricks of the basic structure. Those that are
enumerated in the majority judgments are massive enough to cover the
requirements of Shri Shanti Bhushan's challenge.                                       H
988          SUPREME COURT REPORTS                          [2015] 13S.C.R.


A           freedom of conscience and the right freely to profess,
            practise and propagate religion and that (iv) the Nation
            shall be governed by a Government of laws not of men".
        391h Amendment debarring challenge to election inter alia
  of PM was struck down as being against the basic features of
8
  the Constitution. 12 Article 329A, Clause (4) (added by way of
  Amendment) provided that election law will not apply to a
  person holding office of PM and Speaker and election of such
  persons shall not be deemed to be void under any such law. It
c was held that the democracy was the part of the basic structure
  which contemplated free and fair election. Without there being
  machinery for resolving an election dispute, the elections could
  not be free and fair which in turn will damage the basic feature
  of democracy. In absence of any law to deal with validity of
o election of PM, the basic feature of rule of law will be violated.
  Referring to the writing of Madison in "The Federalist'; it was
  observed that all powers of the Government could not be vested
  in one Department. No Constitution could survive without
  adherence to checks and balances. "Just as courts ought not
E to enter into problems entwined in the "political thicket'',
  Parliament must also respect the preserve of the courts 13."
            15.5. Validity of Forty-Second Amendment was
      considered by this Court in Minerva Mills Ltd. vs. Union of
 F    /ndia 14 • The court considered the validity of Sections 4 and 55
      of the 42"d Amendment Act. By Section 4, Article 31 C was
      sought to be amended to provide that a law giving effect to
      Part IV of the Constitution could not be deemed to be void for
      being inconsistent with Articles 14, 19 and 31 and could not
 G    be challenged on the ground that the said law was not for giving
      12
           Khanna and Mathew, JJ held that free and fair election was essential for
      democracy and was part of basic structure. Chandrachud, J. held that right
      of equality was part of basic structure which was violated. Ray, CJ held that
      rule of law was basic structure of the Constitution which was violated.
       13
          Para 688
        • (1980) 3 sec 625
       1
 H
      SUPREME COURT ADVOCATES-ON-RECORD                            989
     ASSOCIATION v. U.0.1. [ADARSH·KUMAR GOEL, J.]

effect to the said Part IV. By Section 55, it was provided that    A
no amendment of the Constitution could be challenged on any
ground and that there will be no limitation on the constituent
power of Parliament to amend the Constitution. This Court
observed that the Constitution had conferred limited amending
power on the Parliament which itself was a basic feature of        B
the Constitution. The Parliament could not expand its amending
power so as to destroy the said basic feature of the
Constitution. The limited power could not be converted into
unlimited one. Clauses 4 and 5 of Article 368 added by Forty-
Second Amendment were struck down as violative of basic            C
structure of the Constitution. It was observed that the balance
between Part Ill and Part IV of the Constitution was basic
feature of the Constitution 15 • Limited amending power of
Parliament was also part of basic structure. 16 It was also held   D
that judicial review to determine whether a law was to give
effect to Part IV could not be excluded as judicial review was
part of the basic structure. 17 It was also observed that though
there is no rigid separation of powers in three departments of
the State - the Executive, the Legislature and the Judiciary,      E
there is broad demarcation. Fine balance between the three
organs could not be upset as it will destroy the fundamental
premise of a democratic government. The judiciary is entrusted
with the duty to keep the Executive and the Legislature within
the limits of power conferred on them which is also a b·asic       F
feature of the Constitution. 18
      15.6. In L. Chandra Kumar vs. Union of lndia 19, part
of Article 323 -A(2)(d) and 323 - B (3)(d) to the extent it
excluded the jurisdiction of High Courts in respect of specified
matters for which jurisdiction was conferred on Tribunals was      G
15 Para 56
1
 • Paras 17 and 88
17 Paras 12, 88
1• Paras 21, 86 and 87

" (1997) 3 sec 251
                                                                   H
.990          SUPREME COURT REPORTS                         [2015] 13 S.C.R.


 A struck down as violative of basic structure. Power of judicial
   review conferred on this Court and the High Courts was held
   to be integral to constitutional scheme in view of earlier
   decisions and conferment of power of judicial review on another
   judicial body could not justify exclusion of jurisdiction of the
 B High Courts. 20
             15. 7. In l.R. Coelho vs. State of Tamil Nadu 21, bench
    of nine Judges, considered the scope of judicial review of
    inclusion of a law in Ninth Schedule by a constitutional
 C amendment thereby giving immunity from challenge in view of
    Article 31 B of the Constitution. It was held that every such
    amendment shall have to be tested on the touchstone of
    essential features of the Constitution which included those
    reflected in Articles 14, 19 and 21 and principles underlying
 o them. Such amendments are not immune from the attack on
    the ground they destroy or damage the basic structure. The
    Court will apply the 'rights test' and the 'essence of the rights'
    test taking synoptic view of Articles in Part Ill of the Constitution.
    It was further observed that the Court has to be guided by the
 E ·'impact test' in determining whether a basic feature was
    violated. The Court will first determine if there is violation of
    rights in Part Ill by impugned Amendment, its impact on the
    basic structure of the Constitution and the consequence of
    invalidation of such Amendment22 •
  F
             15.8 In M. Nagaraj vs. Union of lndia 23 , Eighty-Fifth
   and allied amendments to the Constitution were called in
   question on the ground of violation of right of equality as a
   basic feature of the Constitution. While considering the
 G challenge, it was observed that the Constitution sets out
       20
           Judicial review by constitutional courts was held to be part of basic
       structure. (Paras 77, 78)
       21
          (2001) 2 sec 1
       22 Fundamental Rights under Articles 14, 15, 19 and 21 were held to be part

       of basic structure. (Paras 109 and 147)
  H    ,, (2006) s sec 212.
       SUPREME COURT ADVOCATES-ON-RECORD                             991
      ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

principles for an expanding future. This called for a purposive      A
approach. to the interpretation. It was observed that a
constitutional provision must not be construed in a narrow sense·
but in a wide and liberal sense so as to take into account
changing conditions and emerging problems and challenges.
The content of the rights is to be defined by the Courts. Some       B
of the concepts like federalism, secularism, reasonableness
and socialism reasonableness are beyond the words ofa
particular provision. They give coherence to the Constitution
and make the Constitution an organic whole. They are part of
constitutional law even if they are not expressly stated in the      C
form of rules. To qualify as essential feature, a principle has to
be established as part of constitutional law and as such binding
on the legislature. Only then, it could be examined whether it
was a part of basic feature. Theory of basic feature was based       D
on concept of constitutional identity. The personality of the
Constitution must remain unchanged. The word 'amendment'
postulated that the Constitution survived without loss of identity
despite the change. 24
         Conclusion:                                                 E
      15.9 It can safely be held that 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
this Court from case to case.
                                                                     F
         B. Whether Primacy of Judiciary in Appointment of
            Judges is Part of Basic Structure
       16. Whether a feature of the Constitution is basic feature
or part of basic structure is to be determined having regard to      G
its place in the scheme of the Constitution and consequence
of its denial on the working of the Constitution.
         16.1 The judiciary has been assigned the role of
24
     Identity test discussed in M. Nagaraj case (supra) (Para 28)
                                                                     H
    992        SUPREME COURT REPORTS                [2015] 13 S.C.R.


    A  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 Union Legislature and the State Legislature or
     B the exercise of the executive power may involve issues of
       constitutionality or legality. It may involve allegations of
       malafides even against highest constitutional dignitaries. This
       requires an impartial and independent judiciary. The judiciary
       is required to be separate from the executive control. Judiciary
     C has to inspire confidence of the people for its impartiality and
       competence. It has not been disputed by learned Attorney
       General that independence of judiciary is part of the basic
       structure. It is also undisputed that judicial review is part of
       basic structure. The decisions of this Court expressly lay down
     D
       that independence of judiciary and judicial review are part of
       basic structure. Broad separation of powers between the three
       departments of the State is a part of doctrine of checks and
       balances. It is also a part of democracy. Independence of
     E 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.
             16.2 The judiciary has apolitical commitment in its
·    F functioning. Once independence of judiciary is acknowledged
       as a basic feature of the Constitution, question is whether
       power of appointing Judges can be delinked from the concept
       of independence of judiciary or is integral part of it. Can the
       independence of judiciary be maintained even if the
     G appointment of Judges is controlled directly or indirectly by
       the executive?
               16.3 To what extent primacy of judiciary in appointment
          of judges is part of unamendable basic feature of the
     H
      SUPREME COURT ADVOCATES-ON-RECORD                                       993
     ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

Constitution. Since the issue has been gone into in earlier A
binding precedents, reference to such decisions is apt. As
already mentioned, it remains undisputed that power of judidal
review, independence of judiciary, broad separation of power~
in three departments of the State, federalism and democracy
are the basic features of the Constitution. Stand of the B
respondents is that power of appointment of judges does not
have impact on such basic features as independence of judges
is envisaged post appointment. By an amendment, process
of appointment of judges can be altered to reduce the role of
judiciary and to increase the role of Executive and Legislature. C
Alternatively, it is submitted that no substantial change has
taken place in the said roles.
      16.4 In Second Judge's case, a Bench of 9-Judges of
this Court examined the question of interpretation of                         D
unamended constitutional scheme dealing with the
appointment of judges of the Constitution case. The issue
was referred to the Bench of 9-Judges on account of doubts
having arisen as to the correctness of the view expressed in
S.P. Gupta vs. Union of lndia 25 (First Judges' case), laying                 E
down that primacy in the matter of appointment of judges rested
with the Central Government26 • The basis of the said decision
was that the word 'consultation' used in Articles 124, 217 etc.
implied that the views of the consultee need not be treated as
binding as the ultimate power of appointment rested with the                  F
Central Government. It was held that the views of the CJ I or
other Judges who were consulted may be entitled to great
weight but the final view in case of difference of opinion could
be taken by the Central Government. The word 'consultation'
25
                                                                              G
    1981 Supp. SCC 87, Para 30 (Primacy in appointment of judges is held to
be of Central Government by holding that obligation of the President (the
Central Government) was only to consult the judiciary which could not be
treated as binding)
 26
    Para 25, Pandian J. (Second Judges Case) : Reasons which led to
reconsideration of First Judges' case
                                                                              H
994         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     could not be read as 'concurrence'.
          16.5 The view taken was doubted in Subhash Sharma
   vs. Union of lndia 27• The question whether opinion of CJ I with
   regard to appointment of Judges was entitled to primacy was
   referred for consi.deration of a larger bench, as already
 8
   mentioned. This Court observed that Constitutional
   phraseology was required to be read and expounded in the
   context of Constitutional philosophfof separation of powers
   and the cherished values of judicial independence. The role of
c  the CJI was required to be recognised as of crucial importance
   for which the view taken in First Judges' case required
   reconsideration by a larger Bench. It was noted that there was
   an anxiety on the part of the Government of the day to assert
   choice in selection of Judges and if the power to recommend
 o appointment of Judges was vested in the State Government
   or the Central Government, the picture was likely to be blurred
   and process of selection may turn out to be difficult. It was
   also observed that the judiciary had apolitical commitment and
   the assurance of non-political complexion of judiciary should
 E not be divorced from the process of appointment. The phrase
   "consultation" had to be understood consistent with and to
   promote the constitutional spirit. The constitutional values
   could not be whittled down by calling the appointment of judges
   as an executive act. The appointment was rather the result of
 F collective constitutional process. It could not be said that power
   to appoint solely vested with the executive·or that the executive
   was free to take such decision as it deems fit after consultation
   with the judiciary. The word "consultation" was used in
   recognition of the status of high constitutional dignitary and
 G could not be interpreted literally. Moreover, the appointment
   not recommended' by Chief Justice of the State and the CJI
   would be inappropriate and arbitrary exercise of power. The
   CJI should have preponderant role. Primacy of CJI will improve
 H 21 1991 Supp (1) sec 574 - Paras 31-34, 42-46
    SUPREME COURT ADVOCATES-ON-RECORD                                 995
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

the quality of selection. The view of the Chief Justices of States    A
and CJI .should be detisive unless the executive had material
indicating that the appointee will be undesirable. The view of
the majority in First Judges' case did not recognise the said
pivotal position of the institution of the CJI and correctness of
the said opinion required reconsideration. It was noted that          B
the Union Government had often stated before Parliament and
outside that as a matter of policy it had not made any
appointment without the name being given by the CJI and the
executive must be held to the standard by which it professed
its actions to be judged. Upon reference to larger Bench, the         C
view taken in First Judges case was overruled in Second
Judges' case which was reiterated in the Third Judges case.
It held that the term "consultation" in Article .124 should not be
literally construed. It was to be construed in the constitutional     D
background of its purpose and to maintain and uphold
independence of judiciary. So interpreted, it was held that in
the event of conflicting opinions of the constitutional
functionaries, the opinion of the judiciary as symbolized by the
view of the CJI and formed in the manner indicated, would             E
have primacy.
     16.6 Pandian, J. held that the requirement of consultation
was not relatable to any other service and only applied to
appointment of judges in contrast to other high ranking offices.
The consultation with the CJI was condition precedent for             F
appointment and advice given by the judiciary in the process
had sanctity. The executive power of appointment comes into
play by virtue of Articles 7 4 a11d 163 though it was not
specifically provided for in Articles 124 and 217. The State
was major litigant. The superior courts were faced with               G
controversies with political flavour and in such a situation if the
executive had absolute say in appointment of judges, the
independence of judiciary will be damaged. The Law
Commission Reports and opinion of jurists suggested radical           H
996         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


A     change in appointment of judges by cu~bing the executive
      power28 •
          16.7 Kuldip Singh, J. observed that the concept of judicial
  independence did not only mean the security of tenure to
  individual judges. There has to be independence of judiciary
8
  as an institution so that it could effectively act as an impartial
  umpire between the Governments and the individuals or
  between the Governments inter se. It would be illogical to say
  that the judiciary could be independent when power of
c appointment vested in the Executive. The framers of the
  Constitution never intended to give this power to the Executive
  which was the largest litigant before the courts 29 • There was
  established constitutional convention recognising the primal
  and binding opinion of CJI in the matter of appointment of
D judges. All appointments since the commencement of the
  Constitution were made with the concurrence of the CJI. The
  14th Report of the Law Commission and discussion in the
  Parliament on 23rd and 24th November, 1959 were referred
  to 30 • With regard to the statement of Dr. Ambedkar on 24th
E May, 1949 before the Constituent Assembly that the CJI could
  not be given a veto on appointment of judges, it was observed
  that primacy of the CJI acting in representative as against
  individual capacity would not be against the objective of the
  said statement31 •
 F
        16.8 Verma, J. observed that the scheme of the
  Constitution of separation of powers, with the Directive
  Principles of separation of judiciary from Executive, and role
  of the judiciary to secure rule 'of law required that appointment
G of judges in superior judiciary could not be left to the discretion
  of the Executive. Independence of judges was required even
      " Paras 195 and 207
      29
         Paras 334, 335
      30
         Para 357
      31
         Para 392
H
       SUPREME COURT ADVOCATES-ON-RECORD                             997
      ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.)

at the time of their appointment instead of confining it to the A
provisions for security of tenure and conditions of service. It
was necessary to prevent influence of political consideration
on account of appointments by the Executive. In choice of a
candidate, opinion of CJI should have greatest weight. The
role of the Executive in the participatory consultative process B
was intended to be by way of a check on the exercise of power
by the CJI. The Executive element was to be the minimum to
eliminate political influence32 .
        16.9 Accordingly, conclusions were recorded in para 486 C
to the effect that initiation of proposal for appointment and
transfer could be initiated by the judiciary and in case of
conflicting opinions, the opinion of the CJI had the primacy. In
exceptional cases the appointment could be declined by
disclosing the reasons but if the reasons were not accepted          D
by the CJI acting in representative capacity, the appointment
was required to be made as a healthy convention. The CJI
was to be appointed by seniority. The senior most judge,
considered fit to hold the office, was to be the CJI.
         16.10 Conclusions in Third Judges' case in para 44 E
reiterated this view with only slight modification. On that basis,
memoranda of procedure mentioned in earlier part of this
opinion were issued. The National Commission to Review
the Working of the Constitution (NCRWC) headed by Justice            F
M.N. Venkatachaliah, in its report dated 31 •1 March, 2002,
observed that appointment of judges was part of independence
of judiciary. It was observed that the Executive taking over the
power of appointment and playing a dominant role will be
violative, of basic structure of the Constitution, of independence   G
of judiciary33 •
         16.11 Contention of the petitioners is that the said
32
     Paras 421, 422, 447 and 450
33
     Paras 9.6 and 9.7 .
                                                                     H
998        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


A     decisions conclusively recognise primacy of judiciary in
      appointment of judges inferred from the scheme of the
      Constitution and such primacy was part of basic structure.
           16.12 It is submitted that if the Executive has primacy,
    the power of appointment of Judges can be used to affect or
 8
    subvert the independence of the appointees as members of
    the Constitutional Courts. This would be against the intention
    of the Constitution makers. The unamended provision could
    not be replaced by the new mechanism unless the new
 c  mechanism ensured that a role of the Judiciary was not
   ·decreased and the role of the Executive was not increased
    and the change made had no adverse impact on the functioning
    of the Constitution. If this contention i~ upheld, the impugned
    amendment will have to be struck down unless it could be held
 o that the amended provisions also retained the said primacy.
    If primacy of judiciary is held not to be a part of basic structure
    of the Constitution or it is held that the same is still retained,
    the amendment will have to be upheld.
           C. Plea of the Respondents for re-visiting earlier
 E            binding precedents
         17. The correctness of the view taken in the above
   decisions was sought to be challenged by learned counsel for
   the respondents. The ground on which reconsideration of the
 F earlier view is sought is that the interpretation in Second and
   Third Judges cases is patently erroneous. Members of the
   Constituent Assembly never intended that the CJI should have
   last word on the subject of appointment of Judges. The text
   which was finally approved and which became part of the
 G Constitution did not provide for concurrence of the CJI as has
   been laid down by this Court. It is also submitted that the
   interpretation taken by this Court may have been justified on
   account of the abuse of powers by the Executive specially
   during emergency (as noticed in Union of India vs.
 H
    SUPREME COURT ADVOCATES-ON-RECORD                                    999
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

Sankalchand Himatla/ Sheth 34 ) anq in the Law Commission                A
Reports (particularly 14th and 121 st Reports), the same situation
no longer continues. More over there is global trend for Judicial
Appointment Commissions. Even without primacy of the
judiciary in appointment of judges, the judiciary could function
independently. Judicial Appointment Commission was                       B
suggested even earlier. The eminent jurists had criticized the
existing mechanism for appointment of Judges and particularly
the working of the collegium system.
        17 .1 Referring to the scheme of Chapter IV of the               c
Constitution, learned Attorney General submitted that Executive
and the Legislature had the role in the working of the judiciary.
Salary and Conditions of Service of Judges are fixed by the
Parliament. The Rules for functioning of the Supreme Court
are framed with the approval of the President and are subject • D
to the law made by the Parliament. Parliament could confer
supplementary powers on the Supreme Court. Conditions of
service of officers and servants of the Supreme Court are
subject to law made by the Parliament. The rules framed by
the CJI require approval of the President. There was inter E
play of Executive and Legislature in the functioning of the
judiciary. Independence of judges was in respect of their
security of tenure and service conditions. Manner of
appointment did not affect independence of judiciary.
Executive appointing Comptroller General of India or Election F
Commission did not affect their independence. Power of
appointment of judges is the Executive power to be exercised
by the President with the advice of the Council of Ministers
after consultation with the judiciary. The doctrine of separation
of powers or separation of judiciary from Executive does not G
require that the Executive could have no role in appointment
of judges. Primacy of judiciary in appointment of judges
ignores the principles of checks and balances. The
 34
    1977 (4) sec 193 (referred to in Paras 125 to 130 Second Judges' case) H
1000         SUPREME COURT REPORTS                   [2015] 13 S.C.R.


 A interpretation placed in the earlier decisions ignores the
   principles of transparency and accountability. Even without
   there being manifest error in earlier decisions, having regard
   to the sensitive nature of the issue and also the fact that an
   amendment has now been brought about, the earlier decisions
 B need to be revisited.
             17.2 The stand of learned Attorney General and other
       learned counsel appearing for the respondents was contested
       by learned counsel for the petitioners. It was submitted that all
 c     issues sought to be raised by the respondents were duly
       considered by the Bench of nine-judges. The Central
       Government sought opinion of this Court under Article 143. A
       statement was made by the then learned Attorney General that
       the Second Judges' case was not sought to be reconsidered.
 o.    The view of the nine-Judge Bench was based on earlier binding
       decisions in Shamsher Singh vs. State of Punjab 35 and
       Sankalchand case (supra) laying down that the last word on
       such matters was of the CJI. The expert studies and the
       Constituent Assembly Debates ruled out pre-dominant role for
 E     the Executive or Legislature in appointment of judges. The
       constitutional scheme did not permit interference of the
       Executive in appointment of judges. The Executive could give
       feed back and carry out the Executive functions by making
       appointments but the proposal had to be initiated and finalised
 F     by the judiciary. Frequent reconsideration of opinions by larger
       Benches of this Court was not desirable in absence of any
       doubt about the correctness of the earlier view.
         17.3 Parameters for determining as to when earlier
 G binding decisions ought to be reopened have been repeatedly
   laid down by this Court. The settled principle is that court
   should not, except when it is demonstrated beyond all
   reasonable doubts that its previous ruling given after due
   deliberation and full hearing was erroneous, revisit earlier
 H "1974 (2) sec a31
     SUPREME COURT ADVOCATES-ON-RECORD                                         1001
    ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

decisions so that the law remains certain. 36 In exceptional A
circumstances or under new set of conditions in the light of
new ideas, earlier view, if considered mistaken, can be
reversed. While march of law continues and new systems can
be developed whenever needed, it can be done only if earlier
systems are considered unworkable37 .                        B
        17.4 No such situation has arisen. On settled principles,
 no case for revisiting earlier decisions by larger Benches is
 made out. As regards the contention that there was patent
 error in the earlier decisions, the Second Judges' case shows                 c
 that the Constituent Assembly Debates are exhaustively quoted
 and considered. Neither the 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 D
·understood meant that the final word on the subject of
 appointment of Judges was with the CJI. The practice and
 convention ever since the commencement of the Constitution
 showed that proposal for appointment was always initiated by
 the Judiciary and the last word on the subject belonged to the E
 CJI. This scheme was consistent with the intention of the
 Constitution makers. All the points now sought to be raised by
 learned Attorney General have been exhaustively considered
 in the Second Judges case. The contention that earlier
 situation of Executive interference has now changed also does ·F
 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 basic structure
 which is not constitutionally permissible. The objection as to G
 deficiencies in the working of the collegium system will be
 subject matter of discussion in the later part of this judgment.
 36 Gannon Dunkerly vs. State of Rajasthan, 1993 (1) SCC 364, paras 28 to 31
 37 2"" Judges' case,   Paras 19 to 22
                                                                                H
1002          SUPREME COURT REPORTS                          [2015] 13S.C.R


 A Individual failings may never be ruled out in functioning of any
   system. The Judicial Appointment Commissions earlier
   considered were not on the same pattern. Initially proposal to
   set up Judicial Commission was made prior to Second
   Judges case, with the object of doing away with the primacy
 B of the Executive as laid down in First Judges case. In Sixty-
   Seventh Amen9ment Bill, in the Statement of Objects and
   Reasons, it is mentioned that the object of setting up of
   Commission was to 'obviate the criticism of arbitrariness on
   the part of the Executive' 38 . Ninety-Eighth Amendment Bill,
 C 2003 was introduc~d with a different composition on
   recommendation of National Commission to review the
   working of the Constitution. One-Twentieth Amendment Bill,
   2013 did. not provide for any composition and left the
   composition to be provided for by the Parliament. Validity of
 0 such proposed Commissions was never tested as such
   Commissions never came into existence.
         17 .5 The Judicial Commissions in other countries and
   provisions of Constitutions of other countries conferring power
 E 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 to which reference will be made. No case is
   thus made out for revisiting the earlier decisions in Second
 F and Third Judges' cases.
             D. Consequential consideration of issue of primacy
                of iudiciary in appointment of judges as part of
                basic structure.
 G            18. The earlier decisions in Secot:Jd and Third Judges'
       case 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. Appointment of judges is
       38 The Bill was introduced in the light of 121" Report of the Law Commission.

 H
      SUPREME COURT ADVOCATES-ON-RECORD                                 1003
     ASSOCIATION v. U.O.L [ADARSH KUMAR GOEL, J.]

part of independence of judiciary. It is also essential to uphold       A
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                        B
constitutionally assigned authority. This is the esse,,nce of the
democracy. Learned counsel for the petitioners highlighted
that 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             C
decisions of this Court in 2G Spectrum case39 and Coal Scam
case4°where actions of the Executive were found to be violative
of constitutional obligations causing huge loss to public
exchequer. It was submitted that arbitrary distribution of State        D.
largess by way of giving scarce resources or contracts or jobs
or positions of importance akin to 'spoil system' have been
held by this 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 this Court.                 E
Dissolution of State Assemblies and dismissal of State
Governments have also been struck down by this Court4 1• This
Court also had to deal with the issues arising out of decisions
of Speakers in recognizing or otherwise the defections in
Central or State Legislatures 42 • There are enumerable                  F
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          G
controlled by the Executive, it will certainly affect impartiality of
39 Centre for Public Interest Litigation vs. UOI (2012) 3 SCC 1
40
   Manohar Lal Sharma vs. UOI (2014) 2 SCC 532
"S.R. Bommai vs. UOI (1994) 3 SCC 1; Rameshwar Prasad vs. UOI (2006)
2 SCC 1; M.C. Me~ta vs. Kamal Nath (1997) 1 SCC 388
42
   Kihoto Hollohan vs. Zachillhu (1992) Supp. (2) 651                    H
1004            SUPREME COURT REPORTS                  [2015] 13S.C.R.


 A     judges and their functioning. Faith of people in impartiality and
       effectiveness of judiciary in protecting their constitutional rights
       will be eroded.
              18.1 Submissions of learned Attorney General are that
       even if appointment of judges is held to be part of
 8
       independence of judiciary, choice of a particular model is not
       part of basic structure. The role of the Executive cannot be
       denied altogether nor there can be any objection to members
       of civil society being included in the process of appointment.
 C     The primacy of judiciary in appointment of judges is not an
       absolutist ideal. Power of appointment has to be seen in the
       light of need for checks and balances. Independence of
       judiciary is not a uni- dimensional test. There could be inter
       mingling of other wings in the process of appointment of judges.
 o     After repeal of Articles 124 and 217, basis of Second Judges'
       case did not survive. Primacy of judiciary in appointment of
       judges is only in the context of stopping wrong appointment or
       preventing pre-dominance of the Executive. Even if primacy
       of judiciary was recognized at a given point of time, the same
 E     could apply only till the Constitution is amended. Two eminent
       persons could be laymen to give societal view point. The Law
       Minister was made a member of the Commission for
       accountability and transparency. As laid down in l.R. Coelho
       case, inspite of separation of powers, different branches of
 F     the Government could have overlapping functiohs43 • In Sahara
       India Real Estate Corpn. Ltd. vs. SEB/44 , it was observed
       that under the Constitution there are different values which must
       be balanced. Thus, independence of judiciary, checks and
       balances, democracy and separation of powers are to be
 G     considered as a whole. He referred to the background of
       supersession of judges in the year 1973 and 1977 and
       selective transfer of judges during emergency as noted in 121•1
       43
            Para 64
       44
            (2012) 10 SC 603
 H
      SUPREME COURT ADVOCATES-ON-RECORD                          1005
     ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

Report of the Law Commission 45 • The report records that in A
 1976, sixteen judges were transferred from the respective High
Courts in which they were functioning to other High Courts.
This was perceived to be an act of interference with the
judiciary. Circular of the then Law Minister providing for transfer
and short term appointment of judges considered in First B
Judges' case was taken in the said report as the executive
interference. The report also mentioned the concern arising
outofsupersession in appointmentofCJI, non confirmation of
additional judges, transfer of judges giving rise to
apprehension of erosion of independence of judiciary at the      c
hands of the Executive. It was concluded that the model then
 prevalent (with the primacy of the Executive) had failed to
 deliver the goods. This led to introduction of 67 1h Amendment
 Bill, 1990.
                                                                 D
      18.2 The contentions of learned Attorney General cannot
be accepted. The matter having been gone into in great details
in above binding precedents which do not require
reconsideration, I do not consider it necessary to repeat in
                                                                        \
detail the discussion which has been recorded in the said        E
decisions.
     18.3 In Second Judges' case, following findings have
been recordea :
        (i) The word 'consultation' used in Articles 124, 217 and F
            222 of the Constitution meant that the opinion of
            consultee was normally to be accepted thereby
            according primacy to the judiciary;
        (ii) The Executive being major litigant and role of
            judiciary being to impartially decide disputes G
            between citizen and the State, the Executive could
            not have decisive say in appointing judges;
45
     Paras 1.21to1.23, 7.1and7.2
                                                                  H
    1006          SUPREME COURT REPORTS                          [2015] 13 S.C.R.


     A           (iii) Doctrine of separation of powers under the
                      Constitution required primacy of judiciary in
                     appointing judges;
                  (iv) Since traits of candidates could be better assessed
                      by the Chief Justice, the view of the Chief Justice as
     B
                      to suitability and merit of the candidate had higher
                      weight;
                  (v) The Chief Justice of India was not to make a
                     recommendation individually but as representing the
     c               judiciary in the manner laid down, that is, after
                     consulting the co/legium; and
                  (vi) Primacy ofjudiciary in appointment ofjudges is part
                      of independence of judiciary and separation of
                      powers under the Constitution.
     D
                  18.4 Referring to fhe constitutional scheme, its
       background and interpretation, irrespective of the literal
       meaning of the language employed in Articles 214 and 217 of
       the Constitution, it was observed that initiation of proposal must
     E always emanate from the Chief Justice of the High Court/CJ I
       (in representative capacity as laid down) and last word on any
       objection thereto should be normally of the CJl. 46
                  18.5 Reference was made to the interpretation of the
'    F word 'consultation' in the context of appointment of judges in
       earlier judgments in Chandra MoulishwarPrasad vs. Patna
       High Court4 7 , Shamsher Singh and Sankalchand cases.
       It was held that "in practice, the last word in such sensitive
       subject must belong to CJI, the rejection of his advice being
     G ordinarily regarded as prompted by oblique considerations
       vitiating the order."
           46
                Reasons for holding the primacy in appointment of judges to be with the
           judiciary have been summarized by Pandian, J. in Para 195 (Second Judges'
           case)
     H      4
              ' 1969 (3) sec 56
      SUPREME COURT ADVOCATES-ON-RECORD                                       1007
     ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

      18.6 Reference was also made to the statement of Dr.                        A
Ambedkar that it was dangerous to give power to appoint
judges to the Executive or with concurrence of the Legislature.48
 Further statement that it was dangerous to give veto power to
CJI was explained to mean that the CJI must act not in individual
capacity but after consulting senior judges. 49                                   B
        18. 7 Needless to say that the Constitution of India is
unique. While reference to other Constitutions can be made
for certain purposes50 , the basic features of Indian Cqnstitution
(which may be distinctly different from other Constituti:ons) have c
to be retained and cannot be given a go bye. In the above .
judgment, in the context of working of Indian Constitution, it                Q



was held that the role of Executive and Legislature in
appointment of judges could not be predominant. Even in the
Constituent Assembly, models of other countries were not D
found to be suitable to be followed in lndia 51 • As already
mentioned the Government of India appointed First Law
Commission headed by Shri M.C. Stealvad to review the
system of judicial administration and all its aspects. The
Commission expres~ly mentioned that the Executive E
interference in appointment of Judges has not been congenial
to independence of judiciary. The Commission noted that the
Chief Ministers were having direct or indirect hand in
appointment of Judges which results in appointments being
 made not on rn.erit but on considerations of community, caste, F
 political affiliations. The Chief Minister holding a political office
 is dependent on the goodwill of his party followers. The
recommendation of the CJI is more likely to be on merit. An
opinion noted in the report mentions that if the Executive
                                                                       G
48
    Para 25(5), Pandian, J.
49
    Para 392, Verma, J. (Second Judges' case)
 50
    Such as power of Judicial Review, content of right to life etc.
 51
    Paras 184 & 192, Second Jud\Jes' case (In para 192 reference is made to
famous statement of Dr. Ambedkar about unsuitability of UK and US models
in this regard)                                                                   H
1008          SUPREME COURT REPORTS                         [2015] 13S.C.R.


 A     continued to have powerful role, the independence of judiciary
       will disappear and the Courts will be filled with Judges who
       owe from appointments to politicians 52 • It was recommended
       that the hands of CJI should be strengthened and instead of
       requiring consultation it should require recommendation by the
 B     CJl 53 • There should be requirement of concurrence of the CJl 54 •
       The Report was discussed in the Parliament and the then
       Home Minister declared that the Executive was only an order
       issuing authority and appointments were virtually being made
       by the CJI. This statement was reiterated by the then Law
 C     Minister55 • Again in 121 st Report, it was observed that
       appointment of Judges with Executive influence was not
       conducive to healthy growth of judicial review. Trends all over
       the world indicate that power of the Executive in appointment
       of Judges was required to be diluted 56 • The Second Judges'
 0
       case took care of the ground realities in the light of constitutional
       convention. It held that the CJI was better equipped to select
       the best and for appointments being free from Executive
       domination to inspire public confidence in impartiality and
 E     consistent with the principle of separation of Judiciary from
       Executive and also consistent with the spirit of Constitution
       makers. The principle of primacy was recognised and
       appointment of Judges was held to be integral to the
       independence of judiciary 57 • To check arbitrary exercise of
 F     power by any individual, it was made mandatory that the Chief
       Justices consult senior Judges. Thus, primacy of judiciary was
       recognized in initiating proposal as well as in taking final
       decision 58 • However, participation of the Executive in giving
       inputs by suggesting names before the proposal was initiated
 G     52 Para 14
       53
          Para19
       54
          Para 20
       55
          Paras 362-371 (Second Judges' case)
       56
          Paras 7.5- 7.11 (121" Law Commission Report)
       57
          Paras 333-335, Kuldip Singh, J., Paras 47, 49,63, Pandian, J.
 H     58
          Para 486
     SUPREME COURT ADVOCATES-ON-RECORD                                          1009
    ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

or giving feedback even after the proposal was initiated was A
permissible. It was noted that right from beginning of the
Constitution, all the proposals for appointments were always
initiated by the Chief Justices59 . View in First Judges' case
that primacy in appointment of Judges was of the Central
Government was held to be erroneous by larger Bench inter B
alia for following reasons :
       (i) The judiciary has apolitical commitment and if power
           of appointment of judges is given to the Executive,
           this will affect independence of judiciary6°;                        c
       (ii) Rule of law requires that justice is impartial and people
            have confidence in judiciary being separate and
            independent of the Executive so that it can discharge
            its functions of keeping vigilant watch for protection of
            rights even against the Executive61;                      D
       (iii) Judiciary has key role in working of the democracy
            and for upholding the rule of law62 ;
       (iv) The constitutional scheme provides for mandatory
          consultation with the CJI since the CJI was better                    E
           equipped to assess the merit of the candidate which
           consultation was not provided for in respect of other
           high constitutional appointmerits 63 •
       (v) The appointment of judges was inextricably linked with                F
           the independence of judiciary and even in the matter
           of appointment of district judges, the conclusive say
           was of the High Courts and not of the Government64 •
59
   Para 505, Punchhi, J.; 210, 214, Pandian, J.; Paras 361 to 376, Kuldip
Singh, J.
60
   Paras 84 and 197; Pandian, J; Paras 428 and 439, \(erma, J; Para 334,        G
Kuldip Singh, J
61
   Paras 56, 72 to 74 and 207, Pandian, J.
62
    Paras 55 to 57, Pandian, J.
63
   Para 195 Pandian, J and Para 450, Verma, J.;
64
   Paras 447 to 463, Verma, J.; Paras 195 to 197, Pan<lian, J.; Paras 335 and
380, Kuldip Singh, J. (Para 215, Pandian, J. -Appointments and control of        H
district judges is with the High Courts)
1010              SUPREME COURT REPORTS                       [2015] 13 S.C.R.


 A            (vi) Even in countries where power of appointment of
                 judges was with the Executive, there is demand/
                  proposal for minimizing the role of the Executive 65 •
              (vii) The effort of the Executive to have say in appointment
                  of judges was found by expert studies to be not
 B
                  congenial to the independence of judiciary 66 •
                  Reference was made to the 14th Report of the Law
                  Commission that if the Executive had powerful voice
                  in appointment of judges, the independence of
            ;·~     judiciary will disappear and the courts will be filled with
 c
                    judges who owe their appointments to the politicians.
                    Reference was also made to 121 st Report of the Law
                    Commission to the effect theft even in UK there was
                    thinking to create a check on the power of the Executive
 D                  to select and appoint judges.
              (viii) Consultation with the CJ I was not envisaged by the
                  Constitution makers to be of formal nature but implied
                  that great weight was to be given so that the last word
                  belonged to the CJl 67 •
 E
                  (ix) Article 50 and the background of its enactment spells
                      out the mandate for appointment of judges being taken
                      away from the Executive and its transference to the
                      judiciary. 68
 F          18.8 In the above background, the forceful contention of
       learned Attorney General that the scheme of the Constitution
       did not envisage primacy of judiciary but only mandatory
       consultation with the CJI and optional consideration with such
 G     65
          Para 25(6), Pandian, J.
       66
          14'h Report of the Law Commission is referred to in paras 64 and 65 by
       Pandian. J.; 121'' Report of Law Commission is referred to in Paras 184 to
       191 and 204, Pandian, J.
        67
           Paras 383 to 387. Kuldip Singh. J. (However, CJI was not to be the persona
       designata but as spoke.sman of the judiciary in the manner laid down in the
       judgment.)
 H      68
           Second Judges" case (Paras 74 to 81)
      SUPREME COURT ADVOCATES-ON-RECORD                       1011
   f'-SSOCIATION v. U.0.1. {ADARSH KUMAR GOEL, J.]

other judges as may be considered necessary cannot be . A
accepted, even if it is so suggested by the literal meaning of
the words used in the text of the provision. It may be mentioned
that the word 'consultation', on account of the scheme of the
Constitution, was held to carry special meaning, on a purposive
interpretation. The interpretation was not based solely on the B
word 'consultation' but on scheme of independence of judiciary.
The contention that independence of judiciary was not affected
even when the Executive made the appointment is contrary to
the expert studies and well considered decisions of this Court.
The acknowledged scheme of the Constitution and its working C
is not to allow domination of the Executive in appointment of
Judges. Such domination affects independence of judiciary,
public faith in its impartiality (when the Government is major
litigant), brings in extraneous considerations, compromises D
merit, weakens·the principles of checks and balances and
separation of judiciary from the Executive. Thus, by substitution
of the words, the Parliament could not interfere with the primacy
of judiciary in appointment of judges and thereby interfer~ with
the basic feature of the Constitution. It may be mentioned that E
use of similar expression in Article 74 of the Constitution in the
context of Executiye power of the President to act on "aid.and
advice" of Council of Ministers was held to mean that the
President was only a formal head. 69 It cannot be suggested
that by .amendment of the expression used, constitutional F
scheme of the President being formal head can be changed
as such amendment will be repugnant to the basic structure of
the Constitution. Likewise, even by amendment primacy of
judiciary in appointment of judges cannot be excluded. Such
primacy existed not merely by word 'consultation' but by virtue G
of role of judiciary in working of the Constitution, by CJI being
bette·r suited to assess merit of the candidate and on account
of Executive being major litigant. There is no change in these
69 Paras 48 and   57-, Shamsher Singh case
                                                                H
1012           SUPREME COURT REPORTS                          [2015] 13 S.C.R.


 A factors even after amendment. It is not thus a question of
   change of model or of available choice with the 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
 B equipped to assess the needs of the people is not enough
   reason to extend the power of Parliament to amend the basic
   feature of the Constitution. The change of time does not justify
   greater role for the Executive in appointment of judges. The
   plea of overlapping role of different Departments of the
 C Government is against the basic structure as far as appointment
   of judges is concerned.
         18.9 While it is true that the Legislature can even
   retrospectively clarify its intention and thereby bring about a
 o change in law70 , in the present context meaning of the
   unamended provision was not based merely ori the words used
   but also the entire scheme of the Constitution particularly the
   independence of judiciary. It has been held that in the context
   of the Indian Constitution, having regard to the consistent past
 E practice and to avoid political interference in appointment of
   judges, and also on account of the CJl/CJ being better
   equipped to assess the merit of a candidate, proposal must
   always be initiated by the CJl/CJ and the CJI must also have
   final word on the subject. It can hardly be doubted that the
 F Constitution is a dynamic document and has to be interpreted
   to meet the felt needs of 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
 G and framework of the Constitution. Primacy of judiciary is
   certainly a part of the basic feature of the Constitution. If
   primacy of judiciary in the appointment of judges is held to be
       70
         Shri Prithvi Cotton Mills Ltd. vs. Broach Borough Municipality, 1969 (2) SCC
 H     283
    SUPREME COURT ADVOCATES-ON-RECORD                                        1013
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

not a part of basic feature, the Parliament may be free to confer A
the said power on the Executive or the Legislature or to any
other authority which can certainly compromise the
independence of judiciary. It will also in turn disturb the doctrine
ofseparation of powers and other basic features like rule of
law, democracy and federalism and working of the Constitution B
as a whole. Independence of judiciary is 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 alternative submission of Shri
Venugopal, learned senior counsel appearing for the State of C
Madhya Pradesh in Pafas 4 and 8 (reproduced in para 13
above) also supports the conclusion that appointment of
judges is part of independence of judiciary and primacy of
judiciary in appointment of judges is required to be retained. D
The power of appointment of judges cannot be exercised by
the Executive as the same will affect independence of judiciary.
Even after the original provisions are amended, this principle
is still applicable.
      18.10 At this stage, it may be mentioned that any                      E
perceived shortcoming in the working of 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
basic feature. As Dr. Ambedkar observed 71 :-
                                                                              F
      "The Constitution can provide only the organs of State
      such as the Legislature, the Executive and the Judiciary.
      The factors on which the working of those organs of the
      State depend are the people and the political parties
      they will set up as their instruments to carry out their               G
      wishes and their politics."

 71
     In speech dated 25.11.1949 on conclusion of proceedings of the
Constituent Assembly (Page 975 of the CAD).
*In his speech as President of the Constituent Assembly quoted in Para 429
of the Second Judges' case)       ·                                           H
1014         SUPREME COURT REPORTS                  [2015] 13 S.C.R.


 A          To the same effect Dr. Rajendra Prasad* said :-
            "If the people who are elected are capable and men o(
            charactefand integrity, they would be able to make the
            best even of a defective Constitution. If they are lacking
            in these, the Constitution cannot help the country. After
 B
            all, a Constitution like a machine is a lifeless thing. It
            acquires life because of the men who control it and
            operate it, and India needs today nothing more than a
            set of honest men who will have the interest of the
 c          country before them."
               Even a good system may haye shortcomings in its
       working on account of individual failures. It may be mentioned
       that criticism of working may be leveled against working of
       every organ of the Constitution including the Executive and
 D     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 bye on that
       ground. It is not necessary to comment upon how good or bad
       any constitutional authorities have performed in discharge of
 E     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 existing
 F     system of appointment of judges can be the subject matter of
       separate consideration which is being proposed but certainly
       without giving a go bye to the basic features of the Constitution
       of independence of judiciary. In Manoj Narula vs. Union of
       Jndia 72, question considered was how persons with criminal
 G     antecedents could be prevented from being appointed as
       Ministers. There was also reference to the concern as to how
       persons with such antecedents could be prevented from being
       legislators. This Court held that the issue has to be dealt with
       by those to whom the Constit.ution has entrusted the
 H      12
           2014 (9) sec 1
       SUPREME COURT ADVOCATES-ON-RECORD                              1015
      ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

responsibility and this Court could only enforce the constitutional   A
scheme.
       18.11 At this stage, it may be mentioned that the claim
of learned Attorney General that the Parliament represented
the will of the people or that the amendment represented the
                                                                    8
will of the people and interference therewith will be undesirable
is contrary to the law laid down in Kesavananda Bharti case
(supra)7 3• The will of the people is the Constitution while the
Parliament represents the will of the majority at a given point
of time which is subordinate to the Constitution, that is, the will   c
of the people. The Constitution was supreme and even
Parliament has no unlimited amending power. Learned
Attorney General rightly submitted that the last word on the
validity of a constitutional amendment is of this Court. Even if
the judiciary is not an elected body, it discharges the o
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 judiciary74 •
         Conclusion:
                                                                      E
         18.12 Accordingly, I hold that primacy of judiciary and
limited role of the Executive in appointment of judges is part of
the basic structure of the Constitution. The primacy of 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       F
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
Second and Third Judges' cases.
         E. Whether the Impugned Amendment alters or G
            damages the basic structure
         19. In the above background, the only question which
73 Paras 652 amd 653
74
     Paras 328 and 334, Kuldip Singh, J. (Second Judges' case)        H
1016         SUPREME COURT REPORTS                   [2015] 138.C.R.


 A     remains to be considered is whether under the impugned
       amendment the basic feature of primacy of judiciary in
       appointment of judges has been altered or damaged.
             19.1 Learned Attorney General submitted that basic
       structure comprises many features like several pillars in a
 8
       foundation, some of which are enumerated in opinions
       rendered in Kesavananda Bharti case. In judging the validity
       of a constitutional amendment, test is whether the amendment
       would lead to collapse of the Constitution. Merely affecting or
 c     impinging upon an Article embodying a feature that is part of
       the basic structure was not sufficient to declare an amendment
       unconstitutional. Violation of basic structure of the constitution
       must be such that the structure itself would collapse. He also
       relied upon the observations in Bhim Singh Ji vs. Union of
 o     /ndia75 particularly the following observations :
             "Therefore, what is a betrayal of the basic feature is not
             a mere violation of Article 14 but a shocking,
             unconscionable or unscrupulous travesty of the
             quintessence of equal justice. If a legislation does go
 E           that far it shakes the democratic foundation and must
             suffer the death penalty. But to permit the Bharatifl. ghost
             to haunt the corridors of the court brandishing fatal writs
             for every feature of inequality is judicial paralysation of
             parliamentary function. Nor can the constitutional
 F
             fascination for the basic structure doctrine be made a
           · trojan horse to penetrate the entire legislative camp
             fighting for a new social order and to overpower the battle
             for abolition of basic poverty by the 'basic structure'
 G           missile."
            and following observations in Ashoka Kumar Thakur
       vs. Union of/ndia 76 :-
       ,. (1981) 1 sec 166
       " (2008 J 6 sec 1
 H
    SUPREME COURT ADVOCATES-ON-RECORD                               1017
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

     "There are large number of provisions in the A
     Constitution dealing with the federal character of the
     Constitution. If any one of the provisions is altered or
     modified, that does not amount to the alteration of the
     basic structure of the Constitution. Various fundamental
     rights are given in the Constitution dealing with various B
     aspects of human life. The Constitution itself sets out
     principles for an expanding future -and is obligated to
     endure for future ages to come and consequently it has
     to be adapted to the various changes that may take
     place in human affairs."                                  C
      19.2. Applying the above 1ests it was submitted that the
Ninety-Ninth Amendment was consonant with and strengthens
the independence of judiciary while upholding the democracy,
rule of law and checks and balances. NJAC is in sync with the       D
needs of time and is modelled on checks and balances to
ensure a democratic process with plurality of views. NJAC
dilutes power of executive in favour of the judiciary. He
submitted that identity test was required to be applied which
means that after the amendment the amended Constitution             E
loses the identity of the original Constitution. There is no bar
to making changes and to adopt the Constitution to the
requirements of changing times without touching the foundation
or altering the basic constitutional pattern. He further relied
upon the observations in the Indira Gandhi and Minerva Mills        F
Ltd. cases (supra).
      19.3 The learned Attorney General further submitted that
the object of the amendment is to broad base the collegiate
body so as to provide for participatory and collective role to      G
the judiciary, the executive and the civil society. The executive
has only one member, the Law Minister. The object of having
the Law Minister is to provide information about the candidates
which information the other members may not have. The
                                                                    H
1018          SUPREME COURT REPORTS                    [2015] 13 S.C.R.


 A     eminent persons will be independently appointed by a
       committee comprising of the PM, the CJI and the Leader of
       Opposition. In this way there is no abrogation of independence
       of judiciary. Moreover, three of the six members are from the
       judiciary and thus, the right to rejectwas available to the judges,
 B     while the executive alone cannot exercise the right to reject.
       Even in Second Judges' case it is observed that the process
       of appointment is a participatory process. An area relating to
       suitability of candidates such as his antecedents and personal
       character may be better known to consultees other than the
 C     CJI. The expression, 'eminent person' is well known and it
       means distinguished in charact~r or attainments or by success
       in any walk of life. The expression 'distinguished' is used in
       Article 124 (3) providing for eligibility criteria for judges of the
       Supreme Court. Since the high powered committee
 0
       comprising three high functionaries is to appoint an eminent
       person, there is sufficient safeguard against any uncanalised
       power. The principles of constitutional trust apply to the high
       powered committee which can be trusted to select the most
 E     appropriate persons. Such eminent persons shall provide
       inputs for the· qualities which make a person suitable for
       appointment as a judge. Diversity in composition of the
       Commission will mitigate the danger of cloning. In other bodies
       also there are provisions for non judges. For example,
 F     Consumer Protection Act. Reservation in favour of minorities,
       women, Scheduled Castes, Scheduled Tribes and OBC will
        have the effect of sensitizing other members for the problems
       to be faced by these sections. Even in the report of National
        Commission to Review the Working of the Constitution
 G      (NCRWC), also known as Venkatachalliah Commission, a
        provision for an eminent person was made without prescribing
       any criteria. The eminent person will be guided by the CJI,
       who will be the Chairman and best placed to access the legal
        merit of the candidates. The executive is a key stake holder in
 H
       SUPREME COURT ADVOCATES-ON-RECORD                              1019
      ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

justice delivery system for which it is accountable to the A
 Parliament and it cannot be denied role in appointment of
judges. Mere possibility of abuse of provision cannot be a
ground for holding a provision unreasonable. Reliance has
been placed on Mafat Lal Industries Ltd. vs. Union of lndia77
which reads as under:-                                        B
        "To the same effect are the observations by Khanna, J.
        in Kesavananda Bharati v. State of Kera/a (SCR at p.
         755 : SCC p. 669). The learned Judge said: (SCC p.
        821, para 1535)                                               c
        "In exercising the power of judicial review, the Courts
        cannot be oblivious of the practical needs of the
        government. The door has to be left open for trial and
        error. Constitutional law like other mortal contrivances
        has to take some chances. Opportunity must be allowed D
        for vindicating reasonable belief by experience."
        To the same effect are the observations in T.N.
        Education Deptt. Ministerial and General Subordinate
        Services Assn. v. State of TN. [(1980) 3 SCC 97] (SCR         E
        at p. 1031) (Krishna Iyer, J.). It is equally well-settled
        that mere possibility of abuse of a provision by those in
        charge of administering it cannot be a ground for holding
        the provision procedurally or substantively
        unreasonable. In Collector of Customs v. Nathe/la              F
        Sampathu Chetty [ 1962 (3) SCR 786], this Court
        observed: ''The possibility of abuse of a statute otherwise
        valid does not impart to it any element of invalidity." It
        was said in State of Rajasthan v. Union of India [(1977)
        3 SCC 592] (SCR at p. 77), "it must be remembered             G
        that merely because power may sometimes be abused,
        it is no ground for denying the existence of power. The
        wisdom of man has not yet been able to conceive of a
11
     (1997) 5 sec 536
                                                                      H
1020         SUPREME COURT REPORTS                   [2015] 13S.C.R.


 A          government with power sufficient to answer all its
            legitimate needs and at the same time incapable of
            mischief'. (Also see Commr., H.R.E. v. Sri Lakshmindra
            Thirtha Swamiarof Sri Shirur Mutt [ (1954) SCR 1005]
            (SCR at p. 1030)."
 B
             Transparency and accountability in the matter of
       appointment are essential for public confidence in the judiciary.
       In this connection reference has been made to lnderpreet
       Singh Kah/on vs. State of Punjab78 which reads as under :-
 c           "This unfortunate episode teaches us an important
             lesson that before appointing the constitutional
             authorities, there should be a thorough and meticulous
             inquiry and scrutiny regarding their antecedents.
             Integrity and merit have to be properly considered and
 D           evaluated in the appointments to such high positions.
             It is an urgent need of the hour that in such
             appointments absolute transparency is required to be
             maintained and demonstrated. The impact of the deeds
             and misdeeds of the constitutional authorities (who are
 E           highly placed), affect a very large number of people for
             a very long time, therefore, it is absolutely imperative
             that only people of high integrity, merit, rectitude and
             honesty are appointed to these constitutional positions."
 F          19.4 These submissions cannot be accepted. It is
   obvious that pre-dominant role of the judiciary, as it exists in
   light of 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,
 G has been given a go bye. 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.
      • (2006) 11 sec 356
    1

 H
    SUPREME COURT ADVOCATES-ON-RECORD                         1021
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

Disregarding the views of the CJI is permissible in exceptional A
situations for recorded reasons having bearing on character
and antecedents of a candidate and if such reasons are found
to be acceptable to the CJJ. 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 B
unanimous view of the judges. Chief Justice of the High Court
is not a member of the Commission and has no Constitutional
role in appointment/transfer of the judges of the High Courts.
Mere fact that without the judges, the Minister and the
nominated members cannot make an appointment is not at C
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 D
with, at least as far as the Constitutional provisions are
concerned.
      19.5 The contention that the amendment strengthens the
independence of judiciary or the democracy or brings about
transparency or accountability is not shown to be based on E
any logic beyond the words. Even if in appointing two eminent
members CJI is also a member of-the Committee, the fact
remains that the PM and the Leader of the Opposition have
significant role in appointing such members, who will have
power not only equal to the CJI and two senior most judges of F
the Supreme Court in making appointment of judges of the
Supreme Court and appointment/transfer of judges of the High
Courts but also right to reject the unanimous proposal of the
CJI and the two senior most judges. Such composition of the
Commission cannot be held to be conducive to the G
independence of 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
                                                               H
1022         SUPREME COURT REPORTS                 [2015] 13 S.C.R.


 A     the independence of judiciary.
         19.6 Contention of learned Attorney General that there
   is a presumption that the Law Minister and the nominated
   members will conduct themselves in.dependently and will make
   value addition in selecting the judges in a better way cannot
 8
   be accepted. The views of the Constitution makers and
   eminent expert committees clearly show that role of the
   Executive in appointment of judges has to be minimum and by
   and large limited to check the character and antecedents of
 C 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
 o that such persons will play not merely supporting but pre-
   dominant role in appointing Supreme Court and High Court
   judges which will not be congenial to the independence of
   judiciary. There is no justification for reservation for one of the
   nominated members being from specified categories. Such
 E 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
 F 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. The plea that the Law
   Minister and the nominated members will provide feed back
   also does not provide any justification for their being members
 G 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 power to overrule
   unanimous view of judges. The appointment of a judge of the
 H Supreme Court is normally made out of Chief Justices of High
    SUPREME COURT ADVOCATES-ON-RECORD                                    1023
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

Courts or senior judges or eminent lawyers or eminent jurists ·A
whose merit is better known to senior judges. Their evaluation
has to be impartial and free from any political or other
considerations. Persons making selection are required to be
best placed to assess their merit and suitability. Pre-dominant
and de_cisive role of the judiciary is a requirement not only of B
independence of judiciary and separation of powers but also
for inspiring confidence of the people at large necessary for
strength of the Democracy. The citizens having a grievance of
violation of their fundamental and legal rights against the
Executive or the Legislature expect that their grievance is C
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 orany
other extraneous influence, faith in impartiality, which is hall D
mark of independence of judiciary, will be eroded. The scheme
in other countries cannot be mechanically followed when it is
in conflict with the basic scheme of the Indian Constitution.
      19.7 In this regard, it may be recalled that the word
amendment literally means betterment or improvement and E
sponsor of amendment may always claim improvement. Such
claim has to be tested by applying the 'identity test' and the
'impact test'. The said tests have already been mentioned in
the earlier part of its opinion. The amendment should not affect
the identity of an essential feature of the Constitution. The F
impact of the amendment on the working of the scheme of the
Constitution has to be taken into account79 • This brings to some
extent subjective element which is unavoidable even while
testing any legislation which is alleged to be violative of
fundamental rights and justified on the concept of 'reasonable G
restrictions' 80 • In.this regard, effect of Executive interference
79
   Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOJ (1978) 1
SCC 248- Para 19; LR. Coelho case - Para 149
80
   V.G. Row vs. State of Madras (1952) SCR 597
                                                                         H
1024         SUPREME COURT REPORTS                      [2015] 13 S.C.R.


.A     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, including (by way of illustration) Privy
 B Purses case 81, Bank Nationalisation Case 82, Freed<;>m of
       Press case 83, Kesavananda Bharati case (supra), Indira
       Gandhi case (supra), Minerva Mills case (supra), L.
       Chandrakumar case (supra), M. Nagaraj case (supra), l.R.
       Coelho case (supra), S.R. Bommai case 84•
 c
         19.8 The new structure provides for decisive voice with
   the Commission which apart from judges comprises of Law
   Minister and two eminent persons to be nominated by a
   specified committee. Before examining the said structure, it
 o may be noted that it is not merely the text of the amendment
   but also its impact and potential which has to be kept in mind
   on 'identity' of the original scheme and the 'width' of the power
   under the new scheme85 • In a similar context when an alternative
   judicial forum was sought to be created to deal with the
 E company matters in place of High Courts, this Court held that
   the concept of rule of law required that the new mechanism
   should, as nearly as possible, have same standards86 • Same
   view was taken in the context of setting up of National Tax
   Tribunals to substitute the jurisdiction of the High Courts in tax
 F matters87 • The new scheme may iron out the creases but the
    mechanism should be comparable to the substituted scheme.
           19.9 As already mentioned under the unamended
       scheme, as authoritatively interpreted by this Court, power of
 G     81
          Madhav Rao Jivaji Rao Scindia vs. UOI [1971 (1) SCC 85],
       82 Rustom Cavasjee Cooper vs.    Union of India [1970 (1) SCC 248]
       83
          Bennett Coleman & Co. Ltd. vs. Union of India [1972 (2) SCC 788]
       84 S.R. Bommai vs. UOI [(1994) 3 SCC 1]                 .
       85
          Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOI (1978) 1
       SCC 248 - Para 19; l.R. Coelho case - Para 149
       86
          Union of India vs. Madras Bar Asson. (2010) 11 SCC 1 - Para 108
 H     87
          Madras Bar Asson. vs. UOI (2014) 10 SCC 1 - Pars 136 and 137
      SUPREME COURT ADVOCATES-ON-RECORD                                     1025
     ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

initiating a proposal was always with the judiciary. At the time A
of making of the Constitution, the draft of the Constitution was
circulated to the Federal Court and High Courts to elicit views
of the judges. In the memorandum representing the views of
the judges, it was mentioned that the existing convention was
that appointment of judges was made after referring the matter B
to the Chief Justice and obtaining his concurrence 88 .
      19.10 In CAD, various models were considered but the
system applicable in other countries providing for final say of
the Executive or concurrence of Legislature (as in UK and USA)              c
were found to be unsuitable. It was stated by Dr. Ambedkar
that the power could not be left to be exercised on the advice
of the Executive or be made subject to concurrence of the
Legislature. It was further stated that the Chief Justice could
also not be given a veto upon the appointment of judges 89 • D
The Law Commission in its 14 1h Report criticised the
interference by the Executive in appointment of judges. The
matter came up for discussion before the Parliament and the
Home Minister and the Law Minister made a statement that all
appointments were made on the recommendation of the CJI E
as the CJI was familiar with the merits of the candidates. Out
of 211, 210 appointments were made with the consent and
concurrence of the CJl 90 • It was noted that the procedure for
appointment of judges applicable prior to Second Judge's
case was that a proposal for appointment was initiated by the F
CJI in case of the Supreme Court and by Chief Justice of the
High Court in case of the High Court Judges91 • This mechanism
was held to be a part of the convention 92 •
       19.11 In Shamsher Singh case (supra) this Court G
86
   Second Judges' case - Paras 360 and 361
89
   Statement of Dr. Ambedkar referred in Para 192 in Second Judges' case
90
   Debates reproduced in Paras 362 - 368 in Second Judges' case
91
   Para 98 Se.cond Judges' case
92
   Para 370, Kuldip Singh, J. and Para 505, Punchhi, J. in Second Judges'
case                                                                         H
1026          SUPREME COURT REPORTS                            [2015] 13 S.C.R.


 A     observed that in practice the last word in matters of judiciary
       must belong to the CJI. The same view was expressed in
       Sankalchand case (supra) in the context of transfer of
       judges93 • In 801h Report of the Law Commission headed by
       Justice H.R. Khanna, J. (1979), a Commission was proposed
 B     with a pre-dominant voice of judiciary to deal with the
       appointment and transfer of judges. The Report was significant .
       in the background of supersession of judges in appointment
       of the CJ I and selective transfer of judges which were perceived
       to be interference with the independence of judiciary. However,
 C     contrary to the said recommendations, a circular was issued
       by the Law Minister in 1981 proposing transfer of judges and
       making appointment of judges for short period which itself was
       perceived to be interference with the independence of judiciary
       and was challenged in First Judges' case. As already
 0
       mentioned, the majority held that primacy in such matters rested
       with the Central Government 94 • The said view was subject
       matter of severe criticism. Eminent constitutional expert
       Seervai commented that the Executive was not qualified to
 E     assess the merits or demerits of a candidate. Initiation of a
       proposal by the Executive was against the intention of the
       framers of the Constitution. Political, Executive or Legislative
       pressure should not enter into the appointment of a judge 95 •
       The Law Commission headed by Justice D.A. Desai in its
 F      121•1 Report also criticised the system where the Executive
       had overriding powers in the matter of appointment of judges.
        He stated that power to appoint and transfer judges of superior
       courts by the Executive affects independence of judiciary and
       is not conducive to its healthy growth. He recommended a
 G      Judicial Commission to check the arbitrariness on the part of
       the Executive in such appointments and transfers 96 •
       93 Paras 39, 41 Chandrachud, J.; 50-52 Bhagwati, J.; 103, 115 Krishna Iyer, J.,
       94
          Para 30 - First Judges' case
       95
          Seervai, 41h Edition, Constitutional Law of India - Paras 25.350, 25.353 and
       25.354
 H     96
          Para 7 .5 and 7 .8 - 121" Report of the Law Commission
      SUPREME COURT ADVOCATES-ON-RECORD                                   1027
     ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

      19.12 The interpretation in the Second Judge's case A
was in the above historical background. In the context of
working of the Indian Constitution, the dominant role of the
Executive in appointment of judges adversely affected the
independence of judiciary. The judiciary is assigned important
role for upholding the rule of law and democracy. Its B
independence and its power of judicial review are part of basic
structure. Primacy of judiciary in appointment of judges is part
of basic structure. In this background question is whether the
new scheme retains the said primacy of judiciary in
appointment of judges.                                           C
      19.13 Under the new scheme, the Law Minister has been
given 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 finalizing it. Law D
Minister, in 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 judiciary as declared by this Court authoritatively. E
Any deviation in the past was always adversely commented
upon and held to be undesirable amounting to interference
with the independence of judiciary97 • Other two persons to be
nominated by a Committee which also has predominant
political voice to be placed at par with the CJI in initiating and F
finalizing 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
independence of judiciary but equal participation by the Law
Minister and two outsiders in final decision for initiation or G
appointment can be detrimental to the independence of
judiciary. It cannot be wished away by presuming that the Law
Minister and the two distributors will not be influenced by any
97
   Para 505, Punchhi, J.; Paras 210,214, Pandian. J.; Paras 361 to 376,
Kuldip Singh, J. in Second Judges' case                                   H
1028        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


 A extrameous consideration. Such a presumption will be contrary
   to the acknowledged factual experience. It will also be against
   the concept of separation of jt 1diciary from the Executive. More
   over this will be contrary to the basic intention of the Constitution
   makers. The amendment is not an insignificant amendment
 B and is not within the basic framework of the working of the
   Constitution. The very premise and object of the 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 judiciary was evolved by
 C erroneous interpretation which is sought to be corrected. It is
   stated that the primacy of judiciary was undemocratic and
   denied the Executive a meaningful role. These reasons are
   untenable for reasons already discussed. As regards the plea
   of transparency and accountability, the same has to be
 0
   achieved without compromising independence of judiciary. If
   on the perceived plea of transparency and accountability, the
   independence of judiciary is sought to be adversely affected
   by the Amendment, this will cause severe damage to the
 E functioning of the Constitution. The primacy of judiciary, as
   already noticed, is integral to the independence of judiciary,
   separation of powers, federalism and democracy, rule of law
   and supremacy of the Constitution. The amendment does away
   with the primacy of even unanimous opinion of the judicial
 F members as such opinion is not enough to finalise an
   appointment. While Shri Venugopal has rightly stated in his
   alternative submission that primacy of judiciary is part of judicial
    independence and if Executive has pre-dominant voice, it could
   subvert independence of-judiciary, his submission that the
 G situation could be retrieved by giving the suggested
    interpretation cannot be accepted. Such interpretation is not
   warranted by the text of the amendment or by the principles of
    interpretation. It is difficult to hold that primacy of judiciary is
    still retained as a wrong proposal can still be stalled by any
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                         1029
    ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

two members, including two judges. The primacy of judiciary A
as always understood in binding judicial precedents comprises
of initiation of name and taking a final call 98 • These two core
features constitute identity of the primacy of judiciary. Subject
to these two features, any amendment could have been made
and if these two features are compromised, the basic identity B
of the Constitution can be held to have been altered or
damaged.
      19.14 There can be no doubt about the propositions
forcefully canvassed by the respondents that the legislative                   c
wisdom of the choice of the Parliament was 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 basic feature was sought to be altered, is different D
from questioning the wisdom of the Parliament. It is testing
the power of Parliament conferred by the Constitution. Similarly
determining whether the new mechanism complied with the
framework of the Constifution is different from the issue of
possibility of abuse. In the present case, question is of E
independence of judiciary which implies having judges not
influenced by any political consideration as per the intention
of framers of the Constitution. Even assuming the best of
intention, can the power of judicial review by the constitutional
courts be subjected to scrutiny by any 'eminent persons' on F
the ground that working of the judiciary was perceived to be
unsatisfactory. Obviously it will be clear interference with
independence of judiciary99 • Same way, constitutionally
conferred judicial primacy in appointment of judges cannot be
whittled down or sought to be controlled by those who are not G
given or allowed to take over such functions. Even granting
 98 Paras 471, 478, 486(2), 486 (3), 486(4 and 5) , Verma,   J.
 99 By way of illustration : P. Sambamurthy vs.
                                             State of A.P. [(1994) 3 SCC 1];
. Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535; Union of India vs. Madras
  Bar Asson. (2010) 11 sec 1; Madras Bar Asson. VS. UOI (2014) 10 sec 1         H
1030             SUPREME COURT REPORTS                        [2015] 13 S.C.R.


 A the best of intentions, the Parliament could not act beyond the
   authority conferred on it by the Constitution. Thus, taking away
   primacy of judiciary or conferring such primacy on a body which
   is not at par with the said concept is certainly not a choice
   available with the Parliament. As already mentioned, the
 B concept of primacy of judiciary comprises of initiating the
   proposal and taking a final decision in case any adverse feed
   back 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
 C 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 pre-dominant voice is not
   of the judiciary. The impact of such appointments will be that
 0
   the judges appointed will owe their appointments to the
   Executive which may be destructive of the public confidence
   and impartiality of judiciary and adversely affect the role of the
   judiciary as an important impartial ·constitutional organ. As
 E already noted, the role of the judiciary is to define and regulate
   working of other constitutional authorities within the scope of
   roles assigned to them 100 •
         19.15 If the amendment had merely provided for advisory
   or recommendatory role to the Law Minister or the non-judicial
 F 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
 G of wisdom of Parliament nor on the principles of trust once
   such power is in violation of principle of primacy of judiciary in
   appointment of judges. No individual instance either of working
   of the Executive or Legislature or the existing system of
 H     100
             Special Reference No.1 (1965) 1 SCC 413 at 446
    SUPREME COURT ADVOCATES-ON-RECORD                               1031
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

appointment of judges need be discussed as the issue                A
involved here is of interpretation of the Constitution and not of
success or failure of any individual or persons. As already
mentioned, 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     B
the Constitution or the same being damaged.
     20. Reference may now be made to the submission of
learned counsel for the respondents that in many countries
without primacy of judiciary in appointment of judges,              c
independent judiciary is functioning and thus unfettered judicial
primacy was inconsistent with the international trend. Particular
mention has been made of 15 countries, namely, Kenya,
Pakistan, South Africa, UK, Israel, France, Italy, Nigeria, Sri
Lanka, Australia, Canada, New Zealand, Bangladesh,                  D
Germany and United States.
      20.1 The submission of learned Attorney General in
relation to judicial appointments in the said 15 countries is as
follows:
                                                                    E
       "a. 9 countries conduct appointment ofjudges through
      either judicial appointment commissions (Kenya,
      Pakistan, South Africa and UK}, committees (Israel) or
      councils (France, Italy, Nigeria and Sir Lanka); 4
      countries appoint judges through a direct order of the F
      Governor General (Australia, Canada, New Zealand)
      or the President (Bangladesh), where applicable; 1
      (Germany) follows a multi-stage process of nomination
      by the Minister of Justice, confirmation by
      Parliamentary Committees and final appointment by G
      the President; and 1 (United States) follows a process
      of nomination by the President (executive) and
      confirmation by the Senate (legislature).
      b. In all 15 countries, the executive is the final or H
1032   SUPREME COURT REPORTS                  [2015] 13 S.C.R.


 A     determinative appointing authority. Out of the 9
        countries with commissions, in 2 countries (South Africa
       and Sri Lanka) the executive has absolute majority in
        comparison with members of other groups ljudiciary,
       legislature and independent persons). In 4 countries
 B      (France, Israel, Kenya and UK) there is a balanced
       representation of various stakeholders, including the
        executive. Out of 3 countries where the number of
       judges are in a majority (Italy, Nigeria and Pakistan), in
        2 countries (Nigeria and Pakistan) the decision of the
 c      commission is subject to the vote of a parliamentary
        committee/Senate, while in 1 (Italy), the President of
        the Republic is the final appointing authority and the
        chairman of the judicial appointment body. In 5 of the
        countries without commissions (Canada, Australia, New
 D
        Zealand, Bangladesh and United States of America),
        the decision is taken by the Executive without any formal
       process of consultation with the judiciary, while in 1
        (Germany), the appointment process is conducted by
        the Parliament, and later confirmed by the President.
 E
       c. In 8 countries (France, Israel, Italy, Kenya, Nigeria,
       Pakistan, South Africa and UK) with bodies for judicial
       appointments, independent members have a mandated
       role in the selection process through representation on
 F     the said bodies. In 4 countries where independent
       members do not play a formal role in the appointment
       process (Canada, USA, Australia and New Zealand),
       the appointing authority (body or person) consults
       independent members at various stages of the
 G     appointment process for their feedback on the selection
       or recommendation of a prospective candidate. In 3
       countries (Bangladesh, Germany and Sri Lanka) no
       documented process of consultation with independent
       members is provided for."
 H
     SUPREME COURT ADVOCATES-ON-RECORD                                            1033
    ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

       20 .2 Learned counsel for the respondents also referred                    A
to criticism of the collegium system by some jurists including
the eminent jurist Shri Nariman, appearing in the present case
for the petitioners.
       20.3 On the other hand, Shri Nariman opposed the above
                                                                 8
submissions and referred to decisions of this Court particularly
Kesavananda Bharti case, Indira Gandhi case and
Minerva Mills case, where the Constitution amendments were
struck down. He also referred to expert studies including
reports of the 14 1h and 121•1 Law Commissions and the C
National Commission to Review the Working of the Constitution
(NCRWC), headed by Justice M.N. Venkatachaliah (retired
CJI), wherein it was observed that independence of judiciary
was basic feature of the Constitution and composition of a
National Commission was required to be consistent with the D
concept of independence of judiciary. Method of appointment
of judges could not be altered in such a way as may impinge
upon the independence of judiciary. Composition of a Judicial
Commission has to uphold the primacy of judiciary. 101
      20.4 Shri Nariman also submitted that the impugned E
amendment was introduced in response to decisions of this
Court affecting certain legislators. He submitted that
independent functioning of the judiciary often comes in conflict
with the Executive and the Legislature but mandate of the F
Constitution of upholding the independence of judiciary was
necessary to inspire faith of citizens in impartial justice and to
uphold the constitutional values like the Rule of law and the
Democracy, by upholding protection of fundamental rights even
against the State. He particularly made reference to the history G
of proposed Forty-Fifth Amendment vide Bill 88 of 1978 to
provide in Article 368 that an Amendment compromising the
independence of judiciary could be made by approval by
 101
     (Paras 9.6 and 9.7 of the Report dated 26.9.2001 as included in Vol. II of
the Report of the NCRWC, 2002)                                                    H
1034            SUPREME COURT REPORTS                 [2015] 13 S.C.R.


 A majority at a referendum. The same was brought about by the
   Janta Government led by leaders who were arrested during
   emergency. It was not approved for want of majority in Rajya
   Sabha. He also referred to decisions of this Court Lily Thomas
   vs. Union of lndia 102 and Chief Election Commissioner
 B vs. Jan Chaukidar103 holding that a member of a Legislature
   will stand qualified onconviction and that a person confined in
   jail could not contest an election and efforts to undo such
   decisions. He also referred to the treatise, Constitutional
   Law of India by Seervai; 4th Edition, to the effect that the
 C decision of First Judges' case put the judicial independence
   at the mercy of the Executive 104 •
             20.5 He also gave a personal note, in response to
       reliance on behalf of the respondents on his own biography
 D     "Before Memory Fades" as follows:-
               "/ have been, and I continue to be, a supporter of the
               "Judicial-Appointment-Commission-system" and so
               are my clients whom I represent (this is so stated in the
               Writ Petition at page 26 to 31, and 44 to 45). BUT I am
 E             definitely opposed to a pretence of a Judicial
               Appointments Commission - which in reality is not
               ;udicial, onlv partlv or quasi iudicial. The "Judicial
               Appointments Commission system" (so called) as
               embodied in the ggrh Constitutional Amendment, 2014
 F
               and along with the NJAC Act, 2014, is opposed
               BECAUSE is not in accordance with and does not
               conform to the Beiiing Principles on Independence of
               the Judiciary (by which we in India are governed). The
 G             principles were formulated after long deliberation by
               Heads of the Judiciary in the LA WAS/A region
               (including India's Chief Justice) - who are all signatories
       102 2013 (7)   sec 653
       103 2013 (7)   sec 507
 H     104
             Paras 25.350 to 25.354
 SUPREME COURT ADVOCATES-ON-RECORD                           1035
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

 to the Beijing Principle.   Principles No. 15 reads as      A
 fol/ows:-
    "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
                                                             8
    means of ensuring that those chosen 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      c
    that judicial competence, integrity and independence
    are maintained."
  Note - NOT OUTSIDERS, not representatives of the
  EXECUTIVE: because this is not helpful in the interests
  of maintaining the INDEPENDENCE OF THE D
  JUDICIARY. Text of Beijing Principles are annexed
  as Exhibit-II.
  The then Law Minister had stated in Parliament, when
  these measures were first introduced, that he had           E
  consulted named persons including mvself - and as to
  what I said is accurately recorded in the Minutes of the
  Meeting prepared by the office of the Law Minister. This
  is what the minutes record:
         Constitutional Expert and Senior Advocate, F
    Shri Fali Nariman stated that it is important to
    remember the independence of the judiciary and the
    separation of powers. The basic structure doctrine
    as laid dowr-1 by the Supreme Court in the
    Keshavananda Bharti case could not be violated and G
    any proposal for appointment of judges must be in
    conformity with the basic structure. He felt that the
    Government should consider following the model of
    the Appointments Commission as suggested bv the H
1036             SUPREME COURT REPORTS                      [2015] 13 S.C.R.


 A                 Justice Venkatchaliah Commission that gave
                   dominance to the judiciarv in the appointment
                   process. He stated that composition of the
                   Commission is the basic issue and a Commission
                   with non-Judge domination would not be viable in
 B                 India ........................ "
             21. As already mentioned, the Constitution of India has
       its own background and personality 105 . Models of other
       countries could not be blindly followed so as to damage the
 C     identity and personality of the Indian Constitution. The Judicial
       Commissions referred to by learned Attorney General do not
       show the trend of reducing the pre-existing role of judiciary. In
       fact, the trend is for reducing the pre-existing role of the
       Executive. In the impugned amendment it is the reverse. Thus,
 o     the contention of working of other Constitutions or setting up
       of judicial Commissions with varying compositions in other
       countries does not justify the impugned amendment which is
       contrary to the basic structure of the Indian Constitution.
         22. There is also no merit in the contention that in the
 E 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 judiciary. As already mentioned,
 F appointment of judges has always been considered in the
   scheme of the working of the Indian Constitution to be integral
   to the independence of judiciary. It is for this reason that
   primacy in appointment of judges has always been intended
   to be of the judiciary. Pre-dominant rol~ of the Executive is not
 G permissible. Such primacy comprises of initiating the proposal
   by the judiciary and final word being normally with the CJI (in
   representative capacity). This scheme is beyond the power
   of amendment available to the Parliament.

 H     105
             R.C. Poudyal vs. UOI (1994) Supp. 1 SCC 324, para 53
    SUPREME COURT ADVOCATES-ON-RECORD                             1037
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

      22.1 In the new s~heme, the Chief Justices of the High A
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 B
the quality of the candidate selected and thereby the
independence of judiciary. The statutory provision in the NJAC
Act will be gone into separately.
       22.2 The contention of learned Attorney General that the c
amendment was justified to uphold t.he principles of checks
and balances and transparency which were equally important
constitutional values cannot be accepted. Even assuming that
there is a scope for improvement in the working of the collegium
system, it can.not be held that under the existing system there D
is no transparency or checks and balances. The procedure
laid down in memoranda issued by the Central Government
has been noted in the earlier part of this opinion. All
proceedings in initiating a proposal are in writing and are
forwarded to the constitutional functionaries. The Chief E
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 F
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 the civil society through the constitutional
functionaries involved. Thus, there is transparency as well as G
checks C)nd 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.
                                                                     H
1038          SUPREME COURT REPORTS                        [2015] 13 S.C.R.


 A        22.3 Learned Attorney Generarsought to compare the
   existing provision for veto by two members of collegium in
   appointment of Supreme Court Judges as per Third Judges'
   case to justify veto under Section 6 (6). As already mentioned,
   the role of the Law Minister and the non-judge members cannot
 B be placed at 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 a non-
   judge members, as against a Supreme Court Judge who is
   the member of the collegium, may involve interference with
 C the independence of judiciary. Similarly, requirement of special
   majority in any other ordinary situation was 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
 0
   and the Judges in discharging their functions of initiating a
   proposal or taking a final view. Though, formal act of
   appointment of judges may pe an executive function, there is
   a unique judicial element in the process of appointment of
 E judges of constitutional courts. The criticism against perceived
   short comings in the working of the collegium also does not
   justify the impugned provisions. As already observed, there
   may be criticism even against discharging of judicial functions
   by the aggrieved parties or otherwise. But that does not justify
 F interference with the judicial decisions 106 . 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.
             Conclusion:-
 G
            22.4 I would conclude that the new scheme damages
       the basic feature of the Constitution under which primacy in
       100
            P. Sambamurthy vs. State of A.P. (1987) 1 SCC 362 - Paras 3 and 4,
       striking down Article 3710(5), Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC
       535 - Para 15 - 17, striking down Section 3470 of the Delhi Municipal
 H     Corporation Act, 1957 (66 of 1957)
         SUPREME COURT ADVOCATES-ON-RECORD                                1039
        ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

     appointment of judges has to be with the judiciary. Under the        A
     new scheme such primacy has been given a go-bye. Thus the
     impugned amendment cannot be sustained.
          F. Validity of the NJAC Act
       _ 23. In view of my conclusion about the amendment being           B
     beyond the competence of the Parliament, I do not consider it
     necessary to discuss the validity of the NJAC Act in great detail
     as the said Act cannot survive once the amendment is struck
     down. However, consistent with my earlier view that primacy
     of judiciary in appointment of judges cannot be compromised          C
     and on that ground not only Section 2 of the Amendment
     dispensing with the mandatory consultation with the judiciary
     as contemplated under the unamended provisions, Section 3
     conferring power on the NJAC (under Article 1248) and
     providing for composition of the Commission under Article            D
     124A giving a role to the Law Minister and two eminent persons
     equal to the CJI in recommending appointments as CJI, Judges
     of Supreme Court, 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      E
     124C giving power to the Parliament to regulate the procedure
     and to lay down the manner of selection was also
     unconstitutional, the impugned Act has to be struck down. It
     goes far beyond the procedural aspects. In Section 5 (2)
     'suitability criteria' is left to be worked out by regulations.       F
     Second proviso to Section 5 (2) and Section 6 (6) give veto to
     two members of the Commission which is not contemplated
     by the Amendment. Section 5 (3) and Section 6 (8) provide
     for conditions for selection to be laid down by regulations which     G
     are not mere procedural matters. Section 6 authorises the
     recommendations for appointment as judges 9f the High Courts
11   without the proposal being first initiated by the Chief Justice of
     the High Court. Section 6 (1) provides for recommendation
                                                                           H
1040       SUPREME COURT REPORTS                   [2015] 13 S.C.R.


 A 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
   senior most. Section 6 (2) provides for seeking nomination
 B from 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 see!:< comments
   from Chief Justice after short listing the candidates by itself.
   Section 8 enables the Central Government to appoint officers
 C 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 the Parliament. These
   provisions in the Act impinge upon the independence of
 D
   judiciary. Even if the dc;ictrine of basic structure is not applied
   in judging the validity of a parliamentary statute, independence
   of judiciary and rule of law are parts of Articles 14, 19 and 21
   of the Constitution and absence of independence of judiciary
 E affects the said Fundamental Rights. The NJAC Act is thus
   liable to be struck down.
           G. Effect of Amendment being struck down
          24. The contention that even if Amendment is held to be
 F 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 position has not been made clear While deciding
 G an issue. Power of this Court to declare the effect of its order
   cannot be doubted nor the decisions relied upon by the
   respondents show otherwise. I hold that on amendment being
   struck down, the pre-existing system stands revived.
           H. Review of Working of the Existing System
 H
    SUPREME COURT ADVOCATES-ON-RECORD                              1041
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.)

      25. Since the system existing prior to amendment will A
stand revived on the amendment being struck down and
grievances have been expressed about its functioning, I am of
the view that 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 system of B
appointment but about its functioning in practice. It has been
argued that this Court can go into this aspect without re-visiting
the earlier decisions of the larger Benches. I am of the view
that such grievances ought to be gone into for which the matter
needs to be listed for hearing.                                    C
     Conclusion
      26. The impugned Amendment and the Act are struck
down as unconstitutional. Pre-existing scheme of appointment
of judges stands revived. The matter be )isted for                  D
consideration of the surviving issue of grievances as to working
of pre-existing system.
     APPENDIX
      (I) Key Provisions of the Unamended Constitution              E
     "124. Establishment and constitution of Supreme
     Court - (1) There shall be a Supreme Court of India
     consisting of a Chief Justice of India. and, until
     Parliament by law prescribes a larger number, of not           F
     more than seven other Judges.
     (2) Every Judge of the Supreme Court shall be
     appointed by the President by warrant under his hand
     and seal after consultation with such of the Judges of
     t~e Supreme Court and of the High Courts in the States G
     as the President may deem necessary for the purpose
     and shall hold office until he attains the age of sixty-
     five years:

                                                                    H
1042      SUPREME COURT REPORTS                  [2015] 13 S.C.R.


 A        Provided that in the case of appointment of a Judge
          other than the Chief Justice, the Chief Justice of India
          shall always be consulted:
          Provided further that-
 s        (a) a Judge may, by writing under his hand addressed
          to the President, resign his office;
          (b) a Judge may be removed from his office in the
          manner provided in clause (4).
 c        xxxxxxx
          217. Appointment and conditions of the office of a
          Judge of a High Court- Every Judge of a High Court
          shall be appointed by the President by warrant under
          his hand and seal after consultation with the Chief
 D        Justice of India, the Governor of the State, and, in the
          case of appointment of a Judge other than the Chief
          Justice, the Chief Justice of the High court, and shall
          hold office, in the case of an additional or acting Judge,
          as provided in Article 224, and in any other case, until
 E.
          he attains the age of sixty two years:
          xxxxxx
          222. Transfer of a Judge from one High Court to
          another- The President may, after consultation with the
 F        Chief Justice of India, transfer a Judge from one High
          Court to any other High Court.
          xxxxx"
          (II) The 99 1h Amendment Act
 G     ''THE CONSTITUTION (NINETY-NINTH AMENDM~NT)
                         ACT, 2014
                                            [31 51 December, 2014]
          An Act further to amend the Constitution of India .
 .H
 SUPREME COURT ADVOCATES-ON-RECORD                              1043
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

 Be it enacted by Parliament in the Sixty-fifth Year of A
 the Republic of India as follows:-
  1. (1) This Act may be called the Constitution (Ninety-
    ninth Amendment) Act, 2014.
   (2) It shall come into force on such date as the Central
                                                                8
   Government may, by notification in the Official
   Gazette, appoint.
  2. In article 124 of the Constitution, in clause (2),-
  (a for the words "after consultation with such of the C
  Judges of the Supreme Court and of the High Courts
  in the States as the President may deem necessary for
  the purpose", the words, figures and letter "on the
  recommendation of the National Judicial Appointments
  Commission referred to in article 124A" shall be D
  substituted;
  (b) the first proviso shall be omitted;
  (c) in the second proviso, for the words "Provided further
  that", the words "Provided that" shall be substituted.
                                                                 E
  3. After article 124 of the Constitution, the following
  articles shall be inserted, namely:-
  "124A. (1) There shall be a Commission to be known
  as the National Judicial Appointments Commission
  consisting of the following, namely:-                          F
     (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;                                        G
    (c) the Union Minister in charge of Law and Justice-
    -Member, ex officio;
     (d) two eminent persons to be nominated by the
                                                                 H
1044   SUPREME COURT REPORTS                [2015] 13 S.C.R.


 A       committee consisting of the Prime Minister, the Chief
         Justice of India and the Leader of Opposition in the
         House of the People or where there is no such Leader
         of Opposition, then, the Leader of single largest
         Opposition Party in the House of the People -
 B       Members:
         Provided that one of the eminent person shall be
         nominated from amongst the persons belonging to
         the Scheduled Castes, the Scheduled Tribes, Other
 c       Backward Classes, Minorities or Women:
         Provided further that an eminent person shall be
         nominated for a period of three years and shall not
         be eligible for renomination.
         (2) No act or proceedings of the National Judicial
 D
         Appointments Commission shall be questioned or
         be invalidated merely on the ground of the existence
         of any vacancy or defect in the constitution of the
         Commission.
 E     1248. It shall be the duty of the National Judicial
       Appointments Commission to-
         (a) recommend persons for appointment as Chief
         Justice of India, Judges of the Supreme Court, Chief
 F       Justices of High Courts and other Judges of High
         Courts;
         (b) recommend transfer of Chief Justices and other
         Judges of High Courts from one High Court to any
         other High Court; and
 G
         (c) ensure that the person recommended is of ability
         and integrity.
       124C. Parliament may, by law, regulate the procedure
       for the appointment of Chief Justice of India and other
 H
                ~




 SUPREME COURT ADVOCATES-ON-RECORD                                1045
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

 Judges of the Supreme Court and Chief Justices and               A
 other Judges of High Courts and empower the
 Commission to lay down by regulations the procedure
 for the discharge of its functions, the manner of selection
 of persons for appointment and such other matters as
 may be considered necessary by it.".                             B
 4. In article 127 of the Constitution, in clause (1 ), for the
 words "the Chief Justice of India may, with the previous
 consent of the President", the words "the National
 Judicial Appointments Commission on a reference                  c
 made to it by the Chief Justice of India, may with the
 previous consent of the President" shall be substituted.
 5. In article 128 of the Constitution, for the words "the
 Chief Justice of India", the words "the National Judicial
 Appointments Commission" shall be substituted.                   D

 6. In article 217 of the Constitution, in clause (1), for the
 portion beginning with the words "after consultation",
 and ending with the words "the High Court", the words,
 figures and letter "on the recommendation of the                  E
 National Judicial Appointments Commission referred
 to in article 124A" shall be substituted.
  7. In article 222 of the Constitution, in clause (1), for the
  words "after consultation with the Chief Justice of India';
  the words, figures and letter "on the recommendation             F
  of the National Judicial Appointments Commission
  referred to in article 124A '.'shall be substituted.
  8. In article 224 of the Constitution,-
     (a) in clause (1), for the words "the President may G
     appoint", the words "the President may, in
     consultation with the National Judicial Appointments
     Commission, appoint" shall be substituted;

                                                                   H
1046        SUPREME COURT REPORTS                   [2015] 13 S.C.R.


 A            (b) in clause (2), for the words "the President may
              appoint", the words "the President may, in
              consultation with the National Judicial Appointments
              Commission, appoint" shall be substituted.
            9. In article 224A of the Constitution, for the words "the
 B
            Chief Justice of a High Court for any State may at any
            time, with the previous consent of the President", the
            words "the National Judicial Appointments Commission
            on a reference made to it by the Chief Justice of a High
 c          Court for any State, may with the previous consent of
            the President" shall be substituted.
            10. In article 231 of the Constitution, in clause (2), sub-
            clause (a) shall be omitted."
            {II) The NJAC Act
 D
             "THE NATIONAL JUDICIAL APPOINTMENTS
               COMMISSION ACT, 2014 NO. 40 OF 2014
                                              {31 51 December, 2014]
 E          An Act to regulate the procedure to be followed by the
            National Judicial Appointments Commission for
            recommending persons for appointment as the Chief
            Justice of India and other Judges of the Supreme Court
            and Chief Justices and other Judges of High Courts
 F          and for their transfers and for matters connected
            therewith or incidental thereto.
            Be it enacted by Parliament in the Sixty-fifth Year of
       the Republic of India as follows:-
 G          1. (1) This Act may be called the National Judicial
            Appointments Commission Act, 2014.
            (2) It shall come into force on such date as the Central
            Government may, by notification in the Official Gazette,
            appoint.
 H
 SUPREME COURT ADVOCATES-ON-RECORD                              1047
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

 2. In this Act, unless the context otherwise requires,-        A
  (a) "Chairperson" means the Chairperson of the
  Commission;
 (b) "Commission" means the National Judicial
 Appointments Commission referred to in article 124A            B
 of the Constitution;
 (c) "High Court" means the High Court in respect of
 which recommendation for appointment of a Judge is
 proposed to be made by the Commission;
                                                                c
 (d) "Member" means a Member of the Commission and
 includes its. Chairperson;                 ·
  (e) "prescribed" means prescribed by the rules made
  under this Act;
                                                                D
  (f) "regulations" means the regulations made by the
  Commission under this Act.
  3. The Headquarters of the Commission shall be at
  Delhi.
                                                                 E
  4. (1) The Central Government shall, within a period of
  thirty days from the date of coming into force of this Act,
  intimate the vacancies existing in the posts of Judges
  in the Supreme Court and in a High Court to the
  Commission for making its recommendations to fill up           F
  such vacancies.
  (2) The Central Government shall, six months prior to .
  the date of occurrence of any vacancy by reason of
  completion of the term of a Judge of the Supreme Court
  or of a High Court, make a reference to the Commission G
  for making its recommenda.tion to fill up such vacancy.
  (3) The Central Government shall, within a period of
  thirty days from the date of occurrence of any vacancy
                                                                 H
1048    SUPREME COURT REPORTS                  (2015] 13 S.C.R.

 A     by reason of death or resignation of a Judge of the
       Supreme Court or of a High Court, make a reference to
       the Commission for making its recommendations to
       fill up such vacancy.
       5. (1) The Commission shall recommend for
 B
       appointment the senior-most Judge of the Supreme
       Court as the Chief Justice of India if he is considered fit
       to hold the office: Provided that a member of the
       Commission whose name is being considered for
 c     recommendation shall not participate in the meeting.
       (2) The Commission shall, on the basis of ability, merit
       and any other criteria of suitability as-may be specified
       by regulations, recommend the name for appointment
       as a Judge of the Supreme Court from amongst
 D     persons who are eligible to be appointed as such under
       clause (3) of article 124 of the Constitution:
       'Provided that while making recommendation for
        appointment of a High Court Judge, apart from seniority,
 E      the ability and merit of such Judge shall be considered:
       Provided further that the Commission shall not
       recommend a person for appointment if any two
       members of the Commission do not agree for such
       recommendation.
 F
       (3) The Commission may, by regulations, specify such
       other procedure and conditions for selection and
       appointment of a Judge of the Supreme Court as it may
       consider necessary.
 G     6. (1) The Commission shall recommend for
       appointment a Judge of a High Court to be the Chief
       Justice of a High Court on the basis of inter se seniority
       of High Court Judges and ability, merit and any other
       criteria of suitability as may be specified by regulations.
 H
 SUPREME COURT ADVOCATES-ON-RECORD                        1049
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.)

 (2) The Commission shall seek nomination from the        A
 Chief Justice of the concerned High Court for the
 purpose of recommending for appointment a person
 to be a Judge of that High Court.
 (3) The Commission shall also on the basis of ability,
                                                           8
 merit and any other criteria of suitability as may be
 specified by regulations, nominate name for
 appointment as a Judge of a High Court from amongst
 persons who are eligible to be appointed as such under
 clause (2) of article 217 of the Constitution and forwardc
 such names to the Chief Justice of the concerned High
 Court for its views.
  (4) Before making any nomination under sub-section
  (2) or giving its views under sub-section (3), the Chief
  Justice of the concerned High Court shall consult two D
  senior-most Judges of that High Court and such other
  Judges and eminent advocates of that High Court as
  may be specified by regulations.        '
  (5) After receiving views and nomination under sub- E
  sections (2) and (3), the Commission may recommend
  for appointment the person who is found suitable on
  the basis of ability, merit and any other criteria of
  suitability as may be specified by regulations.
  (6) The Commission shall not recommend a person          F
  for appointment under this section if any two members
  of the Commission do not agree for such
  recommendation.
  (7) The Commission shall elicit in writing the views of G
  the Governor and the Chief Minister of the State
  concerned before making such recommendation in
  such manner as may be specified by regulations.
  (8) The Commission may, by regulations, specify such
                                                           H
                                 .·
1050   SUPREME COURT REPORTS                 [2015] 13 S.C.R.


 A     other procedure and conditions for selection and
       appointment of a Chief Justice of a High Court and a
       Judge of a High Court as it may consider necessary.
       7. The President shall, on the recommendations made
       by the Commission, appoint the Chief Justice of India
 B
       or a Judge of the Supreme Court or, as the case may
       be, the Chief Justice of a High Court or the Judge of a
       High Court:
       Provided that the President may, if considers
 c     necessary, require the Commission to reconsider, either
       generally or otherwise, the recommendation made by
       it:
       Provided further that if the Commission makes a
       recommendation after reconsideration in accordance
 D
       with the provisions contained in sections 5 or 6, the
       President shall make the appointment accordingly.
       8. (1) The Central Government may, in consultation with
       the Commission, appoint such number of officers and
 E     other employees for the discharge of functions of the
       Commission under this Act.
       (2) The terms and other conditions of service of officers
       and other employees of the Commission appointed
 F     under sub-section (1) shall be such as may be
       prescribed.
       (3) The Convenor of the Commission shall be the
       Secretary to the Government of India in the Department
       of Justice.
 G
       9. The Commission shallrecommend for transfer of
       Chief Justices and other Judges of High Courts from
       one High Court to any other High Court, and for this
       purpose, specify, by regulations, the procedure for such
 H
 SUPREME. COURT ADVOCATES-ON-RECORD                            1051
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]
    .
 transfer.                                                     A
 10. (1) The Commission shall have the power to specify,
 by regulations, the procedure for the discharge of its
 functions.
 (2) The Commission shall meet at such time and place           B
 as the Chairperson may direct and observe such rules
 of procedure in regard to the transaction of business at
 its meetings (including the quorum at its meeting), as it
 may specify by regulations.
  11. (1) The Central Government may, by notification in
                                                               c
  the Official Gazette, make rules to carry out thf!
  provisions of this Act.
  (2) In particular and without prejudice to the generality
  of the foregoing power, such rules may provide for all        D·
  or any of the following matters, namely:-
   (a) the fees and allowances payable to the eminent
  persons nominated under sub-clause (d) of clause (1) ·
  of article 124A of the Constitution;
                                                                E
   (b) the terms and other conditions of service of officers
  and other employees of the Commission under sub-
  section (2) of section 8;
   (c) any other matter which is to be, or may be,
  prescribed, in respect of which provision is to be made       F
  by the rules.
  12. (1) The Commission may, by notification in the
  Official Gazette, make regulations consistent with this
  Act, and the rules made thereunder, to carry out the          G
  provisions of this Act.
  (2) In particular, and without prejudice to the generality
  of the foregoing power, such regulations may provide
  for all or any of the following matters, namely:-
                                                                H
1052   SUPREME COURT REPORTS                   [2015] 13S.C.R.


 A     (a) the criteria of suitability with respect to appointment
       of a Judge of the Supreme Court under sub-section (2)
       of section 5;
        (b) other procedure and conditions for selection and
       appointment of a Judge of the Supreme Court under
 B
       sub-section (3) of section 5;
       (c) the ~riteria of suitability with respect to appointment
       of a Judge of the High Court under sub-section (3) of
       section 6;
 c     (d) other Judges and eminent advocates who may be
       consulted by the Chief Justice under sub-section (4) of
       section 6;
        (e) the manner of eliciting views of the Governor and
 D     the Chief Minister under sub-section (7) of section 6;
        (f) other procedure and conditions for selection and
       appointment of a Judge of the High Court under sub-
       section (8) of section 6;

 E     (g) the procedure for transfer of Chief Justices and other
       Judges from one High Court to any other High Court
       under section 9;
        (h) the procedure to be followed by the Commission in
       the discharge of its functions under sub-section (1) of
 F
       section 10;
       (i) the rules of procedure in regard to the transaction of
       business at the meetings of Commission, including the
       quorum at its meeting, under sub-section (2) of section
 G     10;
       U) any other matter which is required to be, or may be,
       specified by regulations or in respect of which provision
       is to be made by regulations.

 H
 SUPREME COURT ADVOCATES-ON-RECORD                        1053
ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

 13. Every rule and regulation made under this Act shall A
 be laid, as soon as may be after it is made, before each
 House of Parliament, while it is in session, for a total
 period of thirty days, which may be comprised in one
 session or in two or more successive sessions, and if,
 before the expiry of the session immediately following B
 the session or the successive sessions aforesc;iid, both
 Houses agree in making any modification in the rule
 or regulation or both Houses agree that the rule or
 regulation should not be made, the rule or regulation
 shall thereafter have effect only in such modified form C
 or be of no effect, as the case may be; so, however, that
 any such modification or annulment shall be without
 prejudice to the validity of anything previously done
 under that rule or regulation.
                                                            D
 14. (1) If any difficulty arises in giving effect to the
 provisions of this Act, the Central Government may, after
 consultat(on with the Commission, by an order
 published in the Official Gazette, make such provisions,
 not inconsistent with the provisions of this Act as appear E
 to it to be necessary or expedient for removing the
 difficulty:
  Provided that no such order shall be made after the
 expiry of a period of five years from the date of F
 commencement of this Act.
 (2) Every order made under this section shall, as soon
 as may be after it is made, be laid before each House
 of Parliament."
 (Ill) The Statement of Objects and Reasons of the         G
     Amendment Act
          "Statement of Objects and Reasons
  The Judges of the Supreme Court are appointed under
                                                           H
1054   SUPREME COURT REPORTS                  [2015] 13 S.C.R.


 A     clause (2) of article 124 and the Judges of the High
       Courts are appointed under clause (1) of article 217 of
       the Constitution, by the President. The Ad-hoc Judges
       and retired Judges for the Supreme Court are appointed
       under clause (1) of article 127 and article 128 of the
 B     Constitution respectively. The appointment of
       Additional Judges and Acting Judges for the High Court
       is made under article 224 and the appointment of retired
       Judges for sittings of the High Courts is made under
       article 224A of the Constitution. The transfer of Judges
 c     from one High Court to another High Court is made by
       the President after consultation with the Chief Justice
       of India under clause (1) of article 222 of the
       Constitution.

 D     2. The Supreme Court in the matter of Supreme Court
       Advocates-on-Record Association Vs. Union of India
       in the year 1993, and in its Advisory Opinion in the year
       1998 in the Third Judges case, had interpreted clause
       (2) of article· 124 and clause (1) of article 217 of the
 E     Constitution with respect to the meaning of
       "consultation" as "concurrence". Consequently, a
       Memorandum of Procedure for appointment of Judges
       to the Supreme Court and High Courts was formulated,
       and is being followed for appointment.                  ·
 F
       3. After review of the relevant constitutional provisions,
       the pronouncements of the Supreme Court and
       consultations with eminent Jurists, it is felt that a broad
       based National Judicial Appointmen~s Commission
 G     should be established for making recommendations
       for appointment of Judges of the Supreme Court and
       High Courts. The said CommissJOn would provide a
       meaningful role to the judiciary, the executive and
       eminent persons to present their view points and make
 H
    SUPREME COURT ADVOCATES-ON-RECORD                           1055
   ASSOCIATION v. U.0.1. [ADARSH KUMAR GOEL, J.]

     the participants account?Jble, while also introducing      A
     transparency in the selection process.
     4. The Constitution (One Hundred and Twenty-first
     Amendment) Bill, 2014 is an enabling constitutional
     amendment- for amending relevant provisions of the
                                                              8
     Constitution and for setting up a National Judicial
     Appointments Commission. The proposed Bill seeks
     to insert new articles 124A, 124B and 124C after article
     124 of the Constitution. The said Bill also provides for
     the composition and the functions of the proposed c
     National Judicial Appointments Commission. Further,
     it provides that Parliament may, by law, regulate the
     procedure for appointment of Judges and empower the
     National Judicial Appointments Commission to lay
     down procedure by regulation for the discharge of its D
     functions, manner of selection of persons for
     appointment and such other matters as may be
     considered necessary.
     5. The proposed Bill seeks to broad base the method
     of appointment of Judges in the Supreme Court and E
     High Courts, enables participation of judiciary,
     executive and eminent persons and ensures greater
     transparency, accountability and objectivity in the
     appointment of the Judges in the Supreme Court and F
     High Court.
     6. The Bill seeks to achieve the above objectives."
                 ORDER OF THE COURT
     1. The prayer for reference to a larger Bench, and for     G
reconsideration of the Second and Third Judges cases [( 1993)
4 sec 441, and (1998) 7 sec 739, respectively], is rejected.
     2. The Constitution (Ninety-ninthAmendment)Act, 2014
is declared unconstitutional and void.
                                                                 H
1056          SUPREME COURT REPORTS                  [2015] 13 S.C.R.


 A          3. The National Judicia!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
 8
       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
 C     any, for an improved working of the "collegium system", list on
       3.11.2015.


       Bibhuti Bhushan Bose                Adjudicatiion rendered on merits.