REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 13 OF 2015Supreme Court Advocates-on-Record -Association and another … Petitioner(s) versusUnion of India … Respondent(s) With|WRIT PETITION (C) NO. 14 OF 2015 | |WRIT PETITION (C) NO. 18 OF 2015 ||WRIT PETITION (C) NO. 23 OF 2015 | |WRIT PETITION (C) NO. 24 OF 2015 ||WRIT PETITION (C) NO. 70 OF 2015 | |WRIT PETITION (C) NO. 83 OF 2015 ||WRIT PETITION (C) NO. 108 OF 2015 | |WRIT PETITION (C) NO. 124 OF 2015 ||WRIT PETITION (C) NO. 209 OF 2015 | |WRIT PETITION (C) NO. 309 OF 2015 ||WRIT PETITION (C) NO. 310 OF 2015 | |WRIT PETITION (C) NO. 323 OF 2015 ||WRIT PETITION (C) NO. 341 OF 2015 | |TRANSFER PETITION(C) NO. 391 OF 2015||TRANSFER PETITION (C) NO. 971 OF 2015| | | J U D G M E N TJagdish Singh Khehar, J. Index|Sl.No.|Contents |Paragraphs|Pages ||1. |The Recusal Order | 1 - 18| 1 - || | | |15 || | | | ||2. |The Reference Order | 1 - 101| 16 - 169||I |The Challenge | 1 - | 16 - || | |9 |19 ||II. |The Background to the Challenge | 10 - 19| 19 - || | | |61 ||III. |Motion by the respondents, for the review | 20 - 53| 61 – 115|| |of the Second and Third Judges cases. | | ||IV. |Objection by the petitioners, to the | 54 - 59|115 – 124 || |Motion for review | | ||V. |The Consideration | 60 - 100|124 – 168 ||VI. |Conclusion |101 |168 - 169 || | | | ||3. |The Order on Merits | 1 - |170 – 439 || | |258 | ||I. |Preface | 1 - |170 - 171 || | |4 | ||II. |Petitioners’ Contentions, on Merits | 5 - |171 - 252 || | |66 | ||III. |Respondents’ Response on Merits. | 67 - 132|253 - 325 ||IV. |The Debate and the Deliberation |133 - 245 |326 - 419 ||V. |The effect of striking down the impugned |246 - 253 |419 - 436 || |constitutional amendment | | ||VI. |Conclusions |254 - 256 |436 - 438 ||VII. |Acknowledgment |257 |438 - 439 | THE RECUSAL ORDER1. In this Court one gets used to writing common orders, for orders arewritten 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 anorder in the nature of a dissent, yet it needs to be written in the firstperson. While endorsing the opinion expressed by J. Chelameswar, J.,adjudicating upon the prayer for my recusal, from hearing the matters inhand, reasons for my continuation on the Bench, also need to be expressedby me. Not for advocating any principle of law, but for laying downcertain principles of conduct.2. This order is in the nature of a prelude – a precursor, to thedetermination of the main controversy. It has been necessitated, fordeciding an objection, about the present composition of the Bench. Asalready noted above, J. Chelameswar, J. has rendered the decision on theobjection. The events which followed the order of J. Chelameswar, J., arealso of some significance. In my considered view, they too need to benarrated, for only then, the entire matter can be considered to have beenfully expressed, as it ought to be. I also need to record reasons, why mycontinuation 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.3(i) A three-Judge Bench was originally constituted for hearing thesematters. The Bench comprised of Anil R. Dave, J. Chelameswar and Madan B.Lokur, JJ.. At that juncture, Anil R. Dave, J. was a part of the 1+2collegium, as also, the 1+4 collegium. The above combination heard thematter, on its first listing on 11.3.2015. Notice returnable for 17.3.2015was 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 thesame issues were being considered as the ones raised in the bunch of casesin hand, was stayed till further orders.(ii) On the following date, i.e., 17.3.2015 Mr. Fali S. Nariman, SeniorAdvocate, in Supreme Court Advocates-on-Record Association v. Union ofIndia (Writ Petition (C) No.13 of 2015), Mr. Anil B. Divan, SeniorAdvocate, in Bar Association of India v. Union of India (Writ Petition (C)No.108 of 2015), Mr. Prashant Bhushan, Advocate, in Centre for PublicInterest Litigation v. Union of India (Writ Petition (C) No.83 of 2015)and Mr. Santosh Paul, Advocate, in Change India v. Union of India (WritPetition (C) No.70 of 2015), representing the petitioners were heard. Mr.Mukul Rohatgi, Attorney General for India, advanced submissions inresponse. The matter was shown as part-heard, and posted for furtherhearing on 18.3.2015.(iii) The proceedings recorded by this Court on 18.3.2015 reveal, that Mr.Santosh Paul, (in Writ Petition (C) No.70 of 2015) was heard again on18.3.2015, whereupon, Mr. Mukul Rohatgi and Mr. Ranjit Kumar, SolicitorGeneral of India, also made their submissions. Thereafter, Mr. Dushyant A.Dave, Senior Advocate – and the President of Supreme Court Bar Association,addressed the Bench, as an intervener. Whereafter, the Court rose for theday. On 18.3.2015, the matter was adjourned for hearing to the followingday, i.e., for 19.3.2015.(iv) The order passed on 19.3.2015 reveals, that submissions were advancedon that date, by Mr. Dushyant A. Dave, Mr. Mukul Rohatgi, Mr. T.R.Andhyarujina, Senior Advocate, and Mr. Mathews J. Nedumpara. When Mr. FaliS. Nariman was still addressing the Bench, the Court rose for the day, byrecording inter alia, “The matters remained Part-heard.” Further hearingin the cases, was deferred to 24.3.2015.(v) On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B. Divan, were againheard. Additionally, Mr. Mukul Rohatgi concluded his submissions. On theconclusion of hearing, judgment was reserved. On 24.3.2015, a separateorder was also passed in Writ Petition (C) No.124 of 2015 (Mathews J.Nedumpara v. Supreme Court of India, through Secretary General and others). It read as under:“The application filed by Mr. Mathews J. Nedumpara to argue in personbefore the Court is rejected. The name of Mr. Robin Mazumdar, AOR, who wasearlier appearing for him, be shown in the Cause List.”(vi) On 7.4.2015, the following order came to be passed by the three-JudgeBench presided by Anil R. Dave, J.:“1. In this group of petitions, validity of the Constitution (Ninety-NinthAmendment) Act, 2014 and the National Judicial Appointment Commission Act,2014 (hereinafter referred to as `the Act’) has been challenged. Thechallenge is on the ground that by virtue of the aforestated amendment andenactment of the Act, basic structure of the Constitution of India has beenaltered and therefore, they should be set aside.2. We have heard the learned counsel appearing for the parties and theparties appearing in-person at length.3. It has been mainly submitted for the petitioners that all thesepetitions should be referred to a Bench of Five Judges as per theprovisions of Article 145(3) of the Constitution of India for the reasonthat substantial questions of law with regard to interpretation of theConstitution of India are involved in these petitions. It has been furthersubmitted that till all these petitions are finally disposed of, by way ofan interim relief it should be directed that the Act should not be broughtinto force and the present system with regard to appointment of Judgesshould be continued.4. Sum and substance of the submissions of the counsel opposing thepetition is that all these petitions are premature for the reason that theAct has not come into force till today and till the Act comes into force,cause of action can not 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 relied uponseveral judgments to substantiate their cases.6. Looking at the facts of the case, we are of the view that thesepetitions involve substantial questions of law as to the interpretation ofthe Constitution of India and therefore, we direct the Registry to placeall the matters of this group before Hon’ble the Chief Justice of India sothat they can be placed before a larger Bench for its consideration.7. As we are not deciding the cases on merits, we do not think itappropriate to discuss the submissions made by the learned counsel and theparties in-person.8. It would be open to the petitioners to make a prayer for interim reliefbefore the larger bench as we do not think it appropriate to grant anyinterim relief at this stage.”4. During the hearing of the cases, Anil R. Dave, J. did not participatein any collegium proceedings.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 Amendment) Act, 2014, andthe National Judicial Appointments Commission Act, 2014, were notified inthe Gazette of India (Extraordinary). Both the above enactments, werebrought into force with effect from 13.4.2015. Accordingly, on 13.4.2015Anil R. Dave, J. became an ex officio Member of the National JudicialAppointments Commission, on account of being the second senior most Judgeafter 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, before thefive-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.) isnot a member.”It is, therefore, that Hon’ble the Chief Justice of India, reconstitutedthe Bench with myself, J. Chelameswar, Madan B. Lokur, Kurian Joseph andAdarsh Kumar Goel, JJ., to hear this group of cases.8. When the reconstituted Bench commenced hearing on 21.4.2015, Mr. FaliS. Nariman made a prayer for my recusal from the Bench, which was secondedby Mr. Mathews J. Nedumpara (petitioner-in-person in Writ Petition (C)No.124 of 2015), the latter advanced submissions, even though he had beenbarred from doing so, by an earlier order dated 24.3.2015 (extractedabove). For me, to preside over the Bench seemed to be imprudent, whensome of the stakeholders desired otherwise. Strong views were howeverexpressed by quite a few learned counsel, who opposed the prayer. It wassubmitted, that a prayer for recusal had earlier been made, with referenceto Anil R. Dave, J. It was pointed out, that the above prayer had resultedin his having exercised the option to step aside (– on 15.4.2015). Somelearned counsel went to the extent of asserting, that the recusal of AnilR. Dave, J. was not only unfair, but was also motivated. It was alsosuggested, 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. Dave, J. was not at his own, but in deferenceto a similar prayer made to him. Logically, if he had heard these caseswhen he was the presiding Judge of the three-Judge Bench, he would haveheard it, when the Bench strength was increased, wherein, he was still thepresiding Judge.9(i) Mr. Fali S. Nariman strongly refuted the impression sought to becreated, that he had ever required Anil R. Dave, J. to recuse. In order tosupport his assertion, he pointed out, that he had made the followingrequest in writing on 15.4.2015:“The provisions of the Constitution (Ninety-Ninth Amendment) Act, 2014 andof the National Judicial Appointments Commission Act, 2014 have beenbrought into force from April 13, 2015. As a consequence, the PresidingJudge on this Bench, the Hon’ble Mr. Justice Anil R. Dave, has now become(not out of choice but by force of Statute) a member ex officio of theNational Judicial Appointments Commission, whose constitutional validityhas been challenged.It is respectfully submitted that it would be appropriate if it is declaredat the outset – by an order of this Hon’ble Court – that the PresidingJudge on this Bench will take no part whatever in the proceedings of theNational Judicial Appointments Commission.”Learned senior counsel pointed out, that he had merely requested the thenpresiding Judge (Anil R. Dave, J.) not to take any part in the proceedingsof the National Judicial Appointments Commission, during the hearing ofthese matters. He asserted, that he had never asked Anil R. Dave, J. notto hear the matters pending before the Bench.(ii) The submission made in writing by Mr. Mathews J. Nedumpara for therecusal 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 thelegal fraternity and the public at large, a Judge of the highest integrity,ability and impartiality, still the doctrine of nemo iudex in sua causa ornemo debet esse judex in propria causa – no one can be judge in his owncause – would require His Lordship to recuse himself even at this stagesince in the eye of the 120 billion ordinary citizens of this country, theinstant case is all about a law whereunder the exclusive power ofappointment invested in the Judges case is taken away and is invested inthe fair body which could lead to displeasure of the Judges and, therefore,the Supreme Court itself deciding a case involving the power of appointmentof Judges of the Supreme Court will not evince public credibility. Thequestion then arises is as to who could decide it. The doctrine ofnecessity leaves no other option then the Supreme Court itself deciding thequestion. But in that case, it could be by Judges who are not part of thecollegium as of today or, if an NJAC is to be constituted today, could be amember thereof. With utmost respect, Hon’ble Shri Justice Dave is a memberof the collegium; His Lordship will be a member of the NJAC if it isconstituted 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 years. Instead of the Judgesdeciding the correctness of the said decision, the validity of theamendment was left to be decided by a referendum, and 80% of the populationsupported the amendment. Therefore, the only body who could decide whetherthe NJAC as envisaged is acceptable or not is the people of this countryupon a referendum.VIII. The judgment in Judges-2, which made the rewriting of theConstitution, is void ab initio. The said case was decided without noticeto the pubic at large. Only the views of the government and Advocates onrecord and a few others were heard. In the instant case, the public atlarge ought to be afforded an opportunity to be heard; at least the majorpolitical parties, and the case should be referred to Constitutional Bench. The constitutionality of the Acts ought to be decided, brushing aside thefeeble, nay, apologetical plea of the learned Attorney General that theActs 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 thewill of the people, spoken through their elected representatives and thattoo without any division, unanimous. The plea of the Advocates on RecordAssociation that the notification bringing into force the said Acts bestayed be rejected forthwith; so too its demand that the collegium system,which has ceased to be in existence, be allowed to be continued andappointments to the august office of Judges of High Courts and SupremeCourt on its recommendation, for to do so would mean that Judges of theHigh Courts who are currently Chief Justices because they were appointed ata young age in preference over others will be appointed as Judges of theSupreme Court and if that is allowed to happen, it may lead to a situationwhere the Supreme Court tomorrow will literally be packed with sons andsons-in-law of former Judges. There are at least three Chief Justices ofHigh Courts who are sons of former Judges of the Supreme Court. ThePetitioner is no privy to any confidential information, not even gossips.Still he believes that if the implementation of the NJAC is stayed, threesons of former Judges of the Supreme Court could be appointed as Judges ofthe Supreme Court. The Petitioner has absolutely nothing personal againstany of those Judges; the issue is not at all about any individual. ThePetitioner readily concedes, and it is a pleasure to do so, that few ofthem are highly competent and richly deserving to be appointed.IX. Equality before law and equal protection of law in the matter ofpublic employment. The office of the Judge of the High Court and SupremeCourt, though high constitutional office, is still in the realm of publicemployment, to which every person eligible ought to be given an opportunityto occupy, he being selected on a transparent, just, fair and non-arbitrarysystem. The Petitioner reiterates that he could be least deserving to beappointed when considered along with others of more meritorious than him,but the fact that since he satisfies all the basic eligibility criteriaprescribed under Articles 124A, as amended, and 217, he is entitled to seeka declaration at the hands of this Hon’ble Court that an open selection bemade by advertisement of vacancies or such other appropriate mechanism.X. Judicial review versus democracy. Judicial review is only to preventunjust laws to be enacted and the rights of the minorities, whatever colourthey could be in terms of religion, race, views they hold, by a legislationwhich enjoys brutal majority and an of the executive which is tyrannical.It is no way intended to substitute the voice of the people by the voice ofthe high judiciary.XI. Article 124A, as amended, is deficient only in one respect. Thecollegium contemplated thereunder is still fully loaded in favour of thehigh judiciary. Three out of the six members are Judges. In that sense itis failing to meet to be just and democratic. But the Parliament has inits wisdom enacted so and if there is a complaint, the forum is to generatepublic opinion and seek greater democracy. The Petitioner is currently notinterested in that; he is happy with the Acts as enacted and the principalrelief which he seeks in the instant petition is the immediate coming intoforce of the said Acts by appropriate notification and a mandamus to thateffect at the hands of this Hon’ble Court.”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 sent a communication to Hon’ble the Chief Justice ofIndia, 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, theobjection was pressed. It needs to be recorded that Anil R. Dave, J. was amember of the 1+2 collegium, as well as, the 1+4 collegium from the day thehearing in these matters commenced. Surprisingly, on that account, hisrecusal was never sought, and he had continued to hear the matters, when hewas so placed (from 11.3.2015 to 7.4.2015). But for my being a member ofthe 1+4 collegium, a prayer had been made for my recusal.11. It was, and still is, my personal view, which I do not wish to thrusteither on Mr. Fali S. Nariman, or on Mr. Mathews J. Nedumpara, that Anil R.Dave, J. was amongst the most suited, to preside over the reconstitutedBench. As noticed above, he was a part of the 1+2 collegium, as also, the1+4 collegium, under the ‘collegium system’; he would continue to dischargethe same responsibilities, as an ex officio Member of the National JudicialAppointments Commission, in the ‘Commission system’, under theconstitutional amendment enforced with effect from 13.4.2015. Therefore,irrespective of the system which would survive the adjudicatory process,Anil R. Dave, J. would participate in the selection, appointment andtransfer of Judges of the higher judiciary. He would, therefore, not beaffected by the determination of the present controversy, one way or theother.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 reported in the Second Judges case SupremeCourt Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441,(reaffirmed by unanimously by a Bench of 9 Judges in the Third Judges caseSpecial Reference No.1 of 1998, Re. (1998 7 SCC 739), is at present amember of the Collegium of five Hon’ble Judges which recommends judicialappointments to the Higher Judiciary, which will now come under the ambitof the National Judicial Appointments Commission set up under the aegis ofthe Constitution (Ninety-ninth Amendment) Act, 2014 read with NationalJudicial Appointments Commission Act No.40 of 2014 – if valid; but theconstitutional validity of these enactments has been directly challenged inthese proceedings.The position of the Presiding Judge on this Bench hearing these cases ofconstitutional challenge is not consistent with (and apparently conflictswith) his position as a member of the ‘collegium’; and is likely to be seenas such; always bearing in mind that if the Constitution Amendment and thestatute pertaining thereto are held constitutionally valid and are upheld,the present presiding Judge would no longer be part of the Collegium – theCollegium it must be acknowledged exercises significant constitutionalpower.9. In other words would it be inappropriate for the Hon’ble PresidingJudge to continue to sit on a Bench that adjudicates whether the Collegiumsystem, (as it is in place for the past two decades and is stated (in thewrit petitions) to be a part of the basic structure of the Constitution),should continue or not continue. The impression in peoples mind would bethat it is inappropriate if not unfair if a sitting member of a Collegiumsits in judgment over a scheme that seeks to replace it. This is apart froma consideration as to whether or not the judgment is (or is not) ultimatelydeclared invalid or void: whether in the first instance or by Review or ina Curative Petition.”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, a Judge whom thePetitioner holds in high esteem and respect, a Judge known for hisuprightness, impartiality and erudition, the Petitioner is afraid to say,ought not to preside over the Constitution Bench deciding theconstitutional validity or otherwise of the Constitution (Ninety-ninthAmendment) Act, 2014 and the National Judicial Appointments Commission Act,2014 (“the said Acts”, for short). His Lordship will be a member of thecollegium if this Hon’ble Court were to hold that the said Acts areunconstitutional or to stay the operation of the said Acts, for, if theoperation of the Acts is stayed, it is likely to be construed that thecollegium system continues to be in force by virtue of such stay order.Though Hon’ble Shri Justice J.S. Khehar is not a member of the NationalJudicial Appointments Commission, for, if the NJAC is to be constitutedtoday, it will be consisting of the Hon’ble Chief Justice of India and twoseniormost Judges of this Hon’ble Court. With the retirement of Hon’bleShri H.L. Dattu, Chief Justice of India, His Lordship Hon’ble Shri JusticeJ.S. Khehar will become a member of the collegium. Therefore, an ordinaryman, nay, an informed onlooker, an expression found acceptance at the handsof this Hon’ble Court on the question of judicial recusal, will considerthat justice would not have been done if a Bench of this Hon’ble Courtheaded by Hon’ble Shri Justice J.S. Khehar were to hear the above case.For a not so informed onlooker, the layman, the aam aadmi, this Hon’bleCourt hearing the Writ Petitions challenging the aforesaid Acts is nothingbut a fox being on the jury at a goose’s trial. The Petitioner believesthat the Noble heart of his Lordships Justice Khehar could unwittingly beinfluenced by the nonconscious, subconscious, unconscious bias, hisLordships having been placed himself in a position of conflict of interest.3. This Hon’ble Court itself hearing the case involving the power ofappointment of Judges between the collegium and the Government, nay, theexecutive, will not evince any public confidence, except the designatedsenior lawyers who seem to be supporting the collegium system. Thecollegium system does not have any confidence in the ordinary lawyers whoare often unfairly treated nor the ordinary litigants, the DaridraNarayanas, to borrow an expression from legendary Justice Krishna Iyer, whoconsidered that the higher judiciary, and the Supreme Court in particular,is beyond the reach of the ordinary man. An ordinary lawyer finds itdifficult to get even an entry into the Supreme Court premises. This isthe stark reality, though many prefer to pretend not to notice it.Therefore, the Petitioner with utmost respect, while literally worshippingthe majesty of this Hon’ble Court, so too the Hon’ble presiding Judge ofthis Hon’ble Court, in all humility, with an apology, if the Petitioner haserred in making this plea, seeks recusal by Hon’ble Shri Justice J.S.Khehar from hearing the above case.”13. As a Judge presiding over the reconstituted Bench, I found myself inan awkward predicament. I had no personal desire to participate in thehearing of these matters. I was a part of the Bench, because of mynomination to it, by Hon’ble the Chief Justice of India. My recusal fromthe Bench at the asking of Mr. Fali S. Nariman, whom I hold in greatesteem, did not need a second thought. It is not as if the prayer made byMr. Mathews J. Nedumpara, was inconsequential.14. But then, this was the second occasion when proceedings in a matterwould have been deferred, just because, Hon’ble the Chief Justice of India,in the first instance, had nominated Anil R. Dave, J. on the Bench, andthereafter, had substituted him by nominating me to the Bench. It wastherefore felt, that reasons ought to be recorded, after hearing learnedcounsel, 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, whichmay be similarly objected to. This, coupled with the submissions advancedby Mr. Mukul Rohatgi, Mr. Harish N. Salve and Mr. K.K. Venugopal, thatparameters should be laid down, led to a hearing, on the issue of recusal.15. On the basis of the submissions advanced by the learned counsel, theBench examined the prayer, whether I should remain on the reconstitutedBench, despite my being a member of the 1+4 collegium. The Bench,unanimously concluded, that there was no conflict of interest, and no otherjustifiable reason in law, for me to recuse from the hearing of thesematters. On 22.4.2015, the Bench passed the following short order, whichwas pronounced by J. Chelameswar, J.:“A preliminary objection, whether Justice Jagdish Singh Khehar shouldpreside over this Bench, by virtue of his being the fourth senior mostJudge of this Court, also happens to be a member of the collegium, wasraised by the petitioners. Elaborate submissions were made by the learnedcounsel for the petitioners and the respondents. After hearing all thelearned counsel, we are of the unanimous opinion that we do not see anyreason in law requiring Justice Jagdish Singh Khehar to recuse himself fromhearing the matter. Reasons will follow.”16. After the order was pronounced, I disclosed to my colleagues on theBench, that I was still undecided whether I should remain on the Bench, forI was toying with the idea of recusal, because a prayer to that effect, hadbeen made in the face of the Court. My colleagues on the Bench, would havenothing of it. They were unequivocal in their protestation.17. Despite the factual position noticed above, I wish to record, that itis not their persuasion or exhortation, which made me take a final call onthe matter. The decision to remain a member of the reconstituted Bench wasmine, and mine alone. The choice that I made, was not of the heart, butthat of the head. The choice was made by posing two questions to myself.Firstly, whether a Judge hearing a matter should recuse, even though theprayer for recusal is found to be unjustified and unwarranted? Secondly,whether I would stand true to the oath of my office, if I recused fromhearing the matters?18. The reason that was pointed out against me, for seeking my recusalwas, that I was a part of the 1+4 collegium. But that, should have been adisqualification for Anil R. Dave, J. as well. When he commenced hearingof the matters, and till 7.4.2015, he suffered the same allegeddisqualification. Yet, the objection raised against me, was not raisedagainst him. When confronted, Mr. Fali S. Nariman vociferously contested,that he had not sought the recusal of Anil R. Dave, J.. He supported hisassertion with proof. One wonders, why did he not seek the recusal of AnilR. Dave, J.? There is no doubt about the fact, that I have been a memberof the 1+4 collegium, and it is likely that I would also shortly become aMember of the NJAC, if the present challenge raised by the petitioners wasnot to succeed. I would therefore remain a part of the selection procedure,irrespective of the process which prevails. That however is the positionwith reference to four of us (on the instant five-Judge Bench). Besides me,my colleagues on the Bench – J. Chelameswar, Madan B. Lokur and KurianJoseph, JJ. would in due course be a part of the collegium (if the writ-petitioners before this Court were to succeed), or alternatively, would bea part of the NJAC (if the writ-petitioners were to fail). In sucheventuality, the averment of conflict of interest, ought to have beenraised not only against me, but also against my three colleagues. But,that was not the manner in which the issue has been canvassed. In myconsidered view, the prayer for my recusal is not well founded. If I wereto accede to the prayer for my recusal, I would be initiating a wrongpractice, and laying down a wrong precedent. A Judge may recuse at hisown, from a case entrusted to him by the Chief Justice. That would be amatter of his own choosing. But recusal at the asking of a litigatingparty, unless justified, must never to be acceded to. For that would givethe impression, of the Judge had been scared out of the case, just by theforce of the objection. A Judge before he assumes his office, takes an oathto discharge his duties without fear or favour. He would breach his oathof office, if he accepts a prayer for recusal, unless justified. It is myduty to discharge my responsibility with absolute earnestness andsincerity. It is my duty to abide by my oath of office, to uphold theConstitution and the laws. My decision to continue to be a part of theBench, flows from the oath which I took, at the time of my elevation tothis Court. …………………………….J. (Jagdish Singh Khehar)New Delhi;October 16, 2015. THE REFERENCE ORDERI. THE CHALLENGE:1. The question which has arisen for consideration, in the present setof cases, pertains to the constitutional validity of the Constitution(Ninety-ninth Amendment) Act, 2014 (hereinafter referred to as, theConstitution (99th Amendment) Act), as also, that of the National JudicialAppointments Commission Act, 2014 (hereinafter referred to as, the NJACAct).2. During the course of hearing on the merits of the controversy, whichpertains to the 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 Justices and Judges of one High Court to another,it emerged that learned counsel for the respondents, were inter aliarelying on the judgment rendered in S.P. Gupta v. Union of India[1],(hereinafter referred to as, the First Judges case); whereas, the learnedcounsel for the petitioners were inter alia relying on the judgment inSupreme Court Advocates-on-Record Association v. Union of India[2](hereinafter referred to as, the Second Judges case), and the judgment inRe: Special Reference No.1 of 1998[3], (hereinafter referred to as, theThird Judges case).3. Per se, the stance adopted by learned counsel for the respondents inplacing reliance on the judgment in the First Judges case, was not open tothem. This, for the simple reason, that the judgment rendered in the FirstJudges case, had been overruled by a larger Bench, in the Second Judgescase. And furthermore, the exposition of law declared in the Second Judgescase, was reaffirmed by the Third Judges case.4. Visualizing, that the position adopted by the respondents, was notlegally permissible, the Attorney General, the Solicitor General, and otherlearned counsel representing the respondents, adopted the only course opento them, namely, to seek reconsideration of the decisions rendered by thisCourt in the Second and Third Judges cases. For the above objective it wasasserted, that various vital aspects of the matter, had not been brought tothe notice of this Court, when the controversy raised in the Second Judgescase was canvassed. It was contended that, had the controversy raised inthe Second Judges case, been examined in the right perspective, this Courtwould not have recorded the conclusions expressed therein, by the majority.It was submitted, that till the respondents were not permitted to air theirsubmissions, with reference to the unacceptability of the judgmentsrendered in the Second and Third Judges cases, it would not be in thefitness of 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 controversybeing debated, as also, the vehemence with which learned counselrepresenting the respondents, pressed for a re-examination of the judgmentsrendered by this Court, in the Second and Third Judges cases, we permittedthem, to detail the basis of their assertions.6. Before embarking on the issue, namely, whether the judgments renderedby 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 justifiedfor us, in the peculiar facts and circumstances of this case, keeping inview the technical parameters laid down by this Court, to undertake thetask. In case, we conclude negatively, and hold that the prayer seeking areview of the two judgments was not justified, that would render a quietusto the matter. However, even if the proposition canvassed at the behest ofthe respondents is not accepted, we would still examine the submissionscanvassed at their behest, as in a matter of such extreme importance andsensitivity, it may not be proper to reject a prayer for review, on a meretechnicality. We shall then endeavour to determine, whether thesubmissions canvassed at the hands of the respondents, demonstrate clearand compelling reasons, for a review of the conclusions recorded in theSecond and Third Judges cases. We shall also venture to examine, whetherthe respondents have been able to prima facie show, that the earlierjudgments could be seen as manifestly incorrect. For such preliminaryadjudication, we are satisfied, that the present bench-strength satisfiesthe postulated requirement, expressed in the proviso under Article 145(3).7. Consequent upon the above examination, if the judgments rendered inthe Second and Third Judges cases, are shown to prima facie require a re-look, we would then delve on the merits of the main controversy, withoutpermitting the petitioners to place reliance on either of the aforesaid twojudgments.8. In case, we do not accept the submissions advanced at the hands ofthe petitioners on merits, with reference to the main controversy, that tooin a sense would conclude the matter, as the earlier regime governed by theSecond and Third Judges cases, would become a historical event, of thepast, as the new scheme contemplated under the impugned Constitution (99thAmendment) Act, along with the NJAC Act, would replace the earlierdispensation. In the above eventuality, the question of re-examination ofthe Second and Third Judges cases would be only academic, and thereforeuncalled for.9. However, if we accept the submissions advanced at the hands of thelearned counsel for the petitioners, resulting in the revival of theearlier process, and simultaneously conclude in favour of the respondents,that the Second and Third Judges cases need a re-look, we would be obligedto 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 Judgescases.II. THE BACKGROUND TO THE CHALLENGE:10. Judges to the Supreme Court of India and High Courts of States, areappointed under Articles 124 and 217 respectively. Additional Judges andacting Judges for High Courts are appointed under Articles 224 and 224A.The transfer of High Court Judges and Chief Justices, of one High Court toanother, is made under Article 222. For the controversy in hand, it isessential to extract the original Articles 124 and 217, hereunder:“124. Establishment and constitution of Supreme Court. (1) There shall be aSupreme Court of India consisting of a Chief Justice of India and, untilParliament by law prescribes a larger number, of not more than seven otherJudges.(2) Every Judge of the Supreme Court shall be appointed by the President bywarrant under his hand and seal after consultation with such of the Judgesof the Supreme Court and of the High Courts in the States as the Presidentmay deem necessary for the purpose and shall hold office until he attainsthe age of sixty-five years:Provided that in the case of appointment of a Judge other than the ChiefJustice, the Chief Justice of India shall always be consulted:Provided further that—(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).(2A) The age of a Judge of the Supreme Court shall be determined by suchauthority and in such manner as Parliament may by law provide.(3) A person shall not be qualified for appointment as a Judge of theSupreme Court unless he is a citizen of India and—(a) has been for at least five years a Judge of a High Court or of two ormore such Courts in succession; or(b) has been for at least ten years an advocate of a High Court or of twoor more such courts in succession; or(c) is, in the opinion of the President, a distinguished jurist.Explanation I.—In this clause "High Court” means a High Court whichexercises, or which at any time before the commencement of thisConstitution exercised, jurisdiction in any part of the territory of India.Explanation II.—In computing for the purpose of this clause the periodduring which a person has been an advocate, any period during which aperson has held judicial office not inferior to that of a district Judgeafter he became an advocate shall be included.(4) A Judge of the Supreme Court shall not be removed from his officeexcept by an order of the President passed after an address by each Houseof Parliament supported by a majority of the total membership of that Houseand by a majority of not less than two-thirds of the members of the Housepresent and voting has been presented to the President in the same sessionfor such removal on the ground of proved misbehaviour or incapacity.(5) Parliament may by law regulate the procedure for the presentation of anaddress and for the investigation and proof of the misbehaviour orincapacity of a Judge under clause (4).(6) Every person appointed to be a Judge of the Supreme Court shall, beforehe enters upon his office, make and subscribe before the President, or someperson appointed in that behalf by him, an oath or affirmation according tothe form set out for the purpose in the Third Schedule.(7) No person who has held office as a Judge of the Supreme Court shallplead or act in any court or before any authority within the territory ofIndia.”“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 bywarrant under his hand and seal after consultation with the Chief Justiceof India, the Governor of the State, and, in the case of appointment of aJudge 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, asprovided in article 224, and in any other case, until he attains the age ofsixty-two years:Provided that—(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 by the President in the mannerprovided in clause (4) of article 124 for the removal of a Judge of theSupreme Court;(c) the office of a Judge shall be vacated by his being appointed by thePresident to be a Judge of the Supreme Court or by his being transferred bythe 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 HighCourt unless he is a citizen of India and—(a) has for at least ten years held a judicial office in the territory ofIndia; or(b) has for at least ten years been an advocate of a High Court or of twoor more such courts in succession;Explanation.— For the purposes of this clause —(a) in computing the period during which a person has held judicial officein the territory of India, there shall be included any period, after he hasheld any judicial office, during which the person has been an advocate of aHigh 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 been an advocate ofa High Court, there shall be included any period during which the personhas held judicial office or the office of a member of a tribunal or anypost, under the Union or a State, requiring special knowledge of law afterhe became an advocate;(b) in computing the period during which a person has held judicial officein the territory of India or been an advocate of High Court, there shall beincluded any period before the commencement of this Constitution duringwhich he has held judicial office in any area which was comprised beforethe fifteenth day of August, 1947, within India as defined by theGovernment of India Act, 1935, or has been an advocate of any High Court inany such area, as the case may be.(3) If any question arises as to the age of a Judge of a High Court, thequestion shall be decided by the President after consultation with theChief Justice of India and the decision of the President shall be final.”11. The true effect and intent of the provisions of the Constitution, andall other legislative enactments made by the Parliament, and the Statelegislatures, are understood in the manner they are interpreted anddeclared by the Supreme Court, under Article 141. The manner in whichArticles 124 and 217 were interpreted by this Court, emerges principallyfrom three-Constitution Bench judgments of this Court, which are now underpointed consideration. The first judgment was rendered, by a seven-JudgeBench, by a majority of 4:3, in the First Judges case on 30.12.1981. Thecorrectness of the First Judges case was doubted by a three-Judge Bench inSubhash Sharma v. Union of India[4], which opined that the majority view,in the First Judges case, should be considered by a larger Bench. The ChiefJustice of India constituted a nine-Judge Bench, to examine two questions.Firstly, whether the opinion of the Chief Justice of India in regard to theappointment of Judges to the Supreme Court and to the High Courts, as wellas, transfer of Chief Justices and Judges of High Courts, was entitled toprimacy? And secondly, whether the fixation of the judge-strength in HighCourts, was justiciable? By a majority of 7:2, a nine-Judge Bench of thisCourt, in the Second Judges case, overruled the judgment in the FirstJudges case. The instant judgment was rendered on 6.10.1993. Consequentupon doubts having arisen with the Union of India, about the interpretationof the Second Judges case, the President of India, in exercise of his powerunder Article 143, referred nine questions to the Supreme Court, for itsopinion. A nine-Judge Bench answered the reference unanimously, on28.10.1998.12. After the judgment of this Court in the Second Judges case wasrendered in 1993, and the advisory opinion of this Court was tendered tothe President of India in 1998, the term “consultation” in Articles 124(2)and 217(1), relating to appointment (as well as, transfer) of Judges of thehigher judiciary, commenced to be interpreted as vesting primacy in thematter, with the judiciary. This according to the respondents, had resultedin the term “consultation” being understood as “concurrence” (in mattersgoverned by Articles 124, 217 and 222). The Union of India, then framed aMemorandum of Procedure on 30.6.1999, for the appointment of Judges andChief Justices to the High Courts and the Supreme Court, in consonance withthe above two judgments. And appointments came to be made thereafter, inconsonance with the Memorandum of Procedure.13. As per the position expressed before us, a feeling came to beentertained, that a Commission for selection and appointment, as also fortransfer, of Judges of the higher judiciary should be constituted, whichwould replace the prevailing procedure, for appointment of Judges and ChiefJustices of the High Courts and the Supreme Court of India, contemplatedunder Articles 124(2) and 217(1). It was felt, that the proposedCommission should be broad based. In that, the Commission should compriseof members of the judiciary, the executive and eminent/important personsfrom public life. In the above manner, it was proposed to introducetransparency in the selection process.14. To achieve the purported objective, Articles 124 and 217 were interalia amended, and Articles 124A, 124B and 124C were inserted in theConstitution, through the Constitution (99th Amendment) Act, by followingthe procedure contemplated under Article 368(2), more particularly, theproviso thereunder. The amendment, received the assent of the President on31.12.2014. It was however given effect to, with effect from 13.4.2015(consequent upon its notification in the Gazette of India (Extraordinary)Part II, Section 1). Simultaneously therewith, the Parliament enacted theNJAC 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 itsnotification in the Gazette of India (Extraordinary) Part II, Section 1).The above constitutional amendment and the legislative enactment, aresubject matter of challenge through a bunch of petitions, which arecollectively being heard by us. In order to effectively understand thetrue purport of the challenge raised by the petitioners, and the nuances ofthe legal and constitutional issues involved, it is imperative to have abird’s eye view of the First Judges case, upon which reliance has beenplaced by the learned counsel for the respondents, in their attempt to seeka review of the Second and Third Judges cases.The First Judges case - 1981 Supp SCC 87.15. The Union Law Minister addressed a letter dated 18.3.1981 to theGovernor of Punjab and to Chief Ministers of all other States. Theaddressees were inter alia informed, that “…one third of the Judges of HighCourt, should as far as possible be from outside the State in which theHigh Court is situated…”. Through the above letter, the addressees wererequested to “…(a) obtain from all additional Judges working in the HighCourts… their consent to be appointed as permanent Judges in any other HighCourt in the country…” The above noted letter required, that the concernedappointees “…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 already been or may in the future be proposedby you for initial appointment their consent to be appointed to any otherHigh Court in the country along with a similar preference for three HighCourts…”. The Union Law Minister, in the above letter clarified, thatfurnishing of their consent or indication of their preference, would notimply any commitment, at the behest of the Government, to accommodate themin accordance with their preferences. In response, quite a few additionalJudges, gave their consent to be appointed outside their parent State.(i) Iqbal Chagla (and the other petitioners) felt, that the letter dated18.3.1981 was a direct attack on the “independence of the judiciary”, andan uninhibited assault on a vital/basic feature of the Constitution. Aseries of Advocates’ Associations in Bombay passed resolutions, condemningthe letter dated 18.3.1981, as being subversive of “judicial independence”. They demanded the withdrawal of the letter. Since that was not done, awrit 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 theHigh Court, restraining the Union Law Minister and the Government fromimplementing the letter dated 18.3.1981. A Letters Patent Appeal preferredagainst the above interim order, came to be dismissed by a Division Benchof the High Court. The above interim order, was assailed before thisCourt. While the matter was pending before this Court, the Union LawMinister and the Government of India, filed a transfer petition underArticle 139A. The transfer petition was allowed, and the writ petitionfiled 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 ofDelhi. It raised a challenge to the constitutional validity of the letterdated 18.3.1981. One additional ground was raised with reference to thethree 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. Rather thanbeing appointed for a further term of two years, their appointment wasextended for three months, from 7.3.1981. These short term appointmentswere assailed, as being unjustified under Article 224, besides beingsubversive of the “independence of the judiciary”. This writ petition wasalso transferred for hearing to the Supreme Court. So far as the circularletter dated 18.3.1981 is concerned, the Supreme Court, on an oral prayermade by the petitioner, directed that any additional Judge who did not wishto respond to the circular letter may not do so, and that, he would neitherbe refused extension nor permanent appointment, on the ground that he hadnot sent a reply to the letter dated 18.3.1981. Thereafter, theappointment of S.B. Wad, J., was continued, as an additional Judge for aperiod of one year from 7.6.1981, but O.N. Vohra and S.N. Kumar, JJ., werenot continued beyond 7.6.1981.(iii & iv). A third writ petition, was filed by J.L. Kalra and others, whowere practicing Advocates, in the Delhi High Court. And a fourth writpetition was filed by S.P. Gupta, a practicing Advocate, of the AllahabadHigh Court. The third and fourth writ petitions were for substantially thesame reliefs, as the earlier two petitions.(v) A fifth writ petition, was filed by Lily Thomas. She challenged atransfer order dated 19.1.1981, whereby the Chief Justice of the High Courtof Madras was transferred as the Chief Justice of the High Court of Kerala. The above order had been passed by the President, under Article 222(1),after consultation with the Chief Justice of India. Likewise, the transferof the Chief Justice of the High Court of Patna to the Madras High Courtwas challenged by asserting, that the power of transfer under Article222(1) was limited to Judges of the High Courts, and did not extend toChief Justices. Alternatively, it was contended, that transfers could onlybe made with the consent of the concerned Judge, and only in publicinterest, and after full and effective consultation with the Chief Justiceof India.(vi & vii) A sixth writ petition was filed by A. Rajappa, principallychallenging the order dated 19.1.1981, whereby some Chief Justices had beentransferred. One additional submission was raised in this petition,namely, that the transfer of the Chief Justices had been made without theprior consultation of the Governors of the concerned States, and further,that the said transfers were not in public interest, and therefore,violated the procedural requirements contained in Article 217(1). Theseventh writ petition was filed by P. Subramanian, on the same grounds, asthe petition filed by A. Rajappa.(viii) An eighth writ petition was filed by D.N. Pandey and ThakurRamapati Sinha, practicing Advocates, of the Patna High Court. In thispetition, Justice K.B.N. Singh, the Chief Justice of the Patna High Courtwas impleaded as respondent no.3. On a prayer made by respondent no.3, hewas transposed as petitioner no.3. As petitioner no.3, Justice K.B.N.Singh filed a detailed affidavit asserting, that his transfer had been madeas a matter of punishment, and further, that it had been made on irrelevantand on insufficient grounds, and not in public interest. And further that,it was not preceded by a full and effective consultation with the ChiefJustice of India.It is therefore apparent, that the above mentioned petitions related to twodifferent sets of cases. Firstly, the issue pertaining to the initialappointment of Judges, and the extension of the term of appointment ofadditional Judges, on the expiry of their original term. And secondly, thetransfer of Judges and Chief Justices from one High Court to another.16. The opinions recorded in the First Judges case, insofar as they arerelevant to the present controversy, are being summarized herein:P.N. Bhagwati, J. (as he then was):(i) On the subject of independence of the judiciary, it was opined, that“…The concept of independence of judiciary is a noble concept whichinspires the constitutional scheme and constitutes the foundation on whichrests the edifice of our democratic polity. If there is one principlewhich runs through the entire fabric of the entire Constitution, it is theprinciple of the rule of law and under the Constitution, it is thejudiciary which is entrusted with the task of keeping every organ of theState within the limits of the law and thereby making the rule of lawmeaningful and effective…The judiciary stands between the citizen and theState as a bulwark against executive excesses and misuse or abuse of powerby the executive, and therefore, it is absolutely essential that thejudiciary must be free from executive pressure or influence and this hasbeen secured by the Constitution makers by making elaborate provisions inthe Constitution. “…It was felt, that the concept of “independence of thejudiciary” was not limited only to the independence from executive pressureor influence, but it was a much wider concept, which took within its sweep,independence from many other pressures and prejudices. It had manydimensions, namely, fearlessness of other power centers, economic orpolitical, and freedom from prejudices acquired and nourished by the classto which the Judges belong. It was held, that the principle of“independence of the judiciary” had to be kept in mind, while interpretingthe provisions of the Constitution (paragraph 27).(ii). On the subject of appointment of High Court Judges, it was opined,that just like Supreme Court Judges, who are appointed under Article 124 bythe President (which in effect and substance meant the Central Government),likewise, the power of appointment of High Court Judges under Article 217,was to be exercised by the Central Government. Such power, it was held, wasexercisable only “…after consultation with the Chief Justice of India, theGovernor of the State, and, the Chief Justice of the High Court…” It wasconcluded, 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, andsuch other Judges of the High Court and of the Supreme Court (as theCentral Government may deem necessary to consult), were constitutionalfunctionaries, having a consultative role, and the power of appointmentsrested solely and exclusively in the decision of the Central Government.It was pointed out, that the above power was not an unfettered power, inthe sense, that the Central Government could not act arbitrarily, withoutconsulting the constitutional functionaries specified in the two Articles.The Central Government was to act, only after consulting the constitutionalfunctionaries, and that, the consultation had to be full and effective(paragraph 29).(iii). On the question of the meaning of the term “consultation”expressed in Article 124(2) and Article 217(1), it was held, that thisquestion was no longer res integra, as the issue stood concluded by thedecision of the Supreme Court in Union of India v. Sankalchand HimatlalSheth[5], wherein its meaning was determined with reference to Article222(1). But, since it was the common ground between the parties, that theterm “consultation” used in Article 222(1) had the same meaning, which ithad in Articles 124(2) and 217(1), it was held that, “…therefore, itfollows that the President must communicate to the Chief Justice all thematerial he has and the course he proposes. The Chief Justice, in turn,must collect necessary information through responsible channels ordirectly, acquaint himself with the requisite data, deliberate on theinformation he possesses and proceed in the interests of the administrationof justice to give the President such counsel of action as he thinks willfurther the public interest, especially the cause of the justice system…" It was further concluded, that the above observation in the SankalchandHimatlal Sheth case5 would apply with equal force to determine the scopeand meaning of the term “consultation” within the meaning of Articles124(2) and 217(1). Each of the constitutional functionaries, required to beconsulted under these two Articles, must have for his consideration, fulland identical facts bearing upon appointment or non-appointment of theperson concerned, and the opinion of each of them taken on identicalmaterial, must be considered by the Central Government, before it takes adecision, whether or not to appoint the person concerned as a Judge. Itwas open to the Central Government to take its own decision, in regard tothe appointment or non-appointment of a Judge to a High Court or theSupreme Court, after taking into account and giving due weight to, theopinions expressed. It was also observed, that the only ground on whichsuch a decision could be assailed was, that the action was based on malafides or irrelevant considerations. In case of a difference of opinionamongst the constitutional functionaries, who were to be consulted, it wasfelt, that it was for the Central Government to decide, whose opinionshould be accepted. The contention raised on behalf of the petitioners,that in the consultative process, primacy should be that of the ChiefJustice of India, since he was the head of the Indian judiciary and paterfamilias of the judicial fraternity, was rejected for the reason, that eachof the constitutional functionaries was entitled to equal weightage. Withreference to appointment of Judges of the Supreme Court, it was held, thatthe Chief Justice of India was required to be consulted, but the CentralGovernment was not bound to act in accordance with the opinion of the ChiefJustice of India, even though, his opinion was entitled to great weight. Itwas therefore held, that the ultimate power of appointment, restedwith the Central Government (paragraph 30).(iv). On the issue of appointment of Judges of the Supreme Court, it wasconcluded, that consultation with the Chief Justice of India was amandatory requirement. But while making an appointment, consultation couldextend to such other Judges of the Supreme Court, and of the High Courts,as the Central Government may deem necessary. In response to thesubmission, where only the Chief Justice of India was consulted (i.e., whenconsultation did not extend to other Judges of the Supreme Court, or of theHigh Courts), whether the opinion tendered by the Chief Justice of Indiashould be treated as binding, it was opined, that there was bound to beconsultation, with one or more of the Judges of the Supreme Court and ofthe High Courts, before exercising the power of appointment conferred underArticle 124(2). It was felt, that consultation with the Chief Justice ofIndia alone, with reference to the appointment of Judges to the SupremeCourt, was not a very satisfactory mode of appointment, because wisdom andexperience demanded, that no power should rest in a single individualhowsoever high and great he may be, and howsoever honest and well-meaning.It was suggested, that it would be more appropriate if a collegium wouldmake the recommendations to the President, with regard to appointments tothe higher judiciary, and the recommending authority should be more broadbased. If the collegium was comprised of persons who had knowledge ofpersons, who may be fit for appointment to the Bench, and possessed thequalities required for such appointment, it would go a long way towardssecuring the right kind of Judges, who would be truly independent(paragraph 31).(v) It was held, that the appointment of an additional Judge, must bemade 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 procedureset out in Article 217(1). The contention, that an additional Judge mustautomatically and without any further consideration be appointed as anadditional 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 Ministerdated 18.3.1981, it was opined, that the same did not violate any legal orconstitutional provision. It was felt, that the advance consent sought tobe obtained through the letter dated 18.3.1981, from additional Judges orJudges prior to their permanent appointment, would have no meaning, so faras the Chief Justice of India was concerned, because irrespective of thefact, whether the additional Judge had given his consent or not, the ChiefJustice of India would have to consider, whether it would be in publicinterest to allow the additional Judge to be appointed as a permanent Judgein another High Court (paragraph 54).(vii) After having determined the merits of the individual claim raised byS.N. Kumar, J., (who was discontinued by the Central Government, while hewas holding the position of additional Judge), it was concluded, that itwould be proper if the Union of India could find a way, to place the letterdated 7.5.1981 addressed by the Chief Justice of Delhi High Court to theLaw Minister, before the Chief Justice of India, and elicit his opinionwith reference to that letter. And thereupon consider, whether S.N. Kumar,J., should be reappointed as additional Judge.(viii) With reference to K.B.N. Singh, CJ., it was opined that therewas a clear abdication by the Central Government of its constitutionalfunctions, and therefore, his transfer from the Patna High Court to theMadras 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 arbitrarily. It onlymeant, that Judges must be free, while discharging their judicialfunctions. In order to maintain “independence of the judiciary”, it wasfelt, that Judges had to be protected against interference, direct orindirect. It was concluded, that the constitutional provisions should notbe construed in a manner, that would tend to undermine the concept of“independence of the judiciary” (paragraph 119).(ii) On the question, whether, on the expiry of the term of office of anadditional Judge of a High Court, it was permissible to drop him by notgiving him another term, though the volume of work, pending in the HighCourt, required the services of another Judge? It was opined, that thetenure 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 anadditional Judge was not on probation, his performance could not beconsidered to determine, whether he was fit for appointment as a permanentJudge. Therefore, it was concluded, that if the volume of work pending inthe High Court justified the appointment of an additional Judge, therecould be no reason, why the concerned additional Judge should not beappointed for another term. The submission that the two years’ periodmentioned in Article 224, depicted the upper limit of the tenure, and thatthe President was competent to appoint an additional Judge, for any shorterperiod, was rejected. Since the fitness of a Judge, had been considered atthe time of his initial appointment, therefore, while determining whetherhe should be reappointed, under Article 217(1), it was opined, that thescope of inquiry was limited, to whether the volume of work pending in theHigh Court, necessitated his continuation.(iii). Referring to the opinion expressed by the Chief Justice of theHigh Court, in connection with S.N. Kumar, J., it was opined, that whenallegations were levelled against a Judge with respect to the discharge ofhis duties, the only reasonable course open, which would not undermine the“independence of the judiciary” was, to proceed with an inquiry into theallegations 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, atthe end of his initial term of office, on the ground that there wereallegations against him, without properly ascertaining the truth of theallegations, was destructive of the “independence of the judiciary”(paragraph 123).(iv). With reference to the non-continuation of S.N. Kumar, J., anadditional Judge of the Delhi High Court, it was observed, that the letterof the Chief Justice of the Delhi High Court dated 7.5.1981, addressed tothe Law Minister, was not disclosed to the Chief Justice of India. As therelevant material was withheld from the Chief Justice of India, it wasconcluded, that there was no full and effective “consultation”, ascontemplated by Article 217(1). And therefore, the decision not to extendthe term of office of S.N. Kumar, J., as additional Judge of the Delhi HighCourt, though the volume of pending work in the High Court required theservices of an additional Judge, was invalid.(v). On the question, whether the opinion of the Chief Justice of Indiawould have primacy, in case of a difference of opinion between the ChiefJustice of a High Court and the Chief Justice of India, the view expressedwas, that the President should accept the opinion of the Chief Justice ofIndia, unless such opinion suffered from any obvious infirmity. And that,the President could not act as an umpire, and choose between the twoopinions (paragraph 134).(vi). Referring to the judgment in the Sankalchand Himatlal Sheth case5,wherein it was concluded, that mass transfers were not contemplated underArticle 222(1), it was opined, that the President could transfer a Judgefrom one High Court to another, only after consultation with the ChiefJustice of India. And that, the Chief Justice of India must consider ineach case, whether the proposed transfer was in public interest (paragraph138).(vii). With reference to the transfer of K.B.N. Singh, CJ., from thePatna High Court to the Madras High Court, it was opined, that even if theabove transfer had been made for administrative reasons, and in publicinterest, it was likely to cause some injury to the transferee, and itwould only be fair to consider the possibility of transferring him, wherehe would face least difficulties, namely, where the language difficultywould not be acute.S. Murtaza Fazal Ali, J.:(i) On the issue, whether the transfer of a High Court Judge underArticle 222 required the consent of the Judge proposed to be transferred,it was opined, that a non-consensual transfer, would not amount topunishment, nor would it involve any stigma. It was accordingly concluded,that a transfer made after complying with Article 222, would not mar orerode the “independence of the judiciary” (paragraph 345).(ii). With reference to appointing Chief Justices of High Courts fromoutside the State, and for having 1/3rd Judges in every High Court fromoutside the State, it was expressed, that Article 222 conferred an expresspower with the President, to transfer a Judge (which includes, ChiefJustice) from one State to another. In determining as to how this power hadto be exercised, it was felt, that the President undoubtedly possessed animplied power to lay down the norms, the principles, the conditions and thecircumstances, under which the said power was to be exercised. Adeclaration by the President regarding the nature and terms of the policy(which virtually meant a declaration by the Council of Ministers) was quitesufficient, and absolutely legal and constitutional (paragraph 410).(iii). On the subject of validity of the letter of the Union LawMinister dated 18.3.1981, it was held, that the same did not in any waytarnish the image of Judges, or mar the “independence of the judiciary”(paragraph 433).(iv). On the question of appointment of additional Judges, and theinterpretation of Article 217, the opinion expressed by P.N. Bhagwati andE.S. Venkataramiah, JJ. were adopted (paragraph 434).(v). Insofar as the interpretation of Article 224 was concerned, theopinion of P.N. Bhagwati and D.A. Desai, JJ. were accepted, (paragraph537). And accordingly, their conclusion about the continuation of S.N.Kumar, J., as an additional Judge, after the expiry of his term ofappointment, was endorsed.(vi). On analyzing the decision rendered in the Sankalchand Himatlal Shethcase5, inter alia, the following necessary concomitants of an effectiveconsultation between the President and the Chief Justice of India weredrawn. That the consultation, must be full and effective, and must precedethe actual transfer of the Judge. If consultation with the Chief Justice ofIndia had not taken place, before transferring a Judge, it was held, thatthe transfer would be unconstitutional. All relevant data and necessaryfacts, must be provided to the Chief Justice of India, so that, he couldarrive at a proper conclusion. Only after the above process was fullycomplied with, the consultation would be considered full and effective. Itwas felt, that the Chief Justice of India owed a duty, both to thePresident and to the Judge proposed to be transferred, to consider everyrelevant fact, before tendering his opinion to the President. Before givinghis opinion the Chief Justice of India, could informally ascertain from theJudge, if there was any personal difficulty, or any humanitarian ground, onwhich his transfer should not be made. And only after having done so, theChief Justice of India, could forward his opinion to the President.Applying the above facets of the consultation process, with respect to thevalidity of the order dated 19.1.1981, by which K.B.N. Singh, CJ., wastransferred, it was held, that the consultation process contemplated underArticle 222, had been breached, rendering the order passed by the Presidentinvalid (paragraph 589).V.D. Tulzapurkar, J.:(i). Insofar as the question of “independence of the judiciary” isconcerned, it was asserted that all the Judges, who had expressed theiropinions in the matter, had emphasized, that the framers of theConstitution had taken the utmost pains, to secure the “independence of theJudges” of the higher judiciary. To support the above contention, severalprovisions of the Constitution were referred to. It was also pointed out,that the Attorney General representing the Union of India, had not disputethe above proposition (paragraph 639).(ii). With reference to additional Judges recruited under Article 224(1),from the fraternity of practicing Advocates, it was pointed out, that anundertaking 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 decline the same. And additionally, the Chief Justice ofthe 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 wouldnot practice before the Bombay High Court, or any court or tribunalsubordinate to it. Based on the aforesaid undertakings, the contentionadvanced was, that a legitimate expectancy, and an enforceable right tocontinue in office, came to be conferred on the additional Judges recruitedfrom the Bar. It was felt, that it was impossible to construe Article224(1), as conferring upon the appointing authority, any absolute power ordiscretion in the matter of appointment of additional Judges to a HighCourt (paragraphs 622 and 624).(iii) All submissions made on behalf of the respondents, that grantingextension to an additional Judge, or making him a permanent Judge was akinto a fresh appointment, were rejected. It was concluded, that extension toan additional Judge, or making him permanent, did not require re-determination of his suitability under Article 217(1) (paragraph 628).(iv). While dealing with the question of continuation of an additionalJudge, in situations where there were facts disclosing suspectedmisbehaviour and/or reported lack of integrity, the view expressed was,that while considering the question of continuation of a sitting additionalJudge, on the expiry of his initial term, the test of suitabilitycontemplated within the consultative process under Article 217(1) shouldnot be evoked — at least till a proper mechanism, having a legal sanction,was provided for holding an inquiry, against the Judge concerned, withreference to any suspected misbehavior and/or lack of integrity (paragraph628).(v) On the scope of consideration, for continuation as a sittingadditional Judge (on the expiry of a Judge’s initial term), it was opined,that the consultative process should be confined only to see, whether thepreconditions mentioned in Article 224(1) existed or not, or whether,pendency of work justified continuation or not. It was held, that the testof suitability contemplated within the consultative process under Article217(1), could not and should not, be resorted to (paragraph 629).(vi). On the question of primacy of the Chief Justice of India, withreference to Article 217(1), the view expressed was, that the schemeenvisaged therein, by implication and intent, clearly gave primacy to theadvice tendered by the Chief Justice of India. It was however sought to beclarified, that giving primacy to the advice of the Chief Justice of India,in the matter of appointment of Judges of the High Court, should not beconstrued as a power to veto any proposal. And that, if the advice of theChief Justice of India, had proceeded on extraneous or non germaneconsiderations, the same would be subject to judicial review, just as thePresident’s final decision, if he were to disregard the advice of the ChiefJustice of India, but for justified and cogent reasons. InterpretingArticle 217(1) in the above manner, it was felt, would go a long way inpreserving the “independence of the judiciary” (paragraph 632).(vii) With regard to the scope of ‘consultation’, contemplated underArticle 222(1), the conclusion(s) drawn by the majority view, in theSankalchand Himatlal Sheth case5, were endorsed.(viii). Insofar as, the issue of taking the consent of the concernedJudge, prior to his transfer is concerned, based on the decision renderedin the Sankalchand Himatlal Sheth case5, it was felt, that transfers couldbe made without obtaining the consent of the concerned Judge. Andaccordingly it was held, that non-consensual transfers, were within thepurview of Article 222(1) (paragraphs 645 and 646).(ix) With reference to the letter written by the Union Law Minister dated18.3.1981, it was asserted, that even a policy transfer, without fixing therequisite mechanism or modality of procedure, would not ensure completeinsulation against executive interference. Conversely it was felt, that aselective transfer in an appropriate case, for strictly objective reasons,and in public interest, could be non-punitive. It was thereforeconcluded, that each case of transfer, whether based on policy, or forindividual reasons, would have to be judged on the facts and circumstancesof its own, for deciding, whether it was punitive (paragraph 649).(x) It was concluded, that by requiring a sitting additional Judge, togive his consent for being appointed to another High Court, virtuallyamounted to seeking his consent for his transfer from his own High Court toanother High Court, falling within the ambit of Article 222(1). Referringto the judgment rendered in the Sankalchand Himatlal Sheth case5, it wasfelt, that the circular letter dated 18.3.1981 was an attempt to circumventthe safeguards and the stringent conditions expressed in the above judgment(paragraph 652). And further, that the circular letter clearly exuded anodour of executive dominance and arrogance, intended to have coerciveeffects on the minds of sitting additional Judges, by implying a threat tothem, that if they did not furnish their consent to be shifted elsewhere,they would neither be continued nor made permanent. The above letter, washeld to be amounting to, executive interference with the “independence ofthe judiciary”, and thus illegal, unconstitutional and void. Any consentobtained thereunder, was also held to be void (paragraph 654).(xi) It was also concluded that, the advice of the Chief Justice of India,would be robbed of its real efficacy, in the face of such pre-obtainedconsent, and it would have to be regarded as having been issued malafideand for a collateral purpose, namely, to bypass Article 222(1) and toconfront the Chief Justice of India, with a fait accompli, and as such, thesame was liable to be declared as illegal and unconstitutional (paragraph655).(xii) The above circular letter dated 18.3.1981, was also held to beviolative of Article 14, since invidious discrimination was writ large onthe face of the circular letter. For this additional reason, the letter ofthe Union Law Minister dated 18.3.1981, it was felt, was liable to bestruck down (paragraphs 659 and 660).(xiii) On the subject of non-continuation of S.N. Kumar, J., it washeld, that it was abundantly clear from the correspondence and notings,that further details and concrete facts and materials relating to hisintegrity, though specifically asked for by the Chief Justice of India,were not furnished, and the letter dated 7.5.1981, which contained suchdetails and concrete facts and materials, were kept away from him, leadingto the inference, that facts which were taken into consideration by theUnion Law Minister and the Chief Justice of Delhi High Court (whichprovided the basis to the appointing authority, not to extend theappointment of S.N. Kumar, J.), were not placed before the Chief Justice ofIndia, and therefore, there was neither full nor effective consultation,between the President and the Chief Justice of India, as required byArticle 217(1). It was accordingly concluded, that the decision againstS.N. Kumar, J., stood vitiated by legal mala fides, and as such, was liableto be held void and non est, and his case had to be sent back to thePresident, for reconsideration and passing appropriate orders, after therequisite consultation was undertaken afresh (paragraphs 664 and 666 to668).(xiv) With respect to the validity of the transfer of K.B.N. Singh, CJ., itwas felt, that in the absence of any connivance or complicity, since nounfair play was involved in the procedure followed by the Chief Justice ofIndia, it was liable to be concluded, that the impugned transfer had beenmade in public interest, and not by way of punishment. The above transferwas accordingly held to be valid (paragraph 680).D.A. Desai, J.:(i) After noticing, that the President under Article 74, acts on theadvice of the Council of Ministers, and that, while acting under Article217(3), the President performs functions of grave importance. It was felt,that it could not be said that while exercising the power of appointment ofJudges to the higher judiciary, the President was performing eitherjudicial or quasi judicial functions. The function of appointment of Judgeswas declared as an executive function, and as such, it was held, thatArticle 74 would come into operation. And therefore concluded, that thePresident would have to act, on the advice of the Council of Ministers, inthe matter of appointment of Judges under Article 217 (paragraph 715). Andtherefore it came to be held, that the ultimate power of appointment underArticle 217, “unquestionably” rested with the President.(ii) It was pointed out, that before exercising the power of appointmentof a Judge (other than the Chief Justice of a High Court), the Presidentwas under a constitutional obligation, to consult the three constitutionalfunctionaries, mentioned in Article 217 (paragraphs 718 and 719). And thatthe aforementioned three constitutional functionaries were at par with oneanother. They were coordinate authorities, without any relative hierarchy,and as such, the opinion of the Chief Justice of India could not be givenprimacy on the issue of appointment of Judges of High Courts (paragraphs724, 726 and 728).(iii) It was also concluded, that on the expiry of the original term ofappointment of an additional Judge under Article 224, the continuation ofthe concerned Judge, would envisage the re-adoption of the procedurecontained in Article 217 (paragraphs 736 and 745).(iv) It was felt, that there was no gainsaying, that a practice which hadbeen followed for over 25 years, namely, that an additional Judge wasalways considered for a fresh tenure, if there was no permanent vacancy,and if there was such a vacancy, he was considered for appointment as apermanent Judge. It was held, that the contention of the Attorney General,that such additional Judge had no priority, preference, weightage or rightto be considered, and that, he was on par with any other person, who couldbe brought from the market, would amount to disregarding the constitutionalscheme, and must be rejected (paragraph 759). It was held, that when aJudge was appointed for a term of two years, as an additional Judge, it wassufficient to contemplate, that his appointment was not as a permanentJudge. And therefore, if a permanent vacancy arose, the additional Judgecould not enforce his appointment against the permanent vacancy (paragraph762).(v) It was also concluded, that the term of an additional Judge could notbe extended for three months or six months, since such short termappointments, were wholly inconsistent and contrary to the clear intendmentof Article 224, and also, unbecoming of the dignity of a High Court Judge(paragraphs 763 and 764).(vi) On the subject of extension of the term of an additional Judge, itwas felt, that it was not open to the constitutional functionaries, to sittight over a proposal, without expressing their opinion on the merits ofthe proposal, and by sheer inaction, to kill a proposal. It wasaccordingly opined, that when the term of an additional Judge was about toexpire, it was obligatory on the Chief Justice of the High Court, toinitiate the proposal for completing the process of consultation, beforethe 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 functionaries, namely, theChief Justice of the Delhi High Court and the Chief Justice of India, hadmet with a specific reference to his doubtful integrity, the act of notshowing the letter dated 7.5.1981 to the Chief Justice of India, would notdetract from the fullness of the consultation, as required by Article 217.Accordingly, it was held, that there was a full and effective consultation,on all relevant points, including those set out in the letter dated7.5.1981. And the claim of the concerned Judge for continuation, wasliable to be rejected. It was however suggested, that the Government ofIndia could even now, show the letter dated 7.5.1981 to the Chief Justiceof India, and request him to give his comments. After receiving hiscomments, 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 clarified, that the proposed reconsideration, should not betreated as a direction, but a mere suggestion.(viii) On the question, whether the consent of the concerned Judgeshould be obtained prior to his transfer under Article 222(1), it wasconcluded, that the requirement of seeking a prior consent, as aprerequisite for exercising the power of transfer under Article 222(1),deserved to be rejected (paragraph 813). It was however observed, that theabove power of transfer under Article 222(1) could not be exercised in theabsence of public interest, merely on the basis of whim, caprice or fancyof the executive, or its desire to bend a Judge to its own way of thinking. Three safeguards, namely, full and effective consultation with the ChiefJustice of India, the exercise of power only aimed at public interest, andjudicial review — in case the power was exercised contrary to the mandateof law, were suggested to insulate the “independence of the judiciary”,against an attempt by the executive to control it (paragraphs 813 to 815).(ix) It was also concluded, that the transfer of an individual Judge, forsomething improper in his behavior, or conduct, would certainly cast a sluror 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 theconsumers of justice would have little or no faith in his judicialintegrity. Accordingly it was concluded, that a transfer on account of anycomplaint or grievance against a Judge, referable to his conduct orbehaviour, was impermissible under Article 222(1).(x) On the question of transfer of K.B.N. Singh, CJ., it was felt, thathis order of transfer was vitiated for want of effective consultation, andhis 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 oftransfer dated 20.12.1980 was accordingly, considered to be vitiated, andas such, was declared void.R.S. Pathak, J. (as he then was):(i) With reference to the issue of “independence of the judiciary”, itwas observed, that while the administration of justice drew its legalsanction from the Constitution, its credibility rested in the faith of thepeople. Indispensable to such faith, was the “independence of thejudiciary”. An independent and impartial judiciary, it was felt, givescharacter and content to the constitutional milieu (paragraph 874).(ii) On the subject of appointment of Judges to High Courts, it wasessential for the President, to consult the Governor of the State, theChief Justice of India and the Chief Justice of the concerned High Court.It was pointed out, that three distinct constitutional functionaries wereinvolved in the consultative process, and each had a distinct role to play(paragraph 887). In a case where the Chief Justice of the High Court andthe Chief Justice of India, were agreed on a recommendation, it was withinreason to hold, that the President would ordinarily accept therecommendation, unless there were strong and cogent reasons, for not doingso (paragraph 889). It was however pointed out, that the President was notalways obliged to agree, with a recommendation, wherein the Chief Justiceof the High Court and the Chief Justice of India, had concurred. In thisbehalf, it was observed, that even though, during the Constituent Assemblydebates, a proposal was made, that the appointment of a Judge shouldrequire the “concurrence” of the Chief Justice of India, and the aboveproposal was endorsed by the Law Commission of India, yet the proposal hadfallen through, and as such, the Constitution as it presently exists,contemplated “consultation” and not “concurrence” (paragraph 890).(iii) On the question, as to whether the Chief Justice of India hadprimacy, over the recommendation made by the Chief Justice of the HighCourt, it was felt, that the Chief Justice of India did not sit inappellate judgment, over the advice tendered by the Chief Justice of theHigh Court. It was pointed out, that the advice tendered by the ChiefJustice of India, emerged after taking into account, not only the primarymaterial before him, but also, the assessment made by the Chief Justice ofthe High Court. And therefore, when he rendered his advice, the assessmentof the Chief Justice of the High Court, must be deemed to have beenconsidered by him. It was pointed out, that from the constitutional scheme,it appeared, that in matters concerning the High Courts, there was a closeconsultative relationship, between the President and the Chief Justice ofIndia. In that capacity, the Chief Justice of India functioned, as aconstitutional check, on the exercise of arbitrary power, and was theprotector of the “independence of the judiciary” (paragraph 891).(iv) On the subject of appointment of Judges to the High Courts, it wasconcluded, that the appointment of an additional Judge, like theappointment of a permanent Judge, must be made in the manner prescribed inArticle 217(1). Accordingly, it was felt, that there was no reason tosuspect, that a person found fit for appointment as an additional Judge,and had already gained proficiency and experience, would not be appointedas a Judge for a further period, in order that the work may be disposed of(paragraph 893).(v) It was also opined, that the judiciary by judicial verdict, could notdecide, how many permanent Judges were required for a High Court. And if aCourt was not competent to do that, it could not issue a direction to theGovernment, that additional Judges should be appointed as permanent Judges(paragraph 895). Accordingly it was felt, that there was no doubtwhatever, that the provision of Article 217(1) would come into play, whenan additional Judge was to be considered for further appointment as anadditional Judge, or was to be considered for appointment as a permanentJudge (paragraph 897).(vi) With reference to the non-continuation of S.N. Kumar, J., it waspointed out, that the allegations contained in the letter dated 7.5.1981strongly influenced the decision of the Government. Since the aforesaidletter was not brought to the notice of the Chief Justice of India, it wasinevitable to conclude, that the process of consultation with the ChiefJustice of India was not full and effective, and the withholding ofimportant and relevant material from the Chief Justice of India, vitiatedthe process. It was accordingly held, that the non-continuation of theterm of S.N. Kumar, J., was in violation of the mandatory constitutionalrequirements contained in Article 217(1). It was felt, that the issuepertaining to the continuation of S.N. Kumar, J., needed to bereconsidered, and a decision needed to be taken, only after full andeffective consultation (paragraph 904).(vii) On the issue of transfer of Judges under Article 222(1), it wasconcluded, that the consent of the concerned Judge was not one of themandated requirements (paragraph 913). It was pointed out, that thetransfer of a Judge, could be made only in public interest, and that noJudge 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 theJudge proposed to be transferred, did not have a right of hearing. Andthat, the scope and degree of inquiry by the Chief Justice of India, fellwithin his exclusive discretion. All that was necessary was, that theJudge should know why his transfer was proposed, so that he would be ableto acquaint the Chief Justice of India, why he should not be sotransferred. It was further clarified, that the process of consultationenvisaged under Article 222(1) required, that all the material inpossession of the President must be placed before the Chief Justice ofIndia (paragraph 919).(viii) It was held that, it was open to the Judge, who was subjectedto transfer, to seek judicial review, by contesting his transfer on theground that it violated Article 222(1) (paragraph 920).(ix) It was also felt, that the power to transfer a Judge from one HighCourt to another, could constitute a threat, to the sense of independenceand impartiality of the Judge, and accordingly, it was held, that the saidpower should be exercised sparingly, and only for very strong reasons(paragraph 921).(x) On the validity of the transfer of K.B.N. Singh, CJ., it wasconcluded, that the considerations on which the transfer had been made,could be regarded as falling within the expression “public interest”, andtherefore, the order of transfer did not violate Article 222(1).(xi) Insofar as the validity of the letter of the Union Law Minister dated18.3.1981 is concerned, it was observed, that neither the proposal nor theconsent given thereto, had any legal status. In the above view, it washeld, that the circular letter could not be acted upon, and any consentgiven 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 the Constitution wasbased. It was pointed out, that in all countries, where the rule of lawprevailed, and the power to adjudicate upon disputes between a man and aman, and a man and the State, and a State and another State, and a Stateand the Centre, was entrusted to a judicial body, it was natural that suchbody should be assigned a status, free from capricious or whimsicalinterference from outside, so that it could act, without fear and inconsonance with judicial conscience (paragraph 1068).(ii) Referring to Article 217(1) it was asserted, that each of the threefunctionaries mentioned therein, had to be consulted before a Judge of aHigh Court could be appointed. It was pointed out, that each of theconsultees, had a distinct and separate role to play. Given the distinctroles assigned to them, which may to some extent be overlapping, it couldnot be said, that the Chief Justice of India occupied a position ofprimacy, amongst the three consultees (paragraph 1019).(iii) The power of appointment of a Judge of a High Court was considered tobe an executive power (paragraph 1023). Accordingly, while making anappointment of a High Court Judge, the President was bound to act, on theadvice of his Council of Ministers, and at the same time, giving due regardto the opinions expressed by those who were required to be consulted underArticle 217(1). Despite the above, it was felt, that there was no scopefor holding, that either the Council of Ministers could not advise thePresident, or the opinion of the Chief Justice of India was binding on thePresident. Although, it was felt, that such opinion should be given duerespect and regard (paragraph 1032). It was held, that the above methodwas intrinsic in the matter of appointment of Judges, as in that way,Judges may be called people’s Judges. If the appointments of Judges wereto be made on the basis of the recommendations of Judges only, then theywill be Judges’ Judges, and such appointments may not fit into the schemeof popular democracy (paragraph 1042).(iv) It was held, that the Constitution did not prescribe different modesof appointment for permanent Judges, additional Judges, or acting Judges.All of them were required to be appointed by the same process, namely, inthe manner contemplated under Article 217(1) (paragraph 1061). Theappointment of almost all High Court Judges initially as additional Judgesunder Article 224(1), and later on as permanent Judges under Article217(1), was not conducive to the independence of judiciary (paragraph1067). It was held, that the Constitution did not confer any right upon anadditional Judge, to claim as of right, that he should be appointed again,either as a permanent Judge, or as an additional Judge. Accordingly, itwas held, that there was no such enforceable right (paragraph 1074).(v) Despite the above, it was observed, that in the absence of cogentreasons for not appointing an additional Judge, the appointment of somebodyelse in his place, would be an unreasonable and a perverse act, which wouldentitle the additional Judge, to move a Court for appropriate relief, inthe peculiar circumstances (paragraph 1086). It was held, that havingregard to the high office, to which the appointment was made, and theassociation of high dignitaries, who had to be consulted before any suchappointment was made, the application of principles of natural justice, asof right, was ruled out (paragraph 1087).(vi) With reference to Article 222, it was opined, that the consent of theJudge being transferred, was not a prerequisite before passing an order oftransfer (paragraphs 1097 and 1099). It was held, that the transfer of aJudge of a High Court to another High Court, could not be construed as afresh 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 bestruck down by a Court, if it could be shown, that it had been made for anextraneous reason, i.e., on a ground falling outside the scope of Article222. Under Article 222, a Judge could be transferred, when the transferserved public interest. It was held, that the President had no power totransfer a High Court Judge, for reasons not bearing on public interest, orarising out of whim, caprice or fancy of the executive, or because of theexecutive desire to bend a Judge to its own way of thinking (paragraphs1097, 1099 and 1132).(vii) It was held, that Article 222 cannot be resorted to on the ground ofalleged misbehaviour or incapacity of a Judge (paragraph 1139).(viii) Based on the opinion expressed by several expert bodies, it wasopined, that any transfer of a Judge of a High Court under Article 222, inorder to implement the policy of appointing Chief Justice of every HighCourt from outside the concerned State, and of having at least 1/3rd ofJudges of every High Court from outside the State, would not beunconstitutional (paragraph 1164).(ix) The letter of the Union Minister of Law dated 18.3.1981, was found tobe valid. All contentions raised against the validity thereof were rejected(paragraph 1239).(x) The decision of the President not to issue a fresh order ofappointment to S.N. Kumar, J., on the expiry of his term as an additionalJudge 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 madestrictly in consonance with the procedure indicated in the SankalchandHimatlal Sheth case5. It was accordingly concluded, that there was noground to hold, that the above transfer was not considered by the ChiefJustice of India, in a fair and reasonable way. On the facts andcircumstances of the case, it was concluded that it was not possible tohold that the above transfer was either illegal or void (paragraphs 1252and 1257).The Second Judges Case - (1993) 4 SCC 441:17. For the purpose of adjudication of the present issue, namely, whetherthe judgment rendered by this Court in the Second Judges case needs to bere-examined, it is not necessary to delineate the views expressed by theindividual Judges, as the conclusions drawn by them are per se not subjectmatter of challenge. The limited challenge being, that vital aspects ofthe matter, which needed to have been considered were not canvassed, andtherefore, could not be taken into consideration in the process of decisionmaking. In the above perspective, we consider it just and proper toextract hereunder, only the conclusions drawn by the majority view:“(1) The process of appointment of Judges to the Supreme Court and the HighCourts is an integrated ‘participatory consultative process’ for selectingthe best and most suitable persons available for appointment; and all theconstitutional functionaries must perform this duty collectively with aview primarily to reach an agreed decision, subserving the constitutionalpurpose, so that the occasion of primacy does not arise.(2) Initiation of the proposal for appointment in the case of the SupremeCourt must be by the Chief Justice of India, and in the case of a [pic]HighCourt by the Chief Justice of that High Court; and for transfer of aJudge/Chief Justice of a High Court, the proposal has to be initiated bythe Chief Justice of India. This is the manner in which proposals forappointments to the Supreme Court and the High Courts as well as for thetransfers of Judges/Chief Justices of the High Courts must invariably bemade.(3) In the event of conflicting opinions by the constitutionalfunctionaries, the opinion of the judiciary ‘symbolised by the view of theChief 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 canbe made, unless it is in conformity with the opinion of the Chief Justiceof India.(5) In exceptional cases alone, for stated strong cogent reasons, disclosedto the Chief Justice of India, indicating that the recommendee is notsuitable for appointment, that appointment recommended by the Chief Justiceof India may not be made. However, if the stated reasons are not acceptedby the Chief Justice of India and the other Judges of the Supreme Court whohave been consulted in the matter, on reiteration of the recommendation bythe Chief Justice of India, the appointment should be made as a healthyconvention.(6) Appointment to the office of the Chief Justice of India should be ofthe seniormost Judge of the Supreme Court considered fit to hold theoffice.(7) The opinion of the Chief Justice of India has not mere primacy, but isdeterminative in the matter of transfers of High Court judges/ChiefJustices.(8) Consent of the transferred Judge/Chief Justice is not required foreither the first of any subsequent transfer from one High Court to another.(9) Any transfer made on the recommendation of the Chief Justice of Indiais not to be deemed to be punitive, and such transfer is not justiciable onany ground.(10) In making all appointments and transfers, the norms indicated must befollowed. However, the same do not confer any justiciable right in any one.(11) Only limited judicial review on the grounds specified earlier isavailable in matters of appointments and transfers.(12) The initial appointment of Judge can be made to a High Court otherthan that for which the proposal was initiated.(13) Fixation of Judge-strength in the High Courts is justiciable, but onlyto 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 toprimacy of the role of the Chief Justice of India in matters ofappointments and transfers, and the justiciability of these matters as wellas in relation to Judge-strength, does not commend itself to us as beingthe correct view. The relevant provisions of the Constitution, includingthe constitutional scheme must now be construed, understood and implementedin the manner indicated herein by us.”The Third Judges case - (1998) 7 SCC 739:18. For exactly the same reasons as have been noticed with reference tothe Second Judges case, it is not necessary to dwell into the unanimousview expressed in the Third Judges case. The concession of the AttorneyGeneral for India, as was expressly recorded in paragraph 11 of the ThirdJudges case, needs to be extracted to highlight the fact, that the thenAttorney General had conceded, that the opinion recorded by the majority inthe Second Judges case, had been accepted by the Union of India and, assuch, would be binding on it. Paragraph 11 is accordingly reproducedhereunder:“11. We record at the outset the statements of the Attorney General that(1) the Union of India is not seeking a review or reconsideration of thejudgment in the Second Judges case (1993) 4 SCC 441 and that (2) the Unionof India shall accept and treat as binding the answers of this Court to thequestions set out in the Reference.”19. It is likewise necessary to extract herein, only the final summary ofconclusions expressed in the Third Judges case, which are placed below:“1. The expression "consultation with the Chief justice of India" inArticles 217(1) of the Constitution of India requires consultation with aplurality of Judges in the formation of the opinion of the Chief Justice ofIndia. The sole, individual opinion of the Chief Justice of Indian does notconstitute "consultation" within the meaning of the said Articles.2. The transfer of puisne Judges is judicially reviewable only to thisextent: that the recommendation that has been made by the Chief Justice ofIndia in this behalf has not been made in consultation with the fourseniormost puisne Judges of the Supreme Court and/or that the views of theChief Justice of the High Court from which the transfer is to be effectedand of the Chief Justice of the High Court to which the transfer is to beeffected have not been obtained.3. The Chief Justice of India must make a recommendation to appoint aJudge of the Supreme Court and to transfer a Chief Justice or puisne Judgeof a High Court in consultation with the four seniormost puisne Judges ofthe Supreme Court. Insofar as an appointment to the High Court isconcerned, the recommendation must be made in consultation with twoseniormost puisne Judges of the Supreme Court.4. The Chief Justice of India is not entitled to act solely in hisindividual capacity, without consultation with other Judges of the SupremeCourt, in respect of materials and information conveyed by the Governmentof India for non-appointment of a judge recommended for appointment.5. The requirement of consultation by the Chief Justice of India withhis colleagues who are likely to be conversant with the affairs of theconcerned High Court does not refer only to those Judges who have that HighCourt as a parent High Court. It does not exclude Judges who have occupiedthe office of a Judge or Chief Justice of that High Court on transfer.6. "Strong cogent reasons" do not have to be recorded as justificationfor a departure from the order of seniority, in respect of each seniorJudge who has been passed over. What has to be recorded is the positivereason for the recommendation.7. The views of the Judges consulted should be in writing and should beconveyed to the Government of India by the Chief Justice of India alongwith 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 andthe requirement of the consultation process, as aforestated, in making hisrecommendations to the Government of India.9. Recommendations made by the Chief Justice of India without complyingwith the norms and requirements of the consultation process, asaforestated, are not binding upon the Government of India.”III. MOTION BY THE RESPONDENTS, FOR THE REVIEW OF THE SECOND AND THIRDJUDGES CASES:20. It was the contention of the learned Attorney General, that in thesubmissions advanced at the hands of the learned counsel representing thepetitioners, for adjudication of the merits of the controversy, emphaticreliance had been placed on the judgments rendered by this Court in theSecond and Third Judges cases. It was the contention of the learnedAttorney General, that the conclusions drawn in the above judgments, neededa reconsideration by way of a fresh scrutiny, to determine, whether theconclusions recorded therein, could withstand the original provisions ofthe Constitution, viewed in the background of the debates in theConstituent Assembly.21. In order to record the facts truthfully, it was emphasized, that thesubmissions advanced by him, could not be canvassed on behalf of the Unionof India as in the Third Judges case, the Union had consciously accepted asbinding the judgment rendered in the Second Judges case.Despite the above, the Attorney General was emphatic, that the Union ofIndia could not be debarred from seeking reconsideration of the judgmentrendered by this Court in the Second Judges case. In order to dissuade thelearned Attorney General from the course he insisted to pursue, it wassuggested, that the determination by this Court in the Second Judges casewould not prejudice the claim of the Union of India, if the Union couldestablish, that the “basic structure” of the Constitution, namely, the“independence of the judiciary” would not stand compromised by theConstitution (99th Amendment) Act. Despite the instant suggestion, theAttorney General pleaded, that he be allowed to establish, that thedetermination rendered by the nine-Judge Bench in the Second Judges case,was not sustainable in law. At his insistence, we allowed him to advancehis submissions. Needless to mention, that if the Attorney General wassuccessful in persuading us, that the said judgment did not prima facie laydown the correct legal/constitutional position, the matter would have to beexamined by a Constitution Bench, with a strength of nine or more Judges ofthis Court, only if, we would additionally uphold the challenge to theimpugned constitutional amendment, and strike down the same, failing whichthe new regime would replace the erstwhile system.22. First and foremost, our attention was drawn to Article 124 of theConstitution, as it existed, prior to the present amendment. It wassubmitted that Article 124 contemplated, that the Supreme Court wouldcomprise of the Chief Justice of India, and not more than seven otherJudges (unless, the Parliament by law, prescribed a larger number). It wassubmitted, that clause (2) of Article 124 vested the power of appointmentof Judges of the Supreme Court, with the President. The proviso underArticle 124(2) postulated a mandatory “consultation” with the Chief Justiceof India. Appointments contemplated under Article 124, also required a non-mandatory “consultation” with such other Judges of the Supreme Court andHigh Courts, as the President may deem necessary. It was accordinglysubmitted, that the consultation contemplated under Article 124(2), at thehands of the President was wide enough to include, not only the collegiumof Judges, in terms of the judgment rendered by this Court in the SecondJudges case, but each and every single Judge on the strength of the SupremeCourt, and also the Judges of the High Courts of the States, as thePresident may choose to consult. It was submitted, that only a limitedrole assigned to the Chief Justice of India, had been altered by thejudgment in the Second Judges case, into an all pervasive decision taken bythe Chief Justice of India, in consultation with a collegium of Judges. Itwas pointed out, that the term “consultation” expressed in Article 124 withreference 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 and hiscollegium of Judges. It was contended, that the above determination, waswholly extraneous to the plain reading of the language engaged in Article124 (in its original format). It was asserted, that there was never anyquestion of “concurrence”, as Article 124 merely contemplated“consultation”. It was contended, that the above “consultation” had beenmade mandatory and binding, on the President even in a situation where, theopinion expressed by the Chief Justice and the collegium of Judges, was notacceptable to the President. It was asserted, that it was notunderstandable, how this addition came to be made to the plain and simplelanguage engaged in framing Article 124. It was submitted, that onceprimacy is given to the Chief Justice of India (i.e., to the collegium ofJudges, contemplated under the Second and Third Judges cases), then therewas an implied exclusion of “consultation”, with the other Judges of theSupreme Court, and also, with the Judges of the High Courts, even though,there was an express provision, empowering the President to make up hismind, after consulting the other Judges of the Supreme Court and the Judgesof the High Courts, as he may choose.23. The Attorney General further contended, that the interpretationplaced on Article 124 in the Second Judges case, was an absolutelyunsustainable interpretation, specially when examined, with reference tothe following illustration. That even if all the Judges of the SupremeCourt, recommend a name, to which the Chief Justice of India alone, was notagreeable, the said recommendee could not be appointed as a Judge. Thisillustration, it was submitted, placed absolute power in the hands of oneperson – the Chief Justice of India.24. The learned Attorney General, then invited the Court’s attention toArticle 125, so as to contend, that the salary payable to the Judges of theSupreme Court has to be determined by the Parliament by law, and until suchdetermination was made, the emoluments payable to a Judge would be such, aswere specified in the Second Schedule. It was submitted, that theParliament was given an express role to determine even the salary ofJudges, which is a condition of service of the Judges of the Supreme Court. He also pointed to Article 126, which contemplates, the appointment of oneof the Judges of the Supreme Court, to discharge the functions of ChiefJustice of India, on account of his absence or otherwise, or when the ChiefJustice of India, was unable to perform the duties of his office. TheCourt’s attention was also drawn to Article 127, to point out, that in asituation where the available Judges of the Supreme Court, could notsatisfy the quorum of the Bench, required to adjudicate upon a controversy,the Chief Justice of India could continue the proceedings of the case, byincluding therein, a Judge of a High Court (who was qualified forappointment as a Judge of the Supreme Court), in order to make up thequorum, with the previous consent of the President of India. It wassubmitted, that the role of the President of India was manifestly inter-twined with administration of justice, by allowing the President to appointa Judge of the High Court, as a Judge of the Supreme Court on ‘ad hoc’basis. Reference was then made to Article 128, whereby the Chief Justiceof India, with the previous approval of the President, could require aretired Judge of the Supreme Court, or a person who has held office as aJudge of a High Court, and was duly qualified for appointment as a Judge ofthe Supreme Court, to sit and act as a Judge of the Supreme Court. It waspointed out, that this was yet another instance, where the President’snoticeable role in the functioning of the higher judiciary, wascontemplated by the Constitution itself. The Court’s attention was thendrawn to Article 130, whereunder, even though the seat of the Supreme Courtwas to be at Delhi, it could be moved to any other place in India, if sodesired by the Chief Justice of India, with the approval of the President.Yet again, depicting the active role assigned to the President, in thefunctioning of the higher judiciary. Likewise, the Court’s attention wasinvited to Articles 133 and 134, providing for an appellate remedy in civiland criminal matters respectively, to the Supreme Court, leaving it open tothe Parliament to vary the scope of the Courts’ appellate jurisdiction.Insofar as Article 137 is concerned, it was pointed out, that the power ofreview of the judgments or orders passed by the Supreme Court, was subjectto the provisions of any law made by the Parliament, or any rules that maybe made under Article 145. With reference to Article 138, it wascontended, that the jurisdiction of the Supreme Court, could be extended tomatters falling in the Union List, as the Parliament may choose to confer.Similar reference was made to clause (2) of Article 138, wherein furtherjurisdiction could be entrusted to the Supreme Court, when agreed to, bythe Government of India and by any State Government, if the Parliament bylaw so provides. Based on the above, it was contended, that Article 138was yet another provision, which indicated a participatory role of theParliament, in the activities of the Supreme Court. Likewise, this Court’sattention was drawn to Article 139, whereby the Parliament could confer, bylaw, the power to issue directions, orders or writs, in addition to theframework demarcated through Article 32(2). This, according to the learnedAttorney General, indicated another participatory role of the Parliament inthe activities of the Supreme Court. Pointing to Article 140, it wassubmitted, that the Parliament could by law confer upon the Supreme Courtsupplemental powers, in addition to the powers vested with it by theConstitution, as may appear to the Parliament to be necessary or desirable,to enable the Supreme Court to exercise its jurisdiction more effectively.It was submitted, that one Article after the other, including Article 140,indicated a collective and participatory role of the President and theParliament, in the activities of the Supreme Court. Having read outArticle 142(2), it was asserted, that even on the subject of securing theattendance of any person, and the discovery or production of any documents,or the investigation or punishment of any contempt of itself, thejurisdiction of the Supreme Court was subject to the law made by theParliament. The learned Attorney General, also referred to Article 145,whereunder, it was open to the Parliament to enact law framed by theParliament, for regulating generally the practice and procedure of theSupreme Court. In the absence of any such law, the Supreme Court had theliberty to make rules for regulating the practice and procedure of theCourt, with the approval of the President. It was submitted, that even onelementary issues like procedure, the Parliament and/or the President wereassigned a role by the Constitution, in activities strictly in the judicialdomain. With reference to the activities of the Supreme Court, the Court’sattention was also drawn to Article 146, which envisages that appointmentsof officers and servants of the Supreme Court, were to be made by the ChiefJustice of India. It was pointed out, that the authority conferred underArticle 146, was subservient to the right of the President, to frame rulesrequiring future appointments to any office connected to the Supreme Court,to be made, only in consultation with the Union Pubic Service Commission.The aforesaid right of appointing officers and servants to the SupremeCourt, is also clearly subservient to the right of the Parliament, to makeprovisions by enacting law on the above subject. In the absence of alegislation, at the hands of the Parliament, the conditions of service ofofficers and servants of the Supreme Court would be such, as may beprescribed by rules framed, by the Chief Justice of India. The rulesframed by the Chief Justice, are subject to the approval by the President,with reference to salaries, allowances, leave and pension.25. With reference to the appointments made to the High Courts, theCourt’s attention was invited to Article 217, whereunder, the authority ofappointing a Judge to a High Court was vested with the President. ThePresident alone, was authorized to make such appointments, after“consultation” with the Chief Justice of India, the Governor of the State,and the Chief Justice of the concerned High Court. The Court’s attentionwas also drawn to Article 221, whereunder, the power to determine thesalary payable to a Judge, was to be determined by law to be enacted by theParliament. Till any such law was framed by the Parliament, High CourtJudges would be entitled to such salaries, as were specified in the SecondSchedule. The allowances payable to Judges of the High Court, as also, theright in respect of leave of absence and pension, were also left to thewisdom of Parliament, to be determined by law. And until suchdetermination, Judges of the High Courts were entitled to allowances andrights, as were indicated in the Second Schedule. The Court’s attentionwas also drawn to Article 222, wherein, the President was authorized, after“consulting” the Chief Justice of India, to transfer a Judge from one HighCourt to another. Inviting the Court’s attention to the provisionsreferred to in the foregoing two paragraphs contained in Part V, Chapter IV– The Union Judiciary, and Part VI, Chapter V – The High Courts in theStates, it was asserted, that the role of the President, and also, that ofthe Parliament was thoughtfully interwoven in various salient aspects,pertaining to the higher judiciary. Exclusion of the executive and thelegislature, in the manner expressed through the Second Judges case, in thematter of appointment of Judges to the higher judiciary, as also, transferof Judges and Chief Justices of one High Court to another, was clearlyagainst the spirit of the Constitution.26. It was submitted, that the method of appointment of Judges to thehigher judiciary, was not the “be all” or the “end all”, of theindependence of the judiciary. The question of independence of thejudiciary would arise, with reference to a Judge, only after hisappointment as a Judge of the higher judiciary. It was submitted, that thisCourt had repeatedly placed reliance on the debates in the ConstituentAssembly, so as to bring out the intention of the framers of theConstitution, with 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 ofPunjab[8]. The following observations in the last cited judgment werehighlighted:“33. Constitutional provisions are required to be understood andinterpreted with an object-oriented approach. A Constitution must not beconstrued in a narrow and pedantic sense. The words used may be general interms but, their full import and true meaning, has to be appreciatedconsidering the true context in which the same are used and the purposewhich they seek to achieve. Debates in the Constituent Assembly referred toin an earlier part of this judgment clearly indicate that a non-member’sinclusion in the Cabinet was considered to be a “privilege” that extendsonly for six months, during which period the member must get elected,otherwise he would cease to be a Minister. It is a settled position thatdebates in the Constituent Assembly may be relied upon as an aid tointerpret a constitutional provision because it is the function of thecourt to find out the intention of the framers of the Constitution. We mustremember that a Constitution is not just a document in solemn form, but aliving framework for the Government of the people exhibiting a sufficientdegree of cohesion and its successful working depends upon the democraticspirit underlying it being respected in letter and in spirit. The debatesclearly indicate the “privilege” to extend “only” for six months.”For the same purpose, he referred to Indra Sawhney v. Union of India[9],and drew the Court’s attention to the opinion expressed therein:“217. Further, it is clear for the afore-mentioned reasons that theexecutive while making the division or sub-classification has not properlyapplied its mind to various factors, indicated above which may ultimatelydefeat the very purpose of the division or sub-classification. In thatview, para 2(i) not only becomes constitutionally invalid but also suffersfrom the vice of non-application of mind and arbitrariness. xxx xxx xxx772. We may now turn to Constituent Assembly debates with a view toascertain the original intent underlying the use of words “backward classof citizens”. At the outset we must clarify that we are not taking thesedebates or even the speeches of Dr Ambedkar as conclusive on the meaning ofthe expression “backward classes”. We are referring to these debates asfurnishing the context in which and the objective to achieve which thisphrase was put in clause (4). We are aware that what is said during thesedebates is not conclusive or binding upon the Court because several membersmay have expressed several views, all of which may not be reflected in theprovision finally enacted. The speech of Dr Ambedkar on this aspect,however, stands on a different footing. He was not only the Chairman of theDrafting Committee which inserted the expression “backward” in draftArticle 10(3) [it was not there in the original draft Article 10(3)], hewas virtually piloting the draft Article. In his speech, he explains thereason behind draft clause (3) as also the reason for which the DraftingCommittee added the expression “backward” in the clause. In this situation,we fail to understand how can anyone ignore his speech while trying toascertain the meaning of the said expression. That the debates inConstituent Assembly can be relied upon as an aid to interpretation of aconstitutional provision is borne out by a series of decisions of thisCourt. [See Madhu Limaye, in re, AIR 1969 SC 1014, Golak Nath v. State ofPunjab, AIR 1967 SC 1643 (Subba Rao, CJ); opinion of Sikri, CJ, in Union ofIndia v. H.S. Dhillon (1971) 2 SCC 779 and the several opinions inKesavananda Bharati (1973) 4 SCC 225, where the relevance of these debatesis pointed out, emphasing at the same time, the extent to which and thepurpose for which they can be referred to.] Since the expression “backward”or “backward class of citizens” is not defined in the Constitution,reference to such debates is permissible to ascertain, at any rate, thecontext, background and objective behind them. Particularly, where theCourt wants to ascertain the ‘original intent’ such reference may beunavoidable.”Reliance was also placed on Kesavananda Bharati v. State of Kerala[10],and this Court’s attention was invited to the following:“1088. Before I refer to the proceedings of the Constituent Assembly, Imust first consider the question whether the Constituent Assembly Debatescan be looked into by the Court for construing these provisions. TheAdvocate-General of Maharashtra says until the decision of this Court inH.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and others v.Union of India, (1971) 1 SCC 85 - commonly known as Privy Purses case -debates and proceedings were held not to be admissible. Nonetheless counselon either side made copious reference to them. In dealing with theinterpretation of ordinary legislation, the widely held view is that whileit is not permissible to refer to the debates as an aid to construction,the various stages through which the draft passed, the amendments proposedto it either to add or delete any part of it, the purpose for which theattempt was made and the reason for its rejection may throw light on theintention of the framers or draftsmen. The speeches in the legislatures aresaid to afford no guide because members who speak in favour or against aparticular provision or amendment only indicate [pic]their understanding ofthe provision which would not be admissible as an aid for construing theprovision. The members speak and express views which differ from oneanother, and there is no way of ascertaining what views are held by thosewho do not speak. It is, therefore, difficult to get a resultant of theviews in a debate except for the ultimate result that a particularprovision or its amendment has been adopted or rejected, and in any casenone of these can be looked into as an aid to construction except that thelegislative history of the provision can be referred to for finding out themischief sought to be remedied or the purpose for which it is enacted, ifthey are relevant. But in Travancore Cochin and others v. Bombay CompanyLtd., AIR 1952 SC 366, the Golaknath case (supra), the Privy Purses case(supra), and Union of India v. H.S. Dhillon, (1971) 2 SCC 779, there aredicta against referring to the speeches in the Constituent Assembly and inthe last mentioned case they were referred to as supporting the conclusionalready arrived at. In Golaknath case (supra), as well as Privy Purses case(supra), the speeches were referred to though it was said not forinterpreting a provision but for either examining the transcendentalcharacter of Fundamental Rights or for the circumstances which necessitatedthe giving of guarantees to the rulers. For whatever purpose speeches inthe Constituent Assembly were looked at though it was always claimed thatthese are not admissible except when the meaning was ambiguous or where themeaning was clear for further support of the conclusion arrived at. Ineither case they were looked into. Speaking for myself, why should we notlook into them boldly for ascertaining what was the intention of ourframers and how they translated that intention? What is the rationale fortreating them as forbidden or forbidding material. The Court in aconstitutional matter, where the intent of the framers of the Constitutionas embodied in the written document is to be ascertained, should look intothe proceedings, the relevant data including any speech which may throwlight on ascertaining it. It can reject them as unhelpful, if they throw nolight or throw only dim light in which nothing can be discerned. Unlike astatute, a Constitution is a working instrument of Government, it isdrafted by people who wanted it to be a national instrument to subservesuccessive generations. The Assembly constituted Committees of able men ofhigh 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. Rauwhich was circulated to the public of every shade of opinion, toprofessional bodies, to legislators, to public bodies and a host of othersand was given the widest publicity. When criticism, comments andsuggestions were received, a draft was prepared in the light of these whichwas submitted to the Constituent Assembly, and introduced with a speech bythe sponsor Dr Ambedkar. The assembly thereupon constituted threeCommittees: (1) Union Powers Committee; (2) Provincial Powers Committee;and (3) Committee on the Fundamental Rights and Minorities Committee. Thedeliberations and the recommendations of these Committees, the proceedingsof the Drafting Committee, and the speech of Dr Ambedkar introducing thedraft so prepared along with the report of these Committees are allvaluable material. The objectives of the Assembly, the manner in which theymet any criticism, the resultant decisions taken thereupon, amendmentsproposed, speeches in favour or against them and their ultimate adoption orrejection will be helpful in throwing light on the particular matter inissue. In proceedings of a legislature on an ordinary draft bill, as I saidearlier, there may be a partisan and heated debate, which often times maynot throw any light on the issues which come before the Court but theproceedings in a [pic]Constituent Assembly have no such partisan nuancesand their only concern is to give the national a working instrument withits basic structure and human values sufficiently balanced and stableenough to allow an interplay of forces which will subserve the needs offuture generations. The highest Court created under it and charged with theduty of understanding and expounding it, should not, if it has to catch theobjectives of the framers, deny itself the benefit of the guidancederivable from the records of the proceedings and the deliberations of theAssembly. Be that as it may, all I intend to do for the present is toexamine the stages through which the draft passed and whether and whatattempts were made to introduce words or expressions or delete any thatwere already there and for what purpose. If these proceedings are examinedfrom this point of view, do they throw any light on or support the viewtaken 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 India[12].27. Having emphasized, that Constituent Assembly debates, had beenadopted as a means to understand the true intent and import of theprovisions of the Constitution, reference was made in extenso to theConstituent Assembly debates, with reference to the provisions (moreparticularly, to Article 124) which are subject matter of the presentconsideration. It was pointed out, that after the constitution of theConstituent Assembly, the issue of judicial appointments and salaries wastaken up by an ad hoc committee on the Supreme Court. The committeecomprised of S. Varadachariar (a former Judge of the Federal Court), B.L.Mitter (a former Advocate General of the Federal Court), in addition tosome noted jurists – Alladi Krishnaswamy Ayyar, K.M. Munshi and B.N. Rau(Constitutional Adviser to the Constituent Assembly of India). The ad hoccommittee presented its report to the Constituent Assembly on 21.5.1947.With reference to judicial independence, it modified the consultativeproposal suggested in the Sapru Committee report, by recommending a panelof 11 persons, nominated by the President, in consultation with the ChiefJustice of India. Alternatively, it was suggested, that the panel wouldrecommend three candidates, and the President in consultation with theChief 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 ensureindependence, it was recommended, that the panel should have a tenure often years. Based on the above report, it was submitted, that the proposalsuggested a wider participation of a collegium of Judges, politicians andlaw officers, in addition to the President and the Chief Justice of India,in the matter of appointment of Judges to the higher judiciary. LearnedAttorney General went on to inform the Court, that on the basis of theabove report, B.N. Rau prepared a memorandum dated 30.5.1947, wherein hemade his own suggestions. The above suggestions related to Judges of theSupreme Court, as also, of High Courts. The Court was also informed, thatthe Union Constitution Committee presented its report to the ConstituentAssembly on 4.7.1947, also pertaining to appointments to the higherjudiciary. Yet another memorandum, on the Principles of a Model ProvincialConstitution was prepared by the Constitutional Adviser on 13.5.1947,relating to appointments to the higher judiciary, which was adopted by theProvincial Constitution Committee. Reliance was placed by the AttorneyGeneral, on the speech delivered by Sardar Vallabhbhai Patel on 15.7.1947,wherein he expressed the following views:“The committee have given special attention to the appointment of judges ofthe High Court. This is considered to be very important by the committeeand as the judiciary should be above suspicion and should be above partyinfluences, it was agreed that the appointment of High Court judges shouldbe made by the President of the Union in consultation with the ChiefJustice of the Supreme Court, the Chief Justice of the Provincial HighCourt and the Governor with the advice of the Ministry of the Provinceconcerned. So there are many checks provided to ensure fair appointments tothe High Court.”The Court was informed, that the first draft of the new constitutionprepared by B.N. Rau was presented to the Constituent Assembly in October1947, wherein, it was expressed that Judges of the Supreme Court, would beappointed by the President, in consultation with the sitting Judges of theSupreme Court, and Judges of High Courts in consultation with the ChiefJustice of India, except in the matter of appointment of the Chief Justiceof India himself. It was suggested, that this was the immediate precursorto Article 124(2) of the Constitution, as it was originally framed.28. It was pointed out, that in the above report prepared by theConstitutional Adviser, the following passage related to the judiciary:“Regarding the removal of judges, he (Justice Frankfurter, Judge, SupremeCourt of the United States of America) drew attention to a provision whichhad just been proposed in New York State – the provision has since beenapproved and which had the support of most of the judges and lawyers inthis country. The provision is reproduced below:9-a (1) A judge of the court of appeals, a justice of the supreme court, ajudge of the court of claims… (types of judges) may be removed or retiredalso by a court on the judiciary. The court shall be composed of the chiefjudge of the court of appeals, the senior associate judges of the court ofappeals and one justice of the appellate division in each departmentdesignated by concurrence of a majority of the justices of such appellatedivision…(2) No judicial officer shall be removed by virtue of this section exceptfor cause or be retired except for mental or physical disability preventingthe proper performance of his judicial duties, nor unless he shall havebeen served with a statement of the charges alleged for his removal or thegrounds 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 thegrounds for his retirement shall be held before a court on the judiciary…(4) The chief judge of the court of appeals may convene the court on thejudiciary upon his own motion and shall convene the court upon writtenrequest by the governor or by the presiding justice of any appellatedivision…”It was submitted, that the above suggestion of vesting the power ofimpeachment, in-house by the judiciary itself, as recommended by JusticeFrankfurter, was rejected. It was pointed out, that the second draft ofthe Constitution was placed before the Constituent Assembly on 21.2.1948.Articles 103 and 193 of the above draft, pertained to appointments ofJudges to the Supreme Court and High Courts. It was submitted, thatseveral public comments were received, with reference to the second draft.In this behalf, a memorandum was also received, from the Judges of theFederal Court and the Chief Justices of the High Courts which, inter alia,expressed as under:“It seems desirable to insert a provision in these articles (Draft Articles103(2) and 193(2) to the effect that no person should be appointed a judgeof the Supreme Court or of a High Court who has at any time accepted thepost of a Minister in the Union of India or in any State. This is intendedto prevent a person who has accepted office of a Minister from exercisinghis influence in order to become a judge at any time. It is the unanimousview of the judges that a member of the Indian Civil Service should not bea permanent Chief Justice of any High Court. Suitable provision should bemade in the article for this.”It was submitted, that in response to the above memorandum, B.N. Rau madethe following observations:“It is unnecessary to put these prohibitions into the Constitution. TheAttorney-General in England is invariably one of the Ministers of the Crownand often even a Cabinet Minister; he is often appointed a judge afterwards(The Lord Chancellor is, of course, both a Cabinet Minister and the head ofthe judiciary). In India, Sapru and Sircar were Law Members, or LawMinisters, as they would be called in future; no one would suggest that menof this type should be ineligible for appointment as judges afterwards…Merit should be the only criterion for these high appointments; noconstitutional ban should stand in the way of merit being recognized.”It was asserted, that in the memorandum submitted by the Judges of theFederal Court and the Chief Justices of the High Courts, the followingsuggestions were made:“It is therefore suggested that Article 193(1) may be worded in thefollowing or other suitable manner:Every Judge of the High Court shall be appointed by the President by awarrant under his hand and seal on the recommendation of the Chief Justiceof the High Court after consultation with the Governor of the State andwith the concurrence of the Chief Justice of India…We do not think it is necessary to make any provision in the Constitutionfor the possibility of the Chief Justice of India refusing to concur in anappointment proposed by the President. Both are officers of the highestresponsibility and so far no case of such refusal has arisen although aconvention now exists that such appointments should be made after referringthe matter to the Chief Justice of India and obtaining his concurrence. Ifper chance such a situation were ever to arise it could of course be met bythe President 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 ofthe Supreme Court, and article 103(2) may also be suitably modified. Inthis connection it is not appreciated why a constitutional obligationshould be cast on the President to consult any Judge or Judges of theSupreme Court or of the High Court in the States before appointing a Judgeof the Supreme Court. There is nothing to prevent the President fromconsulting them whenever he deems it necessary to do so.”It was pointed out, that none of the above proposals were accepted.Reference was also made to the Editor of the Indian Law Review and theMembers of the Calcutta Bar Association, who made the followingsuggestions:“That in clause (4) of Article 103 the words “and voting” should bedeleted, as they consider that in an important issue as the onecontemplated in this clause, opportunity should be as much minimized aspracticable 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 and Ireland, abare majority of the members present and voting suffices for thepresentation of the address for removal of a judge. Article 103(4)requires a two-thirds majority of those present and voting. It is hardlynecessary to tighten it further by deleting the words “and voting”.With reference to the suggestions regarding non-reduction of salaries ofJudges, the Constitutional Adviser made the following comments:“The constitutional safeguard against the reduction of salary of the ChiefJustice and the judges of a High Court below the minimum has beenprescribed in article 197 so as to prevent the Legislatures of the Statesfrom reducing the salaries below a reasonable figure. It is hardlynecessary to put such a check on the power of Parliament to fix thesalaries of the judges of the Supreme Court.”The suggestions made by Pittabhi Sitaramayya and others, with reference toofficers, and servants and the expenses of the Supreme Court, were alsohighlighted. They are extracted hereunder:“That in article 122, for the words “the Chief Justice of India inconsultation with the President” the words “the President in consultationwith the Chief Justice of India” be substituted.”The response of the Constitutional Adviser was as follows:“The provision for the fixation of the salaries, allowances and pensions ofthe officers and servants of the Supreme Court by the Chief Justice ofIndia in consultation with the President contained in clause (1) of article122 is based on the existing provision contained in section 242(4) of theGovernment of India Act, 1935, as adapted. The Drafting Committeeconsidered such a provision to be necessary to ensure the independence ofthe judiciary, the safeguarding of which was so much stressed by theFederal Court and the High Courts in their comments on the DraftConstitution.”29. It was pointed out, that the second draft of the Constitution, wasintroduced in the Constituent Assembly on 4.11.1948. The Court’s attentionwas drawn to the discussions, with reference to appointments to the higherjudiciary, including the suggestion of B. Pocker Sahib, who proposed analternative to Article 103(2). Reference was also made to the proposal madeby Mahboob Ali Baig Sahib, guarding against party influences, that may bebrought to the fore, with reference to appointment of Judges. It wassubmitted, that the above suggestion was rejected by the Chairman of theDrafting Committee, who felt that it would be dangerous to enable the ChiefJustice to veto the appointment of a Judge to the higher judiciary. Theopinion of T.T. Krishnamachari was also to the following effect:“[T]he independence of the Judiciary should be maintained and that theJudiciary should not feel that they are subject to favours that theExecutive might grant to them from time to time and which would naturallyinfluence their decision in any matter they have to take where theinterests 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 theintention of this House or of the framers of this Constitution that theywant to crate specially favoured bodies which in themselves becomes anImperium in Imperio, completely independent of the Executive and thelegislature and operating as a sort of superior body to the general bodypolitic”.30. The proposals and the decision taken thereon, were brought to ournotice, specially the observations made by K.T. Shah, K.M. Munshi, TajamulHusain, Alladi Krishnaswami Aayar, Ananthasayanam Ayyangar, and finally Dr.B.R. Ambedkar. Dr. B.R. Ambedkar had stated thus:“Finally, BR Ambedkar said:Mr. President, Sir, I would just like to make a few observations in orderto clear the position. Sir, there is no doubt that the House in general,has agreed that the independence of the Judiciary from the Executive shouldbe 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, wemight be creating, what my Friend Mr. T.T. Krishnamachari very aptly calledan "Imperium in Imperio". We do not want to createan Imperium in Imperio, and at the same time we want to give the Judiciaryample independence so that it can act without fear or favour of theExecutive. My friends, if they will carefully examine the provisions of thenew amendment which I have proposed in place of the original article 122,will find that the new article proposes to steer a middle course. Itrefuses to create an Imperium in Imperio, and I think it gives theJudiciary as much independence as is necessary for the purpose ofadministering justice without fear or favour.”31. Having extensively brought to our notice, the nature of the debatesbefore the Constituent Assembly, and the decisions taken thereon, thelearned Attorney General ventured to demonstrate, that the participation ofthe executive in the matter of appointment of high constitutionalfunctionaries, “could not – and did not”, impinge upon their independence,in the discharge of their duties. Illustratively, reliance was placed onPart IV Chapter V of the Constitution, comprising of 4 Articles of theConstitution (Articles 148 to 151), dealing with the Comptroller andAuditor-General of India. It was submitted, that duties and powers of theComptroller and Auditor-General of India, delineated in Article 149,revealed, that the position of the Comptroller and Auditor-General ofIndia, was no less in importance vis-a-vis the Judges of the higherjudiciary. Pointing out to Article 148, it was his contention, that theappointment of the Comptroller and Auditor-General of India is made by thePresident. His removal under clause (1) of Article 148 could only, in thelike manner, be made on the like grounds as a Judge of the Supreme Court ofIndia. Just like a Judge of the Supreme Court, his salary and otherconditions of service were to be determined by Parliament by law, and untilthey were so determined, they were to be as expressed in the SecondSchedule. Further more, just like a Judge of the Supreme Court, neitherthe salary of the Comptroller and Auditor-General, nor his rights inrespect of leave of absence, pension or age of retirement, could be variedto his disadvantage, after his appointment. In a similar fashion, as inthe case of the Supreme Court, persons serving in the Indian Audit andAccounts Department, were to be subject to such conditions of service, aswere determined by law made by Parliament, and till such legislativeenactment was made, their conditions of service were determinable by thePresident, by framing rules, in consultation with the Comptroller andAuditor-General of India. Based on the above, it was contended, that eventhough the appointment of the Comptroller and Auditor-General of India, wasexclusively vested with the executive, there had never been an adversemurmur with reference to his being influenced by the executive. Theinference sought to be drawn was, that the manner of “appointment” isirrelevant, to the question of independence. Independence of an authority,according to the learned Attorney General, emerged from the protection ofthe conditions of the incumbent’s service, after the appointment had beenmade.32. In the like manner, our attention was drawn to Part XV of theConstitution, pertaining to elections. It was submitted, that Article 324vested the superintendence, direction and control of elections to theParliament, and the Legislatures of every State, and election to theoffices of President and Vice-President, with the Election Commission. TheElection Commission in terms of Article 324(2) was comprised of the ChiefElection Commissioner, and such number of other Election Commissioners asthe President may from time to time fix. It was submitted, that theappointment of the Chief Election Commissioner, and the other ElectionCommissioners, was to be made by the President, and was subject to theprovisions of law made by Parliament. It was further pointed out, thatunder Article 324(5), the conditions of service and the tenure of theoffice of the Election Commissioners (and the Regional Commissioners) isregulated in the manner, as the President may by rules determine. Ofcourse, subject to, enactment of law by Parliament. So as to depictsimilarity with the matter under consideration, it was contended, that theproviso under Article 324(5) was explicit to the effect, that the ChiefElection Commissioner could not be removed from his office, except in likemanner, and on like grounds, as a Judge of the Supreme Court. And furthermore, that the conditions of service of the Chief Election Commissioner,could not be varied to his disadvantage, after his appointment. It wascontended, that the Indian experience had been, that the Chief ElectionCommissioner, and the other Election Commissioners, had functioned withabsolute independence, and that, their functioning remained unaffected,despite the fact that their appointment had been made, by the executive. Itwas submitted, that impartiality/independence emerged from the protectionof the conditions of service of the incumbent after his appointment, andnot by the method or manner of his appointment.33. It was also the contention of the learned Attorney General, thatimplicit in the scheme of the Constitution, was a system of checks andbalances, wherein the different constitutional functionaries participate invarious processes of selection, appointment, etc., so as to ensure, thatthe constitutional functionaries did not exceed, thefunctions/responsibilities assigned to them. To substantiate the abovecontention, reliance was placed on the Kesavananda Bharati case10, whereinthis Court observed as under:“577. We are unable to see how the power of judicial review makes thejudiciary supreme in any sense of the word. This power is of paramountimportance in a federal Constitution. Indeed it has been said that theheart and core of a democracy lies in the judicial process; (per Bose, J.,in Bidi Supply Co. v. Union of India, AIR 1956 SC 479). The observations ofPatanjali 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 thisconnection. Judicial review is undertaken by the courts “not out of anydesire to tilt at legislative authority in a crusader’s spirit, but indischarge of a duty plainly laid down upon them by the Constitution”. Therespondents have also contended that to let the court have judicial reviewover constitutional amendments would mean involving the court in politicalquestions. To this the answer may be given in the words of Lord Porter inCommonwealth of Australia v. Bank of New South Wales 1950 AC 235 at 310:“The problem to be solved will often be not so much legal as political,social or economic, yet it must be solved by a court of law. For where thedispute is, as here, not only between Commonwealth and citizen but betweenCommonwealth and intervening States on the one hand and citizens and Stateson the other, it is only the Court that can decide the issue, it is vain toinvoke the voice of Parliament.”There is ample evidence in the Constitution itself to indicate that itcreates a system of checks and balances by reason of which powers are sodistributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powersand functions entrusted to them. Though the Constitution does not lay downthe principle of separation of powers in all its rigidity as is the case inthe United States Constitution but it envisages such a separation to adegree as was found in Ranasinghe’s case. The judicial review providedexpressly in our Constitution by means of Articles 226 and 32 is one of thefeatures upon which hinges the system of checks and balances. Apart fromthat, as already stated, the necessity for judicial decision on thecompetence or otherwise of an Act arises from the very federal nature of aConstitution (per Haldane, L.C. in Attorney-General for the Commonwealth ofAustralia v. Colonial Sugar Refining Co. 1914 AC 237 and Ex Parte Walsh &Johnson; In re Yates, (1925) 37 CLR 36 at p.58. The function ofinterpretation of a Constitution being thus assigned to the judicial powerof the State, the question whether the subject of a law is within the ambitof one or more powers of the Legislature conferred by the Constitutionwould always be a question of interpretation of the Constitution. It may beadded that at no stage the respondents have contested the proposition thatthe validity of a constitutional amendment can be the subject of review bythis Court. The Advocate-General of Maharashtra has characterised judicialreview as undemocratic. That cannot, however, be so in our Constitutionbecause of the provisions relating to the appointment of judges, thespecific restriction to which the fundamental rights are made subject, thedeliberate exclusion of the due process clause in Article 21 and theaffirmation in Article 141 that judges declare but not make law. To thismay be added the none too [pic]rigid amendatory process which authorisesamendment by means of 2/3 majority and the additional requirement ofratification.”The Court’s attention was also invited to the observations recorded in BhimSingh v. Union of India[13]:“77. Another contention raised by the petitioners is that the Schemeviolates the principle of separation of powers under the Constitution. Theconcept of separation of powers, even though not found in any particularconstitutional provision, is inherent in the polity the Constitution hasadopted. The aim of separation of powers is to achieve the maximum extentof accountability of each branch of the Government.78. While understanding this concept, 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 separation is neither possible,nor desirable. Nevertheless, till this principle of accountability ispreserved, there is no violation of separation of powers. We arrive at thesame conclusion when we assess the position within the constitutional text.The Constitution does not prohibit overlap of functions, but in factprovides for some overlap as a parliamentary democracy. But what itprohibits is such exercise of function of the other branch which results inwresting away of the regime of constitutional accountability.79. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, this Courtheld that: (AIR p. 556, para 12)“12. …The Indian Constitution has not indeed recognised the doctrine ofseparation of powers in its absolute rigidity but the functions of thedifferent parts or branches of the Government have been sufficientlydifferentiated and consequently it can very well be said that ourConstitution does not contemplate assumption, by one organ or part of theState, of functions that essentially belong to another. The executiveindeed can exercise the powers of departmental or subordinate legislationwhen such powers are delegated to it by the legislature.It can also, when so empowered, exercise judicial functions in a limitedway. The executive Government, however, can never go against the provisionsof the Constitution or of any law.”80. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, and laterin Indira Nehru Gandhi v. Raj Narain (1976) 3 SCC 321, this Court declaredseparation of powers to be a part of the basic structure of theConstitution. In Kesavananda Bharati case Shelat and Grover, JJs. in SCCpara 577 observed the precise nature of the concept as follows: (SCC p.452)“577. … There is ample evidence in the Constitution itself to indicate thatit creates a system of checks and balances by reason of which powers are sodistributed that none of the three organs it sets up can become sopredominant as to disable the others from exercising and discharging powersand functions entrusted to them. Though the Constitution does not lay downthe principle of separation of powers in [pic]all its rigidity as is thecase in the United States Constitution yet it envisages such a separationto a degree as was found in Ranasinghe case. The judicial review providedexpressly in our Constitution by means of Articles 226 and 32 is one of thefeatures upon which hinges the system of checks and balances.”and conclusion no.5, which is reproduced as under:“…..(5) Indian Constitution does not recognise strict separation of powers. Theconstitutional principle of separation of powers will only be violated ifan 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 U.P.v. Jeet S. Bisht[14], wherein this Court held:“78. Separation of powers in one sense is a limit on active jurisdiction ofeach organ. But it has another deeper and more relevant purpose: to act ascheck and balance over the activities of other organs. Thereby the active[pic]jurisdiction of the organ is not challenged; nevertheless there aremethods of prodding to communicate the institution of its excesses andshortfall in duty. Constitutional mandate sets the dynamics of thiscommunication between the organs of polity. Therefore, it is suggested tonot understand separation of powers as operating in vacuum. Separation ofpowers doctrine has been reinvented in modern times.”34. The learned Attorney General emphasized, that there was a veryserious and sharp cleavage of opinion on the subject, which is beingcanvassed before this Court. Relying on the judgment rendered by in theSankalchand Himatlal Sheth case5, he pointed out, that in the aforesaidjudgment, this Court had arrived at the conclusion, that the term“consultation” could not be deemed to be “concurrence”, with reference toArticle 222. In conjunction with the above, he invited our attention tothe judgment in the Samsher Singh case11, wherein a seven-Judge Bench,which was dealing with a controversy relating to Judges of subordinatecourts, and the impact of Article 311, had examined the question whetherthe President was to act in his individual capacity, i.e., at his owndiscretion; or he was liable to act on the aid and advice of the Council ofMinisters, as mandated under Article 74. Reliance was placed on thefollowing observations from the aforesaid judgment:“149. In the light of the scheme of the Constitution we have alreadyreferred to, it is doubtful whether such an interpretation as to thepersonal satisfaction of the President is correct. We are of the view thatthe President means, for all practical purposes, the Minister or theCouncil of Ministers as the case may be, and his opinion, satisfaction ordecision is constitutionally secured when his Ministers arrive at suchopinion satisfaction or decision. The independence of the Judiciary, whichis a cardinal principle of the Constitution and has been relied on tojustify the deviation, is guarded by the relevant article makingconsultation with the Chief Justice of India obligatory. In all conceivablecases consultation with that highest dignitary of Indian justice will andshould be accepted by the Government of India and the Court will have anopportunity to examine if any other extraneous circumstances have enteredinto the verdict of the Minister, if he departs from the counsel given bythe Chief Justice of India. In practice the last word in such a sensitivesubject must belong to the Chief Justice of India, the rejection of hisadvice being ordinarily regarded as prompted by oblique considerationsvitiating the order. In this view it is immaterial whether the President orthe Prime Minister or the Minister for Justice formally decides the issue.”35. It was submitted, that the aforesaid observations as were recorded inthe Samsher Singh case11, were relied upon in the Second Judges case. ThisCourt, it was pointed out, had clarified that the observations recorded inparagraph 149 in the Samsher Singh case11, were merely in the nature of anobiter. It was submitted, that the aforesaid observations in the SamsherSingh case11, were also noticed in paragraph 383 (at page 665), wherein itwas sought to be concluded, that the President, for all practical purposes,should be construed, as the concerned Minister or the Council of Ministers.Having noticed the constitutional provisions regarding “consultation” withthe judiciary, this Court had expressed, that the Government was bound bysuch counsel. Reference was then made to the judgment of this Court in theFirst Judges case, wherein it was held, that “consultation” did not include“concurrence”, and further, that the power of appointment of Judges underArticle 124, was vested with the President, and also, that the Presidentcould override the views of the consultees. Last of all, to substantiatehis submission(s) pertaining to the cleavage of opinion, reliance wasplaced on the Kesavananda Bharati case10, wherein a thirteen-Judge Bench ofthis Court, had held, with reference to the power of amendment underArticle 368, that the concept of “basic structure”, was a limitation, tothe otherwise plenary power of amendment of the Constitution.36. In his effort to persuade us, to refer the instant matter, to a nine-Judge Bench (or, to a still larger Bench), the learned Attorney Generalplaced reliance on Suraz India Trust v. Union of India[15], and invited ourattention to the following:“3. Shri A.K. Ganguli, learned Senior Advocate, has submitted that themethod of appointment of a Supreme Court Judge is mentioned in Article124(2) of the Constitution of India which states:“124. (2) Every Judge of the Supreme Court shall be appointed by thePresident by warrant under his hand and seal after consultation with suchof the Judges of the Supreme Court and of the High Courts in the States asthe President may deem necessary for the purpose and shall hold officeuntil he attains the age of sixty-five years.Provided that in the case of appointment of a Judge other than the ChiefJustice, the Chief Justice of India shall always 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”.(iii) The President of India while appointing a Supreme Court Judge canconsult any Judge of the Supreme Court or even the High Court as he deemsnecessary for the purpose, and is not bound to consult only the fiveseniormost Judges 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 canonly be done by Parliament in accordance with the procedure laid down inArticle 368 of the Constitution of India.5. That under Article 124(2) while appointing a Supreme Court Judge, thePresident of India has to consult the Chief Justice of India, but he mayalso consult any other Supreme Court Judge and not merely the four[pic]seniormost Judges. Also, the President of India can even consult aHigh Court Judge, whereas, according to the aforesaid two decisions thePresident of India cannot consult any Supreme Court Judge other than thefour seniormost Judges of the Supreme Court, and he cannot consult any HighCourt Judge at all.6. Shri Ganguli submits that the matter is required to be considered by alarger Bench as the petition raises the following issues of constitutionalimportance:(1) Whether the aforesaid two verdicts viz. the seven-Judge Bench and nine-Judge Bench decisions of this Court referred to above really amount toamending Article 124(2) of the Constitution?(2) Whether there is any “Collegium” system for appointing the SupremeCourt or High Court Judges in the Constitution?(3) Whether the Constitution can be amended by a judicial verdict or can itonly be amended by Parliament in accordance with Article 368?(4) Whether the constitutional scheme was that the Supreme Court and HighCourt Judges can be appointed by mutual discussions and mutual consensusbetween the judiciary and the executive; or whether the judiciary can aloneappoint Judges of the Supreme Court and High Courts?(5) Whether the word “consultation” in Article 224 means “concurrence”?(6) Whether by judicial interpretation words in the Constitution can bemade redundant, as appears to have been done in the aforesaid two decisionswhich have made consultation with the High Court Judges redundant whileappointing a Supreme Court Judge despite the fact that it is permissible onthe clear language of Article 124(2)?(7) Whether the clear language of Article 124(2) can be altered by judicialverdicts and instead of allowing the President of India to consult suchJudges of the Supreme Court as he deems necessary (including even juniorJudges) only the Chief Justice of India and four seniormost Judges of theSupreme Court can alone be consulted while appointing a Supreme CourtJudge?(8) Whether there was any convention that the President is bound by theadvice of the Chief Justice of India, and whether any such convention(assuming there was one) can prevail over the clear language of Article124(2)?(9) Whether the opinion of the Chief Justice of India has any primacy inthe aforesaid appointments?(10) Whether the aforesaid two decisions should be overruled by a largerBench?7. Mr G.E. Vahanvati, learned Attorney General for India, supports thepetitioner contending that the aforesaid judgments require reconsideration.However, he also submits:(a) A writ petition under Article 32 is not maintainable at the behest of atrust 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 ofthis Court. In fact, a petition under Article 32 of the Constitution doesnot lie to challenge the correctness of a judicial order; and(c) A Bench of two Judges cannot examine the correctness of the judgment ofa nine-Judge Bench.(d) A Bench of two Judges cannot refer the matter to the larger Bench ofnine Judges or more, directly.xxxx xxxx xxxx11. However, Mr Ganguli dealing with the issue of locus standi of the Trusthas submitted that the petition may not be maintainable but it should beentertained because it raises a large number of substantial questions oflaw. In order to fortify his submission he places reliance upon a recentConstitution 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 ofGovernors, this Court held as under: (SCC p. 346, para 15)[pic]“15. The petitioner has no locus to maintain the petition in regard tothe prayers claiming relief for the benefit of the individual Governors. Atall events, such prayers no longer survive on account of passage of time.However, with regard to the general question of public importance referredto the Constitution Bench, touching upon the scope of Article 156(1) andthe limitations upon the doctrine of pleasure, the petitioner has thenecessary locus.”Thus, Mr Ganguli submits that considering the gravity of the issuesinvolved herein, the matter should be entertained.12. While dealing with the issue of reference to the larger Bench, MrGanguli has placed a very heavy reliance on the recent order of this Courtdated 30-3-2011 in Mineral Area Development Authority v. SAIL (2011) 4 SCC450, wherein considering the issue of interpretation of the constitutionalprovisions and validity of the Act involved therein, a three-Judge Benchpresided over by the Hon’ble Chief Justice has referred the matter to anine-Judge Bench.13. At this juncture, Mr Ganguli as well as Mr Vahanvati have submittedthat even at the stage of preliminary hearing for admission of thepetition, the matter requires to be heard by a larger Bench as this matterhas earlier been dealt with by a three-Judge Bench and involves verycomplicated legal issues.14. In view of the above, we place the matter before the Hon’ble the ChiefJustice for appropriate directions.”It was pointed out, that when the above matter was placed before a three-Judge Bench of this Court, the same was dismissed on the ground of locusstandi. Yet, since the above order was passed in the absence of thepetitioner trust, an application had been moved for recall of the aboveorder. It was his assertion, that whether or not a recall order was passedwith reference to the questions raised, it was apparent, that a Bench ofthis Court has already expressed the view, that the conclusions drawn inthe Second and Third Judges cases, need a relook.37. Finally, to support the above suggestions, the Court’s attention wasdrawn to the observations recorded by H.M. Seervai in the 4th edition ofhis book “Constitutional Law of India” wherein, with reference to theSecond Judges case, very strong and adverse views were expressed. Theaforesaid views are contained in paragraphs 25.448 to 25.497. For reasonsof brevity, it is not possible for us to extract the same herein. Sufficeit to state, that the submissions advanced by the learned Attorney General,as have been detailed in the foregoing paragraphs, were more or less, inaccord with the views expressed by H.M. Seervai.38. In order to contend, that it was open to this Court, to make areference for reconsideration of the matters already adjudicated upon, thelearned Attorney General, invited our attention to Jindal Stainless Limitedv. State of Haryana[16].“6. In Keshav Mills Co. Ltd. v. CIT AIR 1965 SC 1636…(AIR pp.1643-44, para23) a Constitution Bench of this Court enacted the circumstances in which areference to the larger Bench would lie. It was held that in revisiting andrevising its earlier decision, this Court should ask itself whether in theinterest of the public good or for any other valid and compulsive reasons,it is necessary that the earlier decision should be revised? Whether on theearlier occasion, did some patent aspects of the question remain unnoticed,or was the attention of the Court not drawn to any relevant and materialstatutory provision, or was any previous decision bearing on the point notnoticed? What was the impact of the error in the previous decision onpublic good? Has the earlier decision been followed on subsequent occasionseither by this Court or by the High Courts? And, would the reversal of theearlier decision lead to public inconvenience, hardship or mischief?7. According to the judgment in Keshav Mills case these and other relevantconsiderations must be born in mind whenever this Court is called upon toexercise its jurisdiction to review and revisit its earlier decisions. Ofcourse, in Keshav Mills case a caution was sounded to the effect thatfrequent exercise of this Court of its power to revisit its earlierdecisions may incidentally tend to make the law uncertain and introduceconfusion which must be avoided. But, that is not to say that if on asubsequent occasion, the Court is satisfied that its earlier decision wasclearly erroneous, it should hesitate to correct the error.8. In conclusion, in Keshav Mills case, this Court observed that it is notpossible to lay down any principles which should govern the approach of theCourt in dealing with the question of revisiting its earlier decision. Itwould 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 of this Court observed that, incase of doubt, a smaller Bench can invite attention of Chief Justice andrequest for the matter being placed for hearing before a Bench larger thanthe one whose decision is being doubted.”39. With the above noted submissions, learned Attorney General for Indiaconcluded his address, for the review of the judgments in the Second andThird Judges cases.40. Mr. K.K. Venugopal, learned senior counsel, commenced his submissionsby highlighting the main features of the Constitution (67th Amendment)Bill, 1990. He invited our attention, to the proposed amendments ofArticles 124, 217, 222 and 231, and more particularly, to the inserstion ofPart XIIIA in the Constitution, under the heading “National JudicialCommission”. Article 307A was proposed as the singular Article in PartXIIIA. Based on the constitution of the National Judicial Commission, itwas asserted, that the above Bill, had been introduced, to negate theeffect of the judgment of this Court in the First Judges case. It wassubmitted, that when the aforesaid Bill was introduced in the Parliament,the Supreme Court Bar Association, of which Mr. Venugopal himself was thethen President, organized a seminar on 1.9.1990, for the purpose ofdebating the pros and cons of the Constitution (67th Amendment) Bill, 1990. It was submitted, that a large number of speakers had taken part in thedebate and had made important suggestions. The above suggestions, draftedas a resolution of the seminar, were placed before the House, and werepassed either unanimously or with an overwhelming majority. It wassubmitted, that the aforesaid resolutions were forwarded to the ChiefJustice of India, through a covering letter dated 5.10.1990. It waspointed out, that resolutions were also passed, at the conclusion of theChief Justices’ Conference, held between 31.8.1990 and 2.9.1990, whereinalso, the provisions of the Constitution (67th Amendment) Bill, 1990, weredeliberated upon. It was submitted, that he had made a compilation of theresolutions passed at the Chief Justices Conference, and the conclusionsdrawn in the Second Judges case, which would give a bird’s eye view, of theviews expressed. The compilation to which learned counsel drew ourattention, is being extracted hereunder:“…(1) The process of appointment of Judges to the Supreme Court and theHigh Courts is an integrated ‘participatory consultative process’ forselecting the best and most suitable persons available for appointment; andall the constitutional functionaries must perform this duty collectivelywith a view primarily to reach an agreed decision, subserving theconstitutional purpose, so that the occasion of primacy does not arise.(2) Initiation of the proposal for appointment in the case of the SupremeCourt must be by the Chief Justice of India, and in the case of a [pic]HighCourt by the Chief Justice of that High Court; and for transfer of aJudge/Chief Justice of a High Court, the proposal has to be initiated bythe Chief Justice of India. This is the manner in which proposals forappointments to the Supreme Court and the High Courts as well as for thetransfers of Judges/Chief Justices of the High Courts must invariably bemade.(3) In the event of conflicting opinions by the constitutionalfunctionaries, the opinion of the judiciary ‘symbolised by the view of theChief 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 canbe made, unless it is in conformity with the opinion of the Chief Justiceof India.(5) In exceptional cases alone, for stated strong cogent reasons, disclosedto the Chief Justice of India, indicating that the recommendee is notsuitable for appointment, that appointment recommended by the Chief Justiceof India may not be made. However, if the stated reasons are not acceptedby the Chief Justice of India and the other Judges of the Supreme Court whohave been consulted in the matter, on reiteration of the recommendation bythe Chief Justice of India, the appointment should be made as a healthyconvention. …”Based on the aforesaid compilation, it was contended, that the judgmentrendered in the Second Judges case, completely obliterated three salientfeatures of Article 124. Firstly, under the original Article 124, the mainvoice was that of the President. It was submitted, that the voice of thePresident was totally choked in the Second Judges case. Secondly, Article124, as it was originally framed, vested the executive with primacy, inrespect of the appointments to the higher judiciary, whereas the positionwas reversed by the Second Judges case, by vesting primacy with thejudiciary. Thirdly, the role of the Chief Justice of India, which wasoriginally, that of a mere consultee, was “turned over its head”, by thedecision in the Second Judges case. Now, the collegium of Judges, headedby the Chief Justice of India, has been vested with the final determinativeauthority for making appointments to the higher judiciary. And thePresident is liable to “concur”, with the recommendations made. Based onthe above assertions, it was the submission of the learned counsel, that bywholly misconstruing Article 124, the Supreme Court had assumed the entirepower of appointment. And the voice of the executive had been completelystifled. It was submitted, that the judiciary had performed a legislativefunction, while interpreting Article 124. It was asserted, that originallythe founding fathers had the power to frame the provisions of theConstitution, and thereafter, the Parliament had the power to amend theConstitution in terms of Article 368. It was submitted, that the roleassigned to the Constituent Assembly, as also to the Parliament, has beenperformed by this Court in the Second Judges case. It was submitted, thatall this had been done in the name of “judicial independence”. The abovelogic was sought to be seriously contested by asserting, that judicialindependence could not stand by itself, there was something like judicialaccountability also, which had to be kept in mind.41. It was also contended, that the judiciary had taken upon itself, theexclusive role of making appointments to the higher judiciary, withouttaking into consideration any of the stakeholders. It is submitted, thatthe judiciary is meant for the litigating community, and therefore, thelitigating community was liable to be vested with some role in the matterof appointments to the higher judiciary. Likewise, it was pointed out, thatthere were about ten lakhs lawyers in this country. They also had not beengiven any say in the matter. Even the Bar Associations, which have theability to represent the lawyers’ fraternity, had been excluded from anyrole in the process of appointments. It was highlighted, that under theold system, all the above stakeholders, had an opportunity to makerepresentations to the executive, in the matter of appointments to thehigher judiciary. But, that role has now been totally excluded, by theinterpretation placed on Article 124, by the Second Judges case. TheCourt’s attention was drawn to conclusion no.14 drawn in the summary ofconclusions (recorded in paragraph 486, in the Second Judges case) that themajority opinion in the First Judges case, insofar as, it had taken acontrary view, relating to primacy of the role of the Chief Justice ofIndia, in matters of appointments and transfers, and the justiciability ofthese matters, as well as, in relation to judge-strength, did not commenditself as being the correct view. Accordingly it was concluded, that therelevant provisions of the Constitution including the constitutional schememust now be construed, understood and implemented, in the manner indicatedin the conclusions drawn in the Second Judges case. The abovedetermination, according to learned counsel, was absolutely misconceived,as the same totally negated the effect of Article 74, which required thePresident 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 perthe dictate of the Chief Justice of India and the collegium of Judges. Itwas submitted, that it was impermissible in law, for a party to make adecision in its own favour. This, according to learned counsel, is exactlywhat the Supreme Court had done in the Second Judges case. It wascontented, that the impugned constitutional amendment was an effort at thebehest of the Parliament, to correct the above historical aberration.Learned counsel concluded, by asserting, that there were two Houses ofParliament under the Constitution, but the Supreme Court in the SecondJudges case, had acted as a third House of Parliament, namely, as the Houseof corrections. In the background of the aforesaid factual position, itwas submitted, that when the Union of India and the States which ratifiedthe Constitution (99th Amendment) Act, seek reconsideration of the SecondJudges case, was it too much, that the Union and the States were askingfor?42. Following the submissions noticed hereinabove, we heard Mr. K.Parasaran, Senior Advocate, who also supported the prayer made by thelearned Attorney General. It was submitted, that the appointment of Judgeshad nothing to do with “independence of the Judge” concerned, or thejudicial institution as a whole. It was submitted, that subsequent totheir appointment to the higher judiciary, the conditions of service ofJudges of the High Court and the Supreme Court were securely protected.Thereafter, the independence of the Judges depended on their judicialconscience, and the executive has no role to play therein.43. It was asserted, that the Judges who expressed the majority view, inthe Second Judges case, entertained a preconceived notion about the “basicstructure”, even before hearing commenced, in the Second Judges case. Inthis behalf, he placed reliance on the resolutions passed at the conclusionof the Chief Justices’ Conference, held between 31.8.1990 and 2.9.1990. Itwas asserted, that the controversy had not been adjudicated on the basis ofan independent assessment, of the views expressed in the ConstituentAssembly debates (with reference to the text of Article 124). It wassubmitted, that the interpretation rendered on Article 124, expresslyignored, not only the simple language indicating the procedure forappointment of Judges, but also the surrounding constitutional provisions.According to learned senior counsel, the judiciary had encroached into theexecutive power of appointment of Judges. This amounted to encroaching intoa constitutional power, reserved for the executive, by the Constitution. Itwas asserted, that the power of amendment of the Constitution, vested inthe Parliament under Article 368, was only aimed at keeping theConstitution in constant repair. It was submitted, that the aforesaidpower vested with the Parliament, could not have been exercised by theSupreme Court, by substituting the procedure of appointment of Judges, inthe manner the Supreme Court felt. It was submitted, that in the SecondJudges case, as also, the Third Judges case, the Supreme Court had violatedthe “basic structure”, by impinging upon legislative power. It wascontended, that it was imperative for this Court to have a re-look at thetwo judgments, so as to determine, whether there had been a trespass by thejudiciary, into the legislative domain. And, if this Court arrives at theconclusion, that such was the case, it should strike down its earlierdetermination. It was further submitted, that the majesty of theConstitution, must be maintained and preserved at all costs, and thereshould be no hesitation in revisiting any earlier judgment, so as tocorrect an erroneous decision. With the aforesaid observations, learnedcounsel commended the Bench, to accept the prayer made by the learnedAttorney General, and to make a reference for reconsideration of thejudgments rendered by this Court, in the Second and Third Judges cases, toa Bench with an appropriate strength.44. Mr. Ravindra Srivastava, Senior Advocate, also supported thesubmissions for reference to a larger Bench. It was submitted, that theconclusions drawn by this Court in the Second Judges case, and the ThirdJudges case, were liable to be described as doubtful, because a largenumber of salient facts, had not been taken into consideration, when thesame were decided. It was the contention of the learned counsel, that thesubmissions advanced on behalf of the petitioners, on merits, could not besupported by the text of the constitutional provisions, and that, thepetitioners’ reliance squarely based on the majority judgment in the SecondJudges case, as was further explained in the Third Judges case, wasseriously flawed. It was submitted, that the thrust of the submissionsadvanced on behalf of the petitioners on merits had been, not only that theconsultation with the Chief Justice of India was mandatory, but the opinionof the collegium of Judges was binding on the executive. It was asserted,that neither of the above requirements emerged from the plain reading ofArticle 124. It was asserted, that the basis of the learned counselrepresenting the petitioners, to assail the impugned constitutionalamendment, as also the NJAC Act, was squarely premised on the abovedetermination. It was asserted, that the conclusion of primacy of thejudiciary, in the matter of appointment of Judges in the higher judiciary,could not be supported by any text of the original constitutionalprovisions. It was, accordingly suggested, that it was absolutelyimperative to correct the majority view expressed in the Second Judgescase.45. According to the learned counsel, the primary objection raised, atthe behest of the petitioners, opposing the reconsideration of the decisionrendered in the Second Judges case, was based on the observations recordedin paragraph 10 of the Third Judges case, wherein the statement of the thenAttorney General for India, had been recorded, that the Union of India wasnot seeking a review or reconsideration of the judgment in the SecondJudges case. It was submitted, that the aforesaid statement, could not barthe plea of reconsideration, for all times to come. It was furthersubmitted, that the above statement would not bind the Parliament. It wascontended, that the statement to the effect, that the Union of India, wasnot seeking a review or reconsideration of the Second Judges case, shouldnot be understood to mean, that it was impliedly conceded, that the SecondJudges case had been correctly decided. It was pointed out, that theadvisory jurisdiction under Article 143, which had been invoked by thePresidential Reference made on 23.7.1998, requiring this Court to renderthe Third Judges case, was neither appellate nor revisionary in nature. Inthis behalf, learned counsel placed reliance on Re: Cauvery Water DisputesTribunal[17], wherein it was held, that an order passed by the SupremeCourt, could be reviewed only when its jurisdiction was invoked underArticle 137 of the Constitution (read with Rule 1 of Order 40 of theSupreme Court Rules, 1946). And that, a review of the judgment rendered bythe Supreme Court, in the Second Judges case, could not be sought through aPresidential Reference made under Article 143. In fact, this Court in theabove judgment, had gone on to conclude, that if the power of review was tobe read in Article 143, it would be a serious inroad into the “independenceof the judiciary”. It was therefore submitted, that the statement of thethen Attorney General, during the course of hearing of the Third Judgescase, could not be treated as binding, for all times to come, so as todeprive the executive and the legislature from even seeking a review of thejudgments rendered. It was therefore contended, that it was implicit whiledischarging its duty, that this Court was obliged to correct the errors oflaw, 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 this Court forreconsideration of the legal position declared by this Court in the FirstJudges case. Yet, this Court, on its own motion, examined the correctnessof the First Judges case, and suo motu, made a reference of the matter, toa nine-Judge Bench, to reconsider the law declared in the First Judgescase.46. While pointing to the reasons for reconsideration of the law laiddown by this Court in the Second Judges case (read with the Third Judgescase), learned senior counsel, asserted, that the essence of Article 124,had been completely ignored by the majority view. Learned senior counsel,accordingly, invited our attention to the scheme of Article 124(2) andcanvassed and summarized the following salient features emerging therefrom:“i. The authority to appoint Judges of the higher judiciary was vested inthe President.ii. The above power of appointment by the President, was subject to onlyone condition, namely, ‘consultation’.iii. The above consultation was a two-fold – one which in the opinion ofthe President may be deemed necessary, and the other which was mandatory.iv. The mandatory consultation was with the Chief Justice of India. Theconsultation which the President may have ‘if deemed necessary for thepurpose, was with judges of the Supreme Court and also of the High Courtsin the states, as may be felt appropriate.v. There was no limitation on the power, scope and ambit of thePresident to engage in consultation, he may not only with the judges of theSupreme Court, but may also consult judges of High Courts as he may deemnecessary, for this purpose.vi. There was also no limitation on the President’s power ofconsultation. He could consult as many judges of the Supreme Court andHigh Courts which he deemed necessary for the purpose.vii. Having regard to the object and purpose of the appointment of a judgeof the Supreme Court, and that, such appointment was to the highestjudicial office in the Republic, was clearly intended to be broad-based,interactive, informative and meaningful, so that, the appointment was madeof the most suitable candidate.viii. This aspect of the power of consultation of the President, as hadbeen provided had been completely ignored in the majority judgment inSecond Judges’ case. And the focus has been confined only to theconsultation, with the Chief Justice of India.ix. The interpretation of the consultative process, and the procedurelaid down, in the majority judgement in the Second Judges case, that thePresident’s power of consultation, was all-pervasive had been‘circumscribed’, having been so held expressly in paragraph 458 (by JusticeJ.S. Verma) in the Second Judges’ case.x. The majority judgment has focused only on the requirement ofconsultation by the President with the Chief Justice of India which isrequirement of proviso, ignoring the substantive part.xi. The collegium system had been evolved, for consultation with theChief Justice of India on the interpretation, that for purposes ofconsultation with the Chief Justice of India, the CJI alone as anindividual would not matter, but would mean in plurality i.e. hiscollegium. But this is an interpretation only of the proviso and not ofthe substantive part of Article 124(2).xii The collegium system was evolved for consultation with the CJI andhis colleagues in particular in fixed numbers as laid down in thejudgment.xiii. The whole provision for consultation by the President of India withthe judges of the Supreme Court and the High Court, had thus beenstultified, in ignorance of the substantive part of Article 124(2), and assuch, one was constrained to question the majority judgment as being ‘perincuriam’.”47. According to learned senior counsel, a perusal of the judgment in theSubhash Sharma case4 would reveal, that reconsideration of the judgments inthe First Judges case, was only on two issues. Firstly, the status andimportance of consultation, and the primacy of the position of the ChiefJustice of India. And secondly, the justiceability of fixation, of thejudge-strength of a Court. It was asserted, that no other issue wasreferred for reconsideration. This assertion was sought to be supportedwith the following observations, noticed in the Subhash Sharma case4:“49. …..Similarly, the writ application filed by Subhash Sharma for thereasons indicated above may also be disposed of without further directions. As and when necessary the matter can be brought before the court. As inour opinion the correctness of the majority view in S.P. Gupta case [(1981)Supp. SCC 87] should be considered by a larger bench we direct the papersof W.P. No.1303 of 1987 to be placed before the learned Chief Justice forconstituting a bench of nine Judges to examine the two questions we havereferred to above, namely, the position of the Chief Justice of India withreference to primacy and, secondly, justiciability of fixation of Judgestrength.”It was asserted, that there was no scope or occasion for the Bench hearingthe Second Judges case, to rewrite the Constitution, on the subject ofappointment of Judges to the higher judiciary. It was submitted, that theobservations recorded in the Second Judges case, in addition to the abovementioned two issues, were liable to be regarded as obiter dicta. In theSecond Judges case, the ratio decidendi, according to learned counsel, waslimited to the declaration of the legal position, only on the two issues,referred to the larger Bench for consideration. Thus viewed, it wasasserted, that all other conclusions recorded in the Second Judges case, onissues other than the two questions referred for reconsideration, cannotlegitimately be described as binding law under Article 141. To support theabove contention, reliance was placed on Kerala State Science andTechnology Museum v. Rambal Co.[18], wherein this Court held as under:“8. It is fairly well settled that when reference is made on a specificissue either by a learned Single Judge or Division Bench to a larger Benchi.e. Division Bench or Full Bench or Constitution Bench, as the case maybe, the larger Bench cannot adjudicate upon an issue which is not thequestion referred to. (See Kesho Nath Khurana v. Union of India [(1981)Supp. SCC 38], Samaresh Chandra Bose v. 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 the words “Chief Justice ofIndia”, by holding that the term “Chief Justice of India” in Article 124,included a plurality of Judges, and not the individual Chief Justice ofIndia. This, according to learned counsel, was against the plain meaningand text of Article 124. Learned counsel, went on to add, that this Courtin 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 andthe norms, for transfer of Judges and Chief Justices, from one High Courtto another. It also concluded, that any transfer of a Judge or ChiefJustice of a High Court, made on the recommendation of the Chief Justice ofIndia, would be deemed to be non-punitive. In sum and substance, learnedcounsel contended, that the Second Judges case, laid down a new structure,in substitution to the role assigned to the Chief Justice of India. Theconclusions recorded in the Second Judges case, according to learnedcounsel, could not be described as a mere judicial interpretation. It wasasserted, that the same was nothing short of judicial activism (or,judicial legislation).49. Learned senior counsel then invited the Court’s attention, to theprinciples laid down for reconsideration, or review of a previous judgment. For this he pointedly invited the Court’s attention to Bengal Immunity Co.Ltd. v. State of Bihar[19], Maganlal Chhaganlal (P) Ltd. v. MunicipalCorpn. of Greater Bombay[20], and Union of India v. Raghubir Singh[21].Learned counsel also referred to Pradeep Kumar Biswas v. Indian Instituteof Chemical Biology[22], wherein it was observed:“61. Should Sabhajit Tewary (1975) 1 SCC 485 … still stand as an authorityeven 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 untenableinterpretation of Article 12 and a consequential denial of the benefits offundamental rights to individuals who would otherwise be entitled to themand"[t]here is nothing in our Constitution which prevents us from departingfrom a previous decision if we are convinced of its error and its banefuleffect on the general interests of the public." [Bengal Immunity Co. Ltd.v. State of Bihar, AIR 1955 SC 661, 672] (AIR p. 672, para 15)Since on a re-examination of the question we have come to the conclusionthat the decision was plainly erroneous, it is our duty to say so and notperpetuate our mistake.”It was pointed out, that in the Second Judges case, S. Ratnavel Pandian, J.had observed as follows:“17. So it falls upon the superior courts in a large measure theresponsibility of exploring the ability and potential capacity of theConstitution with a proper diagnostic insight of a new legal concept andmaking this flexible instrument serve the needs of the people of this greatnation without sacrificing its essential features and basic principleswhich lie at the root of Indian democracy. However, in this process, ourmain objective should be to make the Constitution quite understandable bystripping away the mystique and enigma that permeates and surrounds it andby clearly focussing on the reality of the working of the constitutionalsystem and scheme so as to make the justice delivery system more effectiveand resilient. Although frequent overruling of decisions will make the lawuncertain and later decisions unpredictable and this Court would notnormally like to reopen the issues which are concluded, it is by now wellsettled by a line of judicial pronouncements that it is emphatically theprovince and essential duty of the superior courts to review or reconsidertheir earlier decisions, if so warranted under compelling circumstances andeven to overrule any questionable decision, either fully or partly, if ithad been erroneously held and that no decision enjoys absolute immunityfrom judicial review or reconsideration on a fresh outlook of theconstitutional or legal interpretation and in the light of the developmentof innovative ideas, principles and perception grown along with the passageof time. This power squarely and directly falls within the rubric ofjudicial review or reconsideration.”It was submitted, that Kuldip Singh, J., in the Second Judges case, hadrecorded as follows:“320. It is no doubt correct that the rule of stare decisis brings aboutconsistency and uniformity but at the same time it is not inflexible.Whether it is to be followed in a given case or not is a question entirelywithin the discretion of this Court. On a number of occasions this Courthas been called upon to reconsider a question already decided. The Courthas in appropriate cases overruled its earlier decisions. The process oftrial and error, lessons of experience and force of better reasoning makethis Court wiser in its judicial functioning. In cases involving vitalconstitutional issues this Court must feel to bring its opinions intoagreement with experience and with the facts newly ascertained. Staredecisis has less relevance in constitutional cases where, save forconstitutional amendments, this Court is the only body able to make neededchanges. Re-examination and reconsideration are among the normal processesof intelligent living. We have not refrained from reconsideration of aprior construction of the Constitution that has proved "unsound inprinciple and unworkable in practice."Based on the above, learned counsel summarized his assertions as follows.Firstly, the real constitutional question, requiring re-examination, was inthe context of appointment of Judges to the higher judiciary, was theinterpretation of Article 74. Because the Second Judges case, had made aserious inroad into the power of the President which was bound to beexercised in consonance with Article 74. It was contended, that thefunctioning of the President, in the absence of the aid and advice of theCouncil of Ministers, could not just be imagined under the scheme of theConstitution. And therefore, the substitution of the participatory role ofthe Council of Ministers (or, the Minister concerned), with that of theChief Justice of India in conjunction with his collegium, was justunthinkable. And secondly, that the First Judges case, was wronglyoverruled, and the correct law for appointment of Judges, vis-à-vis therole of the executive, was correctly laid down in the First Judges case, byduly preserving the “independence of the judiciary”. It was submitted,that reference to a larger Bench was inevitable, because it was not open tothe respondents, to canvass the above submission, before a five-JudgeBench.”50. Mr. Harish N. Salve and Mr. T.R. Andhyarujina, learned seniorcounsel, addressed the Court separately. Their submissions were howeversimilar. It was their contention, that a Constitutional Court revisitsconstitutional issues, from time to time. This, according to learnedcounsel, has to be done because the Constitution is a living document, andneeded to be reinvented, to keep pace with the change of times. It wassubmitted, that this may not be true for other branches of law, whereinjudgments are not revisited, because the Courts were expected to clearlyand unambiguously follow the principle of stare decisis, with reference tolaws dealing with private rights. Insofar as the controversy in hand isconcerned, it was submitted, that the conclusions recorded by this Court inthe Second and Third Judges cases, indicated doubtful conclusions, becausea large number of salient facts (as have been recorded above), had not beentaken into consideration. It was submitted, that expediency in acontroversy 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 theissue determined by this Court in the Second and Third Judges cases, neededto be re-examined by making a reference to a larger Bench. Learned counselpointed out, that the submissions made in the different petitions filedbefore this Court, were not supported by the text of any constitutionalprovision, but only relied on the legal position declared by this Court, inthe above two cases. In such an important controversy, according to learnedcounsel, this Court should not be hesitant in revisiting its earlierjudgments. Mr. Andhyarujina posed a query, namely, can we decide thecontroversy raised in the present case, without the reconsideration of thejudgments in the Second and Third Judges cases? He answered the samethrough another query, how can appointments of Judges be by Judges? Theabove position was again posed differently, by putting forth a furtherquery, can primacy rest with the Chief Justice of India in the matter ofappointment of Judges to the higher judiciary?51. Mr. Ajit Kumar Sinha, learned Senior Advocate, in support of hiscontention, that the matter needed to be heard by a larger Bench, placedreliance on Mineral Area Development Authority v. Steel Authority ofIndia[23], and invited our attention to question no.5 of the reference madeby this Court:“5. Whether the majority decision in State of W.B. v. Kesoram IndustriesLtd. [(2004) 10 SCC 201] could be read as departing from the law laid downin the seven-Judge Bench decision in India Cement Ltd. v. State of T.N.[(1990) 1 SCC 12)?”It was pointed out, that the above question came to be framed because inState of West Bengal v. Kesoram Industries Ltd.[24], this Court by amajority of 4:1 had clarified the judgment rendered by a seven-Judge Benchof this Court in India Cement Ltd. v. State of Tamil Nadu[25]. This Courthad to frame the above question, and refer the matter to a nine-JudgeBench. Learned counsel, then placed reliance on Sub-Committee of JudicialAccountability v. Union of India[26], wherein this Court had observed asunder: “5. Even if the prayer is examined as if it were an independentsubstantive proceeding, the tests apposite to such a situation would alsonot render the grant of this relief permissible. The considerationsagainst grant of this prayer are obvious and compelling. Indeed, no co-ordinate bench of this Court can even comment upon, let alone sit injudgment over, the discretion exercised or judgment rendered in a cause ormatter before another co-ordinate bench……”In view of the above, it was contended, that this Court while examining themerits of the controversy in hand, was bound to rely on the judgments inthe Second and Third Judges cases, to record its conclusions. Referring tothe factual position narrated above, it was submitted, that this Courtwould not be in a position to effectively adjudicate on the issuescanvassed, till the matter was referred to a nine-Judge Bench (or even, astill larger Bench).52. Mr. Ranjit Kumar, learned Solicitor General of India submitted, thathe would support the claim for reference to a larger Bench, by relying upontwo judgments, and say no more. First and foremost, he placed reliance onthe Bengal Immunity Co. Ltd. case19, which it was pointed out, hadconsidered 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 reconsidered.This process, according to learned Solicitor General, need to be adopted inthe present controversy as well, so as to take a fresh call on the previousjudgments. Learned Solicitor General then placed reliance on Keshav MillsCo. Ltd. v. Commissioner of Income-tax, Bombay North[28], wherein a seven-Judge Bench held as under:“In dealing with the question as to whether the earlier decisions of thisCourt in the New Jehangir Mills case, (1960) 1 SCR 249 and the Petlad Co.Ltd. case, (1963) Supp. SCR 871, should be reconsidered and revised by us,we ought to be clear as to the approach which should be adopted in suchcases. Mr. Palkhivala has not disputed the fact that, in a proper case,this Court has inherent jurisdiction to reconsider and revise its earlierdecisions, and so, the abstract question as to whether such a power vestsin this Court or not need not detain us. In exercising this inherent power,however, this would naturally like to impose certain reasonable limitationsand would be reluctant to entertain pleas for the reconsideration andrevision of its earlier decisions, unless it is satisfied that there arecompelling and substantial reasons to do so. It is general judicialexperience that in matters of law involving question of constructingstatutory or constitutional provisions, two views are often reasonablypossible and when judicial approach has to make a choice between the tworeasonably possible views, the process of decision-making is often verydifficult and delicate. When this Court hears appeals against decisions ofthe High Courts and is required to consider the propriety or correctness ofthe view taken by the High Courts on any point of law, it would be open tothis Court to hold that though the view taken by the High Court isreasonably possible, the alternative view which is also reasonably possibleis better and should be preferred. In such a case, the choice is betweenthe view taken by the High Court whose judgment is under appeal, and thealternative view which appears to this Court to be more reasonable; and inaccepting its own view in preference to that of the High Court, this Courtwould be discharging its duty as a Court of Appeal. But differentconsiderations must inevitably arise where a previous decision of thisCourt has taken a particular view as to the construction of a statutoryprovision as, for instance, s. 66(4) of the Act. When it is urged that theview already taken by this Court should be reviewed and revised, it may notnecessarily be an adequate reason for such review and revision to hold thatthough the earlier view is a reasonably possible view, the alternative viewwhich is pressed on the subsequent occasion is more reasonable. Inreviewing and revising its earlier decision, this Court should ask itselfwhether in interests of the public good or for any other valid andcompulsive reasons, it is necessary that the earlier decision should berevised. When this Court decides questions of law, its decisions are, underArt. 141, binding on all courts within the territory of India, and so, itmust be the constant endeavour and concern of this Court to introduce andmaintain an element of certainty and continuity in the interpretation oflaw in the country. Frequent exercise by this Court of its power to reviewits earlier decisions on the ground that the view pressed before it laterappears to the Court to be more reasonable, may incidentally tend to makelaw uncertain and introduce confusion which must be consistently avoided.That is not to say that if on a subsequent occasion, the Court is satisfiedthat its earlier decision was clearly erroneous, it should hesitate tocorrect the error; but before a previous decision is pronounced to beplainly erroneous, the Court must be satisfied with a fair amount ofunanimity amongst its members that a revision of the said view is fullyjustified. It is not possible or desirable, and in any case it would beinexpedient to lay down any principles which should govern the approach ofthe Court in dealing with the question of reviewing and revising itsearlier decisions. It would always depend upon several relevantconsiderations: — What is the nature of the infirmity or error on which aplea for a review and revision of the earlier view is based? On the earlieroccasion, did some patent aspects of the question remain unnoticed, or wasthe attention of the Court not drawn to any relevant and material statutoryprovision, or was any previous decision of this Court bearing on the pointnot noticed? Is the Court hearing such plea fairly unanimous that there issuch an error in the earlier view? What would be the impact of the error onthe general administration of law or on public good? Has the earlierdecision been followed on subsequent occasions either by this Court or bythe High Courts? And, would the reversal of the earlier decision lead topublic inconvenience, hardship or mischief? These and other relevantconsiderations must be carefully borne in mind whenever this Court iscalled upon to exercise its jurisdiction to review and review and reviseits earlier decisions. These considerations become still more significantwhen the earlier decision happens to be a unanimous decision of a Bench offive learned Judges of this Court.….. The principle of stare decisis, no doubt, cannot be pressed intoservice in cases where the jurisdiction of this Court to reconsider andrevise its earlier decisions is invoked; but nevertheless, the normalprinciple that judgments pronounced by this Court would be final, cannot beignored, and unless considerations of a substantial and compellingcharacter make it necessary to do so, this Court should and would bereluctant to review and revise its earlier decisions. That, broadly stated,is the approach which we propose to adopt in dealing with the point made bythe learned Attorney-General that the earlier decisions of this Court inthe New Jehangir Mills case, (1960) 1 SCR 249 and the Petlad Co. Ltd. case,(1963) Supp. 1 SCR 871, should be reconsidered and revised.Let us then consider the question of construing s. 66(4) of the Act. Beforewe 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 anorder under sub-section (4) of section 33, the assessee or the Commissionermay, by application in the prescribed form, accompanied where applicationis made by the assessee by a fee of one hundred rupees, require theappellate Tribunal to refer to the High Court any question of law arisingout of such order, and the Appellate Tribunal shall within ninety days ofthe receipt of such application draw up a statement of the case and referit to the High Court." …..”Based on the above, it was asserted, on the basis of the factual and legalposition projected by the learned Attorney General, that the positiondeclared by this Court in the Second Judges case, as also, in the ThirdJudges case, was clearly erroneous. It was submitted, that the procedureevolved by this Court for appointment of Judges to the higher judiciaryhaving miserably failed, not because of any defect in the independence ofthe procedure prescribed, but because of the “intra-dependence of theJudges”, who took part in discharging the responsibilities vested in thecollegium of Judges, certainly required a re-examination.53. It is apparent from the submissions advanced at the hands of thelearned counsel representing the Union of India and the different StateGovernments, that rather than choosing to respond to the assertions madewith reference to the constitutional validity of the Constitution (99thAmendment) Act, 2014 and the NJAC Act, had collectively canvassed, that thepresent five-Judge Bench should refer the present controversy foradjudication to a Bench of nine or more Judges, which could effectivelyrevisit, if necessary, the judgments rendered by this Court in the Secondand Third Judges cases. In view of the aforesaid consideration, we are ofthe view, that the observations recorded by this Court, in the Suraz IndiaTrust case15, as also, the fact that the same is pending before this Court,is immaterial. Consequent upon the instant determination by us, the abovematter will be liable to be disposed of, in terms of the instant judgment.IV. OBJECTION BY THE PETITIONERS, TO THE MOTION FOR REVIEW:54. Mr. Fali S. Nariman, disagreed with the suggestion that thecontroversy in hand, needed to be decided by a larger Bench. It was hispointed submission, that the issue canvassed had been improperly pressed,by overlooking certain salient features, which had necessarily to be takeninto consideration, before a prayer for reference to a larger Bench couldbe agitated. It was submitted, that all the learned counsel representingthe respondents had overlooked the fact, that the interpretation of Article124 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 lawdeclared by this Court in the First Judges case, having been doubted, thematter was referred for reconsideration, before the nine-Judge Bench, whichdelivered the judgment in the Second Judges case. It was pointed out, thatthe prayer for revisitation, which is being made at the behest of thelearned counsel representing the Union of India and the differentparticipating States, was clearly unacceptable, because the legal positiondeclared by this Court in the First Judges case had already been revisitedin the Second Judges case by a larger Constitution Bench. Not only that,it was asserted, that when certain doubts arose about the implementation ofthe judgment in the Second Judges case, a Presidential Reference was madeunder Article 143, resulting in the re-examination of the matter, at thehands of yet another nine-Judge Bench, where the Union of India clearlyexpressed its stand in paragraph 11 as under:“11. We record at the outset the statements of the Attorney General that(1) the Union of India is not seeking a review or reconsideration of thejudgment in the Second Judges case and that (2) the Union of India shallaccept and treat as binding the answers of this Court to the questions setout in the Reference.”It was submitted, that thereupon, the matter was again examined and thedeclared legal position in the Second Judges case, was reiterated andconfirmed, by the judgment rendered in the Third Judges case. Premised onthe aforesaid factual position, learned counsel raised a poser, namely, howmany times, can this Court revisit the same question? It was asserted,that just because such a prayer seems to be the only way out, for thoserepresenting the respondents, the same need not be accepted.55. Learned senior counsel pointed out, that the legal position withreference to appointments to the higher judiciary came to be examined anddeclared, for the first time, in the First Judges case, in 1981. It wassubmitted, that the aforesaid determination would not have been rendered,had this Court’s attention been drawn to the Samsher Singh case11, duringthe course of hearing, in the First Judges case. It was submitted, thatthe position declared by this Court in the First Judges case needed to berevisited, was realized during the hearing of the case in the SubhashSharma case4. While examining the justification of the conclusions drawnby this Court, in the First Judges case, the matter was placed forconsideration, before a nine-Judge Bench. It was submitted, that all theissues, which have now been raised at the hands of learned senior counselrepresenting the respondents, were canvassed before the Bench hearing theSecond Judges case. This Court, in the Second Judges case, clearly arrivedat the conclusion, that the earlier judgment rendered in the First Judgescase, did not lay down the correct law. It was submitted, that the legalposition had been declared in the Second Judges case, by a majority of 7:2.56. It was submitted, that the 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 SecondJudges case by M.M. Punchhi, J.:“500. Thus S.P. Gupta case, as I view it, in so far as it goes to permitthe Executive trudging the express views of disapproval or non-recommendation made by the Chief Justice of India, and for that matter whenappointing a High Court Judge the views of the Chief Justice of the HighCourt, is an act of impermissible deprival, violating the spirit of theConstitution, which cannot he approved, as it gives an unjust andunwarranted additional power to the Executive, not originally conceived of.Resting of such power with the Executive would be wholly inappropriate andin the nature of arbitrary power. The constitutional provisions conceives,as it does, plurality and mutuality, but only amongst the constitutionalfunctionaries and not at all in the extra-constitutional ones inreplacement of the legitimate ones. The two functionaries can be likened tothe children of the cradle, intimately connected to their common mother —the Constitution. They recognise each other through that connection. Thereis thus more an obligation towards the tree which bore the fruit ratherthan to the fruit directly. Watering the fruit alone is pointless ignoringthe roots of the tree. The view that the two functionaries must keepdistances from each other is counter-productive. The relationship betweenthe two needs to be maintained with more consideration.xxx xxx xxx503. A centuries old Baconian example given to describe the plight of alitigant coming to a court of law comes to my mind. It was described thatwhen the sheep ran for shelter to the bush to save itself from rain andhail, it found itself deprived of its fleece when coming out. Same fate forthe institution of the Chief Justice of India. Here it results simply andpurely in change of dominance. In the post - S.P. Gupta period, the CentralGovernment i.e. the Law Minister and the Prime Minister were found to be ina dominant position and could even appoint a Judge in the higher judiciarydespite his being disapproved or not recommended by the Chief Justice ofIndia and likewise by the Chief Justice of a State High Court. Exceptionperhaps could be made only when the Chief Justice was not emphatic of hisdisapproval and was non-committed. His stance could in certain circumstancebe then treated, as implied consent. These would of course be rare cases.Now in place of the aforesaid two executive heads come in dominantposition, the first and the second puisne, even when disagreeing with theChief Justice of India. A similar position would emerge when appointing aChief Justice or a Judge of the High Court. Thus in my considered view theposition of the institution of the Chief Justice being singular and uniquein character under the Constitution is not capable of being disturbed. Itescaped S.P. Gupta case, though in a truncated form, and not to have becometotally extinct, as is being done now. Correction was required in thatregard in S.P. Gupta, but not effacement.”Pointing to the opinion extracted above, it was asserted, that the actionof the executive to put off the recommendation made by the Chief Justice ofIndia (disapproving the appointment of a person, as a Judge of the HighCourt) would amount to an act of deprival, “violating the sprit of theConstitution”. Inasmuch as, the above demeanour/expression, would give anunjust and unwarranted power to the executive, which was not intended bythe framers of the Constitution. The Court went on to hold, that thevesting of such power with the executive, would be wholly inappropriate,and in the nature of arbitrary power. It was also noted, that after thisCourt rendered its decision in the First Judges case, the Law Minister andthe Prime Minister were found to be in such a dominant position, that theycould appoint a Judge to the higher judiciary, despite his beingdisapproved (or, even when he was not recommended at all) by the ChiefJustice of India (and likewise, by the Chief Justice of the High Court).Thus, in the view of M.M. Punchhi, J., these details had escaped the noticeof the authors of the First Judges case, and corrections were required, inthat regard, in the said judgment. Accordingly, it was the contention ofthe learned senior counsel, that one of the minority Judges had alsoexpressed the same sentiments as had been recorded by the majority, on thesubject of primacy of the judiciary in matters regulated under Articles124, 217 and 222.57. It was submitted, that the issue in hand was examined threadbare byrevisiting the judgment rendered in the First Judges case, when this Courtreviewed the matter through the Second Judges case. It was submitted, thatduring the determination of the Third Judges case, the then AttorneyGeneral for India had made a statement to the Bench, that the Union ofIndia, was not seeking a review or reconsideration of the judgment in theSecond Judges case. Even though, the opinion tendered by this Court,consequent upon a reference made to the Supreme Court by the President ofIndia under Article 143, is not binding, yet a statement was made byAttorney General for India, that the Union of India had accepted asbinding, the answers of this Court to the questions set out in thereference. All this, according to learned counsel, stands recorded inparagraph 11 of the judgment rendered in the Third Judges case. Accordingto learned senior counsel, it was clearly beyond the purview of the Unionof India, to seek a revisit of the Second and Third Judges cases.58. Besides the position expressed in the foregoing paragraphs, evenaccording to the legal position declared by this Court, it was not open tothe Union of India and the State Governments, to require this Court toexamine the correctness of the judgments rendered in the Second and ThirdJudges cases. It was submitted, that such a course could only be adopted,when it was established beyond all reasonable doubt, that the previousjudgments were erroneous. Insofar as the instant aspect of the matter isconcerned, learned counsel placed reliance on Lt. Col. Khajoor Singh v.Union of India[29] (Bench of 7 Judges), wherefrom learned counselhighlighted the following:“We have given our earnest consideration to the language of Art. 226 andthe two decisions of this Court referred to above. We are of opinion thatunless there are clear and compelling reasons, which cannot be denied, weshould not depart from the interpretation given in these two cases andindeed from any interpretation given in an earlier judgment of this Court,unless there is a fair amount of unanimity that the earlier decisions aremanifestly wrong. This Court should not, except when it is demonstratedbeyond all reasonable doubt that its previous ruling, given after duedeliberation and full hearing, was erroneous, go back upon its previousruling, particularly on a constitutional issue.”Reference was also made to the Keshav Mills Co. Ltd. case28, wherein aseven-Judge Bench of this Court held as under:“It must be conceded that the view for which the learned Attorney-Generalcontends is a reasonably possible view, though we must hasten to add thatthe view which has been taken by this Court in its earlier decisions isalso reasonably possible. The said earlier view has been followed by thisCourt on several occasions and has regulated the procedure in referenceproceedings in the High Courts in this country ever since the decision ofthis Court in the New Jehangir Mills, (1960) 1 SCR 249, was pronounced onMay 12, 1959. Besides, it is somewhat remarkable that no reported decisionhas been cited before us where the question about the construction ofs. 66(4) was considered and decided in favour of the Attorney-General'scontention. Having carefully weighed the pros and cons of the controversywhich have been pressed before us on the present occasion, we are notsatisfied that a case has been made out to review and revise our decisionsin 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 byMr. Palkhivala must be upheld. In the result, the order passed by the HighCourt is set aside and the matter is sent back to the High Court with adirection that the High Court should deal with it in the light of the tworelevant decisions in the New Jehangir Mills and the Petlad Co. Ltd.”While referring to Ganga Sugar Corporation Ltd. v. State of UttarPradesh[30], our attention was drawn to the following observations recordedby the five-Judge Bench:“28. We are somewhat surprised that the argument about the invalidity ofthe Act on the score that it is with respect to a controlled industry' dieshard, despite the lethal decision of this Court in Ch. Tika Ramjicase [1956] SCR 393. Enlightened litigative policy in the country mustaccept as final the pronouncements of this Court by a Constitution Benchunless the subject be of such fundamental importance to national life orthe reasoning is so plainly erroneous in the light of later thought that itis wiser to be ultimately right rather than to be consistently wrong. Staredecisis is not a ritual of convenience but a rule with limited exceptions,Pronouncements by Constitution Benches should not be treated so cavalierlyas to be revised frequently. We cannot devalue the decisions of this Courtto brief ephemerality which recalls the opinion expressed by JusticeRoberts of the U.S. Supreme Court in Smith v. Allwright 321 U.S. 649 at 669(1944) "that adjudications of the Court were rapidly gravitating 'into thesame class as a restricted railroad ticket, good for this day and trainonly’”."Learned counsel while relying upon Gannon Dunkerley and Co. v. State ofRajasthan[31] (Bench of 5 Judges), referred to the following:“28. …..We are not inclined to agree. The principles governingreconsideration of an earlier decision are settled by the various decisionsof this Court. It has been laid down: “This Court should not, accept whenit is demonstrated beyond all reasonable doubt that its previous ruling,given after due deliberation and full hearing, was erroneous, go back uponits previous ruling, particularly on a constitutional issue.” (See: Lt.Col. Khajoor Singh vs. The Union of India, (1961) 2 SCR 828). In KeshavMills 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 itsmembers that a revision of the said view is fully justified.” xxx xxx xxx30. Having regard to the observations referred to above and the stand ofthe parties during the course of arguments before us, we do not consider itappropriate to reopen the issues which are covered by the decision inBuilders' Association case….”Having referred to the above judgments, it was submitted, that it wasclearly misconceived for the learned counsel for the respondents, to seek areference of the controversy, to a larger Bench for the re-examination ofthe decisions rendered by this Court in the Second and Third Judges cases.59. Yet another basis for asserting, that the prayer made at the behestof the learned counsel representing the respondents for revisiting thejudgments rendered by this Court in the Second and Third Judges cases, wascanvassed on the ground that the observations recorded by this Court in theSamsher Singh case11 (in paragraph 149) could neither be understood asstray observations, nor be treated as obiter dicta. The reasons expressedby the learned senior counsel on the above issue were as follows:“(i) In the other case relating to the independence of the judiciary (retransfer of High Court Judges) – UOI vs. Sankal Chand Seth, (1977) 4 SCC193 (5J) – as to whether a Judge of a High Court can be transferred toanother High Court without his consent, it was decided by majority that hecould be: the majority consisted of Justice Chandrachud, Justice KrishnaIyer and Justice Murtaza Fazal Ali.(ii) The judgment of Justice Krishna Iyer (on behalf of himself and JusticeMurtaza Fazal Ali in Sankal Chand Seth – [with which Bhagwati, J. said hewas “entirely in 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(1) of theConstitution, with the Chief Justice of India. The consultation, in orderto fulfil its normative function in Article 222(1), must be a real,substantial and effective consultation based on full and proper materialsplaced before the Chief Justice by the Government. Before giving hisopinion the Chief Justice of India would naturally take into considerationall relevant factors and may informally ascertain from the Judge concernedif he has any real personal difficulty or any humanitarian ground on whichhis transfer may not be directed. Such grounds may be of a wide rangeincluding his health or extreme family factors. It is not necessary for theChief Justice to issue formal notice to the Judge concerned but it issufficient — although it is not obligatory — if he ascertains these factseither from the Chief Justice of the High Court or from his own colleaguesor through any other means which the Chief Justice thinks safe, fair andreasonable. Where a proposal of transfer of a Judge is made the Governmentmust forward every possible material to the Chief Justice so that he is ina position to give an effective opinion. Secondly, although the opinion ofthe Chief Justice of India may not be binding on the Government it isentitled to great weight and is normally to be accepted by the Governmentbecause the power under Article 222 cannot be exercised whimsically orarbitrarily. In the case of Chandramouleshwar Prasad v. Patna High Court,(1969) 3 SCC 36, while interpreting the word "consultation" as appearing inArticle 233 of the Constitution this Court observed as follows:“Consultation with the High Court under Article 233 is not an emptyformality. So far as promotion of officers to the cadre of District Judgesis concerned the High Court is best fitted to adjudge the claims and meritsof persons to be considered for promotion....We cannot accept this.Consultation or deliberation is not complete or effective before theparties thereto make their respective points of view known to the other orothers and discuss and examine the relative merits of their views. If oneparty makes a proposal to the other who has a counter proposal in his mindwhich is not communicated to the prosper the direction to give effect tothe counter proposal without anything more, cannot be said to have beenissued after consultation.In Samsher Singh's case, AIR 1974 SC 2192, one of us has struck the samechord. It must also be borne in mind that if the Government departs fromthe opinion of the Chief Justice of India it has to justify its action bygiving cogent and convincing reasons for the same and, if challenged, toprove to the satisfaction of the Court that a case was made out for notaccepting the advice of the Chief Justice of India. It seems to us that theword, 'consultation' has been used in Article 222 as a matter ofconstitutional courtesy in view of the fact that two very high dignitariesare concerned in the matter, namely, the President and the Chief Justice ofIndia. Of course, the Chief Justice has no power of veto, as Dr. Ambedkarexplained in the Constituent Assembly.”(iii) Justice Chandrachud (in the course of his judgment) agreeing – inparagraph 41 of Sankalchand Seth followed Shamsher Singh (para 149).”Based on the aforesaid, it was the assertion of the learned senior counselthat even if the contention advanced by the counsel for the respondents wasto be accepted, namely, that the decisions rendered by this Court in theabove two cases were required to be re-examined, by a reference to a largerBench, still the observations recorded in paragraph 149 in the SamsherSingh case11 would continue to hold the field, as the review of the samehad not been sought.V. THE CONSIDERATION: I.60. In the scheme of the Constitution, the Union judiciary has been dealtin Chapter IV of Part V, and the High Courts in the States, as well as, theSubordinate-courts have been dealt with in Chapters V and VI respectively,of Part VI. The provisions of Parts V and VI of the Constitution, withreference to the Union and the States judiciaries including Subordinate-courts, have arisen for interpretative determination by this Court, onseveral occasions. We may chronologically notice the determination renderedby this Court, with reference to the above Parts, especially those dealingwith the executive participation, in the matters relating to the Unionjudiciary, the 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,(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 Court Advocates-on-Record Association v. Union 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 anine-Judge Bench.This Court on no less than five occasions, has examined the controversywhich we are presently dealing with, through Constitution Benches. In theSamsher Singh case11, it was concluded, that in all conceivable cases,consultation with the highest dignitary in the Indian judiciary – the ChiefJustice of India, will and should be accepted by the Government of India,in matters relatable to the Chapters and Parts of the Constitution referredto above. In case, it was not so accepted, the Court would have anopportunity to examine, whether any other extraneous circumstances hadentered into the verdict of the concerned Minister or the Council ofMinisters (headed by the Prime Minister), whose views had prevailed inignoring the counsel given by the Chief Justice of India. This Courtaccordingly concluded, that in practice, the last word must belong to theChief Justice of India. The above position was also further clarified,that rejection of the advice tendered by the Chief Justice of India, wouldordinarily be regarded as prompted by oblique considerations, vitiating theorder. In a sense of understanding, this Court in the Samsher Singhcase11, is seen to have read the term “consultation” expressed in Articles124 and 217 as conferring primacy to the opinion tendered by the ChiefJustice. When the matter came to be examined in the Sankalchand HimatlalSheth case5, with reference to Article 222, another Constitution Bench ofthis Court, reiterated the conclusion drawn in the Samsher Singh case11, byholding, that in all conceivable cases, “consultation” with the ChiefJustice of India, should be accepted, by the Government of India. Andfurther, that in the event of any departure, it would be open to a court toexamine whether, any other circumstances had entered into the verdict ofthe executive. More importantly, this Court expressly recorded an ardenthope, that the exposition recorded in the Samsher Singh case11, would notfall on deaf ears. No doubt can be entertained, that yet again, this Courtread the term “consultation” as an expression, conveying primacy in thematter under consideration, to the view expressed by the Chief Justice. Thesolitary departure from the above interpretation, was recorded by thisCourt in the First Judges case, wherein it came to be concluded, that themeaning of the term “consultation” could not be understood as“concurrence”. In other words, it was held, that the opinion tendered bythe Chief Justice of India, would not be binding on the executive. Thefunction of appointment of Judges to the higher judiciary, was described asan executive function, and it was held by the majority, that the ultimatepower of appointment, unquestionably rested with the President. The opinionexpressed by this Court in the First Judges case, was doubted in theSubhash Sharma case4, which led to the matter being re-examined in theSecond Judges case, at the hands of a nine-Judge Bench, which while settingaside the judgment rendered in the First Judges case, expressed its opinionin consonance with the judgments rendered in the Samsher Singh case11 andthe Sankalchand Himatlal Sheth case5. This Court expressly concluded, inthe Second Judges case, that the term “consultation” expressed in Articles124, 217 and 222 had to be read as vesting primacy with the opinionexpressed by the Chief Justice of India, based on a participatoryconsultative 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 aboveposition came to be reconsidered in the Third Judges case, by a nine-JudgeBench, wherein the then learned Attorney General for India, made astatement, that the Union of India was not seeking a review, orreconsideration of the judgment in the Second Judges case, and further,that the Union of India had accepted the said judgment, and would treat thedecision of this Court in the Second Judges case as binding. It istherefore apparent, that the judiciary would have primacy in mattersregulated by Articles 124, 217 and 222, was conceded, by the Union ofIndia, in the Third Judges case.61. We have also delineated hereinabove, the views of the Judges recordedin the First Judges case, which was rendered by a majority of 4:3. Notonly, that the margin was extremely narrow, but also, the views expressedby the Judges were at substantial variance, on all the issues canvassedbefore the Court. The primary reason for recording the view of each of theJudges in the First Judges case hereinbefore, was to demonstratedifferences in the deductions, inferences and the eventual outcome. Asagainst the above, on a reconsideration of the matters by a larger Bench inthe Second Judges case, the decision was rendered by a majority of 7:2.Not only was the position clearly expressed, there was hardly any variance,on the issues canvassed. So was the position with the Third Judges case,which was a unanimous and unambiguous exposition of the controversy. We,therefore, find ourselves not inclined to accept the prayer for a review ofthe Second and Third Judges cases.62. Having given pointed and thoughtful consideration to the propositioncanvassed at the hands of the learned counsel for the respondents, we areconstrained to conclude, that the issue of primacy of the judiciary, in thematter of appointment and transfer of Judges of the higher judiciary,having been repeatedly examined, the prayer for a re-look/reconsiderationof the same, is just not made out. This Court having already devoted somuch time to the same issue, should ordinarily not agree to re-examine thematter yet again, and spend more time for an issue, already well thrashedout. But time has not been the constraint, while hearing the present cases,for we have allowed a free debate, and have taken upon ourselves the taskof examining the issues canvassed. Yet, the remedy of review must have somelimitations. Mr. Fali S. Nariman, learned senior counsel, is right, in hissubmission, that the power of review was exercised and stood expended whenthe First Judges case was reviewed by a larger Bench in the Second Judgescase. 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 Judgescase, to try and reagitate the matter all over again. The matter havingbeen revisited, and the position having been conceded by the Union ofIndia, it does not lie in the mouth of the Union of India, to seekreconsideration of the judicial declaration, in the Second and Third Judgescases. Therefore, as a proposition of law, we are not inclined to acceptthe prayer of the Union of India and the other respondents, for a re-lookor review of the judgments rendered in the Second and Third Judges cases.All the same, as we have indicated at the beginning of this order, becausethe matter is of extreme importance and sensitivity, we will still examinethe merits of the submissions advanced by learned counsel. II.63. The most forceful submission advanced by the learned AttorneyGeneral, was premised on the Constituent 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, thatthe Members of the Constituent Assembly feared, that the process ofselection and appointment of Judges to the higher judiciary should not beexclusively vested with the judiciary. The process of appointment of Judgesby Judges, it was contended, was described as Imperium in Imperio, duringthe Constituent Assembly debates. In responding to the above observations,Dr. B.R. Ambedkar while referring to the contents of Article 122 (which wasrenumbered as Article 124 in the Constitution), had assured the Members ofthe Constituent Assembly, that the drafted Article had adopted the middlecourse, while refusing to create an Imperium in Imperio, in such a manner,that the “independence of the judiciary” would be fully preserved. Theexact text of the response of Dr. B.R. Ambedkar, has been extracted inparagraph 30 above.64. It was the contention of the learned Attorney General, that despitethe clear intent expressed during the Constituent Assembly debates, not tocreate an Imperium in Imperio, the Second and Third Judges cases had donejust that. It was submitted, that in the process of selection andappointment of Judges to the higher judiciary, being followed since 1993,Judges alone had been appointing Judges. It was also contended, that theConstitution contemplates a system of checks and balances, where eachpillar of governance is controlled by checks and balances, exercised by theother two pillars. It was repeatedly emphasized, that in the present systemof selection and appointment of Judges to the higher judiciary, theexecutive has no role whatsoever. It was accordingly the contention of therespondents, that the manner in which Articles 124, 217 and 222 had beeninterpreted in the Second and Third Judges cases, fell foul of the intentof the Constituent Assembly. This, according to the learned counsel forthe respondents, was reason enough, to revisit and correct, the viewexpressed in the Second and Third Judges cases.65. It is not possible for us to accept the contention advanced at thehands of the learned counsel for the respondents. Consequent upon thepronouncement of the judgments in the Second and Third Judges cases, aMemorandum of Procedure for Appointment of Judges and Chief Justices to theHigher Judiciary was drawn by the Ministry of Law, Justice and CompanyAffairs on 30.6.1999. The Memorandum of Procedure aforementioned, isavailable on the website of the above Ministry. The above Memorandum ofProcedure has been examined by us. In our considered view, the Memorandumof Procedure provides for a participatory role, to the judiciary as well asthe political-executive. Each of the above components are responsible forcontributing information, material and data, with reference to theindividual under consideration. While the judicial contribution isresponsible for evaluating the individual’s professional ability, thepolitical-executive is tasked with the obligation to provide details aboutthe individual’s character and antecedents. Our analysis of the Memorandumof Procedure reveals, that the same contemplates inter alia the followingsteps for selection of High Court Judges:Step 1: The Chief Justice of the concerned High Court has theresponsibility of communicating, to the Chief Minister of the Stateconcerned, names of persons to be selected for appointment. Details arefurnished to the Chief Minister, in terms of the format appended to thememorandum. Additionally, if the Chief Minister desires to recommendname(s) of person(s) for such appointment, he must forward the same to theChief Justice for his consideration.Step 2: Before forwarding his recommendations to the Chief Minister,the Chief Justice must consult his senior colleagues comprised in the HighCourt collegium, regarding the suitability of the names proposed. Theentire consultation must be in writing, and these opinions must be sent tothe Chief Minister along with the Chief Justice’s recommendation.Step 3: Copies of recommendations made by the Chief Justice of the HighCourt, to the Chief Minister of the concerned State, require to beendorsed, to the Union Minister of Law and Justice, to the Governor of theconcerned State, and to the Chief Justice of India.Step 4: Consequent upon the consideration of the names proposed by theChief Justice, the Governor of the concerned State, as advised by the ChiefMinister, would forward his recommendation along with the entire set ofpapers, to the 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 thereports, as may be available to the Government, in respect of the namesunder consideration. The proposed names, would be subject to scrutiny atthe hands of the Intelligence Bureau, through the Union Ministry of HomeAffairs. The Intelligence Bureau would opine on the integrity of theindividuals under consideration.Step 6: The entire material, as is available with the Union Ministerfor Law and Justice, would then be forwarded to the Chief Justice of Indiafor his advice. The Chief Justice of India would, in consultation with hissenior colleagues comprised in the Supreme Court collegium, form hisopinion with regard to the persons recommended for appointment.Step 7: Based on the material made available, and additionally theviews of Judges of the Supreme Court (who were conversant with the affairsof the concerned High Court), the Chief Justice of India in consultationwith his collegium of Judges, would forward his recommendation, to theUnion Minister for Law and Justice. The above noted views of Judges of theSupreme Court, conversant with the affairs of the High Court, were to beobtained in writing, and are to be part of the compilation incorporatingthe recommendation.Step 8: The Union Minister for Law and Justice would then put up therecommendation made by the Chief Justice of India, to the Prime Minister,who would examine the entire matter in consultation with the Union Ministerfor Law and Justice, and advise the President, in the matter of theproposed appointments.66. We shall venture to delineate the actual consideration at the handsof the executive, in the process of selection and appointment of High CourtJudges, in terms of the Memorandum of Procedure, as well as, the actualprevailing practice.67. Steps 1 to 3 of the Memorandum of Procedure reveal, that names ofpersons to be selected for appointment are forwarded to the Chief Ministerand the Governor of the concerned State. On receipt of the names, theChief Minister discharges the onerous responsibility to determine thesuitability of the recommended candidate(s). Specially the suitability ofthe candidate(s), pertaining to integrity, social behaviour, politicalinvolvement and the like. Needless to mention, that the Chief Minister ofthe concerned State, has adequate machinery for providing such inputs. Itwould also be relevant to mention, that the consideration at the hands ofthe Governor of the concerned State, is also not an empty formality. Forit is the Governor, through whom the file processed by the Chief Minister,is forwarded to the Union Minister for Law and Justice. There have beenoccasions, when Governors of the concerned State, have recorded their ownimpressions on the suitability of a recommended candidate, in sharpcontrast with the opinion expressed by the Chief Minister. Whether or notthe Governors participate in the above exercise, is quite a separatematter. All that needs to be recorded is, that there are instances whereGovernors have actively participated in the process of selection of Judgesto High Courts, by providing necessary inputs. Record also bears testimonyto the fact, that the opinion expressed by the Governor, had finallyprevailed on a few occasions.68. The participation of the executive, with reference to theconsideration of a candidate recommended by the Chief Justice of HighCourt, continues further at the level of the Government of India. Thematter of suitability of a candidate, is also independently examined at thehands of the Union of Minister for Law and Justice. The Ministry of Lawand Justice has a standard procedure of seeking inputs through the UnionMinistry of Home Affairs. Such inputs are made available by the UnionMinistry for Home Affairs, by having the integrity, social behaviour,political involvement and the like, examined through the IntelligenceBureau. After the receipt of such inputs, and the examination of theproposal at the hands of the Union Minister for Law and Justice, the fileproceeds to the Chief Justice of India, along with the details receivedfrom the quarters referred to above.69. After the Chief Justice of India, in consultation with his collegiumof Judges recommends the concerned candidate for elevation to the HighCourt, the file is processed for a third time, by the executive. On thisoccasion, at the level of the Prime Minister of India. During the courseof the instant consideration also, the participation of the executive isnot an empty formality. Based on the inputs available to the PrimeMinister, it is open to the executive, to yet again return the file to theChief Justice of India, for a reconsideration of the proposal, by enclosingmaterial which may have escaped the notice of the Chief Justice of Indiaand his collegium of Judges. There have been occasions, when the filereturned to the Chief Justice of India for reconsideration, has resulted ina revision of the view earlier taken, by the Chief Justice of India and hiscollegium of Judges. It is therefore clear, that there is a completecomity of purpose between the judiciary and the political-executive in thematter of selection and appointment of High Court Judges. And betweenthem, there is clear transparency also. As views are exchanged in writing,views and counter-views, are in black and white. Nothing happens secretly,without the knowledge of the participating constitutional functionaries.70. It is not necessary for us to delineate the participation of thejudiciary in the process of selection and appointment of Judges to the HighCourts. The same is apparent from the steps contemplated in the Memorandumof Procedure, as have been recorded above. Suffice it to state, that itdoes not lie in the mouth of the respondents to contend, that there is noexecutive participation in the process of selection and appointment ofJudges to High Courts.71. The Memorandum of Procedure, for selection of Supreme Court Judges,provides for a similar participatory role to the judiciary and thepolitical-executive. The same is not being analysed herein, for reasons ofbrevity. Suffice it to state, that the same is also a joint exercise, witha similar approach.72. For the reasons recorded by us hereinabove, it is not possible for usto accept, that in the procedure contemplated under the Second and ThirdJudges cases, Judges at their own select Judges to the higher judiciary, orthat, the system of Imperium in Imperio has been created for appointment ofJudges to the higher judiciary. It is also not possible for us to accept,that the judgment in the Second Judges case, has interfered with theprocess of selection and appointment of Judges to the higher judiciary, bycurtailing the participatory role of the executive, in the constitutionalscheme of checks and balances, in view of the role of the executive fullydescribed above. We find no merit in the instant contention advanced at thehands of the respondents. III.73. The learned Attorney General placed emphatic reliance on theConstituent Assembly debates. It was sought to be asserted, that for anapposite understanding of the provisions of the Constitution, it wasimperative to refer to the Constituent Assembly debates, which had led toformulating and composing of the concerned Article(s). Reliance wasaccordingly placed on the debates, which had led to the drafting of Article124. It was submitted, that the conclusions drawn by this Court, in theSecond Judges case, overlooked the fact, that what had been expresslycanvassed and raised by various Members of the Constituent Assembly, andrejected on due consideration, had been adopted by the judgment in theSecond Judges case. It was, therefore, the contention of the learnedAttorney General, that the judgments rendered in the Second and ThirdJudges cases recorded a view, diagonally opposite the intent and resolve ofthe Constituent Assembly.74. For reasons of brevity, it is not essential for us to extract hereinthe amendments sought by some of the eminent Members of the ConstituentAssembly in the draft provision (to which our attention was drawn). Atthis stage, we need only to refer to paragraph 772 (already extractedabove), from the Indra Sawhney case9, in order to record, that it is notessential to refer to individual views of the Members, and that, the viewexpressed at the end of the debate by Dr. B.R. Ambedkar, would besufficient to understand what had prevailed, and why. Suffice it to state,that during the course of the Constituent Assembly debates, it wasexpressly proposed that the term “consultation” engaged in Articles 124 and217, be substituted by the word “concurrence”. The proposed amendment washowever rejected by Dr. B.R. Ambedkar. Despite the above, this Court in theSecond and Third Judges cases had interpreted the word “consultation” inclause (2) of Article 124, and clause (1) of Article 217, as vestingprimacy in the judiciary, something that was expressly rejected, during theConstituent Assembly debate. And therefore, the contention advanced onbehalf of the respondents was, that this Court had interpreted the aboveprovisions, by turning the Constituent Assembly’s intent and resolve, onits head. It was submitted, that the erroneous interpretation recorded inthe Second Judges case, was writ large, even on a cursory examination ofthe debates.75. We are of the view, that it would suffice, for examining the abovecontention, 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 have been moved, tothis article, there are really three issues that have been raised. Thefirst is, how are the Judges of the Supreme Court to be appointed? Now,grouping the different amendments which are related to this particularmatter, I find three different proposals. The first proposal is that theJudges of the Supreme Court should be appointed with the concurrence of theChief Justice. That is one view. The other view is that the appointmentsmade by the President should be subject to the confirmation of two-thirdsvote by Parliament; and the third suggestion is that they should beappointed in consultation with the Council of States.With regard to this matter, I quite agree that the point raised is of thegreatest importance. There can be no difference of opinion in the Housethat our judiciary must both be independent of the executive and must alsobe competent in itself. And the question is how these two objects could besecured. There are two different ways in which this matter is governed inother countries. In Great Britain the appointments are made by the Crown,without any kind of limitation whatsoever, which means by the executive ofthe day. There is the opposite system in the United States where, forinstance, offices of the Supreme Court as well as other offices of theState shall be made only with the concurrence of the Senate in the UnitedStates. It seems to me, in the circumstances in which we live today, wherethe sense of responsibility has not grown to the same extent to which wefind it in the United States, it would be dangerous to leave theappointments to be made by the President, without any kind of reservationor limitation, that is to say, merely on the advice of the executive of theday. Similarly, it seems to me that to make every appointment which theexecutive wishes to make subject to the concurrence of the Legislature isalso not a very suitable provision. Apart from its being cumbrous, it alsoinvolves the possibility of the appointment being influenced by politicalpressure and political considerations. The draft article, therefore, steersa middle course. It does not make the President the supreme and theabsolute authority in the matter of making appointments. It does not alsoimport the influence of the Legislature. The provision in the article isthat there should be consultation of persons who are ex hypothesi, wellqualified to give proper advice in matters of this sort, and my judgment isthat this sort of provision may be regarded as sufficient for the moment.With regard to the question of the concurrence of the Chief Justice, itseems to me that those who advocate that proposition seem to relyimplicitly both on the impartiality of the Chief Justice and the soundnessof his judgment. I personally feel no doubt that the Chief Justice is avery eminent, person. But after all the Chief Justice is a man with all thefailings, all the sentiments and all the prejudices which we as commonpeople have; and I think, to allow the Chief Justice practically a vetoupon the appointment of judges is really to transfer the authority to theChief Justice which we are not prepared to vest in the President or theGovernment of the day. I therefore, think that that is also a dangerousproposition.”The first paragraph extracted hereinabove reveals, that there were threeproposals on the issue of appointment of Judges to the Supreme Court. Thefirst proposal was, that the Judges of the Supreme Court should not beappointed by the President in “consultation” with the Chief Justice ofIndia, but should be appointed with the “concurrence” of the Chief Justiceof India. The second proposal was, that like in the United States,appointments of Judges to the Supreme Court, should be made by thePresident, subject to confirmation by the Parliament, through a two-thirdsmajority. The third proposal was, that Judges of the Supreme Court, shouldbe appointed by the President in “consultation” with the Rajya Sabha.76. The response of Dr. B.R. Ambedkar to all the suggestions needs a veryclose examination, inasmuch as, even though rightfully pointed out by theAttorney General, and the learned counsel representing the respondents, allthe issues which arise for consideration in the present controversy, weretouched upon in the above response. Before dwelling upon the issue, whichstrictly pertained to the appointment of Judges, Dr. B.R. Ambedkarexpressed in unequivocal terms, that the unanimous opinion of theConstituent Assembly was, that “our judiciary must be independent of theexecutive”. The same sentiment was expressed by Dr. B.R. Ambedkar whileresponding to K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi KrishnaswamiAayar and Anathasayanam Ayyangar (extracted in paragraph 30 above) whereinhe emphasized, that “…there is no doubt that the House in general, hasagreed that the independence of the Judiciary, from the Executive should bemade as clear and definite as we could make it by law…” The aboveassertion made while debating the issue of appointment of Judges to theSupreme Court, effectively acknowledges, that the appointment of Judges tothe higher judiciary, has a direct nexus to the issue of “independence ofthe judiciary”. It therefore, does not lie in the mouth of therespondents to assert, that the subject of “appointment” would not fallwithin the domain/realm of “independence of the judiciary”.77. While responding to the second and third proposals referred to above,Dr. B.R. Ambedkar, cited the manner of appointment of Judges in GreatBritain, and pointed out, that in the United Kingdom appointments were madeby the Crown, without any kind of limitation, and as such, fell within theexclusive domain of the executive. Referring to the system adopted in theUnited States, he noted, that Judges of the Supreme Court in the UnitedStates, could only be appointed with the “concurrence” of the Senate.Suffice it to state, that the latter reference was to a process ofappointment which fell within the domain of the legislature (because theSenate is a legislative chamber in the bicameral legislature of the UnitedStates, which together with the U.S. House of Representatives, make up theU.S. Congress). It is important to notice, that he rejected both thesystems, where appointments to the higher judiciary were made by theexecutive, as well as, by the legislature. Dr. B.R. Ambedkar therefore,very clearly concluded the issue by expressing, that it would be improperto leave the appointments of Judges to the Supreme Court, to be made by thePresident – the executive (i.e., on the aid and advice of the Council ofMinisters, headed by the Prime Minister). In the words of Dr. B.R.Ambedkar, it would be dangerous to leave such appointments in the hands ofthe executive of the day, without any kind of reservation and limitation.We are therefore satisfied, that the word “consultation” expressed inArticles 124 and 217, was contemplated by the Constituent Assembly, tocurtail the free will of the executive. If that was the true intent, theword “consultation” could never be assigned its ordinary dictionarymeaning. And Article 124 (or Article 217) could never be meant to be readwith Article 74. It is therefore not possible for us to accept, that themain voice in the matter of selection and appointment of Judges to thehigher judiciary was that of the President (expressed in the mannercontemplated under Article 74). Nor is it possible to accept that primacyin the instant matter rested with the executive. Nor that, the judiciaryhas been assigned a role in the matter, which was not contemplated by theprovisions of the Constitution. It is misconceived for the respondents toassert, that the determination of this Court in the Second and Third Judgescases was not interpretative in nature, but was factually legislative. Dr.B.R. Ambedkar, therefore rejected, for the same reasons, the proposal thatappointments of Judges to the Supreme Court should be made by thelegislature. But the reason he expressed in this behalf was most apt,namely, the procedure of appointing Judges, by seeking a vote of approvalby one or the other (or both) House(s) of Parliament would be cumbersome.More importantly, Dr. B.R. Ambedkar was suspicious and distrustful of thepossibility of the appointments being directed and impacted by “politicalpressure” and “political consideration”, if the legislature was involved.We are therefore satisfied, that when the Constituent Assembly used theterm “consultation”, in the above provisions, its intent was to limit theparticipatory role of the political-executive in the matter of appointmentsof Judges to the higher judiciary.78. It was the view of Dr. B.R. Ambedkar, that the draft article hadadopted a middle course, by not making the President – the executive “thesupreme and absolute authority in the matter of making appointments” ofJudges. And also, by keeping out the legislators for their obviouspolitical inclinations and biases, which render them unsuitable forshouldering the responsibility. We are therefore of the view, that thejudgments in the Second and Third Judges cases cannot be blamed, for notassigning a dictionary meaning to the term “consultation”. If the realpurpose sought to be achieved by the term “consultation” was to shield theselection and appointment of Judges to the higher judiciary, from executiveand political involvement, certainly the term “consultation” was meant tobe understood as something more than a mere “consultation”.79. It is clear from the observations of Dr. B.R. Ambedkar, that thePresident – the executive was required by the provisions of the draftarticle, to consult “…persons, who were ex hypothesi, well qualified togive proper advice on the matter of appointment of Judges to the SupremeCourt.” The response of Dr. B.R. Ambedkar in a singular paragraph(extracted above), leaves no room for any doubt that Article 124, in themanner it was debated, was clearly meant to propound, that the matter of“appointments of Judges was an integral part of the “independence of thejudiciary”. The process contemplated for appointment of Judges, wouldtherefore have to be understood, to be such, as would be guarded/shieldedfrom political pressure and political considerations.80. The paragraph following the one, that has been interpreted in theforegoing paragraphs, also leaves no room for any doubt, that theConstituent Assembly did not desire to confer the Chief Justice of India,with a veto power to make appointments of Judges. It is therefore that aconsultative process was contemplated under Article 124, as it wasoriginally drafted. The same mandated consultation not only with the ChiefJustice of India, but with other Judges of the Supreme Court and the HighCourts. Viewed closely, the judgments in the Second and Third Judgescases, were rendered in a manner as would give complete effect to theobservations made by Dr. B.R. Ambedkar with reference to Article 124 (asoriginally incorporated). It is clearly erroneous for the respondents tocontend, that the consultative process postulated between the Presidentwith the other Judges of the Supreme Court or the High Courts in theStates, at the discretion of the President, had been done away with by theSecond and Third Judges cases. Nothing of the sort. It has been, and isstill open to the President, in his unfettered wisdom, to the consultationindicated in Article 124. Additionally, it is open to the President, torely on the same, during the course of the mandatory “consultation” withthe Chief Justice of India. The above, further demonstrates the executiverole in the selection of Judges to the higher judiciary, quite contrary tothe submission advanced on behalf of the respondents. We are satisfied,that the entire discussion and logic expressed during the debates of theConstituent Assembly, could be given effect to, by reading the term“consultation” as vesting primacy with the judiciary, on the matter beingdebated. We are also of the view, that the above debates support theconclusions drawn in the judgments of which review is being sought. For thereasons recorded hereinabove, we find no merit in the submissions advancedby the learned counsel for the respondents based on the ConstituentAssembly debates. IV.81. The consideration in hand, also has a historic perspective. We wouldventure to examine the same, from experiences gained, after theConstitution became operational i.e., after the people of this country cameto govern themselves, in terms of the defined lines, and thedistinctiveness of functioning, set forth by the arrangement and allocationof responsibilities, expressed in the Constitution. In this behalf, itwould be relevant to highlight the discussion which took place inParliament, when the Fourteenth Report of the Law Commission on JudicialReform (1958) was tabled for discussion, in the Rajya Sabha on 24-25.11.1959. Replying to the debate on 24.11.1959, Govind Ballabh Pant, thethen Union Home Minister's remarks, as stand officially recorded, wereinter alia as under:“Sir, so far as appointments to the Supreme Court go, since 1950 when theConstitution was brought into force, nineteen Judges have been appointedand everyone of them was so appointed on the recommendation of the ChiefJustice of the Supreme Court. I do not know if any other alternative canbe devised for this purpose. The Chief Justice of the Supreme Court is, Ithink, rightly deemed and believed to be familiar with the merits of hisown colleagues and also of the Judges and advocates who hold leadingpositions in different States. So we have followed the advice of the mostcompetent, dependable and eminent person who could guide us in this matter.Similarly, Sir, so far as High Courts are concerned, since 1950, 211appointments have been made and out of these except one, i.e., 210 out of211 were made on the advice, with the consent and concurrence of the ChiefJustice of India. And out of the 211, 196 proposals which were accepted byGovernment had the support of all persons who were connected with thismatter. As Hon. Members are aware, under, I think, article 217, the ChiefJustice of the High Court; the Chief Minister of the State concerned andthe Governor first deal with these matters. Then they come to the HomeMinistry and are referred by the Ministry to the Chief Justice of India andwhatever suggestions or comments he makes are taken into consideration andif necessary, a reference is again made to the Chief Minister and the HighCourt. But as I said, these 196 appointments were made in accordance withthe unanimous advice of the Chief Justice of the High Court, the ChiefMinister of the State, the Governor and the Chief Justice of India…”The remarks made by Ashoke Kumar Sen, the then Union Law Minister on25.11.1959, during the course of the debate pertaining to the LawCommission Report, also need a reference:“.....it is my duty to point out to the honourable House again, as I did inthe Lok Sabha when the Law Commission first sent an interim report – callit an interim report or some report before the final one – pointing outthat Judges have been appointed on extraneous considerations, we gave themthe facts and figures concerning all the appointments made since 1950. Wedrew their pointed attention to the fact that, as the Home Minister pointedout yesterday, except in the case of one Judge out of the 176 odd Judgesappointed since 1950, all were appointed on the advice of the ChiefJustice. With regard to the one there was difference of opinion betweenthe local Chief Justice and the Chief Justice of India and the Governmentaccepted the advice of the local Chief Justice rather than the ChiefJustice of India. But it was not their nominee. We should have expectedthe Law Commission, in all fairness, to have dealt with the communicationfrom the Government giving facts of all the appointments not only of theHigh Courts but of the Supreme Court. I am not saying that they wereobliged to do so, but it is only a fair thing to do, namely, when you bringcertain accusation in a solemn document like the Law Commission's Report,you should deal with all the arguments for and against. We should haveexpected 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 the case with A, this had been the casewith B or C, it would have been easy for us to deal with them. Especiallywhen we had given all the facts concerning the appointment of each andevery Judge since 1950.”82. If one were to draw an inference, from the factual numbers indicatedin the statements of the Home Minister and the Law Minister, and theinferences drawn therefrom, it is more than apparent, that theunderstanding of those in-charge of working the provisions of theConstitution, relating to the appointment of Judges to the higherjudiciary, was that, the 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 to be so understood, in theSamsher Singh case11, wherein this Court through a seven-Judge Bench heldas under:“In the light of the scheme of the Constitution we have already referredto, it is doubtful whether such an interpretation as to the personalsatisfaction of the President is correct. We are of the view that thePresident means, for all practical purposes, the Minister or the Council ofMinisters as the case may be, and his opinion, satisfaction or decision isconstitutionally secured when his Ministers arrive at such opinionsatisfaction or decision. The independence of the Judiciary, which is acardinal principle of the Constitution and has been relied on to justifythe deviation, is guarded by the relevant article making consultation withthe Chief Justice of India obligatory. In all conceivable casesconsultation with that highest dignitary of Indian justice will and shouldbe accepted by the Government of India and the Court will have anopportunity to examine if any other extraneous circumstances have enteredinto the verdict of the Minister, if he departs from the counsel given bythe Chief Justice of India. In practice the last word in such a sensitivesubject must belong to the Chief Justice of India, the rejection of hisadvice being ordinarily regarded as prompted by oblique considerationsvitiating the order. In this view it is immaterial whether the President orthe Prime Minister or the Minister for Justice formally decides the issue.”84. Ever since 1974, when the above judgment was rendered, the abovedeclaration, has held the field, as the above judgment has neither beenreviewed nor set aside. It cannot be overlooked, that the observationsextracted from the Samsher Singh case11, were reaffirmed by another five-Judge Bench, in the Sankalchand Himatlal Sheth case5, as under:“This then, in my judgment, is the true meaning and content of consultationas envisaged by Article 222(1) of the Constitution. After an effectiveconsultation with the Chief Justice of India, it is open to the Presidentto arrive at a proper decision of the question whether a Judge should betransferred to another High Court because, what the Constitution requiresis consultation with the Chief Justice, not his concurrence with theproposed transfer. But it is necessary to reiterate what Bhagwati andKrishna Iyer, JJ., said in Shamsher Singh (supra) that in all conceivablecases, consultation with the Chief Justice of India should be accepted bythe Government of India and that the Court will have an opportunity toexamine if any other extraneous circumstances have entered into the verdictof the executive if it departs from the counsel given by the Chief Justiceof India: "In practice the last word in such a sensitive subject mustbelong to the Chief Justice of India, the rejection of his advice beingordinarily regarded as prompted by oblique considerations vitiating theorder." (page 873). It is hoped that these words will not fall on deaf earsand since normalcy has now been restored, the differences, if any, betweenthe 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., corrected his ownorder through a corrigendum, whereby his order, inter alia, came to berecorded, as under:“Even if the opinion given by all the constitutional functionariesconsulted by it is identical, the Central Government is not bound to act inaccordance with such opinion, though being a unanimous opinion of all threeconstitutional functionaries, it would have great weight and if anappointment is made by the Central Government in defiance of such unanimousopinion, it may prima facie be vulnerable to attack on the ground that itis mala fide or based on irrelevant grounds. The same position wouldobtain if an appointment is made by the Central Government contrary to theunanimous opinion of the Chief Justice of the High Court and the ChiefJustice of India.”From the above extract, it is apparent, that the observations recorded bythis Court in paragraph 149 in the Samsher Singh case11, were endorsed inthe Sankalchand Himatlal Sheth case5, and were also adopted in the FirstJudges case. The position came to be expressed emphatically in the Secondand Third Judges cases, by reading the term “consultation” as vestingprimacy with the judiciary, in the matter of appointments of Judges to thehigher judiciary. This time around, at the hands of two different nine-Judge Benches, which reiterated the position expressed in the Samsher Singhcase11.86. The above sequence reveals, that the executive while giving effect tothe procedure, for appointment of Judges to the higher judiciary (and also,in the matter of transfer of Chief Justices and Judges from one High Court,to another), while acknowledging the participation of the otherconstitutional functionaries (referred to in Articles 124, 217 and 222),adopted a procedure, wherein primacy in the decision making process, wasconsciously entrusted with the judiciary. This position was followed, fromthe very beginning, after the promulgation of the Constitution, by theexecutive, at its own. Insofar as the legislature is concerned, it isapparent, that the issue came up for discussion, in a responsive mannerwhen the Fourteenth Report of the Law Commission on Judicial Reforms(1958), was discussed by the Parliament, as far back as in 1959, just a fewyears after the country came to be governed by the Constitution. It isapparent, that when the two Houses of the Parliament, reflected inter aliaon Articles 124, 217 and 222, in the matter of appointment of Judges to thehigher judiciary, the unanimous feeling which emerged was, that “…theadvice of the most competent dependent and eminent person…” – the ChiefJustice of India, had been followed rightfully. Two aspects of theparliamentary discussion, which were kept in mind when the issue wasdeliberated, need to be highlighted. First, that the President meant (forall practical purposes), the concerned Minister, or the Council ofMinisters headed by the Prime Minister. And second, that the provisions inquestion envisaged only a participatory role, of the other constitutionalauthorities. Therefore, the above affirmation, to the primacy of thejudiciary, 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 judicialdetermination, the issue was examined by a Constitution Bench of theSupreme Court as far back, as in 1974 in the Samsher Singh case11, whereinkeeping in mind the cardinal principle – the “independence of thejudiciary”, it was concluded, that consultation with the highest dignitaryin the judiciary – the Chief Justice of India, in practice meant, that thelast word must belong to the Chief Justice of India i.e., the primacy inthe matter of appointment of Judges to the higher judiciary, must rest withthe judiciary. The above position was maintained in the SankalchandHimatlal Sheth case5 in 1977, by a five-Judge Bench, only to be altered inthe First Judges case, by a seven-Judge Bench in 1981, wherein it was held,that the term “consultation” could not be read as “concurrence”. Theposition expounded even in this case by P.N. Bhagwati, J. (as he then was),extracted above, must necessarily also be kept in mind. The earlierposition was restored in 1993 by a nine-Judge Bench in the Second Judgescase (which overruled the First Judges case). The position was againreaffirmed by a nine-Judge Bench, through the Third Judges case.Historically, therefore, all the three wings of governance, haveuniformally maintained, that while making appointments of Judges to thehigher judiciary, “independence of the judiciary” was accepted as anintegral component of the spirit of the Constitution, and thereby, the term“consultation” used in the provisions under consideration, had to beunderstood as vesting primacy with the judiciary, with reference to thesubjects contemplated under Articles 124, 217 and 222. In view of theabove historical exposition, there is really no legitimate reason for therespondents to seek a review of the judgments in the Second and ThirdJudges cases. V.87. Whilst dwelling on the subject of the intention expressed by theMembers of the Constituent Assembly, it is considered just and expedient,also to take into consideration the views expressed in respect of theadoption of “separation of powers” in the Constitution. When the draftprepared by the Constituent Assembly came up for debate, Dr. B.R. Ambedkarproposed an amendment of Article 39A. It would be relevant to mention,that the aforesaid amendment, on being adopted, was incorporated as Article50 in the Constitution (as originally enacted). It is also necessary tonotice, that the Government had already commenced to function, withJawaharlal Nehru as the Prime Minister, when the draft of the Constitutionwas being debated before the Constituent Assembly. His participation inthe debates of the Constituent Assembly, therefore, was not only in hiscapacity as a Member of the Constituent Assembly, but also, as arepresentative of the Government of India. It is necessary to extracthereunder, the views expressed by Jawaharlal Nehru, Bakshi Tek Chand andLoknath Misra, in the above debates, relating to “separation of powers”.Relevant extracts are being reproduced hereunder:“The Honourable Pandit Jawaharlal Nehru (United Provinces: General):…..Coming to this particular matter, the honourable speaker, Pandit Kunzru,who has just spoken and opposed the amendment of Dr. Ambedkar seems to me;if I may say so with all respect to him, to have gone off the trackcompletely, and to suspect a sinister motive on the part of Governmentabout this business. Government as such is not concerned with thisbusiness, but it is true that some members of Government do feel ratherstrongly about it and would like this House fully to consider theparticular 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 isentirely in favour of the separation of 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 areactually taking steps to that end now. If anyone asked me, if anyonesuggested the period of three years or some other period, my first reactionwould have been that this period is too long. Why should we wait so longfor this? It might be brought about, if not all over India, in a large partof India, much sooner than that. At the same time, it is obvious that Indiaat the present moment, specially during the transitional period, is a verymixed country politically, judicially, economically and in many ways, andany fixed rule of thumb to be applied to every area may be disadvantageousand difficult in regard to certain areas. On the one hand, that rule willreally prevent progress in one area, and on the other hand, it may upsetthe apple-cart in some other area. Therefore, a certain flexibility isdesirable. Generally speaking, I would have said that in any such directiveof policy, it may not be legal, but any directive of policy in aConstitution must have a powerful effect. In any such directive, thereshould not be any detail or time-limit etc. It is a directive of what theState wants, and your putting in any kind of time-limit therefore ratherlowers it from that high status of a State policy and brings it down to thelevel of a legislative measure, which it is not in that sense. I would havepreferred no time-limit to be there, but speaking more practically, anytime-limit in this, as Dr. Ambedkar pointed out, is apt on the one hand todelay this very process in large parts of the country, probably the greaterpart of the country; on the other hand, in some parts where practicallyspeaking it may be very difficult to bring about, it may produce enormousconfusion. I think, therefore, that Dr. Ambedkar's amendment, far fromlessening the significance or the importance of this highly desirablechange that we wish to bring about, places it on a high level before thecountry. And I do not see myself how any Provincial or other Government canforget this Directive or delay it much. After all, whatever is going to bedone in the future will largely depend upon the sentiment of the people andthe future Assemblies and Parliaments that will meet. But so far as thisConstitution is concerned, it gives a strong opinion in favour of thischange and it gives it in a way so as to make it possible to bring it aboutin areas where it can be brought about - the provinces, etc. - and in caseof difficulty in any particular State, etc., it does not bind them down. Isubmit, therefore, that this amendment of Dr. Ambedkar should be accepted.(Cheers).”“Dr. Bakshi Tek Chand (East Punjab: General): Mr. Vice-President, Sir, Irise to lend my whole hearted support to the amendment which has been movedby Dr. Ambedkar today. The question of the separation of executive andjudicial functions is not only as old as the Congress itself, but indeed itis much older. It was in the year 1852 when public opinion in Bengal beganto express itself in an organised form that the matter was first mooted.That was more than thirty years before the Congress came into existence.After the Mutiny, the movement gained momentum and in the early seventies,in Bengal, under the leadership of Kisto Das Pal and Ram Gopal Ghosh, whowere the leaders of public opinion in those days, definite proposals withregard to the separation of judicial and executive functions were putforward. Subsequently, the late Man Mohan Ghosh took up this matter and heand Babu Surendranath Bannerji year in and year out raised this question inall public meetings.When the Congress first met in the session in Bombay in 1885, this reformin the administration was put in the forefront of its programme. Later on,not only politicians of all schools of thought, but even retired officerswho had actually spent their lives in the administration, took up thematter and lent their support to it. I very well remember the LucknowCongress of 1899 when Romesh Chunder Dutt, who had just retired from theIndian Civil Service, presided. He devoted a large part of his presidentialaddress to this subject and created a good deal of enthusiasm for it. Notonly that: even retired High Court Judges and Englishmen like Sir ArthurHobhouse and Sir Arthur Wilson, both of whom subsequently became members ofthe Judicial Committee of the Privy Council, lent their support to this andthey jointly with many eminent Indians submitted a representation to theSecretary of State for India to give 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 manyyears the President of the Central Legislature, appended a long Minute ofDissent and therein he devoted several pages to this question.Therefore, Sir, the matter has been before the country for nearly a centuryand it is time that it is given effect to immediately. One of theHonourable Members who spoke yesterday, observed that this matter was ofgreat importance when we had a foreign Government but now the position haschanged, and it may not be necessary to give effect to it. Well, aneffective reply to this has been given by the Honourable the Prime Ministertoday. He has expressly stated that it is the policy of the Government, andit is their intention to see that this reform is given immediate effect to. xxxx xxxx xxxxI am glad to hear that he confirms it. This gives the quietus to these twoobjections which have been raised, that because of the changedcircumstances, because we have attained freedom, it is no longer necessaryand that the financial burden will be so heavy that it might crushprovincial Governments. Both these objections are hollow.One word more I have to say in this connection and that is, that with theadvent of democracy and freedom, the necessity of this reform has becomeall the greater. Formerly it was only the district magistrate and a fewmembers of the bureaucratic Government from whom interference with thejudiciary was apprehended, but now, I am very sorry to say that even theMinisters in some provinces and members of political parties have begun tointerfere with the free administration of justice. Those of you, who may bereading news paper reports of judicial decisions lately, must have beenstruck with this type of interference which has been under review in thevarious High Courts lately. In one province we found that in a case pendingin a Criminal Court, the Ministry sent for the record and passed an orderdirecting the trying Magistrate to stay proceedings in the case. This wassomething absolutely unheard of. The matter eventually went up to the HighCourt and the learned Chief Justice and another Judge had to pass verystrong remarks against such executive interference with the administrationof justice.In another province a case was being tried against a member of theLegislative Assembly and a directive went from the District Magistrate tothe Magistrate trying the case not to proceed with it further and torelease the man. The Magistrate who was a member of the Judicial Serviceand 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 wentup to the High Court and the Chief Justice of the Calcutta High Court madevery strong remarks about this matter.Again in the Punjab, a case has recently occurred in which a Judge of theHigh Court, Mr. Justice Achu Ram, heard a habeas corpus petition anddelivered a judgment of 164 pages at the conclusion of which he observedthat the action taken by the District Magistrate and the Superintendent ofPolice against a member of the Congress Party was mala fide and was theresult of a personal vendetta. These were his remarks.In these circumstances, I submit that with the change of circumstances andwith the advent of freedom and the introduction of democracy, it has becomeall the more necessary to bring about the separation of the judiciary fromthe executive at the earliest possible opportunity.”88. A perusal of the statements made before the Constituent Assembly,which resulted in the adoption of Article 50 of the Constitution reveals,that the first Prime Minister of this country, was entirely in favour ofthe separation of judicial and executive “functions”. On the subject ofseparation, it was pointed out, that it was a directive which theGovernment itself wanted. The statement of Dr. Bakshi Tek Chand in theConstituent Assembly projects the position, that the idea of separating thejudiciary from the executive was mooted for the first time as far back asin 1852, and that thereafter, the political leadership and also publicopinion, were directed towards ensuring separation of judicial andexecutive functioning. He pointed out, that “year in and year out”, thelate Man Mohan Ghosh and Bapu Surendranath Banerji had raised the instantquestion, in all public meetings. And when the Congress first met in Bombayin 1885, the matter of separating the judiciary from the executive, wasplaced above all other issues under consideration. Thereafter, not onlythe politicians of all schools of thought, but even retired officers, whohad actually spent their lives in administration, had supported the issueof “separation of powers”. He also highlighted, that in 1899, RomeshChunder Dutt had devoted a large part of his presidential address to theissue. And that, retired High Court Judges and Englishmen like Sir ArthurHobhouse and Sir Arthur Wilson (both of whom, subsequently became Membersof the Judicial Committee of the Privy Council), also supported the abovereform. The debate, it was pointed out, had been on going, to accept theprinciple of “separation of powers”, whereby, the judiciary would be keptapart from the executive. He also pointed to instances, indicatinginterference by Ministers and members of the administration, whichnecessitated a complete separation of powers between the judiciary and theexecutive. Loknath Misra fully supported the above amendment, as a matterof principle. It is, therefore, imperative to conclude that the framers ofthe Constitution while drafting Article 50 of the Constitution, were clearand unanimous in their view, that there need to be a judiciary, separatedfrom the influences of the executive.89. Based on the consideration recorded in the immediately precedingparagraphs also, it seems to us, that the necessity of making a detailedreference to the Constituent Assembly debates in the Second Judges case,may well have been regarded, as of no serious consequence, whether it wason the subject of appointment of Judges to the higher judiciary, as acomponent 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 theprinciple of “separation of powers” was expressly ingrained in theConstitution, which removes the executive from any role in the judiciary,the right of the executive to have the final word in the appointment ofJudges to the higher judiciary, was clearly ruled out. And therefore, thisCourt on a harmonious construction of the provisions of the Constitution,in the Second and Third Judges cases, rightfully held, that primacy in theabove matter, vested with the judiciary, leading to the inference, that theterm “consultation” in the provisions under reference, should be understoodas giving primacy to the view expressed by the judiciary, through the ChiefJustice of India. VI.90. It is imperative to deal with another important submission advancedby the learned Attorney General, namely, that the issue of “independence ofthe judiciary” has nothing to do with the process of “appointment” ofJudges to the higher judiciary. It was submitted, that the question ofindependence of a Judge arises, only after a Judge has been appointed (tothe higher judiciary), for it is only then, that he is to be shielded fromthe executive/political pressures and influences. It was sought to beelaborated, that Judges of the higher judiciary, immediately after theirappointment were so well shielded, that there could be no occasion of the“independence of the judiciary” being compromised, in any manner, either atthe hands of the executive, or of the legislature.91. Whilst advancing the instant contention, it was the pointed assertionof the learned Attorney General, that neither of the judgments rendered inthe Second and Third Judges cases had held, that the “selection andappointment” of Judges, to the higher judiciary, would fall within thepurview of “independence of the judiciary”. It was therefore hiscontention, that it was wrongful to assume, on the basis of the above twojudgments, that the question of “appointment” of Judges to the higherjudiciary would constitute a component of the “basic structure” of theConstitution. It was the contention of the learned Attorney General, thatthe Parliament, in its wisdom, had now amended the Constitution, admittedlyaltering the process of “selection and appointment” of Judges to the higherjudiciary (including their transfer). It was further contended, that theprocess contemplated through the Constitution (99th Amendment) Act, coupledwith the NJAC Act, was such, that it cannot be considered to haveinterfered with, or impinged upon, the “independence of the judiciary”, andthus viewed, it would not be rightful to conclude, that the impugnedconstitutional amendment, as also the NJAC Act, were per se violative ofthe “basic structure”.92. We may preface our consideration by noticing, that every two yearssince 1985, a conference of Supreme Court Chief Justices from the AsiaPacific region, has been held by the Judicial Section of the LawAssociation for Asia and the Pacific. Since its inception, the conferencehas served as a useful forum for sharing information and discussing issuesof mutual concern among Chief Justices of the region. At its 6thConference held in Beijing in 1997, 20 Chief Justices adopted a jointStatement of Principles of the “Independence of the Judiciary”. Thisstatement was further refined during the 7th Conference of Chief Justicesheld in Manila, wherein it was signed by 32 Chief Justices from the AsiaPacific region. The Beijing Statement of Principles of the “Independence ofthe Judiciary” separately deals with appointment of Judges. The positionexpressed in the above statement with reference to “appointment” of Judgesis extracted hereunder:“Appointment of Judges11. To enable the judiciary to achieve its objectives and perform itsfunctions, it is essential that judges be chosen on the basis of provencompetence, integrity and independence.12.The mode of appointment of judges must be such as will ensure theappointment of persons who are best qualified for judicial office. It mustprovide safeguards against improper influences being taken into account sothat only persons of competence, integrity and independence are appointed.13. In the selection of judges there must no discrimination against aperson on the basis of race, colour, gender, religion, political or otheropinion, national or social origin, marital status, sexual orientation,property, birth or status, expect that a requirement that a candidate forjudicial office must be a national of the country concerned shall not beconsidered discriminatory.14. The structure of the legal profession, and the sources from whichjudges are drawn within the legal profession, differ in differentsocieties. In some societies, the judiciary is a career service; in others,judges are chosen from the practising profession. Therefore, it is acceptedthat in different societies, difference procedures and safeguards may beadopted to ensure the proper appointment of judges.15. In some societies, the appointment of judges, by, with the consent of,or after consultation with a Judicial Services Commission has been seen asa means of ensuring that those chosen judges are appropriate for thepurpose. Where a Judicial Services Commission is adopted, it should includerepresentatives the higher Judiciary and the independent legal professionas a means of ensuring that judicial competence, integrity and independenceare maintained.16. In the absence of a Judicial Services Commission, the procedures forappointment of judges should be clearly defined and formalised andinformation about them should be available to the public.17. Promotion of judges must be based on an objective assessment of factorssuch as competence, integrity, independence and experience.”Therefore to contend, that the subject of “appointment” is irrelevant tothe question of the “independence of the judiciary”, must be considered asa misunderstanding of a well recognized position.93. Whilst dealing with the instant contention, we will also examine ifthis Court in the Second and Third Judges cases, had actually dealt withthe issue, whether “appointment” of Judges to the higher judiciary, was(or, was not) an essential component of the principle of “independence ofthe judiciary”? 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 as under:“47. The above arguments, that the independence of judiciary issatisfactorily secured by the constitutional safeguard of the office that ajudge holds and guarantees of the service conditions alone and not beyondthat, are in our considered opinion, untenable. In fact we are unable evento conceive such an argument for the reason to be presently stated.”In addition to the above extract, it is necessary to refer to the followingobservations of Kuldip Singh, J.:“335. Then the question which comes up for consideration is, can there bean independent judiciary when the power of appointment of judges vests inthe executive? To say yes, would be illogical....”From the above it is clear, that the issue canvassed by the learnedAttorney General, was finally answered by the nine-Judge Bench, whichdisposed of the Second Judges case by holding, that if the power of“appointment” of Judges, was left to the executive, the same would breachthe principle of the “independence of the judiciary”. And also conversely,that providing safeguards after the appointment of a Judge to the higherjudiciary, would not be sufficient to secure “independence of thejudiciary”. In the above view of the matter, it is necessary to conclude,that the “manner of selection and appointment” of Judges to the higherjudiciary, is an integral component of “independence of the judiciary”. Thecontentions advanced on behalf of the Union of India, indicating theparticipation of the President and the Parliament, in the affairs of thejudiciary, would have no bearing on the controversy in hand, whichprimarily relates to the issue of “appointment” of Judges to the higherjudiciary. And, extends to transfer of Chief Justices and Judges from oneHigh Court, to another. The fact that there were sufficient safeguards, tosecure the independence of Judges of the higher judiciary after their“appointment”, and therefore, there was no need to postulate, that in thematter of “appointment” also, primacy need not be in the hands of thejudiciary, is also not acceptable. It is quite another matter, whether themanner of selection and appointment of Judges, introduced through theConstitution (99th Amendment) Act coupled with the NJAC Act, can indeed beconsidered to be violative of “independence of the judiciary”. This aspect,shall be examined and determined independently, while examining the meritsof the challenge raised by the petitioners. VII.94. A perusal of the provisions of the Constitution reveals, that inaddition to the appointment of the Chief Justice of India and Judges of theSupreme Court, under Article 124, the President has also been vested withthe authority to appoint Judges and Chief Justices of High Courts underArticle 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 withreference to Judges of the High Court, the language engaged in Article 217was, that the President would appoint Judges of High Courts “afterconsultation with the Chief Justice of India” (per sub-Article (1) ofArticle 217).95. To understand the term “consultation” engaged in Articles 124 and217, it is essential to contrast the above two provisions, with otherArticles of the Constitution, whereunder also, the President is mandated toappoint different constitutional authorities. Reference in this behalf maybe made to the appointment of the Comptroller and Auditor-General of India,under Article 148. The said provision vests the authority of the aboveappointment with the President, without any consultative process. Theposition is exactly similar with reference to appointment of Governors ofStates, under Article 155. The said provision also contemplatesappointments, without any consultative process. The President is alsovested with the authority, to appoint the Chairman and four Members of theFinance Commission, under Article 280. Herein also, the power isexclusively vested with the President, without any consultative process.The power of appointment of Chairman and other Members of the Union PublicService Commission, is also vested with the President under Article 316.The aforesaid appointment also does not contemplate any deliberation, withany other authority. Under Article 324, the power of appointment of ChiefElection Commissioner and Election Commissioners is vested with thePresident exclusively. Likewise, is the case of appointment of Chairperson,Vice-Chairperson and Members of the National Commission for ScheduledCastes under Article 338, and Chairperson, Vice-Chairperson and otherMembers of the National Commission for Scheduled Tribes under Article 338A. Under the above stated provisions, the President has the exclusiveauthority to make appointments, without any deliberation with any otherauthority. Under Article 344, the President is also vested with theauthority to appoint Chairman and other Members to the Commission ofParliament on Official Languages. The instant provision also does notprovide for any consultative process before such appointment. The sameposition emerges from Article 350B, whereunder the President is to appointa Special Officer for Linguistic Minorities. Herein too, there is nocontemplation of any prior consultation.96. It is apparent that the Council of Ministers, with the Prime Ministeras its head, is to “aid and advise” the President in the exercise of hisfunctions. This position is not disputed by the learned counselrepresenting the respondents. Interpreted in the above manner, according tothe learned Attorney General, in exercising his responsibilities underArticles 124, 217, 148, 155, 280, 316, 324, 338, 338A, 344 and 350B, thePresident is only a figurative authority, whereas truthfully, the authorityactually vests in the Council of Ministers headed by the Prime Minister.And as such, for all intents and purposes, the authority vested in thePresident for appointing different constitutional authorities, truly meansthat the power of such appointment is vested in the executive.97. If one were to understand the words, as they were expressed inArticle 74, in our considered view, it would be difficult to conclude, that“aid and advice” can be treated synonymous with a binding “direction”, anirrevocable “command” or a conclusive “mandate”. Surely, the term “aid andadvice” cannot individually be construed as an imperative dictate, whichhad to be obeyed under all circumstances. In common parlance, a process of“consultation” is really the process of “aid and advice”. The onlydistinction being, that “consultation” is obtained, whereas “aid andadvice” may be tendered. On a plain readingtherefore, neither of the two(“aid and advice” and “consultation”) can be understood to convey, thatthey can be of a binding nature. We are of the view, that the aboveexpressions were used, keeping in mind the exalted position which thePresident occupies (as the first citizen, of the country). As the firstcitizen, it would have been discourteous to provide, that he was todischarge his functions in consonance with the directions, command, ormandate of the executive. Since, both the expressions (“aid and advice” and“consultation”), deserve the same interpretation, if any one of them isconsidered to be mandatory and binding, the same import with reference tothe other must follow. Through the Constitution (Forty-second Amendment)Act, 1976, Article 74 came to be amended, and with the insertion of thewords “shall … act in accordance with such advice”, the President came tobe bound, to exercise his functions, in consonance with the “aid andadvice” tendered to him, by the Council of Ministers headed by the PrimeMinister. The instant amendment, in our view, has to be considered asclarificatory in character, merely reiterating the manner in which theoriginal provision ought to have been understood.98. If “aid and advice” can be binding and mandatory, surely also, theterm “consultation”, referred to in Articles 124 and 217, could lead to thesame exposition. The President of India, being the first citizen of thecountry, is entitled to respectability. Articles 124 and 217, wereundoubtedly couched in polite language, as a matter of constitutionalcourtesy, extended to the first citizen of the country. It is important tonotice, that the first proviso under Article 124(2) clearly mandates, thatthe Chief Justice of India “shall always” be consulted. It was a reverseobligation, distinguishable from Article 74. Herein, the President wasobliged to consult the Chief Justice of India, in all matters ofappointment of Judges to the Supreme Court. The process of “consultation”contemplated therein, has to be meaningfully understood. If it was not tobe so, the above provision could have been similarly worded as thoserelating to the appointment of the Comptroller and Auditor-General ofIndia, Governors of States, Chairman and Members of the Finance Commission,Chairman and Members of the Union Public Service Commission, Chief ElectionCommissioner and Election Commissioners, Chairperson and Vice Chairpersonand Members of the National Commission for Scheduled Castes, as also, thoseof the National Commission for Scheduled Tribes. This contrast betweenArticles 124 and 217 on the one hand, and the absence of any“consultation”, with reference to the appointments contemplated underArticles 148, 155, 280, 316, 324, 338, 338A, 344 and 350B, leaves no roomfor any doubt, that the above “consultation” was not a simplicitor“consultation”. And since, the highest functionary in the judicialhierarchy was obliged to be consulted, a similar respectability needed tobe bestowed on him. What would be the worth of the mandatory“consultation”, with the Chief Justice of India, if his advice could berejected, without any justification? It was therefore, concluded by thisCourt, that in all conceivable cases, consultation with the highestdignitary in the judiciary – the Chief Justice of India, will and should beaccepted. And, in case it was not so acceptd, it would be permissible toexamine whether such non acceptance was prompted by any obliqueconsideration. Rightfully therefore, the term “consultation” used inArticles 124 and 217, as they were originally enacted meant, that primacyhad to be given to the opinion tendered by the Chief Justice of India, onthe issues for which the President was obliged to seek such “consultation”.The submission advanced on behalf of the respondents, cannot be accepted,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 350B,wherein the term “consultation” had not been used. Such an interpretation,would be clearly unacceptable. Since the manner of appointment of Judges tothe higher judiciary, is in contrast with that of the constitutionalauthorities referred to by the learned Attorney General, the submissionadvanced on behalf of the respondents with reference to the otherconstitutional authorities cannot have a bearing on the presentcontroversy.99. We would unhesitatingly accept and acknowledge the submission made bythe learned Attorney General, as has been noticed hereinabove, but onlylimited to situations of appointment contemplated under various Articles ofthe Constitution, where the power of appointment is exclusively vested withthe President. As such, there is no room for any doubt that the provisionsof the Constitution, with reference to the appointment of Judges to thehigher judiciary, contemplated that the “aid and advice” (– the“consultation”) tendered by the Chief Justice of India, was entitled toprimacy, on matters regulated under Articles 124 and 217 (as also, underArticle 222). VIII.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 higherjudiciary) has also been adopted in Article 233 on the subject ofappointment of District Judges. Under Article 233, the power of appointmentis vested with the Governor of the concerned State, who is empowered tomake appointments (including promotions) of District Judges. This Court,through a five-Judge Bench, in Registrar (Admn.), High Court of Orissa,Cuttack v. Sisir Kanta Satapathy[32], has held, that recommendations madeby the High Court in the consultative process envisaged under Article 233,is binding on the Governor. In the face of the aforestated bindingprecedent, on a controversy, which is startlingly similar to the one inhand, and has never been questioned, it is quite ununderstandable how theUnion of India, desires to persuade this Court, to now examine the term“consultation” differently with reference to Articles 124 and 217, withoutassailing the meaning given to the aforesaid term, with reference to amatter also governing the judiciary.VI. CONCLUSION:101. Based on the conclusions drawn hereinabove, while considering thesubmissions advanced by the learned counsel for the rival parties, as havebeen recorded in “V – The Consideration”, we are of the view, that theprayer made at the hands of the learned counsel for the respondents, forrevisiting or reviewing the judgments rendered by this Court, in the Secondand Third Judges cases, cannot be acceded to. The prayer is, accordingly,hereby declined. …………………………….J. (Jagdish Singh Khehar)New Delhi;October 16, 2015. THE ORDER ON MERITSI. PREFACE:1. It is essential to begin the instant order by a foreword, in thenature of an explanation. For, it would reduce the bulk of the instantorder, and obviate the necessity to deal with issues which have beenconsidered and dealt with, while hearing the present set of cases.2. The question which arises for consideration in the present set ofcases 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 AppointmentsCommission Act, 2014 (hereinafter referred to as, the NJAC Act). The coreissue that arises for consideration, relates to the validity of the processof selection and appointment of Judges to the higher judiciary (i.e., ChiefJustices and Judges of the High Courts and the Supreme Court), and transferof Chief Justices and Judges of one High Court, to another.3. This is the third order in the series of orders passed by us, whileadjudicating upon the present controversy. The first order, dealt with theprayer made at the Bar, for the “recusal” of one of us (J.S. Khehar, J.)from hearing the present set of cases. As and when a reference is made tothe above first order, it would be adverted to as the “Recusal Order”. Thesecond order, considered the prayer made by the learned Attorney Generaland some learned counsel representing the respondents, seeking a“reference” of the present controversy, to a nine-Judge Bench (or even, toa further larger Bench) for re-examining the judgment rendered in SupremeCourt Advocates-on-Record Association v. Union of India2 (hereinafterreferred to as, the Second Judges case), and the advisory opinion in Re:Special Reference No.1 of 19983 (hereinafter referred to, as the ThirdJudges case), for the alleged object of restoring and re-establishing, thedeclaration of the legal position, expounded by this Court in S.P. Gupta v.Union of India1 (hereinafter referred to as, the First Judges case). Asand when a reference is made to the above second order, it would bementioned as the “Reference Order”.4. We would, therefore, not examine the issues dealt with in the RecusalOrder and/or in the Reference Order, even though they may arise forconsideration yet again, in the process of disposal of the presentcontroversy on merits. As and when a reference is made to the instantthird order, examining the “merits” of the controversy, it would beadverted to as the “Order on Merits”.II. PETITIONERS’ CONTENTIONS, ON MERITS:5. On the subject of amending the Constitution based on the procedureprovided for in Article 368, it was submitted by Mr. Fali S. Nariman,Senior Advocate, that the power of amendment of the Constitution is not aplenary power. It was pointed out, that the above power was limited,inasmuch as, the power of amendment did not include the power of amendingthe “core” or the “basic structure” of the Constitution. In this behalf,learned counsel placed reliance on Minerva Mills Ltd. v. Union ofIndia[33], wherein majority view was expressed through Y.V. Chandrachud,CJ., as under:“17. Since the Constitution had conferred a limited amending power on theParliament, the Parliament cannot under the exercise of that limited powerenlarge that very power into an absolute power. Indeed, a limited amendingpower is one of the basic features of our Constitution and therefore, thelimitations on that power cannot be destroyed. In other words, Parliamentcannot, under Article 368, expand its amending power so as to acquire foritself the right to repeal or abrogate the Constitution or to destroy itsbasic and essential features. The donee of a limited power cannot by theexercise of that power convert the limited power into an unlimited one.”In the above judgment, the minority view was recorded 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 thewords "for the removal of doubts" and proceeds to declare that there shallbe no limitation whatever on the amending power of Parliament under Article368. It is difficult to appreciate the meaning of the opening words "forthe removal of doubts" because the majority decision in Kesavananda Bharaticase : AIR 1973 SC 1461 clearly laid down and left no doubt that the basicstructure of the Constitution was outside the competence of the amendatorypower of Parliament and in Indira Gandhi case : [1976] 2 SCR 341, all thejudges unanimously accepted theory of the basic structure as a theory bywhich the validity of the amendment impugned before them, namely,Article 329-A(4) was to be judged. Therefore, after the decisions inKesavananda Bharati case and Indira Gandhi case, there was no doubt at allthat the amendatory power of Parliament was limited and it was notcompetent to Parliament to alter the basic structure of the Constitutionand clause (5) could not remove the doubt which did not exist. What clause(5), really sought to do was to remove the limitation on the amending powerof Parliament and convert it from a limited power into an unlimited one.This was clearly and indubitably a futile exercise on the part ofParliament. I fail to see how Parliament which has only a limited power ofamendment and which cannot alter the basic structure of the Constitutioncan expand its power of amendment so as to confer upon itself the power ofrepeal or abrogate the Constitution or to damage or destroy its basicstructure. That would clearly be in excess of the limited amending powerpossessed by Parliament. The Constitution has conferred only a limitedamending power on Parliament so that it cannot damage or destroy the basicstructure of the Constitution and Parliament cannot by exercise of thatlimited amending power convert that very power into an absolute andunlimited power. If it were permissible to Parliament to enlarge thelimited amending power conferred upon it into an absolute power ofamendment, then it was meaningless to place a limitation on the originalpower of amendment. It is difficult to appreciate how Parliament having alimited power of amendment can get rid of the limitation by exercising thatvery power and convert it into an absolute power. Clause (5) ofArticle 368 which sought to remove the limitation on the amending power ofParliament by making it absolute must therefore be held to be outside theamending power of Parliament. There is also another ground on which thevalidity of this clause can be successfully assailed. This clause seeks toconvert a controlled Constitution into an uncontrolled one by removing thelimitation on the amending power of Parliament which, as pointed out above,is itself an essential feature of the Constitution and it is thereforeviolative of the basic structure. I would in the circumstances hold clause(5) of Article 368, to be unconstitutional and void.”With reference to the same proposition, learned counsel placed reliance onKihoto Hollohan v. Zachillhu[34]. It was submitted, that the acceptance ofthe principle of “basic structure” of the Constitution, resulted inlimiting the amending power postulated in Article 368.6. 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 theConstitution. In the above view of the matter, provisions relating toappointment of Judges to the higher judiciary, would have to be such, thatthe above principles would remain unscathed and intact. It was submitted,that any action which would have the result of making appointment of theJudges to the Supreme Court, and to the High Courts, subservient to anagency other than the judiciary itself, namely, by allowing the executiveor the legislature to participate in their selection and appointment, wouldrender the judiciary subservient to such authority, and thereby, impinge onthe “independence of the judiciary”.7. Learned counsel invited the Court’s attention to the 1st LawCommission Report on “Reform of Judicial Administration” (14th Report ofthe Law Commission of India, chaired by M.C. Setalvad), wherein it wasdebated, that by enacting Articles 124 and 217, the framers of theConstitution had endeavoured to put the Judges of the Supreme Court “aboveexecutive control”. Paragraph 4 of the said Report is being extractedhereunder:“(Appointment and removal of Judges)4. Realizing the importance of safeguarding the independence of thejudiciary, the Constitution has provided that a Judge of the Supreme Courtshall be appointed by the President in consultation with the Chief Justiceof India and after consultation with such of the other Judges of theSupreme Court and the High Courts as he may deem necessary. He holdsoffice till he attains the age of 65 years and is irremovable except on thepresentation of an address by each House of Parliament passed by aspecified majority on the ground of proved misbehaviour or incapacity.Thus has the Constitution endeavoured to put Judges of the Supreme Courtabove executive control.”8. It was submitted, that “independence of the judiciary” had been heldto mean and include, insulation of the higher judiciary from executive andlegislative control. In this behalf, reference was made to Union of Indiav. Sankalchand Himatlal Sheth5, wherein this Court had observed:“50. Now the independence of the judiciary is a fighting faith of ourConstitution. Fearless justice is a cardinal creed of our foundingdocument. It is indeed a part of our ancient tradition which has producedgreat Judges in the past. In England too, from where we have inherited ourpresent system of administration of justice in its broad and essentialfeatures, judicial independence is prized as a basic value and so natural[pic]and inevitable it has come to be regarded and so ingrained it hasbecome in the life and thought of the people that it is now almost takenfor granted and it would be regarded an act of insanity for any one tothink otherwise. But this has been accomplished after a long fightculminating in the Act of Settlement, 1688. Prior to the enactment of thatAct, a Judge in England held tenure at the pleasure of the Crown and theSovereign could dismiss a Judge at his discretion, if the Judge did notdeliver judgments to his liking. No less illustrious a Judge than Lord Cokewas dismissed by Charles I for his glorious and courageous refusal to obeythe King’s writ de non procedendo rege inconsulto commanding him to step orto delay proceedings in his Court. The Act of Settlement, 1688 put it outof the power of the Sovereign to dismiss a Judge at pleasure bysubstituting ‘tenure during good behaviour’ for ‘tenure at pleasure’. TheJudge could then say, as did Lord Bowen so eloquently:These are not days in which any English Judge will fail to assert his rightto rise in the proud consciousness that justice is administered in therealms of Her Majesty the Queen, immaculate, unspotted, and unsuspected.There is no human being whose smile or frown, there is no Government, Toryor Liberal, whose favour or disfavour can start the pulse of an EnglishJudge upon the Bench, or move by one hair’s breadth the even equipoise ofthe scales of justice.The framers of our Constitution were aware of these constitutionaldevelopments in England and they were conscious of our great tradition ofjudicial independence and impartiality and they realised that the need forsecuring the independence of the judiciary was even greater under ourConstitution than it was in England, because ours is a federal or quasi-federal Constitution which confers fundamental rights, enacts otherconstitutional limitations and arms the Supreme Court and the High Courtswith the power of judicial review and consequently the Union of India andthe States would become the largest single litigants before the SupremeCourt and the High Courts. Justice, as pointed out by this Court inShamsher Singh v. State of Punjab, (1974) 2 SCC 831, can become “fearlessand free only if institutional immunity and autonomy are guaranteed”. TheConstitution-makers, therefore, enacted several provisions designed tosecure the independence of the superior judiciary by insulating it fromexecutive or legislative control. I shall briefly refer to these provisionsto show how great was the anxiety of the constitution-makers to ensure theindependence of the superior judiciary and with what meticulous care theymade provisions to that end.”In continuation of the instant submission, learned counsel placed relianceon the Second Judges case, and drew our attention to the followingobservations recorded by S. Ratnavel Pandian, J.:“54. Having regard to the importance of this concept the Framers of ourConstitution having before them the views of the Federal Court and of theHigh Court have said in a memorandum:“We have assumed that it is recognised on all hands that the independenceand integrity of the judiciary in a democratic system of [pic]government isof the highest importance and interest not only to the judges but to thecitizens at large who may have to seek redress in the last resort in courtsof law against any illegal acts or the high-handed exercise of power by theexecutive … in making the following proposals and suggestions, theparamount importance of securing the fearless functioning of an independentand efficient judiciary has been steadily kept in view. (vide B. Shiva Rao:The Framing of India’s Constitution, Volume I-B, p. 196)55. In this context, we may make it clear by borrowing the inimitable wordsof Justice Krishna Iyer, “Independence of the judiciary is not genuflexion,nor is it opposition of Government”. Vide Mainstream – November 22, 1980and at one point of time Justice Krishna Iyer characterised this concept asa “Constitutional Religion”.56. Indisputably, this concept of independence of judiciary which isinextricably linked and connected with the constitutional process relatedto the functioning of judiciary is a “fixed-star” in our constitutionalconsultation and its voice centres around the philosophy of theConstitution. The basic postulate of this concept is to have a moreeffective judicial system with its full vigour and vitality so as to secureand strengthen the imperative confidence of the people in theadministration of justice. It is only with the object of successfullyachieving this principle and salvaging much of the problems concerning thepresent judicial system, it is inter alia, contended that in the matter ofappointment of Judges to the High Courts and Supreme Court ‘primacy’ to theopinion of the CJI which is only a facet of this concept, should beaccorded so that the independence of judiciary is firmly secured andprotected and the hyperbolic executive intrusion to impose its own selecteeon the superior judiciary is effectively controlled and curbed.”And from the same judgment, reference was made to the followingobservations of Kuldip Singh, J.:“335. Then the question which comes up for consideration is, can there bean independent judiciary when the power of appointment of judges vests inthe executive? To say yes, would be illogical. The independence ofjudiciary is inextricably linked and connected with the constitutionalprocess of appointment of judges of the higher judiciary. ‘Independence ofJudiciary’ is the basic feature of our Constitution and if it means what wehave discussed above, then the Framers of the Constitution could have neverintended to give this power to the executive. Even otherwise theGovernments - Central or the State - are parties before the Courts in largenumber of cases. The Union Executive have vital interests in variousimportant matters which come for adjudication before the Apex Court. Theexecutive – in one form or the other - is the largest single litigantbefore the courts. In this view of the matter the judiciary being themediator - between the people and the executive - the Framers of theConstitution could not have left the final authority to appoint the Judgesof 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 onthe assumption that the independence of judiciary is the basic feature ofthe 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.”Based on the above conclusions, it was submitted, that “independence of thejudiciary” could be maintained, only if appointments of Judges to thehigher judiciary, were made by according primacy to the opinion of theChief Justice, based on the decision of a collegium of Judges. Only then,the executive and legislative intrusion, could be effectively controlledand curbed.9. Learned counsel, then ventured to make a reference to the frequentlyquoted speech of Dr. B.R. Ambedkar (in the Constituent Assembly on24.5.1949). It was submitted, that the above speech was duly considered inthe Second Judges case, wherein this Court concluded as under:“389. Having held that the primacy in the matter of appointment of Judgesto the superior courts vests with the judiciary, the crucial question whicharises for consideration is whether the Chief Justice of India, under theConstitution, acts as a “persona designata” or as the leader - spokesmanfor the judiciary.390. The constitutional scheme does not give primacy to 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 Article217(1) talks of Chief Justice of India and the Chief Justice of the HighCourt. Plurality of consultations has been clearly indicated by the Framersof the Constitution. On first reading one gets the impression as if theJudges of the Supreme Court and High Courts have not been included in theprocess of consultation under Article 217(1) but on a closer scrutiny ofthe constitutional scheme one finds that this was not the intention of theFramers of the Constitution. There is no justification, whatsoever, forexcluding the puisne Judges of the Supreme Court and of the High Court fromthe “consultee zone” under Article 217(1) of the Constitution.391. According to Mr Nariman it would not be a strained construction toconstrue the expressions “Chief Justice of India” and “Chief Justice of theHigh Courts” in the sense of the collectivity of Judges, the Supreme Courtas represented by the Chief Justice of India and all the High Courts (ofthe States concerned) as represented by the Chief Justice of the HighCourt. A bare reading of Articles 124(2) and 217(1) makes it clear that theFramers of the Constitution did not intend to leave the final word, in thematter of appointment of Judges to the superior Courts, in the hands of anyindividual howsoever high he is placed in the constitutional hierarchy.Collective wisdom of the consultees is the sine qua non for suchappointments. Dr B.R. Ambedkar in his speech dated May 24, 1949 in theConstituent Assembly explaining the scope of the draft articles pertainingto the appointment of Judges to the Supreme Court … xxx xxx xxx392. Dr Ambedkar did not see any difficulty in the smooth operation of theconstitutional provisions concerning the appointment of Judges to thesuperior Courts. Having entrusted the work to high constitutionalfunctionaries the Framers of the Constitution felt assured that suchappointments would always be made by consensus. It is the functioning ofthe Constitution during the past more than four decades which has broughtthe necessity of considering the question of primacy in the matter of suchappointments. Once we hold that the primacy lies with the judiciary, thenit is the judiciary as collectivity which has the primal say and not anyindividual, not even the Chief Justice of India. If we interpret theexpression “the Chief Justice of India” as a “persona designata” then itwould amount “to allow the Chief Justice practically veto upon theappointment of Judges” which the Framers of the Constitution in the wordsof Dr Ambedkar never intended to do. We are, therefore, of the view thatthe expressions “the Chief Justice of India” and the “Chief Justice of theHigh Court” in Articles 124(2) and 217(1) of the Constitution mean the saidjudicial functionaries as representatives of their respective courts.”In conjunction with the observations extracted hereinabove, the Court’sattention was also invited to the following further conclusions:“466. It has to be borne in mind that the principle of non-arbitrarinesswhich is an essential attribute of the rule of law is all pervasivethroughout the Constitution; and an adjunct of this principle is theabsence of absolute power in one individual in any sphere of constitutionalactivity. The possibility of intrusion of arbitrariness has to be kept inview, and eschewed, in constitutional interpretation and, therefore, themeaning of the opinion of the Chief Justice of India, in the context ofprimacy, must be ascertained. A homogenous mixture, which accords with theconstitutional purpose and its ethos, indicates that it is the opinion ofthe judiciary ‘symbolised by the view of the Chief Justice of India’ whichis given greater significance or primacy in the matter of appointments. Inother words, the view of the Chief Justice of India is to be expressed in[pic]the consultative process as truly reflective of the opinion of thejudiciary, which means that it must necessarily have the element ofplurality in its formation. In actual practice, this is how the ChiefJustice of India does, and is expected to function so that the finalopinion expressed by him is not merely his individual opinion, but thecollective opinion formed after taking into account the views of some otherJudges who are traditionally associated with this function.467. In view of the primacy of judiciary in this process, the questionnext, is of the modality for achieving this purpose. The indication in theconstitutional provisions is found from the reference to the office of theChief Justice of India, which has been named for achieving this object in apragmatic manner. The opinion of the judiciary ‘symbolised by the view ofthe Chief Justice of India’, is to be obtained by consultation with theChief Justice of India; and it is this opinion which has primacy.468. The rule of law envisages the area of discretion to be the minimum,requiring only the application of known principles or guidelines to ensurenon-arbitrariness, but to that limited extent, discretion is a pragmaticneed. 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 andpragmatism are reconciled and integrated, to make the system workable in asatisfactory manner. Entrustment of the task of appointment of superiorjudges to high constitutional functionaries; the greatest significanceattached to the view of the Chief Justice of India, who is best equipped toassess the true worth of the candidates for adjudging their suitability;the opinion of the Chief Justice of India being the collective opinionformed after taking into account the views of some of his colleagues; andthe executive being permitted to prevent an appointment considered to beunsuitable, for strong reasons disclosed to the Chief Justice of India,provide the best method, in the constitutional scheme, to achieve theconstitutional purpose without conferring absolute discretion or veto uponeither the judiciary or the executive, much less in any individual, be hethe Chief Justice of India or the Prime Minister.”10. It was the emphatic contention of the learned counsel, that theconclusions recorded by this Court in the Second Judges case, had beenaccepted by the executive and the legislature. It was acknowledged, thatin the matter of appointment of Judges to the higher judiciary, primacywould vest with the judiciary, and further that, the opinion of thejudiciary would have an element of plurality. This assertion was sought tobe further established, by placing reliance on the Third Judges case. Itwas submitted, that the conclusions of the majority judgment, in the SecondJudges case, were reproduced in paragraph 9 of the Third Judges case, andthereupon, this Court recorded the statement of the then Attorney General,that through the Presidential Reference, the Union of India was notseeking, a review or reconsideration, of the judgment in the Second Judgescase. And that, the Union of India had accepted the above majorityjudgment, as binding. In this context, paragraphs 10 to 12 of the ThirdJudges case, which were relied upon, are being reproduced below:“10. We have heard the learned Attorney General, learned counsel for theinterveners and some of the High Courts and the Advocates General of someStates.11. We record at the outset the statements of the Attorney General that (1)the Union of India is not seeking a review or reconsideration of thejudgment in the Second Judges case (1993) 4 SCC 441 and that (2) the Unionof India shall accept and treat as binding the answers of this Court to thequestions set out in the Reference.12. The majority view in the Second Judges case (1993) 4 SCC 441 is that inthe matter of appointments to the Supreme Court and the High Courts, theopinion of the Chief Justice of India has primacy. The opinion of the ChiefJustice of India is “reflective of the opinion of the judiciary, whichmeans that it must necessarily have the element of plurality in itsformation”. It is to be formed “after taking into account the view of someother Judges who are traditionally associated with this function”. Theopinion of the Chief Justice of India “so given has primacy in the matterof all appointments”. For an appointment to be made, it has to be “inconformity with the final opinion of the Chief Justice of India formed inthe manner indicated”. It must follow that an opinion formed by the ChiefJustice of India in any manner other than that indicated has no primacy inthe matter of appointments to the Supreme Court and the High Courts and theGovernment is not obliged to act thereon.”[pic]11. Learned counsel invited the Court’s attention, to the thirdconclusion drawn in Madras Bar Association v. Union of India[35], which isplaced below:“136.(iii) The “basic structure” of the Constitution will stand violated ifwhile enacting legislation pertaining to transfer of judicial power,Parliament does not ensure that the newly created court/tribunal conformswith the salient characteristics and standards of the court sought to besubstituted.”Learned counsel then asserted, that the “basic structure” of theConstitution would stand violated if, in amending the Constitution and/orenacting legislation, Parliament does not ensure, that the body newlycreated, conformed with the salient characteristics and the standards ofthe body sought to be substituted. It was asserted, that the salientfeatures of the existing process of appointment of Judges to the higherjudiciary, which had stood the test of time, could validly andconstitutionally be replaced, but while substituting the prevailingprocedure, the salient characteristics which existed earlier, had to bepreserved. By placing reliance on Articles 124 and 217, it was asserted,that the above provisions, as originally enacted, were explained bydecisions of this Court, starting from 1974 in Samsher Singh v. State ofPunjab11, followed by the Sankalchand Himatlal Sheth case5 in 1977, and theSecond Judges case in 1993, and finally endorsed in 1998 by the ThirdJudges case. It was submitted, that four Constitution Benches of theSupreme Court, had only affirmed the practice followed by the executivesince 1950 (when the people of this country, agreed to be governed by theConstitution). It was pointed out, that the process of appointment ofJudges to the higher judiciary, had continued to remain a participatoryconsultative process, wherein the initiation of the proposal forappointment of a Judge to the Supreme Court, was by the Chief Justice ofIndia; and in the case of appointment of Judges to High Courts, by theChief Justice of the concerned High Court. And that, for transfer of aJudge/Chief Justice of a High Court, to another High Court, the proposalwas initiated by the Chief Justice of India. It was contended, that in theprocess of taking a decision on the above matters (of appointment andtransfer), the opinion of the judiciary was symbolized through the ChiefJustice of India, and the same was based on the decision of a collegium ofJudges, since 1993 – when the Second Judges case was decided. The onlyexception to the above rule, according to learned counsel, was when theexecutive, based on stated strong cogent reasons (disclosed to the ChiefJustice of India), felt otherwise. However, if the stated reasons, as weredisclosed to the Chief Justice of India, were not accepted, the decision ofa collegium of Judges on reiteration, would result in the proposedappointment/transfer. This, according to learned counsel, constituted theearlier procedure under Articles 124 and 217. The aforesaid procedure, wasconsidered as sufficient, to preserve the “independence of the judiciary”.12. According to learned counsel, it needed to be determined, whether theNJAC now set up, had the same or similar characteristics, in the matter ofappointments/transfers, which would preserve the “independence of thejudiciary”? Answering the query, learned counsel was emphatic, that theprimacy of the judiciary, had been totally eroded through the impugnedconstitutional amendment. For the above, learned counsel invited ourattention to Article 124A inserted by the Constitution (99th Amendment)Act. It was submitted, that the NJAC contemplated under Article 124A wouldcomprise of six Members, namely, the Chief Justice of India, two seniorJudges of the Supreme Court (next to the Chief Justice), the Union Ministerin charge of Law and Justice, and two “eminent persons”. It was submitted,that the judges component, which had the primacy (and in a manner ofunderstanding – unanimity), under the erstwhile procedure, had now beenreduced to half-strength, in the selecting body – the NJAC. It was pointedout, that the Chief Justice of India, would now have an equivalent votingright, as the other Members of the NJAC. It was submitted, that eventhough the Chief Justice of India would be the Chairman of the NJAC, he hasno casting vote, in the event of a tie. It was submitted, that under thesubstituted procedure, even if the Chief Justice of India, and the twoother senior Judges of the Supreme Court (next to the Chief Justice ofIndia), supported the appointment/transfer of an individual, the same couldbe negatived, by any two Members of the NJAC. Even by the two “eminentpersons” who may have no direct or indirect nexus with the process ofadministration of justice. It was therefore submitted, that the primacyvested with the Chief Justice of India had been fully and completelyeroded.13. With reference to the subject of primacy of the judiciary, it wasasserted, that under the system sought to be substituted, the proposal forappointment of Judges to the Supreme Court, could only have been initiatedby the Chief Justice of India. And likewise, the proposal for transfer ofa Judge or the Chief Justice of a High Court, could only have beeninitiated by the Chief Justice of India. And likewise, the proposal forappointment of a Judge to a High Court, could only have been initiated bythe Chief Justice of the concerned High Court. In order to demonstrate thechanged position, learned counsel placed reliance on Article 124Bintroduced by the Constitution (99th Amendment) Act, whereunder, theauthority to initiate the process, had now been vested with the NJAC.Under the new dispensation, the NJAC alone would recommend persons forappointment as Judges to the higher judiciary. It was also apparent,according to learned counsel, that the NJAC has now been bestowed with theexclusive responsibility to recommend transfers of Chief Justices andJudges of High Courts. Having described the aforesaid alteration as atotal subversion of the prevailing procedure, which had stood the test oftime, and had secured the independence of the process of appointment andtransfer of Judges of the higher judiciary, it was pointed out, that theParliament had not disclosed the reasons, why the primacy of the ChiefJustice of India and the other senior Judges, had to be dispensed with. Orfor that matter, why the prevailing procedure needed to be altered. It wasfurther the contention of learned counsel, that the non-disclosure ofreasons, must inevitably lead to the inference, that there were no suchreasons.14. Dr. Rajeev Dhavan, learned senior counsel, also advanced submissions,with reference to the “basic structure”, and the scope of amending theprovisions of the Constitution. Dwelling upon the power of Parliament toamend the Constitution, it was submitted, that this Court in KesavanandaBharati v. State of Kerala10, had declared, that the “basic structure” ofthe Constitution, was not susceptible or amenable to amendment. Invitingour attention to Article 368, it was submitted, that the power vested withthe Parliament to amend the Constitution, contemplated the extension of theconstituent power, which was exercised by the Constituent Assembly, whileframing the Constitution. It was pointed out, that in exercise of theabove power, the Parliament had been permitted to discharge the same roleas the Constituent Assembly. The provisions of the Constitution, it wasasserted, could be amended, to keep pace with developments in the civilsociety, so long as the amendment was not in violation of the “basicstructure” of the Constitution. It was submitted, that it was not enough,in the facts and circumstances of the present case, to determine thevalidity of the constitutional amendment in question, by limiting theexamination to a determination, whether or not the “independence of thejudiciary” stood breached, on a plain reading of the provisions sought tobe amended. It was asserted, that it was imperative to take intoconsideration, judgments rendered by this Court, on the subject. It wasasserted, that this Court was liable to examine the declared position oflaw, in the First, Second and Third Judges cases, insofar as the presentcontroversy was concerned. According to learned counsel, if the enactmentsunder challenge, were found to be in breach of the “basic structure” of theConstitution, as declared in the above judgments, the impugnedconstitutional amendment, as also, the legislation under reference, wouldundoubtedly be constitutionally invalid.15. In the above context, learned counsel pointed out, that withreference to an amendment to the fundamental right(s), enshrined in PartIII of the Constitution, guidelines were laid down by this Court in M.Nagaraj v. Union of India[36], as also, in the Kihoto Hollohan case34. Itwas submitted, that the change through the impugned amendment to theConstitution, (and by the NJAC Act) was not a peripheral change, but was asubstantial one, which was also seemingly irreversible. And therefore,according to learned counsel, its validity would have to be determined, onthe basis of the width and the identity tests. It was submitted, that thewidth and the identity tests were different from the tests applicable fordetermining the validity of ordinary parliamentary legislation, or aconstitutional amendment relating to fundamental rights. The manner ofworking out the width and the identity tests, it was submitted, had beenlaid down in the M. Nagaraj case36, wherein this Court held:“9. On behalf of the respondents, the following arguments 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 theconstituent power under Article 368; that, the power under Article 368 hasto keep the Constitution in repair as and when it becomes necessary andthereby protect and preserve the basic structure. In such process ofamendment, if it destroys the basic feature of the Constitution, theamendment will be unconstitutional. The Constitution, according to therespondents, is not merely what it says. It is what the last interpretationof the relevant provision of the Constitution given by the Supreme Courtwhich prevails as a law. The interpretation placed on the Constitution bythe Court becomes part of the Constitution and, therefore, it is open toamendment under Article 368. An interpretation placed by the Court on anyprovision of the Constitution gets inbuilt in the provisions interpreted.Such articles are capable of amendment under Article 368. Such change ofthe law so declared by the Supreme Court will not merely for that reasonalone violate the basic structure of the Constitution or amount tousurpation of judicial power. This is how the Constitution becomes dynamic.Law has to change. It requires amendments to the Constitution according tothe needs of time and needs of society. It is an ongoing process ofjudicial and constituent powers, both contributing to change of law withthe final say in the judiciary to pronounce on the validity of such changeof law effected by the constituent power by examining whether suchamendments violate the basic structure of the Constitution. On everyoccasion when a constitutional matter comes before the Court, the meaningof the provisions of the Constitution will call for interpretation, butevery interpretation of the article does not become a basic feature of theConstitution. That, there are no implied limitations on the power ofParliament under Article 368 when it seeks to amend the Constitution.However, an amendment will be invalid, if it interferes with or underminesthe basic structure. The validity of the amendment is not to be decided onthe touchstone of Article 13 but only on the basis of violation of thebasic features of the Constitution.”16. It was submitted, that whilst the Parliament had the power to amendthe Constitution; the legislature (– or the executive), had no power toeither interpret the Constitution, or to determine the validity of anamendment to the provisions of the Constitution. The power to determine thevalidity of a constitutional amendment, according to learned counsel,exclusively rests with the higher judiciary. Every amendment had to betested on the touchstone of "basic structure” – as declared by thejudiciary. It was submitted, that the aforesaid power vested with thejudiciary, could not be withdrawn or revoked. This, according to learnedcounsel, constituted the fundamental judicial power, and was no lesssignificant/weighty than the legislative power of Parliament. Theimportance of the power of judicial review vested with the higher judiciary(to examine the validity of executive and legislative actions), bestowedsuperiority to the judiciary over the other two pillars of governance.This position, it was pointed out, was critical to balance the powersurrendered by the civil society, in favour of the political and theexecutive sovereignty.17. In order to determine the validity of the submissions advanced onbehalf of the petitioners, we were informed, that the interpretation placedby the Supreme Court on Articles 124 and 217 (as they existed, prior to theimpugned amendment), would have to be kept in mind. It was submitted, thatthe term “consultation” with reference to Article 124, had been understoodas conferring primacy with the judiciary. Therefore, while examining theimpugned constitutional amendment to Article 124, it was imperative forthis Court, to understand the term “consultation” in Article 124, and toread it as, conferring primacy in the matter of appointment of Judges, withthe judiciary. Under Article 124, according to learned counsel, thePresident was not required to merely “consult” the Chief Justice of India,but the executive was to accede to the view expressed by the Chief Justiceof India. Insofar as the term “Chief Justice of India” is concerned, itwas submitted, that the same had also been understood to mean, not theindividual opinion of the Chief Justice of India, but the opinion of thejudiciary symbolized through the Chief Justice of India. Accordingly, itwas emphasized, that the individual opinion of the Chief Justice (withreference to Articles 124 and 217) was understood as the institutionalopinion of the judiciary. Accordingly, whilst examining the impugnedconstitutional amendment, under the width and the identity test(s), theabove declared legal position, had to be kept in mind while determining,whether or not the impugned constitutional amendment, and the impugnedlegislative enactment, had breached the “basic structure” of theConstitution.18. It was contended, that the judgment in the Second Judges case, shouldbe accepted as the touchstone, by which the validity of the impugnedconstitutional amendment (and the NJAC Act), must be examined. It wassubmitted, that the power exercised by the Parliament under Article 368, ingiving effect to the impugned constitutional amendment (and by enacting theNJAC Act), will have to be tested in a manner, that will allow an organicadaptation 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 case36, the Court’s attention was drawn to the followingobservations:“18. The key issue, which arises for determination in this case is–whetherby virtue of the impugned constitutional amendments, the power ofParliament is so enlarged so as to obliterate any or all of theconstitutional limitations and requirements?Standards of judicial review of constitutional amendments19. The Constitution is not an ephemeral legal document embodying a set oflegal rules for the passing hour. It sets out principles for an expandingfuture and is intended to endure for ages to come and consequently to beadapted to the various crises of human affairs. Therefore, a purposiverather [pic]than a strict literal approach to the interpretation should beadopted. A constitutional provision must be construed not in a narrow andconstricted sense but in a wide and liberal manner so as to anticipate andtake account of changing conditions and purposes so that a constitutionalprovision does not get fossilised but remains flexible enough to meet thenewly emerging problems and challenges.”Learned senior counsel, also drew the Court’s attention to similarobservations recorded in the Second Judges case.19. Learned counsel was emphatic, that the impugned constitutionalamendment (and the provisions of the NJAC Act), if approved, would remainin place for ten…, twenty…, thirty or even forty years, and therefore, needto be viewed closely and objectively. The provisions will have to beinterpreted in a manner, that the “independence of the judiciary” would notbe compromised. It was submitted, that if the impugned provisions were tobe declared as constitutionally valid, there would be no means hereafter,to restore the “independence of the judiciary”.20. According to learned counsel, the question was of the purity of thejustice delivery system. The question was about the maintenance ofjudicial standards. All these questions emerged from the fountainhead,namely, the manner of appointment of Judges to the higher judiciary. Theprovisions of Article 124, it was pointed out, as it existed prior to theimpugned amendment, had provided for a system of trusteeship, whereininstitutional predominance of the judiciary was the hallmark. It wassubmitted, that the aforesaid trusteeship should not be permitted to beshared by those, whose rival claims arose for consideration before Courtsof law. The judicial responsibility in the matter of appointment of Judges,according to learned counsel, being the most important trusteeship, couldnot be permitted to be shared, with either the executive or thelegislature.21. Referring to the amendment itself, it was contended, that merelychanging the basis of the legislation, would not be the correct test toevaluate the actions of the Parliament, in the present controversy. It waslikewise submitted, that reasonableness and proportionality were also notthe correct test(s) to be applied. According to learned counsel, in orderto determine the validity of the impugned constitutional amendment (and theNJAC Act), the Union of India and the ratifying States will have to bearthe onus of satisfactorily establishing, that the amended provisions, couldunder no circumstances, be used (actually misused) to subvert the“independence of the judiciary”. Placing reliance on the M. Nagaraj case36,the Court’s attention was invited to the following observations:“22. The question which arises before us is regarding the nature of thestandards of judicial review required to be applied in judging the validityof the constitutional amendments in the context of the doctrine of basicstructure. The concept of a basic structure giving coherence and durabilityto a Constitution has a certain intrinsic force. This doctrine hasessentially developed from the German Constitution. This development is theemergence of the constitutional principles in their own right. It is notbased on literal wordings.23. …..In S.R. Bommai (1994) 3 SCC 1 the Court clearly based its conclusionnot so much on violation of particular constitutional provisions but onthis generalised ground i.e. evidence of a pattern of action directedagainst the principle of secularism. Therefore, it is important to notethat the [pic]recognition of a basic structure in the context of amendmentprovides an insight that there are, beyond the words of particularprovisions, systematic principles underlying and connecting the provisionsof the Constitution. These principles give coherence to the Constitutionand make it an organic whole. These principles are part of constitutionallaw even if they are not expressly stated in the form of rules. An instanceis the principle of reasonableness which connects Articles 14, 19 and 21.Some of these principles may be so important and fundamental, as to qualifyas “essential features” or part of the “basic structure” of theConstitution, that is to say, they are not open to amendment. However, itis only by linking provisions to such overarching principles that one wouldbe able to distinguish essential from less essential features of theConstitution. xxx xxx xxx25. For a constitutional principle to qualify as an essential feature, itmust be established that the said principle is a part of the constitutionallaw binding on the legislature. Only thereafter, is the second step to betaken, namely, whether the principle is so fundamental as to bind even theamending power of Parliament i.e. to form a part of the basic structure.The basic structure concept accordingly limits the amending power ofParliament. To sum up: in order to qualify as an essential feature, aprinciple is to be first established as part of the constitutional law andas such binding on the legislature. Only then, can it be examined whetherit 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 thestandard of judicial review of constitutional amendments in the context ofthe doctrine of basic structure. xxx xxx xxx30. Constitutional adjudication is like no other decision-making. There isa moral dimension to every major constitutional case; the language of thetext is not necessarily a controlling factor. Our Constitution worksbecause of its generalities, and because of the good sense of the judgeswhen interpreting it. It is that informed freedom of action of the judgesthat helps to preserve and protect our basic document of governance.xxx xxx xxx35. The theory of basic structure is based on the principle that a changein a thing does not involve its destruction and destruction of a thing is amatter of substance and not of form. Therefore, one has to apply the testof overarching principle to be gathered from the scheme and the placementand the structure of an article in the Constitution. For example, theplacement of Article 14 in the equality code; the placement of Article 19in the freedom code; the placement of Article 32 in the code giving accessto the Supreme Court. Therefore, the theory of basic structure is the onlytheory by which the validity of impugned amendments to the Constitution isto be judged.”22. Referring to the position expressed by this Court, learned counselsubmitted, that the overarching principle for this Court, was to first keepin its mind, the exact nature of the amendment contemplated through theConstitution (99th Amendment) Act. And the second step was, to determinehow fundamental the amended provision was. For this, reliance was againplaced on the M. Nagaraj case36, and our attention was drawn to thefollowing 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 concept of the “catch-up” rule and“consequential seniority” are not constitutional requirements. They are notimplicit in clauses (1) and (4) of Article 16. They are not constitutionallimitations. They are concepts derived from service jurisprudence. They arenot constitutional principles. They are not axioms like, secularism,federalism, etc. Obliteration of these concepts or insertion of theseconcepts does not change the equality code indicated by Articles 14, 15 and16 of the Constitution. Clause (1) of Article 16 cannot prevent the Statefrom taking cognizance of the compelling interests of Backward Classes inthe society. Clauses (1) and (4) of Article 16 are restatements of theprinciple of equality under Article 14. Clause (4) of Article 16 refers toaffirmative action by way of reservation. Clause (4) of Article 16,however, states that the appropriate Government is free to provide forreservation in cases where it is satisfied on the basis of quantifiabledata that Backward Class is inadequately represented in the services.Therefore, in every case where the State decides to provide for reservationthere must exist two circumstances, namely, “backwardness” and “inadequacyof representation”. As stated above, equity, justice and efficiency arevariable factors. These factors are context-specific. There is no fixedyardstick to identify and measure these three factors, it will depend onthe facts and circumstances of each case. These are the limitations on themode of the exercise of power by the State. None of these limitations havebeen removed by the impugned amendments. If the State concerned fails toidentify and measure backwardness, inadequacy and overall administrativeefficiency then in that event the provision for reservation would beinvalid. These amendments do not alter the structure of Articles 14, 15 and16 (equity code). The parameters mentioned in Article 16(4) are retained.Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) isconfined to SCs and STs alone. Therefore, the present case does not changethe identity of the Constitution. The word “amendment” connotes change. Thequestion is—whether the impugned amendments discard the originalConstitution. It was vehemently urged on behalf of the petitioners that theStatement of Objects and Reasons indicates that the impugned amendmentshave been promulgated by Parliament to overrule the decisions of thisCourt. We do not find any merit in this argument. Under Article 141 of theConstitution the pronouncement of this Court is the law of the land. Thejudgments of this [pic]Court in Union of India v. Virpal 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 of India, 1992 Supp (3) SCC 217… were judgments delivered by thisCourt which enunciated the law of the land. It is that law which is soughtto be changed by the impugned constitutional amendments. The impugnedconstitutional amendments are enabling in nature. They leave it to theStates to provide for reservation. It is well settled that Parliament whileenacting a law does not provide content to the “right”. The content isprovided by the judgments of the Supreme Court. If the appropriateGovernment enacts a law providing for reservation without keeping in mindthe parameters in Article 16(4) and Article 335 then this Court willcertainly set aside and strike down such legislation. Applying the “widthtest”, we do not find obliteration of any of the constitutionallimitations. Applying the test of “identity”, we do not find any alterationin the existing structure of the equality code. As stated above, none ofthe axioms like secularism, federalism, etc. which are overarchingprinciples have been violated by the impugned constitutional amendments.Equality has two facets— “formal equality” and “proportional equality”.Proportional equality is equality “in fact” whereas formal equality isequality “in law”. Formal equality exists in the rule of law. In the caseof proportional equality the State is expected to take affirmative steps infavour of disadvantaged sections of the society within the framework ofliberal democracy. Egalitarian equality is proportional equality.”Yet again referring to the width and the identity tests, learned counselemphasized, that it was imperative for this Court, in the facts andcircumstances of the present case, to examine whether the power ofamendment exercised by the Parliament, was so wide as to make it excessive.For the above, reference was made to the Madras Bar Association case35,wherein this Court recorded the following conclusions:“134.(i) Parliament has the power to enact legislation and to vestadjudicatory functions earlier vested in the High Court with an alternativecourt/tribunal. Exercise of such power by Parliament would not per seviolate the “basic structure” of the Constitution.135.(ii) Recognised constitutional conventions pertaining to theWestminster model do not debar the legislating authority from enactinglegislation to vest adjudicatory functions earlier vested in a superiorcourt with an alternative court/tribunal. Exercise of such power byParliament would per se not violate any constitutional convention.136.(iii) The “basic structure” of the Constitution will stand violated ifwhile enacting legislation pertaining to transfer of judicial power,Parliament does not ensure that the newly created court/tribunal conformswith the salient characteristics and standards of the court sought to besubstituted.137.(iv) Constitutional conventions pertaining to the Constitutions styledon the Westminster model will also stand breached, if while enactinglegislation, pertaining to transfer of judicial power, conventions andsalient characteristics of the court sought to be replaced are notincorporated in the court/tribunal sought to be created.138.(v) The prayer made in Writ Petition (C) No. 621 of 2007 is declined.Company Secretaries are held ineligible for representing a party to anappeal before NTT.139.(vi) Examined on the touchstone of Conclusions (iii) and (iv)(contained in paras 136 and 137, above) Sections 5, 6, 7, 8 and 13 of theNTT Act (to the extent indicated hereinabove), are held to beunconstitutional. Since the aforesaid provisions constitute the edifice ofthe NTT Act, and without these provisions the remaining provisions arerendered ineffective and inconsequential, the entire enactment is declaredunconstitutional.”Based on the above, it was asserted, that this Court had now clearly laiddown, that on issues pertaining to the transfer of judicial power, thesalient characteristics, standards and conventions of judicial power, couldnot be breached. It was also submitted, that evaluated by the aforesaidstandards, it would clearly emerge, that the “independence of thejudiciary” had been seriously compromised, through the impugnedconstitutional amendment (and the NJAC Act).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 Judgescase, was that, Article 50 of the Constitution had not been appropriatelyhighlighted, for consideration. It was submitted, that importance ofArticle 50 read with Articles 12 and 36, came to be examined in the SecondJudges case, wherein the majority view, was as follows:“80. From the above deliberation, it is clear that Article 50 was referredto in various decisions by the eminent Judges of this Court whilediscussing the principle of independence of the judiciary. We may citeArticle 36 which falls under Part IV (Directive Principles of State Policy)and which reads thus:[pic]“36. In this Part, unless the context otherwise requires, ‘the State’has the same meaning as in Part III.”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 expression “the State” used in Article 50has to be construed in the distributive sense as including the Governmentand Parliament of India and the Government and the legislature of eachState and all local or other authorities within the territory of India orunder the control of the Government of India. When the concept ofseparation of the judiciary from the executive is assayed and assessed thatconcept cannot be confined only to the subordinate judiciary, totallydiscarding the higher judiciary. If such a narrow and pedantic orsyllogistic approach is made and a constricted construction is given, itwould lead to an anomalous position that the Constitution does notemphasise the separation of higher judiciary from the executive. Indeed,the distinguished Judges of this Court, as pointed out earlier, in variousdecisions have referred to Article 50 while discussing the concept ofindependence of higher or superior judiciary and thereby highlighted andlaid stress on the basic principle and values underlying Article 50 insafeguarding the independence of the judiciary. xxx xxx xxx85. Regrettably, there are some intractable problems concerned withjudicial administration starting from the initial stage of selection ofcandidates to man the Supreme Court and the High Courts leading to thepresent malaise. Therefore, it has become inevitable that effective stepshave to be taken to improve or retrieve the situation. After taking note ofthese problems and realising the devastating consequences that may flow,one cannot be a silent spectator or an old inveterate optimist, lookingupon the other constitutional functionaries, particularly the executive, inthe fond hope of getting invigorative solutions to make the justicedelivery system more effective and resilient to meet the contemporary needsof the society, which hopes, as experience shows, have never beensuccessful. Therefore, faced with such a piquant situation, it has becomeimperative for us to solve these problems within the constitutional fabricby interpreting the various provisions of the Constitution relating to thefunctioning of the judiciary in the light of the letter and spirit of theConstitution. xxx xxx xxx141. Mr Ram Jethmalani, learned senior counsel expressed his grievance thatthe principles laid down in Chandra Mohan case (1967) 1 SCR 77, 83… werenot appreciated by the learned Judges while dealing with Samsher Singh v.State of Punjab, (1974) 2 SCC 831 who in his submission, have ignored theprinciple of harmonious construction which was articulated in K.M. Nanavativ. State of Bombay (1961) 1 SCR 497… According to him, the judgment inGupta case 1981 Supp SCC 87 may be regarded as per incuriam. He articulatesthat the expression ‘consultation’ is itself flexible and in a certaincontext capable of bearing the meaning of ‘consent’ or ‘concurrence’. xxx xxx xxx154. The controversy that arises for scrutiny from the arguments addressedboils down with regard to the construction of the word ‘consultation’. xxx xxx xxx170. Thus, it is seen that the consensus of opinion is that consultationwith the CJI is a mandatory condition precedent to the order of transfermade by the President so that non-consultation with the CJI shall renderthe order unconstitutional i.e. void.171. The above view of the mandatory character of the requirement ofconsultation taken in Sankalchand has been followed and reiterated by someof the Judges in Gupta 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 transferringa Judge, the transfer becomes unconstitutional.”Venkataramiah, J. in Gupta case has also expressed the 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 inGupta case 1981 Supp SCC 87… it can be simply held that consultation withthe CJI under the first proviso to Article 124(2) as well as under Article217 is a mandatory condition, the violation of which would be contrary tothe constitutional mandate. xxx xxx xxx181. It cannot be gainsaid that the CJI being the head of the IndianJudiciary and paterfamilias of the judicial fraternity has to keep avigilant watch in protecting the integrity and guarding the independence ofthe judiciary and he in that capacity evaluates the merit of the candidatewith regard to his/her professional attainments, legal ability etc. andoffers his opinion. Therefore, there cannot be any justification inscanning that opinion of the CJI by applying a superimposition test underthe guise of overguarding the judiciary. xxx xxx xxx183. One should not lose sight of the important fact that appointment tothe judicial office cannot be equated with the appointment to the executiveor other services. In a recent judgment in All India Judges’ Association v.Union of India (1993) 4 SCC 288... rendered by a three-Judge Bench presidedover 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 aand c-d, 297 b, paras 7 and 9)“The judicial service is not service in the sense of ‘employment’. Thejudges are not employees. As members of the judiciary, they exercise thesovereign judicial power of the State. They are holders of public officesin the same way as the members of the Council of Ministers and the membersof the legislature. When it is said that in a democracy such as ours, theexecutive, the legislature and the judiciary constitute the three pillarsof the State, what is intended to be conveyed is that the three essentialfunctions of the State are entrusted to the three organs of the State andeach one of them in turn represents the authority of the State. However,those who exercise the State power are the ministers, the legislators andthe judges, and not the members of the their staff who implement or assistin implementing their decisions. The Council of Ministers or the politicalexecutive is different from the secretarial staff or the administrativeexecutive which carries out the decisions of the political executive.Similarly, [pic]the legislators are different from the legislative staff.So also the judges from the judicial staff. The parity is between thepolitical executive, the legislators and the judges and not between thejudges and the administrative executive. In some democracies like the USA,members of some State judiciaries are elected as much as the members of thelegislature and the heads of the State. The judges, at whatever level theymay be, represent the State and its authority unlike the administrativeexecutive or the members of other services. The members of the otherservices, therefore, cannot be placed on a par with the members of thejudiciary, either constitutionally or functionally.”Whereupon, this Court recorded its conclusions. The relevant conclusionsare extracted hereunder:“(1) The ‘consultation’ with the CJI by the President is relatable to thejudiciary 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 thefirst proviso to Article 124(2) and Article 217(1) in respect of judicialoffices is a reservation or limitation on the power of the President toappoint the Judges to the superior courts. xxx xxx xxx(4) The context in which the expression “shall always be consulted” used inthe first proviso of Article 124(2) and the expression “shall be appointed… after consultation” deployed in Article 217(1) denote the mandatorycharacter of ‘consultation’, which has to be and is of a binding character.(5) Articles 124 and 217 do not speak in specific terms requiring thePresident to consult the executive as such, but the executive comes intoplay in the process of appointment of Judges to the higher echelons ofjudicial service by the operation of Articles 74 and 163 of theConstitution. In other words, in the case of appointment of Judges, thePresident is not obliged to consult the executive as there is no specificprovision for such consultation.(6) The President is constitutionally obliged to consult the CJI alone inthe case of appointment of a Judge to the Supreme Court as [pic]per themandatory proviso to Article 124(2) and in the case of appointment of aJudge to the High Court, the President is obliged to consult the CJI andthe Governor of the State and in addition the Chief Justice of the HighCourt concerned, in case the appointment relates to a Judge other than theChief Justice of that High Court. Therefore, to place the opinion of theCJI on a par with the other constitutional functionaries is not inconsonance with the spirit of the Constitution, but against the very natureof the subject-matter concerning the judiciary and in opposition to thecontext in which ‘consultation’ is required. After the observation ofBhagwati, J. in Gupta case that the ‘consultation’ must be full andeffective there is no conceivable reason to hold that such ‘consultation’need not be given primary consideration. xxx xxx xxx196. In the background of the above factual and legal position, the meaningof the word ‘consultation’ cannot be confined to its ordinary lexicaldefinition. Its contents greatly vary according to the circumstances andcontext in which the word is used as in our Constitution. xxx xxx xxx207. No one can deny that the State in the present day has become the majorlitigant and the superior courts particularly the Supreme Court, havebecome centres for turbulent controversies, some of which with a flavour ofpolitical repercussions and the Courts have to face tempest and stormbecause their vitality is a national imperative. In such circumstances,therefore, can the Government, namely, the major litigant be justified inenjoying absolute authority in nominating and appointing its arbitrators.The answer would be in the negative. If such a process is allowed tocontinue, the independence of judiciary in the long run will sink withoutany trace. By going through various Law Commission Reports (particularlyFourteenth, Eightieth and One Hundred and Twenty-first), Reports of theSeminars and articles of eminent jurists etc., we understand that a radicalchange in the method of appointment of Judges to the superior judiciary bycurbing the executive’s power has been accentuated but the desired resulthas not been achieved even though by now nearly 46 years since theattainment of independence and more than 42 years since the advent of theformation of our constitutional system have elapsed. However, it is a proudprivilege that the celebrated birth of our judicial system, itsindependence, mode of dispensation of justice by Judges of eminence holdingnationalistic views stronger than other Judges in any other nations, andthe resultant triumph of the Indian judiciary are highly commendable. Butit does not mean that the present system should continue for ever, and byallowing the executive to enjoy the absolute primacy in the matter ofappointment of Judges as its ‘royal privilege’.208. The polemics of the learned Attorney-General and Mr Parasaran forsustaining the view expressed in Gupta case 1981 Supp SCC 87… though sodistinguished for the strength of their ratiocination, is found to be notacceptable and falls through for all the reasons aforementioned because ofthe inherent weakness of the doctrine which they have attempted to defend.”Insofar as the minority judgment authored by A.M. Ahmadi, J., (as he thenwas) is concerned, it is only relevant to highlight the first conclusionrecorded in paragraph 313, which is reproduced hereunder:“313. We conclude:(i) The concept of judicial independence is deeply ingrained in ourconstitutional scheme and Article 50 illuminates it. The degree ofindependence is near total after a person is appointed and inducted in thejudicial family. …..”24. Insofar as the instant aspect of the matter is concerned, learnedcounsel invited our attention to the preamble of the NJAC Act, which isreproduced below:“An Act to regulate the procedure to be followed by the National JudicialAppointments Commission for recommending persons for appointment as theChief Justice of India and other Judges of the Supreme Court and ChiefJustices and other Judges of High Courts and for their transfers and formatters connected therewith or incidental thereto.”The statement of objects and reasons is also being extracted hereunder: “Statement of Objects and Reasonsxxx xxx xxx2. The Supreme Court in the matter of the Supreme Court Advocates-on-RecordAssociation Vs. Union of India in the year 1993, and in its AdvisoryOpinion in the year 1998 in the Third Judges case, had interpreted clause(2) of article 124 and clause (1) of article 217 of the Constitution withrespect to the meaning of “consultation” as “concurrence”. Consequently, aMemorandum of Procedure for appointment of Judges to the Supreme Court andHigh Courts was formulated, and is being followed for appointment.3. After review of the relevant constitutional provisions, thepronouncements of the Supreme Court and consultations with eminent Jurists,it is felt that a broad based National Judicial Appointments Commissionshould be established for making recommendations for appointment of Judgesof the Supreme Court and High Courts. The said Commission would provide ameaningful role to the judiciary, the executive and eminent persons topresent their view points and make the participants accountable, while alsointroducing transparency in the selection process.4. The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 isan enabling constitutional amendment for amending relevant provisions ofthe Constitution and for setting up a National Judicial AppointmentsCommission. The proposed Bill seeks to insert new articles 124A, 124B and124C after article 124 of the Constitution. The said Bill also provides forthe composition and the functions of the proposed National JudicialAppointments Commission. Further, it provides that Parliament may, by law,regulate the procedure for appointment of Judges and empower the NationalJudicial Appointments Commission to lay down procedure by regulation forthe discharge of its functions, manner of selection of persons forappointment and such other matters as may be considered necessary.5. The proposed Bill seeks to broad base the method of appointment ofJudges in the Supreme Court and High Courts, enables participation ofjudiciary, executive and eminent persons and ensures greater transparency,accountability and objectivity in the appointment of the Judges in theSupreme Court and High Courts.6. The Bill seeks to achieve the above objectives.New Delhi; Ravi Shankar PrasadThe 8th August, 2014.”Based on the non-disclosure of reasons, why the existing procedure wasperceived as unsuitable, it was contended, that the only object sought tobe achieved was, to dilute the primacy, earlier vested with the ChiefJustice of India (based on a decision of a collegium of Judges), providedfor under Articles 124 and 217, as originally enacted. This had been doneaway, it was pointed out, by substituting the Chief Justice of India, withthe NJAC.25. The primary submission advanced at the hands of Mr. Fali S. Nariman,Senior Advocate, was with reference to the violation of the “basicstructure”, not only through the Constitution (99th Amendment) Act, butalso, by enacting the NJAC Act. It was pointed out, that since thecommencement of the Constitution, whenever changes were recommended inrespect of the appointment of Judges, the issue which remained the focus ofattention was, the primacy of the Chief Justice of India. Primacy, it wascontended, had been recognized as the decisive voice of the judiciary,based on a collective decision of a collegium of Judges, representing itscollegiate wisdom. It was submitted, that the Chief Justice of India, asan individual, as well as, Chief Justices of High Courts, as individuals,could not be considered as persona designate. It was pointed out, thatthe judgment rendered in the Second Judges case, had not become irrelevant. This Court, in the above judgment, provided for the preservation of the“independence of the judiciary”. The aforesaid judgment, as also, thelater judgment in the Third Judges case, re-established and reaffirmed,that the Chief Justice of India, represented through a body of Judges, hadprimacy. According to learned counsel, the individual Chief Justice ofIndia, could not and did not, represent the collective opinion of theJudges. It was asserted, that the Constitution (99th Amendment) Act, andthe NJAC Act, had done away with, the responsibility vested with the ChiefJustice of India, represented through a collegium of Judges (under Articles124 and 217 – as originally enacted). Accordingly, it was submitted, thattill 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.26. Insofar as the issue in hand is concerned, it was the pointedcontention of the learned counsel, that the decision rendered by this Courtin Sardari Lal v. Union of India[37], came to be overruled in the SamsherSingh case11. Referring to the judgment in the Samsher Singh case11, heinvited this Court’s attention to the following observations recordedtherein:“147. In J.P. Mitter v. Chief Justice, Calcutta AIR 1965 SC 961 this Courthad to consider the decision of the Government of India on the age of aJudge of the Calcutta High Court and, in that context, had to ascertain thetrue scope and effect of Article 217(3) which clothes the President withexclusive jurisdiction to determine the age of a Judge finally. In thatcase the Ministry of Home Affairs went through the exercise prescribed inArticle 217(3). “The then Home Minister wrote to the Chief Minister, WestBengal, that he had consulted the Chief Justice of India, and he agreedwith the advice given to him by the Chief Justice, and so he had decidedthat the date of birth of the appellant was....It is this decision whichwas, in due course communicated to the appellant”. When the said decisionwas attacked as one reached by the Home Minister only and not by thePresident personally, the Court observed:“The alternative stand which the appellant took was that the Executive wasnot entitled to determine his age, and it must be remembered that thisstand was taken before Article 217(3) was inserted in the Constitution; theappellant was undoubtedly justified in contending that the Executive wasnot competent to determine the question about his age because that is amatter which would have to be tried normally, in judicial proceedingsinstituted before High Courts of competent jurisdiction. There isconsiderable force in the plea which the appellant took at the initialstages of this controversy that if the Executive is allowed to determinethe age of a sitting Judge of a High Court, that would seriously affect theindependence of the Judiciary itself.”Based on this reasoning, the Court quashed the order, the ratio of the casebeing that the President himself should decide the age of the Judge,uninfluenced by the Executive, i.e. by the Minister in charge of theportfolio dealing with justice.148. This decision was reiterated in Union of India v. Jyoti Prakash Mitter(1971) 1 SCC 396. Although an argument was made that the President wasguided in that case by the Minister of Home Affairs and by the PrimeMinister, it was repelled by the Court which, on the facts, found thedecision to be that of the President himself and not of the Prime Ministeror the Home Minister.149. In the light of the scheme of the Constitution we have alreadyreferred to, it is doubtful whether such an interpretation as to thepersonal satisfaction of the President is correct. We are of the view thatthe President means, for all practical purposes, the Minister or theCouncil of Ministers as the case may be, and his opinion, satisfaction ordecision is constitutionally secured when his Ministers arrive at suchopinion satisfaction or decision. The independence of the Judiciary, whichis a cardinal principle of the Constitution and has been relied on tojustify the deviation, is guarded by the relevant article-makingconsultation with the Chief Justice of India obligatory. In all conceivablecases consultation with that highest dignitary of Indian justice will andshould be accepted by the Government of India and the Court will have anopportunity to examine if any other extraneous circumstances have enteredinto the verdict of the Minister, if he departs from the counsel given bythe Chief Justice of India. In practice the last word in such a sensitivesubject must belong to the Chief Justice of India, the rejection of hisadvice being ordinarily regarded as prompted by oblique considerationsvitiating the order. In this view it is immaterial whether the President orthe Prime Minister or the Minister for Justice formally decides the issue.”27. It was pointed out, that the decision in the Samsher Singh case11,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 wasguaranteed. The view expressed in the Samsher Singh case11 in 1974 was,that the final authority in the matter of appointment of Judges to thehigher judiciary, rested with the Chief Justice of India. It was pointedout, that the above position had held the field, ever since. It wassubmitted, that “independence of the judiciary” has always meant andincluded independence in the matter of appointment of Judges to the higherjudiciary.28. Mr. Arvind P. Datar, learned Senior Advocate contended, that the NJAChad been created by an amendment to the Constitution. It therefore was acreature of the Constitution. Power had been vested with the NJAC to makerecommendations of persons for appointment as Judges to the higherjudiciary, including the power to transfer Chief Justices and Judges ofHigh Courts, from one High Court to another. The above constitutionalauthority, it was submitted, must be regulated by a constitutional scheme,which must flow from the provisions of the Constitution itself. Therefore,it was asserted, that the manner of functioning of the NJAC must becontained in the Constitution itself. It was submitted, that the method offunctioning of the NJAC, could not be left to the Parliament, to beregulated by ordinary law. In order to support his aforestated contention,reliance was placed on entries 77 and 78, contained in the Union List ofthe Seventh Schedule. It was submitted, that the power to framelegislation, with reference to entries 77 and 78 was not absolute, inasmuchas, Article 245 authorized the Parliament, to legislate on subjects fallingwithin its realm, subject to the substantive provisions contained in theConstitution. For the above reason, it was asserted, that the activities ofthe NJAC could not be made subject to, or subservient to, the power vestedin the Parliament, under entries 77 and 78.29. It was contended by Mr. Ram Jethmalani, learned Senior Advocate, thatthere was sufficient circumstantial evidence to demonstrate, that thepresent political establishment felt, that the judiciary was an obstaclefor the implementation of its policies. It was contended, that the entireeffort, was to subdue the judiciary, by inducting into the selectionprocess, 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, in the first instance,pointed out, that the first Bill to constitute a National JudicialCommission [the Constitution (67th Amendment) Bill, 1990] was introduced inthe Lok Sabha on 18.5.1990. The statement of its “Objects and Reasons”,which was relied upon, is extracted below:“The Government of India have in the recent past announced their intentionto set up a high level judicial commission, to be called the NationalJudicial Commission for the appointment of Judges of the Supreme Court andof the High Courts and the transfer of Judges of the High Courts so as toobviate the criticisms of arbitrariness on the part of the Executive insuch appointments and transfers and also to make such appointments withoutany delay. The Law Commission of India in their One Hundred and Twenty-first Report also emphasised the need for a change in the system.2. The National Judicial Commission to make recommendations with respect tothe appointment of Judges of the Supreme Court will consist of the ChiefJustice of India and two other Judges of the Supreme Court next inseniority to the Chief Justice of India. The Commission to makerecommendations with respect to the appointment of the Judges of the HighCourts will consist of the Chief Justice of India, one senior-most Judge ofthe Supreme Court, the Chief Minister of the State concerned, Chief Justiceof the concerned High Court and one senior-most Judge of that High Court.3. The Bill seeks to achieve the above object.NEW DELHI;The 11th May, 1990;”The proposed National Judicial Commission in the above Bill, was to be madea component of Part XIIIA of the Constitution, by including therein Article307A. The Chief Justice of India, and the next two senior most Judges ofthe Supreme Court, were proposed to comprise of the contemplatedCommission, for making appointments of Judges to the Supreme Court, ChiefJustices and Judges to High Courts, and for transfer of High Court Judgesfrom one High Court to another. The above Commission, omitted any executiveand legislative participation. The proposed composition of the Commission,for appointing High Court Judges, included the Chief Justice of India, theChief Minister or the Governor of the concerned State, the senior mostJudge of the Supreme Court, the Chief Justice of the concerned High Court,and the senior most Judge of that Court. The above Bill also provided for,an independent and separate secretarial staff for the contemplatedCommission. It was submitted, that the above amendment to the Constitution,was on account of the disillusionment and incredulity with the legalposition, expounded by this Court in the First Judges case. It wassubmitted, that the necessity to give effect to the proposed Constitution(67th Amendment) Bill, 1990, stood obviated when this Court rendered itsjudgment in the Second Judges case. All this, according to learned counselfor the petitioners, has been forgotten and ignored.30. Historically, the next stage, was when the Constitution (98thAmendment) Bill, 2003 was placed before the Parliament for itsconsideration. In the above Bill, the executive participation in theprocess of selection and appointment of Judges to the higher judiciary, wasintroduced by making the Union Minister of Law and Justice, an ex officioMember of the Commission. Two eminent citizens (either eminent jurists, oreminent lawyers, or legal academicians of high repute) would also beMembers of the Commission. One of them was to be appointed by the Presidentin consultation with the Chief Justice of India, and the other, inconsultation with the Prime Minister. Yet another effort was made (by theprevious U.P.A. Government), in the same direction, through theConstitution (120th Amendment) Bill, 2013, on similar lines as the 2003Bill. It was sought to be pointed out, that there was a consensus amongstall the parties, that the aforesaid Bill should be approved. And that,learned counsel personally, as a Member of the Rajya Sabha, had stronglycontested the above move. Learned counsel invited this Court’s attention tothe objections raised by him, during the course of the debate before theRajya Sabha. He emphasized, that he had submitted to the Parliament, thatthe Constitution Amendment Bill, needed to be referred to the SelectCommittee of the Parliament, as the same in his opinion wasunconstitutional. An extract of the debate was also brought to our notice(by substituting the vernacular part thereof, with its Englishtranslation), it is being reproduced hereunder:“My suggestion is: Let the Judicial Appointments Commission Bill go to theStanding Committee. The rest of the business we should pass today. Thankyou.Shri Ram Jethmalali: Madam, thank you; better late than never.Sir, I wish to make two preliminary suggestions. If there is an assurancethat the Constitution (Amendment) Bill as well as the subsidiary Bill willboth be referred to a Select Committee of Parliament, I do not propose toaddress this House at all. But, I do not consider it suitable or properthat only the second Bill should be referred to a Select Committee. Bothshould be sent. And, I will give my reasons.Sir, the second suggestion that I have to make is this. My maincontention, which I am going to make, is that the Constitution (Amendment)Bill is wholly unconstitutional and, if passed, it will undoubtedly be setaside by the Supreme Court, because it interferes with the basic feature ofthe Constitution. Such amendments of the Constitution are outside thejurisdiction of this House. The amendment process prescribed by theConstitution requires 2/3rd majority and so on and so forth. That appliesonly to those amendments of the Constitution which do not touch what arecalled the basic features of the Constitution as understood in theKesavananda Bharati case. This Constitutional amendment, certainly,interferes with a basic feature of the Indian Constitution and it will notbe sustained ever. But, if it is said that even if you pass it, it willnot be brought into force until a Reference is made to the Supreme Courtand the Supreme Court answers the question of the validity of thisConstitution amendment in the affirmative. If that is done, I, again, neednot speak. But, Sir, since I don’t expect both these reasonablesuggestions to be accepted, I intend to speak and speak my mind. xxx xxx xxxKapil is my great friend and is one of the Ministers in the Governmentwhose work as the Law Minister I keep supervising and I am happy the mannerin which he conducts his Ministry. But, Sir, I must declare today that myconscience, understanding and my duty towards the people of this country,which I regard as my paramount obligation, do not permit me to submit tothis kind of legislation. Both the Bills, according to me are evil. Theevil, first of all, consists in the misleading Statement of Objects-and-Reasons. You ought to have said with complete honesty that what you aretrying 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 havespoken on the assumption that that is the purpose of this particular pieceof legislation.Sir, the first point that I propose to make is that the 1993 judgment ofNine Judges is a judgment based upon the discovery of the basic feature ofthe Constitution, and upon devising a system to sustain that basic feature.Madam, I have myself appeared in that litigation and I claim that I had atremendous contribution to make to the success of that judgment. In asense, I claim to be the founder of the Collegium System. But that does notmean that I am an unmixed admirer of the Collegium System. The CollegiumSystem has, doubtless, some faults. But the Collegium System came intoexistence on the basis of one main argument. That one main argument that weadvance, and advance with great vigour and force, is that there is onearticle of the Constitution, article 50 of the Constitution, which is theshortest article in the Constitution, consisting of only one sentence. Thatarticle says that the Government shall strive to keep the Judiciaryseparate from the Executive.Sir, we argued before the Supreme Court that this article does not meanthat Judges and Ministers should not socially meet. This does not mean thatthey should live in separate towns, or that they should not live even inadjoining bungalows. The purpose of this article is to ensure that in theappointment of Judges, the Executive has no role to play, except theadvisory role. In other words, the doctrine of primacy of the Executive inthe appointment process was irksome to us because the whole nation of Indiahas been the victim of the Judges appointed in the earlier system. I havebeen a refugee from my own country during the Emergency. Why was it? It wasbecause four Supreme Court Judges – I am not talking of the fifth whoearned the New York Times praise that the Indian nation will have to builda monument to his memory; I am talking of the other four who – disgracedthe Judiciary, disgraced the Supreme Court and were parties to thedestruction of Indian democracy and the demolition and the debasement ofthe whole Constitution of India. Sir, of which system were they theproduct? They were the product of that system which, in 1981, wasultimately supported by the Gupta Judgment but, after some time, there werepeople, intellectuals, who spoke up that this system would not work; thesystem requires change. Sir, the Indian democracy has been saved not byintellectuals; Indian democracy at its most crucial hour has been saved bythe poor illiterates of this country.In times of crises, it is only the brave hearted who matter. On thosewhich one had pride remained tongue tied (Two sentences translated).That is the tragedy of our country. Sir, the intellectuals of this countryhave continuously failed, and I regret to say that they are failing eventoday. Collegium may be the creation of the Judiciary, it is the creationof judicial interpretation, again, of the Constitution, but whatever be thefaults of the Collegium, the Collegium today represents some system whichis consistent with the basic features of the Constitution, namely, thesupremacy of the Judiciary and its freedom from any influence of theExecutive in the appointment process. xxx xxx xxxSir, I am speaking for those who are not irrevocably committed to votingfor this amendment. There are some people who must have kept their mindsstill open. I am appealing to those minds today only. Those who areirrevocably committed are committed to the destruction of Indian democracy.Sir, the key passage in the judgment of the Supreme Court of 1993 is thepassage which I wish to share with the House. The question of primacy tothe opinion of the Chief Justice of India in the matters of appointment andtransfer and their justifiability should be considered in the context ofthe independence of the Judiciary as a part of the basic structure of theConstitution to secure the rule of law essential for preservation of thedemocratic system. The broad scheme of separation of powers adopted in theConstitution together with the Directive Principles of separation of theJudiciary from the Executive, even at the lowest strata, provides someinsight to the true meaning of the relevant provisions of the Constitutionrelating to the composition of the Judiciary. The construction of theseprovisions must accord with these fundamental concepts in theConstitutional scheme to preserve the vitality and promote the growth ofthe essential of retaining the Constitution as a vibrant organism”.Sir, the Constitution cannot survive, human freedom cannot survive,citizens’ human rights cannot survive, no development can take placeunless, of course, the judges are independent first of the Executive powerbecause don’t forget that every citizen has a grievance against the corruptmembers of the Executive, or, errant bureaucracy, public officers misusingpower, indulging in corruption, making wrong and illegal orders. Thecitizen goes to the court, knocks the door of the court and says, “Pleasegive me a mandamus against this corrupt official, against this corruptMinister”. And, Sir, the judges are supposed to decide upon the claims ofthe poorest who go to the Supreme Court... ...(Interruptions)... ...and tothe judges. It may be, and I am conscious... ...(Interruptions)... Sir,this is not a laughing matter. Please listen, and then decide for yourself.... xxx xxx xxxSir, first of all, let me say this now that the whole judgement of nineJudges is based upon this principle that in the appointment process, theExecutive can never have primacy. This is principle number one. It has nowbecome the basic feature of India's Constitution. My grievance todayagainst this Constitution (Amendment) Bill is that you are slowly, slowlynow creating a new method by which ultimately you will revert to the systemwhich existed prior to 1993. In other words, the same system would producethose four Judges who destroyed the Indian democracy, human rights andfreedom. Sir, kindly see, why. The Constitution Amendment looks veryinnocent. All that it says is that we shall have a new article 124(a) inthe Constitution and article 124(a) merely says that there shall be aJudicial Appointments Commission. It lays down that the JudicialAppointments Commission will have these functions. It leaves at that. But,kindly see that after the first sentence, every thing is left to aParliamentary will. After saying that there will be a Judicial AppointmentsCommission, every thing will be left, according to the second part of124(a), to a parliamentary legislation which is capable of being removed ifthe ruling party has one Member majority in both Houses of Parliament. Notonly that, I understand that Parliament is not likely to do it, but it cando it and by a majority of one in both Houses, you can demolish the wholething and substitute it with a Judicial Commission which will consist ofonly the Law Minister. xxx xxx xxxSo, Sir, my first objection is that this Bill is a Bill which is intendedto deal with the basic structure of the Constitution and, therefore, thisBill is void. (Time-bell) Second, if a Constitutional Amendment is not goodenough for this purpose, surely, an ordinary piece of legislation cannot doit, which ordinary piece of legislation can be removed only by a majorityof one in each House. It can be removed like the 30th July Food SecurityOrdinance and you can pass an Ordinance on that day and say that the wholeAct is repealed and now the system will be that Judges will be appointedfor the next six months by only the Law Minister of India. If there was Mr.Kapil Sibal, ...(Interruptions)... If Mr. Kapil Sibal becomes the LawMinister for ever, Sir, I will allow this Bill to go. (Time-bell) But I amnot prepared to accept it for the future Law Ministers....(Interruptions)... Sir, let me take two more minutes and tell all thoseMembers 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 human, there will be some Judges who will gowrong, who may go wrong. But a great Bar can control them. ….” xxx xxx xxxSir, I hope, people will avoid this kind of a tragedy in the life of thiscountry. You are today digging the grave of the Constitution of India andthe freedom of this country. ...(Interruptions)... That's all I wished tosay. ...(Interruptions)...”It was submitted, that in the Rajya Sabha 131 votes were cast inaffirmation of the proposed Bill, as against the solitary vote of thelearned counsel, against the same on 5.9.2013. It was however pointed out,that the effort did not bear fruit, on account of the interveningdeclaration for elections to the Parliament.31. Learned counsel thereafter, invited our attention to the statement of“Objects and Reasons” for the promulgation of the Constitution (121stAmendment) Bill, 2014. The Bill which eventually gave rise to the impugnedConstitution (99th Amendment) Act, was taken up for consideration by theLok Sabha on 13.8.2014, and was passed without much debate. It wassubmitted, that on the following day i.e., 14.8.2014, the same was placedbefore the Rajya Sabha, and was again passed, without much discussion. Itwas pointed out, that an issue, as serious as the one in hand, which couldhave serious repercussions on the “independence of the judiciary”, wassought to be rushed through.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. Itwas submitted, that it was imperative to have brought to the notice of theParliament, 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 couldnot be abrogated, through a constitutional amendment. And further that, theSupreme Court had expressly provided for the primacy of the Chief Justiceof India, based on a decision of a collegium of Judges, with reference tothe appointments and transfers of Judges of the higher judiciary.33. It was submitted by Mr. Ram Jethmalani, that the impugnedconstitutional amendment, so as to introduce Article 124A, ought to bedescribed as a fraud on the Constitution itself. It was pointed out, thatthe first effort of introducing Article 124A was made by the previousGovernment, through the Constitution (120th Amendment) Bill, 2013. In theabove Bill, Article 124A alone (as against Articles 124A to 124C, presentlyenacted) was introduced. It was submitted, that the Rajya Sabha passed theabove Bill on 5.9.2013, when 131 Members of the Rajya Sabha supported theBill (with only one Member opposing it). Learned counsel submitted, thathe alone had opposed the Bill. It was asserted, that the above fraud wassought to be perpetuated, through the passing of the Constitution (121stAmendment) Bill, 2014, by the Lok Sabha on 13.8.2014, and by the RajyaSabha on 14.8.2014. It was pointed out, that Parliamentarians fromdifferent political parties had joined hands. It was submitted, that as aParliamentarian, he was in a position to assert, that the merits anddemerits of the impugned amendment to the Constitution, were not debated,when the Bill was passed, because of the universal bias entertained by thelegislature, against the judiciary. It was submitted, that prejudice andintolerance had arisen, because of the fact that the judiciary ofteninterfered with, and often effaced legislative action(s), as also,executive decision(s).34. Learned senior counsel also asserted, that the Constitution (99thAmendment) Act, was wholly ultra vires, as it seriously infringed the“basic structure/feature” of the Constitution i.e., the “independence ofthe judiciary”. It was submitted, that the veracity of the aboveconstitutional amendment, had to be examined in the light of Article 50.According to learned counsel, the politicization of the process ofselection and appointment of Judges to the higher judiciary, would lead toa dilution of the “independence of the judiciary”. It was submitted, thatthe inclusion of the Union Minister in charge of Law and Justice, as an exofficio Member of the NJAC, had the effect of politicization of the processof appointment of Judges to the higher judiciary. It was pointed out, thatthe inclusion of the Union Minister in charge of Law and Justice within theframework of the NJAC, meant the introduction of the Government of the day,into the selection process. It was asserted, that the Union Minister’sinclusion, meant surrendering one-sixth of the power of appointment, to theGovernment. It was submitted, that in order to understand the true effectof the inclusion of the Union Minister, into the process of selection andappointment of Judges to the higher judiciary, one had to keep in mind thetremendous amount of patronage, which the Union Minister for Law andJustice carries, and as such, it would be within the inference of the UnionMinister in charge of Law and Justice, to make the process fallible, byextending his power of patronage to support or oppose candidates, who maybe suitable or unsuitable, to the Government of the day. Even though theUnion Minister had been assigned only one vote, it was submitted, that hecould paralyse the whole system, on the basis of the authority heexercised. To drive home his contention, learned counsel made a referenceto the introduction of the book “Choosing Hammurabi – Debates on JudicialAppointments”, edited by Santosh Paul. In the introduction to the book,the thoughts of H.L. Mencken are expressed in the following words:“But when politicians talk thus, or act thus without talking, it isprecisely the time to watch them most carefully. Their usual plan is toinvade the constitution stealthily, and then wait to see what happens. Ifnothing happens they go on more boldly; if there is a protest they replyhotly that the constitution is worn out and absurd, and that progress isimpossible 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 towhittle away the common rights of the rest of us. Their one and onlyobject, now and always, is to get more power in to their hands that it maybe used freely for their advantage, and to the damage of everyone else.Beware of all politicians at all times, but beware of them most sharplywhen they talk of reforming and improving the constitution.”35. Learned Senior Advocate also contended, that the inclusion of two“eminent persons” in the six-Member NJAC, as provided for, under Article124A(1) of the Constitution (99th Amendment) Act, was also clearlyunconstitutional. It was contended, that there necessarily had to be, anindication of the positive qualifications required to be possessed by thetwo “eminent persons”, to be nominated to the NJAC. Additionally, it wasnecessary to stipulate disqualifications. Illustratively, it was pointedout, that an individual having a conflict of interest, should bedisqualified. And such conflict would be apparent, when the individual hada political role. A politician has to serve his constituency, he has tonourish and sustain his vote bank, and above all, he has to conform withthe agenda of his political party. Likewise, a person with ongoinglitigation, irrespective of the nature of such litigation, would renderhimself ineligible for serving as an “eminent person” within the frameworkof the NJAC, because of his conflict of interest.36. With reference to the inclusion of two “eminent persons” in the NJAC,Mr. Arvind P. Datar, learned Senior Advocate, invited our attention toArticle 124A, whereunder, the above two “eminent persons” are to benominated by a committee comprising of the Prime Minister, the ChiefJustice 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 singlelargest opposition party in the House of the People. Learned counselsubmitted, that neither Article 124A, nor any other provision, and not eventhe provisions of the NJAC Act, indicate the qualifications, of the two“eminent persons”, who have been included amongst the six-Member NJAC. Itwas sought to be asserted, that in approximately 70 Statutes and Rules, theexpression “eminent person” has been employed. Out of the 70 Statutes, in67, the field in which such persons must be eminent, has been clearlyexpressed. Only in three statutes, the term “eminent person” was usedwithout any further qualification. It was asserted, that the term “eminentperson” had been left vague and undefined, in Article 124A. It wassubmitted, that the vagueness of the term “eminent person” was itself, goodenough to justify the striking down of the provision. It was emphasized,that the determinative role assigned to the two “eminent persons”, includedamongst the six-Member NJAC, was so important, that the same could not beleft to the imagination of the nominating committee, which comprised ofjust men “…with all the failings, all the sentiments and all prejudiceswhich we as common people have…” (relying on the words of Dr. B.R.Ambedkar).37. Referring to the second proviso under Section 5(2), as well as,Section 6(6) of the NJAC Act, it was submitted, that a recommendation forappointment of a Judge, could not be carried out, if the two “eminentpersons” did not accede to the same. In case they choose to disagree withthe other Members of the NJAC, the proposed recommendation could not begiven effect to, even though the other four Members of the NJAC includingall the three representatives of the Supreme Court approved of the same.It was pointed out, that the two “eminent persons”, therefore would have adecisive say. It was further submitted, that the impact of thedetermination of the two “eminent persons”, would be such, as would negatethe primacy hitherto before vested in the Chief Justice of India. It waspointed out, that a positive recommendation by the Chief Justice of India,supported by two other senior Judges of the Supreme Court (next to theChief Justice of India), could be frustrated by an opposition at the handsof the two “eminent persons”. The above implied veto power, according tothe learned counsel, could lead to structured bargaining, so as to persuadethe other Members of the NJAC, to accede to the names of undesirablenominees (just to avoid a stalemate of sorts). It was submitted, that sucha composition had been adversely commented upon by this Court in Union ofIndia v. R. Gandhi[38]. In the judgment, the provision, which was subjectmatter of consideration, was Section 10-FX. Under the above provision, theSelection Committee for appointing the Chairperson and Members of theAppellate Tribunal, and the President and Members of the Tribunal was to becomprised of the Chief Justice of India (or his nominee), besides fourSecretaries from different Ministries of the Union Government. This Courtrecorded its conclusions with reference to the aforesaid provision inparagraph 120(viii), which is being extracted hereunder:“120(viii) Instead of a five-member Selection Committee with the ChiefJustice of India (or his nominee) as Chairperson and two Secretaries fromthe Ministry of Finance and Company Affairs and the Secretary in theMinistry of Labour and the Secretary in the Ministry of Law and Justice asmembers mentioned in Section 10-FX, the Selection Committee should broadlybe on the following lines:(a) Chief Justice of India or his nominee – Chairperson (with a castingvote);(b) A Senior Judge of the Supreme Court or Chief Justice of High Court –Member;(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 notexclusivity, but primacy. It is further submitted, that if primacy wasconsidered to be important for selection of Members to be appointed to atribunal, primacy assumed a far greater significance, when the issue underconsideration was appointment and transfer of Judges of the higherjudiciary. It was accordingly contended, that the manner in which thecomposition of the NJAC had been worked out in Article 124A, and the mannerin which the NJAC is to function with reference to the provisions of theNJAC Act, left no room for any doubt, that the same was in clear violationof the law laid down by this Court, and therefore, liable to be set aside.38. Learned counsel on the above facts, contested not only theconstitutional validity of clauses (c) and (d) of Article 124A(1), but alsoemphatically assailed the first proviso under Article 124A(1)(d), whichpostulates, that one of the “eminent persons” should belong to theScheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities orWomen. It was submitted, that these sort of populistic measures, ought notto be thought of, while examining a matter as important as the higherjudiciary. It was submitted, that it was not understandable, what thechoice of including a person from one of the aforesaid categories was aimedat. In the opinion of learned counsel, the above proviso was farcical, andtherefore, totally unacceptable. While members of a particular communitymay be relevant for protecting the interest of their community, yet itcould not be conceived, why such a measure should be adopted, for such animportant constitutional responsibility. In the opinion of the learnedcounsel, the inclusion of such a Member in the NJAC, was bound to lead tocompromises.39. It was also the contention of Mr. Arvind P. Datar, that Article 124Cintroduced by the Constitution (99th Amendment) Act, was whollyunnecessary. It was pointed out, that in the absence of Article 124C, theNJAC would have had the inherent power to regulate its own functioning. Itwas submitted, that Article 124C was a serious intrusion into the aboveinherent power. Now that, the Parliament had been authorized to regulatethe procedure for appointments by framing laws, it would also result in thetransfer of control over the appointment process (–of Judges to the higherjudiciary), to the Parliament. It was submitted, that there could not beany legislative control, with reference to appointment of Judges to thehigher judiciary. Such legislative control, according to learned counsel,would breach “independence of the judiciary”. It was submitted, that theParliament having exercised its authority in that behalf, by framing theNJAC Act, and having provided therein, the ultimate control with theParliament, must be deemed to have crossed the line, and transgressed intoforbidden territory, exclusively reserved for the judiciary. Learnedcounsel contended, that the duties and responsibilities vested in aconstitutional authority, could only be circumscribed by the Constitution,and not by the Parliament through legislation. It was submitted, that theNJAC was a creature of the Constitution, as the NJAC flows out of Article124A. Likewise, the Parliament, was also a creature of the Constitution.It was submitted, that one entity which was the creation of theConstitution, could not regulate the other, owing its existence to theConstitution.40. It was pointed out by Mr. Ram Jethmalani, learned Senior Advocate,that the statement of “Objects and Reasons”, as were projected for theinstant legislation, indicated inter alia, that the NJAC would provide “ameaningful role to the judiciary”. It was submitted, that what was meant bythe aforesaid affirmation, was not comprehendible to him. It was furtherhighlighted, that it also asserted in the “Objects and Reasons”, that “theexecutive and the eminent persons to present their viewpoints and make theparticipants accountable”, was likewise unintelligible to him. It wassubmitted, that a perusal of the Constitution (99th Amendment) Act (asalso, the NJAC Act) would not reveal, how the Members of the NJAC were tobe made responsible. It was further submitted, that the statement of“Objects and Reasons” also indicate, that the manner of appointment ofJudges to the higher judiciary, would introduce transparency in theselection process. It was contended, that the enactments under reference,amounted to commission of a fraud by Parliament, on the people of thecountry. As it was not possible to understand, how and who was to be madeaccountable – the executive, – the “eminent persons”, – the judiciaryitself. It was accordingly sought to be asserted, that the Parliamentseemed to be asserting one thing, while it was doing something else.Learned counsel also placed reliance on Shreya Singhal v. Union ofIndia[39], wherefrom the following observations were brought to our notice:“50. Counsel for the Petitioners argued that the language used in Section66A is so vague that neither would an accused person be put on notice as towhat exactly is the offence which has been committed nor would theauthorities administering the Section be clear as to on which side of aclearly 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, andfanciful than the ones in the matter at hand.41. Mr. Anil B. Divan, Senior Advocate, while appearing for thepetitioner in the petition filed by the Bar Association of India (WritPetition (C) No.108 of 2015), first and foremost pointed out, that the BarAssociation of India represents the High Court Bar Association, Kolkata(West Bengal), The Awadh Bar Association, Lucknow (Uttar Pradesh), theMadras Bar Association, Chennai (Tamil Nadu), the Supreme Court BarAssociation, New Delhi, the Gujarat High Court Advocates’ Association,Gandhinagar (Gujarat), the Advocates’ Association, Chennai (Tamil Nadu),the Andhra Pradesh High Court Advocates’ Association, Hyderabad (AndhraPradesh), the Delhi High Court Bar Association, New Delhi, the BarAssociation Mumbai (Maharashtra), the Gauhati High Court Bar Association,Guwahati (Assam), the Punjab & Haryana High Court Bar Association,Chandigarh (Punjab & Haryana), the Bombay Incorporated Law Society, Mumbai(Maharashtra), the Madhya Pradesh High Court Bar Association, Jabalpur(Madhya Pradesh), the Advocates’ Association Bangalore (Karnataka), theCentral Excise, Customs (Gold) Control Bar Association, New Delhi, theAdvocates’ Association, Allahabad (Uttar Pradesh), the Karnataka Advocates’Federation, Bangalore (Karnataka), the Allahabad High Court Bar Association(Uttar Pradesh), the Goa High Court Bar Association, Panaji (Goa), theSociety of India Law of Firms, New Delhi, the Chhattisgarh High Court BarAssociation, Bilaspur (Chhattisgarh), the Nagpur High Court BarAssociation, Nagpur (Maharashtra), the Madurai Bench of Madras High CourtBar Association, Madurai (Tamil Nadu), the Jharkhand High Court BarAssociation, Ranchi (Jharkhand), the Bar Association of National CapitalRegion, New Delhi, and the Gulbarga High Court Bar Association, Gulbarga(Karnataka). It was submitted, that all the aforementioned Bar Associationswere unanimous in their challenge, to the Constitution (99th Amendment)Act, and the NJAC Act. It was submitted, that the challenge to the formerwas based on the fact that it violated the “basic structure” of theConstitution, and the challenge to the latter, was based on its being ultravires the provisions of the Constitution.42. Learned counsel had adopted a stance, which was different from theone adopted by others. The submissions advanced by the learned seniorcounsel, were premised on the fact, that under the constitutional power ofjudicial review, the higher judiciary not only enforced fundamental rights,but also restricted the legislature and the executive, within the confinesof their jurisdiction(s). It was pointed out, that it was the abovepower, which was the source of tension and friction between the judiciaryon the one hand, and the two other pillars of governance i.e., thelegislature and the executive, on the other. This friction, it was pointedout, was caused on account of the fact, that while discharging itsresponsibility of judicial review, executive backed actions of thelegislature, were sometimes invalidated, resulting in the belief, that thejudiciary was influencing and dominating the other two pillars ofgovernance. Illustratively, it was pointed out, that in the beginning ofindependent governance of the country, judicial review led to the settingaside of legislations, pertaining to land reforms and zamindari abolition.This had led to the adoption of inserting legislations in the NinthSchedule of the Constitution, so as to exclude them from the purview ofjudicial review.43. It was submitted, that the first manifestation of a confrontationbetween the judiciary and the other two wings of governance, were indicatedin the observations recorded in State of Madras v. V.G. Row[40], wherein,as far back as in 1952, the Supreme Court observed, that its conclusionswere recorded, not out of any desire to a tilt at the legislative authorityin a crusader’s spirit, but in discharge of the duty plainly laid upon theCourts, by the Constitution.44. It was submitted, that the legislations placed in the Ninth Scheduleof the Constitution, from the original 13 items (relating to land reformsand zamindari abolition), multiplied at a brisk rate, and currentlynumbered about 284. And many of them, had hardly anything to do with landreforms. It was contended, that the decision rendered by this Court inI.C. Golak Nath v. State of Punjab[41], was a judicial reaction to theuninhibited insertions in the Ninth Schedule, leading to completelyeclipsing fundamental rights. It therefore came to be held in the I.C.Golak Nath case41, that Parliament by way of constitutional amendment(s)could not take away or abridge fundamental rights.45. To project his contention, pertaining to tension and friction betweenthe judiciary and the other two wings of governance, it was submitted, thatfrom 1950 to 1973, there was virtually no attempt by the political-executive, to undermine or influence or dominate over the judiciary. Itwas pointed out, that during the aforesaid period, when Jawaharlal Nehru(upto 27th May, 1964), Gulzari Lal Nanda (upto 9th June, 1964), Lal BahadurShastri (upto 11th January,1966), Gulzari Lal Nanda (upto 24th January,1966) and Indira Gandhi (upto 1972) were running the executive andpolitical governance in India, in their capacity as Prime Minister, had nottaken any steps to dominate over the judiciary. Thereafter, two factscould not be digested by the political-executive leadership. The first,the abolition of the Privy Purses by an executive fiat, which wasinvalidated by the Supreme Court in Madhavrao Scindia Bahadur v. Union ofIndia[42]. And the second, the fundamental rights case, namely, theKesavananda Bharati case10, wherein the Supreme Court by a majority of 7:6,had propounded the doctrine of “basic structure” of the Constitution, whichlimited the amending power of the Parliament, under Article 368. As asequel to the above judgments, the executive attempted to intimidate thejudiciary, by the first supersession in the Supreme Court on 25.4.1973.Thereafter, internal emergency was declared on 25.06.1975, which continuedtill 21.03.1977. It was submitted, that during the emergency, by way ofconstitutional amendment(s), the power of judicial review vested in thehigher judiciary, was sought to be undermined. It was submitted, that theintrusion during the emergency came to be remedied when the Janata Partycame to power on 22.03.1977, through the 43rd and 44th ConstitutionalAmendments, which restored judicial review, to the original positionprovided for by the Constituent Assembly.46. It was submitted, that in the recent past also, the exercise of thepower of judicial review had been inconvenient for the political-executive,as it resulted in exposing a series of scams. In this behalf, referencewas made to two judgments rendered by this Court, i.e., Centre for PublicInterest Litigation v. Union of India[43], and Manohar Lal Sharma v.Principal Secretary[44]. It was submitted, that the executive and thelegislature can never appreciate that the power of judicial review has beenexercised by the higher judiciary, as a matter of public trust. As asequel to the above two judgments, it was pointed out, that an amount ofapproximately Rupees two lakh crores (Rs. 20,00,00,00,00,000/-) was gainedby the public exchequer, for just a few coal block allocations (for whichreliance was placed on an article which had appeared in the Indian Expressdated 10.3.2015). And an additional amount of Rupees one lakh ten thousandcrores (Rs.11,00,00,00,00,000/-) was gained by the public exchequer fromthe spectrum auction (for which reliance was placed on an article in theFinancial Express dated 25.03.2015). It was submitted, that theembarrassment faced by the political-executive, has over shadowed themonumental gains to the nation. It was contended, that the Constitution(99th Amendment) Act, and the NJAC Act, were truthfully a political-executive device, to rein in the power of judicial review, to avoid suchdiscomfiture.47. It was also contended, that while adjudicating upon the presentcontroversy, it was imperative for this Court, to take into considerationthe existing socio-political conditions, the ground realities pertaining tothe awareness of the civil society, and the relevant surroundingcircumstances. These components, according to learned counsel, weredescribed as relevant considerations, for a meaningful judicial verdict inthe V.G. Row case40. Referring to Shashikant Laxman Kale v. Union ofIndia[45], it was contended, that for determining the purpose or the objectof the legislation, it was permissible for a Court to look into thecircumstances which had prevailed at the time when the law was passed, andevents which had necessitated the passing of the legislation. Referring tothe judgment rendered by this Court, in Re: the Special Courts Bill,1978[46], learned counsel placed emphatic reliance on the following:“106. The greatest trauma of our times, for a developing country of urgentyet tantalising imperatives, is the dismal, yet die-hard, poverty of themasses and the democratic, yet graft-riven, way of life of power-wielders.Together they blend to produce gross abuse geared to personalaggrandizement, suppression of exposure and a host of other horrendous, yethidden, crimes by the summit executives, pro tem, the para-politicalmanipulators and the abetting bureaucrats. And the rule of law hangs limpor barks but never bites. An anonymous poet sardonically projected thesocial dimension of this systemic deficiency: The law locks up both man and woman Who steals the goose from off the common, 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 moreterrible than the Watergate syndrome as perceptive social scientists haveunmasked. Corruption and repression-cousins in such situations-hijackdevelopmental processes. And, in the long run, lagging national progressmeans ebbing people's confidence in constitutional means to social justice.And so, to track down and give short shrift to these heavy-weightcriminaloids who often mislead the people by public moral weight-liftingand multipoint manifestoes is an urgent legislative mission partiallyundertaken by the Bill under discussion. To punish such super-offenders intop positions, sealing off legalistic escape routes and dilatory strategiesand bringing them to justice with high speed and early finality, is adesideratum voiced in vain by Commissions and Committees in the past and isa dimension of the dynamics of the Rule of Law. This Bill, hopefully butpartially, breaks new ground contrary to people's resigned cynicism thatall high-powered investigations, reports and recommendations end inlegislative and judicative futility, that all these valiant exercises arebut sound and fury signifying nothing, that 'business as usual' is thesignature tune of public business, heretofore, here and hereafter. So thissocial justice measure has my broad assent in moral principle and inconstitutional classification, subject to the serious infirmities fromwhich it suffers as the learned Chief Justice has tersely sketched. Whetherthis remedy will effectively cure the malady of criminal summitry is forthe future to tell.108. All this serves as a backdrop. Let me unfold in fuller argumentationmy thesis that the Bill, good so far as it goes, is bad so far as it doesnot go-saved though by a pragmatic exception I will presently explain.Where the proposed law excludes the pre-and post-emergency crime-doers inthe higher brackets and picks out only 'Emergency' offenders, its benignpurpose perhaps becomes a crypto cover up of like criminals before andafter. An 'ephemeral' measure to meet a perennial menace is neither alogical step nor national fulfilment. The classification, if I mayanticipate my conclusion, is on the brink of constitutional break-down atthat point and becomes almost vulnerable to the attack of Article 14.xxx xxx xxx114. The crucial test is 'All power is a trust', its holders 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 Billmust fail morally if it exempts non-Emergency criminals about whom priorCommission Reports, now asleep in official pigeon holes, bear witness andfuture Commission Reports (who knows?) may, in time, testify. In thislarger perspective, Emergency is not a substantial differentia and the Billnearly recognises this by ante-dating the operation to February 27, 1975when there was no 'Emergency'. Why ante-date if the 'emergency' was thecritical criterion?xxx xxx xxx117. Let us take a close look at the 'Emergency', the vices it bred andthe nexus they have to speedier justice, substantial enough to qualify forreasonable sub-classification. Information flowing from the proceedings andreports of a bunch of high-powered judicial commissions shows that duringthat hushed spell, many suffered shocking treatment. In the words of thePreamble, civil liberties were withdrawn to a great extent, importantfundamental rights of the people were suspended, strict censorship on thepress was placed and judicial powers were curtailed to a large extent.xxx xxx xxx128. Let us view the problem slightly differently. Even if liberty had notbeen curtailed, press not gagged or writ jurisdiction not cut down,criminal trials and appeals and revisions would have taken their owninterminable delays. It is the forensic delay that has to be axed and thathas little to do with the vices of the Emergency. Such crimes were exposedby judicial commissions before, involving Chief Ministers and CabinetMinisters at both levels and no criminal action followed except now andthat of a select group. It was lack of will-not Emergency-that was thevillain of the piece in non-prosecution of cases revealed by severalCommissions like the Commission of Enquiry appointed by the Government ofOrissa in 1967 (Mr. Justice Khanna), the Commission of Enquiry appointed bythe Government of J&K in 1965 (Mr. Justice Rajagopala Ayyangar), theMudholkar Commission against 14 ex-United Front Ministers appointed by theGovernment of Bihar in 1968 and the T.L. Venkatarama Aiyar Commission ofInquiry appointed by the Government of Bihar, 1970-to mention but some. Weneed hardly say that there is no law of limitation for criminalprosecutions. Somehow, a few manage to be above the law and the many remainbelow the law. How? – I hesitate to state.”Last of all, reliance was placed on the decision of this Court inSubramanian Swamy v. Director, Central Bureau of Investigation[47], whereinthis Court extensively referred to the conditions regarding corruptionwhich prevailed in the country. For the above purpose, it took intoconsideration 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 the executive on thedeath of the first Chief Justice of India (after the promulgation of theConstitution), when Patanjali Sastri, J., who was the senior most Judge,was sought to be overlooked. Relying on recorded texts in this behalf, byGranville Austin, George H. Gadbois Jr. and M.C. Chagla, it was submitted,that all the six Judges, at that time, had threatened to resign, if thesenior most Judge was overlooked for appointment as Chief Justice of India.49. Referring to the first occasion, when the convention was broken, byappointing A.N. Ray, J., as the Chief Justice of India, it was submitted,that the supersession led to public protest, including speeches by formerJudges, 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 having resignedfrom their office, immediately on the appointment of A.N. Ray, as ChiefJustice of India. In the speech delivered by M. Hidayatullah, CJ., he madea reference about rumors being afloat, that the senior most Judge afterhim, namely, J.C. Shah, J., would not succeed him as the Chief Justice ofIndia. And that, an outsider was being brought to the Supreme Court, as itsChief Justice. His speech highlighted the fact, that all except one sittingJudge of the Supreme Court had agreed to resign in the event ofsupersession of J.C. Shah, J.. He had also pointed out, in his speech,that if the decision was taken by the executive, even a day before hisretirement, he too would join his colleagues in resigning from his positionas the Chief Justice of India. It was accordingly submitted, that theconstitutional convention, that the senior most Judge of the Supreme Courtwould be appointed as the Chief Justice of India, was truly and faithfullyrecognized as an impregnable convention. To support the aforesaidcontention, it was also pointed out, that even in situations wherein thesenior most puisne Judge would have a very short tenure, the convention hadremained unbroken, despite the inefficacy of making such appointments. Inthis 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 29 days).50. It was also the contention of the learned senior counsel, that theexecutive is an important litigant and stakeholder before the higherjudiciary, and as such, the executive ought to have no role, whatsoever, inthe matter of appointments/transfers of Judges to the higher judiciary. Inthis behalf, learned counsel placed reliance on a number of judgmentsrendered by this Court, wherein the participation of the executive in thehigher judiciary, had been held to be unconstitutional, in the matter ofappointments of Judges and other Members of tribunals, vested with quasijudicial functions. It was submitted, that the inclusion of the UnionMinister in charge of Law and Justice in the NJAC, was a clear breach ofthe judgments rendered by this Court. Additionally, it was pointed out,that two “eminent persons”, who were to be essential components of theNJAC, were to be selected by a Committee, wherein the dominating voice wasthat of the political leadership. It was pointed out, that in the three-Member Committee authorised to nominate “eminent persons” included thePrime Minister and the Leader of the Opposition in the Lok Sabha, besidesthe Chief Justice of India. It was therefore submitted, that in the six-Member NJAC, three Members would have political-executive lineage. Thisaspect of the matter, according to the learned counsel, would have adevastating affect. It would negate primacy of the higher judiciary, andthe same would result in undermining the “independence of the judiciary”.Based on the above foundation, learned senior counsel raised a number ofcontentions. Firstly, it was submitted, that through the impugnedconstitutional amendment and the NJAC Act, the constitutional convention inthis country, that the senior most Judge of the Supreme Court would beappointed as the Chief Justice of India, had been breached. It wassubmitted, that the above convention had achieved the status of aconstitutional axiom – a constitutional principle. To substantiate theabove contention, it was submitted, that right from 26.01.1950, the seniormost puisne Judge of the Supreme Court has always been appointed as theChief Justice of India except on two occasions. Firstly, the aboveconvention was breached, when A.N. Ray, J., was appointed as Chief Justiceof India on 25.4.1973, by superseding three senior most Judges. It wassubmitted, that the aforesaid supersession was made on the day followingthe Supreme Court delivered the judgment in the Kesavananda Bharati case10.Secondly, the supersession took place during the internal emergencydeclared by Prime Minister, Indira Gandhi. At that juncture, M.H. Beg, J.,was appointed as Chief Justice of India on 29.1.1977, by superseding hissenior H.R. Khanna, J.. It was contended, that the aforesaid two instancesshould be considered as aberrations, in the convention pertaining toappointment of Chief Justice of India.51. Mr. Arvind P. Datar also assailed the constitutional validity ofArticle 124C, introduced by the Constitution (99th Amendment) Act. It wassubmitted, that the Parliament was delegated with the authority to“regulate the procedure for the appointment of the Chief Justice of Indiaand other Judges of the Supreme Court, and the Chief Justices and otherJudges of the High Courts”. And the NJAC was empowered to lay down, byregulation, “the procedure of discharging its own functions, the manner ofselection of persons for appointment, and such other matters, as may beconsidered necessary by it”. It was the contention of the learned counsel,that the delegation of power contemplated under Article 124C, amounted tovesting the NJAC, with what was earlier vested with the Chief Justice ofIndia. In this behalf, reference was also made to Sections 11, 12 and 13 ofthe NJAC Act. The power to make rules, has been vested with the CentralGovernment under Section 11, and the power to make regulations has beenentrusted to the NJAC under Section 12. The aforementioned rules andregulations, as drawn by the Central Government/NJAC, are required to beplaced before the Parliament under Section 13, and only thereafter, therules and regulations were to be effective (or not to have any effect, orto have effect as modified). It was submitted, that the entrustment of theprocedure of appointment of Judges to the higher judiciary, and also, theaction of assigning the manner in which the NJAC would discharge itsfunctions (of selecting Judges to the higher judiciary), with either theexecutive or the legislature, was unthinkable, if “independence of thejudiciary” was to be maintained. It was pointed out, that the intentbehind Article 124C, in the manner it had been framed, stood clearlyexposed, by the aforesaid provisions of the NJAC Act.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 theregulations so framed by the NJAC were to be consistent with the provisionsof the NJAC Act, as also, the rules made thereunder (i.e., under Section 11of the NJAC Act). Having so empowered the NJAC (under Sections 11 and 12referred to above), and having delineated in Section 12(2), the broadoutlines with reference to which the regulations could be framed, it wassubmitted, that the power to delegate the authority to frame regulationsclearly stood exhausted. In that, the Parliament had no jurisdictionthereafter, to interfere in the matter of framing regulations. In fact,according to the learned counsel, consequent upon the empowerment of theNJAC to frame regulations, the Parliament was rendered functus officio, onthe issue of framing regulations. According to learned counsel, the abovealso established, the inference drawn in the foregoing paragraph.53. It was also the contention of the learned counsel, that the NJACconstituted, by way of the Constitution (99th Amendment) Act, would besustainable, so long as it did not violate the “basic structure” of theConstitution. It was emphasized, that one of the recognized features ofthe “basic structure” of the Constitution was, the “independence of thejudiciary”. The procedure which the NJAC could adopt for discharging itsfunctions, and the procedure it was liable to follow while holding itsmeetings, and the ambit and scope with reference to which the NJAC wasauthorized to frame its regulations, had to be left to the exclusiveindependent will of an independent NJAC. That, according to learnedcounsel, would have ensured the “independence of the NJAC”. It wasaccordingly contended, that Article 124C breached the “independence of thejudiciary”, and also, undermined the independence of the NJAC.54. The next contention advanced at the hands of the learned counsel, waswith reference to clause (2) of Article 124A, whereby judicial review wasbarred, with reference to actions or proceedings of the NJAC, on the groundof the existence of a vacancy or defect in the constitution of the NJAC.Learned counsel then invited this Court’s attention to the exclusion of thepower of judicial review, contemplated under Articles 323A(2)(d) and323B(3)(d), wherein the power of judicial review was similarly excluded. Itwas submitted, that this Court struck down a similar provision in theaforesaid Articles, holding that the same were violative of the “basicstructure” of the Constitution. In this behalf, learned counsel placedreliance on the decision of this Court in the Kihoto Hollohan case34, andreferred to the following observations recorded therein:“129. The unanimous opinion according to the majority as well as theminority is that Paragraph 7 of the Tenth Schedule enacts a provision forcomplete exclusion of judicial review including the jurisdiction of theSupreme Court under Article 136 and of the High Courts under Articles 226and 227 of the Constitution and, therefore, it makes in terms and in effecta change in Articles 136, 226 and 227 of the Constitution which attractsthe proviso to clause (2) of Article 368 of the Constitution; and,therefore, ratification by the specified number of State legislaturesbefore the Bill was presented to the President for his assent wasnecessary, in accordance therewith. The majority view is that in theabsence of such ratification by the State legislatures, it is Paragraph 7alone of the Tenth Schedule which is unconstitutional; and it beingseverable from the remaining part of the Tenth Schedule, Paragraph 7 aloneis liable to be struck down rendering the Speakers’ decision underParagraph 6 that [pic]of a judicial tribunal amenable to judicial review bythe Supreme Court and the High Courts under Articles 136, 226 and 227. Theminority opinion is that the effect of invalidity of Paragraph 7 of theTenth Schedule is to invalidate the entire Constitution (Fifty-secondAmendment) Act, 1985 which inserted the Tenth Schedule since thePresident’s assent to the Bill without prior ratification by the Statelegislatures is non est. The minority view also is that Paragraph 7 is notseverable from the remaining part of the Tenth Schedule and the Speaker notbeing an independent adjudicatory authority for this purpose ascontemplated by a basic feature of democracy, the remaining part of theTenth Schedule is in excess of the amending powers being violative of abasic feature of the Constitution. In the minority opinion, we have heldthat the entire Constitution (Fifty-second Amendment) Act, 1985 isunconstitutional and an abortive attempt to make the constitutionalamendment indicated therein.”Reliance was also placed on the following conclusions recorded by thisCourt in Dr. Kashinath G. Jalmi v. The Speaker[48].“43. In Kihoto Hollohan there was no difference between the majority andminority opinions on the nature of finality attaching to the Speaker'sorder of disqualification made under para 6 of the Tenth Schedule, and alsothat para 7 therein was unconstitutional in view of the non-compliance ofthe proviso to clause 2 of Article 368 of the Constitution, by whichjudicial review was sought to be excluded. The main difference in the twoopinions was, that according to the majority opinion this defect resultedin the constitution standing amended from the inception with insertion ofthe Tenth Schedule minus para 7 therein, while according to the minoritythe entire exercise of constitutional amendment was futile and an abortiveattempt to amend the constitution, since Para 7 was not severable.According to the minority view, all decisions rendered by the severalSpeakers under the Tenth Schedule were, therefore, nullity and liable to beignored. According to the majority view, para 7 of the Tenth Schedule beingunconstitutional and severable, the Tenth Schedule minus para 7 was validlyenacted and, therefore, the orders made by the Speaker under the TenthSchedule were not nullity but subject to judicial review. On the basis ofthe majority opinion, this Court has exercised the power of judicial reviewover the orders of disqualification made by the speakers from the veryinception of the Tenth Schedule, and the exercise of judicial review hasnot been confined merely to the orders of disqualification made after 12thNovember, 1991 when the judgment in Kihoto Hollohan (1992 (1) SCC 309…) wasrendered. Venkatachaliah, J. (as he then was) wrote the majority opinionand, thereafter, on this premise, exercised the power of judicial reviewover orders of disqualification made prior to 12.11.1991. The basic fallacyin the submission made on behalf of the respondents that para 7 must betreated as existing till 12th November, 1991 is that on that view therewould be no power of judicial review against an order of disqualificationmade by the Speaker prior to 12th November, 1991 since para 7 in expressterms totally excludes judicial review.”It was, therefore, the vehement contention of the learned counsel, thatclause (2) of Article 124A should be struck down, as being violative of the“basic structure” of the Constitution.55. Mr. Fali S. Nariman, learned senior counsel, also raised a purelytechnical plea. It was his contention, that 121st Constitution AmendmentBill, now the Constitution (99th Amendment) Act, was introduced in the LokSabha on 11th of August, 2014 and was passed by the Lok Sabha on 13th ofAugust, 2014. It was further submitted, that the 121st ConstitutionAmendment Bill was discussed and passed by Rajya Sabha on 14.8.2014.Thereupon, the said Amendment Bill, which envisaged a constitutionalamendment, was sent to the State Legislatures for ratification. Consequentupon its having been ratified by 16 State Legislatures, it was placedbefore the President for his assent. It was pointed out, that thePresident accorded his assent on 31.12.2014, whereupon, it became theConstitution (99th Amendment) Act. Learned counsel then invited ourattention to Section 1 of the Constitution (99th Amendment) Act, whichreads as under:“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 Government may, bynotification in the Official Gazette, appoint.”Based on the aforesaid provision, it was contended, that in spite of havingreceived the assent of the President on 31.12.2014, the Constitution (99thAmendment) Act, would not come into force automatically. And that, thesame would come into force in terms of the mandate contained in Section1(2), - “… on such date as the Central Government may, by notification inthe Official Gazette, appoint.” It was submitted, that the CentralGovernment notified the Constitution (99th Amendment) Act, in the Gazetteof India Extraordinary on 13.4.2015. Based on the aforesaid factualposition, the Constitution (99th Amendment) Act, came into force witheffect from 13.4.2015.56. In conjunction with the factual position noticed in the foregoingparagraph, learned counsel pointed out, that the NJAC Bill, was alsointroduced in the Lok Sabha on 11.8.2014. The Lok Sabha passed the Bill on13.8.2014, whereupon, it was passed by the Rajya Sabha on 14.8.2014.Thereafter, the NJAC Bill received the assent of the President on31.12.2014, and became the NJAC Act. It was contended, that the enactmentof the NJAC Act was based/founded on the Constitution (99th Amendment) Act. It was submitted, that since the Constitution (99th Amendment) Act, wasbrought into force on 13.4.2015, the consideration of the NJAC Bill and thepassing of the NJAC Act prior to the coming into force of the Constitution(99th Amendment) Act, would render it stillborn and therefore nugatory. TheCourt’s attention was also invited to the fact, that the aforesaid legalinfirmity, was noticed and raised during the course of the parliamentarydebate pertaining to the NJAC Bill, before the Rajya Sabha. Learnedcounsel invited this Court’s attention to the following questions andanswers, which are recorded on pages 442 to 533 with reference to thedebates in the Rajya Sabha on 13.8.2014, and at pages 229 to 375 on14.8.2014 (Volume 232 No.26 and 27), as under:“that Mr. Sitaram Yechury, Member of Parliament, (Rajya Sabha) raised aconstitutional objection (on August 13, 2014) to the NJAC Bill saying:“…….till the Constitution Amendment (121st Bill) comes into effect, theLegislature, I would like to humbly submit, does not have the right toenact 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 situationwhere this proposal for creation of a Judicial Appointments Commission willbecome ultra vires of the Indian Constitution because our right to bringabout a Bill to enact such a provision comes only after the ConstitutionAmendment Bill becomes effective.” (page 489)“……..Therefore, you please consider what I am saying with seriousness. Iwant also the law Minister to consider it. Let it not be struck down lateras ultra vires. So, let us give it a proper consideration.” (Page-490)- The Leader of the Opposition (Shri Ghulam Nabi Azad) then said:“The leader of the opposition (Shri Ghulam Nabi Azad): Sir, I just want tosay that Mr. Yechury has given a totally different dimension to the entirething. It is quite an eye opener for all of us that the entire legislationwill become ultr vires. So, my suggestion is that before my colleague, Mr.Anand Sharma, speaks, I would request one thing. Of course, we have greatlawyers from all sides here but I think one of the oldest luminaries inthe legal profession is Mr. Parasaran. Before we all decide what to do,can we request him to throw light on what Mr. Yechury has said? (Page-490)- Mr. K. Parasaran (Nominated Member) then gave his views saying:Shri K. Parasarn (contd.)...Before ratification, if you take up the Billand pass the Bill, today, it will be unconstitutional and ultra vires.Because the power to make enactment, as we see, is only in the Articles.The Article 368 gives the power to …. xxx xxx xxxMr. Deputy Chairman: What I want to know is this. You have mentioned thatthere are two provisions. Number one, if it is amended in a particularway, it can directly go to the President. If the amendment involvesChapter IV, part 5, or Chapter V, etc., etc., it has to be ratified by halfin the Assemblies. Okay. I accept both of them. But do any of theseobjections object us from considering this Bill now? That is my question.Shri K. Parasaran: No. We don’t have the legislative competence. (Page-492)- The Minister of Law and Justice then said:“…..This Bill will become effective after ratification but the separateBill is for guidance to the Legislatures as to how the entire structure hascome into existence. Therefore, it is not unconstitutional. We have gotsummary power under Article 246 read with Entries 77 and 78, which is not alimited power. It is a plenary power, exhaustive power. This Parliamentcan pass any law with regard to composition and organization of the SupremeCourt; this Parliament can pass any law with regard to High Courtcomposition. 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 50per cent of the Assemblies have endorsed it by a Resolution can your Billcome into force, and after the President has given assent. And then, youare saying that the Bill was passed along with this only as a guideline, sothat Members of the Assemblies know what you are going to do.Shri Ravi Shankar Prasad: But it would become effective after assent. Thatis all.Mr. Deputy Chairman: That’s what I am saying. It will become effectiveafter six months.Now, I would like to know one thing from Mr. Parasaran. Article 246,according to him, (the Minister) gives absolute powers to Parliament topass a legislation. Is there any provision in the Constitution, whichprevents passing of such a Bill before the Constitutional Amendment isendorsed by the President? Is there any such provision? …(interruptions)…. I will come to you. Yes, Mr. Parasaran. (Page-495)- In response Mr. K. Parasaran then said:“Shri K. Parasaran: Sir, I would explain this. Now, we are concerned withArticle 124 and a legislation under Article 246 read with the relevantentries in the Seventh Schedule, pointed out by the Hon. Minister. Now,the Supreme Court has interpreted Article 124. We cannot pass an Actcontrary to that judgment and, therefore, the need for amendment to theconstitution. If the Constitution is not amended, then we lack thelegislative competence. There is no good of going to Article 246 andreading the entries. Had we the legislative competence, under Article 246read with the entries…. (Emphasis supplied) page 495.Mr. Deputy Chairman: Then, how do you explain Article 246?Shri K. Parasaran: Suppose the Constitutional Amendment is passed, thencan this Bill be introduced and discussed as it is? As a hypotheticalcase, if this Amendment Bill is not passed, can we introduce this Bill andpass it? We will not be able to do it.” (Emphasis supplied) (Page-496).”57. In other words, it was the contention of the learned counsel, thatthe NJAC Bill was passed by both Houses of Parliament, when Parliament hadno power, authority or jurisdiction to consider such a Bill, in the teethof Articles 124(2) and 217(1), as enacted in the original Constitution. Itwas submitted, that the passing of the said Bill, was in itselfunconstitutional, ultra vires and void, because the amended provisionscontained 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 RajyaSabha of the 121st Constitution Amendment Bill on 13/14.8.2014, and theratification thereof by 16 State Legislatures, as also, the assent giventhereto by the President on 31.12.2014, would not bestow validity on theNJAC Act. This, for the simple reason, that the Constitution (99thAmendment) Act, was brought into force only on 13.4.2015. In the aboveview 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 beread, as they were originally enacted. In the aforesaid context, it wassubmitted, that the NJAC Act could not have been passed, till the unamendedprovisions of the Constitution were in force. And that, the mere assent ofthe President to the NJAC Act on 31.12.2014, could not infuse validitythereon.58. In order to substantiate the aforesaid contention, learned counselplaced reliance on A.K. Roy v. Union of India[49], and invited ourattention to the following:“45 The argument arising out of the provisions of Article 368(2) may beconsidered first. It provides that when a Bill whereby the Constitution isamended is passed by the requisite majority, it shall be presented to thePresident who shall give his assent to the Bill, "and thereupon theConstitution shall stand amended in accordance with the terms of the Bill."This provision shows that a constitutional amendment cannot have any effectunless the President gives his assent to it and secondly, that nothing morethan the President's assent to an amendment duly passed by the Parliamentis required, in order that the Constitution should stand amended inaccordance with the terms of the Bill. It must follow from this that theConstitution stood amended in accordance with the terms of the 44thAmendment 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 theConstitution stood thus amended. The 44th Amendment Act itself prescribesby Section 1(2) a pre-condition which must be satisfied before any of itsprovisions can come into force. That pre-condition is the issuance by theCentral Government of a notification in the official gazette, appointingthe date from which the Act or any particular provision thereof will comeinto force, with power to appoint different dates for different provisions.Thus, according to the very terms of the 44th Amendment, none of itsprovisions can come into force unless and until the Central Governmentissues a notification as contemplated by Section 1(2).46. There is no internal contradiction between the provisions ofArticle 368(2) and those of Section 1(2) of the 44th Amendment Act.Article 368(2) lays down a rule of general application as to the date fromwhich the Constitution would stand amended in accordance with the Billassented to by the President. Section 1(2) of the Amendment Act specifiesthe manner in which that Act or any of its provisions may be brought intoforce. The distinction is between the Constitution standing amended inaccordance with the terms of the Bill assented to by the President and thedate of the coming into force of the Amendment thus introduced into theConstitution. For determining the date with effect from which theConstitution stands amended in accordance with the terms of the Bill, onehas to turn to the date on which the President gave, or was obliged togive, his assent to the Amendment. For determining the date with effectfrom which the Constitution, as amended, came or will come into force, onehas to turn to the notification, if any, issued by the Central Governmentunder Section 1(2) of the Amendment Act.47. The Amendment Act may provide that the amendment introduced by itshall come into force immediately upon the President giving his assent tothe Bill or it may provide that the amendment shall come into force on afuture date. Indeed, no objection can be taken to the constituent bodyitself appointing a specific future date with effect from which theAmendment Act will come into force; and if that be so, different dates canbe appointed by it for bringing into force different provisions of theAmendment Act. The point of the matter is that the Constitution standingamended in accordance with the terms of the Bill and the amendment thusintroduced into the Constitution coming into force are two distinct things.Just as a law duly passed by the legislature can have no effect unless itcomes or is brought into force, similarly, an amendment of the Constitutioncan have no effect unless it comes or is brought into force. The fact thatthe constituent body may itself specify a future date or dates with effectfrom which the Amendment Act or any of its provisions will come into forceshows that there is no antithesis between Article 368(2) of theConstitution and Section 1(2) of the 44th Amendment Act. The expression oflegislative or constituent will as regards the date of enforcement of thelaw or Constitution is an integral part thereof. That is why it isdifficult to accept the submission that, contrary to the expression of theconstituent will, the amendments introduced by the 44th Amendment Act cameinto force on April 30, 1979 when the President gave his assent to thatAct. The true position is that the amendments introduced by the 44thAmendment Act did not become a part of the Constitution on April 30, 1979.They will acquire that status only when the Central Government brings theminto force by issuing a notification under Section 1(2) of the AmendmentAct.”59. It was also the contention of Mr. Fali S. Nariman, that just as aconstitutional amendment was liable to be declared as ultra vires, if itviolated and/or abrogated, the “core” or the “basic structure” of theConstitution; even a simple legislative enactment, which violated the“basic structure” of the Constitution, was liable to be declared asunconstitutional. For the instant proposition, learned counsel referred tothe Madras Bar Association case35, and placed reliance on the followingobservations recorded therein:“109. Even though we have declined to accept the contention advanced onbehalf of the Petitioners, premised on the "basic structure" theory, wefeel it is still essential for us, to deal with the submission advanced onbehalf of the respondents in response. We may first record the contentionadvanced on behalf of the respondents. It was contended, that a legislation(not being an amendment to the Constitution), enacted in consonance of theprovisions of the Constitution, on a subject within the realm of thelegislature concerned, cannot be assailed on the ground that it violatesthe "basic structure" of the Constitution. For the present controversy, therespondents had placed reliance on Articles 245 and 246 of theConstitution, as also, on entries 77 to 79, 82 to 84, 95 and 97 of theUnion List of the Seventh Schedule, and on entries 11-A and 46 of theConcurrent List of the Seventh Schedule. Based thereon it was asserted,that Parliament was competent to enact the NTT Act. For examining theinstant contention, let us presume it is so. Having accepted the above, ourconsideration is as follows. The Constitution regulates the manner ofgovernance in substantially minute detail. It is the fountainheaddistributing power, for such governance. The Constitution vests the powerof legislation at the Centre, with the Lok Sabha and the Rajya Sabha, andin the States with the State Legislative Assemblies (and in some States,the State Legislative Councils, as well). The instant legislative power isregulated by "Part XI" of the Constitution. The submission advanced at thehands of the learned counsel for the respondents, insofar as the instantaspect of the matter is concerned, is premised on the assertion that theNTT Act has been enacted strictly in consonance with the procedure depictedin "Part XI" of the Constitution. It is also the contention of the learnedcounsel for the respondents, that the said power has been exercisedstrictly in consonance with the subject on which the Parliament isauthorized to legislate. Whilst dealing with the instant submissionadvanced at the hands of the learned counsel for the respondents, all thatneeds to be stated is, that the legislative power conferred under "Part XI"of the Constitution has one overall exception, which undoubtedly is, thatthe "basic structure" of the Constitution, cannot be infringed, no matterwhat. On the instant aspect some relevant judgments rendered byConstitutional Benches of this Court, have been cited hereinabove. It seemsto us, that there is a fine difference in what the petitioners contend, andwhat the respondents seek to project. The submission advanced at the handsof the learned counsel for the petitioners does not pertain to lack ofjurisdiction or inappropriate exercise of jurisdiction. The submissionadvanced at the hands of the learned counsel for the petitioners pointedlyis, that it is impermissible to legislate in a manner as would violate the"basic structure" of the Constitution. This Court has repeatedly held thatan amendment to the provisions of the Constitution would not be sustainableif it violated the "basic structure" of the Constitution, even though theamendment had been carried out by following the procedure contemplatedunder "Part XI" of the Constitution. This leads to the determination thatthe "basic structure" is inviolable. In our view, the same would apply toall other legislations (other than amendments to the Constitution) as well,even though the legislation had been enacted by following the prescribedprocedure, and was within the domain of the enacting legislature, anyinfringement to the "basic structure" would be unacceptable. Suchsubmissions advanced at the hands of the learned counsel for therespondents are, therefore, liable to be disallowed, and are accordinglydeclined.”60. Mr. Arvind P. Datar, learned senior counsel, assailed theconstitutional validity of various provisions of the NJAC Act, by advancingthe same submissions, as were relied upon by him while assailing theconstitutional validity of Articles 124A, 124B and 124C. For reasons ofbrevity, the aforestated submissions noticed with reference to individualprovisions of the NJAC Act are not being repeated again.61. A challenge was also raised, to the different provisions of the NJACAct. First and foremost, a challenge was raised to the manner of selectionof the Chief Justice of India. Section 5(1) of the NJAC Act, it wassubmitted, provides that the NJAC would recommend the senior most Judge ofthe Supreme Court, for being appointed as Chief Justice of India, subjectto the condition, that he was considered “fit” to hold the office. It wascontended, that the procedure to regulate the appointment of the ChiefJustice of India, was to be determined by Parliament, by law under Article124C. It was contended, that the term “fit”, expressed in Section 5 of theNJAC Act, had not been elaborately described. And as such, fitness wouldhave to be determined on the subjective satisfaction of the Members of theNJAC. It was submitted, that even though the learned Attorney General hadexpressed, during the course of hearing, that fitness meant “…mental andphysical fitness alone…”, it was always open to the Parliament topurposefully define fitness, in a manner as would sub-serve the will of theexecutive. It was submitted, that even an ordinance could be issued withoutthe necessity, of following the procedure, of enacting law. It wasasserted, that the criterion of fitness could be defined and redefined. Itwas submitted, that it was a constitutional convention, that the seniormost Judge of the Supreme Court would always be appointed as Chief Justiceof India. And that, the aforesaid convention had remained unbroken, eventhough in some cases the tenure of the appointee, had been short, and assuch, may not have enured to the advantage, of the judicial organization asa whole. Experience had shown, according to learned counsel, that adheringto the practice of appointing the senior most Judge as the Chief Justice ofIndia, had resulted in institutional harmony amongst Judges, which wasextremely important for the health of the judiciary, and also, for the“independence of the judiciary”. It was submitted, that it would be justand appropriate, at the present juncture, to understand the width of thepower, so as to prevent any likelihood of its misuse in future. It wassubmitted, that various ways and means could be devised to supersedeJudges, and also, to bring in favourites. Past experience had shown, thatthe executive had abused its authority, when it departed from the aboverule in April 1973, by superseding J.M. Shelat, J., the senior most Judgeand even the next two Judges in the order of seniority after him, namely,K.S. Hegde and A.N. Grover, and appointed the fourth senior most Judge A.NRay, as the Chief Justice of India. Again in January 1977 on theretirement of A.N. Ray, CJ., the senior most Judge H.R. Khanna, wasignored, and the next senior most Judge, M.H. Beg, was appointed as theChief Justice of India. Such control in the hands of the executive wouldcause immense inroads, in the decision making process. And could resultin, Judges trying to placate and appease the executive, for personal gainsand rewards.62. The submission noticed above was sought to be illustrated through thefollowing instance. It was pointed out, that it would be genuine andlegitimate for the Parliament to enact, that a person would be consideredfit for appointment as Chief Justice of India, only if he had a minimumremaining tenure of at least two years. Such an enactment would have adevastating effect, even though it would appear to be innocuouslylegitimate. It was contended, that out of the 41 Chief Justices of Indiaappointed till date, only 12 Chief Justices of India, had a tenure of morethan two years. Such action, at the hands of the Parliament, was bound tocause discontentment to those, who had a legitimate expectation to hold theoffice of Chief Justice of India. It was submitted, that similar instancescan be multiplied with dimensional alterations by prescribing differentparameters. It was submitted, that the Parliament should never be allowedthe right to create uncertainty, in the matter of selection and appointmentof the Chief Justice of India, because the office of the Chief Justice ofIndia was pivotal, as it shouldered extremely serious and onerousresponsibilities. The exercise of the above authority, it was pointed out,could/would seriously affect the “independence of the judiciary”. In theabove context, reference was also made, to the opinion expressed byrenowned persons, having vast experience in the judicial institution,effectively bringing out the veracity of the contention advanced. Referencein this regard was made to the observations of M.C. Chagla, in his book,“Roses in December – An Autobiography”, wherein he examined the impact ofsupersession on Judges, who by virtue of the existing convention, were inline to be the Chief Justice of India, but were overlooked by preferring ajunior. Reference was also made to the opinion expressed by H.R. Khanna,J., (in his book – “Neither Roses Nor Thorns”). Finally, the Court’sattention was drawn to the view expressed by H.M. Seervai (in“Constitutional Law of India – A Critical Commentary’). It was submitted,that leaving the issue of determination of fitness with the Parliament, wasliable to fan the ambitions of Judges, and would make them loyal to thosewho could satisfy their ambitions. It was therefore the contention of thelearned counsel, that Section 5, which created an ambiguity in the matterof appointment of the Chief Justice of India, and could be abused toimperil “independence of the judiciary”, was liable to be declared asunconstitutional.63. It was also the contention of the learned counsel for thepetitioners, that on the issue of selection and appointment of Judges tothe higher judiciary, the NJAC was liable to take into considerationability, merit and suitability (as may be specified by regulations). Itwas submitted, that the above criteria could be provided throughregulations framed under Section 12(2)(a), (b) and (c). It was pointed out,that the regulations framed for determining the suitability of a Judge(with reference to ability and merit), would be synonymous with theconditions of eligibility. Inasmuch as, a candidate who did not satisfythe standards expressed in the regulations, would also not satisfy, theprescribed conditions of appointment. It was asserted, that it would be amisnomer to treat the same to be a matter of mere procedure. Thus viewed,it was contended, that the provisions of the NJAC Act, which laid down (orprovided for the laying down) substantive conditions for appointment, wasclearly beyond the purview of Article 124C, inasmuch as, under the aboveprovision, Parliament alone had been authorised by law, to regulate theprocedure for appointment of Judges of the Supreme Court, or to empower theNJAC to lay the same down by regulations, inter alia the manner ofselection of persons for appointment, as Judges of the Supreme Court. Itwas submitted, that the NJAC Act, especially in terms of Section 5(2), hadtravelled far beyond the jurisdictional parameters contemplated underArticle 124C.64. It was also contended, that while recommending names for appointmentof a Judge to the Supreme Court, seniority in the cadre of Judges, wasliable to be taken into consideration, in addition to ability and merit. Itwas submitted, that the instant mandate contained in the first provisounder Section 5(2) of the NJAC Act, clearly breached the “federalstructure” of governance, which undoubtedly required regionalrepresentation 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 beenoverlooked.65. Besides the above, the Court's attention was invited to the secondproviso, under Section 5(2) of the NJAC Act, which mandates that the NJACwould not make a favourable recommendation, if any two Members thereof,opposed the candidature of an individual. It was contended, that placingthe power of veto, in the hands of any two Members of the NJAC, wouldviolate the recommendatory power expressed in Article 124B. In thisbehalf, it was contended, that the second proviso under Section 5(2), wouldenable two eminent persons (– lay persons, if the submission advanced bythe learned Attorney General is to be accepted) to defeat a unanimousopinion of the Chief Justice of India and the two senior most Judges of theSupreme Court. And thereby negate the primacy vested in the judiciary, inthe matter of appointment of Judges to the higher judiciary.66. It was submitted, that the above power of veto exercisable by two laypersons, or alternatively one lay person, in conjunction with the UnionMinister in charge of Law and Justice, would cause a serious breach in the“independence of the judiciary”. Most importantly, it was contended, thatneither the impugned constitutional amendment, nor the provisions of theNJAC Act, provide for any quorum for holding the meetings of the NJAC. Andas such (quite contrary to the contentions advanced at the hands of thelearned Attorney General), it was contended, that a meeting of the NJACcould not be held, without the presence of the all Members of the NJAC. Inorder to support his above contention, he illustratively placed reliance onthe Constitution (122nd Amendment) Bill, 2014 [brought before theParliament, by the same ruling political party, which had successfullyamended the Constitution by tabling the Constitution (121st Amendment)Bill, 2014]. The objective sought to be achieved through the Constitution(122nd Amendment) Bill, 2014, was to insert Article 279A. The proposedArticle 279A intended to create the Goods and Services Tax Council. Sub-Article (7) of Article 279A postulated, that “… One-half of the totalnumber of Members of the Goods and Services Tax Council…” would constitutethe quorum for its meetings. And furthermore, that “… Every decision ofthe Goods and Services Tax Council shall be taken at a meeting, by amajority of not less than three-fourths of the weighted votes of themembers present and voting …”. Having laid down the above parameters, inthe Bill which followed the Bill that led to the promulgation of theConstitution (99th Amendment) Act, it was submitted, that the omission ofproviding for a quorum for the functioning of the NJAC, and the omission toquantify the strength required for valid decision making, was not innocent.And that, it vitiated the provision itself.III. RESPONDENTS’ RESPONSE, ON MERITS:67. The learned Attorney General commenced his response on merits byasserting, that there was no provision in the Constitution of India, eitherwhen it was originally drafted, or at any stage thereafter, whichcontemplated, that Judges would appoint Judges to the higher judiciary. Itwas accordingly asserted, that the appointment of Judges by Judges wasforeign to the provisions of the Constitution. It was pointed out, thatthere were certain political upheavals, which had undermined the“independence of the judiciary”, including executive overreach, in thematter of appointment and transfer 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 theemergency in 1976, and thereafter, the second supersession of a seniorJudge of the Supreme Court in 1977. It was acknowledged, that there wascontinuous interference by the executive, in the matter of appointment ofJudges to the higher judiciary during the 1980’s. Despite thereof, whilstadjudicating upon the controversy in the First Judges case rendered in1981, this Court, it was pointed out, had remained unimpressed, andreiterated the primacy of the executive, in the matter of appointment ofJudges to the higher judiciary.68. It was pointed out, that the issue for reconsideration of thedecision rendered in the First Judges case arose in Subhash Sharma v. Unionof India4, wherein the questions considered were, whether the opinion ofthe Chief Justice of India, in regard to the appointment of Judges to theSupreme Court and High Courts, as well as, transfer of High Court Judges,was entitled to primacy, and also, whether the matter of fixation of thejudge-strength in High Courts, was justiciable? It was asserted, that theaforesaid two questions were placed for determination by a ConstitutionBench 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 decisionrendered by this Court in the Second Judges case, was on the suo motuexercise of jurisdiction by this Court, wherein this Court examined mattersfar beyond the scope of the reference order. It was contended, that theSecond Judges case was rendered, without the participation of all thestakeholders, inasmuch as, the controversy was raised at the behest ofpracticing advocates and associations of lawyers, and there was no otherstakeholder involved during its hearing.69. It was asserted, that the judiciary had no jurisdiction to assume toitself, the role of appointment of Judges to the higher judiciary. It waspointed out, that it is the Parliament alone, which represents thecitizenry and the people of this country, and has the exclusivejurisdiction to legislate on matters. Accordingly, it was asserted, thatthe decisions in the Second and Third Judges cases, must be viewed aslegislation without any jurisdictional authority.70. It was pointed out, that the issue relating to the amendment of theConstitution, pertaining to the subject of appointment of Judges to thehigher judiciary, through a Judicial Commission commenced with theConstitution (67th Amendment) Bill, 1990. The Bill however lapsed. On thesame subject, the Constitution (82nd Amendment) Bill, 1997 was introduced.The 1997 Bill, however, could not be passed. This was followed by theConstitution (98th Amendment) Bill, 2003 which was introduced when thepresent Government was in power. In 2003 itself, a National Commission wasset up to review the working of the Constitution, followed by the SecondAdministrative Reforms Commission in 2007. Interspersed with the aforesaidevents, were a number of Law Commission’s Reports. The intention of theParliament, since the introduction of the Bill in 1990, it was submitted,was aimed at setting up a National Judicial Commission, for appointment andtransfer of Judges of the higher judiciary. It was pointed out, that nopositive achievement was made in the above direction, for well over twodecades. Mr. Justice M.N. Venkatachaliah, who headed the NationalCommission to review the working of the Constitution, had also recommendeda five-Member National Judicial Commission, whereby, a wide consultativeprocess was sought to be introduced, in the selection and appointment ofJudges. It was submitted, that all along recommendations were made, for aparticipatory involvement of the executive, as well as the judiciary, inthe matter of appointment of Judges to the higher judiciary. It was alsopointed out, that the Constitution (98th Amendment) Bill, 2003 proposed aseven-Member National Judicial Commission. Thereafter, the AdministrativeReforms 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 leadersof the Opposition. The aforesaid recommendation, was made by a Commissionheaded by Veerappa Moily, the then Union Law Minister. The presentConstitution (99th Amendment) Act, 2014, whereby Article 124 has beenamended and Articles 124A to 124C have been inserted in the Constitution,contemplates a six-Member National Judicial Commission. It was submitted,that there was no justification in finding anything wrong, in thecomposition of the NJAC. To point out the safeguards against entry ofundesirable persons into the higher judiciary, it was emphasized, that onlyif five of the six Members of the NJAC recommended a candidate, he could beappointed to the higher judiciary. It was submitted, that the aforestatedsafeguards, postulated in the amended provisions, would not only ensuretransparency, but would also render a broad based consideration.71. As a counter, to the submissions advanced on behalf of thepetitioners, it was asserted, that the Parliament’s power to amend theConstitution was plenary, subject to only one restriction, namely, that theParliament could not alter the “basic structure” of the Constitution. Andas such, a constitutional amendment must be presumed to be constitutionallyvalid (unless shown otherwise). For the instant proposition, reliance wasplaced on Charanjit Lal Chowdhury v. Union of India[50], Ram Krishna Dalmiav. Justice S.R. Tendolkar[51], the Kesavananda Bharati case10,(specifically the view expressed by K.S. Hegde and A.K. Mukherjea, JJ.), B.Banerjee v. Anita Pan[52], and Government of Andhra Pradesh v. P. LaxmiDevi[53].72. It was asserted, that the Parliament was best equipped to assess theneeds of the people, and to deal with the changing times. For this,reliance was placed on Mohd. Hanif Quareshi v. State of Bihar[54], State ofWest Bengal v. Anwar Ali Sarkar[55]. It was contended, that while enactingthe Constitution (99th Amendment) Act, and the NJAC Act, the Parliament haddischarged a responsibility, which it owed to the citizens of this country,by providing for a meaningful process for the selection and appointment ofJudges to the higher judiciary.73. Referring to the decisions rendered by this Court in the Second andThird Judges cases, it was asserted, that the way he saw it, there was onlyone decipherable difference introduced in the process of selectioncontemplated through the NJAC. Under the system introduced, the judiciarycould not “insist” on the appointment of an individual. But the judiciarycontinued to retain the veto power, to stop the appointment of anindividual considered unworthy of appointment. According to him, thenomination of a candidate, for appointment to the higher judiciary, underthe above judgments, could also not fructify, if any two members of thecollegium, expressed an opinion against the nominated candidate. It waspointed out, that the above position had been retained in the impugnedprovisions. According to the learned Attorney General, the only differencein the impugned provisions was, that the right of the 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 thehigher judiciary, could be returned by the executive for reconsideration.However, if the recommendation was reiterated, the executive had no choice,but to appoint the recommended nominee. It was pointed out, that theinstant right to “insist” on the appointment of a Judge, had now beenvested in the NJAC. It was vehemently contended, that the denial to“insist”, on the appointment of a particular nominee, would surely notundermine the “independence of the judiciary”. The “independence of thejudiciary”, according to the learned Attorney General, would be wellpreserved, if the right to “reject” a nominee was preserved with thejudiciary, which had been done.74. Based on the aforesaid submission, it was asserted, that the processinitiated by the Parliament in 1990 (for the introduction of a Commission,for appointment of Judges to the higher judiciary), had taken twenty-fouryears to fructify. The composition of the NJAC introduced through theConstitution (99th Amendment) Act, according to him, meets with allconstitutional requirements, as the same is neither in breach of the ruleof “separation of powers”, nor that of “the independence of the judiciary”. It was contended, that the impugned provisions preserve the “basicstructure” of the Constitution.75. It was submitted, that the assailed provisions had only introducedrightful checks and balances, which are inherent components of an effectiveconstitutional arrangement. The learned Attorney General also cautionedthis Court, by asserting, that it was neither within the domain of thepetitioners, nor of this Court, to suggest an alternative combination ofMembers for the NJAC, or an alternative procedure, which would regulate itsfunctioning more effectively. Insofar as the present petitions areconcerned, it was asserted, that the challenge raised therein, could onlybe accepted, if it was shown, that the Parliament while exercising itsplenary power to amend the Constitution, had violated the “basic structure”of the Constitution.76. It was submitted, that it was not the case of any of the petitionersbefore this Court, either that the Parliament was not competent to amendArticle 124, or that the procedure prescribed therefor under Article 368had not been followed. In the above view of the matter, it was submitted,that the only scope for examination with reference to the presentconstitutional amendment was, whether while making the aforestatedconstitutional amendment, the Parliament had breached, any of the “basicfeatures” of the Constitution.77(i). For demonstrating the validity of the impugned constitutionalamendment, reliance in the first instance was placed on the KesavanandaBharati case10. Reference was made to the observations of S.M. Sikri, CJ.,to contend, that the extent of the amending power under Article 368 wasduly adverted to. Reading the preamble to the Constitution, it was pointedout, that the fundamental importance expressed therein was, the freedom ofthe individual, and the inalienability of economic, social and politicaljustice, as also, the importance of the Directive Principles (paragraph282). In this behalf, it was also submitted, that the “fundamentalfeatures” of the Constitution, as for instance, secularism, democracy andthe freedom of the individual would always subsist in a welfare State(paragraph 283). Leading to the conclusion, that even fundamental rightscould be amended in public interest, subject to the overriding condition,that the same could not be completely abrogated (paragraph 287). In thisbehalf, it was also pointed out, that the wisdom of the Parliament to amendthe Constitution could not be the subject matter of judicial review(paragraph 288), leading to the overall conclusion, that by the process ofamendment, it was open to the Parliament to adjust fundamental rights, inorder to secure the accomplishment of the Directive Principles, whilemaintaining the freedom and dignity of every citizen (paragraph 289). Thusviewed, it was felt, that the rightful legal exposition would be, that eventhough every provision of the Constitution could be amended, thecontemplated amendment should ensure, that the “basic foundation andstructure” of the Constitution remained intact. In this behalf, anillustrative reference was made to the features, which constituted the“basic structure” of the Constitution. According to the learned AttorneyGeneral, they included, the supremacy of the Constitution, the republicanand democratic form of Government, the secular character of theConstitution, the “separation of powers” between the legislature, theexecutive and the judiciary, and the federal character of the Constitution(paragraph 292). In addition to the above, it was asserted, that Indiahaving signed the Universal Declaration of Human Rights, had committeditself to retaining such of the fundamental rights, as were incorporated inthe above declaration (paragraph 299). In the above view, according to theAttorney General, the expression “amendment of this Constitution” wouldrestrain the Parliament, from abrogating 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, theParliament could amend every Article of the Constitution (paragraph 475).It was insisted, that the impugned provisions had not breached any of theabove limitations.(ii) Reference was then made to the common opinion expressed by J.M.Shelat and A.N. Grover, JJ., (in the Kesavananda Bharati case10) to assert,that one of the limitations with reference to the amendment to theConstitution was, that it could not be amended to such an extent, as woulddenude the Constitution of its identity (paragraph 537). It was submitted,that the power to amend, could not result in the abrogation of theConstitution, or lead to the framing of a new Constitution, or to alter orchange the essential elements of the constitutional structure (paragraph539). It was pointed out, that it was not proper, to give a narrow meaningto the power vested in the Parliament to amend the Constitution, and at thesame time, to give it such a wide meaning, so as to enable the amendingbody, to change the structure and identity of the Constitution (paragraph546). With reference to the power of judicial review, it was contended,that there was ample evidence in the Constitution itself, to indicate thata system of “checks and balances” was provided for, so that none of thepillars of governance would become so predominant, as to disable theothers, from exercising and discharging the functions entrusted to them.It was submitted, that judicial review, provided expressly through Articles32 and 226, was an incident of the aforestated system of checks andbalances (paragraph 577). Based on the historical background, thepreamble, the entire scheme of the Constitution, and other relevantprovisions thereof, including Article 368, it was submitted that it couldbe inferred, that the supremacy of the Constitution, the republican anddemocratic form of Government, sovereignty of the country, the secular andfederal character of the Constitution, the demarcation of powers betweenthe legislature, the executive and the judiciary, the dignity of theindividual secured through the fundamental rights, and the mandate to builda welfare State (contained in Parts III and IV), and the unity and theintegrity of the nation, could be regarded as the “basic elements” of theconstitutional structure (paragraph 582). It was also asserted, that as asociety grows, its requirements change, and accordingly, the Constitutionand the laws have to be changed, to suit the emerging needs. Andaccordingly, the necessity to amend the Constitution, to adapt to thechanging needs, arises. Likewise, in order to implement the DirectivePrinciples, it could be necessary to abridge some of the fundamental rightsvested in the citizens. The power to achieve the above objective needed, abroad and liberal interpretation of Article 368. Having so held, it wasconcluded, that even the fundamental rights could be amended (paragraph634). Reference was made to the fact, that the founding fathers wereaware, that in a changing world, there would be nothing permanent, andtherefore, they vested the power of amendment in the Parliament throughArticle 368, so as to keep the Constitution in tune with, the changingconcepts of politics, economics and social ideas, and to so reshape theConstitution, as would meet the requirements of the time (paragraph 637).With reference to the above, it was contended, that the Parliament did nothave the power to abrogate or emasculate the “basic elements” or“fundamental features” of the Constitution, such as the sovereignty ofIndia, the democratic character of our polity, the unity of the country,and the essential elements of the individual freedoms secured to thecitizens. Despite the above limitations, it was pointed out, that theamending power under Article 368 was wide enough, to amend every Article ofthe Constitution, so as to reshape the Constitution to fulfill theobligations imposed on the State (paragraph 666). And accordingly, it waspointed out, 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 “basicelements” or the “fundamental features” of the Constitution (paragraph744).(iii). Reference was then made to the observations of H.R. Khanna, J.(in the Kesavananda Bharati case10). It was pointed out, that from 1950 to1967 till this Court rendered the judgment in the I.C. Golak Nath case41,the accepted position was, that the Parliament had the power to amend PartIII of the Constitution, so as to take away or abridge the fundamentalrights. Having noticed the fact, that no attempt was made by theParliament to take away or abridge the fundamental rights, relating to theliberty of a person, and the freedom of expression, it was recorded, thateven in future it could not be done. Accordingly, with reference toArticle 368, it was sought to be concluded, that the Parliament had thepower to amend Part III of the Constitution, as long as the “basicstructure” of the Constitution was retained (paragraph 1421). If the“basic structure” of the original Constitution was retained, inasmuch ashad the original Constitution continued to subsist, even though some of itsprovisions were changed, the power of amendment would be considered to havebeen legitimately exercised (paragraph 1430). And therefore, the trueeffect of Article 368 would be, that the Constitution did not vest with theParliament, the power or authority for drafting a new and radically changedConstitution, 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 theConstitution was treated as plenary, and would include the power to add,alter or repeal different Articles of the Constitution, including thoserelating to fundamental rights. All the above measures were included inthe Parliament’s power of amendment, and the denial of such a broad andcomprehensive power, would introduce rigidity in the Constitution, as wouldbreak the Constitution itself (paragraph 1434). As such, it was held, thatthe amending power conferred by Article 368, would include the power toamend the fundamental rights, contained in Part III of the Constitution(paragraph 1435). In this behalf, it was asserted, that the issue, whetherthe amendment introduced would (or would not) be an improvement over theprevailing position, was not justiciable. It was asserted, whether theamendment would be an improvement or not, was for the Parliament alone todetermine. And Courts, could not substitute the wisdom of the legislature,by their own foresight, prudence and understanding (paragraph 1436). It wasasserted, that the amending power of the Parliament must contain the rightto enact legislative provisions, for experiment and trial, so as toeventually achieve the best results (paragraph 1437). In the ultimateanalysis, it was held, that the amendment of the Constitution had a wideand broad connotation, and would embrace within itself, the total repeal ofsome of the Articles, or their substitution by new Articles, which may notbe consistent, or in conformity with other Articles. And a Court whilejudging the validity of an amendment, could only concern itself with thequestion, as to whether the constitutional requirements for making theamendment had been satisfied? And accordingly, an amendment, made inconsonance with the procedure prescribed, could not be struck down, on theground that it was a change for the worst (paragraph 1442). While examiningthe question, whether the right to property could be included in the “basicstructure or framework” of the Constitution, the answer rendered was in thenegative. 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 anderror, inasmuch as opportunity had to be allowed for vindicating reasonablebelief by experience (paragraph 1535). It was contended, that nogeneration had a monopoly to wisdom, nor the right to place fetters onfuture generations, nor to mould the machinery of Government, keeping inmind eternal good. The possibility, that the power of amendment may beabused, furnished no ground for denial of its existence. According to theAttorney General, it was therefore not correct to assume, that if theParliament was held entitled to amend Part III of the Constitution, itwould automatically and necessarily result in abrogation of the fundamentalrights. Whilst concluding, that the right to property did not pertain tothe “basic structure or framework” of the Constitution, it was held, thatpower of amendment under Article 368 did not include the power to abrogatethe Constitution, or to alter the “basic structure or framework” of theConstitution. Despite having so concluded, it was held, that no part of thefundamental rights could claim immunity, from the power of amendment(paragraph 1537).78. Reference was then made to the judgments rendered by this Court inIndira Nehru Gandhi v. Raj Narain[56], Waman Rao v. Union of India[57], andthe M. Nagaraj case36, to contend, that the “basic structure” of theConstitution was to be determined, on the basis of the features whichexisted in the text of the original enactment of the Constitution, on thedate of its coming into force. It was therefore pointed out, that thesubsequent amendments to the Constitution, could not be taken intoconsideration, to determine the “basic features” of the Constitution.79. Having laid down the aforestated foundation, the learned AttorneyGeneral submitted, that that reference could only be made to Articles 124and 217, as they originally existed, when the Constitution was promulgated.If the original provisions were to be taken into consideration, accordingto the learned Attorney General, it would be apparent that the aboveArticles, expressed that the right to make appointments of Judges to thehigher judiciary, being limited only to a “consultative” participation ofthe judiciary, was in the determinative domain of the executive. It waspointed out, that on the subject of appointment of Judges to the higherjudiciary, the primacy of the Chief Justice of India, through the collegiumprocess, was an innovation of the judiciary itself (in the Second Judgescase). The above primacy, was alien to the provisions of the Constitution,as originally enacted. And as such, the amendment to Article 124, and theinsertion of Articles 124A to 124C therein, could not be examined on thetouchstone of material, which was in stark contrast with the plain readingof Articles 124 and 217 (as they were originally enacted). It wasaccordingly asserted, that the present challenge to the Constitution (99thAmendment) Act, would not fall within the defined parameters of the “basicstructure” concept, elaborated extensively by him (as has been recorded byus, above). The prayers made by the petitioners on the instant ground weretherefore, according to the learned Attorney General, liable to berejected.80. Having traveled thus far, it was pointed out, that it was importantto understand the true purport and effect of the term “independence of thejudiciary”. In this behalf, in the first instance, the Court’s attentionwas invited to, the First Judges case, wherein reference was made to theopinion expressed by E.S. Venkataramiah, J. (as he then was), who had takenthe view, that it was difficult to hold, that merely because the power ofappointment was with the executive, the “independence of the judiciary”would be compromised. In stating so, it was emphasized, that the trueprinciple was, that after such appointment, the executive should have noscope, to interfere with the work of a Judge (paragraph 1033). Basedthereon, it was asserted, that the independence of a Judge would not standcompromised, if after his appointment, the role of the executive, to dealwith him, is totally excluded. Reference was then made to the opinionexpressed by P.N. Bhagwati, J. (as he then was) (in the same judgment), tothe effect, that the concept of “independence of the judiciary”, was notlimited only to independence from executive pressure/influence, but wasrelatable to many other pressures and prejudices. And in so recording, itwas held, that “independence of the judiciary” included fearlessness of theother power centres, economic or political, and freedom from prejudicesacquired and nourished by the class to which the Judges belonged (paragraph1037). Based thereon, it was asserted, that “independence of thejudiciary”, included independence from the influence of other Judges aswell. And as such, it was concluded, that the composition of the NJAC wassuch, as would ensure the independence of the Judges appointed to thehigher judiciary, as contemplated in the First Judges case.81. In conjunction with the issue of “independence of the judiciary”,which flows out of the concept of “separation of powers”, it was pointedout, that the scheme of the Constitution envisaged a system of checks andbalances. Inasmuch as, each organ of governance while being allowed thefreedom to discharge the duties assigned to it, was subjected to controls,at the hands of one of the other organs, or both of the other organs.Illustratively, it was sought to be contended, that all executiveauthority, is subject to scrutiny through judicial review (at the hands ofthe judiciary). Likewise, legislation enacted by the Parliament, or theState legislatures, is also subject to judicial review, (at the hands ofthe judiciary). Even though, the executive and the legislature have thefreedom to function and discharge their individual responsibilities,without interference by the other organ(s) of governance, yet the judiciaryhas been vested with the responsibility to ensure, that the exercise ofexecutive and legislative functions, is in consonance with law. Likewise,it was submitted, that in the matter of appointment of Judges, Articles 124and 217 provided for executive control, under the scheme of checks andbalances. It was submitted, that the instant scheme of checks andbalances, was done away with, by the Second and Third Judges cases, in thematter of appointment of Judges to the higher judiciary. It was asserted,that the position of checks and balances has been restored by theConstitution (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 case10, the IndiraNehru Gandhi case56, the Sankalchand Himatlal Sheth case5, Asif Hameed v.State of Jammu and Kashmir[58], State of Bihar v. Bihar DistilleryLimited[59], and Bhim Singh v. Union of India13, it was submitted, thatthis Court had recognized, that the concept of checks and balances, wasinherent in the scheme of the Constitution. And that, even though thelegislature, the executive and the judiciary were required to functionwithin their own spheres demarcated through different Articles of theConstitution, yet their attributes could never be in absolute terms. It wassubmitted, that each wing of governance had to be accountable, and till theprinciple of accountability was preserved, the principle of “separation ofpowers” would not be achievable. It was therefore contended, that theconcept of “independence of the judiciary”, could not be gauged as anabsolute end, overlooking the checks and balances, provided for in thescheme of the Constitution.82. Having so asserted, it was contended, that in the matter ofappointment of Judges to the higher judiciary, the most important andsignificant feature was, that no unworthy or doubtful appointment should gothrough, even though at times, the candidature of a seemingly goodcandidate, may not be accepted. It was asserted, that the NJAC hadprovided for a complete protection, in the sense noticed hereinabove, byproviding in the procedure of appointment, that a negative view expressedby any of the two Members of the NJAC, would result in the rejection of theconcerned candidate. Therefore, merely two Members of the NJAC, would besufficient to veto a proposal for appointment. It was submitted, thatsince three Members of the NJAC were Judges of the Supreme Court, theirparticipation in the NJAC would ensure, that “independence of thejudiciary” remained completely safeguarded and secured. It was thereforecontended, that not only the Constitution (99th Amendment) Act, but alsothe NJAC Act fully satisfied the independence criterion, postulated as a“basic structure” of the Constitution.83. In order to reiterate the above position, it was asserted, thatprimacy in the matter of appointment of Judges to the higher judiciary, wasnot contemplated in the Constitution, as originally framed. In thisbehalf, reference was made to Articles 124 and 217. And in conjunctiontherewith, adverting to the debates on the subject, by Members of theConstituent Assembly. Thereupon, it was asserted, that the issue ofprimacy of the Chief Justice, based on a decision by a collegium of Judges,was a judicial innovation, which required reconsideration. Moreover, itwas submitted, that the Second and Third Judges cases, were founded on theinterpretation of Articles of the Constitution, which had since beenamended, and as such, the very basis of the Second and Third Judges cases,no longer existed. Therefore, the legal position declared in the abovejudgments, could not constitute the basis, of the contentions advanced atthe hands of the petitioners. Furthermore, even if the ratio recorded bythis Court in the Second and Third Judges cases, was still to be taken intoconsideration, conclusions (5), (6) and (7) recorded by J.S. Verma, J. (whohad transcripted the majority view), show that the primacy of the judiciarywas to ensure, that no appointment could be made to the higher judiciary,unless it had the approval of the collegium. It was submitted, that theinstant aspect, which constituted the functional basis for ensuring“independence of the judiciary”, had been preserved in the impugnedconstitutional amendment, and the NJAC Act. It was accordingly contended,that if the right to insist on the appointment of a candidate proposed bythe judiciary, was taken away, from the Chief Justice of India (based on adecision of a collegium of Judges), the same would not result, in theemasculation of the “basic structure” of the Constitution. In other words,the same would not violate the “essential and fundamental features” of theConstitution, nor in the least, the “independence of the judiciary”.84. Based on the above submissions, the learned Attorney General invitedthe Court’s attention to the primary contention advanced by thepetitioners, namely, that even if all the three Judges of the Supreme Courtwho are now ex officio Members of the NJAC, collectively recommended anominee, such recommendation could be annulled, by the non-Judge Members ofthe NJAC. Learned Attorney General submitted, that the above contention waslimited to the right to “insist” on an appointment. And that, the right to“insist” did not flow from the conclusions recorded in the Second and ThirdJudges cases. And further, that the same cannot, by itself, be taken as anincident to establish a breach of the “independence of the judiciary”.85. Insofar as the Second and Third Judges cases are concerned, it wassubmitted, that the same may have been the need of the hour, on account ofthe fact that in 1976, sixteen Judges were transferred (from the HighCourts in which they were functioning), to other High Courts. In theSankalchand Himatlal Sheth case5, one of the transferred Judges challengedhis transfer, inter alia, on the ground, that his non-consensual transferwas outside the purview of Article 222, as the same would adversely affectthe “independence of the judiciary”. Irrespective of the determinationrendered, on the challenge raised in the Sankalchand Himatlal Sheth case5,it was pointed out, the very same question came to be re-agitated in theFirst Judges case. It was held by the majority, while interpreting Article222, that the consent of the Judge being transferred, need not be obtained. It was also pointed out, that ever since the inception of theConstitution, the office of the Chief Justice of India, was occupied by thesenior most Judge of the Supreme Court. The above principle was departedfrom in April 1973, as the next senior most Judge – J.M. Shelat, was notelevated to the office of the Chief Justice of India. Even the next twosenior most Judges, after him - K.S. Hegde and A.N. Grover, were alsoignored. The instant supersession by appointing the fourth senior mostJudge – A.N. Ray, as the Chief Justice of India, was seen as a threat tothe “independence of the judiciary”. Again in January 1977, on theretirement 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, wasappointed, as the Chief Justice of India. In the above background, theaction of the executive, came to be portrayed as a subversion of the“independence of the judiciary”. It was in the above background, that thisCourt rendered the Second and Third Judges cases, but the implementation ofthe manner of appointment of Judges to the higher judiciary, in consonancetherewith, had been subject to, overwhelming and all around criticism,including being adversely commented upon by J.S. Verma, CJ., the author ofthe majority view in the Second Judges case, after his retirement. In thisbehalf, the Court’s attention was invited to his observations, extractedhereunder:“My 1993 Judgment, which holds the field, was very much misunderstood andmisused. It was in this context, that I said that the working of thejudgment, now, for some time, is raising serious questions, which cannot becalled unreasonable. Therefore, some kind of re-think is required. MyJudgment says the appointment process of High Court and Supreme CourtJudges is basically a joint or participatory exercise, between theExecutive and the Judiciary, both taking part in it.”It was therefore contended, that in the changed scenario, this Court oughtto have, at its own, introduced measures to negate the accusations leveledagainst the prevailing system, of appointment of Judges to the higherjudiciary. Since no such remedial measures were adopted by the judiciaryof its own, the legislature had brought about the Constitution (99thAmendment) Act, supplemented by the NJAC Act, to broad base the process ofselection and appointment, of Judges to the higher judiciary, to make ittransparent, and to render the participants accountable.86. Having dealt with the constitutional aspect of the matter, thelearned Attorney General invited the Court’s attention, to the manner inwhich judicial appointments were being made in fifteen countries. It wassubmitted, that in nine countries Judges were appointed either through aJudicial 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 wassubmitted, that in Germany appointment of Judges was made through amultistage process of nomination by the Minister of Justice, andconfirmation by Parliamentary Committees, whereupon, the final order ofappointment of the concerned individual, is issued by the President. In theUnited States of America, Judges were appointed through a process ofnomination by the President, and confirmation by the Senate. It wassubmitted, that in all the fifteen countries referred to above, theexecutive was the final determinative/appointing authority. Insofar as theappointments made by the Judicial AppointmentsCommissions/Committees/Councils (referred to above) were concerned, out ofnine countries with Commissions, in two countries (South Africa and SriLanka) the executive had overwhelming majority, in four countries (France,Israel, Kenya and U.K.) there was a balanced representation of stakeholdersincluding the executive, in three countries (Italy, Nigeria and Pakistan)the number of Judges was in a majority. In the five countries withoutCommissions/ Committees/ Councils (Canada, Australia, New Zealand,Bangladesh and the United States of America), the decision was taken by theexecutive, without any formal process of consultation with the judiciary.It was pointed out, that in Germany, the appointment process was conductedby the Parliament, and later confirmed by the President. It was pointedout, that the judiciary in all the countries referred to above, was totallyindependent. Based on the above submissions, it was contended, that themanner of selection and appointment of Judges, could not be linked to theconcept of “independence of the judiciary”. It was submitted, that thejudicial functioning in the countries referred to above, having beenaccepted as more than satisfactory, there is no reason, that the system ofappointment introduced in India, would be adversely impacted by a singularrepresentative of the executive in the NJAC. It was therefore asserted,that the submissions advanced at the hands of the petitioners, were notacceptable, even with reference to the experience of other countries,governed through a constitutional framework (some of them, of theWestminster Model).87. It was further asserted, that the absence of the absolute majority ofJudges in the NJAC, could not lead to the inference, that the same wasviolative of the “basic structure” of the Constitution, so as to conclude,that it would impinge upon the “independence of the judiciary”. It wasasserted, that the representation of the judiciary in the NJAC, was largerthan that of the other two organs of the governance, namely, the executiveand the legislature. In any case, given the representation of thejudiciary in the NJAC, it was fully competent, to stall the appointment ofa candidate to the higher judiciary, who was considered by the judicialrepresentatives, as unsuitable. Any two, of the three representatives ofthe judiciary, were sufficient to veto any appointment supported by others.88. It was further submitted, that the NJAC was broad based withrepresentatives from the judiciary, the executive and the “two eminentpersons”, would not fall in the category of jurists, eminent legalacademicians, or eminent lawyers. It was contended, that the intention toinclude “eminent persons”, who had no legal background was to introduce, inthe process of selection and appointment of Judges, lay persons in the samemanner, 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 thiswould not be the first occasion, when such an exercise has beencontemplated by parliamentary legislation. The Court’s attention was drawnto the Consumer Protection Act, 1986, wherein the highest adjudicatoryauthority is, the National Consumer Disputes Redressal Commission. It waspointed out, that the above Redressal Commission, comprised of Members,with and without a judicial background. The President of the NationalConsumer Disputes Redressal Commission has to be a person, who has been aJudge of the Supreme Court. Illustratively, it was contended, where amatter is being adjudicated upon by a three-Member Bench, two of theMembers may not be having any judicial background. These two non-judicialMembers, could overrule the view expressed by a person, who had been aformer Judge in the higher judiciary. It was submitted, that situations ofthe above nature, do sometimes take place. Yet, such a composition foradjudicatory functioning, where the Members with a judicial background arein a minority, is legally and constitutionally valid. If judicialindependence cannot be held to be compromised in the above situation, itwas asserted, that it was difficult to understand how the same could beconsidered to be compromised in a situation, wherein the NJAC has three outof its six Members, belonging to the judicial fraternity.90. It was sought to be suggested, that the primacy of the judiciary, inthe matter of appointment of Judges to the higher judiciary, could not betreated as a part of the “basic structure” of the Constitution.Furthermore, the lack of absolute majority of Judges in the NJAC, wouldalso not tantamount to the constitutional amendment being renderedviolative of the “basic structure”. In the above view of the matter, itwas asserted, that the submissions advanced at the hands of the learnedcounsel representing the petitioners, on the aspect of violation of the“basic structure” of the Constitution, by undermining the “independence ofthe judiciary”, were liable to be rejected.91. With reference to the inclusion of two “eminent persons”, in the six-Member NJAC, it was submitted, that the general public was the keystakeholder, in the adjudicatory process. And accordingly, it wasimperative to ensure their participation in the selection/appointment ofJudges to the higher judiciary. Their participation, it was submitted,would 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 ChiefJustice of India. In the 2003 Bill, which was placed before theParliament, the proposed Judicial Commission was to include one eminentperson, to be nominated by the executive. The 2013 Bill, which was draftedby the previous political dispensation – the U.P.A. Government, theJudicial Commission proposed, was to have two eminent persons, to beselected by the Prime Minister, the Chief Justice of India and the Leaderof the Opposition in the Lok Sabha. The 2014 Bill, which was drafted by thepresent political dispensation – the N.D.A. Government, included twoeminent persons, to be selected in just about the same manner as wascontemplated under the 2013 Bill. The variation being, that one of theeminent persons was required to belong to the Scheduled Castes, or theScheduled Tribes, or Other Backward Classes, or Minorities, or Women,thereby fulfilling the obvious social obligation. It was submitted, thattheir participation in the deliberations, for selection of Judges to thehigher judiciary, could not be described as adversarial to the judicialcommunity. Their participation would make the process of appointment, morebroad based.92. While responding to the submissions, advanced at the hands of thelearned counsel for the petitioners, to the effect that the Constitution(99th Amendment) Act, did not provide any guidelines, reflecting upon theeligibility of the “eminent persons”, to be nominated to the NJAC, and assuch, was liable to be struck down, it was submitted, that the term“eminent person” was in no way vague. It meant – a person who had achieveddistinction in the field of his expertise. Reference was also made to thedebates of the Constituent Assembly, while dealing with the term“distinguished jurist”, contained in Article 124(3), it was pointed out,that the term “distinguished person” was not vague. In the presentsituation, it was submitted, that since the selection and nomination of“eminent persons”, was to be in the hands of high constitutionalfunctionaries (no less than the Prime Minister, the Chief Justice of Indiaand the Leader of the Opposition in the Lok Sabha), it was natural toassume, that the person(s) nominated, would be chosen, keeping in mind theobligation and the responsibility, that was required to be discharged.Reliance in this behalf, was placed on the Centre for Public InterestLitigation case43, to assert, that it was sufficient to assume, that such ahigh profile committee, as the one in question, would exercise its powersobjectively, and in a fair and reasonable manner. Based on the above, itwas contended, that it was well settled, that mere conferment of widediscretionary powers, would not vitiate the provision itself.93. Referring to the required qualities of a Judge recognized in theIndian context, as were enumerated in the “Bangalore Principles of JudicialConduct”, and thereupon accepted the world over, as revised at the RoundTable Meeting of Chief Justices held at The Hague, in November 2002, it wassubmitted, that the two “eminent persons” would be most suited, to assesssuch matters, with reference to the nominees under consideration. Whilstthe primary responsibility of the Members from the judiciary would beprincipally relatable to, ascertaining the judicial acumen of thecandidates concerned, the responsibility of the executive would be, todetermine the character and integrity of the candidate, and the inputs,whether the candidate possessed the values, expected of a Judge of thehigher judiciary, would be that of “eminent persons” in the NJAC. It wastherefore asserted, that the two “eminent persons” would be “lay persons”having no connection with the judiciary, or even to the profession ofadvocacy, perhaps individuals who may not have any law related academicqualifications. It was submitted, that the instant broad based compositionof the NJAC, was bound to be more suitable, than the prevailing system ofappointment of Judges. Relying upon the R. Gandhi case38, it wassubmitted, that it would not be proper to make appointments, by vesting theprocess of selection, with an isolated group, or a selection committeedominated by representatives of a singular group – the judiciary. In amatter of judicial appointments, it was submitted, the object ought to be,to pick up the best legally trained minds, coupled with a qualitativepersonality. For this, according to the Attorney General, a collectiveconsultative process, would be the most suitable. It was pointed out, that“eminent persons”, having no nexus to judicial activities, would introducean 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 all the stakeholders of the justice delivery system.It was contended, that the presence of “eminent persons” was necessary, toensure the representative participation of the general public, in theselection and appointment of Judges to the higher judiciary. Their presencewould also ensure, that the selection process was broad based, andreflected sufficient diversity and accountability, and in sync with theevolving process of selection and appointment of Judges, the world over.94. The learned Attorney General, then addressed the issue of inclusionof the Union Minister in charge of Law and Justice, as an ex officio Memberin the NJAC. Reference was first made to Articles 124 and 217, as theywere originally enacted in the Constitution. It was submitted, thatoriginally, the power of appointment of Judges to the higher judiciary, wasexclusively vested with the President. In this behalf reliance was placedon Article 74, whereunder the President was obliged to act on the aid andadvice of the Council of Ministers, headed by the Prime Minister. It waspointed out, that the above position, was so declared, by the First Judgescase. And as such, from the date of commencement of the Constitution, theexecutive had the exclusive role, in the selection and appointment ofJudges to the higher judiciary. It was asserted, that the position waschanged, for the first time, in 1993 by the Second Judges case, wherein theterm “consultation”, with reference to the Chief Justice of India, wasinterpreted as “concurrence”. Having been so interpreted, primacy in thematter of appointment of Judges to the higher judiciary, came to betransferred from the executive, to the Chief Justice of India (based on acollective decision, by a collegium of Judges). Despite the above, theUnion Minister in charge of Law and Justice, being a representative of theexecutive, continued to have a role in the selection process, though hisinvolvement was substantially limited, as against the responsibilityassigned to the executive under Articles 124 and 217, as originallyenacted. It was pointed out, that by including the Union Minister incharge of Law and Justice, as a Member of the NJAC, the participatory roleof the executive, in the matter of selection and appointment of Judges tothe higher judiciary, had actually been diminished, as against the originalposition. Inasmuch as, the executive role in the NJAC, had been reduced toone out of the six Members of the Commission. In the above view of thematter, it was asserted, that it was unreasonable for the petitioners togrudge, the presence of the Union Minister in charge of Law and Justice, asa Member of the NJAC.95. Insofar as the inclusion of the Union Minister in the NJAC isconcerned, it was submitted, that there could be no escape from the fact,that the Minister in question, would be the connect between the judiciaryand the Parliament. His functions would include, the responsibility toinform the Parliament, about the affairs of the judicial establishment. Itwas submitted, that his exclusion from the participatory process, wouldresult in a lack of coordination between the two important pillars ofgovernance. Furthermore, it was submitted that the Minister in question, asa member of the executive, will have access to, and will be able to,provide the NJAC with all the relevant information, about the antecedentsof a particular candidate, which the remaining Members of the NJAC areunlikely to have access to. This, according to the learned AttorneyGeneral, would ensure, that the persons best suited to the higherjudiciary, would be selected. Moreover, it was submitted, that theexecutive was a key stakeholder in the justice delivery system, and assuch, it was imperative for him to have, a role in the process of selectionand appointment of Judges, to the higher judiciary.96. The learned Attorney General allayed all fears, with reference to thepresence of Union Minister, in the NJAC, by asserting that he would not bein 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 anadequate check, even if the Minister in question, desired to favour aparticular candidate, on political considerations. This submission was madeby the learned Attorney General, keeping in mind the assumed fear, whichthe petitioners had expressed, on account of the political leanings of theUnion Minister, with the governing political establishment. It wasaccordingly asserted, that the presence of one member of the executive, ina commission of six Members, would not impact the “independence of thejudiciary”, leading to the clear and unambiguous conclusion, that thepresence 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 BarAssociation case35, it was submitted that, for the tribunal in question,the participation of the executive in the selection of its Members, hadbeen held to be unsustainable, because the executive was a stakeholder ineach matter, that was to be adjudicated by the tribunal. It was submitted,that the above position did not prevail insofar as the higher judiciary wasconcerned, since the stakeholders before the higher judiciary were diverse. It was, therefore, submitted, that the validity of the NJAC could not beassailed, merely on the ground of presence of the Union Minister, as an exofficio Member of the NJAC.98. The manner of appointment of Judges to the higher judiciary, throughthe NJAC, it was asserted, would have two major advantages. It wouldintroduce transparency in the process of selection and appointments ofJudges, which had hitherto before, been extremely secretive, with the civilsociety left wondering about, the standards and the criterion adopted, indetermining the suitability of candidates. Secondly, the NJAC woulddiversify the selection process, which would further lead to accountabilityin the matter of appointments. It was submitted, that not only thelitigating public, or the practicing advocates, but also the civil society,had the right to know. It was pointed out, that insofar as the legislativeprocess was concerned, debates in the Parliament are now in the publicdomain. The rights of individuals, determined at the hands of theexecutive, have been transparent under the Right to Information Act, 2005.It was submitted that likewise, the selection and appointment of Judges tothe higher judiciary, must be known to the civil society, so as tointroduce not only fairness, but also a degree of assurance, that the bestout of those willing, were being appointed as Judges.99. Referring to Article 124A(2) inserted through the Constitution (99thAmendment) Act, it was asserted, that a constitutional process could not beheld up, due to the unavailability (and/or the disability) of one or moreMembers of the NJAC. So that a defect in the constitution of the NJAC, orany vacancy therein, would not impact the process of selection andappointment of Judges to the higher judiciary. Article 124A(2) provided,that the proceedings of the NJAC would not be questioned or invalidated onaccount of a vacancy or a defect in the composition of the NJAC. It wascontended, that it was wrongful for the petitioners to frown on Article124A(2), as there were a number of statutory enactments with similarprovisions. In this behalf, the Court’s attention was inter alia drawn toSection 4(2), of the Central Vigilance Commission Act 2003, Section 4(2),of the Lokpal and Lokayuktas Act 2013, Section 7, of the NationalCommission for Backward Classes Act 1993, Section 29A, of the ConsumerProtection Act 1986, Section 7, of the Advocates Welfare Act 2001, Section8, of the University Grants Commission Act 1956, Section 9, of theProtection of Human Rights Act 1993, Section 7, of the National Commissionfor Minorities Act 1993, Section 8, of the National Commission for MinorityEducational Institutions Act 2004, Section 24, of the Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act 1995, and a host of other legislative enactments of thesame nature. Relying on the judgments in Bangalore Woollen, Cotton andSilk Mills Co. Ltd. v. Corporation of the City of Bangalore[60], KhadimHussain v. State of U.P.[61], B.K. Srinivasan v. State of Karnataka[62],and People’s Union for Civil Liberties v. Union of India[63], it wasasserted, that on an examination of provisions of similar nature, thisCourt had repeatedly held, that modern legislative enactments ensured, thatthe defects of procedure, which do not lead to any substantial prejudice,are statutorily placed beyond the purview of challenge. It was accordinglyasserted, that invalidity on account of a technical irregularity, beingexcluded from judicial review, the submissions advanced on behalf of thepetitioners, on the constitutional validity of clause (2) of Article 124A,deserved an outright rejection.100. It was the contention of the learned Attorney General, that the NJACdid not suffer from the vice of excessive delegation. It was sought to bereiterated, that the power of nomination of “eminent persons” was securelyand rightfully left to the wisdom of the Prime Minister of India, the ChiefJustice of India and the Leader of the Opposition in the Parliament. Itwas submitted, that the parameters expressed in Sections 5 and 6 of theNJAC Act, delineating the criterion for selection, by specificallyproviding, that ability, merit and suitability would expressly engage theattention of the NJAC, while selecting Judges for appointment to the higherjudiciary, clearly laid out the parameters for this selection andappointment process. It was submitted, that the modalities to determineability, merit and suitability would be further detailed through rules andregulations. And that, factors such as, the minimum number of years ofpractice at the Bar, the number and nature of cases argued, academicpublications in reputed journals, the minimum and maximum age, and thelike, would be similarly provided for. All these clearly definedparameters, it was contended, would make the process of selection andappointment of Judges to the higher judiciary transparent, and would alsoensure, that the candidates to be considered, were possessed of the minimumdesired standards. It was submitted, that the Memorandum of Procedure forAppointment and Transfer of Chief Justices and Judges of the High Courts,as also, for elevation of Judges to the Supreme Court, were bereft of anysuch particulars, and the absence of any prescribed criterion, had resultedin the appointment of Judges, even to the Supreme Court, which should haveordinarily been avoided. The learned Attorney General made a reference tothree instances, which according to him, were universally condemned, by oneand all. One of the Judges appointed to this Court, according to him, wasa non-performer as he had authored just a few judgments as a Judge of theHigh Courts of Delhi and Kerala, and far lesser judgments as the ChiefJustice of the Uttarakhand and Karnataka High Courts, and less than tenjudgments during his entire tenure as a Judge of the Supreme Court. Thesecond Judge, according to him, was notoriously late in commencing Courtproceeding, a habit which had persisted with the said Judge even as a Judgeof the Patna and Rajasthan High Courts, and thereafter, as the ChiefJustice of the Jharkhand High Court, and also as a Judge of the SupremeCourt. The third Judge, according to the learned Attorney General, wasnotoriously described as a tweeting Judge, because of his habit of tweetinghis views, after he had retired. Learned counsel for the respondents,acknowledged having understood the identity of the Judges from their abovedescription by the learned Attorney General, and also affirmed the factualposition asserted in respect of the Judges mentioned. The learned AttorneyGeneral also handed over to us a compilation (in a sealed cover) aboutappointments of Judges made to different High Courts, despite the executivehaving expressed an adverse opinion. The compilation made reference toelevation of five Judges to High Courts (– two Judges to the Jammu andKashmir High Court, one Judge to the Punjab and Haryana High Court, oneJudge 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 theobjection with reference to the Supreme Court Judges was not related totheir suitability, but for the reason that some High Courts wereunrepresented in the Supreme Court. We would therefore understand the aboveposition as covering the period from 1993 till date. But it was not hiscontention, that these elevations had proved to be wrongful. We may onlynotice, that two of the three Supreme Court Judges referred to, were in duecourse elevated to the high office of Chief Justice of India.101. The learned Attorney General vehemently contested the assertion madeby the learned counsel representing the petitioners, that the power toframe rules and regulations for the functioning of the NJAC was unguided,inasmuch as, neither the constitutional amendment nor the legislativeenactment, provided for any parameters for framing the rules andregulations, pertaining to the criterion of suitability. In this behalf,it was submitted, that sufficient guidelines were ascertainable fromArticles 124B and 124C. Besides the aforesaid, the Court’s attention wasdrawn to Sections 5(2), 6(1) and 6(3) of the NJAC Act, wherein theparameters of suitability for appointment of Judges had been laid down. Inthis behalf, it was also asserted, that Article 124, as originally enacted,had laid down only basic eligibility conditions, for appointment of Judgesto the higher judiciary, but no suitability criteria had been expressed. Itwas also asserted, that the procedure and conditions for appointment ofJudges, were also not prescribed. As against the above, it was pointedout, that Articles 124B and 124C and Sections 5(2), 6(1) and 6(3) of theNJAC Act, clearly laid down conditions and guidelines for determining thesuitability of a candidate for appointment as a Judge. On the basis of theaforementioned analysis, it was submitted, that neither the constitutionalamendment was violative of the “basic structure”, nor the NJAC Act, wasconstitutionally invalid. For the above reasons, it was asserted, that thechallenge raised by the petitioners was liable to be rejected.102. In response to the technical submission advanced by Mr. Fali S.Nariman, namely, that since the Constitution (99th Amendment) Act, wasbrought into force, consequent upon the notification issued by the CentralGovernment in the Official Gazette on 13.4.2015, the consideration of theNJAC Bill and the passing of the NJAC Act, prior to the coming into forceof the Constitution (99th Amendment) Act, would render it null and void,the learned Attorney General invited our attention to Article 118, whichauthorizes, each House of Parliament, to make rules for regulating theirprocedure, in the matter of conducting their business. It was pointed out,that Rules of Procedure and the Conduct of Business of the Lok Sabha, hadbeen duly enacted by the Lok Sabha. A relevant extract of the aforesaidrules was handed over to us. Rule 66 thereof, is being extractedhereunder:“66. A Bill, which is dependent wholly or partly upon another Bill pendingbefore the House, may be introduced in the House in anticipation of thepassing of the Bill on which it is dependent: Provided that the second Bill shall be taken up for consideration andpassing in the House only after the first Bill has been passed by theHouses and assented to by the President.”Referring to the proviso under Rule 66, it was acknowledged that the ruleread independently, fully justified the submissions of Mr. Fali S. Nariman. It was however pointed out, that it was open to the Parliament to seek asuspension of the above rule under Rule 388. Rule 388 is also extractedhereunder:“388. Any member may, with the consent of the Speaker, move that any rulemay be suspended in its application to a particular motion before the Houseand if the motion is carried the rule in question shall be suspended forthe time being.”The learned Attorney General then handed over to us, the proceedings of theLok Sabha dated 12.8.2014, inter alia, including the Constitution (121stAmendment) 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 andJustice had sought, and was accorded approval, for the suspension of theproviso to Rule 66 of the Rules of Procedure and Conduct of Business of theLok Sabha. Relevant extract of the Motion depicting the suspension of Rule388 is being reproduced hereunder: “Motion under Rule 388Shri Ravi Shankar Prasad moved the following motion:- “That this House do suspend the proviso to rule 66 of the Rules ofProcedure and Conduct of Business in Lok Sabha in its application to themotions for taking into consideration and passing the National JudicialAppointments Commission Bill, 2014 in as much as it is dependent upon theConstitution (One Hundred and Twenty-First Amendment) Bill, 2014.” 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 newArticles 124A, 124B and 124C); and (ii) The National Judicial AppointmentsCommission Bill, 2014 were moved by Shri Ravi Shankar Prasad.”Premised on the strength of the Rules framed under Article 118, learnedAttorney General, also placed reliance on Article 122, which is beingreproduced below:“122. Courts not to inquire into proceedings of Parliament.— (1) Thevalidity of any proceedings in Parliament shall not be called in questionon the ground of any alleged irregularity of procedure.(2) No officer or member of Parliament in whom powers are vested by orunder this Constitution for regulating procedure or the conduct ofbusiness, or for maintaining order, in Parliament shall be subject to thejurisdiction of any court in respect of the exercise by him of thosepowers.”Based on Article 122, it was submitted, that the Constitution itselfcontemplated, that the validity of the proceedings in the Parliament, couldnot be called in question, on the ground of alleged irregularity inprocedure. While reiterating, that the procedure laid down by theParliament under Article 118, had been duly complied with, it wassubmitted, that even if that had not been done, as long as the power ofParliament to legislate was not questioned, no challenge could be premisedon the procedural defects in enacting the NJAC Act. In this behalf,reference was also made to Article 246, so as to contend, that thecompetence of the Parliament to enact the NJAC Act was clearly andunambiguously vested with the Parliament. In support of the abovecontention, reliance was placed on in re: Hindu Women’s Rights to PropertyAct, 1937[64], rendered by the Federal Court, wherein it had observed asunder:“One of the provisions included in Sch. 9 is that a bill shall not bedeemed to have been passed by the Indian Legislature unless it has beenagreed to by both Chambers either without amendment or with such amendmentsonly as may be agreed to by both Chambers. It is common ground that theHindu Women's Rights to Property Bill was agreed to without amendment byboth Chambers of the Indian Legislature, and as soon as it received theGovernor-General's assent, it became an Act (Sch. 9, para. 68 (2)). Notuntil then had this or any other Court jurisdiction to determine whether itwas a valid piece of legislation or not. It may sometimes become necessaryfor a Court to inquire into the proceedings of a Legislature, for thepurpose of determining whether an Act was or was not validly passed; forexample, whether it was in fact passed, as in the case of the IndianLegislature the law requires, by both Chambers of the Legislature before itreceived the Governor. General's assent. But it does not appear to theCourt that the form, content or subject-matter of a bill at the time of itsintroduction into, or of its consideration by either Chamber of theLegislature is a matter with which a Court of law is concerned. Thequestion whether either Chamber has the right to discuss a bill laid beforeit is a domestic matter regulated by the rules of the Chamber, asinterpreted by its speaker, and is not a matter with which a Court caninterfere, or indeed on which it is entitled to express any opinion. It isnot to be supposed that a legislative body will waste its time bydiscussing a bill which, even if it receives the Governor-General's assent,would obviously be beyond the competence of the Legislature to enact; butif it chooses to do so, that is its own affair, and the only function of aCourt is to pronounce upon the bill after it has become an Act. In theopinion of this Court, therefore, it is immaterial that the powers of theLegislature changed during the passage of the bill from the LegislativeAssembly to the Council of State. The only date with which the Court isconcerned is 14th April 1937, the date on which the Governor General'sassent was given; and the question whether the Act was or was not withinthe competence of the Legislature must be determined with reference to thatdate and to none other.”Reliance was also placed on Pandit M.S.M. Sharma v. Dr. Shree KrishnaSinha[65], wherefrom the following observations were brought to our notice:“It now remains to consider the other subsidiary questions raised on behalfof the petitioner. It was contended that the procedure adopted inside theHouse of the Legislature was not regular and not strictly in accordancewith law. There are two answers to this contention, firstly, that accordingto the previous decision of this Court, the petitioner has not thefundamental right claimed by him. He is, therefore, out of Court. Secondly,the validity of the proceedings inside the Legislature of a State cannot becalled in question on the allegation that the procedure laid down by thelaw had not been strictly followed. Article 212 of the Constitution is acomplete answer to this part of the contention raised on behalf of thepetitioner. No Court can go into those questions which are within thespecial jurisdiction of the Legislature itself, which has the power toconduct its own business. Possibly, a third answer to this part of thecontention raised on behalf of the petitioner is that it is yet prematureto consider the question of procedure as the Committee is yet to concludeits proceedings. It must also be observed that once it has been held thatthe Legislature has the jurisdiction to control the publication of itsproceedings and to go into the question whether there has been any breachof its privileges, the Legislature is vested with complete jurisdiction tocarry on its proceedings in accordance with its rules of business. Eventhough it may not have strictly complied with the requirements of theprocedural law laid down for conducting its business, that cannot be aground for interference by this Court under Art. 32 of the Constitution.Courts have always recognised the basic difference between complete want ofjurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writunder Art. 32 of the Constitution vide Janardan Reddy v. The State ofHyderabad, (1951) SCR 344.”Based on the aforesaid submissions, it was the vehement contention of thelearned Attorney General, that there was no merit in the technicalobjections raised by the petitioners while assailing the provisions of theNJAC Act.103. Mr. K.K. Venugopal, learned Senior Advocate, entered appearance onbehalf of the State of Madhya Pradesh. While reiterating a few of thelegal submissions canvassed by the learned Attorney General, he emphasized,that the judgments rendered by this Court, in the Second and Third Judgescases, turned the legal position, contemplated under the original Articles124 and 217, on its head. It was submitted, that this Court has beenrequired to entertain a public interest litigation, in an unprecedentedexercise of judicial review, wherein it is sought to be asserted, that the“independence of the judiciary”, had been encroached by the other twoorgans of governance. It was contended by learned counsel, that the instantassertion was based on a misconception, as primacy in the matter ofappointment of Judges to the higher judiciary, was never vested with thejudiciary. It was pointed out, that primacy in the matter of appointmentof Judges to the higher judiciary, was vested with the executive underArticles 124 and 217, as originally enacted. Furthermore, this Courtthrough its judgments culminating in the First Judges case, while correctlyinterpreting the aforesaid provisions of the Constitution, had rightlyconcluded, that the interaction between the executive and the Chief Justiceof India (as well as, the other Judges of the higher judiciary) was merely“consultative”, and that, the executive was entirely responsible fordischarging the responsibility of appointment of Judges including ChiefJustices, to the higher judiciary. It was submitted, that the Second Judgescase, by means of a judicial interpretation, vested primacy, in the matterof appointment of Judges to the higher judiciary, with the Chief Justice ofIndia, and his collegium of Judges. It was pointed out, that after therendering of the Second Judges case, appointments of Judges commenced to bemade, in the manner expressed by the above Constitution Bench. It wasasserted, that there had been, an all around severe criticism, of theprocess of appointment of Judges to the higher judiciary, as contemplatedby the Second and Third Judges cases. It was contended, that the selectionprocess was now limited to Judges selecting Judges, without any externalparticipation. It was also asserted, that the exclusion of the executivefrom the role of selection and appointment of Judges was so extensive, thatthe executive has got no right to initiate any candidature, for appointmentof Judges/Chief Justices to the higher judiciary. Such an interpretation ofthe provisions of the Constitution, it was pointed out, had not onlyresulted in reading the term “consultation” in Articles 124 and 217 as“concurrence”, but has gone far beyond. It was sought to be asserted, thatin the impugned amendment to the Constitution, the intent contained in theoriginal Articles 124 and 217, has been retained. The amended provisions,it was pointed out, have been tilted in favour of the judiciary, and theparticipatory role, earlier vested in the executive, has been severelydiluted. It was submitted, that even though no element of primacy had beenconferred on the judiciary by Article 124, as originally enacted, primacyhas now been vested in the judiciary, inasmuch as, the NJAC has the largestnumber of membership from the judicial fraternity. It was highlighted,that the Union Minister in charge of Law and Justice, is the sole executiverepresentative, in the selection process, contemplated under the amendedprovisions. It was therefore asserted, that it was a far cry, for anyoneto advocate, that the role of the judiciary in the manner of appointment ofJudges to the higher judiciary having been diluted, had impinged on itsindependence.104. It was contended, that the author of the majority view in the SecondJudges case (J.S. Verma, J., as he then was), had himself found fault withthe manner of implementation of the judgments in the Second and ThirdJudges cases. It was submitted that Parliament, being the voice of thepeople, had taken into consideration, the criticism levelled by J.S. Verma,J. (besides others), to revise the process of appointment of Judgescontemplated under the Second and Third Judges cases. Having so contended,learned counsel asserted, that if this Court felt that any of theprovisions, with reference to selection and appointment of Judges to thehigher judiciary, would not meet the standards and norms, which this Courtfelt sacrosanct, it was open to this Court to read down the appropriateprovisions, in a manner as to round off the offending provisions, ratherthan quashing the impugned constitutional and legislative provisions intheir entirety.105. Mr. Ranjit Kumar, learned Solicitor General of India submitted, thatthe entire Constitution had to be read as a whole. In this behalf, it wascontended, that each provision was an integral part of the Constitution,and as such, its interpretation had to be rendered holistically. For theinstant proposition, reliance was placed on the Kihoto Hollohan case34,T.M.A. Pai Foundation v. State of Karnataka6, R.C. Poudyal v. Union ofIndia[66], the M. Nagaraj case36, and the Kesavananda Bharati case10.Based on the above judgments, it was asserted, that the term “President”,as it existed in Articles 124 and 217, if interpreted holistically, wouldlead to the clear and unambiguous conclusion, that the President whiledischarging his responsibility with reference to appointment ofJudges/Chief Justices to the higher judiciary, was bound by the aid andadvice of the Council of Ministers, as contemplated under Article 74. Itwas contended, that the aforesaid import was rightfully examined andinterpreted with reference to Article 124, in the First Judges case. Buthad been erroneously overlooked, in the subsequent judgments. Accordingly,it was asserted, that there could be no doubt whatsoever, while examiningthe impugned constitutional amendment, as also, the impugned legislativeenactment, that Parliament had not breached any component of the “basicstructure” of the Constitution.106. It was also contended, that in case the challenge raised to theimpugned constitutional amendment, was to be accepted by this Court, andthe legal position declared by this Court, was to be given effect to, therepealed provisions would not stand revived, merely because theamendment/legislation which were being assailed, were held to beunconstitutional. 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 oncestruck down, would revive the original/substituted Article, was a matterwhich had already been referred to a nine-Judge Constitutional Bench. Inorder to support the aforesaid contention, and to project the picture inits entirety, reliance was placed on, Property Owners’ Association v. Stateof Maharashtra[67], Property Owners’ Association v. State ofMaharashtra[68], and Property Owners’ Association v. State ofMaharashtra[69]. It was submitted, that the order passed by this Court,wherein the reference to a nine-Judge Constitution Bench had been made, wasa case relating to the constitutionality of Article 31C. It was pointedout that Article 31C, as originally enacted provided, that“…notwithstanding anything contained in Article 13, no law giving effect tothe policy of the State, towards securing the principles specified inclause (b) or clause (c) of Article 39 shall be deemed to be void on theground that it was inconsistent with, the rights conferred by Articles 14and 19”. It was submitted, that the latter part of Article 31C, whichprovided “…and no law containing a declaration that it is for giving effectto such policy shall be called in question in any court on the ground thatit does not give effect to such policy…” had been struck down by this Courtin the Kesavananda Bharati case10. It was contended, that when the matterpertaining to the effect of the striking down of a constitutionalamendment, had been referred to a nine-Judge Bench, it would be improperfor this Court, sitting in its present composition, to determine theaforesaid issue.108. The second contention advanced at the hands of the learned SolicitorGeneral, was based on Sections 6, 7 and 8 of the General Clauses Act. Itwas contended, that an amendment which had deleted some part of theerstwhile Article 124 of the Constitution, and substituted in its placesomething different, as in the case of Article 124, by the Constitution(99th Amendment) Act, would not result in the revival of the originalArticle which was in place, prior to the constitutional amendment, even ifthe amendment itself was to be struck down. It was submitted, that if asubstituted provision was declared as unconstitutional, for whatever groundor reason(s), the same would not automatically result in the revival of therepealed provision. In order to support the aforesaid contention, reliancewas placed on Ameer-un-Nissa Begum v. Mahboob Begum[70], Firm A.T.B. MehtabMajid & Co. v. State of Madras[71], B.N. Tewari v. Union of India[72],Koteswar Vittal Kamath v. K. Rangappa Baliga & Co.[73], Mulchand Odhavji v.Rajkot Borough Municipality[74], Mohd. Shaukat Hussain Khan v. State ofAndhra Pradesh[75], State of Maharashtra v. Central Provinces ManganeseOre Co. Ltd.[76], India Tobacco Co. Ltd. v. Commercial Tax Officer,Bhavanipore[77], and Kolhapur Canesugar Works Ltd. v. Union of India[78].It was submitted, that the general rule of construction was, that a repealthrough a repealing enactment, would not revive anything repealed thereby.Reliance was also placed on, State of U.P. v. Hirendra Pal Singh[79], JointAction Committee of Air Line Pilots’ Association of India v. DirectorGeneral of Civil Aviation[80], and State of Tamil Nadu v. K. ShyamSunder[81], to contend, that the settled legal proposition was, whenever anAct was repealed, it must be considered as if it had never existed. It waspointed out, that consequent upon the instant repeal of the earlierprovisions, the earlier provisions must be deemed to have beenobliterated/abrogated/wiped out, wholly and completely. The instantcontention was sought to be summarized by asserting, that if a substitutedprovision was to be struck down, the question of revival of the originalprovision (which had been substituted, by the struck down provision) wouldnot arise, as the provision which had been substituted, stood abrogated,and therefore had ceased to exist in the statute itself. It was thereforesubmitted, that even if the challenge raised to the impugned constitutionalamendment was to be accepted by this Court, the originally enactedprovisions of Articles 124 and 217 would not revive.109. The learned Solicitor General additionally contended, that thepresent challenge at the hands of the petitioners should not beentertained, as it has been raised prematurely. It was submitted, that thechallenge raised by the petitioners was based on assumptions andpresumptions, without allowing the crystallization of the impugnedamendment to the Constitution. It was asserted, that the position wouldcrystalise 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 amendments made, could be determined only after theNJAC Act was made operational, by laying down the manner of itsfunctioning. Since the pendency of the present litigation had delayed theimplementation of the provisions of the amendment to the Constitution, asalso to the NJAC Act, it would be improper for this Court, to accede to achallenge based on conjectures and surmises.110. Mr. K. Parasaran, Senior Advocate, entered appearance on behalf ofthe State of Rajasthan. He submitted, that he would be supporting thevalidity of the impugned constitutional amendment, as also, the NJAC Act,and that, he endorsed all the submissions advanced on behalf of the Unionof India. It was his contention, that Judges of the higher judiciary werealready burdened with their judicial work, and as such, they should not beseriously worried about the task of appointment of Judges, which by theimpugned amendment, had been entrusted to the NJAC. In his view, theexecutive and the Parliament were accountable to the people, and therefore,they should be permitted to discharge the onerous responsibility, ofappointing Judges to the higher judiciary. It was asserted, that theexecutive and the legislature would then be answerable, to the people ofthis country, for the appointments they would make.111. On the issue of inclusion of two “eminent persons” in the six-MemberNJAC, it was asserted, that the nomination of the “eminent persons” was tobe made by the Prime Minister, the Chief Justice of India, and the Leaderof the Opposition in the Lok Sabha. All these three individuals, beinghigh ranking constitutional functionaries, should be trusted, to dischargethe responsibility bestowed on them, in the interest of the “independenceof the judiciary”. It was submitted, that if constitutional functionaries,and the “eminent persons”, could not be trusted, then the constitutionalmachinery itself would fail. It was pointed out, that this Court hadrepeatedly described, that the Constitution was organic in character, andit had an inbuilt mechanism for evolving, with the changing times. It wasasserted, that the power vested with the Parliament, under Article 368 toamend the provisions of the Constitution, was a “constituent power”,authorizing the Parliament to reshape the Constitution, to adapt with thechanging environment. It was contended, that the above power vested in theParliament could be exercised with the sole exception, that “the basicstructure/features” of the Constitution, as enunciated by the Supreme Courtin the Kesavananda Bharati case10, could not be altered/changed. Accordingto the learned senior counsel, the Constitution (99th Amendment) Act was anexercise of the aforestated constituent power, and that, the amendment tothe Constitution introduced thereby, did not in any manner, impinge uponthe “independence of the judiciary”.112. Referring to Article 124A, it was asserted, that the NJAC was a six-Member Commission for identifying, selecting and appointing Judges to thehigher judiciary. It could under no circumstances, be found wanting, withreference to the assertions made by the petitioners. It was pointed out,that the only executive representative thereon being the Union Minister incharge of Law and Justice, it could not be inferred, that the executivewould exert such influence through him, as would undermine the independenceof the five other Members of the Commission. It was submitted, that thelargest representation of the Commission, was that of Judges of the SupremeCourt, inasmuch as, the Chief Justice of India, and the two senior mostJudges of the Supreme Court were ex officio Members of the NJAC.113. With reference to the two “eminent persons” on the NJAC, it was hiscontention, that they could not be identified either with the executive orthe legislature. For the nomination of the two “eminent persons”, theSelection Committee comprises of one member of the executive, one member ofthe legislature, and one member of the judiciary. In the above view of thematter, it was asserted, that the contention, that the two “eminentpersons” in the Commission would support the executive/the legislature, waspreposterous. It was therefore the submission of the learned seniorcounsel, that the “independence of the judiciary” could not be consideredto have been undermined, keeping in mind the composition of the NJAC.114. It was also contended, that the proceedings before the NJAC would bemore transparent and broad based, and accordingly, more result oriented,and would ensure, that the best candidates would be selected forappointment as Judges to the higher judiciary.115. It was asserted, that the NJAC provided for a consultative processwith persons who were ex-hypothesi, well qualified to give proper advice inthe matter of appointment of Judges to the higher judiciary. It wasaccordingly the assertion of learned counsel, that the determinationrendered by this Court, in the Second and Third Judges cases, was not inconsonance with the intent, with which Articles 124 and 217 were originallyenacted. It was therefore submitted, that the subject of “independence ofthe judiciary”, with reference to the impugned constitutional amendment,should not be determined by relying on the Second and Third Judges cases,but only on the basis of the plain reading of Articles 124 and 217, inconjunction with, the observations expressed by the Members of theConstituent Assembly while debating on the above provisions. It wassubmitted, that whilst the Union Minister in charge of Law and Justice,would be in an effective position to provide necessary inputs, withreference to the character and antecedents of the candidate(s) concerned(in view of the governmental machinery available at his command), the two“eminent persons” would be in a position to participate in the selectionprocess, by representing the general public, and thereby, the selectionprocess would be infused with all around logical inputs, for a wholesomeconsideration.116. It was submitted, that since any two Members of the NJAC, werecompetent to veto the candidature of a nominee, three representatives ofthe Supreme Court of India, would be clearly in a position to stall theappointment of unsuitable candidates. It was therefore contended, that thelegislations enacted by the Parliament, duly ratified in terms of Article368, should be permitted to become functional, with the constitution of theNJAC, and should further be permitted to discharge the responsibility ofappointing Judges to the higher judiciary. It was submitted, that in caseof any deficiency in the discharge of the said responsibility, this Courtcould suo motu negate the selection process, or exclude one or both of the“eminent persons” from the selection process, if they were found to beunsuitable or unworthy of discharging their responsibility. Or even ifthey could not establish their usefulness. It was submitted, that thisCourt should not throttle the contemplated process of selection andappointment of Judges to the higher judiciary, through the NJAC, withoutit’s even having been tested.117. Mr. T.R. Andhyarujina, Senior Advocate, entered appearance on behalfof the State of Maharashtra. It was his contention, while endorsing thesubmissions advanced on behalf of the Union of India, that the impugnedConstitution (99th Amendment) Act, was a rare event, inasmuch as, theParliament unanimously passed the same, with all parties supporting theamendment. He asserted, that there was not a single vote against theamendment, even though it was conceded, that there was one Member ofParliament, who had abstained from voting. Besides the above, it wasasserted, that even the State legislatures ratified the instantconstitutional amendment, wherein the ruling party, as also, the parties inopposition, supported the amendment. Based on the above, it was contended,that the instant constitutional amendment, should be treated as theunanimous will of the people, belonging to all sections of the society, andtherefore the same could well be treated, as the will of the nation,exercised by all stakeholders.118. It was submitted, that the amendment under reference should not beviewed with suspicion. It was pointed out, that Articles 124 and 217contemplated a dominating role for the executive. It was contended, thatthe judgment in the Second Judges case, vested primacy in the matter ofappointment of Judges to the higher judiciary, with the Chief Justice ofIndia and his collegium of Judges. This manner of selection and appointmentof Judges to the higher judiciary, according to learned counsel, wasunknown to the rest of the world, as in no other country, the appointmentof Judges is made by Judges themselves. Indicating the defects of thecollegium system, it was asserted, that the same lacked transparency, andwas not broad based enough. Whilst acknowledging, the view expressed byJ.S. Verma, CJ., that the manner of appointment of Judges contemplated bythe Second and Third Judges cases was very good, it was submitted, thatJ.S. Verma, CJ., himself was disillusioned with their implementation, as hefelt, that there had been an utter failure on that front. Learned seniorcounsel submitted, that the questions that needed to be answered were,whether there was any fundamental illegality in the constitutionalamendment? Or, whether the appointment of Judges contemplated through theNJAC violated the “basic structure” of the Constitution? And, whether the“independence of the judiciary” stood subverted by the impugnedconstitutional 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, thatthe independence of Judges, did not depend on who appointed them. It wasalso pointed out, that independence of Judges depended upon theirindividual character. Learned counsel reiterated the position expounded byDr. B.R. Ambedkar, during the Constituent Assembly debates. He submitted,that the concept of “independence of the judiciary” should not bedetermined with reference to the opinion expressed by this Court in theSecond and Third Judges cases, but should be determined with reference tothe debates in the Constituent Assembly, which led to the crystallizationof Articles 124 and 217, as originally enacted.119. Learned counsel placed reliance on Lord Cooke of Thorndon in hisarticle titled “Making the Angels Weep”, wherein he scathingly criticizedthe Second Judges case. Reference was also made to his article “WhereAngels Fear to Tread”, with reference to the Third Judges case. The Court’sattention was also drawn to the criticism of the Second and Third Judgescases, at the hands of H.M. Seervai, Fali S. Nariman and others, especiallythe criticism at the hands of Krishna Iyer and Ruma Pal, JJ., and latereven the author of the majority judgment in the Second Judges case – J.S.Verma, CJ.. It was, accordingly, the contention of the learned seniorcounsel, that whilst determining the issue of “independence of thejudiciary”, reference should not be made to either of the above twojudgments, but should be made to the plain language of Articles 124 and217. Viewed in the above manner, it was asserted, that there would be noquestion of arriving at the conclusion, that the impugned constitutionalamendment, violated the basic concepts of “separation of powers” and“independence of the judiciary”.120. Even though, there were no guidelines, for appointment of the two“eminent persons”, emerging from the Constitution (99th Amendment) Act,and/or the NJAC Act, yet it was submitted, that it was obvious, that the“eminent persons” to be chosen, would be persons who were well versed inthe working of courts. On the Court’s asking, learned senior counselsuggested, that “eminent persons” for the purpose could only be picked outof eminent lawyers, eminent jurists, and even retired Judges, or the like.Insofar as the instant aspect of the matter is concerned, it is obviousthat learned senior counsel had adopted a position, diametrically oppositeto the one canvassed by the learned Attorney General. Another aspect, onwhich we found a little divergence in the submission of Mr. T.R.Andhyarujina was, that in many countries the executive participation in thematter of appointment of Judges to the higher judiciary, was being broughtdown. And in some countries it was no longer in the hands of theexecutive. In this behalf, the clear contention advanced by the learnedsenior counsel was, that the world over, the process of appointment ofJudges to the higher judiciary was evolving, so as to be vested inCommissions of the nature of the NJAC. And as such, it was whollyunjustified to fault the same, on the ground of “independence of thejudiciary”, when the world over Commissions were found to have beendischarging the responsibility satisfactorily.121. Mr. Tushar Mehta, Additional Solicitor General of India, enteredappearance on behalf of the State of Gujarat. He adopted the submissionsadvanced by the learned Attorney General, as also, Mr. Ranjit Kumar, thelearned Solicitor General. It was his submission, that the systeminnovated by this Court for appointment of Judges to the higher judiciary,comprising of the Chief Justice and his collegium of Judges, was a judicialinnovation. It was pointed out, that since 1993 when the above system cameinto existence, it had been followed for appointment of Judges to thehigher judiciary, till the impugned constitutional amendment came intoforce. It was asserted that, in the interregnum, some conspicuous eventshad taken place, depicting the requirement of a change in the method andmanner of appointment of Judges to the higher judiciary. Learned counselinvited our attention to the various Bills which were introduced in theParliament for the purpose of setting up a Commission for appointments ofJudges to the higher judiciary, as have already been narrated hereinbefore. It was pointed out, that several representations were received by theGovernment of the day, advocating the replacement of the “collegiumsystem”, with a broad based National Judicial Commission, to cater to thelong standing aspiration of the citizens of the country. The resultanteffect was, the passing of the Constitution (99th Amendment) Act, and theNJAC Act, by the Parliament. It was submitted, that the same came to bepassed 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 infavour 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 ofJudges to the higher judiciary, had operated for a sufficient length oftime, and learning from the experience emerging out of such operation, itwas felt, that a broad based Commission should be constituted. It wascontended, that the impugned constitutional amendment, satisfied all theparameters for testing the constitutional validity of an amendment.Learned Additional Solicitor General similarly opposed, the submissionsadvanced at the hands of the petitioners challenging the inclusion of theUnion Minister in charge of Law and Justice, as a Member of the NJAC. Healso found merit in the inclusion of two “eminent persons”, in the NJAC.It was contended, that the term “eminent persons”, with reference toappointment of Judges to the higher judiciary, was by itself clear andunambiguous, and as and when, a nomination would be made, its authenticitywould be understood. He distanced himself from the submission advanced byMr. T.R. Andhyarujina, who represented the State of Maharashtra, whileadvancing submission about the identity of those who could be nominated as“eminent persons” to the NJAC. It was submitted, by placing reliance onMunicipal Committee, Amritsar v. State of Punjab[82], K.A. Abbas v. Unionof India[83], and the A.K. Roy case49, that similar submissions advancedbefore this Court, with reference to vagueness and uncertainty of law, wereconsistently rejected by this Court. According to learned counsel, withreference to the alleged vagueness in the term “eminent persons”, in casethe nomination of an individual was assailed, a court of competentjurisdiction would construe it, as far as may be, in accordance with theintention of the legislature. It was asserted, that it could not beassumed, that there was a political danger, that if two wrong persons werenominated as “eminent persons” to the NJAC, they would be able to tilt thebalance against the judicial component of the NJAC. It was submitted, thatthe appointment of the two “eminent persons” was in the safe hands, of thePrime Minister, the Chief Justice of India and the Leader of Opposition inthe Lok Sabha. In the above view of the matter, the learned AdditionalSolicitor General, concluded with the prayer, that the submissions advancedat the hands of the learned counsel for the petitioners deserved to berejected.122. Mr. Ravindra Srivastava, Senior Advocate, entered appearance onbehalf of the State of Chhattisgarh. He had chosen to make submissionsdivided under eleven heads. However, keeping in view the fact, thatdetailed submissions had already been advanced by counsel who had enteredappearance before him, he chose to limit the same. It was the primarycontention of the learned senior counsel, that the impugned constitutionalamendment, as also the NJAC Act, did not in any manner violate the “basicstructure” of the Constitution. According to the learned senior counsel,the impugned constitutional amendment, furthers and strengthens the “basicstructure” principle, of a free and independent judiciary. It was hissubmission, that the assertions made at the hands of the petitioners, tothe effect that the impugned constitutional amendment, impinges upon the“basic structure” of the Constitution, and the “independence of thejudiciary”, were wholly misconceived. It was submitted, that this Courthad not ever held, that the primacy of the judiciary through the ChiefJustice of India, was an essential component of the “independence of thejudiciary”. It was asserted, that while considering the challenge raised bythe petitioners to the impugned constitutional amendment, it would bewholly unjustified to approach the challenge by assuming, that the primacyof the judiciary through the Chief Justice of India, would alone satisfythe essential components of “separation of power” and “independence of thejudiciary”. It was submitted, that the introduction of plurality, in thematter of appointment of Judges to the higher judiciary, was an instance ofindependence, rather than an instance of interference. With reference tothe Members of the NJAC, it was submitted, that the same would ensure notonly transparency, but also a broad based selection process, without anyulterior motives. It was asserted, that the adoption of the NJAC forselection of Judges to the higher judiciary, would result in the selectionof the best out of those willing to be appointed. With reference to theparticipation of the Union Minister in charge of Law and Justice, as an exofficio Member of the NJAC, it was submitted, that the mere participationof one executive representative, would not make the process incompatible,with the concept of “independence of the 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 extractedhereunder:“1033. As a part of this very contention it is urged that the Executiveshould have no voice at all in the matter of appointment of Judges of thesuperior courts in India as the independence of the judiciary which is abasic feature of the Constitution would be in serious jeopardy if theexecutive can interfere with the process of their appointment. It isdifficult to hold that merely because the power of appointment is with theexecutive, the independence of the judiciary would become impaired. Thetrue principle is that after such appointment the executive should have noscope to interfere with the work of a Judge.”“1038. The foregoing gives a fairly reliable picture of the English systemof appointments of Judges. It is thus seen that in England the Judges areappointed by the Executive. “Nevertheless, the judiciary is substantiallyinsulated by virtue of rules of strict law, constitutional conventions,political practice and professional tradition, from political influence.”It was finally submitted by learned counsel, that a multi-memberconstitutional body, was expected to act fairly and independently, and notin violation of the Constitution. It was contended, that plurality byitself was an adequate safeguard. Reliance in this behalf was placed onT.N. Seshan v. Union of India[84], so as to eventually conclude, that theconstitutional amendment did not violate the “basic structure” of theConstitution, and that, it was in consonance with the concept of a free andindependent judiciary, by further strengthening the “basic structure” ofthe Constitution.123. Mr. Ajit Kumar Sinha, Senior Advocate, entered appearance on behalfof the State of Jharkhand. He asserted, that he should be taken as havingadopted all the submissions addressed, on behalf of the Union of India.While commencing his submissions, he placed reliance on Article 124(4) andproviso (b) under Article 217(1) to contend, that Judges of the higherjudiciary, could not be removed except by an order passed by the President,after an address by each House of Parliament, supported by a majority ofthe total membership of that House, and by a majority of not less than2/3rd of the Members of the House present and voting, had been presented tothe President, on the ground of proved misbehaviour or incapacity. In thisbehalf, learned senior counsel placed reliance on Section 16 of the GeneralClauses Act, 1897, which provides that the power to appoint includes thepower to suspend or dismiss. Read in conjunction with Article 367, whichmandates, that unless the context otherwise required, the provisions of theGeneral Clauses Act 1897, would apply to the interpretation of theprovisions of the Constitution, in the same manner as they applied to theinterpretation of an Act of the legislature. Based on the aforesaid, it wassought to be asserted, that in the absence of any role of the judiciary inthe matter of removal of a Judge belonging to the higher judiciary, thejudiciary could not demand primacy in the matter of appointment of Judgesof the higher judiciary, as an integral component of the “independence ofthe judiciary”. It was submitted, on the issue of “independence of thejudiciary”, the question of manner of appointment was far less important,than the question of removal from the position of Judge. Adverting to themanner of removal of Judges of the higher judiciary, in accordance with theprovisions referred to hereinabove, it was asserted, that in the matter ofremoval of a Judge from the higher judiciary, there was no judicialparticipation. It was solely the prerogative of the legislature. Thatbeing so, it was contended, that the submissions advanced at the behest ofthe petitioners, that primacy in the matter of appointment of Judges,should be vested in the judiciary, was nothing but a fallacy.124. The second contention advanced by learned senior counsel was, that itshould not be assumed as if the NJAC, would take away the power ofappointment of Judges to the higher judiciary, from the judiciary. It wassubmitted, that three of the six Members of the NJAC belonged to thejudiciary, and that, one of them, namely, the Chief Justice of India was topreside over the proceedings of the NJAC, as its Chairperson. Thus viewed,it was submitted, that it was wholly misconceived on the part of thepetitioners to contend, that the power of appointment of Judges, had beentaken away from the judiciary, and vested with the executive. It wassubmitted, that there was nothing fundamentally illegal or unconstitutionalin the manner of appointment of Judges to the higher judiciary, ascontemplated by the impugned constitutional amendment. It was alsocontended, that the manner of appointment of Judges, contemplated throughthe NJAC, could not be perceived as violative of the “basic structure” ofthe Constitution, by the mere fact, that any two Members of the NJAC canveto a proposal of appointment of a Judge to the higher judiciary. Andthat, the above would result in the subversion of the “independence of thejudiciary”. In support of the aforestated submissions, it was highlighted,that the manner of appointment of Judges, which was postulated in thejudgments rendered in the Second and Third Judges cases, do not lead to theinference, that if the manner of appointment as contemplated therein wasaltered, it would violate the “basic structure” of the Constitution.125. Mr. Yatindra Singh, learned Senior Advocate, entered appearance as anintervener. He contended, that the preamble to the Constitution of India,Article 50 (which provides for separation of the judiciary from theexecutive), the oath of office of a Judge appointed to the higherjudiciary, the security of his tenure including the fixed age ofretirement, the protection of the emoluments payable to Judges includingsalary and leave, etc., the fact that the Judges appointed to the higherjudiciary served in Courts of Record, having the power to punish forcontempt, and the provisions of the Judicial Officers Protection Act, 1850,and the Judges (Protection) Act, 1985, which grant immunity to them fromcivil as well as criminal proceedings, are incidents, which ensured“independence of the judiciary”. It was submitted, that the manner ofappointment of Judges to the higher judiciary, had nothing to do with“independence of the judiciary”. It was pointed out, that insofar as thedetermination of the validity of the impugned constitutional amendment wasconcerned, it was not essential to make a reference to the judgmentsrendered by this Court in the Second and Third Judges cases. It wassubmitted, that the only question that needed to be determined insofar asthe present controversy is concerned, was whether, the manner ofappointment postulated through the NJAC, would interfere with “independenceof Judges”. In this behalf, it was firstly asserted, that neither theSecond nor the Third Judges case had concluded, that the manner ofappointment of Judges would constitute the “basic structure” of theConstitution. Nor that, the manner of appointment of Judges to the higherjudiciary 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 merelyinterpreted the law, as it then existed. It was asserted, that the abovejudgments did not delve into the question, whether any factor(s) orfeature(s) considered, were components of the “basic structure” of theConstitution.126. Learned senior counsel, also placed reliance on the manner ofappointment of Judges in the United States of America, Australia, NewZealand, Canada, and Japan to contend, that in all these countries Judgesappointed to the higher judiciary, were discharging their responsibilitiesindependently, and as such, there was no reason or justification for thisCourt to infer, if the manner of appointment of Judges was altered from theposition contemplated in the Second and Third Judges cases, to the oneenvisaged by the impugned constitutional amendment, it would affect the“independence of the Judges”. It was submitted, that different countriesin the world had adopted different processes of selection for appointmentof Judges. Each country had achieved “independence of the judiciary”, andas such, it was presumptuous to think that Judges appointed by Judgesalone, 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 judiciary”. Had it been so, it would have been soconcluded in the judgments rendered in the Second and Third Judges cases.It was the submission of the learned senior counsel, that “independence ofthe judiciary” could be achieved by other methods, as had been adopted inother countries, or in a manner, as the Parliament deemed just and properfor India. It was asserted, that the manner of appointment contemplated bythe impugned constitutional amendment had no infirmity, with reference tothe issue of “independence of the judiciary”, on account of the fact, thatthere was hardly any participation in the NJAC, at the behest of organsother than the judiciary.128. Last of all, learned senior counsel contended, that the “collegiumsystem” did not serve the purpose of choosing the best amongst theavailable. The failure of the “collegium system”, according to the learnedsenior counsel, was apparent from the opinion expressed by V.R. KrishnaIyer, J. in the foreword to the book “Story of a Chief Justice”, authoredby U.L. Bhat, J. The “collegium system” was also adversely commented upon,by Ruma Pal, J., while delivering the 5th V.M. Tarkunde Memorial Lecture onthe topic “An Independent Judiciary”. Reference in this behalf, was alsomade to the observations made by S.S. Sodhi, J., a former Chief Justice ofthe Allahabad High Court, in his book “The Other Side of Justice”, and thebook authored by Fali S. Nariman, in his autobiography “Before MemoryFades”. It was contended, that the aforesaid experiences, and the adverseall around comments, with reference to the implementation of the “collegiumsystem”, forced the Parliament to enact the Constitution (99th Amendment)Act, which provided for a far better method for selection and appointmentof Judges to the higher judiciary, than the procedure contemplated underthe “collegium system”. It was submitted, that whilst the NJAC did notexclude the role of the judiciary, it included two “eminent persons” withone executive nominee, namely, the Union Minister in charge of Law andJustice, as Members of the NJAC. Since the role of the executive/Governmentin the NJAC was minimal, it was preposterous to assume, that the executivewould ever be able to have its way, in the matter of appointment of Judgesto the higher judiciary. It was submitted, that the NJAC would fulfill theobjective of transparency, in the matter of appointment of Judges, and atthe same time, would make the selection process broad based. Whileconcluding his submissions, it was also suggested by the learned counsel,that the NJAC should be allowed to operate for some time, so as to betested, before being scrapped at its very inception. And that, it would beimproper to negate the process even before the experiment had begun.129. Mr. Dushyant A. Dave, Senior Advocate and President of the SupremeCourt Bar Association, submitted that the only question that needed to beadjudicated upon, with reference to the present controversy was, whetherthe manner of appointment of Judges to the higher judiciary, through theNJAC, would fall within the constitutional frame work? Learned seniorcounsel commenced his submissions by highlighting the fact, thatparliamentary democracy contemplated through the provisions of theConstitution, was a greater basic concept, as compared to the “independenceof the judiciary”. It was submitted, that the manner in which submissionshad been advanced at the behest of the petitioners, it seemed, that thematter of appointment of Judges to the higher judiciary, is placed at thehighest pedestal, in the “basic structure doctrine”. Learned senior counselseriously contested the veracity of the aforesaid belief. It was submitted,that if those representing the petitioners, were placing reliance on thejudgment rendered in the Second Judges case, to project the aforesaidprinciple, it was legally fallacious, to do so. The reason, according tolearned 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 discussion, with reference to thesubject under consideration, nor was reliance placed on the ConstituentAssembly debates. It was pointed out, that the judgment in the SecondJudges case was rendered, on the basis of the principles contemplated bythe authors of the judgment, and not on any principles of law. It wasaccordingly asserted, that the petitioners’ contentions, deserved outrightrejection.130. Learned senior counsel invited this Court’s attention to the fact,that the judgments rendered in the Kesavananda Bharati case10, the MinervaMills Ltd. case33, and I.R. Coelho v. State of Tamil Nadu[85], wherein theconcept of “basic structure” of the Constitution was formulated and giveneffect to, were all matters wherein on different aspects, the power ofjudicial review had been suppressed/subjugated. It was submitted, thatnone of the aforesaid judgments could be relied upon to determine, whetherthe manner of appointment of the Judges to the higher judiciary,constituted a part of the “basic structure” of the Constitution. It wastherefore, that reliance was placed on Article 368 to contend, that thepower to amend the Constitution, had been described as a “constituentpower”, i.e., a power similar to the one which came to be vested in theConstituent Assembly, for drafting the Constitution. It was submitted,that no judgment could negate or diminish the “constituent power” vestedwith the Parliament, under Article 368. Having highlighted the aforesaidfactual position, learned senior counsel advanced passionate submissionswith reference to various appointments made, on the basis of the procedurepostulated in the Second and Third Judges cases. Reference was pointedlymade to the appointment of a particular Judge to this Court as well. Itwas pointed out, that the concerned Judge had decided a matter, by takingseisin of the same, even though it was not posted for hearing before him.Thereafter, even though a review petition was filed to correct the anomaly,the same was dismissed by the concerned Judge. While projecting hisconcern with reference to the appointment of Judges to the higher judiciaryunder the collegium system, learned senior counsel emphatically pointedout, that the procedure in vogue before the impugned constitutionalamendment, could be described as a closed-door process, where appointmentswere made in a hush-hush manner. He stated that the stakeholders,including prominent lawyers with unimpeachable integrity, were neverconsulted. It was submitted, that inputs were never sought, from those whocould render valuable assistance, for the selection of the best, fromamongst those available. It was pointed out, that the process ofappointment of Judges under the collegium system, was known to have beenabused in certain cases, and that, there were certain inherent defectstherein. It was submitted, that the policy of selection, and the method ofselection, were not justiciable, being not amenable to judicial review, andas such, no challenge could be raised to the wrongful appointments madeunder the “collegium system”.131. On the subject of the manner of interpreting the Constitution, withreference to appointments to the higher judiciary, reliance was placed onRegistrar (Admn), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy32,to contend, that in spite of having noticed the judgments rendered in theSecond Judges case, this Court struck a note of caution, with reference tothe control, vested in the High Courts, over the subordinate judiciary. Itwas pointed out, that it had been held, that control had to be exercisedwithout usurping the power vested with the executive, especially the powerunder Articles 233, 234 and 235. It is submitted, that the power of theexecutive 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 thebest Judges, and the executive or the legislature could not.132. Learned senior counsel also made an impassioned reference, to thefailure of the judiciary, to grant relief to the victims of the 1984 riotsin Delhi, and the 2003 riots in Gujarat. It was also asserted, thatjustice had been denied to those who deserved it the most, namely, the poorcitizenry of this country. It was pointed out, that the manner ofappointment of Judges, through the “collegium system”, had not producedJudges of the kind who were sensitive to the rights of the poor and needy.It was the assertion of the learned senior counsel, that the new systembrought in for selection and appointment of Judges to the higher judiciary,should be tried and tested, and in case, certain parameters had to beprovided for, to ensure its righteous functioning to achieve the bestresults, it 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 State Governments,were all unanimous in their ventilation, that the impugned constitutionalamendment, had been passed unanimously by both the Lok Sabha and the RajyaSabha, wherein parliamentarians from all political parties had spoken inone voice. The Lok Sabha had passed the Bill with 367 Members voting infavour of the Bill, and no one against it (the Members from the AIADMK – 37in all, had however abstained from voting). The Rajya Sabha passed theBill with 179 Members voting in favour of the Bill, and one of its Members– Ram Jethmalani, abstaining. It was submitted, that on account of thespecial procedure prescribed under the proviso to Article 368(2), the Billwas ratified in no time by half the State Legislatures. Mr. Tushar Mehta,learned Additional Solicitor General of India, had informed the Court, thatas many as twenty-eight State Assemblies, had eventually ratified the Bill.It was assented to by the President on 31.12.2014. It was thereforeasserted, that the Constitution (99th Amendment) Act manifested, theunanimous will of the people, and therefore, the same must be deemed to beexpressive of the desire of the nation. Based on the fact, that impugnedconstitutional amendment reflected the will of the people, it wassubmitted, that it would not be appropriate to test it through a process ofjudicial review, even on the touchstone of the concept of “basicstructure”.134. Learned counsel representing the petitioners, described the aforesaidassertion as misplaced. The contention was repulsed by posing a query,whether the same was the will of the nation of the “haves”, or the will ofthe nation of the “have-nots”? Another question posed was, whether theimpugned constitutional amendment represented the desire of the rich, theprosperous and the influential, or the poor and the needy, whoseconditions, hopes and expectations had nothing to do with the impugnedconstitutional 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 petitioners would concede, that it could certainly be described asthe overwhelming will of the political-executive. And no more. It wasasserted, that the impugned constitutional amendment had an oblique motive.The amendment was passed unanimously, in the opinion of the petitioners,for the simple reason, that the higher judiciary corrects the actions ofthe executive and the legislatures. This, it was pointed out, bothers thepolitical-executive.135. With reference to the will of the people, it was submitted, that thesame could easily be ascertainable from the decision rendered in the L.CGolak Nath case41, wherein a eleven-Judge Bench declared, that aconstitutional amendment was “law” with reference to Part III of theConstitution, and therefore, was subject to the constraint of thefundamental rights, in the said part. It was pointed out, that theParliament, had invoked Article 368, while passing the Constitution (25thAmendment) Act, 1971. By the above amendment, a law giving effect to thepolicy of the State under Articles 39(b) and 39(c) could not be declaredvoid, on the ground that it was inconsistent with the fundamental rightsexpressed through Articles 14, 19 and 31. Article 31C also provided, that alegislative enactment containing such a “declaration”, namely, that it wasfor giving effect to the above policy of the State, would not be called inquestion on the ground, that it did not factually gave effect to suchpolicy. It was pointed out, that this Court in the Kesavananda Bharaticase10, had overruled the judgment in the I.C. Golak Nath case41. ThisCurt, while holding as unconstitutional the part of Article 31C, whichdenied judicial review, on the basis of the “declaration” referred toabove, also held, that the right of judicial review was a part of the“basic structure” of the Constitution, and its denial would result in theviolation of the “basic structure” of the Constitution.136. Proceeding further, it was submitted, that on 12.6.1975, the electionof Indira Gandhi to the Lok Sabha was set aside by the Allahabad HighCourt. That decision was assailed before the Supreme Court. Pending theappeal, the Parliament passed the Constitution (39th Amendment) Act, 1975.By the above amendment, election to the Parliament, of the Prime Ministerand the Speaker could not be assailed, nor could the election be held void,or be deemed to have ever become void, on any of the grounds on which anelection could be declared void. In sum and substance, by a deemingfiction of law, the election of the Prime Minister and the Speaker wouldcontinue to be valid, irrespective of the defect(s) and illegalitiestherein. By the above amendment, it was provided, that any pending appealbefore the Supreme Court would be disposed of, in conformity with theprovisions of the Constitution (39th Amendment) Act, 1975. The aforesaidamendment was struck down by this Court, by declaring that the sameamounted to a negation of the “rule of law”, and also because, it was “anti-democratic”, and as such, violated the “basic structure” of theConstitution. It was submitted, that as an answer to the striking down ofmaterial parts of Article 39A of the Constitution, the Parliament whileexercising its power under Article 368, had passed the Constitution (42ndAmendment) Act, 1976, by an overwhelming majority. Through the aboveamendment, the Parliament added clauses (4) and (5) to Article 368, whichread as under:“(4) No amendment of this Constitution (including the provisions of PartIII) made or purporting to have been made under this article whether beforeor after the commencement of section 55 of the Constitution (Forty-secondAmendment) Act, 1976 shall be called in question in any court on anyground.(5) For the removal of doubts, it is hereby declared that there shall be nolimitation whatever on the constituent power of Parliament to amend by wayof addition, variation or repeal the provisions of this Constitution underthis article.”The aforesaid amendment was set aside, as being unconstitutional, by aunanimous decision, in the Minerva Mills Ltd. case33. It was held, thatthe amending power of the Parliament under Article 368 was limited,inasmuch as, it had no right to repeal or abrogate the Constitution, or todestroy its “basic or essential features”.137. Learned senior counsel pointed out, that over the years, yet anotherstratagem was adopted by the Parliament, for avoiding judicial interferencein the working of the Parliament. In this behalf, reference was made tothe Constitution (45th Amendment) Bill, 1978, wherein it was provided, thateven the “basic structure” of the Constitution could be amended, on itsapproval through a referendum. The amendment added a proviso to Article368(2) postulating, that a law compromising with the “independence of thejudiciary” would require ratification by one half of the States, andthereupon, would become unassailable, if adopted by a simple majority votein a referendum. Through its aforesaid action, the Government of the day,revealed its intention to compromise even the “independence of thejudiciary”. Though the above Bill was passed by an overwhelming majority inthe Lok Sabha, it could not muster the two-thirds majority required in theRajya Sabha. It was pointed out, that the propounder of the Bill was thethen Janata Party Government, and not the Congress Party Government (whichwas responsible for the emergency, and the earlier constitutionalamendments). It was therefore asserted, that it should not surprise anyone,if all political parties had spoken in one voice, because all politicalparties were united in their resolve, to overawe and subjugate thejudiciary.138. It was submitted, that the intention of the legislature and theexecutive, irrespective of the party in power, has been to invade into the“independence of the judiciary”. It was further submitted, that attempts tocontrol the judiciary have been more pronounced in recent times. In thisbehalf, the Court’s attention was drawn to the judgments in Lily Thomas v.Union of India[86], and Chief Election Commissioner v. Jan Chaukidar[87].It was pointed out, that in the former judgment, this Court held as invalidand unconstitutional, Section 8(4) of the Representation of the People Act,1951, which provided inter alia, that a Member of Parliament convicted ofan offence and sentenced to imprisonment for not less than two years, wouldnot suffer the disqualification contemplated under the provision, for aperiod of three months from the date of conviction, or if the convictionwas assailed by way of an appeal or revision – till such time, as theappeal or revision was disposed of. By the former judgment, convictedMembers became disqualified, and had to vacate their respective seats, eventhough, the conviction was under challenge. In the latter judgment, thisCourt upheld the order passed by the Patna High Court, declaring that aperson who was confined to prison, had no right to vote, by virtue of theprovisions contained in Section 62(2) of the Representation of the PeopleAct, 1951. Since he/she was not an elector, therefore it was held, thathe/she could not be considered as qualified, to contest elections to eitherHouse 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 thisCourt in the Jan Choukidar case87. This was sought to be done by passingthe Representation of the People (Amendment and Validation) Act, 2013,within three months of the rendering of the above judgment. It wassubmitted, that it was wholly misconceived for the learned counselrepresenting the Union of India, and the concerned States to contend, thatthe determination by the Parliament and the State Legislatures, withreference to constitutional amendments, could be described as actions whichthe entire nation desired, or represented the will of the people. It wassubmitted, that what was patently unconstitutional, could not constituteeither the desire of the nation, or the will of the people.140. Referring to the “collegium system” of appointing Judges to thehigher judiciary, it was pointed out, that the same was put in place by adecision rendered by a nine-Judge Bench, in the Second Judges case, throughwhich the “independence of the judiciary” was cemented and strengthened.This could be achieved, by vesting primacy with the judiciary, in thematter of selection and appointment of Judges to the higher judiciary. Itwas further pointed out, that the collegium system has been undercriticism, on account of lack of transparency. It was submitted, thattaking advantage of the above criticism, political parties across thepolitical spectrum, have been condemning and denouncing the “collegiumsystem”. Yet again, it was pointed out, that the Parliament in its effortto build inroads into the judicial system, had enacted the impugnedconstitutional amendment, for interfering with the judicial process. Thisoblique motive, it was asserted, could not be described as the will of thepeople, or the will of the nation.141. In comparison, while making a reference to the impugnedconstitutional amendment and the NJAC Act, it was equally seriouslycontended, that the constitutional amendment compromised the “independenceof the judiciary”, by negating the “primacy of the judiciary”. Withreference to the insinuations levelled by the Union of India and theconcerned State Governments, during the course of hearing, reference wasmade to an article bearing the title “Structure Matters: The Impact ofCourt Structure on the Indian and U.S. Supreme Courts”, authored by NickRobinson. Reference was made to the following expositions made therein:“Given their virtual self-selection, judges on the Indian Supreme Court areviewed as less politicised than in the United States. The panel structureof the Court also prevents clear ideological blocks from being perceived(even if there are more “activist” or “conservative” judges) there is notthe sense that all the judges have to assemble together for a decision tobe legitimate or fair in the eyes of the public. Quite the opposite, judgesare viewed as bringing different skills or backgrounds that should beselectively utilized.”142. It was submitted, that the method of appointment, evolved through theSecond and Third Judges cases, had been hailed by several jurists, who hadopined that the same could be treated as a precedent worthy of emulation bythe United Kingdom. Reference in this behalf was also made to, the opinionof Lord Templeman, a Member of the House of Lords in the United Kingdom.143. Having given our thoughtful consideration to the position assumed bythe learned counsel representing the rival parties, it is essential tohold, that every constitutional amendment passed by the Parliament, eitherby following the ordinary procedure contemplated under Article 368(2), orthe special procedure contemplated in the proviso to Article 368(2), couldin a sense of understanding, by persons not conversant with the legalniceties of the issue, be treated as the will of the people, for the simplereason, that parliamentarians are considered as representatives of thepeople. In our view, as long as the stipulated majority supports aconstitutional amendment, it would be treated as a constitutional amendmentvalidly passed. Having satisfied the above benchmark, it may be understoodas an expression of the will of the people, in the sense noticed above. Thestrength and enforceability of a constitutional amendment, would be justthe same, irrespective of whether it was passed by the bare minimummajority postulated therefor, or by a substantial majority, or even if itwas approved unanimously. What is important, is to keep in mind, that thereare declared limitations, on the amending power conferred on theParliament, which cannot be breached.144. An ordinary legislation enacted by the Parliament with reference tosubjects contained in the Union List or the Concurrent List, and likewise,ordinary legislation enacted by State Legislatures on subjects contained inthe State List and the Concurrent List, in a sense of understanding noticedabove, could be treated as enactments made in consonance with the will ofthe people, by lay persons not conversant with the legal niceties of theissue. Herein also, there are declared limitations on the power oflegislations, which cannot be violated.145. In almost all challenges, raised on the ground of violation of the“basic structure” to constitutional amendments made under Article 368, andmore particularly, those requiring the compliance of the special and morerigorous procedure expressed in the proviso under Article 368(2), therepeated 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 theConstitution, passed by following the procedure expressed in the proviso toArticle 368(2), constituted the will of the people, and the same was notsubject to judicial review. The same argument had been repeatedly rejectedby this Court by holding, that Article 368 postulates only a “procedure”for amendment of the Constitution, and that, the same could not be treatedas a “power” vested in the Parliament to amend the Constitution, so as toalter, the “core” of the Constitution, which has also been described as,the “basic features/basic structure” of the Constitution. The aboveposition has been projected, through the judgments cited on behalf of thepetitioners, to which reference has been made hereinabove.146. Therefore, even though the Parliament may have passed theConstitution (121st Amendment) Bill, with an overwhelming majority,inasmuch as, only 37 Members from the AIADMK had consciously abstained fromvoting in the Lok Sabha, and only one Member of the Rajya Sabha – RamJethmalani, had consciously abstained from voting in favour thereof, itcannot be accepted, that the same is exempted from judicial review. Thescope of judicial review with reference to a constitutional amendmentand/or an ordinary legislation, whether enacted by the Parliament or aState Legislature, cannot vary, so as to adopt different standards, bytaking into consideration the strength of the Members of the concernedlegislature, which had approved and passed the concerned Bill. If aconstitutional amendment breaches the “core” of the Constitution ordestroys its “basic or essential features” in a manner which was patentlyunconstitutional, it would have crossed over forbidden territory. Thisaspect, would undoubtedly fall within the realm of judicial review. In theabove view of the matter, it is imperative to hold, that the impugnedconstitutional amendment, as also, the NJAC Act, would be subject tojudicial review on the touchstone of the “basic structure” of theConstitution, and the parameters laid down by this Court in that behalf,even though the impugned constitutional amendment may have been approvedand passed unanimously or by an overwhelming majority, and notwithstandingthe ratification thereof by as many as twenty-eight State Assemblies.Accordingly, we find no merit in the contention advanced by the learnedcounsel for the respondents, that the impugned constitutional amendment isnot assailable, through a process of judicial review. II.147. It was the submission of the learned Attorney General, that the“basic features/basic structure” of the Constitution, should only begathered from a plain reading of the provision(s) of the Constitution, asit/they was/were originally enacted. In this behalf, it was acknowledgedby the learned counsel representing the petitioners, that the scope andextent of the “basic features/basic structure” of the Constitution, was tobe ascertained only from the provisions of the Constitution, as originallyenacted, and additionally, from the interpretation placed on the concernedprovisions, by this Court. The above qualified assertion made on behalf ofthe petitioners, was unacceptable to the learned counsel representing therespondents.148. The above disagreement, does not require any detailed analysis. Theinstant aspect, stands determined in the M. Nagaraj case36, wherein it washeld as under:“...The question is – whether the impugned amendments discard the originalConstitution. It was vehemently urged on behalf of the petitioners that theStatement of Objects and Reasons indicates that the impugned amendmentshave been promulgated by Parliament to overrule the decisions of thisCourt. We do not find any merit in this argument. Under Article 141 ofthe 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 ofa challenge, may sometimes not be apparent from a plain reading thereof.The interpretation placed by this Court on a particular provision, wouldmost certainly depict a holistic understanding thereof, wherein the plainreading would have naturally been considered, but in addition thereto, thevital silences hidden therein, based on a harmonious construction of theprovision, in conjunction with the surrounding provisions, would also havebeen taken into consideration. The mandate of Article 141, obliges everycourt within the territory of India, to honour the interpretation,conclusion, or meaning assigned to a provision by this Court. It would,therefore be rightful, to interpret the provisions of the Constitutionrelied upon, by giving the concerned provisions, the meaning, understandingand exposition, assigned to them, on their interpretation by this Court. Inthe above view of the matter, it would neither be legal nor just, topersist on an understanding of the concerned provision(s), merely on theplain reading thereof, as was suggested on behalf of the respondents. Evenon a plain reading of Article 141, we are obligated, to read the provisionsof the Constitution, in the manner they have been interpreted by thisCourt.150. The manner in which the term “consultation” used in Articles 124, 217and 222 has been interpreted by the Supreme Court, has been considered atgreat length in the “Reference Order”, and therefore, there is no occasionfor us, to re-record the same yet again. Suffice it to notice, that theterm “consultation” contained in Articles 124, 217 and 222 will have to beread as assigning primacy to the opinion expressed by the Chief Justice ofIndia (based on a decision, arrived at by a collegium of Judges), as hasbeen concluded in the “Reference Order”. In the Second and Third Judgescases, the above provisions were interpreted by this Court, as they existedin their original format, i.e., in the manner in which the provisions wereadopted by the Constituent Assembly, on 26.11.1949 (-which took effect on26.01.1950). Thus viewed, we reiterate, that in the matter of appointmentof Judges to the higher judiciary, and also, in the matter of transfer ofChief Justices and Judges from one High Court to any other High Court,under Articles 124, 217 and 222, primacy conferred on the Chief Justice ofIndia and his collegium of Judges, is liable to be accepted as an integralconstituent of the above provisions (as originally enacted). Therefore,when a question with reference to the selection and appointment (as also,transfer) of Judges to the higher judiciary is raised, alleging that the“independence of the judiciary” as a “basic feature/structure” of theConstitution has been violated, it would have to be ascertained whether theprimacy of the judiciary exercised through the Chief Justice of India(based on a collective wisdom of a collegium of Judges), had been breached. Then alone, would it be possible to conclude, whether or not, the“independence of the judiciary” as an essential “basic feature” of theConstitution, had been preserved (-and had not been breached). III.151. We have already concluded in the “Reference 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 thedecision making process, pertaining to the selection and appointment ofJudges to the higher judiciary, and also, with reference to the transfer ofChief Justices and Judges of one High Court, to another. For arriving atthe above conclusion, the following parameters were taken intoconsideration:(i) Firstly, reference was made to four judgments, namely, the SamsherSingh case11, rendered in 1974 by a seven-Judge Bench, wherein keeping inmind the cardinal principle – the “independence of the judiciary”, it wasconcluded, that consultation with the highest dignitary in the judiciary –the Chief Justice of India, in practice meant, that the last word mustbelong to the Chief Justice of India, i.e., the primacy in the matter ofappointment of Judges to the higher judiciary must rest with the judiciary.The above position was maintained in the Sankalchand Himatlal Sheth case5in 1977 by a five-Judge Bench, wherein it was held, that in all conceivablecases, 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 ChiefJustice of India, the Courts would have an opportunity to examine, if anyother extraneous circumstances had entered into the verdict of theexecutive. In the instant judgment, so as to emphasize the seriousness ofthe matter, this Court also expressed, that it expected, that the abovewords would not fall on deaf ears. The same position was adopted in theSecond Judges case rendered in 1993 by a nine-Judge Bench, by a majority of7:2, which also arrived at the conclusion, that the judgment rendered inthe 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 theminority opinion, also endorsed the view, that the action of the executiveto put off the recommendation(s) made by the Chief Justice of India, wouldamount to an act of deprival, “violating the spirit of the Constitution”.In sum and substance therefore, the Second Judges case, almost unanimouslyconcluded, that in the matter of selection and appointment of Judges to thehigher judiciary, primacy in the decision making process, unquestionablyrested with the judiciary. Finally, the Third Judges case, rendered in1998 by another nine-Judge Bench, reiterated the position rendered in theSecond Judges case.(ii) Secondly, the final intent emerging from the Constituent Assemblydebates, based inter alia on the concluding remarks expressed by Dr. B.R.Ambedkar, maintained that the judiciary must be independent of theexecutive. The aforesaid position came to be expressed while deliberatingon the subject of “appointment” of Judges to the higher judiciary. Dr. B.R.Ambedkar while responding to the sentiments expressed by K.T. Shah, K.M.Munshi, Tajamul Husain, Alladi Krishnaswami Aayar and AnanthasayanamAyyangar, noted the view of the Constituent Assembly, that the Members weregenerally in agreement, that “independence of the judiciary”, from theexecutive “should be made as clear and definite as it could be made bylaw”. The above assertion made while debating on the issue of appointmentof Judges to the Supreme Court, effectively resulted in theacknowledgement, that the issue of “appointment” of the Judges to thehigher judiciary, had a direct nexus with “independence of the judiciary”.Dr. B.R. Ambedkar declined the proposal of adopting the manner ofappointment of Judges, prevalent in the United Kingdom and in the UnitedStates of America, and thereby, rejected the subjugation of the process ofselection and appointment of Judges to the higher judiciary, at the handsof the executive and the legislature respectively. While turning down thelatter proposal, Dr. B.R. Ambedkar was suspicious and distrustful, that insuch an eventuality, appointments to the higher judiciary, could beimpacted by “political pressure” and “political considerations”.(iii) Thirdly, the actual practice and manner of appointment of Judges tothe higher judiciary, emerging from the parliamentary debates, clearlydepict, that absolutely all Judges (except in one case) appointed since1950, had been appointed on the advice of the Chief Justice of India. Itis therefore clear, that the political-executive has been conscious of thefact, that the issue of appointment of Judges to the higher judiciary,mandated the primacy of the judiciary, expressed through the Chief Justiceof India. In this behalf, even the learned Attorney General had conceded,that the supersession of senior Judges of the Supreme Court, at the time ofthe appointment of the Chief Justice of India in 1973, the mass transfer ofJudges of the higher judiciary during the emergency in 1976, and the secondsupersession of a Supreme Court Judge, at the time of the appointment ofthe Chief Justice of India in 1977, were executive aberrations.(iv) Fourthly, the Memorandum of Procedure for appointment of Judges andChief Justices to the higher judiciary drawn in 1950, soon after Indiabecame independent, as also, the Memorandum of Procedure for appointment ofJudges and Chief Justices to the higher judiciary redrawn in 1999, afterthe decision in the Second Judges case, manifest that, the executive hadunderstood and accepted, that selection and appointment of Judges to thehigher judiciary would emanate from, and would be made on the advice of theChief Justice of India.(v) Fifthly, having adverted to the procedure in place for the selectionand appointment of Judges to the higher judiciary, the submission advancedon behalf of the respondents, that the Second and Third Judges cases hadcreated a procedure, where Judges select and appoint Judges, or that, thesystem of Imperium in Imperio had been created for appointment of Judges,was considered and expressly rejected (in the “Reference Order”).Furthermore, the submission, that the executive had no role, in theprevailing process of selection and appointment of Judges to the higherjudiciary was also rejected, by highlighting the role of the executive inthe matter of appointment of Judges to the higher judiciary. Whilstrecording the above conclusions, it was maintained (in the “ReferenceOrder”), that primacy in the matter of appointment of Judges to the higherjudiciary, was with the Chief Justice of India, and that, the same wasbased on the collective wisdom 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 Articles 124, 217 (and 222),must be deemed to be vested in the executive, because the President byvirtue of the constitutional mandate contained in Article 74, had to act inaccordance with the aid and advice tendered to him by the Council ofMinisters, was rejected by holding, that primacy in the matter ofappointment of Judges to the higher judiciary, continued to remain with theChief Justice of India, and that, the same was based on the collectivewisdom of a collegium of Judges. In recording the above conclusion,reliance was placed on Article 50. Reliance was also placed on Article 50,for recording a further conclusion, that if the power of appointment ofJudges 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 the matter ofappointment of Judges to the higher judiciary, as also, in the matter oftheir transfer, primacy in the decision making process, inevitably restswith the Chief Justice of India. And that, the same was expected to beexpressed, on the basis of the collective wisdom, of a collegium of Judges. Having so concluded, we reject all the submissions advanced at the handsof the learned counsel for the respondents, canvassing to the contrary. IV.153. The next question which arises for consideration is, whether theprocess of selection and appointment of Judges to the higher judiciary(i.e., Chief Justices, and Judges of the High Courts and the SupremeCourt), and the transfer of Chief Justices and Judges of one High Court toanother, contemplated through the impugned constitutional amendment,retains and preserves primacy in the decision making process, with thejudiciary? It was the emphatic contention of the learned Attorney General,the learned Solicitor General, the learned Additional Solicitor General,and a sizeable number of learned senior counsel who represented therespondents, that even after the impugned constitutional amendment, primacyin the decision making process, under Articles 124, 217 and 222, has beenretained with the judiciary. Insofar as the instant aspect of the matteris concerned, it was contended on behalf of the respondents, that three ofthe six Members of the NJAC were ex officio Members drawn from thejudiciary - the Chief Justice of India, and two other senior Judges of theSupreme Court, next to the Chief Justice. In conjunction with theaforesaid factual position, it was pointed out, that there was only onenominee from the political-executive – the Union Minister in charge of Lawand Justice. It was submitted, that the remaining two Members, out of thesix-Member NJAC, were “eminent persons”, who were expected to bepolitically neutral. Therefore, according to learned counsel representingthe respondents, primacy in the matter of selection and appointment ofJudges to the higher judiciary, and also, in the matter of transfer ofChief Justices and Judges from one High Court to another, even under theimpugned constitutional amendment, continued to remain, in the hands of thejudiciary.154. In conjunction with the aforesaid submission, it was emphaticallypointed out, that the provisions of the NJAC Act postulate, that the NJACwould not recommend a person for appointment as a Judge to the higherjudiciary, if any two Members of the NJAC, did not agree with suchrecommendation. Based on the fact, that the Chief Justice of India and thetwo other senior Judges of the Supreme Court, were ex officio Members ofthe NJAC, it was asserted, that the veto power for rejecting an unsuitablerecommendation by the judicial component of the NJAC, would result inretaining primacy in the hands of the judiciary, in the matter of selectionand appointment of Judges to the higher judiciary, and also, in the matterof transfer of Chief Justices and Judges from one High Court to another.This according to learned counsel for the respondents, was because thejudicial component would be sufficient, in preventing the other Members ofthe NJAC, from having their way.155. Having given our thoughtful consideration to the 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 importantquestion to be considered is, whether as a matter of practicality, theimpugned constitutional amendment can be considered to have sustained,primacy in the matter of decision making, under the amended provisions ofArticles 124, 217 and 222, in conjunction with the inserted provisions ofArticles 124A to 124C, with the judiciary?156. The exposition made by the learned Attorney General and some of theother learned counsel representing the respondents, emerges from an oversimplified and narrow approach. The primacy vested in the Chief Justice ofIndia based on the collective wisdom of a collegium of Judges, needs aholistic approach. It is not possible for us to accept, that the primacy ofthe judiciary would be considered to have been sustained, merely byensuring that the judicial component in the membership of the NJAC, wassufficiently capable, to reject the candidature of an unworthy nominee. Weare satisfied, that in the matter of primacy, the judicial component of theNJAC, should be competent by itself, to ensure the appointment of a worthynominee, as well. Under the substituted scheme, even if the Chief Justiceof India and the two other senior most Judges of the Supreme Court (next tothe Chief Justice of India), consider a nominee to be worthy forappointment to the higher judiciary, the concerned individual may still notbe appointed, if any two Members of the NJAC opine otherwise. This would beout-rightly obnoxious, to the primacy of the judicial component. Themagnitude of the instant issue, is apparent from the fact that the two“eminent persons” (-lay persons, according to the learned AttorneyGeneral), could defeat the unanimous recommendation made by the ChiefJustice of India and the two senior most Judges of the Supreme Court,favouring the appointment of an individual under consideration. Without anydoubt, demeaning primacy of the judiciary, in the matter of selection andappointment of Judges to the higher judiciary. The reason to describe it asbeing obnoxious is this – according to the learned Attorney General,“eminent persons” had to be lay persons having no connection with thejudiciary, or even to the profession of advocacy, perhaps individuals whomay not have any law related academic qualification, such lay persons wouldhave the collective authority, to override the collective wisdom of theChief Justice of India and two Judges of the Supreme Court of India. Theinstant issue, is demonstrably far more retrograde, when the Union Ministerin charge of Law and Justice also supports the unanimous view of thejudicial component, because still the dissenting voice of the “eminentpersons” would prevail. It is apparent, that primacy of the judiciary hasbeen rendered a further devastating blow, by making it extremely fragile.157. When the issue is of such significance, as the constitutionalposition of Judges of the higher judiciary, it would be fatal to dependupon the moral strength of individuals. The judiciary has to be manned bypeople of unimpeachable integrity, who can discharge their responsibilitywithout fear or favour. There is no question of accepting an alternativeprocedure, which does not ensure primacy of the judiciary in the matter ofselection and appointment of Judges to the higher judiciary (as also, inthe matter of transfer of Chief Justices and Judges of High Courts, toother High Courts). In the above stated position, it is not possible toconclude, 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”.158. Articles 124A(1)(a) and (b) do not provide for an adequaterepresentation in the matter, to the judicial component, to ensure primacyof the judiciary in the matter of selection and appointment of Judges tothe higher judiciary, and therefore, the same are liable to be set asideand struck down as being violative of the “basic structure” of theConstitution of India. Thus viewed, we are satisfied, that the “basicstructure” of the Constitution would be clearly violated, if the process ofselection of Judges to the higher judiciary was to be conducted, in themanner contemplated through the NJAC. The impugned constitutionalamendment, being ultra vires the “basic structure” of the Constitution, isliable to be set aside. V.159. It is surprising, that the Chief Justice of India, on account of theposition he holds as pater familias of the judicial fraternity, and onaccount of the serious issues, that come up for judicial adjudicationbefore him, which have immeasurable political and financial consequences,besides issues of far reaching public interest, was suspected by none otherthan Dr. B.R. Ambedkar, during the course of the Constituent Assemblydebates, when he declined to accept the suggestions made by some Members ofthe Constituent Assembly, that the selection and appointment of Judges tothe higher judiciary should be made with the “concurrence” of the ChiefJustice of India, by observing, that even though the Chief Justice of Indiawas a very eminent person, he was after all just a man with all thefailings, all the sentiments, and all the prejudices, which common peoplehave. And therefore, the Constituent Assembly did not leave it to theindividual wisdom of the Chief Justice of India, but required consultationwith a plurality of Judges, by including in the consultative process (atthe discretion of the President of India), not only Judges of the SupremeCourt of India, but also Judges of High Courts (in addition to themandatory consultation with the Chief Justice of India). One would alsoordinarily feel, that the President of India and/or the Prime Minister ofIndia in the discharge of their onerous responsibilities in running theaffairs of the country, practically all the time take decisions having farreaching consequences, not only in the matter of internal affairs of thecountry on the domestic front, but also in the matter of internationalrelations with other countries. One would expect, that vesting theauthority of appointment of Judges to the higher judiciary with any one ofthem should not ordinarily be suspect of any impropriety. Yet, theConstituent Assembly did not allow any of them, any defined participatoryrole. In fact the debate in the Constituent Assembly, removed theparticipation of the political-executive component, because of fear ofbeing impacted by “political-pressure” and “political considerations”. Wasthe view of the Constituent Assembly, and the above noted distrust,legitimate?160. A little personal research, resulted in the revelation of the conceptof the “legitimate power of reciprocity”, debated by Bertram Raven in hisarticle – “The Bases of Power and the Power/Interaction Model ofInterpersonal Influence” (this article appeared in Analyses of SocialIssues and Public Policy, Vol. 8, No.1, 2008, pp. 1-22). In addition tohaving dealt with various psychological reasons which influenced thepersonality of an individual, reference was also made to the “legitimatepower of reciprocity”. It was pointed out, that the reciprocity normenvisaged, that if someone does something beneficial for another, therecipient would feel an obligation to reciprocate (“I helped you when youneeded it, so you should feel obliged to do this for me.” – Goranson andBerkowitz, 1966; Gouldner, 1960). In the view expressed by the author, theinherent need of power, is universally available in the subconscious of theindividual. On the satisfaction and achievement of the desired power, thereis a similar unconscious desire to reciprocate the favour.161. The psychological concept of the “legitimate power of reciprocity”,was also highlighted by Dennis T. Regan of the Cornell University in hisarticle – “Effects of a Favour and Liking on Compliance”. It was pointedout, that there was sufficient evidence to establish, that favours dogenerate feelings of obligation, and the desire to reciprocate. Accordingto the author, the available data suggested, that a favour would lead toreported feelings of obligation, on the part of its recipient.162. In his book “Influence: The Psychology of Persuasion” – RobertCialdini, Regent’s Professor Emeritus of Psychology and Marketing atArizona State University, in Chapter II titled – “Reciprocation”, expressedthe view, that “possibly one of the most potent compliance techniques, wasthe rule of reciprocation, which prompts one to repay, what someone hasgiven to him. When a gift is extended, the recipient feels indebted to thegiver, often feels uncomfortable with this indebtedness, and feelscompelled to cancel the debt…often against his/her better judgment”. It waspointed out, that the rule of reciprocation, was widespread across thehuman cultures, suggesting that it was fundamental to creatinginterdependencies on which societies, cultures, and civilizations werebuilt. It was asserted, that in fact the rule of reciprocation assured,that someone who had given something away first, has a relative assurance,that this initial gift will eventually be repaid. In the above view of thematter, nothing would be lost. Referring to Marcel Nauss, who hadconducted a study on gift giving, it was emphasised, that “there is anobligation to give, an obligation to receive, and an obligation to repay”.According to the author, it was in the above network of indebtedness, thatthe first giver could exploit the favour, and would rightfully assume therole of a compliance practitioner. And accordingly it was concluded, thatalthough the obligation to repay constituted the essence of the reciprocityrule, it was the obligation to receive, that made the rule so easy toexploit. Describing the power of reciprocity, Cialdini in his articleexpressed, that the person who gives first remains, in control; and theperson who was the recipient, always remained in debt. It is pointed out,that the above situation was often deliberately created, andpsychologically maintained. It was also the view of the author, that themore valuable, substantial and helpful the original favour, the moreindebted the recipient would continue to feel. In the above article, areference was made to Alvin Gouldner, in whose opinion, there was no humansociety on earth, that does not follow the rule of reciprocity. Referringalso to the views of the renowned cultural anthropologists – Lionel Tigerand Robin Fox, it was affirmed, that humans lived in a “web ofindebtedness”. Therefore it was felt, that reciprocity was a debt and apowerful psychological tool, which was all, but impossible to resist.163. Under the constitutional scheme in place in the United States ofAmerica, federal Judges are nominated by the President, and confirmed bythe Senate. The issue being debated, namely, the concept of “the legitimatepower of reciprocity”, therefore directly arises in the United States, inthe matter of appointment of federal Judges. The first favour to thefederal Judge is extended by the President, who nominates his name, andfurther favours are extended by one or more Member(s) of the Senate, withwhose support the Judge believes he won the vote of confirmation. Anarticle titled as “Loyalty, Gratitude, and the Federal Judiciary”, writtenby Laura E. Little (Associate Professor of Law, Temple University School ofLaw, as far back as in 1995), deals with the issue in hand, pointedly withreference to appointment of Judges. The article reveals, that the issue ofreciprocity has been a subject of conscious debate, with reference to theappointment of Judges for a substantial length of time. The conclusionsdrawn in the above article are relevant to the present controversy, and arebeing extracted hereunder:“On the issue of impartiality, an individual undertaking a federaljudgeship confronts a difficult task. Contemporary lawyers commonly agreethat the law is not wholly the product of neutral principles and that ajudge must choose among values as she shapes the law. Yet, the standardsgoverning impartiality in federal courts largely assume that total judicialneutrality and dispassion are possible. The process of mapping out apersonal framework for decisionmaking is therefore apt to createconsiderable discordance for the judge. Added to this burden are thespecial pulls of gratitude and loyalty toward the individuals who madepossible the judge's job.I have sought to show both that gratitude and loyalty can have a powerfulinfluence for a federal judge undertaking to decide a case. The problem iscomplex because loyalty and gratitude pose a greater potential problem forsome judges than for others. This complexity emerges to a great degree fromthe process of nomination and confirmation, which often generates, or atleast reinforces, a judge's sense of loyalty and gratitude to herbenefactors.In the last few years, we have witnessed a wave of dissatisfaction with theselection process for federal judges. Legal scholarship in particular hasoffered frequent critique and constructive suggestions for change. As itmust, this scholarship recognizes that any change ventured must weigh theimpact of nomination and confirmation on a number of segments of Americanlife, including the constitutional balance of powers and public perceptionof the judiciary.To omit from these concerns the effect of any change on the ultimatequality of judicial decisionmaking would, of course, be a mistake. Thus, instudying any new selection procedure, we must contemplate the procedure'spotential for creating and invigorating a judge's feelings of loyalty andgratitude to her benefactors. The foregoing should, therefore, not onlyshed light on the process of federal court decisionmaking in general, butalso give much needed guidance for evaluating proposed changes to judicialselection.”164. It is however pertinent to mention, that in her article, Laura E.Little has expressed, what most moral philosophers believed, that gratitudehas significant moral components. And further, that gratitude has a readyplace in utilitarian moral systems, which were designed to ensure thegreatest good for the greatest number of individuals. The concept ofgratitude was however intertwined with loyalty by Laura E. Little, as inher view, gratitude and loyalty, were closely related. A beneficiary couldshow gratitude to a benefactor, through an expression of loyalty. The pointsought to be made was, that in understanding loyalty one understands, whowe are in our friendships, loves, family bonds, national ties, andreligious devotion. Insofar as the patterns of behaviour in the Indiancultural system is concerned, a child is always obligated to his parentsfor his upbringing, and it is the child’s inbuilt moral obligation, toreciprocate to his parents by extending unimpeachable loyalty andgratitude. The above position finds replication in relationships of teacherand taught, master and servant, and the like. In the existing Indiancultural scenario, an act of not reciprocating towards a benefactor, wouldmore often than not, be treated as an act of grave moral deprivation. Whenthe favour extended is as important as the position of judgeship in thehigher judiciary, one would best leave it to individual imagination, todetermine the enormity of the reciprocal gratitude and loyalty.165. The consideration recorded hereinabove, endorses the view, that thepolitical-executive, as far as possible, should not have a role in theultimate/final selection and appointment of Judges to the higher judiciary. Specially keeping in mind the enormity of the participation of thepolitical-executive, in actions of judicial adjudication. Reciprocity, andfeelings of pay back to the political-executive, would be disastrous to“independence of the judiciary”. In this, we are only reiterating theposition adopted by Dr. B.R. Ambedkar. He feared, that with theparticipation of the political-executive, the selection of Judges, would beimpacted by “political pressure” and “political considerations”. His view,finds support from established behavioural patterns expressed byPsychologists. It is in this background, that it needs to be ensured, thatthe political-executive dispensation has the least nexus, with the processof finalization of appointments of Judges to the higher judiciary. VI.166. The jurisdictions that have to be dealt with, by Judges of the higherjudiciary, are large and extensive. Within the above jurisdictions, thereare a number of jurisdictions, in which the executive is essentially afundamental party to the lis. This would inter alia include cases arisingout of taxing statutes which have serious financial implications. Theexecutive is singularly engaged in the exploitation of natural resources,often through private entrepreneurs. The sale of natural resources, whichalso, have massive financial ramifications, is often subject to judicialadjudication, wherein also, the executive is an indispensable party.Challenges arising out of orders passed by Tribunals of the nature of theTelecom Disputes Settlement & Appellate Tribunal and the Appellate Tribunalfor Electricity, and the like, are also dealt with by the higher judiciary,where also the executive has a role. Herein also, there could be massivefinancial implications. The executive is also a necessary party in allmatters relating to environmental issues, including appeals from theNational Green Tribunals. Not only in all criminal matters, but also inhigh profile scams, which are no longer a rarity, the executive has anindispensable role. In these matters, sometimes accusations are levelledagainst former and incumbent Prime Ministers and Ministers of the UnionCabinet, and sometimes against former and incumbent Chief Ministers andMinisters of the State Cabinets. Even in the realm of employment issues,adjudication rendered by the Central Administrative Tribunal, and the ArmedForces Appellate Tribunal come up before the Judges of the higherjudiciary. These adjudications also sometimes include, high rankingadministrators and armed forces personnel. Herein too, the executive is anessential constituent. This is only a miniscule part of the extensiveinvolvement of the political-executive, in litigation before the higherjudiciary.167. Since the executive has a major stake, in a majority of cases, whicharise for consideration before the higher judiciary, the participation ofthe Union Minister in charge of Law and Justice, as an ex officio Member ofthe NJAC, would be clearly questionable. In today’s world, people areconscious and alive to the fact, that their rights should be adjudicated inconsonance of the rules of natural justice. One of the rules of naturaljustice is, that the adjudicator should not be biased. This would mean,that he should neither entertain a prejudice against either party to a lis,nor should he be favourably inclined towards any of them. Another componentof the rule of bias is, that the adjudicator should not have a conflict ofinterest, with the controversy he is to settle. When the present set ofcases came up for consideration, a plea of conflict of interest was raisedeven against one of the presiding Judges on the Bench, which resulted inthe recusal of Anil R. Dave, J. on 15.4.2015. A similar prayer was againmade against one of us (J.S. Khehar, J.), on 21.4.2015, on the ground ofconflict of interest. What needs to be highlighted is, that bias,prejudice, favour and conflict of interest are issues which repeatedlyemerge. Judges are careful to avoid adjudication in such matters. Judgesare not on one or the other side of the adjudicatory process. The political-executive in contrast, in an overwhelming majority of cases, has aparticipatory 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 winor a loss. The plea of conflict of interest would be available against theexecutive, if it has a participatory role in the final selection andappointment of Judges, who are then to sit in judgment over matters,wherever the executive is an essential and mandatory party. The instantissue arose for consideration in the Madras Bar Association case35. In theabove case a five-Judge Bench considered the legality of the participationof Secretaries of Departments of the Central Government in the selectionand appointment of the Chairperson and Members of the National TaxTribunal. On the above matter, this Court held, as under:“131.Section 7 cannot even otherwise be considered to be constitutionallyvalid, since it includes in the process of selection and appointment of theChairperson and Members of NTT, Secretaries of Departments of the CentralGovernment. In this behalf, it would also be pertinent to mention that theinterests of the Central Government would be represented on one side inevery litigation before NTT. It is not possible to accept a party to alitigation can participate in the selection process whereby the Chairpersonand Members of the adjudicatory body are selected….”The position herein is no different. The Attorney General however attemptedto distinguish the matter in hand, from the controversy decided in thecited case by asserting, that in cases adjudicated upon by the National TaxTribunal the “…Central Government would be represented on one side in everylitigation …” which is not the case before the higher judiciary. Therebuttal, clearly avoids the issue canvassed. One would assume from theresponse, that the position was conceded to the extent of matters, wherethe executive was a party to the lis. But that itself would exclude theselected Judges from hearing a large majority of cases. One wouldtherefore reject the response of the Union of India.168. We are of the view, that consequent upon the participation of theUnion Minister in charge of Law and Justice, a Judge approved forappointment with the Minister’s support, may not be able to resist orrepulse a plea of conflict of interest, raised by a litigant, in a matterwhen the executive has an adversarial role. In the NJAC, the Union Ministerin charge of Law and Justice would be a party to all final selections andappointments of Judges to the higher judiciary. It may be difficult forJudges approved by the NJAC, to resist a plea of conflict of interest (ifsuch a plea was to be raised, and pressed), where the political-executiveis a party to the lis. The above, would have the inevitable effect ofundermining the “independence of the judiciary”, even where such a plea isrepulsed. Therefore, the role assigned to the political-executive, can atbest be limited to a collaborative participation, excluding any role in thefinal determination. Therefore, merely the participation of the UnionMinister in charge of Law and Justice, in the final process of selection,as an ex officio Member of the NJAC, would render the amended provision ofArticle 124A(1)(c) as ultra vires the Constitution, as it impinges on theprinciples of “independence of the judiciary” and “separation of powers”. VII.169. The learned Attorney General had invited our attention to the mannerin which judicial appointments were being made in fifteen countries. Itwas submitted, that in nine countries Judges were appointed either througha Judicial Appointments Commission, or through a Judicial AppointmentsCommittee, 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 General or the President. We were informed, that inone European country, Judges were nominated by the Minister of Justice andconfirmed by the Parliamentary Committee. In the United States of America,Judges were appointed through a process of nomination by the President andconfirmation by the Senate. It was highlighted, that in all the fifteencountries, the executive was the final determinative/appointing authority.And further that, in all the countries, the executive had a role to play inthe selection and appointment of Judges. The foresaid factual position wasbrought to our notice for the singular purpose of demonstrating, thatexecutive participation in the process of selection and appointment ofJudges had not made the judiciary in any of the fifteen countries,subservient to the political-executive. It was asserted, that thecountries referred to by him were in different continents of the world, andthere was no complaint with reference to the “independence of thejudiciary”. The point sought to be driven home was, that the mereparticipation of the executive in the selection and appointment of Judgesto the higher judiciary, did not impinge upon the “independence of thejudiciary”.170. The aforestated submission does not require an elaborate debate.Insofar as the instant aspect of the matter is concerned, as the same wasexamined in the Second Judges case, wherein S. Ratnavel Pandian, J., one ofthe Judges who passed a separate concurring order, supporting the majorityview. He had rejected the submission of the nature advanced by the learnedAttorney General, with the following observations:“194. Nevertheless, we have, firstly to find out the ails from which ourjudicial system suffers; secondly to diagnose the root cause of thoseailments under legalistic biopsies, thirdly to ascertain the nature ofaffliction on the system and finally to evolve a new method and strategy totreat and cure those ailments by administering and injecting a 'newinvented medicine' (meaning thereby a newly-developed method and strategy)manufactured in terms of the formula under Indian pharmacopoeia (meaningthereby according to national problems in a mixed culture etc.) but notaccording to American or British pharmacopoeia which are alien to ourIndian system though the system adopted in other countries may throw somelight for the development of our system. The outcry of some of the criticsis when the power of appointment of Judges in all democratic countries, farand wide, rests only with the executive, there is no substance in insistingthat the primacy should be given to the opinion of the CJI in selection andappointment of candidates for judgeship. This proposition that we must copyand adopt the foreign method is a dry legal logic, which has to be rejectedeven on the short ground that the Constitution of India itself requiresmandatory consultation with the CJI by the President before making theappointments to the superior judiciary. It has not been brought to ournotice by any of the counsel for the respondents that in other countriesthe executive alone makes the appointments notwithstanding the existence ofany existing similar constitutional provisions in their Constitutions.”171. Despite our having dealt with the submission canvassed at the handsof the learned Attorney General based on the system of appointment ofJudges to the higher judiciary in fifteen countries, we consider itexpedient to delve further on the subject. During the hearing of thepresent controversy, a paper written in November 2008, by Nuno Garoupa andTom Ginsburg of the Law School, University of Chicago, came to hand. Thepaper bore the caption – “Guarding the Guardians: Judicial Councils andJudicial Independence”. The paper refers to comparative evidence, of theongoing debate, about the selection and discipline of Judges. The articleproclaims to aim at two objectives. Firstly, the theory of formation ofJudicial Councils, and the dimensions on which they differ. And secondly,the extent to which different designs of Judicial Council, affect judicialquality. These two issues were considered as of extreme importance, as thesame were determinative of the fact, whether Judges would be able to havean effective role in implementing social policy, as broadly conceived. Itwas observed, that Judicial Councils had come into existence to insulatethe appointment, promotion and discipline of Judges from partisan politicalinfluence, and at the same time, to cater to some level of judicialaccountability. It was the authors’ view, that the Judicial Councils liesomewhere in between the polar extremes of letting Judges manage their ownaffairs, and the alternative of complete political-executive control ofappointments, promotions and discipline.172. According to the paper, France established the first High Council ofthe Judiciary in 1946. Italy’s Judicial Council was created in 1958.Italy was the first to fully insulate the entire judiciary from politicalcontrol. It was asserted, that the Italian model was, thereupon, followedin other countries. The model established in Spain and Portugal comprisedof a significant proportion of Members who were Judges. These models wereestablished, after the fall of dictatorship in these countries. Councilscreated by these countries, are stated to be vested with, final decisionmaking authority, in matters pertaining to judicial promotion, tenure andremoval. According to the paper, the French model came into existence as aconsequence of concerns about excessive politicization. Naturally, theprocess evolved into extensive independence of judicial power. Yet,judicial concern multiplied manifolds in the judiciary’s attempt to giveeffect to the European Convention of Human Rights. And the judiciary’sinvolvement in the process of judicial review, in the backdrop ofsurmounting political scandals. The paper describes the pattern in Italyto be similar. In Italy also, prominent scandals led to investigation ofbusinessmen, politicians and bureaucrats (during the period from 1992 to1997), which resulted in extensive judicial participation, in politicalactivity. The composition of the Council in Italy, was accordingly alteredin 2002, to increase the influence of the Parliament.173. The paper noted, that the French-Italian models had been adopted inLatin America, and other developing countries. It was pointed out, thatthe World Bank and other similar multilateral donor agencies, insist uponJudicial Councils, to be associated with judicial reform, for enforcementof the rule of law. The Elements of European Statute on the Judiciary, wasconsidered as a refinement of the Judicial Council model. The perceivedSupreme Council of Magistracy, requires that at least half of the Membersare Judges, even though, some of the Members of the Supreme Council aredrawn from the Parliament. It was the belief of the authors of the paper,that the motivating concern for adoption of the Supreme Councils, in theFrench-Italian tradition, was aimed at ensuring “independence of thejudiciary” after periods of undemocratic rule. Perhaps because of concernsover structural problems, it was pointed out, that external accountabilityhad emerged as a second goal for these Supreme Councils. Referring to theGermany, Austria and Netherlands models, it was asserted, that theirCouncils were limited to playing a role in selection (rather than promotionand discipline) of Judges. Referring to Dutch model, it was pointed out,that recent reforms were introduced to ensure more transparency andaccountability.174. It was also brought out, that Judicial Councils in civil lawjurisdictions, had a nexus to the Supreme Court of the country. Referringto Costa Rica and Austria, it was brought out, that the Judicial Councilsin these countries were a subordinate organ of the Supreme Court. In somecountries like Brazil, Judicial Councils were independent bodies withconstitutional status, while in others Judicial Councils governed theentire judiciary. And in some others, like Guatemala and Argentina, theyonly governed lower courts.175. Referring to recruitment to the judiciary in common law countries, itwas pointed out, that in the United Kingdom, the Constitutional Reform Act,2005 created a Judicial Appointments Commission, which was responsible forappointments solely based on merit, had no executive participation. It waspointed out, that New Zealand and Australia were debating whether to followthe same. The above legislation, it was argued, postulated a statutory dutyon Government Members, not to influence judicial decisions. And also,excluded the participation of the Lord Chancellor in all such activities,by transferring his functions to the President of the Courts of England andWales, (formerly designated as Lord Chief Justice of England and Wales).176. Referring to the American experience, it was noted, that concern overtraditional methods of judicial selection (either by politicians or byelection) had given way to “Merit Commissions” so as to base selection ofJudges on merit. Merit Commissions, it was felt, were analogous to JudicialCouncils. The system contemplated therein, was non-partisan. The JudicialSelection Commission comprised of judges, lawyers and political appointees.177. Referring to the works of renowned jurists on the subject, it wassought to be concluded, that in today’s world, there was a strongconsensus, that of all the procedures, the merit plan insulated thejudiciary from political pressure. In their remarks, emerging from thesurvey carried out by them, it was concluded, that it was impossible toeliminate political pressure on the judiciary. Judicial Commissions/Councils created in different countries were, in their view, measures toenhance judicial independence, and to minimize political influence. It wastheir view that once given independence, Judges were more useful forresolving a wider range of more important disputes, which were consideredessential, given the fact that more and more tasks were now being assignedto the judiciary.178. In analyzing the conclusions drawn in the article, one is constrainedto conclude, that in the process of evolution of societies across theglobe, the trend is to free the judiciary from executive and politicalcontrol, and to incorporate a system of selection and appointment ofJudges, based purely on merit. For it is only then, that the process ofjudicial review will effectively support nation building. In the subjectmatter, which falls for our consideration, it would be imperative for us,to keep in mind, the progression of the concepts of “independence of thejudiciary” and “judicial review” were now being recognized the world over.The diminishing role of executive and political participation, on thematter of appointments to the higher judiciary, is an obvious reality. Inrecognition of the above trend, there cannot be any greater and furtherparticipation of the executive, than that which existed hitherto before.And in the Indian scenario, as is presently conceived, through thejudgments rendered in the Second and Third Judges cases. It is thereforeimperative to conclude, that the participation of the Union Minister incharge of Law and Justice in the final determinative process vested in theNJAC, as also, the participation of the Prime Minister and the Leader ofthe Opposition in the Lok Sabha (and in case of there being none – theLeader of the single largest Opposition Party in the House of the People),in the selection of “eminent persons”, would be a retrograde step, andcannot be accepted. VIII.179. The only component of the NJAC, which remains to be dealt with, iswith reference to the two “eminent persons” required to be nominated to theNJAC. It is not necessary to detail the rival submissions on the instantaspect, as they have already been noticed extensively, hereinbefore.180. We may proceed by accepting the undisputed position, that neither theimpugned constitutional amendment, nor the NJAC Act postulate any positivequalification to be possessed by the two “eminent persons” to be nominatedto the NJAC. These constitutional and legislative enactments do not evenstipulate any negative disqualifications. It is therefore apparent, thatthe choice of the two “eminent persons” would depend on the free will ofthe nominating authorities. The question that arises for consideration is,whether it is just and appropriate to leave the issue, to the free will andchoice, of the nominating authorities?181. The response of the learned Attorney General was emphatic. Who couldknow better than the Prime Minister, the Chief Justice of India, or theLeader of Opposition in the Lok Sabha (and when there is no such Leader ofOpposition, then the Leader of the single largest Opposition Party in theLok Sabha)? And he answered the same by himself, that if such high rankingconstitutional authorities can be considered as being unaware, then no onein this country could be trusted, to be competent, to take a decision onthe matter – neither the legislature, nor the executive, and not even thejudiciary. The Attorney General then quipped – surely this Court would notset aside the impugned constitutional amendment, or the NJAC Act, on such atrivial issue. He also suggested, that we should await the outcome of thenominating authorities, and if this Court felt that a particular individualnominated to discharge the responsibility entrusted to him as an “eminentperson” on the NJAC, was inappropriate or unacceptable or had no nexus withthe responsibility required to be shouldered, then his appointment could beset aside.182. Having given our thoughtful consideration to the matter, we are ofthe view, that the issue in hand is certainly not as trivial, as is soughtto be made out. The two “eminent persons” comprise of 1/3rd strength of theNJAC, and double that of the political-executive component. We couldunderstand the import of the submission, only after hearing learnedcounsel. The view emphatically expressed by the Attorney General was thatthe “eminent persons” had to be “lay persons” having no connection with thejudiciary, or even to the profession of advocacy, perhaps individuals whomay not have any law related academic qualification. Mr. T.R.Andhyarujina, learned senior counsel who represented the State ofMaharashtra, which had ratified the impugned constitutional amendment, hadappeared to support the impugned constitutional amendment, as well as, theNJAC 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 to the working and functioning of the judicial system.It is therefore clear, that in the view of the learned senior counsel, thenominated “eminent persons” would have to be individuals, with a legalbackground, and certainly not lay persons, as was suggested by the learnedAttorney General. We have recorded the submissions advanced by Mr.Dushyant A. Dave, learned senior counsel – the President of the SupremeCourt Bar Association, who had addressed the Bench in his usual animatedmanner, with no holds barred. We solicited his view, whether it would beproper to consider the inclusion of the President of the Supreme Court BarAssociation and/or the Chairman of the Bar Council of India, as ex officioMembers of the NJAC in place of the two “eminent persons”. His response wasspontaneous “Please don’t do that !!” and then after a short pause, “…thatwould be disastrous !!”. Having examined the issue with the assistance ofthe most learned and eminent counsel, it is imperative to conclude, thatthe issue of description of the qualifications (– perhaps , also thedisqualifications) of “eminent persons” is of utmost importance, and cannotbe left to the free will and choice of the nominating authorities,irrespective of the high constitutional positions held by them. Speciallyso, because the two “eminent persons” comprise of 1/3rd strength of theNJAC, and double that of the political-executive component, and as such,will have a supremely important role in the decision making process of theNJAC. We are therefore persuaded to accept, that Article 124A(1)(d) isliable to be set aside and struck down, for having not laid down thequalifications of eligibility for being nominated as “eminent persons”, andfor having left the same vague and undefined.183. It is even otherwise difficult to appreciate the logic of includingtwo “eminent persons”, in the six-Member NJAC. If one was to go by theview expressed by the learned Attorney General, “eminent persons” had beenincluded in the NJAC, to infuse inputs which were hitherto not availablewith the prevailing selection process, for appointment of Judges to thehigher judiciary. Really a submission with all loose ends, and no clearmeaning. He had canvassed, that they would be “lay persons” having noconnection with the judiciary, or even with the profession of advocacy,perhaps individuals who did not even have any law related academicqualification. It is difficult to appreciate what inputs the “eminentpersons”, satisfying the qualification depicted by the learned AttorneyGeneral, would render in the matter of selection and appointment of Judgesto the higher judiciary. The absurdity of including two “eminent persons”on the NJAC, can perhaps be appreciated if one were to visualize theparticipation of such “lay persons”, in the selection of the Comptrollerand Auditor-General, the Chairman and Members of the Finance Commission,the Chairman and Members of the Union Public Service Commission, the ChiefElection Commissioner and the Election Commissioners and the like. Theposition would be disastrous. In our considered view, it is imprudent toape a system prevalent in an advanced country, with an evolved civilsociety.184. The sensitivity of selecting Judges is so enormous, and theconsequences of making inappropriate appointments so dangerous, that ifthose involved in the process of selection and appointment of Judges to thehigher judiciary, make wrongful selections, it may well lead the nationinto a chaos of sorts. The role of “eminent persons” cannot be appreciatedin the manner expressed through the impugned constitutional amendment andlegislative enactment. At best, to start with, one or more “eminentpersons” (perhaps even a committee of “eminent persons”), can be assignedan advisory/consultative role, by allowing them to express their opinionabout the nominees under consideration. Perhaps, under the judicialcomponent of the selection process. And possibly, comprising of eminentlawyers, eminent jurists, and even retired Judges, or the like having aninsight to the working and functioning of the judicial system. And byensuring, that the participants have no conflict of interest. Obviously,the final selecting body would not be bound by the opinion experienced, butwould be obliged to keep the opinion tendered in mind, while finalizing thenames of the nominated candidates.185. It is also difficult to appreciate the wisdom of the Parliament, tointroduce two lay persons, in the process of selection and appointment ofJudges to the higher judiciary, and to simultaneously vest with them apower of veto. The second proviso under Section 5(2), and Section 6(6) ofthe NJAC Act, clearly mandate, that a person nominated to be considered forappointment as a Judge of the Supreme Court, and persons being consideredfor appointment as Chief Justices and Judges of High Courts, cannot beappointed, if any two Members of the NJAC do not agree to the proposal. Inthe scheme of the selection process of Judges to the higher judiciary,contemplated under the impugned constitutional amendment read with the NJACAct, the two “eminent persons” are sufficiently empowered to reject allrecommendations, just by themselves. Not just that, the two “eminentpersons” would also have the absolute authority to reject all namesunanimously approved by the remaining four Members of the NJAC. That wouldobviously include the power to reject, the unanimous recommendation of theentire judicial component of the NJAC. In our considered view, the vestingof such authority in the “eminent persons”, is clearly unsustainable, inthe scheme of “independence of the judiciary”. Vesting of such authorityon persons who have no nexus to the system of administration of justice isclearly arbitrary, and we hold it to be so. The inclusion of “eminentpersons”, as already concluded above (refer to paragraph 156), wouldadversely impact primacy of the judiciary, in the matter of selection andappointment of Judges to the higher judiciary (as also their transfer). Forthe reasons recorded hereinabove, it is apparent, that Article 124A(1)(d)is liable to be set aside and struck down as being violative of the “basicstructure” of the Constitution. IX.186. During the course of hearing, the learned Attorney General, made somereferences to past appointments to the Supreme Court, so as to trumpet theaccusation, that the “collegium system” had not functioned efficiently,inasmuch as, persons of the nature referred to by him, came to be selectedand appointed as Judges of the Supreme Court. In a manner as would be intune with the dignity of this Court, he had not referred to any of theJudge(s) by name. His reference was by deeds. Each and every individualpresent in the Court-hall, was aware of the identity of the concernedJudge, in the manner the submissions were advanced. The projection by thelearned Attorney General was joyfully projected by the print and electronicmedia, extensively highlighting the allusions canvassed by the learnedAttorney General.187. If our memory serves us right, the learned Attorney General had madea reference to the improper appointment of three Judges to the SupremeCourt. One would have felt, without going into the merits of the charge,that finding fault with just three Judges, despite the appointment of overa hundred Judges to the Supreme Court, since the implementation of thejudgment rendered in the Second Judges case (pronounced on 6.10.1993) –M.K. Mukherjee, J., being the first Judge appointed under the “collegiumsystem” on 14.12.1993, and B.N. Kirpal, CJ., the first Chief Justicethereunder, having been appointed as Judge of the Supreme Court on11.9.1995, under the “collegium system”, should be considered as no meanachievement.188. The first on the list of the learned Attorney General was a Judgewho, according to him, had hardly delivered any judgments, both during theperiod he remained a Judge and Chief Justice of different High Courts inthe country, as also, the period during which he remained a Judge of thisCourt. The failure of the “collegium system”, was attributed to the fact,that such a person would have been weeded out, if a meaningful procedurehad been in place. And despite his above disposition, the concerned Judgewas further elevated to the Supreme Court. The second instance cited by himwas, in respect of a Judge, who did not abide by any time schedule. It wasasserted, that the Judge, was inevitably late in commencing courtproceedings. It was his contention, that past experience with reference tothe said Judge, indicated a similar demeanour, as a Judge of different HighCourts and as Chief Justice of one High Court. It was lamented, that theabove behaviour was not sufficient, in the process adopted under the“collegium system”, to reject the Judge from elevation to the SupremeCourt. The third Judge was described as an individual, who was habituallytweeting his views, on the internet. He described him as an individualunworthy of the exalted position of a Judge of the Supreme Court, and yet,the “collegium system” had supported his appointment to the Supreme Court.189. Just as it was impossible to overlook a submission advanced by theAttorney General, so also, it would be improper to leave out submissionsadvanced on a similar note, by none other than the President of the SupremeCourt Bar Association. Insofar as Mr. Dushyant A. Dave, Senior Advocate, isconcerned, his pointed assertion of wrongful appointments included areference to a Judge of this Court, who had allegedly taken on his board acase, which was not assigned to his roster. It was alleged, that he haddisposed of the case wrongfully. Before, we dwell on the above contention,it is necessary to notice, that the charge leveled, does not relate to anallegedly improper selection and appointment. The accusation is limited toa wrongful determination of “one” case. Insofar as the instant aspect ofthe matter is concerned, it is necessary for us to notice, that a reviewpetition came to be filed against the alleged improper order, passed by thesaid Judge. The same was dismissed. After the Judge demitted office, acurative petition was filed, wherein the alleged improper order passed bythe concerned Judge, was assailed. The same was also dismissed. Eventhereafter, a petition was filed against the concerned Judge, by impleadinghim as a party-respondent. The said petition was also dismissed. We need tosay no more, than what has been observed hereinabove, with reference to theparticular case, allegedly wrongly decided by the concerned Judge.190. It is imperative for us, while taking into consideration thesubmissions advanced by the learned Attorney General, to highlight, thatthe role of appointment of Judges in consonance with the judgment renderedin the Second Judges case, envisages the dual participation of the membersof the judiciary, as also, the members of the executive. Details in thisbehalf have been recorded by us in the “Reference Order”. And therefore, incase of any failure, it is not only the judicial component, but also theexecutive component, which are jointly and equally responsible. Therefore,to single out the judiciary for criticism, may not be a rightful reflectionof the matter.191. It is not within our realm to express our agreement or disagreementwith the contentions advanced at the hands of the learned Attorney General. He may well be right in his own perception, but the misgivings pointed outby him may not be of much significance in the perception of others,specially those who fully appreciate the working of the judicial system.The misgivings pointed out by the learned Attorney General, need to beviewed in the background of the following considerations:Firstly, the allegations levelled against the Judges in question, do notdepict any lack of ability in the discharge of judicial responsibility.Surely, that is the main consideration to be taken into account, at thetime of selection and appointment of an individual, as a Judge at the levelof the higher judiciary.Secondly, none of the misgivings expressed on behalf of the respondents,are referable to integrity and misdemeanor. Another aspect, which cannot becompromised, at the time of selection of an individual, as a Judge at thelevel of the higher judiciary. Nothing wrong at this front also.Thirdly, not in a single of the instances referred to above, the political-executive had objected to the elevation of the Judges referred to. We sayso, because on our asking, we were furnished with the details of those whohad been elevated, despite objections at the hands of the Union-executive.None of the Judges referred to, figured in that list.Fourthly, no allegation whatsoever was made by the Attorney General, withreference to Judges, against whom objections were raised by the political-executive, and yet, they were appointed at the insistence of the ChiefJustice, under the “collegium system”.Fifthly, that the political-executive disposition, despite the allegationslevelled by the learned Attorney General, chose to grant post-retirementassignments, to three of the four instances referred to, during the courseof hearing. A post-retirement assignment was also allowed by the political-executive, to the Judge referred to by Mr. Dushyant A. Dave. In the abovefactual scenario, either the learned Attorney General had got it all wrong. And if he is right, the political-executive got it all wrong, because itfaltered despite being aware of the factual position highlighted.Lastly, it has not been possible for us to comprehend, how and why, a Judgewho commenced to tweet his views after his retirement, can be considered tobe unworthy of elevation. The fact that the concerned Judge startedtweeting his views after his retirement, is not in dispute. The inclusionof this instance may well demonstrate, that all in all, the functioning ofthe “collegium system” may well not be as bad as it is shown to be.192. The submissions advanced by Mr. Dushyant A. Dave were not limitedjust to the instance of a Judge of the Supreme Court. He expressed strongviews about persons like Maya Kodnani, a former Gujarat Minister, convictedin a riots case, for having been granted relief, while an allegedlyrenowned activist Teesta Setalvad, had to run from pillar to post, to getanticipatory bail. He also made a reference to convicted politicians andfilm stars, who had been granted relief by two different High Courts, asalso by this Court. It was his lament, that whilst film stars andpoliticians were being granted immediate relief by the higher judiciary,commoners suffered for years. He attributed all this, to the defectiveselection process in vogue, which had resulted in the appointment of “badJudges”. He repeatedly emphasized, that victims of the 1984 anti-Sikhriots in Delhi, and the 2002 anti-Muslim riots in Gujarat, had not got anyjustice. It was his contention, that Judges selected and appointed throughthe process presently in vogue, were to blame. He also expressed the view,that the appointed Judges were oblivious of violations of human rights. Itwas submitted, that it was shameful, that courts of law could not deliverjustice, to those whose fundamental and human rights had been violated.193. It is necessary to emphasise, that under every system of law, thereare two sides to every litigation. Only one of which succeeds. Thequestion of how a matter has been decided would always be an issue ofdebate. The party, who succeeds, would feel justice had been done. Whilethe party that loses, would complain that justice had been denied. In thejudicial process, there are a set of remedies, that are available to theparties concerned. The process contemplates, culmination of proceedings atthe 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 ofadequate material to show otherwise. Not that, the Supreme Court is right,but that, there has to be a closure. Most of the instances, illustrativelymentioned by the President of the Supreme Court Bar Association, pertainedto criminal prosecutions. The adjudication of such controversies isdependent on the adequacy of evidence produced by the prosecution. Thenature of the allegations (truthful, or otherwise), have an importantbearing, on the interim relief(s) sought, by the parties. The blame forpassing (or, not passing) the desired orders, does not therefore per se,rest on the will of the adjudicating Judge, but the quality andauthenticity of the evidence produced, and the nature of the allegations.Once all remedies available stand exhausted, it does not lie in the mouthof either the litigant, or the concerned counsel to imply motives, withoutplacing on record any further material. It also needs to be recorded, thatwhile making the insinuations, learned senior counsel, did not make apointed reference to any High Court Judge by name, nor was it possible forus to identify any such Judge, merely on the basis of the submissionsadvanced, unlike the instances with reference to Judges of the SupremeCourt. In the above view of the matter, it is not possible for us to infer,that there are serious infirmities in the matter of selection andappointment of Judges to the higher judiciary, under the prevailing“collegium system”, on the basis of the submissions advanced before us.194. It is apparent that learned counsel had their say, without anylimitations. That was essential, to appreciate the misgivings in theprevailing procedure of selection and appointment of Judges to the higherjudiciary. We have also recorded all the submissions (hopefully) in termsof the contentions advanced, even in the absence of supporting pleadings.We will be failing in discharging our responsibility, if we do not refer tothe parting words of Mr. Dushyant A. Dave – the President of the SupremeCourt Bar Association, who having regained his breath after his outburst,did finally concede, that still a majority of the Judges appointed to theHigh Courts and the Supreme Court, were/are outstanding, and a minisculeminority were “bad Judges”. All in all, a substantial emotional variation,from how he had commenced. One can only conclude by observing, thatindividual failings of men who are involved in the actual functioning ofthe executive, the legislature and the judiciary, do not necessarily leadto the inference, that the system which selects them, and assigns to themtheir role, is defective. X.195. It must remain in our minds, that the Indian Constitution is anorganic document of governance, which needs to change with the evolution ofcivil society. We have already concluded, that for far more reasons thanthe ones, recorded in the Second Judges case, the term “consultation”,referred to selection of Judges to the higher judiciary, really meant, evenin the wisdom of the framers of the Constitution, that primacy in thematter, must remain with the Chief Justice of India (arrived at, inconsultation with a plurality of Judges). Undoubtedly, it is open to theParliament, while exercising its power under Article 368, to provide forsome other alternative procedure for the selection and appointment ofJudges to the higher judiciary, so long as, the attributes of “separationof powers” and “independence of the judiciary”, which are “core” componentsof the “basic structure” of the Constitution, are maintained.196. That, however, will depend upon the standards of the moral fiber ofthe Indian polity. It cannot be overlooked, that the learned AttorneyGeneral had conceded, that there were certain political upheavals, whichhad undermined the “independence of the judiciary”, including an executiveoverreach, at the time of appointment of the Chief Justice of India in1973, followed by the mass transfer of Judges of the higher judiciaryduring the emergency in 1976, and thereafter a second supersession, at thetime of appointment of another Chief Justice of India in 1977. And further,the interference by the executive, in the matter of appointment of Judgesto the higher judiciary during the 1980’s.197. An important issue, that will need determination, before the organicstructure of the Constitution is altered, in the manner contemplated by theimpugned constitutional amendment, would be, whether the civil society, hasbeen able to maneuver its leaders, towards national interest? And whether,the strength of the civil society, is of a magnitude, as would be adeterrent for any overreach, by any of the pillars of governance? At thepresent juncture, it seems difficult to repose faith and confidence in thecivil society, to play any effective role in that direction. For the simplereason, that it is not yet sufficiently motivated, nor adequatelydetermined, to be in a position to act as a directional deterrent, for thepolitical-executive establishment. It is therefore, that the higherjudiciary, which is the savior of the fundamental rights of the citizens ofthis country, by virtue of the constitutional responsibility assigned to itunder Articles 32 and 226, must continue to act as the protector of thecivil society. This would necessarily contemplate the obligation ofpreserving the “rule of law”, by forestalling the political-executive, fromtransgressing the limits of their authority as envisaged by theConstitution.198. Lest one is accused of having recorded any sweeping inferences, itwill be necessary to record the reasons, for the above conclusion. TheIndian Express, on 18.6.2015, published an interview with L.K. Advani, aveteran BJP Member of Parliament in the Lok Sabha, under the caption “Aheadof the 40th anniversary of the imposition of the Emergency on 25.6.1975”.His views were dreadfully revealing. In his opinion, forces that couldcrush democracy, were now stronger than ever before. He asserted, “I do notthink anything has been done that gives me the assurance that civilliberties will not be suspended or destroyed again. Not at all”!! It wasalso his position, that the emergency could happen again. Whileacknowledging, that the media today was more alert and independent, ascompared to what it was, when emergency was declared by the then PrimeMinister Indira Gandhi, forty years ago. In his perception, the media didnot have any real commitment to democracy and civil liberties. Withreference to the civil society, he pointed out, that hopes were raisedduring the Anna Hazare mobilization against corruption, which according tohim, ended in a disappointment, even with reference to the subject ofcorruption. This when the poor and downtrodden majority of this country,can ill afford corruption. Of the various institutions, that could be heldresponsible, for the well functioning of democracy in this country, heexpressed, that the judiciary was more responsible than the otherinstitutions.199. On the above interview, Mani Shankar Aiyar, a veteran CongressMember of Parliament in the Rajya Sabha, while expressing his viewsnoticed, that India could not be “emergency proof”, till the Constitutionprovided for the declaration of emergency, at the discretion of an electedGovernment. He pointed out, that it should not be forgotten, that in 1975,emergency had been declared within the framework of the Constitution. Itwas therefore suggested, that one of the solutions to avoid a declarationof emergency could be, to remove Part XVIII of the Constitution, or toamend it, and “to provide for only an external emergency”. He howeverraised a poser, whether it would be practical to do so? One would ventureto answer the same in the negative. And in such situation, to trust, thatthe elected Government would act in the interest of the nation.200. The stance of L.K. Advani was affirmed by Sitaram Yechury, a veteranCPI (Marxist) Member of Parliament in the Rajya Sabha, who was arrested,like L.K. Advani, during the emergency in 1975.201. The present N.D.A. Government was sworn in, on 26.5.2014. Onebelieves, that thereafter thirteen Governors of different States and oneLieutenant Governor of a Union Territory tendered their resignations in notime. Some of the Governors demitted their office shortly after they wereappointed, by the previous U.P.A. – dispensation. That is despite thefact, that a Governor under the Constitutional mandate of Article 156(3)has a term of five years, from the date he enters upon his office. AGovernor is chosen out of persons having professional excellence and/orpersonal acclaim. Each one of them, would be eligible to be nominated asan “eminent person” under Article 124A(1)(d). One wonders, whether allthese resignations were voluntary. The above depiction is not to cast anyaspersion. 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 notenvisage the “spoils system” (also known as the “patronage system”),wherein the political party which wins an election, gives Governmentpositions to its supporters, friends and relatives, as a reward for workingtowards victory, and as an incentive to keep the party in power.203. It is also relevant to indicate, the images of the “spoils system”are reflected from the fact, that a large number of persons holding highpositions, in institutions of significance, likewise resigned from theirassignments, after the present N.D.A. Government was sworn in. Some ofthem had just a few months before their tenure would expire – and some,even less than a month. Those who left included bureaucrats from the AllIndia Services occupying coveted positions at the highest level,Directors/Chairmen of academic institutions of national acclaim,constitutional authorities (other than Governors), Directors/Chairmen ofNational Research Institutions, and the like. Seriously, the instantnarration is not aimed at vilification, but of appreciation of the groundreality, how the system actually works.204. From the above, is one to understand, that all these individuals wererank favorites, approved by the predecessor political-executiveestablishment? Or, were the best not chosen to fill the slot by theprevious dispensation? Could it be, that those who get to hold the reinsof Government, introduce their favourites? Or, whether the existingincumbents, deserved just that? Could it be, that just like itspredecessor, the present political establishment has now appointed its rankfavourites? What emerges is, trappings of the spoils system, and nothingelse. None of the above parameters, can be adopted in the matter ofappointment of Judges to the higher judiciary. For the judiciary, the bestout of those available have to be chosen. Considerations cannot be varied,with a change in Government. Demonstrably, that is exactly what hashappened (repeatedly?), in the matter of non-judicial appointments. Itwould be of utmost importance therefore, to shield judicial appointments,from any political-executive interference, to preserve the “independence ofthe judiciary”, from the regime of the spoils system. Preserving primacyin the judiciary, in the matter of selection and appointment of Judges tothe, higher judiciary would be a safe way to do so.205. In conclusion, it is difficult to hold, in view of the factualposition expressed above, that the wisdom of appointment of Judges, can beshared with the political-executive. In India, the organic development ofcivil society, has not as yet sufficiently evolved. The expectation fromthe judiciary, to safeguard the rights of the citizens of this country, canonly be ensured, by keeping it absolutely insulated and independent, fromthe other organs of governance. In our considered view, the present statusof the evolution of the “civil society” in India, does not augur theparticipation of the political-executive establishment, in the selectionand appointment of Judges to the higher judiciary, or in the matter oftransfer of Chief Justices and Judges of one High Court, to another. XI.206. It may be noticed, that one of the contentions advanced on behalf ofthe petitioners was, that after the 121st Constitution Amendment Bill waspassed by the Lok Sabha and the Rajya Sabha, it was sent to the StateLegislatures for ratification. Consequent upon the ratification by theState Legislatures, in compliance of the mandate contained in Article 368,the President granted his assent to the same on 31.12.2014, whereupon itcame to be enacted as the Constitution (99th Amendment) Act. Section 1(2)thereof provides, that the provisions of the amendment, would come intoforce from such date as may be notified by the Central Government, in theOfficial Gazette. And consequent upon the issuance of the abovenotification, the amendment was brought into force, through a notification,with effect from 13.4.2015. It was the submission of the petitioners, thatthe jurisdiction to enact the NJAC Act, was acquired by the Parliament on13.4.2015, for the simple reason, that the same could not have been enactedwhilst the prevailing Articles 124(2) and 217(1) were in force, as thesame, did not provide for appointments to be made by a body such as theNJAC. It was submitted, that the NJAC Act was promulgated, to delineate theprocedure to be followed by the NJAC while recommending appointments ofJudges and Chief Justices, to the higher judiciary. It was contended, thatprocedure to be followed by the NJAC could not have been legislated upon bythe Parliament, till the Constitution was amended, and the NJAC wascreated, as a constitutional entity for the selection and appointment (asalso, transfer) of Judges at the level of the higher judiciary. The NJAC,it was asserted, must be deemed to have been created, only when theConstitution (99th Amendment) Act, was brought into force, with effect from13.4.2015. It was submitted, that the NJAC Act received the assent of thePresident on 31.12.2014 i.e., on a date when the NJAC had not yet come intoexistence. For this, learned counsel had placed reliance on the A.K. Roycase49, to contend, that the constitutional amendment in the instant casewould not come into force on 13.12.2014, but on 13.4.2015.207. A complementary additional submission was advanced on behalf of thepetitioners, by relying upon the same sequence of facts. It was contended,that the power of veto vested in two Members of the NJAC, through thesecond proviso under Section 5(2) of the NJAC Act (in the matter ofappointment of the Chief Justice and Judges of the Supreme Court), andSection 6(6) of the NJAC Act (in the matter of appointment of ChiefJustices and Judges of High Courts) could not be described as laying downany procedure. It was submitted, that the above provisions clearly enactedsubstantive law. Likewise, it was contended, that the amendment of thewords “after consultation with such of the Judges of the Supreme Court andthe High Courts in the States as the President may deem necessary for thepurpose”, on being substituted by the words “on the recommendation of theNational Judicial Appointments Commission referred to in Article 124A”, asalso, the deletion of the first proviso under Article 124(2) which mandatedconsultation with the Chief Justice of India, and the substitution of thesame with the words, “on the recommendation of the National JudicialAppointments Commission referred to under Article 124A”, would result inthe introduction of an absolutely new regimen. It was submitted, that suchsubstitution would also amount to an amendment of the existing provisionsof the Constitution, and as such, the same would also require thepostulated ratification provided in respect of a constitutional amendment,under the proviso to Article 368(2). And since the NJAC Act, had beenenacted as an ordinary legislation, the same was liable to be held as nonest on account of the fact, that the procedure contemplated under Article368, postulated for an amendment to the Constitution, had not beenfollowed.208. Since it was not disputed, that the Parliament had indeed enactedRules of Procedure and the Conduct of Business of Lok Sabha under Article118, which contained Rule 66 postulating, that a Bill which was dependentwholly or partly on another Bill could be “introduced” in anticipation ofthe passing of the Bill, on which it was dependent. Leading to theinference, that the 121st Constitution Amendment Bill, on which the NJACBill was dependent, could be taken up for consideration (by introducing thesame in the Parliament), but could not have been passed till after thepassing of the Constitution (99th Amendment) Act, on which it wasdependent.209. Whilst there can be no doubt, that viewed in the above perspective,we may have unhesitatingly accepted the above submission, and in fact thesame was conceded by the Attorney General to the effect, that the dependentBill can “… be taken up for consideration and passing in the House, onlyafter the first Bill has been passed by the House…”. But our attention wasinvited by the Attorney General to Rule 388, which authorises the Speakerto allow the suspension, of a particular rule (which would include Rule66). If Rule 66 could be suspended, then Rule 66 would not have theimpact, which the petitioners seek through the instant submission. It isnot a matter of dispute, that the then Union Minister in charge of Law andJustice had sought (under Rule 388 of the Rules of Procedure and Conduct ofBusiness of the Lok Sabha) the suspension of the proviso to Rule 66. And ondue consideration, the Lok Sabha had suspended the proviso to Rule 66, andhad taken up the NJAC Bill for consideration. Since the validity of Rule388 is not subject matter of challenge before us, it is apparent, that itwas well within the competence of the Parliament, to have taken up forconsideration the NJAC Act, whilst the Constitution (121st Amendment) Bill,on which the NJAC Act was fully dependent, had still not been passed, inanticipation of the passing of the Constitution (121st Amendment) Bill.210. The principle contained in Rule 66, even if the said rule had notbeen provided for, would always be deemed to have been impliedly there. Inthe absence of a foundation, no superstructure can be raised. The instantillustration is relateable to Rule 66, wherein the pending Bill wouldconstitute the foundation, and the Bill being introduced in anticipation ofthe passing of the pending Bill, would constitute the superstructure.Therefore, in the absence of the foundational Bill (-in the instant case,the 121st Constitution Amendment Bill), there could be no question ofraising the infrastructure (-in the instant case, the NJAC Act). In ourconsidered view, it was possible in terms of Rule 388, to introduce andpass a Bill in the Parliament, in anticipation of the passing of thedependent Bill – the Constitution (121st Amendment) Bill. But, it is stillnot possible to contemplate, that a Bill which is dependent wholly (or, inpart) upon another Bill, can be passed and brought into operation, till thedependent Bill is passed and brought into effect.211. It is however necessary to record, that even though the positionpostulated in the preceding paragraphs, as canvassed by the AttorneyGeneral, was permissible, the passing of the dependent enactment i.e., theNJAC Bill, could not have been given effect to, till the foundationalenactment had become operational. In the instant case, the NJAC Act, wouldhave failed the test, if it was given effect to, from a date prior to thedate 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 be stillborn, if the dependent provisions, introducedby way of a constitutional amendment, were yet to come into force. Stateddifferently, the contravention of the principle contemplated in Rule 66,could not have been overlooked, despite the suspension of the said rule,and the dependent enactment could not come into force, before thedepending/controlling provision became operational. The sequence of factsnarrated hereinabove reveals, that the dependent and depending provisions,were brought into force simultaneously on the same date, i.e., on13.4.2015. It is therefore apparent, that the foundation – theConstitution (99th Amendment) Act, was in place, when the superstructure –the NJAC Act, was raised. Thus viewed, we are satisfied, that theprocedure adopted by the Parliament at the time of putting to vote the NJACBill, or the date on which the NJAC Act received the assent of thePresident, cannot invalidate the enactment of the NJAC Act, as suggested bythe learned counsel for the petitioners.212. One is also persuaded to accept the contention advanced by thelearned Attorney General, that the validity of any proceeding, inParliament, cannot be assailed on the ground of irregularity of procedure,in view of the protection contemplated through Article 122. Whilstaccepting the instant contention, of the learned Attorney General, it isnecessary for us to record, that in our considered view, the aforestatedirregularity pointed out by the learned counsel, would be completely beyondthe purview of challenge, specially because it was not the case of thepetitioners, that the Parliament did not have the legislative competence toenact the NJAC Act. For the reasons recorded hereinabove, it is notpossible for us to accept, that the NJAC Act was stillborn, or that it wasliable to be set aside, for the reasons canvassed by the learned counselfor the petitioners.213. It is also not possible for us to accept, that while enacting theNJAC Act, it was imperative for the Parliament to follow the procedurecontemplated under Article 368. Insofar as the instant aspect of thematter is concerned, the Constitution (99th Amendment) Act, amendedArticles 124 and 217 (as also, Articles 127, 128, 222, 224, 224A and 231),and Articles 124A to 124C were inserted in the Constitution. Whileengineering the above amendments, the procedural requirements contained inArticle 368 were admittedly complied with. It is therefore apparent, thatno procedural lapse was committed while enacting the Constitution (99thAmendment) Act. Article 124C, authorized the Parliament to enact alegislation in the nature of the NJAC Act. This could validly be done, byfollowing the procedure contemplated for an ordinary legislation. It is notdisputed, that such procedure, as was contemplated for enacting an ordinarylegislation, had indeed been followed by the Parliament, after the NJACBill was tabled in the Parliament, inasmuch as, both Houses of Parliamentapproved the NJAC Bill by the postulated majority, and thereupon, the samereceived the assent of the President on 31.12.2014. For the above reasons,the instant additional submission advanced by the petitioners, cannot alsobe acceded to, and is accordingly declined. XII.214. Mr. Mukul Rohatgi, learned Attorney General for India, repulsed thecontentions advanced at the hands of the petitioners, that vires of theprovisions of the NJAC Act, could be challenged, on the ground of beingviolative of the “basic structure” of the Constitution.215. The first and foremost contention advanced, at the hands of thelearned Attorney General was, that the constitutional validity of anamendment to the Constitution, could only be assailed on the basis of beingviolative of the “basic structure” of the Constitution. Additionally itwas submitted, that an ordinary legislative enactment (like the NJAC Act),could only be assailed on the grounds of lack of legislative competenceand/or the violation of Article 13 of the Constitution. Inasmuch as, theState cannot enact laws, which take away or abridge rights conferred inPart III of the Constitution, or are in violation of any otherconstitutional provision. It was acknowledged, that law made incontravention of the provisions contained in Part III of the Constitution,or of any other constitutional provision, to the extent of suchcontravention, would be void. Insofar as the instant aspect of the matteris concerned, the learned Attorney General, placed reliance on the IndiraNehru Gandhi case56, State of Karnataka v. Union of India[88], andparticularly to the following observations:“238. Mr Sinha also contended that an ordinary law cannot go against thebasic scheme or the fundamental backbone of the Centre-State relationshipas enshrined in the Constitution. He put his argument in this respect in avery ingenious way because he felt difficulty in placing it in a directmanner by saying that an ordinary law cannot violate the basic structure ofthe Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj Narainsuch an argument was expressedly rejected by this Court. We may restcontent by referring to a passage from the judgment of our learned brotherChandrachud, J., … which runs thus:“The constitutional amendments may, on the ratio of the Fundamental Rightscase be tested on the anvil of basic structure. But apart from theprinciple that a case is only an authority for what it decides, it does notlogically follow from the majority judgment in the Fundamental Rights casethat ordinary legislation must also answer the same test as aconstitutional amendment. Ordinary laws have to answer two tests for theirvalidity: (1) The law must be within the legislative competence of theLegislature as defined and specified in Chapter I, Part 11 of theConstitution and (2) it must not offend against the provisions of Articles13(1) and (2) of the Constitution. ‘Basic structure’, by the majorityjudgment, is not a part of the fundamental rights nor indeed a provision ofthe Constitution. The theory of basic structure is woven out of theconspectus of the Constitution and the amending power is subjected to itbecause it is a constituent power. ‘The power to amend the fundamentalinstrument cannot carry with it the power to destroy its essentialfeatures’— this, in brief, is the arch of the theory of basic structure. Itis wholly out of place in matters relating to the validity of ordinary lawsmade under the Constitution.”The Court’s attention was also drawn to Kuldip Nayar v. Union of India[89],wherein it was recorded:“107. The basic structure theory imposes limitation on the power ofParliament to amend the Constitution. An amendment to the Constitutionunder Article 368 could be challenged on the ground of violation of thebasic structure of the Constitution. An ordinary legislation cannot be sochallenged. The challenge to a law made, within its legislative competence,by Parliament on the ground of violation of the basic structure of theConstitution is thus not available to the petitioners.”Last of all, learned Attorney General placed reliance on Ashoka KumarThakur v. Union of India[90], and referred to the following observations:“116. For determining whether a particular feature of the Constitution ispart of the basic structure or not, it has to be examined in eachindividual case keeping in mind the scheme of the Constitution, its objectsand purpose and the integrity of the Constitution as a fundamentalinstrument for the country’s governance. It may be noticed that it is notopen to challenge the ordinary legislations on the basis of the basicstructure principle. State legislation can be challenged on the questionwhether it is violative of the provisions of the Constitution. But asregards constitutional amendments, if any challenge is made on the basis ofbasic structure, it has to be examined based on the basic features of theConstitution.”Based on the afore-quoted judgments, it was the assertion of the learnedAttorney General, that the validity of a legislative enactment, i.e., anordinary statute, could not be assailed on the ground, that the same wasviolative of the “basic structure” of the Constitution. It was thereforeasserted, that reliance placed at the hands of the learned counsel,appearing for the petitioners, on the Madras Bar Association case35, wasnot acceptable in law.216. The above contention, advanced by the learned Attorney General, hasbeen repulsed. For this, in the first instance, reliance was placed onPublic Services Tribunal Bar Association v. State of U.P.[91] In theinstant judgment, it is seen from the observations recorded in paragraph26, that this Court concluded, that the constitutional validity of anordinary legislation could be challenged on only two grounds, namely, forreasons of lack of legislative competence, and on account of violation ofany fundamental rights guaranteed in Part III of the Constitution, or ofany other constitutional provision. The above determination supports thecontention advanced by the learned Attorney General, who seeks to implyfrom the above conclusion, that an ordinary legislation cannot be assailedon the ground of it being violative of the “basic structure” of theConstitution. Despite having held as above, in its final conclusionrecorded in paragraph 44, it was observed as under:“44. For the reasons stated above, we find that the State Legislature wascompetent to enact the impugned provisions. Further, that the provisionsenacted are not arbitrary and therefore not violative of Articles 14, 16 orany other provisions of the Constitution. They are not against the basicstructure of the Constitution of India either. Accordingly, we do not findany merit in these appeals and the same are dismissed with no order as tocosts.”It was pointed out, that it was apparent, that even while determining thevalidity 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 “basicstructure” of the Constitution, and having done so, it had rejected thecontention. Thereby implying, that it was open for an aggrieved party toassail, even the provisions of an ordinary legislation, based on theconcept of “basic structure”. In addition to the above, reliance was placedon the Kuldip Nayar case89 (also relied upon by the learned AttorneyGeneral), and whilst acknowledging the position recorded in the abovejudgment, that an ordinary legislation could not be challenged on theground of violation of the “basic structure” of the Constitution, theCourt, in paragraph 108, had observed thus:“108. As stated above, “residence” is not the constitutional requirementand, therefore, the question of violation of basic structure does notarise.”It was submitted, that in the instant judgment also, this Court hadindependently examined, whether the legislative enactment in question,namely, the Representation of the People (Amendment) Act 40 of 2003, indeedviolated the “basic structure” of the Constitution. And in so determining,concluded that the question of residence was not a constitutionalrequirement, and therefore, the question of violation of the “basicstructure” did not arise. Learned counsel then placed reliance on the M.Nagaraj case36, wherein it was concluded as under:“124. Subject to the above, we uphold the constitutional validity of theConstitution (Seventy-seventh Amendment) Act, 1995; the Constitution(Eighty-first Amendment) Act, 2000; the Constitution (Eighty-secondAmendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act,2001.125. We have not examined the validity of individual enactments ofappropriate States and that question will be gone into in individual writpetition by the appropriate Bench in accordance with law laid down by us inthe present case.”217. It was submitted by Dr. Rajeev Dhavan, learned senior counsel, thatthis Court in the M. Nagaraj case36, while upholding the constitutionalvalidity of the impugned constitutional amendment, by testing the same byapplying the “width test”, extended the aforesaid concept to Statelegislations. It was accordingly sought to be inferred, that Statelegislations could be assailed, not only on the basis of the letter andtext of constitutional provisions, but also, on the basis of the “widthtest”, which was akin to a challenge raised to a legislative enactmentbased on the “basic structure” of the Constitution.218. Reliance was then placed on Uttar Pradesh Power Corporation Limitedv. Rajesh Kumar[92], wherein the issue under reference had been raised, asis apparent from the discussion in paragraph 61, which is extracted below:“61. Dr. Rajeev Dhavan, learned senior Counsel, supporting the decision ofthe Division Bench which has declared the Rule as ultra vires, hassubmitted that if M. Nagaraj is properly read, it does clearly convey thatsocial justice is an overreaching principle of the Constitution likesecularism, democracy, reasonableness, social justice, etc. and itemphasises on the equality code and the parameters fixed by theConstitution Bench as the basic purpose is to bring in a state of balancebut the said balance is destroyed by Section 3(7) of the 1994 Act and Rule8-A inasmuch as no exercise has been undertaken during the post M. Nagarajperiod. In M. Nagraj, there has been emphasis on interpretation andimplementation, width and identity, essence of a right, the equality codeand avoidance of reverse discrimination, the nuanced distinction betweenthe adequacy and proportionality, backward class and backwardness, theconcept 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 cause violence to theconstitutional mandate; and the effect of accelerated seniority and theconditions prevalent for satisfaction of the conditions precedent to invokethe settled principles.” The matter was adjudicated upon as under:“86. We are of the firm view that a fresh exercise in the light of thejudgment of the Constitution Bench in M. Nagaraj is a categoricalimperative. The stand that the constitutional amendments have facilitatedthe reservation in promotion with consequential seniority and have giventhe stamp of approval to the Act and the Rules cannot withstand closescrutiny inasmuch as the Constitution Bench has clearly opined thatArticles 16(4-A) and 16(4-B) are enabling provisions and the State can makeprovisions for the same on certain basis or foundation. The conditionsprecedent have not been satisfied. No exercise has been undertaken. Whathas been argued with vehemence is that it is not necessary as the conceptof reservation in promotion was already in vogue. We are unable to acceptthe said submission, for when the provisions of the Constitution aretreated valid with certain conditions or riders, it becomes incumbent onthe part of the State to appreciate and apply the test so that itsamendments can be tested and withstand the scrutiny on parameters laid downtherein.”In addition to the above judgment, reliance was also placed on State ofBihar v. Bal Mukund Sah[93], wherein a Constitution Bench of this Court,while examining the power of the State legislature, to legislate on thesubject of recruitment of District Judges and other judicial officers,placed reliance on the judgment rendered by this Court in the KesavanandaBharati case10, which took into consideration five of the declared “basicfeatures” of the Constitution, and examined the subject matter in question,by applying the concept of “separation of powers” between the legislature,the executive and the judiciary, which was accepted as an essential featureof the “basic structure” of the Constitution. Finally, reliance was placedon Nawal Kishore Mishra v. High Court of Judicature of Allahabad[94],wherefrom reliance was placed on conclusion no. 20.11, which is extractedbelow:“20.11 Any such attempt by the legislature would be forbidden by theconstitutional scheme as that was found on the concept relating toseparation of powers between the legislature, the executive and thejudiciary as well as the fundamental concept of an independent judiciary asboth the concepts having been elevated to the level of basic structure ofthe Constitution and are the very heart of the constitutional scheme.”It was therefore the contention of the learned senior counsel, that it wasnot justified for the respondents to raise the contention, that thevalidity of the provisions of the NJAC Act could not be tested on thetouchstone of the concept of the “basic structure” of the Constitution.219. It needs to be highlighted, that the issue under reference arose onaccount of the fact, that learned counsel for the petitioners had placedreliance on the judgment of this Court, in the Madras Bar Associationcase35, wherein this Court had examined the provisions of the National TaxTribunal Act, 2005, and whilst doing so, had held the provisions of theabove legislative enactment as ultra vires the provisions of theConstitution, on account of their being violative of the “basic structure”of the Constitution. It is therefore quite obvious, that the instantcontention was raised, to prevent the learned counsel for the petitioners,from placing reliance on the conclusions recorded in the Madras BarAssociation case35.220. We have given our thoughtful consideration to the above contentions.The “basic structure” of the Constitution, presently inter alia includesthe supremacy of the Constitution, the republican and democratic form ofGovernment, the “federal character” of distribution of powers, secularism,“separation of powers” between the legislature, the executive, and thejudiciary, and “independence of the judiciary”. This Court, while carvingout each of the above “basic features”, placed reliance on one or moreArticles of the Constitution (some times, in conjunction with the preambleof the Constitution). It goes without saying, that for carving out each ofthe “core” or “basic features/basic structure” of the Constitution, onlythe provisions of the Constitution are relied upon. It is thereforeapparent, that the determination of the “basic features” or the “basicstructure”, is made exclusively from the provisions of the Constitution.Illustratively, we may advert to “independence of the judiciary” which hasbeen chosen because of its having been discussed and debated during thepresent course of consideration. The deduction of the concept of“independence of the judiciary” emerged from a collective reading ofArticles 12, 36 and 50. It is sometimes not possible, to deduce theconcerned “basic structure” from a plain reading of the provisions of theConstitution. And at times, such a deduction is made, from the all-important silences hidden within those Articles, for instance, the “primacyof the judiciary” explained in the Samsher Singh case11 the SankalchandHimatlal Sheth case5 and the Second Judges case, wherein this Court whileinterpreting Article 74 along with Articles 124, 217 and 222, inconjunction with the intent of the framers of the Constitution gatheredfrom the Constituent Assembly debates, and the conventions adhered to bythe political-executive authority in the matter of appointment and transferof Judges of the higher judiciary, arrived at the conclusion, that “primacyof the judiciary” was a constituent of the “independence of the judiciary”which was a “basic feature” of the Constitution. Therefore, when a plea isadvanced raising a challenge on the basis of the violation of the “basicstructure” with reference to the “independence of the judiciary”, itsrightful understanding is, and has to be, that Articles 12, 36 and 50 onthe one hand, and Articles 124, 217 and 222 on the other, (readcollectively and harmoniously) constitute the basis thereof. Clearly, the“basic structure” is truly a set of fundamental foundational principles,drawn from the provisions of the Constitution itself. These are notfanciful principles carved out by the judiciary, at its own. Therefore, ifthe conclusion drawn is, that the “independence of the judiciary” has beentransgressed, it is to be understood, that rule/principle collectivelyemerging from the above provisions, had been breached, or that the aboveArticles read together, had been transgressed.221. So far as the issue of examining the constitutional validity of anordinary legislative enactment is concerned, all the constitutionalprovisions, on the basis whereof the concerned “basic feature” arises, areavailable. Breach of a single provision of the Constitution, would besufficient to render the legislation, ultra vires the Constitution. In suchview of the matter, it would be proper to accept a challenge based onconstitutional validity, to refer to the particular Article(s), singularlyor collectively, which the legislative enactment violates. And in caseswhere the cumulative effect of a number of Articles of the Constitution isstated to have been violated, reference should be made to all the concernedArticles, including the preamble, if necessary. The issue is purelytechnical. Yet, if a challenge is raised to an ordinary legislativeenactment based on the doctrine of “basic structure”, the same cannot betreated to suffer from a legal infirmity. That would only be a technicalflaw. That is how, it will be possible to explain the observations made bythis Court, in the judgments relied upon by the learned counsel for thepetitioners. Therefore, when a challenge is raised to a legislativeenactment based on the cumulative effect of a number of Articles of theConstitution, it is not always necessary to refer to each of the concernedArticles, when a cumulative effect of the said Articles has already beendetermined, as constituting one of the “basic features” of theConstitution. Reference to the “basic structure”, while dealing with anordinary legislation, would obviate the necessity of recording the sameconclusion, which has already 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 ordinary legislationbased on one of the “basic features” of the Constitution, it would be validto do so. If such a challenge is accepted, on the ground of violation ofthe “basic structure”, it would mean that the bunch of Articles of theConstitution (including the preamble thereof, wherever relevant), whichconstitute the particular “basic feature”, had been violated. We musthowever credit the contention of the learned Attorney General by accepting,that it would be technically sound to refer to the Articles which areviolated, when an ordinary legislation is sought to be struck down, asbeing ultra vires the provisions of the Constitution. But that would notlead to the inference, that to strike down an ordinary legislativeenactment, as being violative of the “basic structure”, would be wrong. Wetherefore find no merit in the contention advanced by the learned AttorneyGeneral, but for the technical aspect referred to hereinabove. XIII.222. Various challenges were raised to the different provisions of theNJAC Act. First and foremost, a challenge was raised to the manner ofselection and appointment of the Chief Justice of India. Section 5(1) ofthe NJAC Act, it was submitted, provides that the NJAC would recommend thesenior most Judge of the Supreme Court, for being appointed as ChiefJustice of India, subject to the condition, that he is considered “fit” tohold the office. It was contended, that the Parliament had been authorizedby law to regulate the procedure for the appointment of the Chief Justiceof India, under Article 124C. It was submitted, that the NJAC should havebeen allowed to frame regulations, with reference to the manner ofselection and appointment of Judges to the higher judiciary including theChief Justice of India.223. It was submitted, that the term “fit”, expressed in Section 5(1) ofthe NJAC Act, had not been elaborately described. And as such, fitnesswould be determined on the subjective satisfaction of the Members of theNJAC. It was acknowledged, that even though the learned Attorney Generalhad expressed, during the course of hearing, that fitness only meant“…mental and physical fitness…”, a successor Attorney General may view thematter differently, just as the incumbent Attorney General has differedwith the concession recorded on behalf of his predecessor (in the ThirdJudges case), even though they both represent the same ruling politicalparty. And, it was always open to the Parliament to purposefully definethe term “fit”, in a manner which could sub-serve the will of theexecutive. It was pointed out, that even an ordinance could be issuedwithout the necessity, of following the procedure of enacting law, to bringin a person of the choice of the political-executive. It was contended,that the criterion of fitness could be defined or redefined, as per thesweet will of the non-judicial authorities.224. It was pointed out, that there was a constitutional convention,whereunder the senior most Judge of the Supreme Court, has always beenappointed as Chief Justice of India. And that, the aforesaid conventionhad remained unbroken, even though in some cases the tenure of theappointee had been extremely short, and may not have enured to theadvantage of the judiciary, as an institution. Experience had shown,according to learned counsel, that adhering to the practice of appointingthe senior most Judge as the Chief Justice of India, had resulted ininstitutional harmony and collegiality amongst Judges, which was extremelyimportant for the health of the judiciary, and also, for the independenceof 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 toprevent any likelihood of its misuse in future.225. It was suggested, that various ways and means could be devised tosupersede senior Judges, to bring in favourites. Past experience had shown,that the executive had abused its authority, when it departed from theabove seniority rule in April 1973, by superseding J.M. Shelat, the seniormost Judge, and even the next two Judges in the order of seniority afterhim, namely, K.S. Hegde and A.N. Grover, while appointing the fourth seniormost Judge A.N Ray, as the Chief Justice of India. Again in January 1977on the retirement of A.N. Ray, CJ., the senior most Judge H.R. Khanna, wasignored, and the next senior most Judge M.H. Beg, was appointed as theChief Justice of India. Such control in the hands of the executive,according to learned counsel, would cause immense inroads in the decisionmaking process. And could result in, Judges trying to placate and appeasethe political-executive segment, aimed at personal gains and rewards.226. The submission noticed above, was sought to be illustrated throughthe following instance. It was contended, that it would be genuine andlegitimate, for the Parliament to enact by law, that a person would beconsidered “fit” for appointment as Chief Justice of India, only if he hada minimum left over tenure of two years. Such an enactment would have adevastating effect, even though it would appear to be innocuouslylegitimate. It was pointed out, that out of the 41 Chief Justices of Indiaappointed till date, only 12 Chief Justices of India had a tenure of morethan two years. If such action, as has been illustrated above, was to betaken at the hands of the Parliament, it was bound to cause discontent tothose who had a legitimate expectation to hold the office of Chief Justiceof India, under the seniority rule, which had been in place for all thiswhile.227. It was asserted, that the illustration portrayed in the foregoingparagraph, could be dimensionally altered, by prescribing differentparameters, tailor-made for accommodating a favoured individual. It wassubmitted, that the Parliament should never be allowed the right to createuncertainty, in the matter of selection and appointment of the ChiefJustice of India, as the office of the Chief Justice of India was pivotal,and shouldered extremely onerous responsibilities. The exercise of theabove authority by the Parliament, it was pointed out, could/wouldseriously affect the “independence of the judiciary”.228. In the above context, reference was also made, to the opinionexpressed by renowned persons, having vast experience in judicialinstitutions, effectively bringing out the veracity of the contentionadvanced. Reference in this regard was made to the observations of M.C.Chagla, in his book, “Roses in December – An Autobiography”, wherein hedescribed the impact of supersession on Judges, who by virtue of theexisting convention, were in line to be the Chief Justice of India, butwere overlooked by preferring a junior. The position was expressed thus:The effect of these supersessions was most deleterious on the judges of theSupreme Court who were in the line of succession to the Chief Justiceship.Each eyed the other with suspicion and tried to outdo him in proclaiminghis loyalty to the Government either in their judgments or even on publicplatforms. If a judge owes his promotion to the favour of Government andnot to his own intrinsic merit, then the independence of the judiciary isinevitably lost.”H.R. Khanna, J., (in his book – “Neither Roses Nor Thorns”) expressed theposition as under:“A couple of days before the pronouncement of judgment the atmosphere oftension got aggravated because all kinds of rumours started circulating andthe name of the successor of the Chief Justice was not being announced.The announcement came on the radio after the judgment was pronounced and itresulted in the supersession of the three senior judges.I felt extremely perturbed because in my opinion it was bound to generatefear complex or hopes of reward and thus undermine the independence of thejudiciary. Immediately on hearing the news I went to the residence ofJustice Hegde. I found him somewhat tense, as anyone in that situationwould be, but he was otherwise calm. He told me that he, as well asJustice Shelat and Justice Grover who had been superseded, were tenderingtheir resignations.After the resignation of Shelat, Hegde and Grover, the court acquired a newcomplexion and I found perceptible change in the atmosphere. Many thingshappened which made one unhappy and I thought the best course was to getengrossed in the disposal of judicial work. The judicial work had alwaysan appeal for me and I found the exclusive attention paid to it to berewarding as well as absorbing.One of the new trends was the change in the approach of the court with aview to give tilt in favour of upholding the orders of the government.Under the cover of highsounding words like social justice the court passedorders, the effect of which was to unsettle settled principles and diluteor 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 asfollows:“In Sankalchand Sheth's Case, Bhagwati J. after explaining why the ChiefJustice of India had to be consulted before a judge could be transferred tothe High Court of another State, said: “I think it was Mr. Justice Jacksonwho said 'Judges are more often bribed by their ambition and loyalty ratherthan 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 appearlater, he was disloyal, inter alia, to his Chief, Chandrachud C.J. in orderto fulfil his own ambition to be the Chief Justice of India as soon aspossible. That Bhagwati J. was bribed by that ambition will be clear whenI deal with his treatment in the Judges' Case of Chief JusticeChandrachud's part in the case of Justice Kumar and Singh C.J. It willinterest the reader to know that the word “ambition” is derived from“ambit, canvass for votes.”,... Whether Bhagwati J. canvassed the votes ofone or more of his brother judges that they should disbelieve Chief JusticeChandrachud's affidavit in reply to the affidavit of Singh C.J. is notknown; but had he succeeded in persuading one or more of his brother judgesto disbelieve that affidavit, Chandrachud C.J. would have resigned,andJustice Bhagwati's ambition to be the next Chief Justice of India, would,in all probability, have been realised. However, his attempt to blackenthe character and conduct of Chandrachud C.J. proved futile because 4 ofhis brother judges accepted and acted upon the Chief Justice's affidavitand held that the transfer of Singh C.J. to Madras was 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 likelyto make the Judges loyal, to those who could satisfy their ambitions. Itwas therefore emphasized, that Section 5(1), which created an ambiguity, inthe matter of appointment to the office of Chief Justice of India, had thetrappings of being abused to imperil “independence of the judiciary”, andtherefore, could not be permitted to remain on the statute-book,irrespective of the assurance of the Attorney General, that for the purposein hand, the term “fit” meant “… mental and physical fitness…”.230. It was also contended, that while recommending names for appointmentof a Judge to the Supreme Court, the concerned Judges’ seniority in thecadre of Judges (of High Courts), was liable to be taken as the primaryconsideration, coupled with his ability and merit. It was submitted, thatthe instant mandate contained in the first proviso under Section 5(2) ofthe NJAC Act, clearly breached the convention of regional representation inthe Supreme Court. Since the “federal character”, of distribution ofpowers, was also one of the recognized “basic structures”, it wassubmitted, that regional representation could not have been overlooked.231. Besides the above, the Court's attention was invited to the secondproviso under Section 5(2), which forbids the NJAC from making a favourablerecommendation, if any two Members thereof, opposed the nomination of acandidate. It was contended, that placing the power of veto, in the handsof two Members of the NJAC, would violate the recommendatory powerexpressed in Article 124B. In this behalf, it was contended, that theabove position would entitle two “eminent persons”–lay persons (if thesubmission advanced by the learned Attorney General is to be accepted), todefeat a unanimous recommendation of the Chief Justice of India and the twosenior most Judges of the Supreme Court. And would also, negate theprimacy vested in the judiciary, in the matter of appointment of Judges, tothe higher judiciary.232. It was submitted, that the above power of veto exercisable by two laypersons, or alternatively one lay person, in conjunction with the UnionMinister in charge of Law and Justice, would cause serious inroads into the“independence of the judiciary”. Most importantly, it was contended, thatneither the impugned constitutional amendment, nor the provisions of theNJAC Act, provided for any quorum for holding meetings of the NJAC. And assuch, quite contrary to the contentions advanced at the hands of thelearned Attorney General, a meeting of the NJAC could not be held, withoutthe presence of the all Members of the NJAC. In order to support his abovecontention, he illustratively placed reliance on the Constitution (122ndAmendment) Bill, 2014 (brought before the Parliament, by the same rulingpolitical party, which had amended the Constitution, by tabling theConstitution (121st Amendment) Bill, 2014. The objective sought to beachieved under the above Bill was, to insert a new Article 279A. The newArticle 279A created the Goods and Services Tax Council. Sub-Article (7)of Article 279A postulates, that “… One-half of the total number of Membersof the Goods and Services Tax Council…” would constitute the quorum for itsmeetings. And furthermore, that “… Every decision of the Goods andServices Tax Council would be taken at a meeting, by a majority of not lessthan three-fourths of the weighted votes of the members present and voting…”. Having laid down the above parameters, in the Bill which followed theBill, that led to the promulgation of the impugned Constitution (99thAmendment) Act, it was submitted, that the omission of a quorum for thefunctioning of the NJAC, and the omission of quantifying the strengthrequired for valid decision making, vitiated the provision itself.233. The contention advanced at the hands of the learned counsel for thepetitioners, as has been noticed in the foregoing paragraph, does notrequire any detailed examination, as the existing declared legal position,is clear and unambiguous. In this behalf, it may be recorded, that in casea statutory provision vests a decision making authority in a body ofpersons without stipulating the minimum quorum, then a valid meeting can beheld only if the majority of all the members of the body, deliberate in theprocess of decision making. On the same analogy therefore, a valid decisionby such a body will necessitate a decision by a simple majority of all themembers of the body. If the aforesaid principles are made applicable to theNJAC, the natural outcome would be, that a valid meeting of the NJAC musthave 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 anyprescribed prerequisite), by a simple majority, namely, by at least fourMembers of the NJAC (three Members on either side, would not make up thesimple majority). We are satisfied, that the provisions of the NJAC Actwhich mandate, that the NJAC would not make a recommendation in favour of aperson for appointment as a Judge of the High Court or of the SupremeCourt, if any two Members thereof did not agree with such recommendation,cannot be considered to be in violation of the rule/principle expressedabove. As a matter of fact, the NJAC Act expressly provides, that if anytwo Members thereof did not agree to any particular proposal, the NJACwould not make a recommendation. There is nothing in law, to consider ortreat the aforesaid stipulations in the second proviso to Section 5(2) andSection 6(6) of the NJAC Act, as unacceptable. The instant submissionadvanced at the hands of the learned counsel for the petitioners istherefore liable to be rejected, and is accordingly rejected.234. We have also given our thoughtful consideration to the othercontentions advanced at the hands of the learned counsel for thepetitioners, with reference to Section 5 of the NJAC Act. We are of theview, that it was not within the realm of Parliament, to subject theprocess of selection of Judges to the Supreme Court, as well as, to theposition of Chief Justice of India, in uncertain and ambiguous terms. Itwas imperative to express, the clear parameters of the term “fit”, withreference to the senior most Judge of the Supreme Court under Section 5 ofthe NJAC Act. We are satisfied, that the term “fit” can be tailor-made, tochoose a candidate far below in the seniority list. This has beenadequately demonstrated by the learned counsel for the petitioners.235. The clear stance adopted by the learned Attorney General, that theterm “fit” expressed in Section 5(1) of the NJAC Act, had been accepted bythe Government, to mean and include, only “…mental and physical fitness…”,to discharge the onerous responsibilities of the office of Chief Justice ofIndia, and nothing more. Such a statement cannot, and does not, bindsuccessor Governments or the posterity for all times to come. The presentwisdom, cannot bind future generations. And, it was exactly for thisreason, that the respondents could resile from the statement made by thethen Attorney General, before the Bench hearing the Third Judges case, thatthe Union of India was not seeking a review or reconsideration of thejudgment in the Second Judges case (that, it had accepted to treat asbinding, the decision in the Second Judges case). And yet, during thecourse of hearing of the present case, the Union of India did seek areconsideration of the Second Judges case.236. Insofar as the challenge to Section 5(1) of the NJAC Act isconcerned, we are satisfied to affirm and crystalise the position adoptedby the Attorney General, namely, that the term “fit” used in Section 5(1)would be read to mean only “… mental and physical fitness …”. If that isdone, it would be legal and constitutional. However, if the positionadopted breached the “independence of the judiciary”, in the mannersuggested by the learned counsel for the petitioners, the same would beassailable in law.237. We will now endeavour, to address the second submission withreference to Section 5 of the NJAC Act. Undoubtedly, postulating“seniority” in the first proviso under Section 5(2) of the NJAC Act, is alaudable objective. And if seniority is to be supplemented and enmeshedwith “ability and merit”, the most ideal approach, can be seen to have beenadopted. But what appears on paper, may sometimes not be correct inpractice. Experience shows, that Judges to every High Court are appointedin batches, each batch may have just two or three appointees, or maysometimes have even ten or more individuals. A group of Judges appointed toone High Court, will be separated from the lot of Judges appointed toanother High Court, by just a few days, or by just a few weeks, andsometimes by just a few months. In the all India seniority of Judges, thecomplete batch appointed on the same day, to one High Court, will be placedin a running serial order (in seniority) above the other Judges appointedto another High Court, just after a few days or weeks or months. Judgesappointed 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 madeon the basis of seniority (as a primary consideration), then the earlierbatch would have priority in the matter of elevation to the Supreme Court.And hypothetically, if the batch had ten Judges (appointed together to aparticular High Court), and if all of them have proved themselves able andmeritorious as High Court Judges, they will have to be appointed one afterthe other, when vacancies of Judges arise in the Supreme Court. In thatview of the matter, Judges from the same High Court would be appointed tothe Supreme Court, till the entire batch is exhausted. Judges from the sameHigh Court, in the above situation where the batch comprised of ten Judges,will occupy a third of the total Judge positions in the Supreme Court.That would be clearly unacceptable, for the reasons indicated by thelearned counsel for the petitioners. We also find the position,unacceptable in law.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 oftheir seniority, by treating the same as a primary consideration, wouldadversely affect the present convention of ensuring representation from asmany State High Courts, as is possible. The convention in vogue is, tomaintain regional representation. For the reasons recorded above, the firstproviso under Section 5(2) is liable to be struck down and set aside.Section 6(1) applies to appointment of a Judge of a High Court as ChiefJustice of a High Court. It has the same seniority connotation as has beenexpressed hereinabove, with reference to the first proviso under Section5(2). For exactly the same reasons as have been noticed above, based onseniority (as a primary consideration), ten High Courts in different Statescould have Chief Justices drawn from one parent High Court. Section 6(1) ofthe NJAC Act was therefore liable to meet the same fate, as the firstproviso under Section 5(2).239. We are also of the considered view, that the power of veto vested inany two Members of the NJAC, would adversely impact primacy of thejudiciary, in the matter of selection and appointment of Judges to thehigher judiciary (as also their transfer). Details in this behalf havealready been recorded in part VIII hereinabove. Section 6(6) of the NJACAct, has the same connotation as the second proviso under Section 5(2), andSection 6(6) of the NJAC Act would therefore meet the same fate, as Section5(2). For the reasons recorded hereinabove, we are satisfied, that Sections5(2) and 6(6) of the NJAC Act also breach the “basic structure” of theConstitution, with reference to the “independence of the judiciary” and the“separation of powers”. Sections 5(2) and 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 thepetitioners to Section 7 of the NJAC Act. It was asserted, that on therecommendation made by the NJAC, the President was obliged to appoint theindividual recommended as a Judge of the High Court under Article 217(1).It was submitted, that the above position was identical to the positioncontemplated under Article 124(2), which also provides, that a candidaterecommended by the NJAC would be appointed by the President, as a Judge ofthe Supreme Court. It was submitted, that neither Article 124(2) norArticle 217(1) postulate, that the President could require the NJAC toreconsider, the recommendation made by the NJAC, as has been provided forunder the first proviso to Section 7 of the NJAC Act. It was accordinglythe contention of the learned counsel for the petitioners, that the firstproviso to Section 7 was ultra vires the provisions of Articles 124(2) and217(1), by providing for reconsideration, and that, the same was beyond thepale and scope of the provisions referred to above.241. Having considered the submission advanced by the learned counsel forthe petitioners in the foregoing paragraph, it is not possible for us toaccept that Section 7 of the NJAC Act, by providing that the Presidentcould require the NJAC to reconsider a recommendation made by it, would inany manner violate Articles 124(2) and 217(1) (which mandate, that Judgeswould be appointed by the President on the recommendation of the NJAC). Itwould be improper to infer, that the action of the President, requiring theNJAC to reconsider its proposal, amounted to rejecting the proposal made bythe NJAC. For, if the NJAC was to reiterate the proposal made earlier, thePresident even in terms of Section 7, was bound to act in consonancetherewith (as is apparent from the second proviso under Section 7 of theNJAC Act). In our considered view, the instant submission advanced at thehands of the petitioners deserves to be rejected, and is accordinglyrejected.242. Learned counsel for the petitioners had also assailed the validity ofSection 8 of the NJAC Act, which provides for the Secretary to theGovernment of India, in the Department of Justice, to be the convener ofthe NJAC. It was contended, that the function of a convener, withreference to the NJAC, would entail the responsibility of inter aliapreparing the agenda for the meetings of the NJAC, namely, to decide thenames of the individuals to be taken up for consideration, in the nextmeeting. This would also include, the decision to ignore names from beingtaken up for consideration in the next meeting. He may include or excludenames from consideration, at the behest of his superior. It would also bethe responsibility of the convener, to compile data made available fromvarious quarters, as contemplated under the NJAC Act, and in additionthereto, as may be required by the Union Minister in charge of Law andJustice, and the Chief Justice of India. It was submitted, that such anonerous responsibility, could not be left to the executive alone, becausematerial could be selectively placed by the convener before the NJAC, indeference to the desire of his superior – the Union Minister in charge ofLaw and Justice, by excluding favourable material, with reference to acandidate considered unsuitable by the executive, and by excludingunfavourable material, with reference to a candidate who carried favourwith the executive.243. It was additionally submitted, that it was imperative to exclude allexecutive participation in the proceedings of the NJAC for two reasons.Firstly, the executive was the largest individual litigant, in matterspending before the higher judiciary, and therefore, cannot have anydiscretionary role in the process of selection and appointment of Judges tothe higher judiciary (in the manner expressed in the preceding paragraph).And secondly, the same would undermine the concepts of “separation ofpowers” and “independence of the judiciary”, whereunder the judiciary hasto be shielded from any possible interference, either from the executive orthe legislature.244. We have given our thoughtful consideration to the above twosubmissions, dealt with in the preceding two paragraphs. We have alreadyconcluded earlier, that the participation of the Union Minister in chargeof Law and Justice, as a Member of the NJAC, as contemplated under Article124A(1), in the matter of appointment of Judges to the higher judiciary,would breach the concepts of “separation of powers” and the “independenceof the judiciary”, which are both undisputedly components of the “basicstructure” of the Constitution of India. For exactly the same reasons, weare of the view, that Section 8 of the NJAC Act which provides, that theSecretary to the Government of India, in the Department of Justice, wouldbe the convener of the NJAC, is not sustainable in law. In a body like theNJAC, the administrative functioning cannot be under executive orlegislative control. The only remaining alternative, is to vest theadministrative control of such a body, with the judiciary. For the abovereasons, Section 8 of the NJAC Act would likewise be unsustainable in law.245. Examined from the legal perspective, it was unnecessary for us toexamine the individual provisions of the NJAC Act. Once the constitutionalvalidity of Article 124A(1) is held to be unsustainable, the impugnedconstitutional amendment, as well as, the NJAC Act, would be rendered anullity. The necessity of dealing with some of the issues was prompted bythe consideration, that broad parameters should be expressed.V. THE EFFECT OF STRIKING DOWN THE IMPUGNED CONSTITUTIONAL AMENDMENT:246. Would the amended provisions of the Constitution revive, if theimpugned constitutional amendment was to be set aside, as being violativeof the “basic structure” of the Constitution? It would be relevant tomention, that the instant issue was not adverted to by the learned counselfor the petitioners, possibly on the assumption, that if on a considerationof the present controversy, this Court would strike down the Constitution(99th Amendment) Act, then Articles 124, 127, 128, 217, 222, 224, 224A and231, as they existed prior to the impugned amendment, would revive. And onsuch revival, the judgments rendered in the Second and Third Judges cases,would again regulate selections and appointments, as also, transfer ofJudges of the higher judiciary.247. A serious objection to the aforesaid assumption, was raised on behalfof the respondents by the Solicitor General, who contended, that thestriking down of the impugned constitutional amendment, would not result inthe revival of the provisions, which had been amended by the Parliament. Inorder to canvass the aforesaid proposition, reliance was placed on Article367, which postulates, that the provisions of the General Clauses Act, 1897had to be applied, for an interpretation of the Articles of theConstitution, in the same manner, as the provisions of the General ClausesAct, are applicable for an interpretation of ordinary legislation. Insofaras the instant submission is concerned, we have no hesitation in affirming,that unless the context requires otherwise, the provisions of the GeneralClauses Act, can be applied, for a rightful and effective understanding ofthe provisions of the Constitution.248. Founded on the submission noticed in the foregoing paragraph, theSolicitor General placed reliance on Sections 6, 7 and 8 of the GeneralClauses Act, which are being extracted hereunder:“6. Effect of repeal.-Where this Act, or any Central Act or Regulation madeafter the commencement of this Act, repeals any enactment hitherto made orhereafter to be made, then, unless a different intention appears, therepeal shall not--(a) revive anything not in force or existing at the time at which therepeal takes effect; or(b) affect the previous operation of any enactment so repealed or anythingduly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accruedor incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of anyoffence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of anysuch right, privilege, obligation, liability, penalty, forfeiture orpunishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted,continued or enforced, and any such penalty, forfeiture or punishment maybe imposed as if the repealing Act or Regulation had not been passed.7. Revival of repealed enactments.-(1) In any Central Act or Regulationmade after the commencement of this Act, it shall be necessary, for thepurpose of reviving, either wholly or partially, any enactment wholly orpartially repealed, expressly to state that purpose.(2) This section applies also to all Central Acts made after the third dayof January, 1868, and to all Regulations made on or after the fourteenthday 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 or without modification, any provision of aformer enactment, then references in any other enactment or in anyinstrument to the provision so repealed shall, unless a different intentionappears, be construed as references to the provision so re-enacted.(2) Where before the fifteenth day of August, 1947, any Act of Parliamentof the United Kingdom repealed and re-enacted, with or withoutmodification, any provision of a former enactment, then reference in anyCentral Act or in any Regulation or instrument to the provision so repealedshall, unless a different intention appears, be construed as references tothe provision so re-enacted.”249. Relying on Section 6, it was submitted, that the setting aside of theimpugned constitutional amendment, should be considered as setting aside ofa repealing provision. And as such, the acceptance of the claim of thepetitioners, would not lead to the automatic revival of the provisions asthey existed prior to the amendment. Relying on Section 7 it was asserted,that if a repealed provision had to be revived, it was imperative for thelegislature to express such intendment, and unless so expressly indicated,the enactment wholly or partly repealed, would not stand revived. Finallyrelying on Section 8 of the General Clauses Act, it was submitted, thatwhen an existing provision was repealed and another provision was re-enacted as its replacement, no further reference could be made to therepealed enactment, and for all intents and purposes, reference mustmandatorily be made, only to the re-enacted provision. Relying on theprinciples underlying Sections 6, 7 and 8, it was submitted, that even ifthe prayers made by the petitioners were to be accepted, and the impugnedconstitutional amendment was to be set aside, the same would not result inthe revival of the unamended provisions.250. Learned Solicitor General also referred to a number of judgmentsrendered by this Court, to support the inference drawn by him. We shalltherefore, in the first instance, examine the judgments relied upon:(i) Reliance in the first instance was placed on the Ameer-un-Nissa Begumcase70. Our pointed attention was drawn to the observations recorded inparagraph 24 thereof, which is reproduced hereunder:“24 The result will be the same even if we proceed on the footing that thevarious 'Firmans' issued by the Nizam were in the nature of legislativeenactments determining private rights somewhat on the analogy of privateActs of Parliament. We may assume that the 'Firman' of 26-6-1947 wasrepealed by the 'Firman' of 24-2-1949, and the latter 'Firman' in its turnwas repealed by that of 7-9-1949. Under the English Common Law when arepealing enactment was repealed by another statute, the repeal of thesecond Act revived the former Act 'ab initio'. But this rule does not applyto repealing Acts passed since 1850 and now if an Act repealing a formerAct is itself repealed, the last repeal does not revive the Act beforerepealed unless words are added reviving it: vide Maxwell's Interpretationof Statutes, p. 402 (10th Edition).It may indeed be said that the present rule is the result of the statutoryprovisions introduced by the Interpretation Act of 1889 and as we are notbound by the provisions of any English statute, we can still apply theEnglish 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 repealingenactment would not revive the original Act if the second repealingenactment manifests an intention to the contrary….”Having given our thoughtful consideration to the conclusions recorded inthe judgment relied upon, we are satisfied, that the same does not supportthe cause of the respondents, because in the judgment relied upon, it wasclearly concluded, that under the English Common Law when a repealingenactment was repealed by another law, the repeal of the second enactmentwould revive the former “ab initio”. In the above view of the matter,based exclusively on the English Common Law, on the setting aside of theimpugned constitutional amendment, the unamended provision, would standrevived. It also needs to be noticed, that the final position to thecontrary, expressed in the judgment relied upon, emerged as a consequenceof subsequent legislative enactment, made in England, which is inapplicableto India. Having taken the above subsequent amendments into consideration,it was concluded, that the repeal of the repealing enactment would notrevive the original enactment, except “… if the second repealing enactmentmanifests an intention to the contrary. …” In other words, the implicationwould be, that the original Act would revive, but for an intention to thecontrary expressed in the repealing enactment. It is however needs to bekept in mind, that the above judgment, did not deal with an exigency wherethe provision enacted by the legislation had been set aside by a Courtorder.(ii) Reliance was then placed on the Firm A.T.B. Mehtab Majid & Co.case71, and more particularly, the conclusions drawn in paragraph 20thereof. A perusal of the above judgment would reveal, that this Court hadrecorded its conclusions, without relying on either the English Common Law,or the provisions of the General Clauses Act, which constituted thefoundation of the contentions advanced at the hands of the respondents,before us. We are therefore satisfied, that the conclusions drawn in theinstant judgment, would not be applicable, to arrive at a conclusion oneway or the other, insofar as the present controversy is concerned.(iii) Reference was thereafter made to the B.N. Tewari case72, and ourattention was drawn to the following observations:“6. We shall first consider the question whether the carry forward rule of1952 still exists. It is true that in Devadasan's case, AIR 1964 SC 179,the final order of this Court was in these terms:-"In the result the petition succeeds partially and the carry forward ruleas modified in 1955 is declared invalid."That however does not mean that this Court held that the 1952-rule must bedeemed to exist because this Court said that the carry forward rule asmodified in 1955 was declared invalid. The carry forward rule of 1952 wassubstituted by the carry forward rule of 1955. On this substitution thecarry forward rule of 1952 clearly ceased to exist because its place wastaken by the carry forward rule of 1955. Thus by promulgating the new carryforward rule in 1955, the Government of India itself cancelled the carryforward rule of 1952. When therefore this Court struck down the carryforward rule as modified in 1955 that did not mean that the carry forwardrule of 1952 which had already ceased to exist, because the Government ofIndia itself cancelled it and had substituted a modified rule in 1955 inits place, could revive. We are therefore of opinion that after thejudgment of this Court in Devadasan's case AIR 1964 SC 179 there is nocarry forward rule at all, for the carry forward rule of 1955 was struckdown by this Court while the carry forward rule of 1952 had ceased to existwhen the Government of India substituted the carry forward rule of 1955 inits place. But it must be made clear that the judgment of this Court inDevadasan's case AIR 1964 SC 179, is only concerned with that part of theinstructions of the Government of India which deal with the carry forwardrule; it does not in any way touch the reservation for scheduled castes andscheduled tribes at 12-1/2% and 5%, respectively; nor does it touch thefilling up of schedule tribes vacancies by scheduled caste candidates wheresufficient number of scheduled tribes are not available in a particularyear or vice versa. The effect of the judgment in Devadasan's case, AIR1964 SC 179, therefore is only to strike down the carry forward rule and itdoes not affect the year to year reservation for scheduled castes andscheduled tribes or filling up of scheduled tribe vacancies by a member ofscheduled castes in a particular year if a sufficient number of scheduledtribe candidates are not available in that year of vice versa. Thisadjustment in the reservation between scheduled castes and tribes hasnothing to do with the carry forward rule from year to year either of 1952which 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 carryforward rule of 1952 would be unconstitutional, for that rule no longerexists.”The non-revival of the carry-forward-rule of 1952, which was sought to bemodified in 1955, determined in the instant judgment, was not on account ofthe submissions, that have been advanced before us in the presentcontroversy. But, on account of the fact, that the Government of India haditself cancelled the carry-forward-rule of 1952. Moreover, the issue underconsideration in the above judgment, was not akin to the controversy inhand. As such, we are satisfied that reliance on the B.N. Tewari case72 isclearly misplaced.(iv) Relying on the Koteswar Vittal Kamath case73, learned SolicitorGeneral placed reliance on the following observations recorded therein:“8. On that analogy, it was argued that, if we hold that the ProhibitionOrder of 1950, was invalid, the previous Prohibition Order of 1119, cannotbe held to be revived. This argument ignores the distinction betweensupersession of a rule, and substitution of a rule. In the case of Firm A.T. B. Mehtab Majid & Co. (supra), the new Rule 16 was substituted for theold Rule 16. The process of substitution consists of two steps. First, theold rule it made to cease to exist and, next, the new rule is brought intoexistence in its place. Even if the new rule be invalid, the first step ofthe old rule ceasing to exist comes into effect, and it was for this reasonthat the court held that, on declaration of the new rule as invalid, theold rule could not be held to be revived. In the case before us, there wasno substitution of the Prohibition Order of 1950, for the Prohibition Orderof 1119. The Prohibition Order of 1950, was promulgated independently ofthe Prohibition Order of 1119 and because of the provisions of law it wouldhave had the effect of making the Prohibition Order of 1119 inoperative ifit had been a valid Order. If the Prohibition Order of 1950 is found to bevoid ab initio, it could never make the Prohibition Order of 1119inoperative. Consequently, on the 30th March, 1950, either the ProhibitionOrder of 1119 or the Prohibition Order of 1950 must be held to have been inforce in Travancore-Cochin, so that the provisions of Section 73(2) of Act5 of 1950 would apply to that Order and would continue it in force. Thisfurther continuance after Act 5 of 1950, of course, depends on the validityof Section 3 of Act 5 of 1950, because Section 73(2) purported to continuethe Order in force under that section, so that we proceed to examine theargument relating to the validity of Section 3 of Act 5 of 1950.”A perusal of the conclusion drawn hereinabove, apparently supports thecontention advanced at the hands of the respondents, that if the amendmentto an erstwhile legislative enactment, envisages the substitution of anexisting provision, the process of substitution must be deemed to compriseof two steps. The first step would envisage, that the old rule would ceaseto exist, and the second step would envisage, that the new rule had takenthe place of the old rule. And as such, even if the new rule was to bedeclared as invalid, the first step depicted above, namely, that the oldrule has ceased to exist, would remain unaltered. Thereby, leading to theinference, that in the present controversy, even if the impugnedconstitutional amendment was to be set aside, the same would not lead tothe revival of the unamended Articles 124, 127, 128, 217, 222, 224, 224Aand 231. In our considered view, the observations made in the judgmentleading to the submissions and inferences recorded above, are notapplicable to the present case. The highlighted portion of the judgmentextracted above, would apply to the present controversy. In the presentcase the impugned constitutional amendment was promulgated independently ofthe original provisions of the Constitution. In fact, the amendedprovisions introduce a new scheme of selection and appointment of Judges tothe higher judiciary, directionally different from the prevailing position.And therefore, the original provisions of the Constitution would have beenmade inoperative, only if the amended provisions were valid. Consequently,if reliance must be placed on the above judgment, the conclusion would beagainst the proposition canvassed. It would however be relevant tomention, that the instant judgment, as also, some of the other judgmentsrelied upon by the learned counsel for the respondents, have been explainedand distinguished in the State of Maharashtra v. Central ProvincesManganese Ore Co. Ltd.76, which will be dealt with chronologicallyhereinafter.(v) The learned Solicitor General then placed reliance on, the MulchandOdhavji case74, and invited our attention to the observations recorded inparagraph 8 thereof. Reliance was even placed on, the Mohd. ShaukatHussain Khan case75, and in particular, the observations recorded inparagraph 11 thereof. We are satisfied, that the instant two judgments areirrelevant for the determination of the pointed contention, advanced at thehands of the learned counsel for the respondents, as the subject matter ofthe controversy dealt with in the above cases, was totally different fromthe one in hand.(vi) Reference was then made to the Central Provinces Manganese Ore Co.Ltd. case76, and our attention was drawn to the following observationsrecorded therein:“18. We do not think that the word substitution necessarily or alwaysconnotes two severable steps, that is to say, one of repeal and another ofa fresh enactment even if it implies two steps. Indeed, the natural meaningof the word "substitution" is to indicate that the process cannot be splitup into two pieces like this. If the process described as substitutionfails, it is totally ineffective so as to leave intact what was sought tobe displaced. That seems to us to be the ordinary and natural meaning ofthe words "shall be substituted". This part could not become effectivewithout the assent of the Governor-General. The State Governor's assent wasinsufficient. It could not be inferred that, what was intended was that, incase the substitution failed or proved ineffective, some repeal, notmentioned at all, was brought about and remained effective so as to createwhat may be described as a vacuum in the statutory law on the subject-matter. Primarily, the question is one of gathering, the intent from theuse of words in the enacting provision seen in the light of the proceduregone through. Here, no intention to repeal, without a substitution, isdeducible. In other words, there could be no repeal if substitution failed.The two were a part and parcel of a single indivisible process and not bitsof a disjointed operation.19. Looking at the actual procedure which was gone through, we find that,even if the Governor had assented to the substitution, yet, the amendmentwould have been effective, as a piece of valid legislation, only when theassent of the Governor-General had also been accorded to it. It could notbe said that what the Legislature intended or what the Governor hadassented to consisted of a separate repeal and a fresh enactment. The tworesults were to follow from one and the same effective Legislative process.The process had, therefore, to be so viewed and interpreted.20. Some help was sought to be derived by the citation of B.N. Tewariv. Union of India [1965]2 SCR 421 and the case of Firm A. T. B. MehtabMajid and Co. v. State of Madras. Tewari's case related to the substitutionof what was described as the "carry forward" rule contained in thedepartmental instruction which was sought to be substituted by a modifiedinstruction declared invalid by the court. It was held that when the rulecontained in the modified instruction of 1955 was struck down the rulecontained in a displaced instruction did not survive. Indeed, one of thearguments there was that the original "carry forward" rule of 1952 wasitself void for the very reason for which the "carry forward" rule,contained in the modified instructions of 1955, had been struck down. Eventhe analogy of a merger of an order into another which was meant to be itssubstitute could apply only where there is a valid substitution. Such adoctrine applies in a case where a judgment of a subordinate court mergesin the judgment of the appellate court or an order reviewed merges in theorder by which the review is granted. Its application to a legislativeprocess may be possible only in cases of valid substitution. Thelegislative intent and its effect is gathered, inter alia, from the natureof the action of the authority which functions. It is easier to impute anintention to an executive rule-making authority to repeal altogether in anyevent what is sought to be displaced by another rule. The cases cited wereof executive instructions. We do not think that they could serve as usefulguides in interpreting a Legislative provision sought to be amended by afresh enactment. The procedure for enactment is far more elaborate andformal. A repeal and a displacement of a Legislative provision by a freshenactment can only take place after that elaborate procedure has beenfollowed in toto. In the case of any rule contained in an executiveinstruction, on the other hand, the repeal as well as displacement arecapable of being achieved and inferred from a bare issue of freshinstructions on the same subject.21. In Mehtab Majid & Co.'s case a statutory role was held not to haverevived after it was sought to be substituted by another held to beinvalid. This was also a case in which no elaborate legislative procedurewas prescribed for a repeal as it is in the case of statutory enactment ofstatutes by legislatures. In every case, it is a question of intention tobe gathered from the language as well as the acts of the rule-making orlegislating authority in the context in which these occur.22. A principle of construction contained now in a statutory provision madein England since 1850 has been:Where an Act passed after 1850 repeals wholly or partially any formerenactment and substitutes provisions for the enactment repealed, therepealed enactment remains in force until the substituted provisions comeinto 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 Clauses Acts,yet, it shows that the mere use of words denoting a substitution does notipso facto or automatically repeal a provision until the provision, whichis to take its place becomes legally effective. We have as explained above,reached the same conclusion by considering the ordinary and natural meaningof the term "substitution" when it occurs without anything else in thelanguage used or in the context of it or in the surrounding facts andcircumstances to lead to another inference. It means, ordinarily, thatunless the substituted provision is there to take its place, in law and ineffect, the pre-existing provision continues. There is no question of a"revival".”It would be relevant to mention, that the learned Solicitor Generalconceded, that the position concluded in the instant judgment, would defeatthe stance adopted by him. We endorse the above view. The position whichis further detrimental to the contention advanced on behalf of therespondents is, that in recording the above conclusions, this Court in theabove cited case, had taken into consideration, the judgments in the FirmA.T.B. Mehtab Majid case71, the B.N. Tewari case72, the Koteswar VittalKamath case73, and the Mulchand Odhavji case74. The earlier judgmentsrelied upon by the learned counsel for the respondents would, therefore, beclearly inapplicable to the controversy in hand. In this view of thematter, there is hardly any substance in the pointed issue canvassed onbehalf of the respondents.(vii) The learned Solicitor General, then placed reliance on Indian ExpressNewspapers (Bombay) Pvt. Ltd. v. Union of India[95], and invited ourattention to the following observations recorded therein:“107. In the cases before us we do not have rules made by two differentauthorities as in Mulchand case (1971) 3 SCC 53 and no intention on thepart of the Central Government to keep alive the exemption in the event ofthe subsequent notification being struck down is also established. Thedecision of this Court in Koteswar Vittal Kamath v. K. Rangappa Baliga andCo. (1969) 3 SCR 40) does not also support the Petitioners. In that caseagain the question was whether a subsequent legislation which was passed bya legislature without competence would have the effect of reviving anearlier rule which it professed to supersede. This case again belongs tothe category of Mohd. Shaukat Hussain Khan case, AIR 1974 SC 1480. It mayalso be noticed that in Koteswar Vittal Kamath case, AIR 1969 SC 504, theruling in the case of Firm A.T.B. Mehtab Majid and Co. AIR 1963 SC 928 hasbeen distinguished. The case of State of Maharashtra v. Central ProvincesManganese Ore Co. Ltd., AIR 1977 SC 879 is again distinguishable. In thiscase 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 SC1430. We may also state that the legal effect on an earlier law when thelater law enacted in its place is declared invalid does not depend merelyupon the use of words like, 'substitution', or 'supersession'. It dependsupon the totality of circumstances and the context in which they are used.”What needs to be noticed from the extract reproduced above is, that thisCourt in the above judgment clearly concluded, that the legal effect on anearlier 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 further, that it would depend on the totality of thecircumstances, and the context, in which the provision was couched. If thecontention advanced by the learned Solicitor General is accepted, it wouldlead to a constitutional breakdown. The tremors of such a situation arealready being felt. The retiring Judges of the higher judiciary, are notbeing substituted by fresh appointments. The above judgment, in ourconsidered view, does not support the submission being canvassed, becauseon consideration of the “…totality of circumstances and the context…” theinstant contention is just not acceptable. We are therefore of theconsidered view, that even the instant judgment can be of no avail to therespondents, insofar as the present controversy is concerned.(viii) Reliance was next placed on the judgment rendered by this Courtin Bhagat Ram Sharma v. Union of India[96]. The instant judgment wasrelied upon only to show, that an enactment purported to be an amendment,has the same qualitative effect as a repeal of the existing statutoryprovision. The aforesaid inference was drawn by placing reliance onSoutherland’s Statutory Construction, 3rd Edition, Volume I. Since there isno quarrel on the instant proposition, it is not necessary to recordanything further. It however needs to be noticed, that we are notconfronted with the effect of an amendment or a repeal. We are dealing withthe effect of the striking down of a constitutional amendment and alegislative enactment, through a process of judicial review.(ix) Reliance was then placed on State of Rajasthan v. MangilalPindwal[97], and particularly on the observations/conclusions recorded inparagraph 12 thereof. All that needs to be stated is, that the issuedecided in the above judgment, does not arise for consideration in thepresent case, and accordingly, the conclusions drawn therein cannot be madeapplicable to the present case.(x) Next in order, reliance was placed on the India Tobacco Co. Ltd.case77, and our attention was invited to the following observationsrecorded therein:“15. The general rule of construction is that the repeal of a repealing Actdoes not revive anything repealed thereby. But the operation of this ruleis not absolute. It is subject to the appearance of a "different intention"in the repealing statute. Again, such intention may be explicit orimplicit. The questions, therefore, that arise for determination are:Whether in relation to cigarettes, the 1941 Act was repealed by the 1954Act and the latter by the 1958 Act? Whether the 1954 Act and 1958 Act wererepealing enactments? Whether there is anything in the 1954 Act and the1958 Act indicating a revival of the 1941 Act in relation to cigarettes?16. It is now well settled that "repeal" connotes abrogation orobliteration of one statute by another, from the statute book as completely"as if it had never been passed"; when an Act is repealed, "it must beconsidered (except as to transactions past and closed) as if it had neverexisted". (Per Tindal, C.J. in Kay v. Goodwin (1830) 6 Bing 576, 582 andLord Tenterdon in Surtees v. Ellison (1829) 9 B&C 750, 752 cited withapproval in State of Orissa v. M.A. Tulloch & Co., AIR 1964 SC 1284).17. Repeal is not a matter of mere from but one of substance, dependingupon the intention of the Legislature. If the intention, indicatedexpressly or by necessary implication in the subsequent statute, was toabrogate or wipe off the former enactment, wholly or in part, then it wouldbe a case of total or pro tanto repeal. If the intention was merely tomodify the former enactment by engrafting an exception or granting anexemption, or by super-adding conditions, or by restricting, interceptingor suspending its 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 Mountv. Taylor (1868) L.R. 3 C.P. 645; Southerland's Statutory Construction 3rdEdn. Vol. I, paragraphs 2014 and 2022, pp. 468 and 490). Broadly speaking,the principal object of a Repealing and Amending Act is to 'excise deadmatter, prune off superfluities and reject clearly inconsistent enactments’-see Mohinder Singh v. Mst. Harbhajan Kaur.”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 avoluntary decision of a legislature in amending or repealing an existingprovision. That position would arise, if the Parliament had validly amendedor repealed an existing constitutional provision. Herein, the impugnedconstitutional amendment has definetly the effct of substituting some ofthe existing provisions of the Constitution, and also, adding to it somenew provisions. Naturally substitution connotes, that the earlierprovision ceases to exist, and the amended provision takes its place. Thepresent situation is one where, the impugned constitutional amendment by aprocess of judicial review, has been set aside. Such being the position,whatever be the cause and effect of the impugned constitutional amendment,the same will be deemed to be set aside, and the position preceding theamendment will be restored. It does not matter what are the stages or stepsof the cause and effect of the amendment, all the stages and steps willstand negated, in the same fashion as they were introduced by theamendment, when the amended provisions are set aside.(xi) In addition to the above judgment, reliance was also placed on theKolhapur Canesugar Works Ltd. case78, West U.P. Sugar Mills Association v.State of U.P.[98], Gammon India Ltd. v. Special Chief Secretary[99], theHirendra Pal Singh case79, the Joint Action Committee of Air Line Pilots’Associations of India case80, and the K. Shyam Sunder case81. Theconclusions drawn in the above noted judgments were either based on thejudgments already dealt with by us hereinabove, or on general principles.It is not necessary to examine all the above judgments, by expressly takingnote of the observations recorded in each of them.251. Even though we have already recorded our determination with referenceto the judgments cited by the learned Solicitor General, it is imperativefor us to record, that it is evident from the conclusions returned in theCentral Provinces Manganese Ore Co. Ltd. case76, that in the facts andcircumstances of the present case, it would have to be kept in mind, thatif the construction suggested by the learned Solicitor General was to beadopted, it would result in the creation of a void. We say so, because ifneither the impugned constitutional provision, nor the amended provisionsof the Constitution would survive, it would lead to a breakdown of theconstitutional 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, in our view, cannot be the resultof any sound process of interpretation. Likewise, from the observationsemerging out of the decision rendered in the Indian Express Newspapers(Bombay) Pvt. Ltd. case95, we are satisfied, that the clear intent of theParliament, while enacting the Constitution (99th Amendment) Act, was toprovide for a new process of selection and appointment of Judges to thehigher judiciary by amending the existing provisions. Naturally therefore,when the amended provision postulating a different procedure is set aside,the original process of selection and appointment under the unamendedprovisions would revive. The above position also emerges from the legalposition declared in the Koteswar Vittal Kamath case73.252. It is not possible for us to accept the inferential contentions,advanced at the hands of the learned counsel for the respondents by placingreliance on Sections 6, 7 and 8 of the General Clauses Act. We say so,because the contention of the learned Solicitor General was based on theassumption, that a judicial verdict setting aside an amendment, has thesame effect as a repeal of an enactment through a legislation. This is anunacceptable assumption. When a legislature amends or repeals an existingprovision, its action is of its own free will, and is premised on wellfounded principles of interpretation, including the provisions of theGeneral Causes Act. Not so when an amendment/repeal is set aside through ajudicial process. It is not necessary to repeat the consideration recordedin paragraph 250(ix) above. When a judgment sets aside, an amendment or arepeal by the legislature, it is but natural that the status quo ante,would stand restored.253. For the reasons recorded hereinabove, we are of the view, that incase of setting aside of the impugned Constitution (99th Amendment) Act,the provisions of the Constitution sought to be amended thereby, wouldautomatically revive.VI. CONCLUSIONS:254. Article 124A constitutes the edifice of the Constitution (99thAmendment) Act, 2014. The striking down of Article 124A would automaticallylead to the undoing of the amendments made to Articles 124, 124B, 124C,127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, thatthe latter Articles are sustainable only if Article 124A is upheld. Article124A(1) provides for the constitution and the composition of the NationalJudicial Appointments Commission (NJAC). Its perusal reveals, that it iscomposed of the following:(a) the Chief Justice of India, Chairperson, ex officio;(b) two other senior Judges of Supreme Court, next to the Chief Justice ofIndia – Members, ex officio;(c) the Union Minister in charge of Law and Justice – Member, ex officio;(d) two eminent persons, to be nominated – Members.If the inclusion of anyone of the Members of the NJAC is held to beunconstitutional, Article 124A will be rendered nugatory, in its entirety.While adjudicating upon the merits of the submissions advanced at the handsof the learned counsel for the rival parties, I have arrived at theconclusion, that clauses (a) and (b) of Article 124A(1) do not provide anadequate representation, to the judicial component in the NJAC, clauses (a)and (b) of Article 124A(1) are insufficient to preserve the primacy of thejudiciary, in the matter of selection and appointment of Judges, to thehigher judiciary (as also transfer of Chief Justices and Judges, from oneHigh Court to another). The same are accordingly, violative of theprinciple of “independence of the judiciary”. I have independently arrivedat the conclusion, that clause (c) of Article 124A(1) is ultra vires theprovisions of the Constitution, because of the inclusion of the UnionMinister 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 hasalso been concluded by me, that clause (d) of Article 124A(1) whichprovides for the inclusion of two “eminent persons” as Members of the NJACis ultra vires the provisions of the Constitution, for a variety ofreasons. The same has also been held as violative of the “basic structure”of the Constitution. In the above view of the matter, I am of theconsidered view, that all the clauses (a) to (d) of Article 124A(1) areliable to be set aside. The same are, accordingly struck down. In view ofthe striking down of Article 124A(1), the entire Constitution (99thAmendment) Act, 2014 is liable to be set aside. The same is accordinglyhereby struck down in its entirety, as being ultra vires the provisions ofthe Constitution.255. The contention advanced at the hands of the respondents, to theeffect, that the provisions of the Constitution which were sought to beamended by the impugned constitutional amendment, would not revive, even ifthe challenge raised by the petitioners was accepted (and the Constitution(99th Amendment) Act, 2014, was set aside), has been considered under aseparate head, to the minutest detail, in terms of the submissionsadvanced. I have concluded, that with the setting aside of the impugnedConstitution (99th Amendment) Act, 2014, the provisions of the Constitutionsought to be amended thereby, would automatically revive, and the statusquo ante would stand restored.256. The National Judicial Appointments Commission Act, 2014 inter aliaemanates from Article 124C. It has no independent existence in the absenceof the NJAC, constituted under Article 124A(1). Since Articles 124A and124C have been set aside, as a natural corollary, the National JudicialAppointments Commission Act, 2014 is also liable to be set aside, the sameis accordingly hereby struck down. In view of the above, it was notessential for us, to have examined the constitutional vires of individualprovisions of the NJAC Act. I have all the same, examined the challengeraised to Sections 5, 6, 7 and 8 thereof. I have concluded, that Sections5, 6 and 8 of the NJAC Act are ultra vires the provisions of theConstitution.VII. ACKNOWLEDGEMENT:257. Before parting with the order, I would like to record my appreciationfor the ablest assistance rendered to us, by the learned counsel whoaddressed us from both the sides. I would also like to extend my deepestsense of appreciation to all the assisting counsel, who had obviously wholeheartedly devoted their time and energy in the preparation of the case, andin instructing the arguing counsel. I would be failing in my duty, if I donot express my gratitude to my colleagues on the Bench, as also, learnedcounsel who agreed to assist the Bench, during the summer vacation. Itherefore, express my gratefulness and indebtedness to them, from thebottom of my heart. …………………………………………………J. (Jagdish Singh Khehar)Note: The emphases supplied in all the quotations in the instant judgment,are mine.New Delhi;October 16, 2015. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 13 OF 2015Supreme Court Advocates-on-Record -Association and another … Petitioner(s) versusUnion of India … Respondent(s) With|WRIT PETITION (C) NO. 14 OF 2015 | |WRIT PETITION (C) NO. 18 OF 2015 ||WRIT PETITION (C) NO. 23 OF 2015 | |WRIT PETITION (C) NO. 24 OF 2015 ||WRIT PETITION (C) NO. 70 OF 2015 | |WRIT PETITION (C) NO. 83 OF 2015 ||WRIT PETITION (C) NO. 108 OF 2015 | |WRIT PETITION (C) NO. 124 OF 2015 ||WRIT PETITION (C) NO. 209 OF 2015 | |WRIT PETITION (C) NO. 309 OF 2015 ||WRIT PETITION (C) NO. 310 OF 2015 | |WRIT PETITION (C) NO. 323 OF 2015 ||WRIT PETITION (C) NO. 341 OF 2015 | |TRANSFER PETITION(C) NO. 391 OF 2015||TRANSFER PETITION(C) NO. 971 OF 2015 | | | ORDER OF THE COURT1. The prayer for reference to a larger Bench, and for reconsiderationof the Second and Third Judges cases [(1993) 4 SCC 441, and (1998) 7 SCC739, respectively], is rejected.2. The Constitution (Ninety-ninth Amendment) Act, 2014 is declaredunconstitutional and void.3. The National Judicial Appointments Commission Act, 2014, is declaredunconstitutional and void.4. The system of appointment of Judges to the Supreme Court, and ChiefJustices and Judges to the High Courts; and transfer of Chief Justices andJudges of High Courts from one High Court, to another, as existing prior tothe Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegiumsystem”), is declared to be operative.5. To consider introduction of appropriate measures, if any, for animproved working of the “collegium system”, list on 3.11.2015. …………………………………………………J. (Jagdish Singh Khehar) …………………………………………………J. (J. Chelameswar) …………………………………………………J. (Madan B. Lokur) …………………………………………………J. (Kurian Joseph) …………………………………………………J. (Adarsh Kumar Goel)New Delhi;October 16, 2015. Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.13 OF 2015Supreme Court Advocates-on-RecordAssociation & Another … PetitionersVersusUnion of India … Respondent WITH WRIT PETITION (CIVIL) NO.23 OF 2015 WRIT PETITION (CIVIL) NO.70 OF 2015 WRIT PETITION (CIVIL) NO.83 OF 2015 TRANSFER PETITION (CIVIL) NO.391 OF 2015 WRIT PETITION (CIVIL) NO.108 OF 2015 WRIT PETITION (CIVIL) NO.124 OF 2015 WRIT PETITION (CIVIL) NO.14 OF 2015 WRIT PETITION (CIVIL) NO.18 OF 2015 WRIT PETITION (CIVIL) NO.24 OF 2015 AND WRIT PETITION (CIVIL) NO.209 OF 2015 O R D E RChelameswar, J.1. Very important and far reaching questions fall for the considerationof this Court in this batch of matters. The constitutional validity of theConstitution (Ninety-ninth Amendment) Act, 2014 and the National JudicialAppointments Commission Act, 2014 are under challenge.2. When these matters were listed for preliminary hearing on 21.04.2015,an objection was raised by Shri Fali S. Nariman, learned senior counselappearing for one of the petitioners, that it is inappropriate for JusticeJagdish Singh Khehar to participate in the proceedings as the PresidingJudge of this Bench. The objection is predicated on the facts : Being thethird senior most Puisne Judge of this Court, Justice Khehar is a member ofthe collegium propounded under the Second Judges case[100] exercising“significant constitutional power” in the matter of selection of Judges, ofthis Court as well as High Courts of this country; by virtue of theimpugned legislation, until he attains the position of being the thirdsenior most Judge of this Court, Justice Khehar would cease to enjoy suchpower; and therefore, there is a possibility of him not being impartial.3. When the objection was raised, various counsel appearing on behalf ofeither side expressed different viewpoints regarding the appropriateness ofparticipation of Justice Khehar in these proceedings. We, therefore,called upon learned counsel appearing in this matter to precisely statetheir respective points of view on the question and assist the Court inidentifying principles of law which are relevant to arrive at the rightanswer to the objection raised by Shri Fali S. Nariman.4. The matter was listed again on 22.04.2015 on which date Shri Narimanfiled a brief written statement[101] indicating reasons which according tohim make it inappropriate for Justice Khehar to preside over the presentBench.5. On the other hand, Shri Arvind P. Datar, learned senior counselappearing for one of the petitioners made elaborate submissions explainingthe legal principles which require a Judge to recuse himself from hearing aparticular case and submitted that in the light of settled principles oflaw in this regard there is neither impropriety in Justice Khehar hearingthese matters nor any need for him to do so.6. Shri Mukul Rohatgi, learned Attorney General very vehemently opposedthe suggestion of Shri Nariman and submitted that there is nothing in lawwhich demands the recusal of Justice Khehar nor has the Union of India anyobjection to Justice Khehar hearing these batch of matters.7. Shri Harish N. Salve and Shri K.K. Venugopal, learned senior counselwho proposed to appear on behalf of different States also supported thestand of the learned Attorney General and made independent submissions insupport of the conclusion.8. After an elaborate hearing of the matter, we came to the unanimousconclusion that there is no principle of law which warrants JusticeKhehar’s recusal from the proceedings. We recorded the conclusion of theBench in the proceedings dated 22.04.2015 and indicated that because ofpaucity of time, the reasons for the conclusion would follow later[102].9. At the outset, we must record that each of the learned counsel whoobjected to the participation of Justice Khehar in these proceedingsanchored this objection on distinct propositions of law. While ShriNariman put it on the ground of inappropriateness, Shri Santosh Paulinvoked the principle of bias, on the ground of him having conflictinginterests - one in his capacity as member of the Collegium and the other inhis capacity as a Judge to examine the constitutional validity of theprovisions which seek to displace the Collegium system. In substance,some of the petitioners are of the opinion that Justice Khehar shouldrecuse[103].10. It is one of the settled principles of a civilised legal system thata Judge is required to be impartial. It is said that the hallmark of ademocracy is the existence of an impartial Judge.11. It all started with a latin maxim Nemo Judex in Re Sua which meansliterally – that no man shall be a judge in his own cause. There isanother rule which requires a Judge to be impartial. The theoreticalbasis is explained by Thomas Hobbes in his Eleventh Law of Nature. He said“If a man be trusted to judge between man and man, it is a precept of thelaw of Nature that he deal equally between them. For without that, thecontroversies of men cannot be determined but by war. He therefore, saidthat is partial in judgment doth what in him lies, to deter men from theuse of judges and arbitrators; and consequently, against the fundamentallaw of Nature, is the cause of war.”12. Grant Hammond, a former Judge of the Court of Appeal of New Zealandand an academician, in his book titled “Judicial Recusal”[104] traced outprinciples on the law of recusal as developed in England in the followingwords :-“The central feature of the early English common law on recusal was bothsimple and highly constrained: a judge could only be disqualified for adirect pecuniary interest. What would today be termed ‘bias’, which iseasily the most controversial ground for disqualification, was entirelyrejected as a ground for recusal of judges, although it was not completelydismissed in relation to jurors.This was in marked contrast to the relatively sophisticated canon law,which provided for recusal if a judge was suspected of partiality becauseof consanguinity, affinity, friendship or enmity with a party, or becauseof his subordinate status towards a party or because he was or had been aparty’s advocate.”He also pointed out that in contrast in the United States of America, thesubject is covered by legislation.13. Dimes v. Proprietors of Grand Junction Canal, (1852) 10 ER 301, isone of the earliest cases where the question of disqualification of a Judgewas considered. The ground was that he had some pecuniary interest in thematter. We are not concerned with the details of the dispute between theparties to the case. Lord Chancellor Cottenham heard the appeal against anorder of the Vice-Chancellor and confirmed the order. The order went infavour of the defendant company. A year later, Dimes discovered that LordChancellor Cottenham had shares in the defendant company. He petitionedthe Queen for her intervention. The litigation had a long and chequeredhistory, the details of which are not material for us. Eventually, thematter reached the House of Lords. The House dismissed the appeal of Dimeson the ground that setting aside of the order of the Lord Chancellor wouldstill leave the order of the Vice-Chancellor intact as Lord Chancellor hadmerely affirmed the order of the Vice-Chancellor. However, the House ofLords held that participation of Lord Cottenham in the adjudicatory processwas not justified. Though Lord Campbell observed:“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 ofthe last importance that the maxim that no man is to be a judge in his owncause be held sacred. And that is not to be confined to a cause in whichhe is a party, but applies to a cause in which he has an interest …. Thiswill be a lesson to all inferior tribunals to take care not only that intheir decrees they are not influenced by their personal interest, but toavoid the appearance of labouring under such an influence.”14. Summing up the principle laid down by the abovementioned case,Hammond observed as follows:“The ‘no-pecuniary interest’ principle as expressed in Dimes requires ajudge to be automatically disqualified when there is neither actual biasnor even an apprehension of bias on the part of that judge. Thefundamental philosophical underpinning of Dimes is therefore predicated ona 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 an offence of conspiracy to rob andwas sentenced to imprisonment for fifteen years by the Trial Court. It wasa trial by Jury. After the conviction was announced, it was brought to thenotice of the Trial Court that one of the jurors was a neighbour of theconvict. The convict appealed to the Court of Appeal unsuccessfully. Oneof the grounds on which the conviction was challenged was that, in view ofthe fact that one of the jurors being a neighbour of the convict presenteda possibility of bias on her part and therefore the conviction isunsustainable. The Court of Appeal noticed that there are two lines ofauthority propounding two different tests for determining disqualificationof a Judge on the ground of bias:(1) “real danger” test; and(2) “reasonable suspicion” test.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 which are“not only large in number but bewildering in their effect”. Afteranalyzing the judgment in Dimes (supra), Lord Goff held:“In such a case, therefore, not only is it irrelevant that there was infact no bias on the part of the tribunal, but there is no question ofinvestigating, from an objective point of view, whether there was any reallikelihood of bias, or any reasonable suspicion of bias, on the facts ofthe particular case. The nature of the interest is such that publicconfidence in the administration of justice requires that the decisionshould not stand.”In other words, where a Judge has a pecuniary interest, no further inquiryas to whether there was a “real danger” or “reasonable suspicion” of biasis required to be undertaken. But in other cases, such an inquiry isrequired and the relevant test is the “real danger” test.“But in other cases, the inquiry is directed to the question whether therewas such a degree of possibility of bias on the part of the tribunal thatthe court will not allow the decision to stand. Such a question may arisein a wide variety of circumstances. These include …. cases in which themember of the tribunal has an interest in the outcome of the proceedings,which falls short of a direct pecuniary interest. Such interests may varywidely in their nature, in their effect, and in their relevance to thesubject matter of the proceedings; and there is no rule …. that thepossession of such an interest automatically disqualifies the member of thetribunal from sitting. Each case falls to be considered on its own facts.“18. The learned Judge examined various important cases on the subject andfinally concluded:“Finally, for the avoidance of doubt, I prefer to state the test in termsof real danger rather than real likelihood, to ensure that the court isthinking in terms of possibility rather than probability of bias.Accordingly, having ascertained the relevant circumstances, the courtshould ask itself whether, having regard to those circumstances, there wasa real danger of bias on the part of the relevant member of the tribunal inquestion, in the sense that he might unfairly regard (or have unfairlyregarded) with favour, or disfavour, the case of a party to the issue underconsideration by him.”19. Lord Woolf agreed with Lord Goff in his separate judgment. He held:“There is only one established special category and that exists where thetribunal has a pecuniary or proprietary interest in the subject matter ofthe proceedings as in Dimes v. Proprietors of Grand Junction Canal, 3 H.L.Case 759. The courts should hesitate long before creating any otherspecial category since this will immediately create uncertainty as to whatare the parameters of that category and what is the test to be applied inthe case of that category. The real danger test is quite capable ofproducing the right answer and ensure that the purity of justice ismaintained across the range of situations where bias may exist.”20. In substance, the Court held that in cases where the Judge has apecuniary interest in the outcome of the proceedings, his disqualificationis automatic. No further enquiry whether such an interest lead to a “realdanger” or gave rise to a “reasonable suspicion” is necessary. In casesof other interest, the test to determine whether the Judge is disqualifiedto hear the case is the “real danger” test.21. The Pinochet[105] case added one more category to the cases ofautomatic disqualification for a judge. Pinochet, a former Chileandictator, was sought to be arrested and extradited from England for hisconduct during his incumbency in office. The issue was whether Pinochet wasentitled to immunity from such arrest or extradition. AmnestyInternational, a charitable organisation, participated in the saidproceedings with the leave of the Court. The House of Lords held thatPinochet did not enjoy any such immunity. Subsequently, it came to lightthat Lord Hoffman, one of the members of the Board which heard the Pinochetcase, was a Director and Chairman of a company (known as A.I.C.L.) whichwas closely linked with Amnesty International. An application was made tothe House of Lords to set aside the earlier judgment on the ground of biason the part of Lord Hoffman.22. The House of Lords examined the following questions;Whether the connection of Lord Hoffman with Amnesty International requiredhim to be automatic disqualified?Whether an enquiry into the question whether cause of Lord Hoffman’sconnection with Amnesty International posed a real danger or caused areasonable apprehension that his judgment is biased – is necessary? Did it make any difference that Lord Hoffman was only a member of acompany associated with Amnesty International which was in fact interestedin securing the extradition of Senator Pinochet?23. Lord Wilkinson summarised the principles on which a Judge isdisqualified to hear a case. As per Lord Wilkinson -“The fundamental principle is that a man may not be a judge in his owncause. This principle, as developed by the courts, has two very similarbut not identical implications. First it may be applied literally: if ajudge is in fact a party to the litigation or has a financial orproprietary interest in its outcome then he is indeed sitting as a judge inhis own cause. In that case, the mere fact that he is a party to theaction or has a financial or proprietary interest in its outcome issufficient to cause his automatic disqualification. The secondapplication of the principle is where a judge is not a party to the suitand does not have a financial interest in its outcome, but in some otherway his conduct or behaviour may give rise to a suspicion that he is notimpartial, for example because of his friendship with a party. Thissecond type of case is not strictly speaking an application of theprinciple that a man must not be judge in his own cause, since the judgewill not normally be himself benefiting, but providing a benefit foranother 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 case, once it is shown that the judge is himself a party to thecause, or has a relevant interest in its subject matter, he is disqualifiedwithout any investigation into whether there was a likelihood or suspicionof bias. The mere fact of his interest is sufficient to disqualify himunless he has made sufficient disclosure.And framed the question;“….the question then arises whether, in non-financial litigation, anythingother than a financial or proprietary interest in the outcome is sufficientautomatically to disqualify a man from sitting as judge in the cause.”He opined that although the earlier cases have “all dealt with automaticdisqualification on the grounds of pecuniary interest, there is no goodreason in principle for so limiting automatic disqualification.”24. Lord Wilkinson concluded that Amnesty International and its associatecompany known as A.I.C.L., had a non-pecuniary interest established thatSenator Pinochet was not immune from the process of extradition. Heconcluded that, “….the matter at issue does not relate to money or economicadvantage but is concerned with the promotion of the cause, the rationaledisqualifying a judge applies just as much if the judge’s decision willlead to the promotion of a cause in which the judge is involved togetherwith one of the parties”25. After so concluding, dealing with the last question, whether the factthat Lord Hoffman was only a member of A.I.C.L. but not a member of AmnestyInternational made any difference to the principle, Lord Wilkinson opinedthat even though a judge may not have financial interest in the outcome ofa case, but in some other way his conduct or behaviour may give rise to asuspicion that he is not impartial and held that if the absoluteimpartiality of the judiciary is to be maintained, there must be a rulewhich automatically disqualifies a judge who is involved, whetherpersonally or as a director of a company, in promoting the same causes inthe same organisation as is a party to the suit. There is no room for finedistinctions. This aspect of the matter was considered in P.D. Dinakarancase[106].26. From the above decisions, in our opinion, the following principlesemerge;If a Judge has a financial interest in the outcome of a case, he isautomatically disqualified from hearing the case.In cases where the interest of the Judge in the case is other thanfinancial, then the disqualification is not automatic but an enquiry isrequired whether the existence of such an interest disqualifies the Judgetested in the light of either on the principle of “real danger” or“reasonable apprehension” of bias.The Pinochet case added a new category i.e that the Judge is automaticallydisqualified from hearing a case where the Judge is interested in a causewhich is being promoted by one of the parties to the case.27. It is nobody’s case that, in the case at hand, Justice Khehar had anypecuniary interest or any other interest falling under the second of theabove-mentioned categories. By the very nature of the case, no suchinterest can arise at all.28. The question is whether the principle of law laid down in Pinochetcase is attracted. In other words, whether Justice Khehar can be said tobe sharing any interest which one of the parties is promoting. All theparties to these proceedings claim to be promoting the cause of ensuringthe existence of an impartial and independent judiciary. The onlydifference of opinion between the parties is regarding the process by whichsuch a result is to be achieved. Therefore, it cannot be said thatJustice Khehar shares any interest which any one of the parties to theproceeding is seeking to promote.29. The implication of Shri Nariman’s submission is that Justice Kheharwould be pre-determined to hold the impugned legislation to be invalid. Wefail to understand the stand of the petitioners. If such apprehension ofthe petitioners comes true, the beneficiaries would be the petitionersonly. The grievance, if any, on this ground should be on the part of therespondents.30. The learned Attorney General appearing for the Union of India made anemphatic statement that the Union of India has no objection for JusticeKhehar hearing the matter as a presiding Judge of the Bench.31. No precedent has been brought to our notice, where courts ruled atthe instance of the beneficiary of bias on the part of the adjudicator,that a judgment or an administrative decision is either voidable or void onthe ground of bias. On the other hand, it is a well established principleof law that an objection based on bias of the adjudicator can be waived.Courts generally did not entertain such objection raised belatedly by theaggrieved party.“The right to object to a disqualified adjudicator may be waived, and thismay be so even where the disqualification is statutory.[107] The courtnormally insists that the objection shall be taken as soon as the partyprejudiced knows the facts which entitle him to object. If, after he orhis advisers know of the disqualification, they let the proceedingscontinue without protest, they are held to have waived their objection andthe determination cannot be challenged.”[108]In our opinion, the implication of the above principle is that only a partywho has suffered or likely to suffer an adverse adjudication because of thepossibility of bias on the part of the adjudicator can raise the objection.32. The significant power as described by Shri Nariman does not inhereonly to the members of the Collegium, but inheres in every Judge of thisCourt who might be called upon to express his opinion regarding theproposals of various appointments of the High Court Judges, Chief Justicesor Judges of this Court, while the members of the Collegium are required toexercise such “significant power” with respect to each and everyappointment of the above-mentioned categories, the other Judges of thisCourt are required to exercise such “significant power”, at least withrespect to the appointments to or from the High Court with which they wereearlier associated with either as judges or Chief Justices. The argument ofShri Nariman, if accepted would render all the Judges of this Courtdisqualified from hearing the present controversy. A result not legallypermitted by the “doctrine of necessity”.33. For the above-mentioned reasons, we reject the submission thatJustice Khehar should recuse from the proceedings. ..….………………………….J. (J. Chelameswar) ..….………………………….J. (Adarsh Kumar Goel)New Delhi;October 16, 2015. Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 13 OF 2015Supreme Court Advocates-on-RecordAssociation & Anr. Petitioners VersusUnion of India Respondent WITH WRIT PETITION (CIVIL) NO.23 OF 2015 WRIT PETITION (CIVIL) NO.70 OF 2015 WRIT PETITION (CIVIL) NO.83 OF 2015 TRANSFER PETITION (CIVIL) NO.391 OF 2015 WRIT PETITION (CIVIL) NO.108 OF 2015 WRIT PETITION (CIVIL) NO.124 OF 2015 WRIT PETITION (CIVIL) NO.14 OF 2015 WRIT PETITION (CIVIL) NO.18 OF 2015 WRIT PETITION (CIVIL) NO.24 OF 2015 WRIT PETITION (CIVIL) NO.209 OF 2015 WRIT PETITION (CIVIL) NO.309 OF 2015 WRIT PETITION (CIVIL) NO.310 OF 2015 WRIT PETITION (CIVIL) NO.323 OF 2015 TRANSFER PETITION (CIVIL) NO.971 OF 2015 AND WRIT PETITION (CIVIL) NO.341 OF 2015 J U D G M E N TChelameswar, J.1. We the members of the judiciary exult and frolic in our emancipationfrom the other two organs of the State. But have we developed an alternateconstitutional morality to emancipate us from the theory of checks andbalances, robust enough to keep us in control from abusing suchindependence? Have we acquired independence greater than our intelligencematurity and nature could digest? Have we really outgrown the malady ofdependence or merely transferred it from the political to judicialhierarchy? Are we nearing such ethical and constitutional disorder thatfrightened civil society runs back to Mother Nature or some other lesswholesome authority to discipline us? Has all the independence acquired bythe judicial branch since 6th October, 1993 been a myth – a euphemism fornepotism enabling inter alia promotion of mediocrity or even lessoccasionally – are questions at the heart of the debate in this batch ofcases by which the petitioners question the validity of the Constitution(99th Amendment) Act, 2014 and The National Judicial AppointmentsCommission 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 relevantprovisions of the Constitution of India, as they stood prior to and afterthe impugned AMENDMENT, is required.Prior to the AMENDMENTArticle 124. Establishment and constitution of Supreme Court(1) There shall be a Supreme Court of India constituting of a Chief Justiceof India and, until Parliament by law prescribes a larger number, of notmore than thirty other Judges.(2) Every Judge of the Supreme Court shall be appointed by the President bywarrant under his hand and seal after consultation with such of the Judgesof the Supreme Court and of the High Courts in the States as the Presidentmay deem necessary for the purpose and shall hold office until he attainsthe age of sixty five years:Provided that in the case of appointment of a Judge other than the chiefJustice, the chief Justice of India shall always be consulted: xxxx xxxxx xxxxx xxxxxArticle 217. Appointment and conditions of the office of a Judge of a HighCourt(1) Every Judge of a High Court shall be appointed by the President bywarrant under his hand and seal after consultation with the Chief Justiceof India, the Governor of the State, and, in the case of appointment of aJudge other than the chief Justice, the chief Justice of the High court,…………….. xxxx xxxxx xxxxx xxxxx3. The pre AMENDMENT text stipulated that the President of India shallappoint Judges of this Court and High Courts of this country (hereinafterthe CONSTITUTIONAL COURTS) in consultation with the Chief Justice of India(hereinafter CJI) and other constitutional functionaries indicated inArticle 124 and 217. In practice, the appointment process for filling upvacancies was being initiated by the Chief Justice of the concerned HighCourt or the CJI, as the case may be. Such a procedure was stipulated by amemorandum of the Government of India[109].After the AMENDMENT4. Articles 124 and 217 insofar as they are relevant for our purposeread“Article 124 xxxxx xxxxx xxxxEvery Judge of the Supreme Court shall be appointed by the President bywarrant under his hand and seal on the recommendation of the NationalJudicial Appointments Commission referred to in article 124A and shall holdoffice until he attains the age of sixty-five years.Article 217 . Appointment and conditions of the office of a Judge of aHigh Court – (1) Every Judge of a High Court shall be appointed by thePresident by warrant under his hand and seal on the recommendation of theNational Judicial Appointments Commission referred to in article 124A, andshall hold office, in the case of an additional or acting Judge, asprovided in article 224, and in any other case, until he attains the age ofsixty-two years.”5. The AMENDMENT inserted Articles 124A, 124B and 124C. Theseprovisions read:“124A (1) There shall be a Commission to be known as the National JudicialAppointments Commission consisting of the following, namely:-the Chief Justice of India, Chairperson, ex officio;two other senior Judges of the Supreme Court next to the Chief Justice ofIndia – Members, ex officio; the Union Minister in charge of Law and Justice – Member, ex officio two eminent persons to be nominated by the committee consisting of thePrime Minister, the Chief Justice of India and the Leader of Opposition inthe 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 thePeople – Members:Provided that one of the eminent person shall be nominated from amongst thepersons belonging to the Scheduled Castes, the Scheduled Tribes, OtherBackward Classes, Minorities or Women;Provided further that an eminent person shall be nominated for a period ofthree years and shall not be eligible for renomination.(2) No act or proceedings of the National Judicial AppointmentsCommission shall be questioned or be invalidated merely on the ground ofthe existence of any vacancy or defect in the constitution of theCommission.124B. It shall be the duty of the National Judicial AppointmentsCommission to –(a) recommend persons for appointment as Chief Justice of India, Judges ofthe Supreme Court, Chief Justices of High Courts and other Judges of HighCourts;(b) recommend transfer of Chief Justices and other Judges of High Courtsfrom one High Court to any other High Court; and(c) ensure that the person recommended is of ability and integrity.124C. Parliament may, by law, regulate the procedure for the appointment ofChief Justice of India and other Judges of the Supreme Court and ChiefJustices and other Judges of High Courts and empower the Commission to laydown by regulations the procedure for the discharge of its functions, themanner of selection of persons for appointment and such other matters asmay be considered necessary by it.Consequent amendments to other Articles are also made, details are notnecessary.6. The crux of the AMENDMENT is that the institutional mechanism bywhich selection and appointment process of the Judges of CONSTITUTIONALCOURTS was undertaken came to be substituted by a new body called theNational Judicial Appointments Commission (hereinafter referred to asNJAC). 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 LawMinister are also ex-officio members, apart from two eminent persons to benominated by a Committee contemplated in Article 124A (1)(d).7. Under Article 124B, the NJAC is charged with the duty of recommendingpersons of ability and integrity for appointment as Chief Justice of India,Judges of the Supreme Court, Chief Justices of High Courts and other Judgesof High Courts and of recommending transfer of Chief Justices and otherJudges of High Courts from one High Court to any other High Court.8. Article 124C authorizes Parliament to regulate by law, the procedurefor the appointment of Chief Justice and other Judges of the Supreme Courtetc. It also empowers the NJAC to make regulations laying down theprocedure for the discharge of its functions.9. Pursuant to the mandate of Article 124C, Parliament made the ACT.For the present, suffice it to note that though the amended text of theConstitution does not so provide, Section 6(6)[110] of the ACT providesthat the NJAC shall not recommend a person for appointment, if any twomembers of the Commission do not agree for such recommendation.10. The AMENDMENT made far reaching changes in the scheme of theConstitution, insofar as it relates to the selection process of Judges ofthe CONSTITUTIONAL COURTS. The President is no more obliged for makingappointments to CONSTITUTIONAL COURTS to consult the CJI, the ChiefJustices of High Courts and Governors of the States but is obliged toconsult the NJAC.11. The challenge to the AMENDMENT is principally on the ground that suchsubstitution undermines the independence of the judiciary. It is contendedthat independence of judiciary is a part of the basic structure of theConstitution and the AMENDMENT is subversive of such independence. Hence,it is beyond the competence of the Parliament in view of the law declaredby this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. Stateof Kerala & Another, (1973) 4 SCC 225 (hereinafter referred to as Bharaticase).12. Fortunately there is no difference of opinion between theparties to this lis regarding the proposition that existence of anindependent judiciary is an essential requisite of a democratic Republic.Nor is there any difference of opinion regarding the proposition that anindependent judiciary is one of the basic features of the Constitution ofIndia.13. The only issue is what is the permissible procedure or mechanismwhich would ensure establishment of an independent judiciary. Theresolution of the issue requires examination of the following questions;Whether the mechanism established by the Constituent Assembly for theappointment of Judges of the CONSTITUTIONAL COURTS is the only permissiblemode for securing an independent judiciary or can there be alternatives?If there can be alternatives, whether the mechanism (NJAC) sought to beestablished by the AMENDMENT transgresses the boundaries of the constituentpower?14. In the last few weeks, after the conclusion of hearing in this batchof matters, I heard many a person – say that the whole country is awaitingthe judgment. Some even said thewhole world is awaiting. There is certainly an element of hyperbole inthose statements. Even those who are really waiting, I am sure, haveconcerns which vary from person to person. Inquisitiveness regarding thejurisprudential and political correctness, impact on the future of thejudiciary, assessment of political and personal fortunes etc. could be someof those concerns. I am only reminded of Justice Fazal Ali’s view in S.P.Gupta v. Union of India & Ors.[111] AIR 1982 SC 149 (for short S.P. Guptacase) that the issue is irrelevant for the masses and litigants. They onlywant that their cases should be decided quickly by judges who generateconfidence. The question is – what is the formula by which judges - whocan decide cases quickly and also generate confidence in the masses andlitigants - be produced. What are the qualities which make a Judge decidecases quickly and also generate confidence?15. Deep learning in law, incisive and alert mind to quickly grasp thecontroversy, energy and commitment to resolve the problem are criticalelements which make a Judge efficient and enable him to decide casesquickly. However, every Judge who has all the above-mentioned qualitiesneed not automatically be a Judge who can generate confidence in thelitigants unless the litigant believes that the Judge is absolutely fairand impartial.16. Belief regarding the impartiality of a Judge depends upon the factthat Judge shares no relationship with either of the parties to thelitigation. Relationship in the context could be personal, financial,political or even philosophical etc. When one of the parties to thelitigation is either the State or one of its instrumentalities, necessarilythere is a relationship. Because, it is the State which establishes thejudiciary. Funds required to run the judicial system including thesalaries and allowances of Judges necessarily flow from the Stateexchequer.17. Democratic societies believe that the State not only has authority togovern but also certain legally enforceable obligations to its subjects.The authority of judicial fora to command the State to discharge itsobligations flows from the existence of such enforceable obligations. Togenerate confidence that the judicial fora decide controversies brought totheir consideration impartially, they are required to be independent.Notwithstanding the fact that they are established and organized by theState as a part of its larger obligation to govern.18. Judiciary is the watchdog of the Constitution and its fundamentalvalues. It is also said to be the lifeblood of constitutionalism indemocratic societies. At least since Marbury v. Madison[112] the authorityof courts functioning under a written democratic constitution takes withinits sweep the power to declare unconstitutional even laws made by thelegislature. It is a formidable authority necessarily implying an awesomeresponsibility. A wise exercise of such power requires an efficient andindependent Judge (Judicial System). In the context, wisdom is to perceivewith precision whether the legislative action struck the constitutionallydemanded balance between the larger interests of society and liberties ofsubjects.19. Independence of such fora rests on two integers - independence of theinstitution and of individuals who man the institution. “(Judicial independence) connotes not merely a state of mind or attitudein the actual exercise of judicial functions, but a status or relationshipto others, particularly to the executive branch of government, that restson objective conditions or guarantees. * * *It is generally agreed that judicial independence involves both individualand institutional relationships: the individual independence of a judge, asreflected in such matters as security of tenure, and the institutionalindependence of the court or tribunal over which he or she presides, asreflected in its institutional or administrative relationships to theexecutive and legislative branches of Government.”[113]20. It is not really necessary for me to trace the entire history ofdevelopment of the concept independence of the judiciary in democraticsocieties. It can be said without any fear of contradiction that allmodern democratic societies strive to establish an independent judiciary.The following are among the most essential safeguards to ensure theindependence of the judiciary – Certainty of tenure, protection fromremoval from office except by a stringent process in the cases of Judgesfound unfit to continue as members of the judiciary, protection of salariesand other privileges from interference by the executive and thelegislature, immunity from scrutiny either by the Executive or theLegislature of the conduct of Judges with respect to the discharge ofjudicial functions except in cases of alleged misbehaviour, immunity fromcivil and criminal liability for acts committed in discharge of duties,protection against criticism to a great degree. Such safeguards areprovided with a fond hope that so protected, a Judge would be absolutelyindependent and fearless in discharge of his duties.21. Democratic societies by and large recognize the necessity of theabovementioned protections for the judiciary and its members. Suchprotections are either entrenched in the Constitution or provided bylegislation. A brief survey of the constitutions of a few democraticRepublics to demonstrate the point;22. Prior to 1701, the British Crown had the power to dismiss the judgesat will. The Act of Settlement, 1701[114] removed from the Crown the powerto dismiss Judges of the Superior Courts at will. It enabled the Monarchto remove Judges from office upon address of both Houses of Parliament.Interestingly till 1720 Judges ceased to hold office on the death of theMonarch who issued Commissions. A 1720 enactment provided that Judgesshould continue in office for six months after demise of the monarch. In1761 a statute provided that commissions of the Judges shall remain in fullforce and effect during good behaviour notwithstanding the demise of HisMajesty or of any of his heirs and successors – thus granting a lifetenure. According to Blackstone,“(I) In this distinct and separate existence of the judicial power in apeculiar body of men, nominated indeed, but not removable at pleasure bythe Crown, consists one main preservative of the public liberty whichcannot subsist long in any State unless the administration of commonjustice be in some degree separated both from the legislative and from theexecutive power.”[115]23. Article III (1)[116] of the American Constitution stipulates thatJudges of the Supreme Court and also the inferior Courts established byCongress shall hold their office during good behavior and they cannot beremoved except through the process of impeachment[117]. It also stipulatesthat they shall receive a compensation for their services which shall notbe diminished during their continuance in office.24. Section 72[118] of the Constitution of Australia stipulates thatJudges of the High Court and other Courts created by Parliament shall beappointed for a term expiring upon the Judge attaining the age of seventyyears and shall not be removed except on an address from both Houses of theParliament in the same session praying for removal of the Judge on theground of proved misbehaviour or incapacity. It also stipulates thatremuneration of Judges shall not be diminished during their continuance inoffice.25. When India became a Sovereign Republic, we did not adopt the BritishConstitutional system in its entirety - though India had been a part of theBritish Empire Ever since, the British Crown started assertingsovereignty over the territory of India, the British Parliament made Actswhich provided legal framework for the governance of India from time totime known as Government of India Acts. The last of which was of 1935.Canada[119] and Australia[120] which were also part of the British Empirecontinue to be governed by Constitutions enacted by the British Parliament. We framed a new Constitution through a Constituent Assembly.26. Members of the Constituent Assembly in general and the DraftingCommittee in particular were men and women of great political experience,deep insight into human nature, and a profound comprehension of the complexproblems of Indian Society. They spearheaded the freedom movement. Theywere well versed in history, law, political sciences and democraticpractices. They examined the various constitutional systems in vogue indifferent democratic societies inter alia American, Australian, British andCanadian and adopted different features from different constitutionalsystems after suitably modifying them to the needs of Indian society.27. Framers of the Constitution had the advantage of an intimateknowledge of the functioning of the Federal Court, the High Courts and theSubordinate Courts of this country under the Government of India Act,1935[121]. Though there several distinctions in the architecture of thejudicial systems under each of the above-mentioned regimes, one featurecommon to all of them is that appointment of Judges is by the Executive.Such constitutional design is essentially a legacy of the Britishconstitutional system where the Executive had (till 2006) the absoluteauthority to appoint Judges.28. Judges, in any country, are expected to maintain a higher degree ofrectitude compared to the other public office holders. The expectationwith respect to the Indian Judiciary is no different. The Constitutiontherefore provides extraordinary safeguards and privileges for Judges ofCONSTITUTIONAL COURTS to insulate them substantially from the possibilityof interference by the political-executive as well as elected majorities ofthe people’s representatives[122].I. a Judge’s appointment and continuance in office is not subject to anyelection process;II. the termination of judicial appointment (during subsistence of thetenure) is made virtually impossible.The Constitution prescribes that a Judge of CONSTITUTIONAL COURT shall notbe removed from office except by following an elaborate procedure ofimpeachment prescribed under Article 124(4)[123] which is applicable evenfor High Court Judges by virtue of Article 217(1)(b)[124].III. The salaries, privileges, allowances and rights in respect of leaveof absence and pension of Judges of the CONSTITUTIONAL COURTS may bedetermined by or under law made by Parliament. But, they cannot be variedto the disadvantage of the Judge[125] after the appointment.IV. The salary, allowances and pension payable to Judges ofCONSTITUTIONAL COURTS are charged on the Consolidated Fund of India or theConsolidated Fund of the concerned State[126]. Further under Articles113(1)[127] and 203(1)[128], the expenditure charged upon the ConsolidatedFund of India or the State as the case may be shall not be submitted tovote.29. Unscrupulous litigants constantly keep searching for ways toinfluence judges. Attitude of the State or its instrumentalities (largestlitigants in modern democracies) would be no different[129]. Suchtemptation coupled with the fact that the State has the legal authority tomake laws including the laws that determine the process of selection ofjudges and their service conditions can pose the greatest threat to theindependence of the judiciary if such law making authority is without anylimitations. Therefore, extraordinary safeguards to protect the tenure andservice conditions of the members of the judiciary are provided in theConstitution; with a fond hope that men and women, who hold judicialoffices so protected will be able to discharge their functions withabsolute independence and efficiency.30. However, any amount of legal and institutional protection will notsupply the necessary independence and efficiency to individuals ifinherently they are lacking in them. Where every aspect of judge’s serviceis protected by the Constitution, the only way governments can think ofgaining some control over the judiciary is by making an effort to appointpersons who are inherently pliable. There are various factors which make aJudge pliable. Some of the factors are - individual ambition, loyalty-based on political, religious or sectarian considerations, incompetence andlack of integrity. Any one of the above-mentioned factors is sufficientto make a Judge pliable. A combination of more than one of them makes aJudge more vulnerable. Combination of incompetence and ambition is theworst. The only way an ambitious incompetent person can ascend a highpublic office is by cringing before men in power. It is said that men inpower promote the least of mankind with a fond hope that those who lack anyaccomplishment would be grateful to their benefactor. History is repletewith 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 appointment ofJudges, such aberrations are avoided, democracies all over the world haveadopted different strategies for choosing the ‘right people’ as Judges.The procedures adopted for making such a choice are widely different. Todemonstrate the same, it is useful to examine the judicial systems of someof the English speaking countries.32. The Constitution of the United States of America empowers thePresident to appoint Judges of the Supreme Court[130] with the advice andconsent of the Senate[131]. Insofar as the appointment of the Judges ofthe highest court in United States is concerned, neither the Chief Justiceof America nor the Supreme Court is assigned any role. The Head of theExecutive is conferred with exclusive power to make the choice of theJudges of the highest court subject to the advice and consent of theSenate. A check on the possibility of arbitrary exercise of the power bythe President.33. The Canadian legal system depicts another interesting model. TheSupreme Court of Canada is not established by the Constitution i.e. theConstitution Act of 1867. Chapter VII of the Act deals with thejudicature. Section 101[132] only authorises the Parliament of Canada toprovide for the constitution, maintenance and organisation of a generalcourt of appeal of Canada and for the establishment of any additionalcourts for the better administration of the laws of Canada. It is inexercise of such power, the Parliament of Canada in 1875 by a statute, (theSupreme and Exchequer Courts Act, 1875[133]) established the Supreme Courtof Canada. The Supreme Court of Canada’s existence, its composition andjurisdiction depend upon an ordinary federal statute and these underwentmany changes over time. In theory, the Court could be abolished byunilateral action of the Federal Parliament. Judges of the Supreme Courtare appointed by the Governor in Council (the federal cabinet) in exerciseof the power conferred under Section 2 of the Supreme Court Act (supra).There is no requirement in Canada that such appointments be ratified by theSenate or the House of Commons.34. In Australia, the highest Federal Court is called the High Court ofAustralia established under Section 71[134] of the Australian Constitution. It consists of a Chief Justice and other Judges not less than two as theParliament prescribes. Judges of the High Court are appointed by theGovernor General in Council.35. Neither Canada nor Australia provide the Chief Justice or Judges ofthe highest court any role in the choice of Judges of the ConstitutionalCourts. In Australia, unlike the American model, there is no provision inthe Constitution requiring consent of the federal legislature for suchappointments.36. England is unique in these matters. It has no written constitutionas understood in India, US, Canada and Australia. Till 2006, appointmentsof Judges were made exclusively by the Lord Chancellor of the Exchequer whois a member of the Cabinet.37. The makers of the Indian Constitution after a study of the variousmodels mentioned above among others, provided that in making appointment ofthe Judges of the CONSTITUTIONAL COURTS, the CJI and the Chief Justices ofthe concerned High Court are required to be consulted by the President whois the appointing authority of Judges of these Courts. The text of theConstitution clearly excluded any role either for the Parliament or for theState Legislatures.38. Dr. Ambedkar explained the scheme of the Constitution insofar as itpertains to appointment of Judges of the CONSTITUTIONAL COURTS and thecompeting concerns which weighed with the drafting committee for adoptingsuch model:“There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which thismatter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other offices of the State shall be made only with the concurrence of theSenate in the United States. It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article,therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of makingappointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.With regard to the question of the concurrence of the ChiefJustice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority tothe Chief Justice which we are not prepared to vest in thePresident or the Government of the day. I therefore, think that thatis also a dangerous proposition[135].” (emphasis supplied)The following are salient features of Dr. Ambedkar’s statement:1. That the judiciary must be both independent and competent.2. It is dangerous to confer an unchecked power of choosing orappointing Judges on the executive. The concurrence of the legislature isalso not desirable as it leads to a possibility of appointments beinginfluenced by political considerations or under political pressure.3. (a) Requiring concurrence of the Chief Justice is also a dangerousproposition. (b) That, the Chief Justice is also a human being and is a man withall the failings, sentiments and prejudices which common people aresupposed to have[136]. (c) Providing for the concurrence of CJI would be conferring apower of veto on the CJI which in substance means transferring the power ofappointment to the CJI without any limitation, which the ConstituentAssembly thought it imprudent to confer on the President.4. That, the Drafting Committee thought the arrangements, specifiedunder Articles 124 and 217 (as they stood prior to the AMENDMENT), wouldensure requisite independence and competence of the judiciary and sucharrangements would be sufficient for the “moment”.39. Till 1977, the true meaning and amplitude of the expressionconsultation occurring in Articles 124 and 217 of the Constitution of Indiatroubled neither the executive nor the judiciary. There had always been aconsultation between the constitutional functionaries. Appointments weremade without much controversy. This Court in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (hereinafterreferred to as the Second Judges case) recorded so[137].40. Article 222[138] authorises the President to transfer High CourtJudges in consultation with the CJI. Till 1975, that power was very rarelyexercised by the President. In 1976[139], the power under Article 222 wasinvoked to make a mass transfer of 16 High Court Judges[140]. One of the16 Judges, though complied with the order of transfer but challenged thetransfer by filing a petition pro bono publico to assert and vindicate theindependence of the Judiciary[141]. It was in the context of that case,for the first time, the true meaning of the expression consultationoccurring under Article 222(1) fell for the consideration of this Court.The matter, Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4SCC 193 (for short Sankalchand case) was heard by five Judges. Fourseparate judgments were delivered by Chandrachud, Bhagwati, Krishna Iyer,and Untwalia, JJ. Justice Chandrachud opined that “consultation” in thecontext means an effective consultation and sharing of complete data on thebasis of which transfer is sought to be effected but concluded that – Afteran effective consultation with the Chief Justice of India, it is open tothe President to arrive at a proper decision of the question whether aJudge should be transferred to another High Court because, what theConstitution requires is consultation with the Chief Justice, not hisconcurrence with the proposed transfer[142]. After recording such aconclusion, His Lordship went on to observe as follows:“41. …….. But it is necessary to reiterate what Bhagwati and Krishna IyerJJ. said in Shamsher Singh (supra) that in all conceivable cases,consultation with the Chief Justice of India should be accepted by theGovernment of India and that the Court will have an opportunity to examineif any other extraneous circumstances have entered into the verdict of theexecutive if it departs from the counsel given by the Chief Justice ofIndia. "In practice the last word in such a sensitive subject must belongto the Chief Justice of India, the rejection of his advice being ordinarilyregarded as prompted by oblique considerations vitiating the order." (page873). It is hoped that these words will not fall on deaf ears and sincenormalcy has now been restored, the differences, if any, between theexecutive and the judiciary will be resolved by 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 saidby Krishna Iyer in his judgment.[143]42. Justice Krishna Iyer spoke for himself and for Justice Fazal Ali.Justice Krishna Iyer, while reiterating the views expressed by this Courtin two earlier judgments, i.e. Chandramouleshwar Prasad v. Patna High Courtand Ors. , (1969) 3 SCC 56 and Samsher Singh v. State of Punjab, AIR 1974SC 2192, opined that although the opinion of the Chief Justice of India maynot be binding on the Government it is entitled to great weight and isnormally to be accepted by the Government ……….[144] with a caveat:“115. ……. It must also be borne in mind that if the Government departsfrom the opinion of the Chief Justice of India it has to justify its actionby giving cogent and convincing reasons for the same and, if challenged, toprove to the satisfaction of the Court that a case was made out for notaccepting the advice of the Chief Justice of India. It seems to us that theword 'consultation' has been used in Article 222 as a matter ofconstitutional courtesy in view of the fact that two very high dignitariesare concerned in the matter, namely, the President and the Chief Justice ofIndia. Of course, the Chief Justice has no power of veto, as Dr. Ambedkarexplained in the Constituent Assembly.”Justice Untwalia agreed with the views expressed by Justice Chandrachud onthe question of consultation with the Chief Justice of India and added:“125. ……… The Government, however, as rightly conceded by Mr. Seervai, isnot bound to accept and act upon the advice of the Chief Justice. It maydiffer from him and for cogent reasons may take a contrary view. In otherwords, as held by this Court in the case of Chandramouleshwar Prasadv. Patna High Court and Ors. [1970]2SCR666 , the advice is not binding onthe Government invariably and as a matter of compulsion in law. Althoughthe decision of this Court in Chandramouleshwar Prasad's case was withreference to the interpretation of Articles 233 and 235 of theConstitution, on principle there is hardly any difference.”43. One interesting factor that is required to be noted from theabovementioned case is that all the 16 transfers were made in consultationwith the then CJI. Within a year thereafter, in March 1977, generalelections took place and a new political party came to power. TheGovernment on a re-examination of the matter opined that there was nojustification for transferring Justice Sheth from Gujarat. It is a matterof history that all 16 Judges who were transferred during emergency, weresent back to their parent High Courts along with Justice Sheth[145]. Thisfact is significant in the context of the argument that permitting theexecutive to have any say in the matter of appointment of Judges toConstitutional Courts would be destructive of independence of thejudiciary.44. Within three years thereafter, another significant event in theconstitutional history of this country occurred. The then Law Minister ofthe Government of India sent a circular dated 18th March 1981 to ChiefMinisters of various States. Chief Ministers were requested to obtain fromall the Additional Judges (working in the concerned High Courts) consent tobe appointed as permanent Judges in any other High Court in the country.It also advised Chief Ministers to obtain similar consent letters frompersons who have already been or may in future be proposed for initialappointment as Judges of the High Court. The said letter was challenged inS.P. Gupta case on the ground it was a direct attack on the independence ofthe judiciary which is a basic feature of the Constitution[146] (Para 2).The matter was heard by seven Judges of this Court. Seven separatejudgments were delivered. One of the questions before this Court waswhether the opinion of CJI be given primacy over the opinion of otherconstitutional functionaries. Substantially, this Court took the same viewas was taken in Sankalchand case[147].45. Growth of population, increasing awareness of legal rights in thepopulation, expansion of the scope of judicial review as a consequence of achange in the understanding of the amplitude of various fundamental rightsand their inter-relationship, a sea change in the law on the procedurallimitations in the exercise of the jurisdiction under Article 32 and 226led to the explosion of dockets of the CONSTITUTIONAL COURTS of thiscountry. But, the Judge strength remained relatively stagnant. By 80s,the problem became more acute and complex. Government of India did notundertake the requisite exercise to make a periodic assessment of the needto increase the judge strength. In the case of some High Courts, there waseven a reduction[148]. Even, the appointment process of High Court Judgeswas taking unreasonably long periods on legally untenable grounds[149]. Athree Judge Bench of this Court in Subhash Sharma v. Union of India (1991)Supp.1 SCC 574 (for short Subhash Sharma case) took note of such asituation.46. There was a turmoil with regard to appointment of Judges ofCONSTITUTIONAL COURTS in 1970s and 1980s. Senior Judges were supercededfor appointment to the office of CJI. Perhaps, emboldened by judgments ofthis Court in Sankalchand and S.P. Gupta the executive (at the National aswell as the State level) resorted to unhealthy manipulation of the system.The Informal Constitution : Unwritten Criteria in Selecting Judges for theSupreme Court of India[150] records some instances of such manipulationsbased on news items published in print media of some reputation byCommentators of well established credentials on Contemporary issues andscholars. It appears that out of 53 appointments of Judges to some HighCourts made in 1984-85, 32 were made on the recommendations of acting ChiefJustices. It is believed that the senior most Judges of some High Courts(from where the said 32 recommendations had originated) who initiated thoserecommendations as acting Chief Justices, were made permanent ChiefJustices only after they agreed to recommend names suggested by theExecutive. A particular Additional Judge was not confirmed as a permanentJudge for several years notwithstanding the recommendations for hisconfirmation by three successive Chief Justices of the High Court and threeCJIs allegedly on the ground that the Judge had delivered a judgment notpalatable to the State Government. It appears that the Government headedby Prime Minister V.P. Singh had stalled appointments of 67 personsrecommended by the Chief Justices of various High Courts. Charges werefreely traded against each other by the constitutional functionaries whoare part of the appointment process of the CONSTITUTIONAL COURTS. Itappears that a Law Minister for the Union of India complained that StateGovernments were trying to pack High Courts with their ‘own men’[151]. Thebasic facts are verifiable, inferences therefrom are perhaps contestable.Unfortunately, the correspondence between the Government and the CJI andthe record of the consultation process are some of the best guarded secretsof this country.47. The question is not whether the various statements made in the above-mentioned book are absolutely accurate. The observations made by thisCourt in Subhash Sharma case can lead to a safe conclusion, that there mustbe some truth in the various statements made in the book. The abovescenario whether true or partially true formed the backdrop of theobservations made in Subhash Sharma case (supra). As a consequence, theBench thought it fit that the correctness of S.P. Gupta case should beconsidered by a larger Bench.“49. …….. majority view in S.P. Gupta’s case should be considered by alarger Bench we direct the papers of W.P. No. 1303 of 1987 to be placedbefore the learned Chief Justice for constituting a Bench of nine Judges toexamine the two questions we have referred to above, namely, the positionof the Chief Justice of India with reference to primacy and, secondly,justiciability of fixation of Judge strength…….”48. This led to the Second Judges case. The matter was heard by nineJudges. Five separate judgments were delivered. Justice Verma spoke forfive of them. Justice Pandian and Justice Kuldip Singh wrote separatejudgments but agreed with the conclusions of Justice Verma, but JusticeAhmadi and Justice Punchhi did not. One proposition on which all nineJudges were unanimous is that under the scheme of the Constitution,independence of judiciary is indispensable. Justice Verma categoricallyheld that it is a part of the basic structure of the Constitution[152].The point of disagreement between the majority and minority is onlyregarding the mode by which the establishment and continuance of such anindependent judiciary can be achieved.49. Textually, provisions which indicate that the judiciary is requiredto be independent of the executive are Article 50[153] and the form of oathrequired to be taken by the Judges of CONSTITUTIONAL COURTS prescribed inForms IV[154] and VIII[155] under the Third Schedule to the Constitution ofIndia.50. However, structurally there are many indications in the scheme of theConstitution which lead to an unquestionable inference that the Framers ofthe Constitution desired to have a judiciary which is absolutelyindependent of the Executive and insulated from vagaries of transient andshifting majoritarian dynamics. Under the scheme of the Constitution,State Legislatures have absolutely no role in matters pertaining to theestablishment of CONSTITUTIONAL COURTS of this country. Parliament aloneis authorized to deal with certain aspects of the establishment of theCONSTITUTIONAL COURTS and their administration such as fixation of thestrength of the courts, salaries and other service conditions of the judgesetc. Termination of an appointment made to a CONSTITUTIONAL COURT can bedone only through the process of impeachment by Parliament, the onlylegislative body authorised to impeach by following a distinct legislativeprocess only on the ground of ‘proved misbehaviour or incapacity’. Such aprocess is made more stringent by a constitutional stipulation underArticle 124(5)[156] that the procedure for investigation and proof ofmisbehaviour or incapacity of a Judge must be regulated by law. Even aftermisbehaviour or incapacity is established removal of a Judge is notautomatic but subject to voting and approval by a special majority of theParliament specified under Article 124(4)[157]. Prior to the AMENDMENT,the power to appoint Judges of CONSTITUTIONAL COURTS vested in thePresident to be exercised in consultation with the various constitutionalfunctionaries mentioned under Articles 124 and 217, as the case may be.Consultation with the CJI was mandatory for the appointment of Judges ofall CONSTITUTIONAL COURTS. Consultation with the Chief Justices of HighCourts was mandatory for appointment of Judges of High Courts.51. In the backdrop of such scheme, a question arose whether theappointment process, in any way, impacts independence of the judiciary,which, admittedly, formed a part of the basic structure of theConstitution. Majority of the Judges opined that it does[158]. TheirLordships drew support for such conclusion from history and debates in theConstituent Assembly apart from the observations made in the cases ofSankalchand and S.P. Gupta. Their Lordships also took note of the factthat the Constituent Assembly consciously excluded any role to theParliament in the process of appointments, a conscious departure from theAmerican Constitutional model where Federal Judicial appointments aresubject to consent of the Senate.52. In the background of such an analysis, consultation with the ChiefJustice of India in Articles 124 and 217 was interpreted as conferringprimacy to the opinion of CJI. Consultation with the CJI was part of adesign of the Constituent Assembly to deny unfettered authority (to theunion executive) to appoint Judges of the CONSTITUTIONAL COURTS. TheConstituent Assembly did not choose to vest such controlling power in theParliament to which the Executive is otherwise accountable under the schemeof the Constitution. This Court, therefore, concluded that withoutprimacy to the opinion of CJI the whole consultation process contemplatedunder Articles 124 and 217 would only become ornamental enabling theexecutive to make appointments in its absolute discretion, most likelybased on considerations of political expediency. Such a process would beantithetical to the constitutional goal of establishing an independentjudiciary. However, Justice Verma categorically declared–“438. The debate on primacy is intended to determine, who amongst theconstitutional functionaries involved in the integrated process ofappointments is best equipped to discharge the greater burden attached tothe role of primacy, of making the proper choice; and this debate is not todetermine who between them is entitled to greater importance or is to takethe winner's prize at the end of the debate. The task before us has to beperformed with this perception.450. …………. The indication is, that in the choice of a candidate suitablefor appointment, the opinion of the Chief Justice of India should have thegreatest weight; the selection should be made as a result of aparticipatory consultative process in which the executive should have powerto act as a mere check on the exercise of power by the Chief Justice ofIndia, to achieve the constitutional purpose. Thus, the executive elementin the appointment process is reduced to the minimum and any politicalinfluence is eliminated. It was for this reason that the word'consultation' instead of 'concurrence' was used, but that was done merelyto indicate that absolute discretion was not given to any one, not even tothe Chief Justice of India as individual, much less to the executive, whichearlier had absolute discretion under the Government of India Acts.” [emphasis supplied]53. This Court also indicated the circumstances on which the President ofIndia would be constitutionally justified in not acting in accordance withthe opinion expressed by the CJI. This Court never held that consultationmeans concurrence as is sought to be interpreted in some quarters and Iregret to say even in the stated objects and reasons for the AMENDMENT.“As regards the appointment of Judges of the Supreme Court and High Courts,the Supreme Court, in the matters of the Supreme Court Advocates-on-RecordAssociation v. Union of India and its Advisory Opinion 1998 in Third Judgescase, had interpreted articles 124(2) and 217(1) of the Constitution withrespect to the meaning of “consultation” as “concurrence”. It was alsoheld that the consultation of the Chief Justice of India means collegiumconsisting of the Chief Justice and two or four Judges, as the case may be. This has resulted in a Memorandum of Procedure laying down the processwhich is being presently followed for appointment of Judges to both theHigh Courts and the Supreme Court. The Memorandum of Procedure confersupon the Judiciary itself the power for appointment of Judges.” [emphasis supplied]54. There are conflicting opinions[159] regarding the jurisprudentialsoundness of the judgment of Second Judges case. I do not think itnecessary to examine that aspect of the matter for the purpose ofdetermining the present controversy.55. After some 20 years of the working of the regime created under theSecond Judges case, serious questions arose whether the regime emanating asa consequence of the interpretation placed by this Court in the SecondJudges case, yielded any constitutionally aspired result of theestablishment of an independent and efficient judiciary – theCONSTITUTINONAL COURTS. Answer regarding the independence can besubjective, and efficiency perhaps may not be very pleasant.56. Within a few years doubts arose regarding the true purport of theSecond Judges case. The President of India invoked Article 143 and soughtcertain clarifications on the judgment of the Second Judges case leadingto 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 theGovernment of India are not recorded in the opinion. But para 41 of theThird Judges case records:“41. …We take the optimistic view that successive Chief Justices of Indiashall henceforth act in accordance with the Second Judges case and thisopinion.”57. No wonder, gossip and speculations gather momentum and currency insuch state of affairs. If a nine-Judge Bench of this Court takes anoptimistic view that successive Chief Justices of India shall henceforthact in accordance with the Second Judges case, the only logical inferencethat can be drawn is that the law laid down by the Second Judges case wasnot faithfully followed by the successive Chief Justices, if not in all atleast in some cases attracting comments. Instead of Ministers, Judgespatronised.[160]58. In the next one and a half decade, this nation has witnessed manyunpleasant events connected with judicial appointments - events which lendcredence to the speculation that the system established by the Second andThird Judges cases in its operational reality is perhaps not the bestsystem for securing an independent and efficient judiciary.[161]59. Two events are part of the record of this Court and can be quotedwithout attracting the accusation of being irresponsible and unconcernedabout the sanctity of the institution. These events led to the decisionsreported in Shanti Bhushan & Another v. Union of India & Another, (2009) 1SCC 657, P.D. Dinakaran (1) v. Judges Inquiry Committee & Others, (2011) 8SCC 380, P.D. Dinakaran (2) v. Judges Inquiry Committee & Another, (2011) 8SCC 474.While the 1st of the said two events pertains to the appointment of a Judgeof the Madras High Court, the 2nd pertains to the recommendation made bythe CJI (Collegium) regarding elevation of the Chief Justice of a HighCourt to this Court.60. The dispute in Shanti Bhushan case (supra) was regarding appointmentof a permanent Judge to the Madras High Court. The allegation appears tobe that the procedure indicated in the Second and Third Judges cases hadnot been followed. I use the expression appears to be because it isdifficult to identify what was the exact pleading in the case[162]. It isonly by inference such a conclusion can be reached. Even the conclusionrecorded by this Court does not really throw any light. In para 22 of thejudgment of this Court it is recorded as follows:“22. The position is almost undisputed that on 17.3.2005 the then ChiefJustice of India recommended for extension of term of 8 out of 9 personsnamed 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 ofIndia was of the view that name of Respondent 2 cannot be recommended alongwith another Judge for confirmation as permanent Judge. Since it iscrystal clear that the Judges are not concerned with any political angle ifthere be any in the matter of appointment as Additional Judge or permanentJudge; the then Chief Justice should have stuck to the view expressed bythe collegium and should not have been swayed by the views of theGovernment to recommend extension of the term of Respondent 2 for one year;as it amounts to surrender of primacy by jugglery of words.” [emphasis supplied]Even if I choose to ignore the controversial statements made (in the recentpast) with regard to the appointment in question in the case, by personswho held high constitutional offices and played some role in theappointment process including former Members of this Court, the judgmentleaves sufficient scope for believing that all did not go well with theappointment. It appears to have been a joint venture in the subversion ofthe law laid down by the Second and Third Judges cases by both theexecutive and the judiciary which neither party is willing to acknowledge.61. The grievance of the petitioners in that case appears to be that “….Collegium was not consulted. … .” Unfortunately, there is no precisefinding in this regard in the said judgment. On the other hand, thecontent of para 22 of the judgment leaves me with an uncomfortable feelingthat there was some departure from the law perhaps under some politicalpressure. I wish that I were wrong.62. The second event is a recommendation made by the then CJI apparentlywith the concurrence of the Collegium for elevation of the petitioner.[See: P.D. Dinakaran (1) (supra); P.D. Dinakaran (2) (supra)]. Therecommendation did not fructify. Serious allegations of unsuitability ofthe candidate whose name was recommended surfaced leading to a great dealof public debate. It is unpleasant to recount those allegations. They arerecorded in the abovementioned two judgments. There is no allegation ofany failure on the part of the Collegium to comply with the procedure laiddown in Second and Third Judges cases in making the ill-fatedrecommendation. But, the recommendation certainly exposed the shallowness(at least for once) of the theory propounded by this Court in the trilogyof cases commencing from S.P. Gupta and ending with the Third Judges casethat the CJI and the Collegium are the most appropriate authorities to makean assessment of the suitability of candidates for appointment as Judges ofCONSTITUTIONAL COURTS in this country. A few more instances werementioned at the bar during the course of hearing to demonstrate not onlythe shallowness of the theory but also the recommendations by the Collegiumhave not necessarily always been in the best interests of the institutionand the nation. It is not really necessary to place on record all thedetails but it is sufficient to mention that the earlier mentioned twocases are not certainly the only examples of the inappropriate exercise ofthe power of the Collegium.63. I am aware that a few bad examples of the improper exercise of thepower does not determine the character of the power. Such inappropriateexercise of the power was resorted to also by the Executive already noticedearlier. Both branches of government are accusing each other of not beingworthy of trust.[163] At least a section of the civil society believesthat both are right. The impugned AMENDMENT came in the backdrop of theabove-mentioned experience.64. Independence of the judiciary is one of the basic features of theConstitution. A seven-Judge Bench of this Court in L Chandra Kumar v.Union of India & Ors., (1997) 3 SCC 261 already held that the power ofjudicial review of legislative action by the CONSTITUTIONAL COURTS is partof the basic structure of the constitution and the exercise of suchimportant function demands the existence of an independent judiciary.“78. The legitimacy of the power of courts within constitutionaldemocracies to review legislative action has been questioned since the timeit was first conceived. The Constitution of India, being alive to suchcriticism, has, while conferring such power upon the higher judiciary,incorporated important safeguards. An analysis of the manner in which theFramers of our Constitution incorporated provisions relating to thejudiciary would indicate that they were very greatly concerned withsecuring the independence of the judiciary. These attempts were directed atensuring that the judiciary would be capable of effectively discharging itswide powers of judicial review. While the Constitution confers the power tostrike down laws upon the High Courts and the Supreme Court, it alsocontains elaborate provisions dealing with the tenure, salaries,allowances, retirement age of Judges as well as the mechanism for selectingJudges to the superior courts. The inclusion of such elaborate provisionsappears to have been occasioned by the belief that, armed by suchprovisions, the superior courts would be insulated from any executive orlegislative attempts to interfere with the making of their decisions. TheJudges of the superior courts have been entrusted with the task ofupholding the Constitution and to this end, have been conferred the powerto interpret it. It is they who have to ensure that the balance of powerenvisaged by the Constitution is maintained and that the legislature andthe executive do not, in the discharge of their functions, transgressconstitutional limitations. It is equally their duty to oversee that thejudicial decisions rendered by those who man the subordinate courts andtribunals do not fall foul of strict standards of legal correctness andjudicial independence. The constitutional safeguards which ensure theindependence of the Judges of the superior judiciary, are not available tothe Judges of the subordinate judiciary or to those who man tribunalscreated by ordinary legislations. Consequently, Judges of the lattercategory can never be considered full and effective substitutes for thesuperior judiciary in discharging the function of constitutionalinterpretation. We, therefore, hold that the power of judicial review overlegislative action vested in the High Courts under Article 226 and in thisCourt under Article 32 of the Constitution is an integral and essentialfeature of the Constitution, constituting part of its basic structure.Ordinarily, therefore, the power of High Courts and the Supreme Court totest the constitutional validity of legislations can never be ousted orexcluded.” [emphasis supplied]This aspect of the matter is not in issue. None of the respondentscontested that proposition. The text of the Constitution bears ampletestimony for the proposition that the Constitution seeks to establish andnurture an independent judiciary. The makers of the Constitution wereeloquent about it. Various Articles of the Constitution seek to protectindependence of the judiciary by providing appropriate safeguards againstunwarranted interference either by the Legislature or the Executive, withthe Judges conditions of service and privileges incidental to themembership of the CONSTITUTIONAL COURTS, such as, salary, pension, securityof tenure of the office etc. The scheme of the Constitution in that regardis already noticed.[164] Such protections are felt necessary not onlyunder our Constitution, but also several other democratic Constitutions(the details of some of them are already noticed in paras 25 to 27). Suchprotections are incorporated in the light of the experience and knowledgeof history. Various attempts made by Governments to subvert theindependence of the judiciary were known to the makers of thoseConstitutions and also the makers of our Constitution.65. Articles 124 and 217 deal with one of the elements necessary toestablish an independent judiciary - the appointment process. TheConstituent Assembly was fully conscious of the importance of such anelement in establishing and nurturing an independent judiciary. Itexamined various models in vogue in other countries. Dr. Ambedkar’s speechdated 24th May 1949[165] (quoted supra) is proof of such awareness. TheConstituent Assembly was fully appraised of the dangers of entrusting thepower of appointment of members of the CONSTITUTIONAL COURTS exclusively tothe Executive. At the same time, the Constituent Assembly was alsosensitised to the undesirability of entrusting such a power exclusively tothe CJI or allowing any role to the Parliament in the matter of thejudicial appointments. The probable consequences of assigning such a rolewere also mentioned by Dr. Ambedkar. The Constituent Assembly wasinformed of the various models and institutional mechanisms in vogue undervarious democratic Constitutions for appointment of the members of thesuperior judiciary. The Constituent Assembly was told by Dr. Ambedkar thatthe model, such as the one contained in Articles 124 and 217 (as they stoodprior to the AMENDMENT) - may be regarded as sufficient for the moment.Various alternative models suggested by the members were not accepted.[166]The legislative history clearly indicates that the members of theConstituent Assembly clearly refused to vest an absolute and unfetteredpower to appoint Judges of the CONSTITUTIONAL COURTS in any one of the 3branches of the Constitution. Constituent Assembly declined to assign anyrole to the Parliament. It declined to vest an unbridled power in theexecutive. At the same time did not agree with the proposal that theCJI’s concurrence is required for any appointment.66. The system of Collegium the product of an interpretative gloss on thetext of Articles 124 and 217 undertaken in the Second and Third Judges casemay or may not be the best to establish and nurture an independent andefficient judiciary. There are seriously competing views expressed byeminent people[167], both on the jurisprudential soundness of the judgmentsand the manner in which the Collegium system operated in the last twodecades.67. Neither the jurisprudential correctness of the concept of Collegiumnor how well or ill the Collegium system operated in the last two decadesis the question before us. The question is – whether such a system isimmutable or is Parliament competent to amend the Constitution and createan alternative mechanism for selection and appointment of the members ofCONSTITUTIONAL COURTS of this country.68. The basic objection for the impugned AMENDMENT is that it isdestructive of the Constitutional objective of establishment of anindependent judiciary, and consequently the basic structure of theConstitution. Therefore, it falls foul of the law laid down by this Courtin Bharati case.69. To decide the correctness of the submission, it is necessary:(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 structure” of theConstitution 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 of this Court?(4) Are there any principles of law laid down by this Court to identifythe basic features of the Constitution?(5) If the two expressions “basic features” and “basic structure” meantwo different things, is it the destruction of any one of them whichrenders any Constitutional amendment void or should such an amendment bedestructive of both of them to become void.(6) When can a Constitutional amendment be said to destroy or abrogateeither a “basic feature” of the Constitution or the “basic structure” ofthe Constitution?70. In Bharati case, one of the questions was – whether Article 368confers unbridled power on the Parliament to amend the Constitution. Thatquestion arose in the background of an earlier decision of this Court inI.C. Golak Nath & Others v. State of Punjab & Another, (1967) 2 SCR762[168] wherein it was held that Article 368 conferred on Parliament alimited power to amend the Constitution. A Constitutional amendment is‘law’ within the meaning of Article 13(3)(a)[169]. Any Constitutionalamendment which seeks to take away or even abridge any one of the rightsguaranteed under Part-III of the Constitution would be violative of themandate contained under Article 13(2)[170] and therefore illegal.71. The correctness of I.C. Golak Nath was one of the questions whichfell for consideration of the larger Bench of this Court in Bharati case.Eleven opinions were rendered. This Court by majority held that everyArticle of the Constitution including the articles incorporatingfundamental rights are amenable to the amendatory power of theParliament[171] under Article 368 which is a constituent power but suchpower does not enable Parliament to alter the basic structure or frameworkof the Constitution.[172]72. That is the origin of the theory of basic structure of theConstitution. Justice Shelat and Grover, J. used the expression basicelements and held that they cannot be abrogated or denuded of theiridentity. Justice Hegde and Mukherjea, J. used the expression basicelements or fundamental features and held that they cannot be abrogated oremasculated. Justice Jaganmohan Reddy used the expression essentialelements of the basic structure and held that they cannot be abrogatedthereby destroying the identity of the Constitution. Justice Sikri andKhanna, J. employed the expressions basic structure or framework,foundation, the basic institutional pattern, which is beyond the power ofthe Parliament under Article 368 of the Constitution. Some of the learnedJudges mentioned certain features which according to them constitute basicor essential features etc. of the Constitution. All of them were cautiousto make it explicit that such features or elements mentioned by them areonly illustrative but not exhaustive. In Minerva Mills Ltd. & Ors. v.Union of India & Ors., (1980) 3 SCC 625, Justice Chandrachud, speaking forthe majority of the Constitution Bench, observed that para No.2 of thesummary 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 summaryreads to say that according to the majority, "Article 368 does not enableParliament to alter the basic structure or framework of the Constitution".Whether or not the summary is a legitimate part of the judgment, or is perincuriam for the scholarly reasons cited by authors, it is undeniable thatit correctly reflects the majority view.” [emphasis supplied]73. Again in Waman Rao & Ors. etc. etc. v. Union of India & Ors., (1981)2 SCC 362, Chief Justice Chandrachud speaking for another ConstitutionBench observed:“The judgment of the majority to which seven out of the thirteen Judgeswere parties, struck a bridle path by holding that in the exercise of thepower conferred by Article 368, the Parliament cannot amend theConstitution so as to damage or destroy the basic structure of theConstitution.” (Para 15) [emphasis supplied]By then Justice Chandrachud had already expressed his opinion in IndiraNehru Gandhi v. Raj Narain, (1975) Supp SCC 1 as follows:“663. There was some discussion at the Bar as to which features ofthe Constitution form the basic structure of the Constitution according tothe majority decision in the Fundamental Rights case. That, to me, is aninquiry both fruitless and irrelevant. The ratio of the majority decisionis not that some named features of the Constitution are a part of its basicstructure but that the power of amendment cannot be exercised so as todamage or destroy the essential elements or the basic structure of theConstitution, whatever these expressions may comprehend.” [emphasis supplied]The above passages, indicate that it is not very clear from Bharati casewhether the expression basic structure, basic features and essentialelements convey the same idea or different ideas. Therefore, it isnecessary to examine some decisions where the legality of theconstitutional amendments was considered by this Court subsequent toBharati case.74. The earliest of them is Indira Nehru Gandhi case (supra). By theConstitution 39th Amendment Article 329A was inserted. Clauses (4) and (5)of the said Article sought to exclude the complaints of violation of theprovisions of The Representation of the People Act, 1951 from scrutiny ofany forum whatsoever in so far as such complaints pertain to the electionof the Prime Minister or the Speaker of the Lok Sabha. The questionwhether such an amendment violated any one of the basic features of theConstitution arose. It was argued that the amendment was violative of fourbasic features of the Constitution. They are : (1) Democratic form ofGovernment; (2) Separation of Powers between the legislature, the executiveand the judiciary; (3) the principle of Equality of all before the law;and (4) the concept of the rule of law. A Constitution Bench of this Courtheld that the impugned clauses were beyond the competence of theParliament’s power under Article 368.[173]75. Four out of the five Judges agreed upon the conclusion that theimpugned amendment was destructive of the basic structure of theConstitution. Each one of the Judges opined that the impugned provisionviolated a distinct basic feature of the Constitution leading to thedestruction of the basic structure of the Constitution.76. In Minerva Mills case (supra), this Court once again was confrontedwith the problem of “basic structure of the Constitution”.[174] By theConstitution (42nd Amendment) Act among other things, Clauses (4) and (5)came to be added in Article 368 and Article 31-C came to be amended bysubstituting certain words in the original Article. Chief JusticeChandrachud spoke for the majority of the Court and declared Sections 4 and55 of the Constitution (42nd Amendment) Act to be violative of the basicstructure of the Constitution. Dealing with the amendment to Article 368,this Court held:“Para 16. ….. The majority (in Bharati case) conceded to the Parliament theright to make alterations in the Constitution so long as they are withinits basic framework. And what fears can that judgment raise or misgivingsgenerate if it only means this and no more. The preamble assures to thepeople of India a polity whose basic structure is described therein as aSovereign Democratic Republic; Parliament may make any amendments to theConstitution as it deems expedient so long as they do not damage or destroyIndia’s sovereignty and its democratic, republican character. Democracy isnot an empty dream. It is a meaningful concept whose essential attributesare recited in the preamble itself: Justice — social, economic andpolitical; Liberty of thought, expression, belief, faith and worship; andEquality of status and opportunity. Its aim, again as set out in thepreamble, is to promote among the people an abiding sense of “fraternityassuring the dignity of the individual and the unity of the nation”. Thenewly introduced clause (5) of Article 368 demolishes the very pillars onwhich the preamble rests by empowering the Parliament to exercise itsconstituent power without any “limitation whatever”. No constituent powercan conceivably go higher than the sky-high power conferred by clause (5),for it even empowers the Parliament to “repeal the provisions of thisConstitution”, that is to say, to abrogate the democracy and substitute forit a totally antithetical form of Government. That can most effectively beachieved, without calling a democracy by any other name, by a total denialof social, economic and political justice to the people, by emasculatingliberty of thought, expression, belief, faith and worship and by abjuringcommitment to the magnificent ideal of a society of equals. The power todestroy is not a power to amend.” [emphasis supplied]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-IVcan have primacy over the fundamental rights contained in Part-III of theConstitution – because the 42nd amendment sought to subordinate thefundamental rights conferred by Articles 14 and 19 to the directiveprinciples. This Court formulated the question – whether such an amendmentwas within the amendatory power of the Parliament in view of the law laiddown by this Court in Bharati case. The Court propounded that:“41. ….. It is only if the rights conferred by these two Articles are not apart of the basic structure of the Constitution that they can be allowed tobe abrogated by a constitutional amendment. If they are a part of the basicstructure, they cannot be obliterated out of existence in relation to acategory of laws described in Article 31-C or, for the matter of that, inrelation to laws of any description whatsoever, passed in order to achieveany object or policy whatsoever. This will serve to bring out the pointthat a total emasculation of the essential features of the Constitution is,by the ratio in Kesavananda Bharati, not permissible to the Parliament.”The Court finally reached the conclusion that the Parts III and IV of theConstitution are like two wheels of a chariot both equally important andheld:“56. ….. To give absolute primacy to one over the other is to disturb theharmony of the Constitution. This harmony and balance between thefundamental rights and directive principles is an essential feature of thebasic structure of the Constitution.” [emphasis supplied]This Court concluded that the amendment to Article 31C is destructive ofthe basic structure as it abrogated the protection of Article 14 & 19against laws which fall within the ambit of the description contained inArticle 31C.77. In Waman Rao case (supra), Article 31-A(1)(a) which came to beintroduced by the Constitution (First Amendment) Act was challenged on theground that it damages the basic structure of the Constitution. The saidArticle made a declaration that no law providing for acquisition by theState of any ‘estate’ or of ‘any rights therein’ etc. shall be deemed to bevoid on the ground that such law violated Articles 14, 19 and 31 of theConstitution. In other words, though Articles 14, 19 and 31 remain on thestatute 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. Dealingwith the permissibility of such an amendment, the Court held as follows:“In any given case, what is decisive is whether, insofar as the impugnedlaw is concerned, the rights available to persons affected by that lawunder any of the articles in Part III are totally or substantiallywithdrawn and not whether the articles, the application of which standswithdrawn in regard to a defined category of laws, continue to be on thestatute book so as to be available in respect of laws of other categories.We must therefore conclude that the withdrawal of the application ofArticles 14, 19 and 31 in respect of laws which fall under clause (a) istotal and complete, that is to say, the application of those Articlesstands abrogated, not merely abridged, in respect of the impugnedenactments which indubitably fall within the ambit of clause (a). We wouldlike to add that every case in which the protection of a fundamental rightis withdrawn will not necessarily result in damaging or destroying thebasic structure of the Constitution. The question as to whether the basicstructure is damaged or destroyed in any given case would depend upon whichparticular Article of Part III is in issue and whether what is withdrawn isquintessential to the basic structure of the Constitution.” (Para 14) [emphasis supplied]But this Court finally reached the conclusion that the Amendment did notdamage or destroy the basic structure and, therefore, upheld theAmendment[175]. Such a conclusion was reached on the basis of the logic –“29. The First Amendment is aimed at removing social and economicdisparities in the agricultural sector. It may happen that while existinginequalities are being removed, new inequalities may arise marginally andincidentally. Such marginal and incidental inequalities cannot damage ordestroy the basic structure of the Constitution. It is impossible for anygovernment, howsoever expertly advised, socially oriented and prudentlymanaged, to remove every economic disparity without causing some hardshipor injustice to a class of persons who also are entitled to equal treatmentunder the law. …..”This Court held that though the protection of Articles 14 and 19 is totallyabrogated, the withdrawal or abrogation of such protection does notnecessarily result in damage or destruction of the basic structure of theConstitution. In other words, this Court held that if in the process ofseeking to achieve a larger constitutional goal of removing social andeconomic disparities in the agricultural sector and effectuating the twinprinciples contained in Article 39(b) and (a) if new inequalities resultmarginally and incidentally they cannot be said to be destructive of thebasic structure of the Constitution.78. Both Minerva Mills and Waman Rao dealt with the abrogation ofArticles 14 and 19 or absolute withdrawal of the protection of thosefundamental rights with reference to certain classes of legislation. ThisCourt held in the first of the above mentioned cases that such withdrawalamounted to abrogation of a basic feature and, therefore, destructive ofthe basic structure of the Constitution and in the second case this Courtcarved out an exception to the rule enunciated in Minerva Mills and heldthat such abrogation insofar as the law dealing with agrarian reforms didnot destroy the basic structure. These cases only indicate that; (i) theexpressions ‘basic structure’ and ‘basic features’ convey two differentideas, (ii) the basic features are COMPONENTS of basic structure. It alsofollows from these cases that either a particular Article or set ofArticles can constitute a basic feature of the Constitution. Amendmentof one or some of the Articles constituting a basic feature may or may notresult in the destruction of the basic structure of the Constitution. Itall depends on the context.79. This Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1,recognised the concept of secularism as one of the basic features of theConstitution not because any one of the Articles of the Constitution madeany express declaration to that effect but such a conclusion followed fromthe scheme of the various provisions of the Constitution.[176]80. This Court in M. Nagaraj & Others v. Union of India & Others[177],(2006) 8 SCC 212, deduced the principle that the process of identifyingthe basic features of the Constitution lies in the identification of someconcepts which are beyond the words of any particular provision but pervadethe scheme of the Constitution. Some of these concepts may be so importantand fundamental as to qualify to be called essential features of theConstitution or part of the basic structure of the Constitution thereforenot open to the amendment.This Court specified the process by which the basic features of theConstitution are to be identified. The Court held:“23. …. Therefore, it is important to note that the recognition of a basicstructure in the context of amendment provides an insight that there are,beyond the words of particular provisions, systematic principles underlyingand connecting the provisions of the Constitution. These principles givecoherence to the Constitution and make it an organic whole. Theseprinciples are part of constitutional law even if they are not expresslystated in the form of rules. An instance is the principle of reasonablenesswhich connects Articles 14, 19 and 21. Some of these principles may be soimportant and fundamental, as to qualify as “essential features” or part ofthe “basic structure” of the Constitution, that is to say, they are notopen to amendment. However, it is only by linking provisions to suchoverarching principles that one would be able to distinguish essential fromless essential features of the Constitution.24. The point which is important to be noted is that principles offederalism, secularism, reasonableness and socialism, etc. are beyond thewords of a particular provision. They are systematic and structuralprinciples underlying and connecting various provisions of theConstitution. They give coherence to the Constitution. They make theConstitution an organic whole. They are part of constitutional law even ifthey are not expressly stated in the form of rules.25. For a constitutional principle to qualify as an essential feature, itmust be established that the said principle is a part of the constitutionallaw binding on the legislature. Only thereafter, is the second step to betaken, namely, whether the principle is so fundamental as to bind even theamending power of Parliament i.e. to form a part of the basic structure.The basic structure concept accordingly limits the amending power ofParliament. To sum up: in order to qualify as an essential feature, aprinciple is to be first established as part of the constitutional law andas such binding on the legislature. Only then, can it be examined whetherit 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 thestandard of judicial review of constitutional amendments in the context ofthe doctrine of basic structure.” [emphasis supplied]81. In I.R. Coelho (Dead) By LRs v. State of T.N. (2007) 2 SCC 1, thisCourt ruled;“129. Equality, rule of law, judicial review and separation of powers formparts of the basic structure of the Constitution. Each of these conceptsare intimately connected. There can be no rule of law, if there is noequality before the law. These would be meaningless if the violation wasnot subject to the judicial review. All these would be redundant if thelegislative, executive and judicial powers are vested in one organ.Therefore, the duty to decide whether the limits have been transgressed hasbeen placed on the judiciary.130. Realising that it is necessary to secure the enforcement of thefundamental rights, power for such enforcement has been vested by theConstitution in the Supreme Court and the High Courts. Judicial Review isan essential feature of the Constitution. It gives practical content to theobjectives of the Constitution embodied in Part III and other parts of theConstitution. It may be noted that the mere fact that equality, which is apart of the basic structure, can be excluded for a limited purpose, toprotect certain kinds of laws, does not prevent it from being part of thebasic structure. Therefore, it follows that in considering whether anyparticular feature of the Constitution is part of the basic structure -rule of law, separation of powers - the fact that limited exceptions aremade for limited purposes, to protect certain kind of laws, does not meanthat it is not part of the basic structure.” [emphasis supplied]82. An analysis of the judgments of the abovementioned cases commencingfrom Bharati case yields the following propositions:Article 368 enables the Parliament to amend any provision of theConstitution;The power under Article 368 however does not enable the Parliament todestroy the basic structure of the Constitution;None of the cases referred to above specified or declared what is the basicstructure of the Constitution;(iv) The expressions “basic structure” and “basic features” conveydifferent ideas though some of the learned Judges used those expressionsinterchangeably.(v) The basic structure of the Constitution is the sum total of the basicfeatures of the Constitution;(vi) Some of the basic features identified so far by this Court aredemocracy, secularism, equality of status, independence of judiciary,judicial review and some of the fundamental rights;(vii) The abrogation of any one of the basic features results normally inthe destruction of the basic structure of the Constitution subject to someexceptions;(viii) As to when the abrogation of a particular basic feature can besaid to destroy the basic structure of the Constitution depends upon thenature of the basic feature sought to be amended and the context of theamendment. There is no universally applicable test vis-à-vis all the basicfeatures.83. Most of the basic features identified so far in the various casesreferred to earlier are not emanations of any single Article of theConstitution. They are concepts emanating from a combination of a numberof Articles each of them creating certain rights or obligations or both(for the sake of easy reference I call them “ELEMENTS”). For example,(a) when it is said that the democracy is a basic feature of ourConstitution, such a feature, in my opinion, emerges from the variousarticles of the Constitution which provide for the establishment of thelegislative bodies[178] (Parliament and the State Legislatures) and theArticles which prescribe a periodic election to these bodies[179] based onadult franchise[180]; the role assigned to these bodies, that is, to makelaws for the governance of this Country in their respective spheres[181];and the establishment of an independent machinery[182] for conducting theperiodic elections etc.;(b) the concept of secularism emanates from various articles contained inthe fundamental rights chapter like Articles 15 and 16 which prohibits theState from practicing any kind of discrimination on the ground of religionand Articles 25 to 30 which guarantee certain fundamental rights regardingthe freedom of religion to every person and the specific mention of suchrights with reference to minorities.84. The abrogation of a basic feature may ensue as a consequence of theamendment of a single Article in the cluster of Articles constituting thebasic feature as it happened in Minerva Mills case and Indira Nehru Gandhicase.85. On the other hand, such a result may not ensue in the context of somebasic features. For example, Article 326 prescribes that election to LokSabha and the Legislative Assemblies shall be on the basis of adultsuffrage. Adult suffrage is explained in the said Article as:“… that is to say, every person who is a citizen of India and who is notless than eighteen years of age on such date as may be fixed in that behalfby or under any law made by the appropriate Legislature and is nototherwise disqualified under this Constitution or any law made by theappropriate Legislature on the ground of non-residence, unsoundness ofmind, crime or corrupt or illegal practice, shall be entitled to beregistered as a voter at any such election.”One of the components is that the prescription of the minimum age limit of18 years. Undoubtedly, the right created under Article 326 in favour ofcitizens of India to participate in the election process of the Lok Sabhaand the Legislative Assemblies is an integral part (for the sake ofconvenience, I call it an ELEMENT) of the basic feature i.e. democracy.However, for some valid reasons, if the Parliament were to amend Article326 fixing a higher minimum age limit, it is doubtful whether such anamendment would be abrogative of the basic feature of democracy therebyresulting in the destruction of the basic structure of the Constitution.It is worthwhile remembering that the minimum age of 18 years occurringunder Article 326 as on today came up by way of the Constitution (Sixty-first Amendment) Act, 1988. Prior to the amendment, the minimum age limitwas 21 years.86. As held by this Court in Minerva Mills case, the amendment of asingle article may result in the destruction of the basic structure of theConstitution depending upon the nature of the basic feature and the contextof the abrogation of that article if the purpose sought to be achieved bythe Article constitutes the quintessential to the basic structure of theConstitution.87. In my opinion, these cases also are really of no help for determiningthe case on hand as they do not lay down any general principle by which itcan be determined as to when can a constitutional amendment be said todestroy the basic structure of the Constitution. In the case on hand, theidentity of the basic feature is not in dispute. The question is whetherthe AMENDMENT is abrogative of the independence of judiciary – (a basicfeature) resulting in the destruction of the basic structure of theConstitution.88. By the very nature of the basic feature with which we are dealing, itdoes not confer any fundamental or constitutional right in favour ofindividuals. It is only a means for securing to the people of India,justice, liberty and equality. It creates a collective right in favour ofthe polity to have a judiciary which is free from the control of theExecutive or the Legislature in its essential function of decision making.89. The challenge to the AMENDMENT is required to be examined in thelight of the preceding discussion. The petitioners argued that (i)Independence of the judiciary is a basic feature (COMPONENT) of the basicstructure of the Constitution; (ii) the process of appointment of membersof constitutional courts is an essential ingredient (ELEMENT) of suchCOMPONENT; (iii) the process prescribed under unamended Articles 124 and217, as interpreted by this Court in the Second and Third Judges cases, isa basic feature and was so designed by framers of the Constitution forensuring independence of the judiciary, by providing for primacy of theopinion of the CJI (Collegium); and not of the opinion of the President(the Executive); (iv) the AMENDMENT dilutes such primacy and tilts thebalance in favour of the Executive, thereby 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 theAMENDMENT by which the institutional mechanism for appointment of judges ofconstitutional courts is replaced. According to the petitioners, theAMENDMENT is a brazen attempt by the Executive branch to grab the power ofappointing Judges to CONSTITUTIONAL COURTS. Such shift of power into thehands of Executive would enable packing of the CONSTITUTIONAL COURTS withpersons who are likely to be less independent.91. It is further argued that the principles laid down in the Second andThird Judges cases are not based purely on the interpretation of the textof the Constitution as it stood prior to the impugned AMENDMENT but also onthe basis of a fundamental Constitutional principle that an independentjudiciary is one of the basic features of the Constitution. The procedurefor appointment of the Judges of the CONSTITUTIONAL COURTS is an importantelement in the establishment and nurturing of an independent judiciary.Such conclusion not only flows from the text of the Articles 124 and 217 asthey stood prior to the impugned AMENDMENT but flow from a necessaryimplication emanating from the scheme of the Constitution as evidenced byArticles 32, 50, 112(3)(d), 113(1), 203(1), 125(2), 221(2) etc.92. Mr. Nariman, learned Senior Counsel appearing for one of thepetitioners emphatically submitted that he is not against change of themechanism provided under Articles 124 and 217. He submitted that thisaspect of the matter fell for consideration of Justice M.N. VenkatachaliahCommission[183], which also recommended creation of a National JudicialAppointments Commission but with a slightly different composition[184]. Ifreally Parliament wanted to change in the mechanism for the selection ofthe members of the superior judiciary, the model recommended by the JusticeM.N. Venkatachaliah Commission could well have been adopted. According toMr. Nariman the model identified by Venkatachaliah Commission is moresuitable for preservation of independence of the judiciary than the modeladopted in the AMENDMENT. Mr. Nariman further argued that no reasons aregiven by the Union of India explaining why recommendations of the JusticeM.N. Venkatachaliah Commission were not accepted.93. On the other hand, it is submitted by the learned Attorney Generaland other senior counsel appearing for various respondents;(i) Parliament’s power to amend the Constitution is plenary subject onlyto the limitation that it cannot abrogate the basic structure of theConstitution. The AMENDMENT in no way abrogates the basic structure of theConstitution. (ii) Independence of judiciary is not the only objective envisagedby the Constitution, it also envisages an efficient judiciary. To achievesuch twin objects, Parliament in its wisdom thought that the selectionprocess of the members of the CONSTITUTIONAL COURTS as it existed prior tothe AMENDMENT required modification. The wisdom of Parliament is notamenable to the scrutiny of this Court, even in the context of ordinarylegislation. Logically, a constitutional amendment therefore should enjoya greater degree of immunity.In other words, where the goal sought to be achieved by Parliament isconstitutionally legitimate, the legislation by which such a goal is soughtto be achieved can be questioned only on limited grounds. They are (i)lack of legislative competence, (ii) the legislation violates any one ofthe fundamental rights enumerated in Part III of the Constitution, or is incontravention of some other express prohibition of the Constitution.Absent such objectionable features, the possibility that the goal sought tobe achieved by the legislation can be achieved through modes other than theone chosen by the legislation can never be a ground for invalidating evenan ordinary legislation as has been consistently held by this Court. Inthe case of a constitutional amendment question of legislative competencein the above-mentioned sense and conflict with the other provisions of theConstitution are irrelevant and does not arise. (iii) Checks and balances of powers conferred by the Constitution onthe three great branches of governance – Legislature, Executive andJudiciary is the most basic feature of all democratic constitutions.Absolute independence of any one of the three branches is inconsistent withcore democratic values and the scheme of our Constitution. This Court byan interpretative process of the Constitution as it stood prior to theAMENDMENT disturbed such balance. The AMENDMENT only seeks to restoresuch balance and therefore cannot be said to be destructive of the basicstructure of the Constitution.(iv) That the law laid down by this Court in Second and Third Judges caseis no more relevant in view of the fact that the text of the Constitutionwhich was the subject matter of interpretation in the said cases standsamended. In the light of well settled principles of interpretation ofstatutes the law laid down in those two cases is no more a good law. It isfurther argued that in the event this Court comes to the conclusion thatthe law laid down in the abovementioned two judgments has some relevancefor determining the constitutional validity of the AMENDMENT and also thecorrectness of the principles laid down in those judgments requiresreconsideration by a Bench of appropriate strength. According to theAttorney General and other learned counsel for respondents, theabovementioned two judgments are contrary to the text of the Constitutionas it stood then and in complete disregard of the constitutional historyand background of the relevant provisions. It is further submitted thatunder the scheme of the Constitution, neither this Court nor High Courtsare conferred unqualified autonomy though a large measure of autonomy isconferred under various provisions. For example the salaries, privilegesand allowances, pension etc. could still be regulated by law made byParliament under Article 125 and 221, 137, 140, 145 etc.(v) It is submitted that independence of the judiciary is indisputably abasic feature of the Constitution. An essential element of this basicfeature is that the President (Executive) should not have an unfettereddiscretion in such appointment process but not that the opinion of the CJI(Collegium) should have primacy or dominance. The judgments of this Courtin the Second and Third Judges cases are not only counter textual but alsoplainly contrary to the intent of the Constituent Assembly and clearlybeyond limits of judicial power, it is an exercise of constituent authorityin the disguise of interpretation. Under the AMENDMENT, the President hasno discretion in the matter of appointment of Judges of CONSTITUTIONALCOURTS. He is bound by the recommendation of the NJAC wherein members ofthe judiciary constitute the single largest group. Parliament exercisingconstituent power (under Article 368) considered it appropriate thatrepresentatives of the Civil Society should be accorded a participatoryrole in the process of appointments to CONSTITUTIONAL COURTS and that theirpresence would be a check on potential and consequently ruinous ‘tradeoffs’; (i) between and amongst the three members representing the judiciaryand (ii) between the judiciary and the executive; and would accentuatetransparency to what had hitherto been an opaque process. Such wisdom ofthe Parliament in not open to question. It is an established andvenerated principle that the Court would not sit in judgment over thewisdom of Parliament even in respect of an ordinary legislation; aconstitutional amendment invites a greater degree of deference. (vi) Even under the scheme of the AMENDMENT, judiciary has a pre-dominant role. The apprehension that, under the new dispensation, Executivewould have the opportunity of packing the CONSTITUTIONAL COURTS of thiscountry with cronies is illogical and baseless. The presence of threesenior most Judges of this Court in the NJAC is a wholesome safeguardagainst such possibility. Any two of the three Judges can stall such aneffort, if ever attempted by the Executive.(vii) The fact that a Commission headed by Justice M.N.Venkatachaliah madecertain recommendations need not necessarily mean that the model suggestedby the Commission is the only model for securing independence of thejudiciary or the best model. At any rate, the choice of the appropriatemodel necessarily involves a value judgment. The model chosen by theParliament in exercise of its constituent powers cannot be held to beunconstitutional only on the ground that in the opinion of some, there arebetter models or alternatives. Such a value judgment is exclusively in therealm of the Parliament’s constituent powers. It is also argued that themechanism for selection of members of the constitutional courts asexpounded in the Second and the Third Judges cases, even according to Mr. Nariman’s opinion is not the best. Mr. Nariman is on recordstating so in one of the books authored by him “Before Memory Fades : AnAutobiography”[185].94. Any appointment process established under the Constitution mustnecessarily be conducive for establishment of not only an independentjudiciary but also ensure its efficiency. Two qualities essential forpreservation of liberty.“In order to lay a due foundation for that separate and distinct exerciseof the different powers of government, which to a certain extent isadmitted on all hands to be essential to the preservation of liberty, it isevident that each department should have a will of its own, andconsequently should be so constituted that the members of each should haveas little agency as possible in the appointment of the members of theothers. Were this principle rigorously adhered to, it would require thatall the appointments for the supreme executive, legislative, and judiciarymagistracies should be drawn from the same fountain of authority, thepeople, through channels having no communication whatever with one another. Some difficulties, and some additional expense would attend the executionof it. Some deviations, therefore, from the principle must be admitted.In the constitution of the judiciary department in particular, it might beinexpedient to insist rigorously on the principle: first, because peculiarqualifications being essential in the members, the primary considerationought to be to select that mode of choice which best secures thesequalifications.”[186] [emphasis supplied]Judges who could decide causes brought before them expeditiously andconsistent with applicable principles of jurisprudence, generateconfidence, in litigants and the polity that they indeed dispense justice.Whether the appointment process prior to the AMENDMENT yielded suchappointments has been deeply contentious. As submitted by the learnedAttorney General, the history of appointments to CONSTITUTIONAL COURTS inour Republic could be divided into two phases – pre and post Second Judgescase. No doubt during both phases, the appointment process yielded mixedresults, on the index of both independence and efficiency. Some outstandingand some not so outstanding persona came to be appointed in both phases.Allegations of seriously unworthy appointments abound but our systemprovides for no mechanism for audit or qualitative analysis. Such systemicdeficit has pathological consequences.95. Parliament representing the majoritarian will was satisfied that theexisting process warrants change and acted in exercise of its constituentpower and concomitant discretion. Such constituent assessment of the needis clearly off limits to judicial review. Whether curative ushered in bythe AMENDMENT transgresses the permissible limits of amendatory power iscertainly amenable to Judicial Review because of the law declared inBharati case and followed consistently thereafter.96. The text and scheme of the AMENDMENT excludes discretion to thePresident in making appointments to CONSTITUTIONAL COURTS and the Presidentis required to accept recommendations by the NJAC. The amended Articlesstipulate that judges of CONSTITUTIONAL COURTS shall be appointed by thePresident ……. on the recommendation of the NJAC.97. Prior to the AMENDMENT, there were only two parties to theappointment process, the Executive and the Judiciary. The relativeimportance of their roles varied from time to time. The AMENDMENT makesthree important changes - (i) primacy of judiciary is whittled down; (ii)role of the executive is also curtailed; and (iii) representatives ofcivil society are made part of the mechanism.98. Primacy of the opinion of judiciary in the matter of judicialappointments is not the only means for the establishment of an independentand efficient judiciary. There is abundance of opinion (in discerning andresponsible quarters of the civil society in the legal fraternity, jurists,political theorists and scholars) that primacy to the opinion of judiciaryis not a normative or constitutional fundamental for establishment of anindependent and efficient judiciary. Such an assumption has been proved tobe of doubtful accuracy. It is Parliament’s asserted assumption thatinduction of civil society representation will bring about criticallydesirable transparency, commitment and participation of the ultimatestakeholders – the people. The fountain of all constitutional authority,to ensure appointment of the most suitable persons with due regard tolegitimate aspirations of the several competing interests. Variousdemocratic societies have and are experimenting with models involvingassociation of civil society representation in such selection process.Assessment of the product of such experiments are however inconclusive.The question is not whether the model conceived by the AMENDMENT wouldyield a more independent and efficient judiciary. The question is whetherParliament’s wisdom and authority to undertake such an experiment by resortto constituent power is subject to curial audit.99. As rightly pointed out by the Attorney General, the basic feature ofthe Constitution is not primacy of the opinion of the CJI (Collegium) butlies in non investiture of absolute power in the President (Executive) tochoose and appoint judges of CONSTITUTIONAL COURTS. That feature is notabrogated by the AMENDMENT. The Executive may at best only make a proposalthrough its representative in the NJAC, i.e. the Law Minister. Suchproposal, if considered unworthy, can still be rejected by the othermembers of the NJAC. The worth of a candidate does not depend upon whoproposes the name nor the candidate’s political association, if any, shouldbe a disqualification.“………, even party men can be fiercely independent after being appointedjudges, as has been proved by some judges who were active in politics.Justice K.S. Hegde served as a member of Rajya Sabha from 1952 to 1957 andwas elevated as a High Court judge directly from Rajya Sabha. Though hewas a congress MP, he proved to be so independent that he was superseded in1973 in the appointment of the CJI by his own party’s government. JusticeTekchand was also a member of Rajya Sabha before becoming a judge. He wasappointed when he was a sitting MP, but he proved to be a fine judge whosereport on prohibition is a landmark. Another prominent example is JusticeV.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 the Namboodiripadgovernment (1957-59) in Kerala. In 1973, Justice S.M. Sikri, the CJI, wastotally opposed to the elevation of Justice Iyer to the apex court on theground that he had been a politician who held the office of a cabinetminister in Kerala. It was A.N. Ray who cleared his elevation, and JusticeIyer proved to be a luminous example of what a judge ought to be. He wasone of the finest judges who ever sat on the bench of the Supreme Court whotried to bridge the gap between the Supreme Court and the common people.There is also the example of Justice Bahrul Islam who served as a member ofRajya Sabha for 10 years before being appointed a High Court judge. He wassubsequently elevated to the Supreme Court. He absolved Jagannath Mishra,the Chief Minister of Bihar, in the urban cooperative bank scandal, andimmediately thereafter resigned to contest the Lok Sabha election as aCongress(I) candidate from Barpeta – he never enjoyed a clean reputation.So, it is not proper to make any generalization. People of impeccablerectitude have to be handpicked.” [187]100. Critical analysis of Articles 124, 217 and 124-A and 124-B leads tothe position that the Executive Branch of Government cannot push through an‘undeserving candidate’ so long as at least two members representing theJudicial Branch are united in their view as to unsuitability of thatcandidate. Even one eminent person and a single judicial member of NJACcould effectively stall entry of an unworthy appointment. Similarly, thejudicial members also cannot push through persons of their choice unless atleast one other member belonging to the non-judicial block supports thecandidate proposed by them.101. A democratic form of government is perhaps the best institutioninvented for preservation of liberties. At least that is the belief ofsocieties which adopt this model of governance. True, there are manyvariants of democracy. Analysis of the variants is outside the scope ofthis judgment. Under any constitutional model, primary responsibility topreserve liberties of the people is entrusted to the legislative andexecutive branches. Such entrustment is predicated on the structural andempirical assumption that legislators chosen periodically would strive toprotect the liberties of their “only masters – the people”. This is fortwo reasons operating in tandem. They are the obligation to discharge thetrust reposed and the fear of losing the glory of being the chosenrepresentative. An in built possibility in the system of periodicelections.102. To assume or assert that judiciary alone is concerned with thepreservation of liberties and does that job well, is an assumption that isdogmatic, bereft of evidentiary basis and historically disproved. Eminentconstitution jurist and teacher Laurence H. Tribe has the following to sayin the context of the American experience.“No one should assume that the Supreme Court need always strike down lawsand executive actions in order to protect our liberties. On the contrary,sometimes the Court best guarantees our rights by deferring to, rather thanoverruling, the political branches. When the Supreme Court, from 1900 to1937, struck down dozens of child labor laws, minimum wage laws, workingcondition regulations, and laws protecting workers; rights to organizeunions, on the ground that such rules infringed on property rights andviolated “liberty of contract,” the only rights the Court really vindicatedwere the rights to be overworked, underpaid, or unemployed. The Courteventually reversed itself on these issues when it recognized that, intwentieth-century America, such laws are not intrusions upon human freedomin any meaningful sense, but are instead entirely reasonable and just waysof combating economic subjugation. In upholding a minimum wage law in thewatershed case of West Coast Hotel v. Parrish, the Supreme Court concludedin 1937 that, in the light of “recent economic experience”, such statuteswere justified because they prevent “the exploitation of a class of workersin ways detrimental to their health and well being.”Naturally, in this imperfect world, the Supreme Court has not alwaysguarded our liberties as jealously as it should. During the First WorldWar and again in the McCarthy era, the Court often shrank from theaffirmation of our rights to think and speak as we believe. And in thewar hysteria following bombing of Pearl Harbor, the Supreme Court inKorematsu v. United States upheld the imprisonment of thousands ofAmericans of Japanese ancestry who had committed no crime. In light ofsuch lapses, some have argued that when it comes to protecting fundamentalrights, the Supreme Court is essentially redundant: on most occasions theCongress and the President will adequately safeguard our rights, and inthose difficult times when the political branches cannot be counted on,neither can the Court.”[188]103. Our experience is not dissimilar. Judgments in A.K. Gopalan[189],Sankalchand[190] and ADM Jabalpur[191] (to mention a few) should lead to anidentical inference that in difficult times when political branches cannotbe counted upon, neither can the Judiciary. The point sought to behighlighted is that judiciary is not the ONLY constitutional organ whichprotects liberties of the people. Accordingly, primacy to the opinion ofthe judiciary in the matter of judicial appointments is not the only modeof securing independence of judiciary for protection of liberties.Consequently, the assumption that primacy of the Judicial Branch in theappointments process is an essential element and thus a basic feature isempirically flawed without any basis either in the constitutional historyof the Nation or any other and normatively fallacious apart from beingcontrary to political theory.104. I now deal with the submission that presence of the law minister inthe NJAC undermines independence of judiciary. According to thepetitioners, the presence of a member of the Executive invariably has theeffect of shifting the power dynamics. The presence of the Law Minister inthe NJAC which confers 1/6 of the voting power per se undermines theindependence of the judiciary. The submission is untenable. The Executivewith a vast administrative machinery under its control is capable of makingenormous and valuable contribution to the selection process. The objectionis justified to some extent on the trust deficit in the Executive Branch inthe constitutional sense[192], to be a component of the NJAC. The samelogic applies a fortiari to the Judicial branch, notwithstanding the beliefthat it is the least dangerous branch. The Constituent Assemblyemphatically declined to repose exclusive trust even in the CJI. Towholly eliminate the Executive from the process of selection would beinconsistent with the foundational premise that government in a democracyis by chosen representatives of the people. Under the scheme of ourConstitution, the Executive is chartered clear authority to administercritical areas such as defence of the realm, internal security, maintenanceof public order, taxation, management of fiscal policies and a host ofother aspects, touching every aspect of the administration of the Nationand lives of its people. In this context, to hold that it should be totallyexcluded from the process of appointing judges would be wholly illogicaland inconsistent with the foundations of the theory of democracy and adoctrinal heresy. Such exclusion has no parallel in any other democracywhose models were examined by the Constituent Assembly and none other werebrought to our notice either. Established principles of constitutionalgovernment, practices in other democratic constitutional arrangements andthe fact that the Constituent Assembly provided a role for the Executiveclearly prohibit the inference that Executive participation in theselection process abrogates a basic feature. The Attorney General is rightin his submission that exclusion of the Executive Branch is destructive ofthe basic feature of checks and balances – a fundamental principle inconstitutional theory.105. That takes me to the second provision which is under challenge.Article 124A.(1)(d) which stipulates that the NJAC should consist of twoeminent persons[193]. Considerable debate took place during the course ofhearing regarding validity of this provision, the gist of which is capturedin the judgment of Khehar, J. The attack is again on the ground that theprovision is utterly without guidance regarding the choice of eminentpersons. Petitioners argued that (i) there could be bipartisan compromisebetween the party in power and the opposition, resulting in sharing the twoslots earmarked for eminent persons. Such possibility would eventuallyenable political parties to make appointments purely on politicalconsiderations, thereby destroying independence of judiciary; (ii) evenassuming that the two eminent persons nominated are absolute politicalneutrals, but are strangers to the judicial system, they would not be ableto make any meaningful contribution to the selection process, as they wouldhave no resources to collect appropriate data relevant for the decisionmaking process; (iii) the possibility of two eminent persons vetoing thecandidature of a person approved unanimously by the three judicial membersof the NJAC itself is destructive of the basic structure.106. Transparency is a vital factor in constitutional governance. ThisCourt in innumerable cases noted that constitutionalism demands rationalityin every sphere of State action. In the context of judicial proceedings,this Court held in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra& Anr.[194]:“20. ……………….Public trial in open court is undoubtedly essential for thehealthy, objective and fair administration of justice. Trial held subjectto the public scrutiny and gaze naturally acts as a check against judicialcaprice or vagaries, and serves as a powerful instrument for creatingconfidence of the public in the fairness, objectivity, and impartiality ofthe administration of justice. Public confidence in the administration ofjustice is of such great significance that there can be no two opinions onthe broad proposition that in discharging their functions as judicialtribunals, courts must generally hear causes in open and must permit thepublic admission to the court-room. As Bentham has observed:“In the darkness of secrecy sinister interest, and evil in every shape,have full swing. Only in proportion as publicity has place can any of thechecks applicable to judicial injustice operate. Where there is nopublicity there is no justice. Publicity is the very soul of justice. It isthe keenest spur to exertion, and surest of all guards against improbity.It keeps the Judge himself while trying under trial (in the sense that) thesecurity of securities is publicity.”Transparency is an aspect of rationality. The need for transparency ismore in the case of appointment process. Proceedings of the collegium wereabsolutely opaque and inaccessible both to public and history, barringoccasional leaks. Ruma Pal , J. is on record -“Consensus within the collegium is sometimes resolved through a trade-offresulting in dubious appointments with disastrous consequences for thelitigants and the credibility of the judicial system. Besides,institutional independence has also been compromised by growing sycophancyand ‘lobbying’ within the system.”[195]One beneficial purpose the induction of representatives of civil societywould hopefully serve is that it acts as a check on unwholesome trade-offswithin the collegium and incestuous accommodations between Judicial andExecutive branches. To believe that members of the judiciary alone couldbring valuable inputs to the appointment process requires great conceit anddisrespect for the civil society. Iyer, J. cautioned -“74. ………… And when criteria for transfers of Judges are put forward by thePresident which may upset past practices we must, as democrats, rememberLearned Hand who once said that the spirit of liberty is “the spirit whichis not too sure that it is right”. That great Judge was fond of recallingCromwell’s statement : “I beseech ye in the bowels of Christ, think that yemay be mistaken.” He told a Senate Committee. “I should like to have thatwritten over the portals of every church, every school and every court-house, any may I say, of every legislative body in the United States. Ishould like to have every court begin “I beseech ye in the bowels ofChrist, think that we may be mistaken.” (Yale Law Journal : Vol.71 : 1961,November part).”[196] [emphasis supplied]Replace “transfers” and “President” with “appointments” 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 thepetitioners might come true. The possibility of abuse of a power conferredby the Constitution is no ground for denying the authority to confer suchpower. Bachawat, J. in I.C. Golak Nath (supra) opined as follows:“235. It is said that the Parliament is abusing its power of amendment bymaking too many frequent changes. If the Parliament has the power to makethe amendments, the choice of making any particular amendment must be leftto it. Questions of policy cannot be debated in this Court. The possibilityof abuse of a power is not the test of its existence. In Webb v.Outrim [1907] A.C. 81, Lord Hobhouse said, "If they find that on the dueconstruction of the Act a legislative power falls within S. 92, it would bequite wrong of them to deny its existence because by some possibility itmay of be abused, or limit the range which otherwise would be open to theDominion Parliament". With reference to the doctrine of implied prohibitionagainst the exercise of power ascertained in accordance with ordinary rulesof construction, Knox C.J., in the Amalgamated Society of Engineers v. TheAdelaide Steamship Company Limited 129 C.L.R. 151, said, "It means thenecessity of protection against the aggression of some outside and possiblyhostile body. It is based on distrust, lest powers, if once conceded to theleast degree, might be abused to the point of destruction. But possibleabuse of power is no reason in British law for limiting the natural forceof the language creating them".However, it was a dissenting opinion. But this Court in I.R. Coelho(supra), Sabharwal, J. speaking for a unanimous Bench of nine Judges, heldas follows:“76. It is also contended that the power to pack up laws in the NinthSchedule in absence of any indicia in Article 31B has been abused and thatabuse is likely to continue. It is submitted that the Ninth Schedule whichcommenced with only 13 enactments has now a list of 284 enactments. Thevalidity of Article 31B is not in question before us. Further, merepossibility of abuse is not a relevant test to determine the validity of aprovision. The people, through the Constitution, have vested the power tomake laws in their representatives through Parliament in the same manner inwhich they have entrusted the responsibility to adjudge, interpret andconstrue law and the Constitution including its limitation in thejudiciary. We, therefore, cannot make any assumption about the allegedabuse 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 structure it so as toeliminate the potential for abuse. The power to nominate two eminentpersons is conferred upon three high constitutional functionaries – thePrime Minister, the Leader of the Opposition and the CJI. It is elementarypolitical knowledge that the Prime Minister and the Leader of Oppositionwould always have conflicting political interests and would rarely agreeupon any issue. Nonetheless, possibility of a bipartisan compromise cannotbe ruled out. Though, the presence of CJI in the Committee should normallybe a strong deterrent, the possibility of the CJI failing to perceive apolitical compromise or helplessness in the event of such compromise,cannot be ruled out.108. It is incontestable that nomination of eminent persons is not immuneto judicial review. There is thus possibility of delay in functioning ofNJAC and inevitably the process of appointments to CONSTITUTIONAL COURTS.It is, therefore, essential that there must be an entrenched process ofnomination of eminent persons which eliminates risk of possible bipartisancompromises. The only conceivable curative is to incorporate another tierof scrutiny in the process of nomination. In my considered view, thefollowing safeguard would bring this process within permissible contours ofthe basic feature simultaneously eliminating the ‘delay factor’. TheCommittee contemplated under Article 124-A(1)(a) should prepare a panel ofthree members for each of the two categories of the nominees (for eminentpersons) – in all a panel of six persons. Such panel should be placedbefore the full house of the Supreme Court for voting. Nominees securingthe highest vote in each of the two categories should eventually benominated as eminent members of the NJAC. Such procedure would stillpreserve the choice of eminent persons primarily with the Committeecontemplated under Article 124-A, while incorporating sufficient safeguardagainst possible abuse of the power by the Committee.109. The third provision whose validity is under attack is Article 124B(c), which obligates NJAC to ensure that the person recommended is ofability and integrity. The challenge is on the ground that the AMENDMENTdoes not lay down any guidelines to be followed by the NJAC for assessingability and integrity. Even in the absence of any express declaration,such an obligation is inherent and implied, having regard to functionalresponsibilities entrusted to the NJAC. The precision is only anabundanti cautela. Perhaps prompted by certain bad experiences of thepast, both pre and post Second Judges case.110. Having regard to the nature (i) of the document by which suchobligation is created; (ii) the composition of the body (NJAC) upon whichthe obligation is cast; and (iii) the nature of the assignment, theargument is required to be rejected. NJAC is a constitutional authoritycreated to perform an important constitutional function. Its charter isthe Constitution itself. Notwithstanding, the prolixity of ourConstitution, a constitution is not expected or required to spell out everyminute detail regarding administration of the State. In the context of theAmerican Constitution, it is said that the Constitution is an intentionallyincomplete, often deliberately indeterminate structure for theparticipatory evolution of political ideals and governmental practices.Constitutions enumerate structural arrangements of Government and specifythe outer limits of powers of each organ of the State. Within such limits,how the various organs of the State ought to discharge their allocatedfunctions is a matter of detail, either to be provided by law orconvention. All written democratic Constitutions are full of abstract moralcommands!111. Three members of the highest judicial body of this country, a memberof the Union Cabinet and two eminent persons chosen by a Committeeconsisting of three exalted office holders under the Constitutionconstitute the NJAC. To suggest that the NJAC requires detailed guidelinesexpressly spelt out in the text of the Constitution amounts to judiciallymandating inflexible standards for constitutional drafting. The task ofexpounding a Constitution is crucially different from that of construing astatute.112. Provisions of the Constitution are not to be interpreted in a broadand liberal way. They are not to be construed in the manner in which apiece of subordinate legislation or, for that matter, even a statute isrequired to be interpreted. This Court in S.R. Bommai had an occasion toconsider this question. Dealing with the authority of the President underArticle 356 of the Constitution of India and whether the exercise of suchauthority by the President is amenable to judicial review on the parametersenunciated by this Court in Barium Chemicals Ltd. v. Company Law Board, AIR1967 SC 295, rejected the submission.“35. ………… The test laid down by this Court in Barium Chemicals Ltd. v.Company Law Board and subsequent decisions for adjudging the validity ofadministrative action can have no application for testing the satisfactionof the President under Article 356. It must be remembered that the powerconferred by Article 356 is of an extraordinary nature to be exercised ingrave emergencies and, therefore, the exercise of such power cannot beequated to the power exercised in administrative law field and cannot,therefore, be tested by the same yardstick. …….255. …….. The exercise of the power under Article 356 is a constitutionalexercise of the power. The normal subjective satisfaction of anadministrative decision on objective basis applied by the courts toadministrative decisions by subordinate officers or quasi-judicial orsubordinate legislation does not apply to the decision of the Presidentunder Article 356.373. …….. So far as the approach adopted by this Court in BariumChemicals6 is concerned, it is a decision concerning subjectivesatisfaction of an authority created by a statute. The principles evolvedthen cannot ipso facto be extended to the exercise of a constitutionalpower under Article 356. Having regard to the fact that this is a highconstitutional power exercised by the highest constitutional functionary ofthe Nation, it may not be appropriate to adopt the tests applicable in thecase of action taken by statutory or administrative authorities — nor atany rate, in their entirety.”113. Such a test is relevant only for bodies created by statutes andsubordinate legislation. The functioning of any constitutional body isonly disciplined by appropriate legislation. Constitution does not laydown any guidelines for the functioning of the President and Prime Ministernor the Governors or the Chief Ministers. Performance of constitutionalduties entrusted to them is structured by legislation and constitutionalculture. The provisions of the Constitution cannot be read like a last willand testament lest it becomes one. Even prior to the AMENDMENT, theconstitutional text had no express guidelines for the President and the CJIto follow. It is however nobody’s case that the pre-AMENDMENT selectionscenario conferred any uncanalised discretion and therefore resulted insome undesirable judicial appointments. If in practice, occasionallypersonal preferences outweighed concerns of public interest resulting inundesirable appointments, it is not because of constitutional silences inthis area but because of shortcomings in the ethical standards of theparticipants in the selection process. After the AMENDMENT, the obligationis unvaried. The only change is in the composition of the players to whomthe task is entrusted and the mode of performing the task is altered with aview to achieve greater degree of transparency in the selection process.To contend that the AMENDMENT is destructive of the basic structure sinceit does not lay down any guidelines tantamounts to holding that the designof the Constitution as originally enacted is defective!114. The next submission which is required to be dealt is that Section6(6) of the ACT which stipulates that if any two members of the NJAC donot agree with the recommendation proposed by the NJAC, the NJAC shall notrecommend such candidate. In the opinion of the petitioners, it is aprovision which confers veto power on two members of the NJAC to scuttleproposals. It is submitted that though the provision is faciallyinnocuous, in practice, this would result in giving the Executive a powerof veto to reject the proposals made by the three judicial members of theNJAC. Such a provision is violative of the basic structure of theConstitution. It is further argued that though the provision is not partof the AMENDMENT, since the AMENDMENT and the ACT are made simultaneouslyand the ACT being complementary to the AMENDMENT, the ACT must beunderstood 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 ofthe basic structure of the Constitution.115. The respondents submitted that Section 6(6) of the ACT onlyprescribes a special majority for sanctifying the recommendations of NJAC.Prescription of special majorities in law is a known phenomenon. TheConstitution itself prescribes special majorities in certain cases. Forexample, Article 368(2) prescribes a special majority for amending theConstitution. Similarly, Article 124(4) prescribes a special majority forthe impeachment of judges of the CONSTITUTIONAL COURTS. It is argued thatthe petitioners presumption that only Government could take advantage ofthe prescription under Section 6(6) is totally baseless. In a given caseit may happen that two judicial members of the NJAC can turn down theproposal of the NJAC. Learned Attorney General also submitted that such aprescription of a special majority is also a part of the regime createdunder Second Judges case and, therefore, there is nothing constitutionallyobjectionable in such a prescription.116. The question whether the content of Section 6(6) confers a power ofveto or prescribes a special majority is only of semantic relevance.Whatever name we call it, the result is the same. The two members of theNJAC can override the opinion of the other four and stall therecommendation. I do not find anything inherently illegal about such aprescription. For the purpose of the present case, I do not even want toembark upon an enquiry whether the constitutional fascination for the basicstructure doctrine be made a Trojan horse to penetrate the entirelegislative camp. For my part, I would like to examine the question ingreater detail before answering the question. There are conflicting viewsof this Court on this proposition.[197] In my opinion, such an enquiry isnot required in this case in view of the majority decision that theAMENDMENT is unsustainable. Some of the learned counsel for thepetitioners placed reliance on S.R. Bommai case as a justification for theinvocation of the doctrine of basic structure.117. Only to indicate but not determine conclusively the scope of theenquiry to answer the submission of the petitioners, I examine S.R. Bommaicase. The question before this Court was whether the action of thePresident in invoking the powers under Article 356 was constitutionallytenable? In other words, whether the material on which the President actedwas constitutionally relevant for the invocation of powers under Article356. The submission of the petitioners before this Court was that theexercise of powers under Article 356 was inconsistent with two features ofthe Constitution, i.e. the democracy and federalism, therefore, destructiveof the basic structure, as the Presidential action under Article 356resulted in the super session of the democratically elected StateGovernments by the Union Government.118. Repelling the contention, this Court held that secularism is also oneof the basic features of the Constitution. The conscious inaction of thevarious State Governments and consequential failure to prevent certainactivities which in the opinion of the petitioners (endorsed by this courtby the judgment) would ultimately result in the destruction of the secularfabric of the Constitution has certainly a relevant consideration for theexercise of extraordinary powers vested in the President under Article 356. Because Article 356 obligates the President to resort to the actioncontemplated thereunder only if the President is satisfied that a situationhas arisen in which the Government of the State cannot be carried on inaccordance with the provisions of the Constitution. Failure of the StateGovernment to prevent activities which are bound to destroy the communalharmony between people following different religions is certainlyinconsistent with the constitutional obligation of the State to upheld theConstitution of which secularism is a basic feature. S.R. Bommai case isno authority for the proposition that the validity of a legislation isamenable to judicial review on the ground of the basic structure doctrine.119. The fiasco created in Dinakaran case (supra) and Shanti Bhushan case(supra) would justify the participation of the members of the civil societyin the process to eliminate from the selection process the maladiesinvolved in the process pointed out by Ruma Pal, J. The abovementioned twoare not the only cases where the system failed. It is a matter of publicrecord 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 berejected by the collegium of the Supreme Court. There are also cases wherethe collegium of this Court quickly retraced its steps having rejected therecommendations of a particular name made by the High Court collegiumgiving scope for a great deal of speculation as to the factors which musthave weighed with the collegium to make such a quick volteface. Suchdecisions may be justified in some cases and may not in other cases. Thereis no accountability in this regard. The records are absolutely beyond thereach of any person including the judges of this Court who are not luckyenough to become the Chief Justice of India. Such a state of affairs doesnot either enhance the credibility of the institution or good for thepeople of this country.120. For all the abovementioned reasons, I would upheld the AMENDMENT.However, in view of the majority decision, I do not see any useful purposein examining the constitutionality of the ACT.121. Only an independent and efficient judicial system can createconfidence in the society which it serves. The ever increasing pendency ofmatters before various CONSTITUTIONAL COURTS of this country is clearly nota certificate of efficiency. The frequency with which the residuaryjurisdiction of this Court under Article 136 is invoked seeking correctionof errors committed by the High Courts, some of which are trivial and someprofound coupled with bewildering number of conflicting decisions renderedby the various benches of this Court only indicate that a comprehensivereform of the system is overdue. Selection process of the Judges to theCONSTITUTIONAL COURTS is only one of the aspect of such reforms. Anattempt in that direction, unfortunately, failed to secure the approval ofthis Court leaving this Court with the sole responsibility and exclusiveaccountability of the efficiency of the legal system. I only part withthis case recollecting the words of Macaulay – “reform that you maypreserve”[198]. Future alone can tell whether I am rightly reminded ofthose words or not. …………………………..J. ( J. Chelameswar )New Delhi;October 16, 2015. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTON WRIT PETITION (CIVIL) NO.13 OF 2015Supreme Court Advocates-on-Record-Association and another …Petitioners VersusUnion of India ..RespondentWITHWRIT PETITION (CIVIL) NO. 14 OF 2015WRIT PETITION (CIVIL) NO. 18 OF 2015WRIT PETITION (CIVIL) NO. 23 OF 2015WRIT PETITION (CIVIL) NO. 24 OF 2015WRIT PETITION (CIVIL) NO. 70 OF 2015WRIT PETITION (CIVIL) NO. 83 OF 2015TRANSFER PETITION (CIVIL) NO. 391 OF 2015WRIT PETITION (CIVIL) NO. 108 OF 2015WRIT PETITION (CIVIL) NO. 124 OF 2015WRIT PETITION (CIVIL) NO. 209 OF 2015 O R D E RMadan B. Lokur, J.1. I have had the benefit of going through the draft orderprepared by my learned brothers Justice Khehar, Justice Chelameswar andJustice Kurian Joseph. While endorsing the view expressed by my learnedbrothers Justice Khehar and Justice Chelameswar, I would like to add a fewwords on the procedural aspect of dealing with an application for recusal.2. Justice Khehar has mentioned in Paragraph 17 of the draft orderas 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 for therecusal of a judge from hearing a case, the application is made to theconcerned judge and not to the Bench as a whole. Therefore, my learnedbrother Justice Khehar is absolutely correct in stating that the decisionis entirely his, and I respect his decision.4. In a detailed order pronounced in Court on its own motion v. State& Others[199] reference was made to a decision of the Supreme Court of theUnited States in Jewell Ridge Coal Corporation v. Local No. 6167, UnitedMine Workers of America[200], wherein it was held that a complaint as tothe qualification of a justice of the Supreme Court to take part in thedecision of a cause cannot properly be addressed to the Court as a wholeand it is the responsibility of each justice to determine for himself thepropriety of withdrawing from a case.5. This view was adverted to by Justice Rehnquist in Hanrahan v.Hampton[201] in the following words:-“Plaintiffs-respondents and their counsel in these cases have moved that Ibe recused from the proceedings in this case for the reasons stated intheir 14-page motion and their five appendices filed with the Clerk of thisCourt on April 3, 1980. The motion is opposed by the state-defendantpetitioners in the action. Since generally the Court as an institutionleaves such motions, even though they be addressed to it, to the decisionof 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 treat the motion as addressed to meindividually. I have considered the motion, the Appendices, the responseof the state defendants, 28 U.S.C. 455 (1976 ed. And Supp. II), and thecurrent American Bar Association Code of Judicial Conduct, and the motionis accordingly denied.”6. The issue of recusal may be looked at slightly differentlyapart from the legal nuance. What would happen if, in a Bench of fivejudges, an application is moved for the recusal of Judge A and afterhearing the application Judge A decides to recuse from the case but theother four judges disagree and express the opinion that there is nojustifiable reason for Judge A to recuse from the hearing? Can Judge A becompelled to hear the case even though he/she is desirous of recusing fromthe hearing? It is to get over such a difficult situation that theapplication for recusal is actually to an individual judge and not theBench as a whole.7. As far as the view expressed by Justice Kurian Joseph thatreasons should be given while deciding an application for recusal, I wouldprefer not to join that decision. In the first place, giving or not givingreasons was not an issue before us. That reasons are presently being givenis a different matter altogether. Secondly, the giving of reasons isfraught with some difficulties. For example, it is possible that in agiven case, a learned judge of the High Court accepts an application forhis/her recusal from a case and one of the parties challenges that order inthis Court. Upon hearing the parties, this Court comes to the conclusionthat the reasons given by the learned judge were frivolous and thereforethe order is incorrect and is then set aside. In such an event, can thisCourt pass a consequential order requiring the learned judge to hear thecase even though he/she genuinely believes that he/she should not hear thecase?8. The issue of recusal from hearing a case is not as simple as itappears. The questions thrown up are quite significant and since it appearsthat such applications are gaining frequency, it is time that someprocedural and substantive rules are framed in this regard. If appropriaterules are framed, then, in a given case, it would avoid embarrassment toother judges on the Bench. …………………………JNew Delhi (Madan B. Lokur)October 16, 2015 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 13 OF 2015Supreme Court Advocates-on-Record Association…Petitioners& Anr. versusUnion of India…Respondent WITH|WRIT PETITION (C) NO. 23 OF 2015 |WRIT PETITION (C) NO. 70 OF 2015 ||WRIT PETITION (C) NO. 83 OF 2015 |TRANSFER PETITION (C) NO.391 OF 2015 ||WRIT PETITION (C) NO. 108 OF 2015 |WRIT PETITION (C) NO. 124 OF 2015 ||WRIT PETITION (C) NO. 14 OF 2015 |WRIT PETITION (C) NO. 18 OF 2015 ||WRIT PETITION (C) NO. 24 OF 2015 |WRIT PETITION (C) NO. 209 OF 2015 ||WRIT PETITION (C) NO. 309 OF 2015 |WRIT PETITION (C) NO. 310 OF 2015 ||WRIT PETITION (C) NO. 323 OF 2015 |TRANSFER PETITION (C) NO. 971 OF 2015||WRIT PETITION (C) NO. 341 OF 2015 | | J U D G M E N TMadan B. Lokur, J.1. The questions for consideration are: Firstly, whether theConstitution (Ninety-ninth Amendment) Act, 2014 which substitutes andreplaces the extant procedure for the appointment of judges of the SupremeCourt and the High Courts with a radically different procedure impinges onthe independence of the judiciary and violates the basic structure of theConstitution; Secondly, whether the National Judicial AppointmentsCommission Act, 2014 is a constitutionally valid legislation.2. In my opinion, the Constitution (Ninety-ninth Amendment) Act, 2014(for short the 99th Constitution Amendment Act) alters the basic structureof the Constitution by introducing substantive changes in the appointmentof judges to the Supreme Court and the High Courts and rewriting Article124(2) and Article 217(1) of the Constitution, thereby seriouslycompromising the independence of the judiciary. Consequently, the 99thConstitution Amendment Act is unconstitutional. Since the 99th ConstitutionAmendment Act is unconstitutional, the National Judicial AppointmentsCommission Act, 2014 (for short the NJAC Act) which is the child of the99th Constitution Amendment Act cannot independently survive on the statutebooks. Even otherwise, it violates Article 14 of the Constitution byenabling substantive arbitrariness in the appointment of judges to theSupreme Court and the High Courts.3. Having had the benefit of reading the draft judgment of JusticeKhehar, Justice Kurian Joseph and Justice Adarsh Kumar Goel, I am inrespectful agreement with the conclusions arrived at with regard to theconstitutional validity of the 99th Constitution Amendment Act but preferto supplement them with additional reasons. I am in respectful disagreementwith the view of Justice Chelameswar. I believe all the submissions made byvarious learned counsel led by Mr. Fali S. Nariman on behalf of thepetitioners and by Mr. Mukul Rohatgi the learned Attorney-General on behalfof the respondents have been noted and dealt with by Justice Khehar in hisdraft judgment and in respect of some of them, I have nothing to add towhat has already been said.Historical background4. George Santayana, philosopher, essayist, poet and novelist isbelieved to have said something to the effect that: ‘Those who do notremember their past are condemned to repeat their mistakes.’ Keeping thisin mind, it is essential to appreciate the evolution of the process for theappointment of judges in the Indian judiciary, the various alternativesdiscussed and debated and then to consider and analyze the solution givenby the Constitution (Ninety-ninth Amendment) Act, 2014 and the NationalJudicial Appointments Commission Act, 2014. This is important for anotherreason – some of the ‘mistakes’ made before Constituent Assembly acceptedthe Constitution of India, have been revived and enacted, even though theConstituent Assembly debated and rejected them.5. Section 101 of the Government of India Act, 1919 provided for theappointment of the Chief Justice and judges of the High Court and Section102 provided for their tenure. It was provided that the appointment shallbe made by His Majesty and the judge shall hold office ‘during HisMajesty’s pleasure.’ Since the appointment process and the tenure of ajudge depended upon the Crown’s pleasure, perhaps the issue of theindependence 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 otherduring the submissions made by learned counsel.6. The Government of India Act, 1935 partially changed the procedure forthe appointment of judges to the High Courts and introduced a procedure forthe appointment of judges to the Federal Court constituted by the said Act. Section 200 and 201 dealt with the appointment of judges of the FederalCourt and while the Crown continued to make the appointments (apparentlywithout any formal consultation process), their tenure was fixed at the ageof 65 years. Removal of a judge was possible only on the ground ofmisbehavior or of infirmity of mind or body. Section 201 provided for thesalary, allowances, leave and pension of a judge and this could not bevaried to his/her disadvantage after appointment. Section 220 and 221related to the appointment of a judge of the High Court and the provisionsthereof were more or less similar to the appointment of a judge of theFederal Court.7. The Government of India Act, 1935 gave a semblance of an independentjudiciary in that it provided some basic requirements of independence suchas eligibility for appointment, security of tenure including the removalprocess, assurance of salary, allowances and pension etc. Again, nothingspecific was shown to us, one way or the other, which could throw light onthe contemporaneous practice regarding the appointment process or theindependence of the judiciary. A general practice on the appointment ofjudges was, however, subsisting and this has been adverted to by theSupreme Court of Pakistan in Al-Jehad Trust v. Federation of Pakistan.[202]It was observed that ever since 1911 when the Indian High Courts Act wasenacted and certainly from 1915/1919 onwards when the Government of IndiaAct was enacted, the recommendation of the Chief Justice for theappointment of a judge was accepted even though the appointment of a judgewas a matter of the pleasure of the Crown. It was said:“Act of appointment of a Chief Justice or a Judge in the superior Court isan executive act. No doubt this power is vested in the Executive under therelevant Articles of the Constitution, but the question is, as to how thispower is to be exercised. Conventions can be pressed into service whileconstruing a provision of the Constitution and for channelising andregulating the exercise of power under the Constitution: whereas under theIslamic Jurisprudence, a convention which is termed as Urf has a bindingforce on the basis of various Islamic sources, it has been a consistentpractice which has acquired the status of convention during pre-partitiondays of India as well as post-partition period that the recommendations ofthe Chief Justice of a High Court and the Chief Justice of the SupremeCourt in India as well as in Pakistan have been consistently accepted andacted upon except in very rare cases. The practice of consultation of theChief Justice of a High Court and the Indian Federal Court was obtainingeven under the Indian High Courts Act [1911] as well as under theGovernment of India Act 1915, though the appointment of Judges of superiorCourts in India was a matter of pleasure vested in the Crown. Therecommendations of the Chief Justices even in those days were accepted as amatter of course.”Sapru Committee8. The issue of the appointment of judges (for Independent India) firstcame up for discussion (as it appears) before the Sapru Committee. A Reportprepared by this Committee in 1945 dealt with the Legislature, theExecutive and the Judiciary in Chapter V thereof. The relevant paragraphspertaining to the appointment of judges are paragraphs 259, 261 and268.[203] The Committee was of the opinion that the independence of thejudiciary is of ‘supreme importance for the satisfactory working of theConstitution and nothing can be more detrimental to the well-being of aProvince or calculated to undermine public confidence than the possibilityof executive interference with the strength and independence of the highesttribunal of the Province.’ It was clear that it desired to secure the‘absolute independence’ of the High Court and to put the judges above partypolitics or influences. The Committee proposed a limited consultativesystem of appointment of judges completely leaving out the Legislature andthe Executive. The Committee proposed consultation only between the Head ofthe State and the Chief Justice of India for appointments to the SupremeCourt 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 theReport read as follows:“259. In our Recommendation No.13 we first recommend that there shall be aSupreme Court for the Union and a High Court in each of the units. Then inthe second clause we recommend that the strength of judges in each of theseCourts at the inception of the Union as well as the salaries to be paid tothem shall be fixed in the Constitution Act and no modification in eithershall be made except on the recommendation of the High Court, theGovernment concerned and the Supreme Court and with the sanction of theHead of the State, provided, however, that the salary of no judge shall bevaried to his disadvantage during his term of office. In sub-clause (3) werecommend:-“(a) The Chief Justice of India shall be appointed by the Head of the Stateand the other judges of the Supreme Court shall be appointed by the Head ofthe State in consultation with the Chief Justice of India.”“(b) The Chief Justice of a High Court shall be appointed by the Head ofthe State in consultation with the Head of the Unit and the Chief Justiceof India.”“(c) Other judges of a High Court shall be appointed by the Head of theState in consultation with the Head of the Unit, the Chief Justice of theHigh Court concerned and the Chief Justice of India.”261. Our main object in making these recommendations is to secure theabsolute independence of the High Court and to put them above partypolitics or influences. Without some such safeguards, it is not impossiblethat a Provincial Government may under political pressure affectprejudicially the strength of the High Court within its jurisdiction or thesalary of its Judges. If it is urged that the High Court and theGovernment concerned will be more or less interested parties in the matter,the intervention of the Supreme Court and of the Head of the State wouldrule out all possibility of the exercise of political or party influences.The imposition of these conditions, may, on a superficial view, seem to beinconsistent with the theoretical autonomy of the Provinces, but, in ouropinion, the independence of the High Court and of the judiciary generallyis of supreme importance for the satisfactory working of the Constitutionand nothing can be more detrimental to the well-being of a Province orcalculated to undermine public confidence than the possibility of executiveinterference with the strength and independence of the highest tribunal ofthe Province.268. We now come to the method of appointment of Judges. Under theexisting law Judges of High Courts and of the Federal Court are appointedby the Crown. We have recommended that the Chief Justice of India should beappointed by the Head of the State. In this connection we would refer toour discussion of the phrase ‘Head of the State’ in Chapter VI. Similarlywe have recommended that the other Judges of the Supreme Court shall beappointed by the Head of the State in consultation with the Chief Justiceof India. The Chief Justice of a High Court shall be appointed by the Headof the State in consultation with the Head of the Unit and the ChiefJustice of India, and the other judges of a High Court shall be appointedby the Head of the State in consultation with the Head of the Unit, theChief Justice of the High Court concerned and the Chief Justice of India.We have deliberately placed the appointment of these Judges, includingJudges of the Provincial High Courts outside the purview of party politics,and we make the same observations as above in justification of thisprovision notwithstanding its seeming interference with the theoreticalautonomy of the Provinces.”9. As mentioned, ‘Head of State’ was discussed in Chapter VI of theReport and in so far as the judiciary is concerned, the Head of State wasexpected to act ‘on his own’ as the occupant of the office of Head of Stateand not on the advice of the Federal Ministry. More specifically, the Headof State was to act on his/her own in the matter of appointment and removalof judges. This is what was said in the Report:“The Union will be a democratic federal State and the Head of the State whowill replace both the Governor-General and the Crown Representative andmight be given a suitable indigenous designation, if necessary shouldexercise such functions as are given to him only on the advice of hisFederal Ministry, barring a few very exceptional cases, to be specificallymentioned in the Constitution Act, where discretion is given to him to acton his own or on advice other than that of the Federal Ministry (1) foravoiding political or communal graft, or (2) for taking the initiative inthe national interest, especially in exceptional and fast moving situationssuch as exist at the present day. Under exception (1) will fall thesuggestions we have made under paragraph 13 of our recommendations asregard the alteration of the strength of High Courts and the appointmentand removal of judges of the Supreme Court and the High Courts.”[204]Ad hoc Committee on the Supreme Court10. After the Constituent Assembly was formed, an Ad hoc Committee on theSupreme Court was set up which presented its Report of 21st May, 1947 tothe Constituent Assembly. Paragraph 14 of the Report is of relevance tothe issue of appointment of judges of the Supreme Court. It accepted, inprinciple, the qualification for the appointment of judges to the SupremeCourt, as mentioned in the Government of India Act, 1935 but found itinexpedient ‘to leave the power of appointing judges of the Supreme Courtto the unfettered discretion of the President of the Union.’ It made twosuggestions in the appointment procedure, both of which necessitatedconsultation between the President and the Chief Justice of India and theopinion of a panel of 11 (eleven) persons comprising of, inter alia, someChief Justices of the High Courts, some members of both the Houses of theCentral Legislature and some law officers of the Union. It was proposedthat the executive be kept out of the appointment process. The saidparagraph reads as follows:“14. The qualifications of the judges of the Supreme Court may be laid downon terms very similar to those in the Act of 1935 as regards the judges ofthe Federal Court, the possibility being borne in mind (as in the Act of1935) that judges of the superior courts even from the States which mayjoin the Union may be found fit to occupy a seat in the Supreme Court. Wedo not think that it will be expedient to leave the power of appointingjudges of the Supreme Court to the unfettered discretion of the Presidentof the Union. We recommend that either of the following methods may beadopted. One method is that the President should in consultation with theChief Justice of the Supreme Court (so far, as the appointment of puisnejudges is concerned) nominate a person whom he considers fit to beappointed to the Supreme Court and the nomination should be confirmed by amajority of at least 7 out of a panel of 11 composed of some of the ChiefJustices of the High Courts of the constituent units, some members of boththe Houses of the Central Legislature and some of the law officers of theUnion. The other method is that the panel of 11 should recommend threenames out of which the President, in consultation with the Chief Justice,may select a judge for the appointment. The same procedure should befollowed for the appointment of the Chief Justice except of course that inthis case there will be no consultation with the Chief Justice. To ensurethat the panel will be both independent [and] command confidence the panelshould not be an ad hoc body but must be one appointed for a term ofyears.”[205]11. There was clearly a divergence of opinion between the Sapru Committeeand the Ad hoc Committee on the consultation process for the appointment ofjudges. The Sapru Committee felt that the appointment of judges should beleft to the Head of State acting on his/her own while the Ad hoc Committeedid not approve of the appointment process being left to the ‘unfettereddiscretion of the President’ but suggested it to be broad-based involving apanel.12. However, what is apparent from both the Report of the Sapru Committeeand the Report of the Ad hoc Committee is that the executive was not to beinvolved at all in the process of appointment of judges. This is ofconsiderable significance.[206]Memorandum on the Union Constitution and Draft Clauses13. On 30th May, 1947 the Constitutional Advisor to the ConstituentAssembly, Sir B.N. Rau submitted a Memorandum on the Union Constitution andDraft Clauses. The Memorandum provided in Chapter VI (The Union Judicature)that there shall be a Supreme Court ‘with powers and jurisdiction asrecommended by the ad hoc Committee on the Union Judiciary.’[207] In thedraft clauses of the Union Constitution appended to the Memorandum, it wasprovided that every judge of the Supreme Court shall be appointed by thePresident with the approval of not less than 2/3rd of the members of theCouncil of State.[208] In this regard, the Law Commission of India notes inits 80th Report as follows:“The Constitutional Adviser, in his memorandum dated May 30th, 1947suggested that the appointment of Judges should be made by the Presidentwith the approval of at least two-thirds of the Council of State. TheCouncil of State, according to him, was to be a body in the nature of aPrivy Council for advising the President on certain matters on whichdecisions were required on independent non-party lines. The Council ofState was to include the Chief Justice of India among its members and itscomposition was to be such as to secure freedom from party bias. Such aCouncil of State, it was suggested by the Constitutional Adviser, would bea satisfactory substitute for the panel recommended by the SpecialCommittee.The Union Constitution Committee did not accept the proposal of theConstitutional Adviser for setting up of a Council of State, and suggestedthat the procedure for the appointment of judges should be that thePresident should consult the Chief Justice and such other judges of theSupreme Court as might be necessary.”[209]14. It appears that by this time, the independence of the judiciary wastaken for granted, the only question being the procedure for theappointment of judges – whether it should be the exclusive responsibilityof the President or it should be broad-based involving a panel or a Councilof State. In any event, the exclusion of the executive in the appointmentprocess appears to have been taken as accepted.Union Constitution Committee15. The Union Constitution Committee which presented a Report to theConstituent Assembly on 4th July, 1947 did not adopt the proposal forsetting up a Council of State. Consequently, an alternative procedure forthe appointment of a judge of the Supreme Court was suggested, namely, forthe appointment by consultation between the President and the Chief Justiceof the Supreme Court and such other judges of the Supreme Court and judgesof the High Court as may be necessary. In other words, the limitedconsultative process as originally envisaged by the Sapru Committee(between the President and the Chief Justice of India) was accepted thoughwith modifications. Chapter IV paragraph 18 of the Report concerns itselfwith the appointment of judges of the Supreme Court and this reads asfollows:“18. Supreme Court.--There shall be a Supreme Court with the constitution,powers and jurisdiction recommended by the ad hoc Committee on the UnionJudiciary, except that a judge of the Supreme Court shall be appointed bythe President after consulting the Chief Justice and such other judges ofthe Supreme Court as also judges of the High Courts as may be necessary forthe purpose.[NOTE - The ad hoc Committee on the Supreme Court has observed that it willnot be expedient to leave the power of appointing judges of the SupremeCourt to the unfettered discretion of the President of the Federation. Theyhave suggested two alternatives, both of which involve the setting up of aspecial panel of eleven members. According to one alternative, thePresident, in consultation with the Chief Justice, is to nominate a personfor appointment as puisne judge and the nomination has to be confirmed byat least seven members of the panel. According to the other alternative,the panel should recommend three names, out of which the President, inconsultation with the Chief Justice, is to select one for the appointment.The provision suggested in the above clause follows the decision of theUnion Constitution Committee.]”[210]Again, the executive had no role to play in the appointment of judges,specifically of the Supreme Court.Provincial Constitution Committee16. With regard to the High Courts, a Report of 27th June, 1947 wassubmitted to the Constituent Assembly by the Provincial ConstitutionCommittee. Part II thereof pertained to the Provincial Judiciary and therecommendations made for the appointment of judges of the High Courtincorporated the provisions of the Government of India Act, 1935 and therecommendations made by the Union Constitution Committee. These read asfollows: “The Provincial Judiciary1. The provisions of the Government of India Act, 1935, relating to theHigh Court should be adopted mutatis mutandis; but judges should beappointed by the President of the Federation in consultation with the ChiefJustice of the Supreme Court, the Governor of the Province and the ChiefJustice of the High Court of the Province (except when the Chief Justice ofthe High Court himself is to be appointed).2. The judges of the High Court shall receive such emoluments andallowances as may be determined by Act of the Provincial Legislature anduntil then such as are prescribed in Schedule............3. The emoluments and allowances of the judges shall not be diminishedduring their term of office.”[211]The above discussion indicates that the executive was to be kept out of theprocess of appointing judges to the Supreme Court and the High Courts. Thisis clear from the views of: (1) The Sapru Committee; (2) The Ad hocCommittee on the Supreme Court; (3) The Union Constitution Committee, and(4) The Provincial Constitution Committee. This will have some bearing whenthe composition of the National Judicial Appointments Commission isexamined.17. In this background pertaining to the judiciary, the first draft ofthe Constitution was placed before the Drafting Committee in October, 1947. This was followed by another (revised) draft submitted to the President ofthe Constituent Assembly on 21st February, 1948. There was no significantchange between these two drafts as far the appointment process for theFederal Judicature (or the High Courts in the Provinces/States) isconcerned. But, it is important to note that the Drafting Committee did notthrow overboard the view of any of the committees mentioned above, that is,to keep the executive out of the process of appointment of judges.Conference of Chief Justices18. Wide publicity was given to the Draft Constitution to enableinterested persons to express their views through comments and suggestions.The views expressed by the Conference of Chief Justices (the Chief Justiceof the Federal Court and Chief Justices of the High Courts), the MinoritiesSub-Committee and the Advisory Committee on Fundamental Rights, Minoritiesand Tribal and Excluded Areas are important since they explain theinterplay between the Executive and the Judiciary in the matter ofappointment of judges.19. These views also make it clear that almost immediately afterIndependence (or thereabouts) the executive began to interfere in theappointment of judges of the High Courts. This interference by theexecutive (or in the present day language, the political executive) is thegenesis 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 Draft Constitution concerning thejudiciary. A Memorandum representing the views of the Federal Court and ofthe Chief Justices representing all the Provincial High Courts of the Unionof India was prepared and submitted by the Conference.[212] This Memorandumis of immense importance in understanding the prevailing appointmentprocess.21. Very briefly, in what may be described as the ‘preamble’ to theMemorandum, a few salient points were assumed and noticed. It was assumedthat the independence and integrity of the judiciary is of the ‘highestimportance’ not only to the judges but to the citizens seeking resort froma court of law against the high handed and illegal exercise of power by theexecutive. It was noticed that there is a tendency to whittle down thepowers, rights and authority of the judiciary which, if allowed tocontinue, would be ‘most unfortunate’. Therefore, there was a need tocounteract this tendency which was likely to grow with greater power beingplaced in the hands of the political parties. It was said:“We have assumed that it is recognized on all hands that the independenceand integrity of the judiciary in a democratic system of government is ofthe highest importance and interest not only to the judges but to thecitizens at large who may have to seek redress in the last resort in courtsof law against any illegal acts or the high-handed exercise of power by theexecutive. Thanks to the system of administration of justice establishedby the British in this country, the judiciary until now has, in the main,played and independent role in protecting the rights of the individualcitizen against encroachment and invasion by the executive power.Unfortunately, however, a tendency has, of late, been noticeable to detractfrom the status and dignity of the judiciary and to whittle down theirpowers, rights an authority which if unchecked would be most unfortunate.While we recognize that the Draft Constitution proposes to liberalize insome respects the existing safeguards against executive interference and toenlarge their present powers, it is felt that further provision should bemade in the same direction in order effectively to counteract the aforesaidtendency which is bound to become more pronounced as more power passes intothe hands of political parties who will control and dominate thegovernmental machinery in the years to come. In making the followingproposals and suggestions, the paramount importance of securing thefearless functioning of an independent, incorruptible and efficientjudiciary has been steadily kept in view.”The Memorandum specifically pointed out (sadly) that after 15th August,1947 the appointment of judges to the High Courts, on merit, was not alwaysassured in view of the practice followed (by some States). Also,recommendations by the Chief Justice of the High Court were not alwaysforwarded to the Central Government, implying thereby that some otherrecommendations were forwarded. In this regard it was said:“Discussions at the conference revealed that the procedure followed after15th August 1947 does not in practice always ensure appointment being madepurely on merit without political, communal and party considerations beingimported into the matter. Though it is acknowledged readily enough inprinciple that such considerations should not influence the appointment,this is not always kept in view in working the procedure in practice. TheChief Justice sends his recommendation to the Premier who consults his HomeMinister. The recommendation of the Premier is then forwarded to the HomeMinistry at the Centre without even sending the recommendation of the ChiefJustice along with it, the prescribed procedure being apparently understoodas not rendering it obligatory for the Premier to do so.”22. Consequently, a modified procedure for making recommendations wasunanimously recommended by the Conference which would ensure that therecommendation of the Chief Justice reaches the President and that theappointment be made with the concurrence of the Chief Justice of India toavoid any political pressures. It was said:“The Chief Justice should send his recommendation in that behalf directlyto the President. After consultation with the Governor the President shouldmake the appointment with the concurrence of the Chief Justice of India.This procedure would obviate the need for the Chief Justice of the HighCourt discussing the matter with the Premier and his Home Minister and“justifying” his recommendations before them. It would also ensure therecommendation of the Chief Justice of the High Court being always placedbefore the appointing authority, namely, the President. The necessity forobtaining the “concurrence” of the Chief Justice of India would provide asafeguard against political and party pressure at the highest level beingbrought to bear in the matter.”23. Significantly, the Memorandum tacitly and implicitly acknowledgedthat apart from a recommendation for the appointment of a judge of a HighCourt originating from the Chief Justice of the High Court, recommendationswere being made by or at the instance of the political executive. Whethersuch a procedure was right or wrong was not considered but it was suggestedthat in the event of such a recommendation being made, the concurrence ofthe Chief Justice of India should be obtained before the appointment ismade. The Memorandum proposed that Article 193(1) of the Draft Constitutionconcerning 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 awarrant under his hand and seal on the recommendation of the Chief Justiceof the High Court after consultation with the Governor of the State andwith the concurrence of the Chief Justice of India …”The Memorandum acknowledged that a recommendation for the appointment of ajudge of the High Court could also be made by the President (in anindividual 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 Justice of India was not requiredto be incorporated in the Constitution. It was, therefore, noted:“We do not think it necessary to make any provision in the Constitution forthe possibility of the Chief Justice of India refusing to concur in anappointment proposed by the President. Both are officers of the highestresponsibility and so far no case of such refusal has arisen although aconvention now exists that such appointments should be made after referringthe matter to the Chief Justice of India and obtaining his concurrence. Ifper chance such a situation were ever to arise it could of course be met bythe President 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 ofthe Supreme Court, and article 103(2) may also be suitably modified…..”24. The significance of this Memorandum cannot be overemphasized and itcan be summarized as follows: (1) The independence and integrity of thejudiciary was of the highest importance. (2) A tendency had developed inthe executive to whittle down the power and authority of the judiciary. (3)It was noted that recommendations for the appointment of a judge of a HighCourt originate from the Chief Justice of the High Court. Occasionally,such recommendations are suppressed by the executive at the provinciallevel. It was proposed that recommendations made by the Chief Justice oughtto be forwarded directly to the President for being processed so that thepolitical executive at the provincial level cannot suppress it. (4) It wasacknowledged that the political executive at the provincial level alsomakes recommendations (though not always on merits) directly to the CentralGovernment, without the knowledge of the Chief Justice of the High Court.Such recommendations ought to be accepted only with the concurrence of theChief Justice of India, and this should be taken care of in the DraftConstitution. (5) It was acknowledged that a recommendation for theappointment of a judge of a High Court (or the Supreme Court) could be madeby the President (personally – ‘Both are officers of the highestresponsibility…..’). This would normally be accepted by the Chief Justiceof India and therefore no provision for the concurrence of the ChiefJustice of India was required to be made in this regard in the DraftConstitution. However, if the Chief Justice of India were to refuse toaccept the recommendation, the situation could be met by the Presidentmaking a different proposal. This is because, it was noted, that ‘aconvention now exists that such appointments should be made after referringthe matter to the Chief Justice of India and obtaining his concurrence.’Amendments to Article 61 and Article 62 of the Draft Constitution25. The Minorities Sub-Committee and the Advisory Committee onFundamental Rights, Minorities and Tribal and Excluded Areas adverted toand considered Article 61 and Article 62 (amongst others) of the DraftConstitution. Article 61 and Article 62 of the Draft Constitution pertainto the Council of Ministers to aid and advice the President and otherprovisions as to Ministers. In this regard, Shiva Rao mentions in hisexcellent effort ‘The Framing of India’s Constitution – A Study’ asfollows:“There was considerable discussion in the Minorities Sub-Committee and inthe Advisory Committee on Fundamental Rights, Minorities and Tribal andExcluded Areas on the need for the inclusion of minority representatives inthe Union and State Cabinets…….. They considered that it would besufficient if, following the precedent furnished by the Government of IndiaAct of 1935, an Instrument of Instructions was drawn up, to be included asa schedule to the Constitution, enjoining the Governors and the Presidentas far as practicable to include members of the minority communities intheir Ministries. In the Draft Constitution of February 1948, however, anInstrument of Instructions for this purpose was drawn up only for Governorsbut not for the President. Possibly in order to rectify this omission, theDrafting Committee decided, on further consideration of the articlesrelating to the Council of Ministers, that an Instrument of Instructionsfor the President would also be necessary”[213]26. Apparently, pursuant to this, the Drafting Committee gave a notice inOctober 1948 of an amendment to Article 62 proposing to add the followingclause:“In the choice of his Ministers and the exercise of his other functionsunder this Constitution, the President shall be generally guided by theInstructions set out in Schedule III-A, but the validity of anything doneby the President shall not be called in question on the ground that it wasdone otherwise than in accordance with such Instructions.”27. Schedule III-A incorporated the Instrument of Instructions to thePresident and this is important and it reads as follows: New Schedule III-A [Article 62(5a)] INSTRUCTIONS TO THE PRESIDENTIn these instructions, unless the context otherwise requires, the term“President” shall include every person for the time being discharging thefunctions, of, or acting as, the President according to the provisions ofthis Constitution.xxxxxx(1) The President shall make rules for the constitution of an AdvisoryBoard consisting of not less than fifteen members of the Houses ofParliament to be elected by both Houses in accordance with the system ofproportional representation by means of the single transferable vote forthe purpose of advising the President in the matter of making certainappointments under this Constitution and shall take all necessary steps forthe due constitution of such Board as soon as may be after the commencementof this Constitution.(2) Such rules shall provide that the Leader of the Opposition, if any, ineither House of Parliament shall, if he is not elected to the AdvisoryBoard, be nominated to the Board by the President.(3) Such rules shall also define the terms of office of the members of theAdvisory Board and its procedure and may contain such ancillary provisionsas the President may consider necessary.5. (1) In making any appointment of –(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) the Auditor-General of India;(e) the Chairman or any other member of the Union Public ServiceCommission;(f) any member of the Commission to superintend, direct and control allelections to Parliament and elections to the offices of President and Vice-President,The President shall consult the Advisory Board constituted under paragraph4.(2) The President shall also consult the Advisory Board so constituted inmaking appointment by virtue of the powers conferred on him by thisConstitution to any other office under the Government of India or theGovernment of a State other than the office of Governor of a State, ifParliament by resolutions passed by both Houses recommend to the Presidentthat the Advisory Board shall be consulted in making appointment to suchoffice.6. (1) In making appointment of judges of the Supreme Court and of the HighCourts, the President shall before obtaining the advice of the AdvisoryBoard shall follow the following procedure:(a) In the case of appointment of the Chief Justice of India, he shallconsult the judges of the Supreme Court and the Chief Justices of the HighCourts within the territory of India except the States for the time beingspecified in Part III of the First Schedule.(b) In the case of appointment of a judge of the Supreme Court other thanthe Chief Justice of India, he shall consult the Chief Justice of India andthe other judges of the Supreme Court and also the Chief Justices of theHigh Courts within the territory of India except the States for the timebeing specified in Part III of the First Schedule.(c) In the case of appointment of the Chief Justice of a High Court, heshall consult the Governor of the State in which the High Court has itsprincipal seat, and the Chief Justice of India.(d) In the case of appointment of a judge of a High Court other than theChief Justice, he shall consult the Governor of the State in which the HighCourt has its principal seat, the Chief Justice of India and the ChiefJustice of the High Court.(2) The President shall place the recommendations of the authoritiesconsulted by him under sub-paragraph (1) before the Advisory Board at thetime of obtaining the advice of that Board with regard to any appointmentreferred to in that sub-paragraph.7. xxx8. xxx”[214]28. It is significant that the Instrument of Instructions also kept theexecutive completely out of the picture in so far as the appointment ofjudges is concerned. No one from the executive was to be consulted orinvolved in the appointment process.29. The Drafting Committee also proposed, apparently in view of theinsertion of Schedule III-A that Article 103(2) of the Draft Constitution(relating to the appointment of judges of the Supreme Court andcorresponding to Article 124(2) of the Constitution of India)[215] bemodified as follows:“(i) the words “after consultation with such of the judges of the SupremeCourt and of the High Courts in the States as may be necessary for thepurpose” be deleted in clause (2); and(ii) the first proviso to clause (2) be deleted .”[216]30. In other words, the President was not expected to consult the Councilof Ministers at all or to act on its advice but was to consult the ChiefJustice of India and other judges and then take the advice of the AdvisoryBoard. This was a mixture of the Sapru Committee recommendation of the Headof State (or President as the high office came to be designated) acting onhis/her own and yet the President not having ‘unfettered discretion’ in theappointment of judges.31. All the proposals, including those given by the Conference of ChiefJustices, the Minorities Sub-Committee and the Advisory Committee onFundamental Rights, Minorities and Tribal and Excluded Areas, wereconsidered by the Drafting Committee and on 4th November, 1948 the seconddraft of the Constitution was introduced in the Constituent Assembly by Dr.B.R. Ambedkar, Chairman of the Drafting Committee. However, the decision ofthe Drafting Committee taken in October, 1948 was not incorporated in theDraft Constitution. Therefore, Dr. Ambedkar moved an amendment in theConstituent Assembly on 31st December, 1948 to insert clause (5)a inArticle 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 be inserted:-(5)a In the choice of his Ministers and the exercise of his other functionsunder this Constitution, the President shall be generally guided by theinstructions set out in Schedule III-A, but the validity of anything doneby the President shall not be called in question on the ground that it wasdone otherwise than in accordance with such instructions.”32. The amendment was discussed briefly and adopted by the ConstituentAssembly on the same day. Although the decision of the Drafting Committeewas to insert clause (5)a in Article 62 of the Draft Constitution andsimultaneously delete a part of clause (2) of Article 103 of the DraftConstitution, the amendment relating to the deletion of clause (2) ofArticle 103 of the Draft Constitution was apparently not moved by Dr.Ambedkar. It is not clear why. As far as the Instrument of Instructions isconcerned, it is pointed out by Granville Austin that it was not actually,but implicitly, adopted by the Constituent Assembly.[217]33. A combined reading of the views of the Drafting Committee read withthe Instrument of Instructions and the insertion of clause (5)a in Article62 of the Draft Constitution indicates that the thinking at the time wasthat in the matter of appointment of judges the President was to act inhis/her individual capacity. This is very significant otherwise there wasabsolutely no need for an Instrument of Instructions or an Advisory Boardto be set up or for the complete exclusion of the Council of Ministers orthe executive in the appointment of judges. However, this thinking waslater on given up.Constituent Assembly Debates34. This historical background has an impact on understanding thesubsequent debate in the Constituent Assembly that took place on 23rd and24th May, 1949 when Article 103 of the Draft Constitution was consideredand debated in the Constituent Assembly. It needs to be emphasized at thisstage that when the debate took place on 23rd and 24th May, 1949 it was inthe backdrop of the fact that clause (5)a had already been inserted inArticle 62 of the Draft Constitution to the effect that in respect ofseveral matters, including the appointment of judges, the President wouldact in his/her individual capacity and the Council of Ministers was noteven in the picture. The debate will be referred to a little later.35. After a few months, on 11th October, 1949 the President of theConstituent Assembly was informed by Mr. T.T. Krishnamachari that ScheduleIII-A is not being moved and that it could be taken out of the list. Healso moved for the deletion of Schedule IV from the Draft Constitution.Explaining the move to delete Schedule IV from the Draft Constitution itwas stated that the matter should be left entirely to convention ratherthan be put in the body of the Constitution as a Schedule in the shape ofan Instrument of Instructions and that there is a fairly large volume ofopinion which favours that idea.36. Dr. Ambedkar added as follows:“Sir, with regard to the Instrument of Instructions, there are two pointswhich have to be borne in mind. The purpose of the Instrument ofInstructions as was originally devised in the British Constitution for theGovernment of the colonies was to give certain directions to the head ofthe States as to how they should exercise their discretionary powers thatwere vested in them. Now the Instrument of Instructions were effective inso far as the particular Governor or Viceroy to whom these instructionswere given was subject to the authority of the Secretary of State. If inany particular matter which was of a serious character, the Governor forinstance, persistently refused to carry out the Instrument of Instructionsissued to him, it was open to the Secretary of State to remove him, andappoint another and thereby secure the effective carrying out of theInstrument of Instructions. So far as our Constitution is concerned, thereis no functionary created by it who can see that these Instruments ofInstructions is carried out faithfully by the Governor.Secondly, the discretion which we are going to leave with the Governorunder this Constitution is very very meagre. He has hardly any discretionat all. He has to act on the advice of the Prime Minister in the matter ofthe selection of Members of the Cabinet. He has also to act on the adviceof the Prime Minister and his Ministers of State with respect to anyparticular executive or legislative action that he takes. That being so,supposing the Prime Minister does not propose, for any special reason orcircumstances, to include in his Cabinet members of the minority community,there is nothing which the Governor can do, notwithstanding the fact thatwe shall be charging him through this particular Instrument of Instructionsto act in a particular manner. It is therefore felt, having regard underthe Constitution who can enforce this, that no such directions should begiven. They are useless and can serve no particular purpose. Therefore,it was felt in the circumstances it is not desirable to have suchInstrument of Instructions which really can be effective in a different setof circumstances which can by no stretch of imagination be deemed to existafter the new Constitution comes into existence. That is the principalreason why it is felt that this Instrument of Instructions isundesirable.”[218]37. On the basis of the above discussion, Schedule IV to the DraftConstitution was deleted and a motion to that effect was adopted.38. Thereafter on 14th October, 1949 an amendment 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 III-A was not moved, this clause becomessuperfluous and therefore its omission was moved. The amendment to omitclause (5)a of Article 62 of the Draft Constitution was adopted. In supportof this, Dr. Ambedkar [perhaps the main advocate of clause (5)a] had thisto say, while emphasizing constitutional obligations and constitutionalconventions:“Every Constitution, so far as it relates to what we call parliamentarydemocracy, requires three different organs of the State, the executive, thejudiciary and the legislature. I have not anywhere found in anyConstitution a provision saying that the executive shall obey thelegislature, nor have I found anywhere in any Constitution a provision thatthe executive shall obey the judiciary. Nowhere is such a provision to befound. That is because it is generally understood that the provisions ofthe 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 Legislature and those who compose the executive andthe judiciary know their functions, their limitations and their duties. Itis therefore to be expected that if the executive is honest in working theConstitution, then the executive is bound to obey the Legislature withoutany kind of compulsory obligation laid down in the Constitution.Similarly, if the executive is honest in working the Constitution, it mustact 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 Stateacting within its own limitations and obeying the supremacy of the otherorgans of the State. In so far as the Constitution gives a supremacy tothat is a matter of constitutional obligation which is implicit in theConstitution itself.I remember, Sir, that you raised this question and I looked it up and I hadwith me two decisions of the King's Bench Division which I wanted one dayto 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 thisis the answer to the question that has been raised.No constitutional Government can function in any country unless anyparticular constitutional authority remembers the fact that its authorityis limited by the Constitution and that if there is any authority createdby the Constitution which has to decide between that particular authorityand any other authority, then the decision of that authority shall bebinding upon any other organ. That is the sanction which this Constitutiongives in order to see that the President shall follow the advice of hisMinisters, that the executive shall not exceed in its executive authoritythe law made by Parliament and that the executive shall not give its owninterpretation of the law which is in conflict with the interpretation ofthe judicial organ created by the Constitution.Shri H V. Kamath : If in any particular case the President does not actupon the advice of his Council of Ministers, will that be tantamount to aviolation of the Constitution and will he be liable to impeachment ?The Honourable Dr. B. R. Ambedkar: There is not the slightest doubt aboutit.”[219]Referring to this extremely important exposition, Granville Austinconcludes:“From this, one is forced to deduce that Ambedkar and the members of theDrafting Committee, perhaps under pressure from Nehru or Patel, had come tothe conclusion that the written provisions of a non-justiciable Instrumentof Instructions and the tacit conventions of cabinet government had equalvalue: both were legally unenforceable, but both provided a mechanism bywhich the legislature could control the Executive; and of the two,conventions were the tidiest and the simplest way of limiting Executiveauthority.”[220]Transposing this to the relationship between the Judiciary and theExecutive, it is quite clear that Dr. Ambedkar and indeed the ConstituentAssembly was of the view that constitutional obligations and constitutionalconventions must be respected, unwritten though they may be. And, one ofthese constitutional obligations and constitutional conventions is that theview of the judiciary must be respected by the executive not only withrespect to judicial decisions but also in other matters that directlyimpact on the independence of the judiciary.Debates on 23rd and 24th May, 194939. It is important to appreciate that the Constituent Assembly Debates(for short the CAD) to which our attention was drawn refer to theappointment of a judge of the Supreme Court and not specifically to theappointment of a judge of a High Court. But the sum and substance of thedebate is equally applicable to the appointment of a judge of a High Court.40. On 23rd and 24th May, 1949 three significant amendments to Article103(2) of the Draft Constitution relating to the appointment of judges ofthe Supreme Court were considered in the Constituent Assembly. The firstwas moved by Prof. K.T. Shah (Bihar: General) who suggested that theappointment of a judge of the Supreme Court should be after consultationwith the Council of State. This suggestion was intended to avoid politicalinfluence, party maneuvers and pressures in the appointment process. Thesecond was moved by Prof. Shibban Lal Saksena (United Provinces: General)who suggested that the appointment of the Chief Justice of India be subjectto confirmation by two-thirds majority of the total number of Members ofParliament assembled in a joint session of both the Houses of Parliament.The third was moved by Mr. B. Pocker Sahib (Madras: Muslim) who suggestedthat the appointment of a judge of the Supreme Court should have theconcurrence of the Chief Justice of India. In support of his amendment Mr.B. Pocker Sahib extensively referred to and relied on the Memorandumsubmitted by the Conference of Chief Justices. As he put it:“I submit, Sir, the views expressed by the Federal Court and the ChiefJustice of the various High Courts assembled in conference are entitled tothe highest weight before this Assembly, before this provision is passed.It is of the highest importance that the Judges of the Supreme Court shouldnot be made to feel that their existence or their appointment is dependentupon political considerations or on the will of the political party.Therefore, it is essential that there should be sufficient safeguardsagainst political influence being brought to bear on such appointments. Ofcourse, if a Judge owes his appointment to a political party, certainly inthe course of his career as a Judge, also as an ordinary human being, hewill certainly be bound to have some consideration for the political viewsof the authority that has appointed him. That the Judges should be aboveall these political considerations cannot be denied. Therefore, I submitthat one of the chief conditions mentioned in the procedure laid down, thatis the concurrence of the Chief Justice of India in the appointment of theJudges of the Supreme Court, must be fulfilled. This has been insisted uponin this memo. and that is a very salutary principle which should beaccepted by this House. I submit, Sir, that it is of the highest importancethat the President must not only consult the Chief Justice of India, buthis concurrence should be obtained before his colleagues, that is theJudges of the Supreme Court, are appointed. It has been very emphaticallystated in this memo. that it is absolutely necessary to keep them abovepolitical influences. No doubt, it is said in this procedure that theGovernor of the State also may be consulted; but that is a matter of minorimportance. It is likely that the Governor may also have some politicalinclinations. Therefore, my amendment has omitted the name of the Governor.That the judiciary should be above all political parties and above allpolitical consideration cannot be denied. I do not want to enter into thecontroversy at present, which was debated yesterday, as to the necessityfor the independence of the judiciary so far as the executive is concerned.It is a matter which should receive very serious consideration at the handsof this House and I hope the Honourable the Law Minister will also payserious attention to this aspect of the question, particularly in view ofthe fact that this recommendation has been made by the Federal Court andthe Chief Justice of the other High Court assembled in conference. I do notthink, Sir, that there can be any higher authority on this subject thanthis conference of the Federal Court and the Chief Justices of the variousHigh Courts in India.”[221]Mr. Mahboob Ali Baig Sahib (Madras: Muslim) moved a somewhat similaramendment. The reason given by Mr. Mahboob Ali Baig Sahib was:“Under our proposed constitution the President would be the constitutionalHead of the executive. And the constitution envisages what is called aparliamentary democracy. So the President would be guided by the PrimeMinister or the Council of Ministers who are necessarily drawn from apolitical party. Therefore the decision of the President would benecessarily influenced by party considerations. It is therefore necessarythat the concurrence of the Chief Justice is made a pre-requisite for theappointment of a Judge of the Supreme Court in order to guard ourselvesagainst party influences that may be brought to bear upon the appointmentof Judges.”[222]41. It is clear that both these Hon’ble Members made the ‘concurrence’suggestion since they desired the appointment of a judge of the SupremeCourt to be free from any sort of political or executive interference. Itappears that these amendments were moved unmindful of the insertion ofclause (5)a in Article 62 of the Draft Constitution and Schedule III-Athereto.42. Be that as it may, there appears to have been some discordance in theviews and perception of different persons on the exact role of thePresident in the process of appointment of judges. Is the Presidentexpected to act on the advice of the Council of Ministers or in his/herpersonal capacity?43. One view, as expressed by Dr. Ambedkar was that the President wouldbe guided by the Council of Ministers. The other view or perception wasthat with the insertion of clause (5)a in Article 62 of the DraftConstitution and Schedule III-A the President was to act in his/herindividual capacity and not be guided by the Council of Ministers since theexecutive was to be kept completely out of the appointment process. It isnot clear which of the two views found favour with Mr. B. Pocker Sahib andMr. Mahboob Ali Baig Sahib – but both were clear that the President couldbe put under political or party pressure in the recommendation of a personfor appointment and that this should be avoided and the pressure could benegated by the requirement of the concurrence of the Chief Justice ofIndia, an impartial person.44. But what is more significant is that Mr. B. Pocker Sahib and Mr.Mahboob Ali Baig Sahib adverted only to a recommendation for theappointment of a judge by the President – hence the necessity ofconcurrence by the Chief Justice of India. They did not, quite obviously,advert to the recommendation for the appointment of a judge by the ChiefJustice of India.45. It is in this background of divergence of perceptions that the speechof Dr. Ambedkar on 24th May, 1949 should be appreciated. Replying to thedebate, Dr. Ambedkar stated:“Now, Sir, with regard to the numerous amendments that have been moved, tothis article, there are really three issues that have been raised. Thefirst is, how are the Judges of the Supreme Court to be appointed? Nowgrouping the different amendments which are related to this particularmatter, I find three different proposals. The first proposal is that theJudges of the Supreme Court should be appointed with the concurrence of theChief Justice. That is one view. The other view is that the appointmentsmade by the President should be subject to the confirmation of two-thirdsvote by Parliament; and the third suggestion is that they should beappointed in consultation with the Council of States.With regard to this matter, I quite agree that the point raised is of thegreatest importance. There can be no difference of opinion in the Housethat our judiciary must both be independent of the executive and must alsobe competent in itself. And the question is how these two objects could besecured. There are two in other countries. In Great Britain theappointments are made by the Crown, without any kind of limitationwhatsoever, which means by the executive of the day. There is the oppositesystem in the United States where, for instance, officers of the SupremeCourt as well as other officers of the State shall be made [appointed] onlywith the concurrence of the Senate in the United States. It seems to me inthe circumstances in which we live today, where the sense of responsibilityhas 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 thePresident, 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 methat to make every appointment which the executive wishes to make subjectto the concurrence of the Legislature is also not a very suitableprovision. Apart from its being cumbrous, it also involves the possibilityof the appointment being influenced by political pressure and politicalconsiderations. The draft article, therefore, steers a middle course. Itdoes not make the President the supreme and the absolute authority in thematter of making appointments. It does not also import the influence of theLegislature. The provision in the article is that there should beconsultation of persons who are ex hypothesi, well qualified to give properadvice in matters of this sort, and my judgment is that this sort ofprovision may be regarded as sufficient for the moment.With regard to the question of the concurrence of the Chief Justice, itseems to me that those who advocate that proposition seem to relyimplicitly both on the impartiality of the Chief Justice and the soundnessof his judgment. I personally feel no doubt that the Chief Justice is avery eminent person. But after all the Chief Justice is a man with all thefailings, all the sentiments and all the prejudices which we as commonpeople have; and I think, to allow the Chief Justice practically a vetoupon the appointment of judges is really to transfer the authority to theChief Justice which we are not prepared to vest in the President or theGovernment of the day. I, therefore, think that is also a dangerousproposition.”[223]46. Dr. Ambedkar was quite clear that there could be no difference ofopinion that the judiciary should be independent of the executive, yetcompetent. He was of the view that it would be ‘dangerous’ to leave theappointment of judges to the President without any reservation orlimitation, that is to say, merely on the advice of the executive of theday. Dr. Ambedkar seems to have lost sight of the existence of theInstrument of Instructions (or it was ‘given up’ by him) since thatdocument mentioned the advice of the Advisory Board and not the executiveand also that that document enabled the President to act on his/her own,and not on the advice of the executive.47. If this dichotomy between the role of the President and the executiveand the binding or non-binding effect of the advice of the executive on thePresident is appreciated, the views of Dr. Ambedkar become very clear. Hewas quite clear that the executive was not to have primacy in theappointment process nor did he want the President to have unfettereddiscretion to accept or reject the advice of the executive or act onhis/her own. As far as the concurrence of the Legislature is concerned, Dr.Ambedkar felt that the process would be cumbrous with the possibility ofpolitical pressure and considerations. It is in this context that Dr.Ambedkar said that he was steering a middle course and was not prepared togrant a veto to the President (rejecting the advice of the executive oracting on his/her own) in the appointment of judges, executive primacyhaving already been rejected by him. Under the circumstances, he felt that‘this sort of provision [consultation with the Chief Justice of India] maybe regarded as sufficient for the moment.’48. With regard to the ‘concurrence’ of the Chief Justice of India (asagainst consultation with the Chief Justice of India) in the appointment ofa judge of the Supreme Court, Dr. Ambedkar was of the opinion that theChief Justice, despite his eminence, had all the failings, sentiments andprejudices of common people and to confer on him a power of veto, which isnot vested in the President or the Government of the day (that is theexecutive), would be a ‘dangerous proposition’.49. Dr. Ambedkar was of the view that neither the President nor theGovernment of the day (the executive) nor the Chief Justice of India shouldhave the final word in the matter of the appointment of judges. Who thenwould have the final say in the event of a difference of opinion betweenthe President or the Government of the day or the Chief Justice of India onthe appointment of a particular person as a judge? Dr. Ambedkar did notdirectly address this question since he did not visualize a stalematearising in this regard.50. A small diversion - apart from the reasons already mentioned forkeeping the executive out of the decision-taking process in the appointmentof judges, it would be of interest to know that, on a different topicaltogether, while replying to the debate ‘on acceptance of office bymembers of the judiciary after retirement’ Dr. Ambedkar observed that thejudiciary is very rarely engaged in deciding issues between citizens andthe Government. He said:“The judiciary decides cases in which the Government has, if at all, theremotest interest, in fact no interest at all. The judiciary is engaged indeciding the issue between citizens and very rarely between citizens andthe Government. Consequently the chances of influencing the conduct of amember of the judiciary by the Government are very remote, and my personalview, therefore, is that the provisions which are applied to the FederalPublic Services Commission have no place so far as the judiciary isconcerned.”[224]51. Times have changed dramatically since then and far from disputes‘very rarely’ arising between citizens and the Government, today theGovernment is unashamedly the biggest litigant in the country. It has beennoticed in Supreme Court Advocates on Record Association v. Union ofIndia[225] that:“No one can deny that the State in the present day has become the majorlitigant and the superior courts particularly the Supreme Court, havebecome centres for turbulent controversies, some of which with a flavour ofpolitical repercussions and the Courts have to face tempest and stormbecause their vitality is a national imperative. In such circumstances,therefore, can the Government, namely, the major litigant be justified inenjoying absolute authority in nominating and appointing its arbitrators.The answer would be in the negative. If such a process is allowed tocontinue, the independence of judiciary in the long run will sink withoutany trace.”[226]52. Given this fact situation, since there was this reason in 1949 toinsulate the judiciary and the appointment process from the direct orindirect influence of the executive and political or party pressures, thereis all the more reason to do so today if the independence of the judiciaryis to be maintained.53. In England too the executive is the ‘most frequent litigator’ and theposition seems to be no better than in our country. In a lecture onJudicial Independence, Lord Phillips[227] had this to say:“In modern society the individual citizen is subject to controls imposed bythe executive in respect of almost every aspect of life. The authority toimpose most of those controls comes, directly or indirectly, from thelegislature. The citizen must be able to challenge the legitimacy ofexecutive action before an independent judiciary. Because it is theexecutive that exercises the power of the State and because it is theexecutive, in one form or another, that is the most frequent litigator inthe courts, it is from executive pressure or influence that judges requireparticularly to be protected.”[228]Summation54. The discussion leading up to the Constituent Assembly Debates andrelating to the appointment of judges clearly brings out that:(1) The independence of the judiciary was unflinchingly accepted by allpolicy and decision makers;(2) The appointment of judges of the Supreme Court and the High Courts wasto be through a consultative process between the President and the ChiefJustice 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 roleto play in the decision-taking process. Notwithstanding this, the politicalexecutive did interfere in the appointment process as evidenced by theMemorandum prepared in the Conference of Chief Justices by, inter alia,recommending persons for appointment as judges of the High Court.Resultantly, the appointment of judges to the High Courts was not always onmerit and sometimes without the recommendation of the Chief Justice of theHigh Court; (4) A constitutional convention existed that the appointment ofjudges should be made in conformity with the views of the Chief Justice ofIndia;(5) The proposal for the appointment of a judge of the Supreme Court or aHigh Court could originate from the President (although it never did) orthe Chief Justice of India and regardless of the origin, it would normallybe accepted. However, the possibility of the President giving in topolitical or party pressures was not outside the realm of imagination.(6) Historically, the Chief Justice of India was always consulted in thematter of appointment of judges, and conventionally his concurrence wasalways taken regardless of whether a recommendation for appointmentoriginated from the Chief Justice of the High Court or the politicalexecutive. It is in this light that the discussion in the ConstituentAssembly on the issue of appointment of judges to the Supreme Court and theHigh Courts deserves to be appreciated.(7) It remained a grey area whether in the appointment of judges, thePresident was expected to act on his/her own or on the advice of thepolitical executive.Views of the Law Commission of India55. The issue of the appointment of judges of the Supreme Court and theHigh Courts was first addressed, after Independence, in the 14th Report ofthe Law Commission of India (for short the LCI), then in the 80th Reportand finally in the 121st Report. (A reference was made in the 214th Reportand the 230th Report but they are of no immediate consequence). The issuealso came to be addressed in S.P. Gupta v. Union of India[229] and inSubhash Sharma v. Union of India.[230] It was also the subject matter ofthree Constitution amendment Bills and two other pronouncements of thisCourt rendered by larger Benches. This is mentioned only to highlight thecomplexity of the issue and the constant search for some stability andcertainty in the appointment process in relation to the independence of thejudiciary. It has been said with regard to the selection of judges in theUnited States, and this would equally apply to our country:“It is fairly certain that no single subject has consumed as many pages inlaw reviews and law-related publications over the past 50 years as thesubject of judicial selection.”[231]1 (a) 14th Report – 26.9.19582 Appointment of judges of the Supreme Court34 56. Within less than a decade of the promulgation of the Constitution,the process of appointment of judges of the Supreme Court and the HighCourts came in for sharp criticism from the LCI. Chapter 5 and Chapter 6 ofthe 14th Report of the LCI relating, inter alia, to the appointment ofjudges to the Supreme Court and judges to the High Courts respectivelymakes for some sad reading, more particularly since the Attorney-Generalfor India was the Chair of the LCI.[232] It must be noted here that the LCItravelled through the length and breadth of the country for about one yearand examined as many as 473 witnesses from a cross-section of societybefore giving its Report. It also adopted a novel procedure of co-optingtwo members from the States that were visited so as to understand the localproblems. The monumental and authoritative work can only be admired.57. The LCI observed that the Constitution endeavored to put judges ofthe Supreme Court ‘above executive control’. It very specificallyacknowledged the importance of safeguarding the independence of thejudiciary and observed that ‘It is obvious that the selection of the Judgesconstituting a Court of such pivotal importance to the progress of thenation must be a responsibility to be exercised with great care.’[233]58. Thereafter three central issues were adverted to – (1) Communal andregional considerations had prevailed in making the selection of judges.(2) The general impression was that executive influence was exerted now andagain from the highest quarters in respect of some appointments to theBench. (3) The best talent among the judges of the High Courts did not findits way to the Supreme Court.59. The Report said: “It is widely felt that communal and regional considerations haveprevailed in making the selection of the Judges. The idea seems to havegained ground that the component States of India should have, as it were,representation on the Court. Though we call ourselves a secular State,ideas of communal representation, which were viciously planted in our bodypolitic by the British, have not entirely lost their influence. Whatperhaps is still more to be regretted is the general impression, that nowand again executive influence exerted from the highest quarters has beenresponsible for some appointments to the Bench. It is undoubtedly true,that the best talent among the Judges of the High Courts has not alwaysfound its way to the Supreme Court. This has prevented the Court frombeing looked upon by the subordinate Courts and the public generally withthat respect and indeed, reverence to which it by its statusentitled.”[234]60. On the basis of its findings, the LCI recommended, inter alia, that‘communal and regional considerations should play no part in the making ofappointments to the Supreme Court.’ However, the LCI did not proffer anysolution to the vexed issue of making more satisfactory appointments to theSupreme Court.56 Appointment of judges of the High Courts61. Similarly, Chapter 6 of the Report concerning the appointment ofjudges to the High Courts makes for equally sad reading. The inadequaciesin the appointments made were pointed out as: (1) The selections have beenunsatisfactory and induced by executive influence. (2) There is norecognizable principle for making the appointments and considerations ofpolitical expediency or regional or communal sentiments have played a role.(3) Merit has been ignored in making appointments.62. It was said that these inadequacies were well founded and there wasacute public dissatisfaction with the appointments made:“We have visited all the High Court centres and on all hands we have heardbitter and reviling criticism about the appointments made to High Courtjudiciary give in recent years. This criticism has been made by SupremeCourt Judges, High Court Judges, Retired Judges, Public Prosecutorsnumerous representatives, associations of the Bar, principals andprofessors of Law Colleges and very responsible members of the legalprofession all over the country. One of the State Governments had to admitthat some of the selections did not seem to be good and that carefulscrutiny was necessary. The almost universal chorus of comment is that theselections are unsatisfactory and that they have been induced by executiveinfluence. It has been said that these selections appears to have proceededon no recognizable principle and seem to have been made out ofconsideration of political expediency or regional or communal sentiments.Some of the members of the Bar appointed to the Bench did not occupy thefront rank in the profession either in the matter of legal equipment or ofthe volume of their practice at the bar. A number of more capable anddeserving persons appear to have been ignored for reasons that can stemonly from political or communal or similar grounds. Equally forceful oreven more unfavourable comments have been made in respect of personsselected form the services. We are convinced that the views expressed tous show a well founded and acute public dissatisfaction at theseappointments.”[235]63. On the procedure followed for the appointment of a judge of the HighCourt and the administrative working of Article 217 of the Constitution,the LCI had this to say:“The Chief Justice forwards his recommendation to the Chief Minister who inturn forwards this recommendation in consultation with the Governor to theMinister of Home Affairs in the Central Government. If, however, the ChiefMinister does not agree with the recommendation of the Chief Justice, hemakes his own recommendation. It appears that in such a case, the ChiefJustice is given an opportunity for making his comments on therecommendation made by the Chief Minister. This practice is not, however,invariably followed so that, in some cases it happens that therecommendation made by the Chief Minister does not come to the knowledge ofthe Chief Justice. The rival recommendations are then forwarded to theMinister of Home Affairs who, in consultation with the Chief Justice ofIndia, advises the President as to the selection to be made. The personrecommended by the Chief Minister may be, and occasionally is, selected inpreference to the person recommended by the Chief Justice.”[236]64. The LCI recorded that no less a personage than the Chief Justice ofIndia had this to say about executive interference in the appointment ofjudges to the High Courts (for reasons other than merit): “The Chief Minister now has a hand direct or indirect in the matterof the appointment to the High Court Bench. The inevitable result has beenthat the High Court appointments are not always made on merit but onextraneous considerations of community, caste, political affiliations, andlikes and dislikes have a free play. This necessarily encouragescanvassing which, I am sorry to say, has become the order of the day. TheChief Minister holding a political office dependent on the goodwill of hisparty 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 sufferanceof any party and he knows the advocates and their merits and demerits and arecommendation by the Chief Justice is therefore more likely to be on meritalone that the one made by the Chief Minister who may know nothing aboutthe comparative legal acumen of the advocates.”[237]65. To conclude this aspect, the Report observes that extraneous factorshave influenced the appointments and that there seems to be canvassing forappointment as a judge of the High Court:“This indeed is a dismal picture and would seem to show that the atmosphereof communalism, regionalism and political patronage, have in a considerablemeasure influenced appointments to the High Court Judiciary.Apart from this very disquieting feature, the prevalence of canvassing forjudgeships is also a distressing development. Formerly, a member of the Barwas invited to accept a judgeship and he considered it a great privilegeand honour. Within a few years of Independence, however, the judgeship of aHigh Court seems to have become a post to be worked and canvassedfor.”[238]66. Based on its findings, the LCI reached the following conclusions,amongst others:“(8) Many unsatisfactory appointments have been made to the High Courts onpolitical regional and communal or other grounds with the result that thefittest men have not been appointed. This has resulted in a diminution inthe out-turn of work of the Judges.(9) These unsatisfactory appointments have been made notwithstanding thefact that in the vast majority of cases, appointments have been concurredin by the Chief Justice of the High Court and the Chief Justice of India.(10) Consultation with the State executive is necessary before appointmentsare made to the High Court.(11) While it should be open to the State executive to express its ownopinion on a name proposed by the Chief Justice, it should not be open toit to propose a nominee of its own and forward it to the Centre.(12) The role of the State executive should be confined to making itsremarks about the nominee proposed by the Chief Justice and if necessaryasking the Chief Justice to make a fresh recommendation.(14) Article 217 of the Constitution should be amended to provide that aJudge of a High Court should be appointed only on the recommendation of theChief Justice of that State and with the concurrence of the Chief Justiceof India.”[239]67. Unlike in the appointment of judges to the Supreme Court, the LCIsuggested, for the High Courts, that Article 217 of the Constitution oughtto be amended to incorporate the concurrence of the Chief Justice of Indiato the appointment. This recommendation was made so that, in future, noappointment could be made without the concurrence of the Chief Justice ofIndia.68. The Report was considered in Parliament on 23rd, 24th and 25thNovember, 1959 and the Government of the day gave its point of view, as didseveral Hon’ble Members. But what is more important is that in the debateon 24th November, 1959 it was stated by Shri Govind Ballabh Pant, Hon’bleMinister of Home Affairs that since 1950, as many as 211 judges wereappointed to the High Courts and out of these except one ‘were made on theadvice, with the consent and concurrence of the Chief Justice of India. Andout of the 211, 196 proposals which were accepted by the Government had thesupport of all persons who were connected with this matter.’[240]69. A little later it was stated:“But as I said, these 196 appointments were made in accordance with theunanimous advice of the Chief Justice of the High Court, the Chief Ministerof the State, the Governor and the Chief Justice of India. There werefifteen cases in which there was a difference of opinion between the ChiefJustice and the Chief Minister or the Governor. So, these cases also werereferred to the Chief Justice of India. In some of these he accepted theproposal made by the Chief Minister and in others he accepted the advice orthe suggestion received from the Chief Justice of the High Court. But weon our part had his advice along with that of the Chief Justice of the HighCourt concerned and of the Chief Minister concerned. So, these cases do noteven come to five per cent. But even there, so far as we are concerned, outof these 211 cases, as I said, except in one case where there was adifference of opinion between the Chief Minister and the Chief Justice, wehad accepted in 210 cases the advice of the Chief Justice of India.”[241]70. On the next day, that is, 25th November, 1959 Shri A.K. Sen, Ministerof Law reiterated the statement made by the Home Minister. He clarifiedthat in one case where there was a difference of opinion, the Governmentaccepted the advice of the Chief Justice of the High Court (not the ChiefMinister) rather than the advice of the Chief Justice of India.71. The discussion ended with an Hon’ble Member suggesting that therecommendations of the LCI be taken note of and implemented as quickly aspossible.72. What is of importance in this Report (apart from several otherconclusions) is that there had been instances where a recommendation forappointment as a judge of the High Court was made by the Chief Ministerwithout the knowledge of the Chief Justice and that canvassing had begun totake place for appointment as a judge of the High Court. But in all cases,except one, the concurrence of the Chief Justice of India was taken.(b) 80th Report – 10.8.19791 Appointment of judges of the Supreme Court73. The 80th Report of the LCI was submitted on 10th August, 1979 and itwas mainly prepared by Justice H.R. Khanna when he was its Chair.[242]74. It was observed that an independent judiciary is absolutelyindispensible for ensuring the Rule of Law. Generally in regard toappointment of judges, it was observed that wrong appointments haveaffected the image of the Courts and have undermined the confidence of thepeople in them. Further, it was observed that an appointment not made onmerit but because of favouritism or other ulterior considerations canhardly command real and spontaneous respect of the Bar and that the effectof an improper appointment is felt not only for the time being but itsrepercussions are felt long thereafter.[243]75. In this background, and in relation to the appointment of judges ofthe Supreme Court, it was concluded that (1) Only persons who enjoy thehighest reputation for independence, dispassionate approach and detachmentshould be elevated to the Supreme Court. (2) No one should be appointed ajudge of the Supreme Court unless he has severed affiliations withpolitical parties for at least 7 (seven) years. (3) A person should beappointed as a judge if he has distinguished himself for his independence,dispassionate approach and freedom from political prejudice, bias orleaning.[244]76. Significantly, the LCI recommended adopting a consultative process inthat the Chief Justice of India should consult his three senior-mostcolleagues while making a recommendation for an appointment. He shouldreproduce their views while making the recommendation. This would minimizethe chances of any possible arbitrariness or favouritism.[245]77. These recommendations were incorporated by the LCI in its summary ofrecommendations. I am concerned with the following recommendation:“(32) The Chief Justice of India, while recommending the name of a personfor appointment as a Judge of the Supreme Court should consult his threesenior most colleagues and should in the communication incorporating hisrecommendation specify the result of such consultation and reproduce theviews of each of his colleagues so consulted regarding his recommendation.The role of these colleagues would be confined to commenting on therecommendation of the Chief Justice. Such consultation would minimizepossible arbitrariness or favoritism”[246]2 Appointment of judges of the High Court3 78. In relation to the appointment of judges of the High Court, it wasgenerally observed by the LCI in Chapter 6 of the Report that theprevailing impression was that their appointment ‘has not been always madeon merit and that this has affected the image of the High Courts.’ [247]79. The LCI suggested a consultation process for the appointment of ajudge of the High Court. It was suggested that the Chief Justice should,when making a recommendation, consult his two senior-most colleagues andindicate their views in writing. This would have a ‘healthy effect’ andconsiderably minimize the chances of possible favoritism. It was opinedthat any recommendation of the Chief Justice which is concurred with by thetwo senior-most judges should normally be accepted. The LCI was, inprinciple, against the selection of persons as judges of the High Court ongrounds or considerations of religion, caste or region.80. With regard to the recommendations originating from the politicalexecutive it was said:“Another question which has engaged attention is as to whether the role ofthe Chief Minister should be that of commenting on the name recommended bythe Chief Justice, or whether, in case he disagrees with the recommendationof the Chief Justice, he (the Chief Minister) can also suggest anothername. This question was agitated in the past, and after due considerationit was decided that the Chief Minister would be entitled, in case hedisagrees with the recommendation of the Chief Justice to suggest anothername. The Chief Minister in such an event has to invite the comments ofthe Chief Justice and send the matter thereafter along with the comments ofthe Chief Justice, to the Union Minister of Law and Justice. In view ofthe fact that a decision referred to above has already been taken after dueconsideration, we need not say anything further in the matter.”[248]81. Keeping all these factors in mind, some of the recommendations madeby the LCI were as follows:“(3) When making a recommendation for appointment of a judge of a HighCourt, the Chief Justice should consult his two seniormost colleagues. TheChief Justice, in his letter recommending the appointment, should state thefact of such consultation and indicate the views of his two colleagues soconsulted.(4) Any recommendation of the Chief Justice which carries the concurrenceof his two seniormost colleagues should normally be accepted.(7) The Commission is, in principle, against selection to the High CourtBench on ground of religion, caste or region. Merit should be the onlyconsideration. Even when matters of State policy make it necessary to giverepresentation to persons belonging to some religion, caste or region,every effort should be made to select the best person. The number of suchappointments should be as few as possible.(12) On the question whether the role of the Chief Minister should be thatonly of commenting on the name recommended by the Chief Justice, or whetherthe Chief Minister can also suggest another name, a decision has alreadybeen taken and nothing further need be said in the matter.”[249]82. Generally speaking, the LCI was of the view that the constitutionalscheme of appointment of judges was basically sound, had workedsatisfactorily and did not call for any radical change, though some aspectsneeded improvement. The recommendations mentioned above were made in thatlight.(c) 121st Report – 31.7.19871 A new forum for judicial appointments83. It is important to note that this Report was prepared after thedecision of this Court in S.P. Gupta. In its 121st Report, the LCI notedthat over the last four decades, mounting dissatisfaction has been voicedover the method and strategy of selection and the selectees to man thesuperior judiciary.[250] Further, in paragraph 7.1 of its Report, the LCInoted that ‘Everyone is agreed that the present scheme or model ormechanism for recruitment to superior judiciary has failed to deliver thegoods.’ This was with reference to the executive primacy theory in theappointment of judges propounded in S.P. Gupta. In view of this the LCIrecommended a new broad-based model called a National Judicial ServiceCommission.[251]84. The LCI observed that two models were available for the appointmentof judges. The first was the existing model which conferred overridingpowers on the executive in selecting and appointing judges. But, Article 50of the Constitution mandates a separation between the Executive and theJudiciary. The second model involved diluting (not excluding) the authorityof the executive by associating more people in the decision making processand setting up a body in which the judiciary has a pre-eminent position.This participatory model was called by the LCI as the National JudicialService Commission.85. The Commission was envisaged as a multi-member body headed by theChief Justice of India whose ‘pre-eminent position should not be diluted atall’, his predecessor in office, three senior-most judges of the SupremeCourt, three Chief Justices of the High Courts in order of their seniority,the Law Minister, the Attorney-General for India and an outstanding lawacademic. Thus, an 11 (eleven) member body was proposed by the LCI for theselection and appointment of judges of the Supreme Court and the HighCourts. To give effect to the recommendation, it was proposed to suitablyamend the Constitution.[252]86. The recommendation of the LCI was partially accepted by thegovernment of the day and the Constitution (Sixty-seventh Amendment) Bill,1990 was introduced in Parliament. This will be adverted to a littlelater.Arrears Committee – 1989-9087. Between 11th and 13th December, 1987 a Conference of Chief Justiceswas held with the Chief Justice of India in the Chair. The Conferencediscussed, inter alia, issues relating to arrears of cases in the HighCourts and the District Courts in the country. Grave concern was expressedover the problem of arrears and it was pointed out by most Chief Justicesthat delay in the appointment of judges is responsible for the arrears.Even after recommendations are sent, the Chief Justice has to wait for along time for the Government to make the appointment with the result thatfor a number of years Courts have been working with about 50% of theirstrength.88. After a detailed discussion of the matter, it was decided to appointa committee of Chief Justices to thoroughly examine the issues raised and aResolution was passed appointing such a committee. The composition of thecommittee called the Arrears Committee changed over a period of time butfinally it consisted of Chief Justice V.S. Malimath (Kerala High Court),Chief Justice P.D. Desai (Calcutta High Court) and Chief Justice Dr. A.S.Anand (Madras High Court). The Arrears Committee gave its Report in twovolumes to the Conference of Chief Justices held between 31st August and2nd September, 1990 which accepted the Reports, subject to a fewmodifications.89. Chapter 5 of Volume 2 of the Report deals with the unsatisfactoryappointment of judges to the High Courts. It was observed by the ArrearsCommittee that unsatisfactory appointments have contributed in a largemeasure to the accumulation of arrears in the High Courts. It was observedthat merit and merit alone, coupled with a reputation for integrity,suitability and capability has to be the criterion for selection of judgesand judges not selected on that basis or who are appointed onconsiderations other than merit, may not be able to act impartially andfairly. It was noted that for this reason the selection of judges shouldbe made with utmost care and concern.[253]90. The Arrears Committee also considered the Report given in the recentpast by the Satish Chandra Committee which was of the confirmed view thatsome judges have not been directly recommended by the Chief Justice of theHigh Court but have been foisted on the High Court and that if this trendcontinued, it would be very difficult for the Chief Justice to effectivelytransact the judicial business of the Court.[254]91. Thereafter, the selection of a judge of the High Court for reasonsother than merit was discussed and it was observed as follows:“The selection of a person, on considerations other than merit, has farreaching consequences and does more damage than what apparently meets theeye. Such an appointee does not even receive from the members of the Barthe measure of respect and co-operation which is imperative for properadministration of justice. He may not have confidence even in himself anda command over the proceedings of the Court. All this would be at the costof proper administration of justice. The effect would be felt not only onthe quality but also on the quantity of the work turned out.According to Satish Chandra Committee, the sea change which has graduallycome into the political process is directly responsible for the gravedeterioration and the fall in the high standards of appointments to theHigh Court Bench previously maintained. Barring exceptions, the ChiefMinisters to-day have come to think that even filling up vacancies on theHigh Court Bench is a matter of patronage, political or otherwise. Itnoticed 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 becanvassed for. It was found that as long as the State executive has aneffective hand in such appointments, this disquieting feature wouldcontinue and that it could be remedied only by providing the safeguard ofthe executive having no final say in the matter of appointment and that thelast word in the matter should be of the Chief Justice of the High Courtconcerned and the Chief Justice of India. The Committee, therefore,suggested amendment of the Constitution, as a guarantee for ensuring thequality, that an appointment to the High Court must have the concurrence ofthe Chief Justice of India and should not be made merely in consultationwith him. An amendment was suggested to Article 217(1) of the Constitutionon those lines.”[255]92. It was concluded that for the judicial system to function effectivelyand for the people to have faith and confidence in it, the appointment ofjudges should be made only on considerations of merit, suitability,integrity and capability and not on political expediency or regional orcommunal sentiments. It was observed in this regard as follows:“This Committee is of the firm view that to ensure that the judicial systemfunctions effectively and to maintain both the quality and quantity ofjudicial work, as well as the faith and confidence of the public, theappointments be made only on considerations of merit, suitability,integrity and capability and not of political expediency or regional orcommunal sentiments. The apprehension that the recommendation made by himmay not meet with the approval of the executive, may sometimes induce aChief Justice to propose the name of a person who does not measure upto therequisite standard, which is rather unfortunate. It is fundamental for thepreservation of the independence of the judiciary that it be free fromthreats and pressures from any quarter. It is the duty of the State toensure that the judiciary occupies, and is seen to occupy, such position inthe polity that it can effectively perform the functions entrusted to it bythe Constitution and that can be done only if the process of appointment isleft unpolluted.” [256]93. Commenting on the existing system of appointment of judges, theArrears Committee reviewed the system in Chapter 6 of the Report. Amongstother things it was observed that the system of appointment of judges hadbeen prevailing for four decades and it was functioning satisfactorily solong as well-established conventions were honoured and followed and that itis not the system that has failed but those operating it had failed it byallowing it to be perverted. It was observed as follows:“The present system of appointment of Judges to the High Courts has been invogue for about four decades. It functioned satisfactorily as long as thewell-established conventions were honoured and followed. The gradual, butsystematic violation and virtual annihilation of the conventions over thepast two decades or so is essentially responsible for the presentunfortunate situation. Has the system, therefore, failed or have theconcerned failed the system is an all important question. It is apparentthat the system has not failed, but all those concerned with operating thesystem have failed it by allowing it to be perverted.”[257]94. While dealing with the Memorandum of Procedure in existence at thattime for the appointment of judges, the Arrears Committee was ratherscathing in its observations to the effect that there had been cases wherethere was agreement between the Chief Justice of India, the Chief Justiceof the concerned High Court and the Governor of the State but the Union LawMinister either choose not to make the appointment or inordinately delayedthe appointment. It was observed that sometimes the Union Law Ministeradopted a pick and choose policy to appoint judges or disturb the order inwhich the recommendations were made. There had been political interferencein this regard and undesirable influence of extra-constitutionalauthorities in the appointment of judges. The appointment processtherefore was undermined leaving the executive to appoint judges not onexcellence but on influence. It was observed as follows:“There are cases that even where the Chief Justice of India on beingconsulted, agrees with the recommendation made by the Chief Justice of theconcerned High Court which is also concurred to by the Governor of theState and forwards his recommendation to the Union Law Minister,appointments are either not made or made after inordinate delay.Sometimes, the Union Law Minister even adopts the “pick and choose” policyto appoint Judges out of the list of selectees recommended by the ChiefJustice of the High Court duly concurred in by the Chief Justice of Indiaor makes appointments by disturbing the order in which the recommendationshave been made. The malady has become more acute in view of the politicalinterference and undesirable influence of “extra constitutionalauthorities” in the appointment of judges. Thus, the authority of theChief Justice of India and the role of the Chief Justice of the High Courtsin the matter of appointment of superior judiciary have, to a great extent,been undermined, leaving to the executive to appoint Judges not on“excellence” but on “influence”. Thus, merit, ability and suitabilitywhich undoubtedly the Chief Justice of the High Court is the most properperson to judge, are sacrificed at the altar of political or otherexpediency. This attitude is essentially responsible for the deteriorationand the fall in the high standards of appointments to the High CourtBenches. It is unfortunate, but absolutely true, that the Chief Ministershave come to think and the Union Law Minister has come to believe that thevacancy in the High Court Bench is a matter of political patronage whichthey are entitled to distribute or dole out to their favourites. This vetopower with the executive has played havoc in the matter of appointment ofJudges.”[258]95. In its recommendations, the Arrears Committee recommended dilution ofthe role of the executive and measures to avoid the existing system ofappointment from being perverted. It was recommended as follows:“The role of the executive in the matter of appointment of judges should bediluted and that the cause for most of the ills in the functioning of thepresent system could be traced back to the veto power of the executive.This, indeed, is capable of being remedied by making certain amendments toArticle 217 providing for concurrence of the Chief Justice of India,instead of consultation with him, in the matter of appointment of Judges ofthe High Courts.”[259]“The Committee is of the view that the present constitutional scheme whichwas framed by the founding fathers after great deliberation and muchreflection is intrinsically sound and that it worked in the true spirit itdoes not require any radical change. In order to guard against and obviatethe perversion revealed in the operation of the scheme, the Committee hasmade suitable recommendations. The Committee believes that if theserecommendations are given effect to, there would not be any need tosubstitute it by a different mechanism.”[260]96. In view of the scathing indictment of the system of appointment ofjudges where the executive had the ‘ultimate power’[261] which was beingabused and perverted to take away the independence of the judiciary,contrary to the intention of the Constituent Assembly, there was no optionbut to have a fresh look into the entire issue of appointment of judges andthat eventually led to the issue being referred in the early 1990’s to aBench of 9 (nine) judges of this Court. Quite clearly, the executive hadmade a mess of the appointment of judges, taken steps to subvert theindependence of the judiciary, gone against the grain of the views of theConstituent Assembly and acted in a manner that a responsible executiveought not to.97. Post Independence till the early 1990s, the judiciary saw the slowbut sure interference of the executive in the appointment of judges. Thiswas in the form of the executive recommending persons to the Chief Justiceof the High Court for appointment as a judge of the High Court. There wereoccasions when the executive completely by-passed the Chief Justice of theHigh Court and directly recommended persons to the Union Government forappointment as judges. The third stratagem adopted by the executive was towithhold recommendations made by the Chief Justice and instead forward itsown recommendation to the Union Government. The fourth method was to reopenapproved recommendations on some pretext or the other. The fifth method wasto delay processing a recommendation made by the Chief Justice.98. Tragically, almost all the appointments made during this period hadthe concurrence (as a constitutional convention) of the Chief Justice ofIndia and yet, there was criticism of some of the appointments made. Whilethe independence of the judiciary was maintained at law, it was beingslowly eroded both from within and without through the appointment of‘unsuitable’ judges with merit occasionally taking a side seat. The 14thReport of the LCI was generally critical of the appointments made to theHigh Courts and in this regard reliance was placed by the LCI oninformation collected from various sources including judges of the SupremeCourt. It is true that the 80th Report of the LCI found nothing seriouslywrong with the system of appointment of judges, but it still needed achange. The Arrears Committee, however, was derisive of the existing systemof appointment of judges and made some positive recommendations within theexisting system, while the 121st Report of the LCI suggested wholesalechanges.99. This discussion in the historical perspective indicates that theappointment of judges plays a crucial and critical role in the independenceof the judiciary in the real sense of the term. If judges can be influencedby political considerations and other extraneous factors, the judiciarycannot remain independent only by securing the salary, allowances,conditions of service and pension of such judges. The meat lies in thecaliber of the judges and not their perks.100. In his concluding address to the Constituent Assembly on 26thNovember, 1949 Dr. Rajendra Prasad referred to the independence of thejudiciary and had this to say:“We have provided in the Constitution for a judiciary which will beindependent. It is difficult to suggest anything more to make the SupremeCourt and the High Courts independent of the influence of the executive.There is an attempt made in the Constitution to make even the lowerjudiciary independent of any outside or extraneous influence. One of ourarticles makes it easy for the State Governments to introduce separation ofexecutive from judicial functions and placing the magistracy which dealswith criminal cases on similar footing as civil courts. I can only expressthe hope that this long overdue reform will soon be introduced in theStates.”[262]101. Providing for an independent judiciary is not enough – access toquality justice achieved through the appointment of independent judges isequally important. It has been said of the judges during apartheid in SouthAfrica:“Now during apartheid judges had the formal guarantees of independence -life tenure, salary, administrative autonomy - that judges in the UnitedStates of America, Canada, the United Kingdom, New Zealand or Australiahad. It is in seeing why it was the case that apartheid-era judges for themost part lacked independence even though they had its formal trappingsthat we see that judicial independence is also a kind of dependence; itdepends on something positive - the judicial pursuit of the justice of thelaw. One has to ask not only what judges have to be shielded from in orderto be independent, but what we want them to be independent for.”[263]102. This review indicates that one of the important features of the Ruleof Law and the independence of the judiciary is the appointment process.It is, therefore, necessary to objectively appreciate the evolution of theappointment process post Independence and how the Judiciary understood it.Judicial pronouncements103. The question of the appointment of judges (mainly of the High Courts)came up for consideration in this Court on three occasions. The decisionrendered in each of these cases is not only of considerable importance butalso indicates the complexity in the appointment of judges and the struggleby the Bar to maintain the independence of the judiciary from executiveinterference and encroachment. These three cases are referred to as theFirst Judges case,[264] the Second Judges case[265] and the Third Judgescase.[266] There have been other significant pronouncements on the subjectand they will be considered at the appropriate stage.12 First judges case – 30.12.1981104. The First Judges case is important for several reasons, but I amconcerned with a few of them. These are: (1) The independence of thejudiciary was held to be a part of the basic feature of theConstitution.[267] This was the first judgment to so hold.(2) The appointment of a judge is serious business and is recognized as avery vital component of the independence of the judiciary. ‘What isnecessary is to have Judges who are prepared to fashion new tools, forgenew methods, innovate new strategies and evolve a new jurisprudence, whoare judicial statesmen with a social vision and a creative faculty and whohave, above all, a deep sense of commitment to the Constitution with anactivist approach and obligation for accountability, not to any party inpower nor to the opposition nor to the classes which are vociferous but tothe half-hungry millions of India who are continually denied their basichuman rights. We need Judges who are alive to the socio-economic realitiesof Indian life, who are anxious to wipe every tear from every eye, who havefaith in the constitutional values and who are ready to use law as aninstrument for achieving the constitutional objectives. This has to be thebroad blueprint of the appointment project for the higher echelons ofjudicial service. It is only if appointments of Judges are made with theseconsiderations weighing predominantly with the appointing authority that wecan have a truly independent judiciary committed only to the Constitutionand to the people of India.’[268] Justice Venkataramiah, however, was ofthe view that the independence of the judiciary is relatable only to post-appointment and that ‘It is difficult to hold that merely because the powerof appointment is with the executive, the independence of the judiciarywould become impaired. The true principle is that after such appointmentthe executive should have no scope to interfere with the work of aJudge.’[269](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’.[270] However, for thepurposes of consultation, each constitutional functionary must have fulland identical facts relating to the appointment of a judge and theconsultation should be based on this identical material.[271](4) In the event of a disagreement between the constitutional functionariesrequired to be consulted in the appointment of a judge, the UnionGovernment would decide whose opinion should be accepted and whether anappointment should be made or not. In such an event, the opinion of theChief Justice of India has no primacy.[272] The ‘ultimate power’ ofappointment of judges to the superior Courts rests with the UnionGovernment.[273] (This is completely contrary to the view of theConstituent Assembly and Dr. Ambedkar).(5) The extant system of appointment of judges is not an ideal system ofappointment. The idea of a consultative panel (called a collegium orJudicial Commission) was floated as a replacement. This body was to consistof persons expected to have knowledge of persons who might be fit forappointment on the Bench and possessed of qualities required for such anappointment. Countries like Australia and New Zealand ‘have veered round tothe view that there should be a Judicial Commission for appointment of thehigher judiciary.’[274] Incidentally, we were informed during the course ofhearing that even about 35 years after the decision in the First Judgescase neither Australia nor New Zealand have established a JudicialCommission as yet.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 themajority relied upon Union of India v. Sankalchand Himmatlal Sheth[275] andR. Pushpam v. State of Madras[276] to hold that:“Each of the constitutional functionaries required to be consulted underthese two articles must have for his consideration full and identical factsbearing upon appointment or non-appointment of the person concerned as aJudge and the opinion of each of them taken on identical material must beconsidered by the Central Government before it takes a decision whether ornot to appoint the person concerned as a Judge.”[277]106. The majority view in the First Judges case was overruled in theSecond Judges case and it was held that ‘consultation’ in Article 217 andArticle 124 of the Constitution meant that ‘primacy’ in the appointment ofjudges must rest with the Chief Justice of India.[278] The evolution of thecollegium system and a Judicial Commission will be discussed a littlelater, although it must be noted that the seeds thereof were sown (apartfrom the Reports of the LCI) in the First Judges case.107. I do not think it necessary to further discuss the First Judges casesince it has been elaborately considered by Justice Khehar.3 Subhash Sharma’s case108. In a writ petition filed in this Court praying for filling up thevacancies of judges in the Supreme Court and several High Courts of thecountry, a three judge Bench was of the view that the First Judges caserequired reconsideration.[279] It was observed that the decision of themajority not only rejects the primacy of the Chief Justice of India butalso whittles down the significance of ‘consultation’.109. It was noted that the Constitution (Sixty-seventh Amendment) Bill,1990 was pending consideration in Parliament and that the Statement ofObjects and Reasons for the Amendment Act acknowledged that there wascriticism of the existing system of appointment of judges (where theexecutive had the primacy) and that this needed change, hence the need foran Amendment Act.[280]110. On the issue of executive interference in the appointment of judges,the Bench found that interference went to the extent of impermissibly re-opening the appointment process even though a recommendation for theappointment of a judge had been accepted by the Chief Justice of India. Itwas observed:“From the affidavits filed by the Union of India and the statements made bylearned Attorney General on the different occasions when the matter washeard we found that the Union Government had [pic]adopted the policy ofreopening recommendations even though the same had been cleared by theChief Justice of India on the basis that there had in the meantime been achange in the personnel of the Chief Justice of the High Court or the ChiefMinister of the State. The selection of a person as a Judge has nothingpersonal either to the Chief Justice of the High Court or the ChiefMinister of the State. The High Court is an institution of nationalimportance wherein the person appointed as a Judge functions in animpersonal manner. The process of selection is intended to be totallyhonest and upright with a view to finding out the most suitable person forthe vacancy. If in a given case the Chief Justice of the High Court hasrecommended and the name has been considered by the Chief Minister and dulyprocessed through the Governor so as to reach the hands of the ChiefJustice of India through the Ministry of Justice and the Chief Justice ofIndia as the highest judicial authority in the country, on due applicationof his mind, has given finality to the process at his level, there cannotordinarily be any justification for reopening the matter merely becausethere has been a change in the personnel of the Chief Justice or the ChiefMinister of the State concerned.”[281]111. Apart from the above, the Bench was of the view that theinterpretation 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 ofIndia in the constitutional scheme had been denuded in the First Judgescase. Keeping all these factors in mind, particularly the functioning ofthe appointment process and the acknowledgement of the Union Governmentthat a change was needed, it was observed:“The view taken by Bhagwati, J., Fazal Ali, J., Desai, J., andVenkataramiah, J., to which we will presently advert, in our opinion, notonly seriously detracts from and denudes the primacy of the position,implicit in the constitutional scheme, of the Chief Justice of India in theconsultative process but also whittles down the very significance of“consultation” as required to be understood in the constitutional schemeand context. This bears both on the substance and the process of theconstitutional scheme….. Consistent with the constitutional purpose andprocess it becomes imperative that the role of the institution of the ChiefJustice of India be recognised as of crucial importance in the matter ofappointments to the Supreme Court and the High Courts of the States. We areof the view that this aspect dealt with in Gupta case requiresreconsideration by a larger bench.”[282]112. The issues for consideration of a larger Bench were then formulatedin the following words:“The points which require to be reconsidered relate to and arise from theviews of the majority opinion touching the very status of “consultation”generally and in particular with reference to “consultation” with ChiefJustice of India and, secondly, as to the primacy of the role of the ChiefJustice of India. The content and quality of consultation may perhaps varyin different situations in the interaction between the executive and thejudicial organs of the State and some aspects may requireclarification.”[283]113. It was also observed that a view was expressed in the First Judgescase that the government of the State could initiate a proposal for theappointment of a judge but that the proposal could not be sent directly tothe Union Government, but should first be sent to the Chief Justice of theHigh Court.[284] Notwithstanding this clear exposition, the procedure wasbeing distorted by the executive and a proposal for the appointment ofjudge of the High Court was being sent directly to the Union Government. Itwas said in this regard:“But it has been mentioned that a practice is sought to be developed wherethe executive government of the State sends up the proposals directly tothe Centre without reference to the Chief Justice of the State. This is adistortion of the constitutional scheme and is wholly impermissible. So faras the executive is concerned, the ‘right’ to initiate an appointmentshould be limited to suggesting appropriate names to the Chief Justice ofthe High Courts or the Chief Justice of India. If the recommendation is toemanate directly from a source other than that of the Chief Justices of theHigh Courts in the case of the High Courts and the Chief Justice of Indiain the case of both the High Courts and the Supreme Court it would bedifficult for an appropriate selection to be made. It has been increasinglyfelt over the decades that there has been an anxiety on the part of thegovernment of the day to assert its choice in the ultimate selection ofJudges. If the power to recommend would vest in the State Government oreven the Central Government, the picture is likely to be blurred and theprocess of selection ultimately may turn out to be difficult.”[285]114. By-passing the Chief Justice of the High Court in the matter ofrecommending a person for appointment as a judge of the High Court was anunhealthy practice that the political executive of the State was trying toestablish since around the time of Independence. This ‘subterfuge’ wasdeprecated on more than one occasion, as noticed above.115. Another practice that the political executive was trying to establishwas to recommend persons for appointment as a judge of the High Court tothe Chief Justice of that High Court. In this context, it was also statedin Subhash Sharma (as quoted above) that: ‘It has been increasingly feltover the decades that there has been an anxiety on the part of thegovernment of the day to assert its choice in the ultimate selection ofJudges.’[286] This unequivocally indicates that the malaise of executiveinterference in appointing judges to the superior judiciary, firsthighlighted in the Memorandum emanating from the Chief Justices Conferenceand then by the LCI in its 14th Report, continued in some form or the otherthrough the entire period from Independence till the early 1990s. Inaddition, the recommendation given in the 14th Report of the LCI in Chapter6 regarding the executive not being entitled to ‘propose a nominee of itsown and forward it to the Centre’ was not given the due weight andconsideration that it deserved from the executive.116. Quite clearly, some complex issues arose in the matter of appointmentof judges primarily due to the interference of the political executive andthese needed consideration by a larger Bench. Well established and acceptedconstitutional conventions were sought to be disregarded by the politicalexecutive. If the independence of the judiciary was to be maintained andparliamentary democracy was to be retained, the First Judges case and theappointment process needed a fresh look.4 Second Judges case – 6.10.1993117. As mentioned above, the Second Judges case was the result of anacknowledgement that: (1) The existing system of appointment of judges inwhich the executive had the ‘ultimate power’ needed reconsideration sincethat ‘ultimate power’ was being abused; (2) The existing system ofappointment of judges resulted in some appointments in which merit wasoverlooked due to executive interference or for extraneous considerations.The Chief Justice of the High Court was occasionally by-passed by thepolitical executive and a recommendation for the appointment of a person asa judge of the High Court was made directly to the Union Government. Thisunfortunate situation had continued for more than 40 years and an attemptto bring about a change was made and so a Constitution Amendment Bill wasintroduced in Parliament, but it lapsed.118. In the Second Judges case it was held by Justice Pandian: (1) Theselection and appointment of a proper and fit candidate to the superiorjudiciary is one of the inseparable and vital conditions for securing theindependence of the judiciary.[287] ‘The erroneous appointment of anunsuitable person is bound to produce irreparable damage to the faith ofthe community in the administration of justice and to inflict seriousinjury to the public interest...’[288] (2) Yet another facet of theindependence of the judiciary is the separation between the executive andthe judiciary (including the superior judiciary)[289] postulated by Article50 of the Constitution.[290] (3) The Memorandum of Procedure for theselection and appointment of judges filed by the Union of India along withthe written submissions relating to the pre First Judges case period andthe extant procedure as mentioned in the 121st Report of the LCI relatingto the post First Judges case period are more or less the same. Theyindicate that the recommendation for filling up a vacancy in the SupremeCourt is initiated by the Chief Justice of India and the recommendation forfilling up a vacancy in the High Court is initiated by the Chief Justice ofthe High Court. The Chief Minister of a State may recommend a person forfilling up a vacancy in the High Court, but that is to be routed onlythrough the Chief Justice of the High Court.[291] (4) Reiterating the viewexpressed in Sankalchand Sheth and the First Judges case it was held thatfor the purposes of consultation, the materials before the President andthe Chief Justice of India must be identical.[292] (5) For the appointmentof 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.[293] (6) In theprocess of constitutional consultation in selecting judges to the SupremeCourt or the High Court and transfer of judges of the High Court, theopinion of the Chief Justice of India is entitled to primacy.[294] (7)Agreeing with the majority opinion written by Justice J.S. Verma, it washeld that if there are weighty and cogent reasons for not accepting therecommendation of the Chief Justice of India for the appointment of ajudge, then the appointment may not be made. However, if the ‘weighty andcogent’ reasons are not acceptable to the Chief Justice of India, and therecommendation is reiterated, then the appointment shall be made.[295] (8)The majority opinion in the First Judges case regarding the primacy of theexecutive in the matter of appointment of judges was overruled.[296]119. Justice Ahmadi dissented with the opinion of the majority andconcluded: (1) Judicial independence is ingrained in our constitutionalscheme and Article 50 of the Constitution ‘illuminates it’.[297] (2) TheFirst Judges case was not required to be overruled but on the question ofprimacy in the matter of appointment of judges, the opinion of the ChiefJustice of India is entitled to ‘graded weight’.[298]120. Justice Kuldip Singh agreed with the majority and laid great stresson constitutional conventions that had evolved over several decades. Thelearned judge held: (1) Security of tenure is not the only source ofindependence of the judiciary but ‘there has to be an independent judiciaryas an institution.’[299] (2) Independence of the judiciary is inextricablylinked and connected with the constitutional process of appointment ofjudges of the higher judiciary. There cannot be an independent judiciarywhen the power of appointment of judges vests in the executive.[300] (3)The President is bound by the advice given by the Council ofMinisters.[301] (4) A constitutional convention is established since theGovernment of India Act, 1935 (I would add the words ‘at least’) that theappointment of judges was invariably made with the concurrence of the ChiefJustice of India. The opinion and recommendation of the Chief Justice ofIndia in the matter of appointment of judges binds the executive.[302] (5)In the matter of appointment of judges, consultation with the Chief Justiceof India is mandatory.[303] (6) In the consultation process under Article124(2) and 217(1) of the Constitution, the advice and recommendation of theChief Justice of India is binding on the executive and must be the finalword. The majority view in the First Judges case does not lay down thecorrect law.[304](7) For the purposes of Article 124(2) and 217(1) of the Constitution, theChief Justice of India and the Chief Justice of the High Court mean thefunctionaries representing their respective Court.[305]121. One of the more interesting facts pointed out by Justice Kuldip Singhis that from 1st January, 1983 (after the decision in the First Judgescase) till 10th April, 1993 (that is during a period of ten years) theopinion of the Chief Justice of India was not accepted by the President inas many as seven cases. This is worth contrasting with a part of the periodbefore the ‘ultimate power’ theory was propounded when the opinion of theChief Justice of India was not accepted by the President only in one caseand in that case, the opinion of the Chief Justice of the High Court (notthe political executive) was accepted. This is what the learned judge hadto say:“Mr S.K. Bose, Joint Secretary, Department of Justice, Ministry of Law andJustice has filed an affidavit dated April 22, 1993 before us. In para 6 ofthe said affidavit it is stated as under:“As regards the appointments of Judges made, not in consonance with theviews expressed by the Chief Justice of India, it is respectfully submittedthat since January 1, 1983 to April 10, 1993, there have been only sevensuch 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 atotal of 547 appointments made during this period.”It is thus obvious from the facts and figures given by the executive itselfthat in actual practice the recommendations of the Chief Justice of Indiahave invariably been accepted.”[306]122. Justice Verma speaking for the majority held: (1) Independence of thejudiciary has to be safeguarded not only by providing security of tenureand other conditions of service, but also by preventing politicalconsiderations in making appointments of judges to the superiorjudiciary.[307](2) In the matter of appointment of judges, primacy was given to theexecutive in the Government of India Act, 1919 and the Government of IndiaAct, 1935 but in the constitutional scheme, primacy of the executive isexcluded.[308](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 hissuitability for appointment as a superior judge.’ In the event of adifference of opinion between the executive and the judiciary, the opinionof the Chief Justice of India should have the greatest weight. [This echoedDr. Ambedkar’s view that consultation would be between persons who are wellqualified to give advice in matters of this sort.] Therefore, since primacyis not with the executive, then in such a situation, it must lie with theChief Justice of India.[309] This certainly does not exclude the executivefrom the appointment process. The executive might be aware (unlike a ChiefJustice) of some antecedents or some information relatable to the personalcharacter or trait of a lawyer or a judge which might have a bearing on thepotential of a person becoming a good judge.[310] This might form the basisfor rejecting a recommendation for the appointment of a person as a judgeby the Chief Justice of India.[311](4) Primacy of the opinion of the Chief Justice of India is not to his/herindividual opinion but to the collective opinion of the Chief Justice ofIndia and his/her senior colleagues or those who are associated with thefunction of appointment of judges.[312] Therefore, the President may notaccept the recommendation of a person for appointment as a judge, if therecommendation of the Chief Justice of India is not supported by theunanimous opinion of the other senior judges.[313] The President may returnfor reconsideration a unanimous recommendation for good reasons. However,in the latter event, if the Chief Justice of India and the other judgesconsulted by him/her, unanimously reiterate the recommendation ‘withreasons for not withdrawing the recommendation, then that appointment as amatter of healthy convention ought to be made.’[314] (The key word here isunanimous – both at the stage of the initial recommendation and at thestage 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 theHigh Court is mandatory.[315](6) The President in Articles 124(2) and 217(1) of the Constitution meansthe President acting in accordance with the advice of the Council ofMinisters with the Prime Minister at the head.[316](7) The advice given by the Council of Ministers to the President should bein accord with the Constitution. Such an advice is binding on thePresident. Since the opinion of the Chief Justice of India (representingthe Judiciary) has finality, the advice of the Council of Ministers to thePresident must be in accordance with the opinion of the Chief Justice ofIndia.[317](8) The convention is that the appointment process is initiated by theChief Justice of India for the appointment of a judge to the Supreme Courtand by the Chief Justice of the High Court for the appointment of a judgeto the High Court. There is no reason to depart from this convention.[318](9) The law laid down in the First Judges case is not the correctview.[319]123. In his otherwise dissenting opinion, Justice Punchhi supported theview taken by Justice Verma to the extent that the executive could notdisapprove the views of the Chief Justice of India or the views of theChief Justice of the High Court (as the case may be) when a recommendationis made for the appointment of a judge to a superior court.[320]124. The most significant feature of the Second Judges case is that itintroduced what has come to be called a ‘collegium system’ of consultationfor the appointment of judges of the Supreme Court and the High Courts. Asfar as the Chief Justice of India is concerned, the collegium system broad-based his/her role in the appointment of judges of the High Courts and theSupreme Court and (in one sense) diluted his/her role in the appointmentprocess by taking it out of the individualized or personalized role of theChief Justice of India as thought of by Dr. Ambedkar. The consultative roleof the Chief Justice of India in Article 124 of the Constitution wasradically transformed through a pragmatic interpretation of that provision.How did this happen?125. In the Second Judges case certain norms were laid down by JusticeVerma in the matter of appointment of judges. These norms were: For theappointment of judges in the Supreme Court, the Chief Justice of India mustascertain the views of the two senior-most judges of the Supreme Court andof the senior-most judge in the Supreme Court from the High Court of thecandidate concerned. Through this process, the individual opinion of theChief Justice of India was substituted by the collective opinion of severaljudges. In this sense the opinion of the Chief Justice of India in theconsultative process was made broad-based and ceased to be individualized.At this stage it is worth recalling the words of Dr. Ambedkar that ‘theChief Justice, despite his eminence, had all the failings, sentiments andprejudices of common people.’ The apprehension or fear that Dr. Ambedkarhad in this regard in case the Chief Justice of India were to act in anindividual or personal capacity was now buried.[321] A somewhat similarnorm was laid down for consultation for the appointment of a judge of theHigh Court. This is what was said:“This opinion has to be formed in a pragmatic manner and past practicebased on convention is a safe guide. In matters relating to appointments inthe Supreme Court, the opinion given by the Chief Justice of India in theconsultative process has to be formed taking into account the views of thetwo seniormost Judges of the Supreme Court. The Chief Justice of India isalso expected to ascertain the views of the senior-most Judge of theSupreme Court whose opinion is likely to be significant in adjudging thesuitability of the candidate, by reason of the fact that he has come fromthe same High Court, or otherwise. Article 124(2) is an indication thatascertainment of the views of some other Judges of the Supreme Court isrequisite. The object underlying Article 124(2) is achieved in this manneras the Chief Justice of India consults them for the formation of hisopinion. This provision in Article 124(2) is the basis for the existingconvention which requires the Chief Justice of India to consult some Judgesof the Supreme Court before making his recommendation. This ensures thatthe opinion of the Chief Justice of India is not merely his individualopinion, but an opinion formed collectively by a body of men at the apexlevel in the judiciary.In matters relating to appointments in the High Courts, the Chief Justiceof India is expected to take into account the views of his colleagues inthe Supreme Court who are likely to be conversant with the affairs of theconcerned High Court. The Chief Justice of India may also ascertain theviews of one or more senior Judges of that High Court whose opinion,according to the Chief Justice of India, is likely to be significant in theformation of his opinion. The opinion of the Chief Justice of the HighCourt would be entitled to the greatest weight, and the opinion of theother functionaries involved must be given due weight, in the formation ofthe opinion of the Chief Justice of India. The opinion of the Chief Justiceof the High Court must be formed after ascertaining the views of at leastthe two seniormost Judges of the High Court.”[322]126. The importance of the role of the Chief Justice of India wasacknowledged in that it was observed that the constitutional convention wasthat 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 thefinal opinion of the Chief Justice of India. It was said:“The opinion of the Chief Justice of India, for the purpose of Articles124(2) and 217(1), so given, has primacy in the matter of all appointments;and no appointment can be made by the President under these provisions tothe Supreme Court and the High Courts, unless it is in conformity with thefinal opinion of the Chief Justice of India, formed in the mannerindicated.”[323]127. The ‘manner indicated’ was that if a recommendation is returned bythe executive (for cogent reasons) to the Chief Justice of India and theChief Justice of India reiterates the recommendation with the unanimousagreement of the judges earlier consulted, then the appointment should bemade ‘as a matter of healthy convention’. This is what was said in thiscontext:“Non-appointment of anyone recommended, on the ground of unsuitability,must be for good reasons, disclosed to the Chief Justice of India to enablehim to reconsider and withdraw his recommendation on those considerations.If the Chief Justice of India does not find it necessary to withdraw hisrecommendation even thereafter, but the other Judges of the Supreme Courtwho have been consulted in the matter are of the view that it ought to bewithdrawn, the non-appointment of that person, for reasons to be recorded,may be permissible in the public interest. If the non-appointment in a rarecase, on this ground, turns out to be a mistake, that mistake in theultimate public interest is less harmful than a wrong appointment. However,if after due consideration of the reasons disclosed to the Chief Justice ofIndia, that recommendation is reiterated by the Chief Justice of India withthe unanimous agreement of the Judges of the Supreme Court consulted in thematter, with reasons for not withdrawing the recommendation, then thatappointment as a matter of healthy convention ought to be made.”[324]128. The norms took the form of conclusions that became binding on theJudiciary and the Executive. It is not necessary to reproduce theconclusions arrived at.129. An important aspect of the appointment process, which was adverted toby Justice Verma, is the constitutional convention that the recommendationmust be initiated by and must originate from the Chief Justice of the HighCourt (for appointment to the High Court) and from the Chief Justice ofIndia (for appointment to the Supreme Court). In the event the ChiefMinister of a State recommends a person for appointment as a judge of theHigh Court, it must be routed only through the Chief Justice of the HighCourt. It is then for the said Chief Justice to consult his colleagues (andothers, if necessary) and decide whether or not the person should beformally recommended. If the Chief Justice of the High Court recommendsthat person, the procedure as mentioned in the Second Judges case wouldthereafter follow. If the Chief Justice of the High Court decides not torecommend that person for appointment, the matter stands closed and,therefore, the question of making an appointment without the consent of theChief Justice of India simply does not and cannot arise. It is thisconstitutionally and conventionally accepted procedure, which is apparentlynot acceptable to the political executive, that has led to the politicalexecutive by-passing the Chief Justice of a High Court and directlyrecommending to the Union Government a person for appointment as a judge ofthe High Court. Be that as it may, the majority view expressed in theSecond Judges case restored the constitutional position envisaged by Dr.Ambedkar by diluting the individual authority of the Chief Justice of Indiaand conferring it on a collegium of judges, which is perhaps in consonancewith the views of Dr. Ambedkar.130. According to the learned Attorney-General, these conclusions turnedArticle 124(2) and Article 217(1) of the Constitution ‘on their head’ andeven Justice Verma, the author of the judgment felt that the decisionrequired a rethink. The reference was to an interview given by JusticeVerma post his retirement. In that, it was said by Justice Verma: “My 1993 judgment which holds the field, was very much misunderstood andmisused. It was in that context that I said the working of the judgment nowfor some time is raising serious questions, which cannot be calledunreasonable. Therefore some kind of rethink is required.”[325]131. It appears that the misunderstanding of the decision in the SecondJudges case continues even today, especially by the political executive.The misunderstanding is not due to any lack of clarity in the decisionrendered by this Court but due to the discomfort in the ‘working of thejudgment’. I say this because it was submitted by the learned Attorney-General and learned counsel for some States that the Second Judges caseleft the executive with no role (or no effective role) to play in theappointment of a judge of the Supreme Court or the High Court particularlysince the opinion of the executive is now rendered meaningless. Nothing canbe further from the truth. The executive continues to have a vital role toplay and in some cases, the final say in the appointment of a judge – themisunderstanding of the judgment is due to the completely and regrettablydefeatist attitude of the Union of India and the States or their view thatin the matter of appointment of judges, it is their way or the highway. TheConstitution of India is a sacred document and not a Rubik’s cube that canbe manipulated and maneuvered by the political executive any which way onlyto suit its immediate needs.132. In an article found on the website of the Tamil Nadu State JudicialAcademy, Justice Verma adverted to the appointment process in the SecondJudges case and the role of the executive and said:“The clear language of the decision leaves no room for any doubt that theexecutive has a participatory role in these appointments; the opinion ofthe executive is weightier in the area of antecedents and personalcharacter and conduct of the candidate; the power of non-appointment onthis ground is expressly with the executive, notwithstanding therecommendation of the CJI; and that doubtful antecedents etc. are alonesufficient for non-appointment by the executive. The decision also holdsthat the opinion of the judicial collegium, if not unanimous does not bindthe executive to make the appointment.Some reported instances in the recent past of the executive failing toperform its duty by exercise of this power even when the recommendation ofthe judicial collegium was not unanimous and the then President of Indiahad returned it for reconsideration, are not only inexplicable but also amisapplication of the decision, which the CJI, Balakrishnan rightly says isbinding during its validity. Such instances only prove the prophecy of Dr.Rajendra Prasad that the Constitution will be as good as the people whowork it. Have any system you like, its worth and efficacy will depend onthe worth of the people who work it! It is, therefore, the working of thesystem that must be monitored to ensure transparency andaccountability.”[326]A little later in the article Justice Verma says (and this is also advertedto in the interview referred to by the learned Attorney-General):“The recent aberrations are in the application of the Second Judge’s casein making the appointments, and not because of it. This is what I hadpointed out in my letter of 5 December 2005 to CJI, Y.K.Sabharwal with copyto the two senior most judges, who included the present CJI,K.G.Balakrishnan.”133. The misunderstanding is, therefore, of the political executive and noone else. However, as pointed out by the learned Attorney-General, themerits or demerits of the Second Judges case is not in issue after the 99thConstitution Amendment Act and therefore no further comment is made,although it must be said, quite categorically, that the political executivehas completely misunderstood the scope and impact of the Second Judges caseand the working of the collegium system.5 Third Judges case – 28.10.1998134. Special Reference No. 1 of 1998 is commonly referred to as the ThirdJudges case. The President sought the advisory opinion of this Court underArticle 143 of the Constitution on the following, 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 ofJudges in the formation of the opinion of the Chief Justice of India ordoes the sole individual opinion of the Chief Justice of India constituteconsultation within the meaning of the said articles.(3) whether Article 124(2) as interpreted in the said judgment [SecondJudges case] requires the Chief Justice of India to consult only the twoseniormost Judges or whether there should be wider consultation accordingto past practice.(4) whether the Chief Justice of India is entitled to act solely in hisindividual capacity, without consultation with other Judges of the SupremeCourt in respect of all materials and information conveyed by theGovernment of India for non-appointment of a Judge recommended forappointment;”135. At the outset, it must be noted that the learned Attorney-Generalstated at the hearing of the Presidential Reference that the CentralGovernment was neither seeking a review nor a reconsideration of the SecondJudges case. Therefore, the answers to the Presidential Reference do notdepart from the conclusions arrived at by this Court in the Second Judgescase. In that sense, this opinion did not take the substantive discussionmuch further though it substantially resolved some procedural issues andfilled in the gaps relating to the process of appointment of judges to thesuperior judiciary. In any event, the answers to the three questionsmentioned above are:“1. The expression “consultation with the Chief Justice of India” inArticles 217(1) and 222(1) of the Constitution of India requiresconsultation with a plurality of Judges in the formation of the opinion ofthe Chief Justice of India. The sole individual opinion of the ChiefJustice of India does not constitute “consultation” within the meaning ofthe said articles.3. The Chief Justice of India must make a recommendation to appoint a Judgeof the Supreme Court and to transfer a Chief Justice or puisne Judge of aHigh Court in consultation with the four seniormost puisne Judges of theSupreme Court. Insofar as an appointment to the High Court is concerned,the recommendation must be made in consultation with the two seniormostpuisne Judges of the Supreme Court.4. The Chief Justice of India is not entitled to act solely in hisindividual capacity, without consultation with other Judges of the SupremeCourt, in respect of materials and information conveyed by the Governmentof India for non-appointment of a Judge recommended for appointment.”[327]136. The decision in the Second Judges case read with the opinion given bythis Court to the various questions raised in the Presidential Reference orthe Third Judges case fully settled the controversies surrounding theprocedure to be adopted in the appointment of judges to the superiorjudiciary. Issues of primacy of views and consultation with the ChiefJustice of India were all answered by the decision and the opinion.137. It is important to note that the Third Judges case modified oneimportant norm or conclusion of the Second Judges case. The modificationwas that the ‘collegium’ for appointment of judges in the Supreme Court wasexpanded to consist of the Chief Justice of India and four senior-mostjudges rather than the two senior-most judges as concluded in the SecondJudges case. In this manner, the consultation with the Chief Justice ofIndia was further broad-based. It was clarified in conclusion 9 as follows:“9. Recommendations made by the Chief Justice of India without complyingwith the norms and requirements of the consultation process, asaforestated, are not binding upon the Government of India.”This conclusion is important, but seems to have been ignored or overlookedby the President.6 Samsher Singh’s case78 138. For a complete picture of the judicial pronouncements on thesubject, it is also necessary to refer to the decision rendered by thisCourt in Samsher Singh v. State of Punjab.[328]139. This case related to the termination of the services of two officersof the subordinate judicial service by the Governor of the State. The issuewas whether the Governor could exercise his discretion in the matterpersonally or should act on the advice of the Council of Ministers. Thejudicial officers contended that the Governor was obliged to exercise hispersonal discretion and reliance was placed on Sardari Lal v. Union ofIndia[329] in which it was held that for invoking the ‘pleasure doctrine’under Article 311(2) of the Constitution, the personal satisfaction of thePresident is necessary for dispensing with an inquiry under clause (c) ofthe proviso to Article 311(2) of the Constitution. On the other hand, theState contended that the Governor was obliged to act only on the advice ofthe Council of Ministers.140. This Court speaking through Chief Justice A.N. Ray (for himself andfour other learned judges) overruled Sardari Lal and held that the decisiondid not correctly state the law. It was held that under the Rules ofBusiness, the decision of the concerned Minister or officer is the decisionof the President or the Governor as the case may be. It was then concluded:“For the foregoing reasons we hold that the President or the Governor actson the aid and advice of the Council of Ministers with the Prime Ministerat the head in the case of the Union and the Chief Minister at the head inthe case of State in all matters which vests in the Executive whether thosefunctions are executive or legislative in character. Neither the Presidentnor the Governor is to exercise the executive functions personally. Thepresent appeals concern the appointment of persons other than DistrictJudges to the Judicial Services of the State which is to be made by theGovernor as contemplated in Article 234 of the Constitution afterconsultation with the State Public Service Commission and the High Court.Appointment or dismissal or removal of persons belonging to the JudicialService of the State is not a personal function but is an executivefunction of the Governor exercised in accordance with the rules in thatbehalf under the Constitution.”[330]141. In a separate but concurring judgment authored by Justice KrishnaIyer (for himself and Justice Bhagwati) the view expressed by Chief JusticeRay was accepted in the following words:“We declare the law of this branch of our Constitution to be that thePresident and Governor, custodians of all executive and other powers undervarious articles shall, by virtue of these provisions, exercise theirformal constitutional powers only upon and in accordance with the advice oftheir Ministers save in a few well-known exceptional situations. Withoutbeing dogmatic or exhaustive, these situations relate to (a) the choice ofPrime Minister (Chief Minister), restricted though this choice is by theparamount consideration that he should command a majority in the House; (b)the dismissal of a Government which has lost its majority in the House, butrefuses to quit office; (c) the dissolution of the House where an appeal tothe country is necessitous, although in this area the head of State shouldavoid getting involved in politics and must be advised by his PrimeMinister (Chief Minister) who will eventually take the responsibility forthe step.”[331]142. An additional reason was given by the two learned judges for comingto this conclusion and that is also important for our present purposes. Theadditional reason relates to the independence of the judiciary. For this,reference was made to Jyoti Prokash Mitter v. Chief Justice, Calcutta.[332] The question in that case related to the determination of the age of asitting judge of the High Court under Article 217(3) of theConstitution.[333] This Court held that the age determination should be bythe President uninfluenced by the views of the executive. This was on theground that were the executive to make the determination of the age of asitting judge, it would ‘seriously affect the independence of theJudiciary.’ This view was subsequently reiterated in Union of India v.Jyoti Prokash Mitter.[334]143. The learned judges then held, on the basis of the scheme of theConstitution that had already been adverted to, that the President meansthe Council of Ministers and the independence of the judiciary has beensafeguarded by Article 217(3) of the Constitution by making mandatory theconsultation with the Chief Justice of India in regard to agedetermination. This would prevent the possibility of extraneousconsiderations entering into the decision of the Minister if he/she departsfrom the views of the Chief Justice of India. It was held that in allconceivable cases, consultation with the Chief Justice of India should beaccepted by the executive and if there is a departure from the views of theChief Justice of India, the Court can examine the issue in the light of theavailable facts. In such a ‘sensitive subject’ the last word should be withthe Chief Justice of India. On this interpretation, it becomes irrelevantwho formally decides the issue. This is what was held:“In the light of the scheme of the Constitution we have already referredto, it is doubtful whether such an interpretation as to the personalsatisfaction of the President is correct. We are of the view that thePresident means, for all practical purposes, the Minister or the Council ofMinisters as the case may be, and his opinion, satisfaction or decision isconstitutionally secured when his Ministers arrive at such opinionsatisfaction or decision. The independence of the Judiciary, which is acardinal principle of the Constitution and has been relied on to justifythe deviation, is guarded by the relevant article making consultation withthe Chief Justice of India obligatory. In all conceivable casesconsultation with that highest dignitary of Indian justice will and shouldbe accepted by the Government of India and the Court will have anopportunity to examine if any other extraneous circumstances have enteredinto the verdict of the Minister, if he departs from the counsel given bythe Chief Justice of India. In practice the last word in such a sensitivesubject must belong to the Chief Justice of India, the rejection of hisadvice being ordinarily regarded as prompted by oblique considerationsvitiating the order. In this view it is immaterial whether the President orthe Prime Minister or the Minister for Justice formally decides theissue.”[335]144. This decision is important for three key reasons: (1) It recognized,judicially, the independence of the judiciary. (This was before the FirstJudges case which recognized that the independence of the judiciary was abasic feature of the Constitution). (2) It cleared the air by concludingthat the President was obliged to act on the advice of the Council ofMinisters, even on the issue of appointment of judges. This was‘formalized’ by the Constitution (Forty-second Amendment) Act, 1976. (3)In a sense, this decision was a precursor to the primacy conclusion in theSecond Judges case with the last word on the subject being with the ChiefJustice of India.145. There are two observations that need to be made at this stage.Firstly, Justice Krishna Iyer penned the decision in Samsher Singh onbehalf of Justice Bhagwati as well. Surprisingly, Justice Bhagwati did notrefer to this decision in the First Judges case. The significance of thisfailure is that while in Samsher Singh it was held by Justice Bhagwatithat the ‘last word’ must belong to the Chief Justice of India, in theFirst Judges case it was held by Justice Bhagwati that the ‘ultimatepower’ is with the executive. This completely divergent view, though indifferent circumstances, is inexplicable since the underlying principle isthe same, namely, the status of the Chief Justice of India with referenceto the affairs concerning the judiciary. The second observation is that the‘last word’ theory was not and has not been questioned by the executive inany case, even in the Second Judges case. Therefore, the ‘last word’principle having been accepted, there is now no reason to go back on it orto repudiate it. It may be mentioned in the ‘last word’ context that eversince the Constitution came to be enacted, writes Granville Austin, quotingfrom Chief Justice Mehr Chand Mahajan’s ‘A Pillar of Justice’:“Nehru ‘has always acted in accordance with the advice of the CJI’, herecalled, except in rare circumstances, despite efforts by statepoliticians with ‘considerable pull’ to influence him.”[336]9 Sankalchand Sheth’s case146. Another decision of considerable significance is Union of India v.Sankalchand Himatlal Sheth.[337] That case pertained to the transfer ofjudges from one High Court to another and the interpretation of Article222(1) of the Constitution.[338] Referring to the independence of thejudiciary as also Article 50 of the Constitution it was said by JusticeY.V. Chandrachud:“Having envisaged that the judiciary, which ought to act as a bastion ofthe rights and freedom of the people, must be immune from the influence andinterference of the executive, the Constituent Assembly gave to thatconcept a concrete form by making various provisions to secure andsafeguard the independence of the judiciary. Article 50 of theConstitution, which contains a Directive Principle of State Policy,provides that the State shall take steps to separate the judiciary from theexecutive in the public services of the State.”147. On the meaning of consultation by the President with the ChiefJustice of India in the context of Article 222 of the Constitution, it washeld that it has to be full and effective consultation and not formal orunproductive. It was said:“Article 222(1) which requires the President to consult the Chief Justiceof India is founded on the principle that in a matter which concerns thejudiciary vitally, no decision ought to be taken by the executive withoutobtaining the views of the Chief Justice of India who, by training andexperience, is in the best position to consider the situation fairly,competently and objectively. But there can be no purposeful considerationof a matter, in the absence of facts and circumstances on the basis ofwhich alone the nature of the problem involved can be appreciated and theright decision taken. It must, therefore, follow that while consulting theChief Justice, the President must make the relevant data available to himon the basis of which he can offer to the President the benefit of hisconsidered opinion. If the facts necessary to arrive at a proper conclusionare not made available to the Chief Justice, he must ask for them because,in casting on the President the obligation to consult the Chief Justice,the Constitution at the same time must be taken to have imposed a duty onthe Chief Justice to express his opinion on nothing less than a fullconsideration of the matter on which he is entitled to be consulted. Thefulfilment by the President, of his constitutional obligation to place fullfacts before the Chief Justice and the performance by the latter, of theduty to elicit facts which are necessary to arrive at a proper conclusionare parts of the same process and are complementary to each other. Thefaithful observance of these may well earn a handsome dividend useful tothe administration of justice. Consultation within the meaning of Article222(1), therefore, means full and effective, not formal or unproductive,consultation.”[339]148. It was observed that though ‘consultation’ did not mean ‘concurrence’yet, as held in Samsher Singh consultation with the Chief Justice of Indiashould be accepted and in such a sensitive subject the last word mustbelong to the Chief Justice of India. It was noted that if there is adeparture from the counsel of the Chief Justice of India, the Court wouldhave the opportunity to examine if any extraneous considerations enteredinto the decision.[340]149. This view was reiterated by Justice Krishna Iyer (for himself andJustice Fazl Ali).[341] Significantly, it was added that: ‘It seems to usthat the word, ‘consultation’ has been used in Article 222 as a matter ofconstitutional courtesy in view of the fact that two very high dignitariesare concerned in the matter, namely, the President and the Chief Justice ofIndia.’[342]150. The greater significance of Sankalchand Sheth lies in the conclusion,relying upon R. Pushpam, that for a meaningful consultation, both partiesmust have for consideration full and identical facts. It was said:“The word ‘consult’ implies a conference of two or more persons or animpact of two or more minds in respect of a topic in order to enable themto evolve a correct, or at least, a satisfactory solution”. In order thatthe two minds may be able to confer and produce a mutual impact, it isessential that each must have for its consideration full and identicalfacts, which can at once constitute both the source and foundation of thefinal decision.”[343]151. This view was accepted in the First Judges case by JusticeBhagwati,[344] Justice Fazal Ali,[345] Justice V.D. Tulzapurkar[346] andJustice D.A. Desai.[347] It was also accepted in the Second Judges case byJustice Pandian.[348]Memorandum of Procedure – 30.6.1999152. Following up on the decision and opinion rendered in the SecondJudges case and the Third Judges case, the Minister for Law in theGovernment of India framed and prepared one Memorandum of Procedure for theappointment of a judge of the Supreme Court and another for the appointmentof a judge of the High Court. These were shared with the Chief Justice ofIndia. None of the each successive Chief Justices of India have complainedor criticized any of the Memoranda or adversely commented on them, or atleast 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 ordelay in the appointment of judges or did not correctly reflect the viewsof this Court in the two decisions mentioned above or that they did notconform to any provision of the Constitution, either in letter or in spiritor even otherwise, or at least we have not been told of any suchconstraint. These Memoranda remained operational and the appointment ofjudges to the superior judiciary made subsequent thereto has been inconformity with them. No one complained about the inability to effectivelywork any Memorandum of Procedure.153. We were invited by Mr. Fali S. Nariman to mention the procedure forthe appointment of judges both in public interest and for reasons oftransparency. The Memorandum of Procedure for the appointment of judges ofthe Supreme Court and the High Court are available on the website of theDepartment of Justice of the Government of India[349] and therefore it isnot necessary to make a detailed mention of the procedure. SimilarMemoranda have been referred to in the Second Judges case by JusticePandian.[350]154. A reading of the Memoranda makes it explicit that a proposalrecommending the appointment of a judge of a High Court shall be initiatedby the Chief Justice of the High Court. However, if the Chief Ministerdesires to recommend the name of any person he should forward the same tothe Chief Justice for his consideration. Although it is not clearly speltout, it is implicit that the Chief Justice is not obliged to accept thesuggestion of the Chief Minister.155. It is also significant and important to note that in the Memoranda,consultation by the judges in the collegium with ‘non-judges’ for making anappointment to the Supreme Court is postulated and it is not prohibited formaking an appointment to the High Court. That is to say, a ‘collegiumjudge’ is not prohibited from taking the opinion of any person, eitherconnected with the legal profession or otherwise for taking an informeddecision regarding the suitability or otherwise of a person for appointmentas a judge of the High Court or the Supreme Court. That this is not unknownis clear from a categorical statement of Justice Verma in an interviewthat:“For every Supreme Court appointment, I consulted senior lawyers like FaliS. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers.I used to consult even lawyers belonging to the middle level. Similarconsultation took place in the case of High Courts. I recorded details ofevery consultation. I wish all my correspondence is made public.”156. Therefore, during the evolution of the system of appointment ofjudges four cobwebs were cleared. They were: (1) The role of the President– he/she was expected to act on the advice of the Council of Ministers evenin the appointment of judges; (2) The initial recommendation for theappointment of a judge of a High Court was to originate from the ChiefJustice of the High Court and for the appointment of a judge of the SupremeCourt from the Chief Justice of India; (3) Consultation between thePresident and the Chief Justice of India is an integrated participativeprocess with the result that the President has the final say in theappointment of a judge under certain circumstances and the Chief Justice ofIndia (in consultation with and on the unanimous view of the other judgesconsulted by him/her) has the final say under certain circumstances; and(4) The Union of India accepted these propositions without hesitation inthe Third Judges case.Amendments to the Constitution157. Apart from judicial discourses on the appointment of judges,Parliament too has had its share of discussions. On as many as fouroccasions, it was proposed to amend the Constitution in relation to theprocedure for the appointment of judges of the Supreme Court and the HighCourts. These proposed amendments are considered below.1 (a) The Constitution (Sixty-seventh Amendment) Bill, 19902158. The Constitution (Sixty-seventh Amendment) Bill, 1990 was introducedin the Lok Sabha on 18th May, 1990 and it proposed to set up a NationalJudicial Commission (for short the NJC), though not in line with therecommendations of the LCI. The composition of the NJC was to vary with thesubject matter of concern, namely, the appointment of a judge of theSupreme Court or the appointment of a judge of the High Court.159. For the appointment of a judge of the Supreme Court, in terms of theproposed Article 307A of the Constitution, the NJC was to consist of theChief Justice of India and two other judges of the Supreme Court next inseniority to the Chief Justice of India. For the appointment of a judge ofthe High Court, the NJC was to consist of the Chief Justice of India, theChief Minister or Governor (as the case may be) of the concerned State, oneother judge of the Supreme Court next in seniority to the Chief Justice ofIndia, the Chief Justice of the High Court and the judge of the High Courtnext in seniority to the Chief Justice of the High Court. There was noprovision for the appointment of the Chief Justice of India or the ChiefJustice of the High Court.160. The procedure for the transaction of business of the NJC was to bedetermined by the President in consultation with the Chief Justice of Indiaand was subject to any law made by Parliament.161. The Amendment Act also provided that in the event the recommendationof the NJC is not accepted, the reasons therefor shall be recorded inwriting.162. The Bill was criticized (in part) by the Arrears Committee whichstated that:“The Committee is unable to find any logic or justification for differentcommissions….Keeping in view the objects and reasons for the constitutionof the commission, namely, to obviate the criticism of executivearbitrariness in the matter of appointment and transfer of High Courtjudges and to prevent delay in making appointments, there is nojustification for the executive through the Chief Minister to be on thecommission. Instead of removing the vice of executive interference whichhas vitiated the working of the present system the presence of the ChiefMinister on the recommendatory body actual alleviates him from the statusof a mere consultee to the position of an equal participant in theselection process of the recommendatory body. By making the Chief Ministeran equal party when he is not equipped to offer any view in regard to themerit, ability, competency, integrity and suitability of the candidates forappointments, the scope of executive interference is enhanced.”[351]163. The Bill was not taken up for consideration due to the dissolution ofthe Lok Sabha in May, 1991.3 (b) The Constitution (Ninety-eighth Amendment) Bill, 2003164. On 22nd February, 2000 – barely 8 months after the issuance of the(Revised) Memorandum of Procedure mentioned above – the Government of Indiaissued a notification setting up a National Commission to Review theWorking of the Constitution (for short the NCRWC), including the procedurefor the appointment of judges of the superior judiciary. The terms ofreference of the NCRWC were as follows:“The Commission shall examine, in the light of the experience of the past50 years, as to how best the Constitution can respond to the changing needsof efficient, smooth and effective system of governance and socio-economicdevelopment of modern India within the framework of parliamentary democracyand to recommend changes, if any, that are required in the provisions ofthe Constitution without interfering with its basic structure or features.”165. On 26th September, 2001 an Advisory Panel of the NCRWC issued aConsultation Paper on Superior Judiciary.[352] This Paper dealt with theprocedure for appointment of judges of the Supreme Court and the HighCourts, the age of retirement of judges, the transfer of judges of the HighCourts and the procedure for dealing with ‘deviant’ behavior of a judge andfor his/her removal.166. In the context of appointment of judges of the superior judiciary,paragraph 8.20 of the Paper is significant since it tacitly acknowledgesthat the procedure evolved over the years particularly as a result of theSecond Judges case and the Third Judges case was quite satisfactory.Paragraph 8.20 reads as follows:“8.20 Purpose of 67th Amendment Bill served by the judgement in SCAORA: Wehave set out hereinabove the several methods of appointment (to SupremeCourt and High Courts) suggested by the various bodies, committees andorganizations. We have also set out the method and procedure ofappointment devised by the 1993 decision of the Supreme Courtin SCAORA[353] and in the 1998 opinion rendered under Article 143. It wouldbe evident therefrom that the 1993 decision gives effect to the substanceof the Constitution (Sixty-seventh Amendment) Bill, without of coursecalling it a ‘National Judicial Commission’, and without the necessity ofamending the Constitution as suggested by the said Amendment Bill. Indeed,it carries forward the object underlying the Amendment Bill by making therecommendations of the Chief Justice of India and his colleagues binding onthe President. The 1998 opinion indeed enlarges the ‘collegium’. In thissense, the purpose of the said Amendment Bill evidenced by the proviso toArticle 124(2) and the Explanation appended thereto, is served, speakingbroadly. The method of appointment evolved by these decisions has indeedbeen hailed by several jurists and is held out as a precedent worthy ofemulation by U.K. and others. (See the opinion of Lord Templeman, a memberof the House of Lords, cited hereinabove.) The said decisions lay down theproposition that the “consultation” contemplated by Articles 124 and 217should be a real and effective consultation and that having regard to theconcept of Judicial independence, which is a basic feature of theConstitution, the opinion rendered by the Chief Justice of India (afterconsulting his colleagues) shall be binding upon the Executive. In thisview of the matter, much of the expectations from a National JudicialCommission (N.J.C) have been met. The said Constitution Amendment Billwas, it would appear, prepared after a wide and elaborate consultation withall the political parties and other stakeholders. However, the aspect ofdisciplinary jurisdiction remains unanswered. We may however discuss theconcept of an N.J.C. which may cover both appointments and matters ofdiscipline.”167. The Paper acknowledged that the Second Judges case and the ThirdJudges case ‘speaking broadly’ served the purpose of the Constitution(Sixty-seventh Amendment) Bill and that ‘much of the expectations from aNational Judicial Commission (N.J.C) have been met.’ The shortfalls inexpectations were not specified in the Paper except that of thedisciplinary jurisdiction which did not arise and was not dealt with in theSecond Judges case or the Third Judges case. However, it is important tonote that a dispassionate jurist Lord Templeman, a member of the House ofLords held the view that the system of appointment of judges in India oughtto be followed in England as well. Apart from him, the system ofappointment of judges laid down by these decisions ‘has been hailed byseveral jurists and is held out as a precedent worthy of emulation’.168. Be that as it may, the NCRWC submitted its Report to the PrimeMinister on 31st March, 2002. In Chapter 7 of the Report relating to thejudiciary, the NCRWC recommended in paragraph 7.3.7 thereof theestablishment of a National Judicial Commission (for short the NJC). It wasobserved that such a commission was necessary for ‘the effectiveparticipation of both the executive and the judicial wings of the State asan integrated scheme for the machinery for appointment of judges’ in linewith the integrated participatory consultative process suggested by thisCourt in the Second Judges case and the Third Judges case. This is what theNCRWC had to say:“The matter relating to manner of appointment of judges had been debatedover a decade. The Constitution (Sixty-seventh Amendment) Bill, 1990 wasintroduced on 18th May, 1990 (9th Lok Sabha) providing for theinstitutional frame work of National Judicial Commission for recommendingthe appointment of judges to the Supreme Court and the various HighCourts. Further, it appears that latterly there is a movement throughoutthe world to move this function away from the exclusive fiat of theexecutive and involving some institutional frame work whereunderconsultation with the judiciary at some level is provided for before makingsuch appointments. The system of consultation in some form is alreadyavailable in Japan, Israel and the UK. The Constitution (Sixty-seventhAmendment) Bill, 1990 provided for a collegium of the Chief Justice ofIndia and two other judges of the Supreme Court for making appointment tothe Supreme Court. However, it would be worthwhile to have a participatorymode with the participation of both the executive and the judiciary inmaking such recommendations. The Commission proposes the composition of theCollegium which gives due importance to and provides for the effectiveparticipation of both the executive and the judicial wings of the State asan integrated scheme for the machinery for appointment of judges. ThisCommission, accordingly, recommends the establishment of a NationalJudicial Commission under the Constitution.The National Judicial Commission for appointment of judges of the SupremeCourt shall comprise of:The Chief Justice of India: Chairman Two senior most judges of the Supreme Court: Member The Union Minister for Law and Justice: MemberOne eminent person nominated by the President after consulting the ChiefJustice of India: MemberThe recommendation for the establishment of a National Judicial Commissionand its composition are to be treated as integral in view of the need topreserve the independence of the judiciary.”[354]169. Pursuant to the recommendations of the NCRWC, the Constitution(Ninety-eighth Amendment) Bill, 2003 was introduced in Parliament on orabout 8th May, 2003. The Statement of Objects and Reasons of the Billstates, inter alia, that the Government of India has been committed to thesetting up of an NJC for appointment of judges of the Supreme Court, ChiefJustices and Judges of the High Courts as well as their transfer so as toprovide for the effective participation of both the executive and thejudicial wings of the Government. It is mentioned that the NCRWC alsoconsidered this matter and recommended the establishment of an NJC.170. The Statement of Objects and Reasons refers to the composition of theNJC and while the NCRWC had recommended the nomination in the NJC of oneeminent person by the President of India after consulting the Chief Justiceof India, the Constitution (Ninety-Eighth Amendment) Bill modified thisrecommendation and proposed that one eminent citizen be nominated by thePresident of India in consultation with the Prime Minister of India for aperiod of three years.171. The Constitution (Ninety-eighth Amendment) Bill proposed theinsertion of Chapter IVA in the Constitution consisting of one Articlenamely Article 147A. This Article related to the establishment of the NJCin terms of the Statement of Objects and Reasons.172. The Bill was not passed in any House of Parliament due to thedissolution of the Lok Sabha in March 2004 and the general elections beingcalled.4 (c) The Constitution (One Hundred and Twentieth Amendment) Bill, 2013173. A third attempt was made to amend the Constitution for the purposesof appointment of judges of the superior judiciary. This was by theintroduction of the Constitution (One 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 theSecond Judges case and the Third Judges case as well as the Memorandum ofProcedure. It was mentioned that the Memorandum confers upon the judiciaryitself the power of appointment of judges of the superior judiciary.[355]It was further stated that after a review of the pronouncements of thisCourt and relevant constitutional provisions, a broad based judicialappointment commission could be established for making recommendations forthe selection of judges. This commission would provide a meaningful roleto the executive and the judiciary to present their viewpoint and make theparticipants accountable while introducing transparency in the selectionprocess. The Statement of Objects and Reasons also mentioned that theproposed Bill would enable equal participation of the judiciary and theexecutive in the appointment of judges to the superior judiciary and alsomake the system more accountable and thereby increase the confidence of thepublic in the judiciary.175. The Constitution (One Hundred and Twentieth Amendment) Bill proposedthe insertion of Article 124A in the Constitution establishing a commissionknown as the National Judicial Appointments Commission (for short theNJAC). The composition of the NJAC, the appointment of its Chairperson andMembers, their qualifications, conditions of services, tenure, functionsand the procedure as well as the manner of selection of persons forappointment as Chief Justice of India, judges of the Supreme Court, ChiefJustices and other judges of the High Courts was to be provided by law madeby Parliament.176. The Constitution (One Hundred and Twentieth Amendment) Bill waspassed by the Rajya Sabha on 5th September 2013 but the Lok Sabha wasdissolved in May 2014 before the Bill could be sent to it and the generalelections called.177. Strangely, the Statement of Objects and Reasons completely overlookedthe fact that there already was ‘equal participation of the judiciary andthe executive in the appointment of judges to the superior judiciary.’ Inthe Second Judges case it was clearly, explicitly and unequivocally statedthat:“The process of appointment of Judges to the Supreme Court and the HighCourts is an integrated ‘participatory consultative process’ for selectingthe best and most suitable persons available for appointment; and all theconstitutional functionaries must perform this duty collectively with aview primarily to reach an agreed decision, subserving the constitutionalpurpose, so that the occasion of primacy does not arise.”[356]However, in the event of a difference of opinion, one of the constitutionalauthorities must have the final say and given the constitutional conventionover the decades the final say ought to be with the Chief Justice of India,the head of the judiciary in India under certain circumstances and with thePresident under certain circumstances. Otherwise, a stalemate or deadlocksituation could arise which the Constituent Assembly obviously did notanticipate from two constitutional functionaries. The Second Judges caseand the Third Judges case gave this shared responsibility to the Presidentand the Chief Justice of India.[357] For the appointment of a judge of theSupreme Court, the collegium of 5 (five) judges must make a unanimousrecommendation. The President is entitled to turn down a 4-1 or 3-2recommendation. If the unanimous recommendation does not find favour withthe President for strong and cogent reasons and is returned to thecollegium for reconsideration, and it is unanimously reiterated, then thePresident is obliged to accept the recommendation. However, if thereiteration is not unanimous, then the President is entitled to turn downthe recommendation. The theory which the Constitution (One Hundred andTwentieth Amendment) Bill, 2013 [and subsequently the Constitution (OneHundred and Twenty-first Amendment) Bill, 2014] sought to demolish that‘judges appoint judges’ is non-existent.56 (d) The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014178. The fourth and final attempt (presently successful and underchallenge in these petitions) to amend the Constitution was by theintroduction on 11th August, 2014 of the Constitution (One Hundred andTwenty-first Amendment) Bill, 2014. This Bill was passed by the Lok Sabhaon 13th August, 2014 and by the Rajya Sabha on 14th August, 2014. Itreceived the ratification of more than one half of the States as requiredby Article 368(2) of the Constitution and received the assent of thePresident 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 wasrequested to place on record the procedure adopted by the StateLegislatures for ratification of the Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 but that information was not forthcoming, forreasons that are not known. The intention was not to question the factum ofratification but only to understand the process and to add transparency tothe process, since there have been instances in the United States where thecourts have examined the issue of the ratification of an amendment to theConstitution.[358] Transparency is not a one-way street.180. Section 1(2) of the Constitution (Ninety-ninth Amendment) Act 2014provides that it shall come into force on such date as the CentralGovernment may by notification in the official gazette, appoint. Theappointed date is 13th April, 2015.181. Simultaneous with the passage of the Constitution (One Hundred andTwenty-First Amendment) Bill, Parliament also considered the NationalJudicial Appointment Commission Bill, 2014. The Bill was introduced inParliament on 11th August, 2014. It was passed by the Lok Sabha on 13thAugust, 2014 and by the Rajya Sabha on 14th August, 2014. The NationalJudicial Appointments Commission Act also received the assent of thePresident on 31st December, 2014 and it was brought into force by a gazettenotification issued on 13th April, 2015.182. Both the Constitution (Ninety-ninth Amendment) Act, 2014 and theNational Judicial Appointments Commission Act, 2014 are challenged in thisand a batch of connected writ petitions.Conclusions on the factual background183. The conclusions that can be drawn from the background historicalfacts are as follows:(1) The independence of the judiciary has been always recognized andacknowledged by all concerned.(2) Prior to Independence, the appointment of a judge to a superior courtwas entirely the discretion of the Crown. The Constituent Assembly feltthat such a ‘supreme and absolute’ power should not vest in the Presidentor the government of the day or the Chief Justice of India (as anindividual) and therefore a fetter was placed on that power by requiringthe President to mandatorily consult the Chief Justice of India (with thediscretion to consult other judges) for the appointment of a judge to theSupreme 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 Justice of the High Court and the Governor ofthe State was mandatory. Significantly, there is no mention of consultationwith anybody from civil society.(3) Any doubt about the individual role of the President in the process ofappointment of judges came to rest and it was clear that the President wasexpected to act only on the advice of the Council of Ministers.(4) Similarly, the Chief Justice of India is not expected to act in anindividual or personal capacity but must consult his/her senior judgesbefore making a recommendation for the appointment of a judge.(5) Dr. Ambedkar and the Constituent Assembly did not accept the‘unfettered discretion’ theory in the CAD but this view was subsequentlyrejected in the First Judges case which brought in the ‘ultimate power’theory propounded by Justice Bhagwati and Justice Desai.(6) Executive interference in the appointment process (with perhaps aninformal method of ‘take over’) had started around the time of Independenceand got aggravated post Independence, peaking towards the end of the 1980s. (7) Not a single instance was given to us where the President recommendeda 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 (althoughno instance was given to us) but that was required to be routed through theChief 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 anappointment as a judge of the High Court was made without the concurrenceof the Chief Justice of India. Post the First Judges case as many as sevensuch appointments were made. This is a clear indication that the ‘ultimatepower’ theory propounded in the First Judges case translated into ‘absoluteexecutive primacy’. The dream of Dr. Ambedkar became a nightmare, thanks tothe political executive.(9) The ‘ultimate power’ theory or the ‘absolute executive primacy’ theoryis now diluted and the last word in the appointment of a judge of theSupreme Court is shared between the President and the Chief Justice ofIndia in terms of the Second Judges case and the Third Judges case.Historically, giving the last word to the executive has been criticized byno less than the Attorney-General Shri M.C. Setalvad who chaired the LawCommission of India when the 14th Report was given. That system has notworked well at all as noted from time to time.(10) The National Commission to Review the Working of the Constitution aswell as a responsible judge from the House of Lords were of the opinionthat the procedure for appointment of judges as laid down in the SecondJudges case and the Third Judges case broadly serves the purpose ofmaintaining the independence of the judiciary and providing a suitablemethod for appointment of judges of the superior Courts.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 regardto the appointment of some judges to this Court which, it was submitted bythe learned Attorney-General would not have been possible were it not forthe failure of the collegium system. Even the petitioners were critical ofthe collegium system. However, I must express my anguish at the manner inwhich an ‘attack’ was launched by some learned counsel appearing for therespondents. It was vitriolic at times, lacking discretion and whollyunnecessary. Denigrating judges is the easiest thing to do – they cannotfight back – and the surest way to ensure that the judiciary loses itsindependence and the people lose confidence in the judiciary, which ishardly advisable. The Bar has an equal (if not greater) stake in theindependence of the judiciary and the silence of the Bar at relevantmoments is inexplicable. The solution, in the larger canvas, is ademocratic audit, an audit limited to the judiciary and the Rule of Law. Ifsome positive developments can be incorporated in the justice deliverysystem (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:‘… however good a Constitution may be, it is sure to turn out bad becausethose who are called to work it, happen to be a bad lot. However bad aConstitution may be, it may turn out to be good if those who are called towork it, happen to be a good lot. The working of a Constitution does notdepend wholly upon the nature of the Constitution.”[359]186. Both the ‘absolute executive primacy’ system or the ‘ultimate power’theory and the ‘collegium system’ of appointment of judges of the SupremeCourt and the High Courts were acceptable systems in their time. The‘executive primacy’ system was, unfortunately, abused by the executive andthe judiciary could do precious little about it, bound as the judges are bythe Rule of Law. It is because of this abuse that the constitutionalprovisions were revisited at the instance of the Bar of this Court and therevisit gave the correct interpretational insight into our constitutionalhistory and the constitutional provisions. It is this insight that resultedin the Second Judges case and a meaningful and pragmatic interpretation ofthe Constitution.187. That the Second Judges case was correctly decided by the majority wasaccepted in the Third Judges case by the Attorney-General and, what is moreimportant, by the President (aided and advised by the Council of Ministers)who did not seek a reversal of the dicta laid down in the Second Judgescase.188. To say, as was conveyed to us during the hearing of the case, thatthe collegium system has failed and that it needs replacement would not bea correct or a fair post mortem. It is true that there has been criticism(sometimes scathing) of the decisions of the collegium, but it must not beforgotten that the executive had an equally important participative role inthe integrated process of the appointment of judges. That the executiveadopted a defeatist or an I-don’t-care attitude is most unfortunate. Thecollegium cannot be blamed for all the ills in the appointment of judges -the political executive has to share the blame equally if not more, sinceit mortgaged its constitutional responsibility of maintaining a check onwhat may be described as the erroneous decisions of the collegium.189. To say that the executive had no role to play (as was suggested tous) is incorrect to say the least, as is clear from a close reading of theSecond Judges case and the Third Judges case. Even the President did notthink so. In fact, the President was clearly of the opinion that theexecutive or at least the Head of State had a role to play in theappointment of judges. This evident from an article titled “Merit” in theAppointment of Judges’[360] which quotes from an issue of India Todaymagazine of 25th January, 1999 the following noting made by the Presidentconcerning the appointment of judges of the Supreme Court:“I would like to record my views that while recommending the appointment ofSupreme Court judges, it would be consonant with constitutional principlesand the nation's social objectives if persons belonging to weaker sectionsof society like SCs and STs, who comprise 25 per cent of the population,and women are given due consideration. Eligible persons from thesecategories are available and their under-representation or non-representation would not be justifiable. Keeping vacancies unfilled is alsonot desirable given the need for representation of different sections ofsociety and the volume of work the Supreme Court is required to handle.”The Chief Justice of India is reported to have responded as follows:“I would like to assert that merit alone has been the criterion forselection of Judges and no discrimination has been done while makingappointments. All eligible candidates, including those belonging to theScheduled Castes and Tribes, are considered by us while recommending namesfor appointment as Supreme Court Judges. Our Constitution envisages thatmerit alone is the criterion for all appointments to the Supreme Court andHigh Courts. And we are scrupulously adhering to these provisions. Anunfilled 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 theunstinted cooperation of the executive and an effective implementationstrategy, with serious and meaningful introspection and perhaps some finetuning and tweaking to make it more effective. Unfortunately, the executivedid not respond positively, perhaps due to its misunderstanding of thedecisions of this Court.191. On the other hand, an independent and impartial jurist, LordTempleman praised the integrated consultative collegium system andrecommended it as a method that the British could follow with advantage.The learned judge wrote:“However, having regard to the earlier experience in India of attempts bythe executive to influence the personalities and attitudes of members ofthe judiciary, and having regard to the successful attempts made inPakistan to control the judiciary, and having regard to the unfortunateresults of the appointment of Supreme Court judges of the United States bythe President subject to approval by Congress, the majority decision of theSupreme Court of India in the Advocates on Record case marks a welcomeassertion of the independence of the judiciary and is the best method ofobtaining appointments of integrity and quality, a precedent method whichthe British could follow with advantage.”[361]While others shower praise on our system of appointment of judges, we canonly heap scorn!Preliminary issue – reconsideration of the Second Judges case and the ThirdJudges case192. With this rather detailed history, the preliminary objections raisedby the learned Attorney-General need consideration. The learned Attorney-General raised three preliminary issues: (1) The writ petitions arepremature and not maintainable since the 99th Constitution Amendment Actand the NJAC Act have not come into force; (2) The writ petitions arepremature and not maintainable since the National Judicial AppointmentsCommission has not been constituted and so there is no adverse impact ofthe 99th Constitution Amendment Act and the NJAC and no facts have beenpleaded by the petitioners in this regard; (3) This batch of cases ought tobe heard by a Bench of 9 (nine) or more judges since the decision of thisCourt in the Second Judges case[362] and the Third Judges case[363] do notlay down the correct law but require reconsideration. It was submitted thatthe decisions have the effect of usurping the powers of the President underArticle 124(2) and Article 217(1) of the Constitution and that thejudiciary has effectively converted the appointment of judges to theSupreme Court and the High Courts from ‘consultation’ between the Presidentand the Chief Justice of India (as occurring in Article 124(2) of theConstitution) into ‘concurrence’ of the Chief Justice of India and givingbirth to a ‘right to insist’ on the acceptance of a recommendation of theChief Justice of India. Moreover, the doctrine of separation of powersbetween the Legislature, the Executive and the Judiciary has been thrownoverboard as also the system of checks and balances inherent in theConstitution. To decide this particular preliminary issue, the learnedAttorney-General referred to the separation of powers in our Constitution,the law and the principles on which this Court should proceed to decidewhether an earlier or prior decision rendered requires to be reconsidered.193. As far as the first preliminary objection is concerned, it was raisedbefore the 99th Constitution Amendment Act and the NJAC Act came intoforce. Now the preliminary objection does not survive since the 99thConstitution Amendment Act and the NJAC Act have in fact been brought intoforce. The second preliminary objection has no substance since the questionin these petitions relates to the basic structure of the Constitution andthe independence of the judiciary. It would be facetious to say that thewrit petitions should have been filed after an adverse impact is felt bythe alteration of the basic structure of the Constitution and after theindependence of the judiciary is bartered away. If the petitioners wereexpected to wait that long it would perhaps be too late. That apart, sincewe have heard these petitions at length, it is advisable to pronounce onthe substantive issues raised. Really speaking, it is only the thirdpreliminary objection that needs consideration.12 The third preliminary objection and the separation of powers194. The issue of the separation of powers has been the subject matter ofdiscussion in several cases. Broadly, the consistent view of this Court hasbeen that while the Constitution recognizes the separation of powers, it isnot a rigid separation and there is some overlap.195. In Ram Jawaya Kapur v. State of Punjab[364] it was held by ChiefJustice Mukherjea speaking for this Court:“It may not be possible to frame an exhaustive definition of what executivefunction means and implies. Ordinarily the executive power connotes theresidue of governmental functions that remain after legislative andjudicial functions are taken away. The Indian Constitution has not indeedrecognised the doctrine of separation of powers in its absolute rigiditybut the functions of the different parts or branches of the Government havebeen sufficiently differentiated and consequently it can very well be saidthat our Constitution does not contemplate assumption, by one organ or partof the State, of functions that essentially belong to another. Theexecutive indeed can exercise the powers of departmental or subordinatelegislation when such powers are delegated to it by the legislature. It canalso, when so empowered exercise judicial functions in a limited way. Theexecutive Government, however, can never go against the provisions of theConstitution or of any law.”[365]196. The separation of powers in our Constitution is not as rigid as inthe United States. One of the elements of the separation of powers is thesystem of checks and balances. This too is recognized by our Constitutionand Article 226 and Article 32 (judicial review) is one of the features ofchecks and balances. It was so held in Kesavananda Bharati v. State ofKerala[366] where it was said by Justice Shelat and Justice Grover asfollows:“There is ample evidence in the Constitution itself to indicate that itcreates a system of checks and balances by reason of which powers are sodistributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powersand functions entrusted to them. Though the Constitution does not lay downthe principle of separation of powers in all its rigidity as is the case inthe United States Constitution yet it envisages such a separation to adegree as was found in Ranasinghe case.[367] The judicial review providedexpressly in our Constitution by means of Articles 226 and 32 is one of thefeatures upon which hinges the system of checks and balances.”[368]197. In Indira Nehru Gandhi v. Raj Narain[369] the constitutional validityof the Constitution (Thirty-ninth Amendment) Act, 1975 was challenged. Bythis Amendment Act, Article 39-A was inserted in the Constitution and thechallenge was, inter alia, to clause (4) thereof.[370] While striking downthe offending clause, it was held by Justice H.R. Khanna:“A declaration that an order made by a court of law is void is normallypart of the judicial function and is not a legislative function. Althoughthere is in the Constitution of India no rigid separation of powers, by andlarge the spheres of judicial function and legislative function have beendemarcated and it is not permissible for the legislature to encroach uponthe judicial sphere. It has accordingly been held that a legislature whileit is entitled to change with retrospective effect the law which formed thebasis of the judicial decision, it is not permissible to the legislature todeclare the judgment of the court to be void or not binding (see ShriPrithvi Cotton Mills Ltd. v. Broach Borough Municipality, Janapada Sabha,Chhindwara v. Central Provinces Syndicate Ltd., Municipal Corporation ofthe City of Ahmedabad v. New Shorock Spg. & Wvg. Co. Ltd. and State ofTamil Nadu v. M. Rayappa Gounder).”[371] (Internal citations omitted).198. Justice Mathew held that ours is a cooperative federalism that doesnot contain any rigid separation of powers and there exists a system ofchecks and balances. Harold Laski was quoted as saying that ‘Separation ofpowers does not mean the equal balance of powers.’[372] In that context itwas held that the exercise of judicial power by the Legislature isimpermissible. The learned judge expressed the view that:“Montesquieu was the first to conceive of the three functions of Governmentas exercised by three organs, each juxtaposed against others. He realisedthat the efficient operation of Government involved a certain degree ofoverlapping and that the theory of checks and balances required each organto impede too great an aggrandizement of authority by the other two powers.As Holdsworth says, Montesquieu convinced the world that he had discovereda new constitutional principle which was universally valid. The doctrine ofseparation of governmental powers is not a mere theoretical, philosophicalconcept. It is a practical, work-a-day principle. The division ofGovernment into three branches does not imply, as its critics would have usthink, three watertight compartments. Thus, legislative impeachment ofexecutive officers or judges, executive veto over legislation, judicialreview of administrative or legislative actions are treated as partialexceptions which need explanation.”[373]199. Justice Y.V. Chandrachud made a distinction between the separation ofpowers as understood in the United States and Australia and as understoodin India and expressed the following view in this regard:“The American Constitution provides for a rigid separation of governmentalpowers into three basic divisions, the executive, legislative and judicial.It is an essential principle of that Constitution that powers entrusted toone department should not be exercised by any other department. TheAustralian Constitution follows the same pattern of distribution of powers.Unlike these Constitutions, the Indian Constitution does not expressly vestthe three kinds of power in three different organs of the State. But theprinciple of separation of powers is not a magic formula for keeping thethree organs of the State within the strict confines of their functions. Asobserved by Cardozo, J. in his dissenting opinion in Panama RefiningCompany v. Ryan[374] the principle of separation of powers “is not adoctrinaire concept to be made use of with pedantic rigour. There must besensible approximation, there must be elasticity of adjustment in responseto the practical necessities of Government which cannot foresee today thedevelopments of tomorrow in their nearly infinite variety”. Thus, even inAmerica, despite the theory that the legislature cannot delegate its powerto the executive, a host of rules and regulations are passed by non-legislative bodies, which have been judicially recognized as valid.”[375]200. In Minerva Mills Ltd. v. Union of India[376] Justice Bhagwati opinedthat the Constitution has devised a structure for the separation of powersand checks and balances and held:“It is clear from the majority decision in Kesavananda Bharati case thatour Constitution is a controlled Constitution which confers powers on thevarious authorities created and recognised by it and defines the limits ofthose powers. The Constitution is suprema lex, the paramount law of theland and there is no authority, no department or branch of the State whichis above or beyond the Constitution or has powers unfettered andunrestricted by the Constitution. The Constitution has devised a structureof power relationship with checks and balances and limits are placed on thepowers of every authority or instrumentality under the Constitution. Everyorgan of the State, be it the executive or the legislature or thejudiciary, derives its authority from the Constitution and it has to actwithin the limits of such authority.”[377]201. A little later, it was observed by the learned judge:“It is a fundamental principle of our constitutional scheme, and I havepointed this out in the preceding paragraph, that every organ of the State,every authority under the Constitution, derives its power from theConstitution and has to act within the limits of such power. But then thequestion arises as to which authority must decide what are the limits onthe power conferred upon each organ or instrumentality of the State andwhether such limits are transgressed or exceeded. Now there are three maindepartments of the State amongst which the powers of government aredivided; the executive, the legislature and the judiciary. Under ourConstitution we have no rigid separation of powers as in the United Statesof America, but there is a broad demarcation, though, having regard to thecomplex nature of governmental functions, certain degree of overlapping isinevitable. The reason for this broad separation of powers is that “theconcentration of powers in any one organ may” to quote the words ofChandrachud, J., (as he then was) in Indira Gandhi case ‘by upsetting thatfine balance between the three organs, destroy the fundamental premises ofa democratic government to which we are pledged’.”[378]202. In I.R. Coelho v. State of Tamil Nadu[379] it was held by ChiefJustice Sabharwal speaking for the Court that the doctrine of separation ofpowers is a part of the basic structure of the Constitution. It was held:“The separation of powers between Legislature, Executive and the Judiciaryconstitutes basic structure, has been found in Kesavananda Bharati case bythe majority. Later, it was reiterated in Indira Gandhi case. A largenumber of judgments have reiterated that the separation of powers is one ofthe basic features of the Constitution.”[380]203. In Bhim Singh v. Union of India[381] it was held that separation ofpowers is an essential feature of the Constitution and in modern governancestrict separation is neither possible nor desirable. There is no violationof the principle of separation of powers if there is an overlap of thefunction of one branch of governance with another, but if one branch takesover an essential function of another branch, then there is a violation ofthe principle. It was observed by Justice Sathasivam speaking for theCourt, while considering the constitutional validity of the Members ofParliament Local Area Development Scheme:“The concept of separation of powers, even though not found in anyparticular constitutional provision, is inherent in the polity theConstitution has adopted. The aim of separation of powers is to achieve themaximum extent of accountability of each branch of the Government.While understanding this concept [of separation of powers], two aspectsmust be borne in mind. One, that separation of powers is an essentialfeature of the Constitution. Two, that in modern governance, a strictseparation is neither possible, nor desirable. Nevertheless, till thisprinciple of accountability is preserved, there is no violation ofseparation of powers. We arrive at the same conclusion when we assess theposition within the constitutional text. The Constitution does not prohibitoverlap of functions, but in fact provides for some overlap as aparliamentary democracy. But what it prohibits is such exercise of functionof the other branch which results in wresting away of the regime ofconstitutional accountability.Thus, the test for the violation of separation of powers must be preciselythis. A law would be violative of separation of powers not if it results insome overlap of functions of different branches of the State, but if ittakes over an essential function of the other branch leading to lapse inconstitutional accountability.”[382]204. Finally, in State of Tamil Nadu v. State of Kerala[383] there is anelaborate discussion on the separation of powers with reference to severalcases decided by this Court.[384] It was held therein that in view of thedoctrine of the separation of powers (and for other reasons as well) theKerala Irrigation and Water Conservation (Amendment) Act, 2006 passed bythe Kerala Legislature is unconstitutional since it seeks to nullify thedecision of this Court in Mullaperiyar Environmental Protection Forum v.Union of India.[385]205. The submission of the learned Attorney-General was that theappointment of a judge of the Supreme Court or a High Court is an executivefunction and this has been so held even in the Second Judges case. JusticeAhmadi held that the appointment of judges is an executive function[386] asdid Justice Verma.[387] By an unsustainable interpretation of theConstitution (an interpretation which, according to the learned Attorney-General must have made Dr. Ambedkar turn in his grave), this executivefunction has been taken over or usurped by the judiciary and that is thereason why the Second Judges case requires to be reconsidered and thecorrect constitutional position deserves to be restored. In other words, bya process of judicial encroachment, the separation of power theory has beenbroken down by this Court, in violation of the basic structure of theConstitution.Constituent Assembly Debates and the third preliminary issue206. In further support of his contention that the Second Judges case andthe Third Judges case do not lay down the correct law and needreconsideration, the learned Attorney-General placed great reliance on theCAD. It is necessary, therefore, to consider the law on the subject andthen the debates.207. In Administrator-General of Bengal v. Prem Lal Mullick[388] the PrivyCouncil did not approve of a reference to debates in the Legislature as alegitimate aid to the construction of a statute. It was held:“Their Lordships observe that the two learned Judges who constituted themajority in the Appellate Court, although they do not base their judgmentupon them, refer to the proceedings of the Legislature which resulted inthe passing of the Act of 1874 [Administrator-General’s Act] as legitimateaids to the construction of Section 31. Their Lordships think it right toexpress their dissent from that proposition. The same reasons which excludethese considerations when the clauses of an Act of the British Legislatureare under construction are equally cogent in the case of an Indianstatute.”208. This view was partially accepted, with reference to the CAD in A.K.Gopalan v. State of Madras[389] by Chief Justice Harilal Kania who heldthat reference may be made to the CAD with great caution and only when‘latent ambiguities are to be resolved.’[390] The learned Chief Justiceobserved:“Our attention was drawn to the debates and report of the draftingcommittee of the Constituent Assembly in respect of the wording of thisclause. 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. TheCommonwealth[391] it was thought that individual opinion of members of theConvention expressed in the debate cannot be referred to for the purpose ofconstruing the Constitution. The same opinion was expressed in UnitedStates v. Wong Kim Ark.[392] The result appears to be that while it is notproper to take into consideration the individual opinions of Members ofParliament or Convention to construe the meaning of the particular clause,when a question is raised whether a certain phrase or expression was up forconsideration at all or not, a reference to the debates may be permitted.In the present case the debates were referred to show that the expression“due process of law” was known to exist in the American Constitution andafter a discussion was not adopted by the Constituent Assembly in ourConstitution. In Administrator General of Bengal v. Premlal Mullick areference to the proceedings of the legislature which resulted in thepassing of the Act was not considered legitimate aid in the construction ofa particular section. The same reasons were held as cogent for excluding areference to such debates in construing an Indian statute. Resort may behad to these sources with great caution and only when latent ambiguitiesare to be resolved.”[393]209. This view was endorsed by Fazl Ali, J who referred to the expression‘due process of law’ which was originally interpreted by the United StatesSupreme Court as referring to matters of procedure but was subsequentlywidened to cover substantive law as well. The learned judge held:“In the course of the arguments, the learned Attorney-General referred usto the proceedings in the Constituent Assembly for the purpose of showingthat the article as originally drafted contained the words “without dueprocess of law” but these words were subsequently replaced by the words“except according to procedure established by law”. In my opinion, thoughthe proceedings or discussions in the Assembly are not relevant for thepurpose of construing the meaning of the expressions used in Article 21,especially when they are plain and unambiguous, they are relevant to showthat the Assembly intended to avoid the use of the expression “without dueprocess of law”……. In the earliest times, the American Supreme Courtconstrued “due process of law” to cover matters of procedure only, butgradually the meaning of the expression was widened so as to coversubstantive law also, by laying emphasis on the word “due”.[394]210. Justice Patanjali Sastri was of the same opinion and so the learnedjudge held as follows:“Learned counsel drew attention to the speeches made by several members ofthe Assembly on the floor of the House for explaining, as he put it, the“historical background”. A speech made in the course of the debate on abill could at best be indicative of the subjective intent of the speaker,but it could not reflect the inarticulate mental processes lying behind themajority vote which carried the bill. Nor is it reasonable to assume thatthe minds of all those legislators were in accord. The Court could onlysearch for the objective intent of the legislature primarily in the wordsused in the enactment, aided by such historical material as reports ofstatutory committees, preambles etc. I attach no importance, therefore, tothe speeches made by some of the members of the Constituent Assembly in thecourse of the debate on Article 15 (now Article 21)”.[395]211. Justice Mukherjea noted the concession of the learned Attorney-General that the CAD are not admissible to explain the meaning of the wordsused – a position quite the opposite from what is now taken by the learnedAttorney-General. The learned judge then observed that such extrinsicevidence is best left out of account and held as follows:“The learned Attorney-General has placed before us the debates in theConstituent Assembly centering round the adoption of this recommendation ofthe Drafting Committee and he has referred us to the speeches of severalmembers of the Assembly who played an important part in the shaping of theConstitution. As an aid to discover the meaning of the words in aConstitution, these debates are of doubtful value. “Resort can be had tothem”' says Willoughby, “with great caution and only when latentambiguities are to be solved. The proceedings may be of some value whenthey clearly point out the purpose of the provision. But when the questionis of abstract meaning, it will be difficult to derive from this sourcemuch material assistance in interpretation.”The learned Attorney-General concedes that these debates are not admissibleto explain the meaning of the words used and he wanted to use them only forthe purpose of showing that the Constituent Assembly when they finallyadopted the recommendation of the Drafting Committee, were fully aware ofthe implications of the differences between the old form of expression andthe new. In my opinion, in interpreting the Constitution, it will be betterif such extrinsic evidence is left out of account. In matters like this,different members act upon different impulses and from different motivesand it is quite possible that some members accepted certain words in aparticular sense, while others took them in a different light.”[396]212. Justice S.R. Das specifically stated that he expresses no opinion onthe question of admissibility or otherwise of the CAD to interpret theConstitution.213. In State of Travancore-Cochin v. The Bombay Co. Ltd.[397] it wasunanimously held that reference to the CAD is unwarranted and such anextrinsic aid to the interpretation of statutes is not admissible. Speakingfor the Court, Chief Justice Patanjali Sastri held:“It remains only to point out that the use made by the learned Judges belowof the speeches made by the members of the Constituent Assembly in thecourse of the debates on the draft Constitution is unwarranted. That thisform of extrinsic aid to the interpretation of statutes is not admissiblehas been generally accepted in England, and the same rule has been observedin the construction of Indian statutes — see Administrator-General ofBengal v. Prem Lal Mallick. The reason behind the rule was explained by oneof us in Gopalan case thus:“A speech made in the course of the debate on a bill could at best beindicative of the subjective intent of the speaker, but it could notreflect the inarticulate mental process lying behind the majority votewhich carried the bill. Nor is it reasonable to assume that the minds ofall 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 thosewho spoke might differ from each other — United States v. Trans-MissouriFreight Association.[398]”[399]214. In Golak Nath v. State of Punjab[400] Chief Justice Subba Rao notedthe submissions of the petitioners, one of which was:“The debates in the Constituent Assembly, particularly the speech of MrJawahar Lal Nehru, the first Prime Minister of India, and the reply of DrAmbedkar, who piloted the Bill disclose clearly that it was never theintention of the makers of the Constitution by putting in Article 368 toenable the Parliament to repeal the fundamental rights; the circumstancesunder which the amendment moved by Mr H.V. Kamath, one of the members ofConstituent Assembly, was withdrawn and Article 368 was finally adopted,support the contention that amendment of Part III is outside the scope ofArticle 368.”[401]215. The submissions of the learned Attorney-General were also noted andone of which was, again, diametrically opposed to the submission madebefore us by the learned Attorney-General:“Debates in the Constituent Assembly cannot be relied upon for construingArticle 368 of the Constitution and even if they can be, there is nothingin the debates to prove positively that fundamental rights were excludedfrom amendment.”[402]216. The learned Chief Justice (speaking for the majority) referred to theCAD and observed:“We have referred to the speeches of Pandit Jawaharlal Nehru and Dr.Ambedkar not with a view to interpret the provisions of Art. 368, which wepropose to do on its own terms, but only to notice the transcendentalcharacter given to the fundamental rights by two of the importantarchitects of the Constitution.”[403]217. Justice Wanchoo dealt with the issue a bit more elaborately and on aconsideration of the law (drawing support from Prem Lal Mullick and A.K.Gopalan) held that the CAD could not be looked into for interpretingArticle 368 of the Constitution and that the said Article ‘must beinterpreted on the words thereof as they finally found place in theConstitution.’ It was said:“Copious references were made during the course of arguments to debates inParliament and it is urged that it is open to this Court to look into thedebates in order to interpret Article 368 to find out the intention of theConstitution-makers. We are of opinion that we cannot and should not lookinto the debates that took place in the Constituent Assembly to determinethe interpretation of Article 368 and the scope and extent of the provisioncontained therein. It may be conceded that historical background andperhaps what was accepted or what was rejected by the Constituent Assemblywhile the Constitution was being framed, may be taken into account infinding out the scope and extent of Article 368. But we have no doubt thatwhat was spoken in the debates in the Constituent Assembly cannot andshould not be looked into in order to interpret Article 368………..We are therefore of opinion that it is not possible to read the speechesmade in the Constituent Assembly in order to interpret Article 368 or todefine its extent and scope and to determine what it takes in and what itdoes not. As to the historical facts, namely, what was accepted or what wasavoided in the Constituent Assembly in connection with Article 368, it isenough to say that we have not been able to find any help from the materialrelating to this. There were proposals for restricting the power ofamendment under Article 368 and making fundamental rights immune therefromand there were counter proposals before the Constituent Assembly for makingthe power of amendment all-embracing. They were all either dropped ornegatived and in the circumstances are of no help in determining theinterpretation of Article 368 which must be interpreted on the wordsthereof as they finally found place in the Constitution, and on those wordswe have no doubt that there are no implied limitations of any kind on thepower to amend given therein.”[404]218. Justice Bachawat concluded his judgment by referring to the issue ofthe CAD being an aid to interpreting the Constitution. In rather tersewords, the learned judge rejected the submission made in this regard andrelied upon State of Travancore-Cochin. This is what was said:“Before concluding this judgment I must refer to some of the speeches madeby the members of the Constituent Assembly in the course of debates on thedraft constitution. These speeches cannot be used as aids for interpretingthe Constitution. See State of Travancore-Cochin and others v. Bombay Co.Ltd. Accordingly, I do not rely on them as aids to construction.”[405]219. Justice Bachawat also makes a rather interesting reference to aspecial article written by Sir B.N. Rau (Constitutional Adviser) on 15thAugust, 1948. Sir Benegal remarked:“It seems rather illogical that a constitution should be settled by simplemajority by an assembly elected indirectly on a very limited franchise andthat it should not be capable of being amended in the same way by aParliament elected - and perhaps for the most part elected directly byadult suffrage.”[406]This is mentioned, without any comment, only to throw open the thoughtwhether the interpretation of the Constitution can be tied down forever tothe views expressed by a few Hon’ble Members of the Constituent Assembly,who were undoubtedly extremely learned and visionary but who neverthelessconstituted ‘an assembly elected indirectly on a very limited franchise’.220. In Kesavananda Bharati it was held by Chief Justice Sikri that‘speeches made by members of the legislature in the course of debatesrelating to the enactment of a statute cannot be used as aids forinterpreting any provisions of the statute.’ The learned Chief Justice heldthat the same rule is applicable to provisions of the Constitution as welland for this reliance was placed, inter alia, on Prem Lal Mullick, A.KGopalan, State of Travancore-Cochin and Golak Nath. Explaining Union ofIndia v. H.S. Dhillon[407] the learned Chief Justice said:“In Union of India v. H.S. Dhillon I, on behalf of the majority, beforereferring to the speeches observed at p. 58 that “we are however, glad tofind from the following extracts from the debates that our interpretationaccords with what was intended”. There is no harm in finding confirmationof one’s interpretation in debates but it is quite a different thing tointerpret the provisions of the Constitution in the light of thedebates.”[408]221. Apart from relying on case law, the learned Chief Justice gave anadditional reason for concluding that reliance on the CAD was not advisablefor interpreting the provisions of the Constitution. This is bestunderstood in the words of the learned Chief Justice:“There is an additional reason for not referring to debates for the purposeof interpretation. The Constitution, as far as most of the Indian Stateswere concerned, came into operation only because of the acceptance [pic]bythe Ruler or Rajpramukh. This is borne out by the following extract fromthe statement of Sardar Vallabhbhai Patel in the Constituent Assembly onOctober 12, 1949, (CAD, Vol. X, pp. 161-63):“Unfortunately we have no properly constituted legislatures in the rest ofthe States (apart from Mysore, Saurashtra and Travancore and Cochin Union)nor will it be possible to have legislatures constituted in them before theConstitution of India emerges in its final form. We have, therefore, nooption but to make the Constitution operative in these States on the basisof its acceptance by the Rulers or the Rajpramukh, as the case may be, whowill no doubt consult his Council of Ministers.”In accordance with this statement, declarations were issued by the Rulersor Rajpramukhs accepting the Constitution.It seems to me that when a Ruler or Rajpramukh or the people of the Stateaccepted the Constitution of India in its final form, he did not accept itsubject to the speeches made during the Constituent Assembly debates. Thespeeches can, in my view, be relied on only in order to see if the courseof the progress of a particular provision or provisions throws any light onthe historical background or shows that a common understanding or agreementwas arrived at between certain sections of the people.”[409]222. Justice Hegde and Justice A.K Mukherjea also held that reliance couldnot be placed on the CAD to interpret any provision of the Constitution.Reference was made to State of Travancore-Cochin and it was held:“For finding out the true scope of Article 31(2) as it stands now, thelearned Advocate-General of Maharashtra as well as the Solicitor-Generalhas taken us through the history of this article. According to them thearticle as it stands now truly represents the intention of the Constitution-makers. In support of that contention, we were asked to go through theConstituent Assembly debates relating to that article. In particular wewere invited to go through the speeches made by Pandit Nehru, Sir AlladiKrishnaswami Ayyar, Dr Munshi and Dr Ambedkar. In our opinion, it isimpermissible for us to do so. It is a well-settled rule of constructionthat speeches made by members of a Legislature in the course of debatesrelating to the enactment of a statute cannot be used as aids forinterpreting any of the provisions of the statute. The same rule isapplicable when we are called upon to interpret the provisions of aConstitution.”[410]The learned judges observed that no decision was brought to their noticedissenting with the view mentioned above.223. Justice H.R Khanna was also of the opinion that the CAD could bereferred only for the limited purpose of determining the history of theconstitutional provision. The CAD ‘cannot form the basis for construing theprovisions of the Constitution.’ The learned judge further said that theintention of the draftsman of a statute would have to be gathered from thewords used. The learned judge said:“The speeches in the Constituent Assembly, in my opinion, can be referredto for finding the history of the Constitutional provision and thebackground against which the said provision was drafted. The speeches canalso shed light to show as to what was the mischief which was sought to beremedied and what was the object which was sought to be attained indrafting the provision. The speeches cannot, however, form the basis forconstruing the provisions of the Constitution. The task of interpreting theprovision of the Constitution has to be done independently and thereference to the speeches made in the Constituent Assembly does not absolvethe[pic]court from performing that task. The draftsmen are supposed to haveexpressed their intentions in the words used by them in the provisions.Those words are final repositories of the intention and it would beultimately from the words of the provision that the intention of thedraftsmen would have to be gathered.”[411]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 ProvisionalParliament were extensively read out to us during the course of arguments.I read the speeches with interest, but in my opinion, the debates are notadmissible as aids to construction of constitutional provisions.”[412]A little later it was said:“It is hazardous to rely upon parliamentary debates as aids to statutoryconstruction. Different speakers have different motives and the system of“Party Whip” leaves no warrant for assuming that those who voted but didnot speak were of identical persuasion. That assumption may be difficult tomake even in regard to those who speak. The safest course is to gather theintention of the legislature from the language it uses. Therefore,parliamentary proceedings can be used only for a limited purpose asexplained in Gopalan case.”[413]225. A contrary view was rhetorically expressed by Justice JaganmohanReddy but it was eventually held that the CAD could aid in interpretation,being ‘valuable material’ unlike legislative debates which could bemotivated by partisan views and party politics. Constituent AssemblyDebates were not motivated by such partisan considerations. It was said:“Speaking for myself, why should we not look into them [CAD] boldly forascertaining what was the intention of our framers and how they translatedthat intention? What is the rationale for treating them as forbidden orforbidding material. The Court in a constitutional matter, where the intentof the framers of the Constitution as embodied in the written document isto be ascertained, should look into the proceedings, the relevant dataincluding any speech which may throw light on ascertaining it. It canreject them as unhelpful, if they throw no light or throw only dim light inwhich nothing can be discerned……….. In proceedings of a legislature on anordinary draft bill, as I said earlier, there may be a partisan and heateddebate, which often times may not throw any light on the issues which comebefore the Court but the proceedings in a [pic]Constituent Assembly have nosuch partisan nuances and their only concern is to give the national aworking instrument with its basic structure and human values sufficientlybalanced and stable enough to allow an interplay of forces which willsubserve the needs of future generations. The highest Court created underit and charged with the duty of understanding and expounding it, shouldnot, if it has to catch the objectives of the framers, deny itself thebenefit of the guidance derivable from the records of the proceedings andthe deliberations of the Assembly.”[414]226. Justice K.K. Mathew supported the view of Justice Jaganmohan Reddyand observed that: ‘Logically, there is no reason why we should excludealtogether the speeches made in the Constituent Assembly by individualmembers if they throw any light which will resolve latent ambiguity in aprovision of Constitution.’ The learned judge went on to hold in asubsequent paragraph of the decision:“If the debates in the Constituent Assembly can be looked into tounderstand the legislative history of a provision of the Constitutionincluding its derivation, that is, the various steps leading up to andattending its enactment, to ascertain the intention of the makers of theConstitution, it is difficult to see why the debates are inadmissible tothrow light on the purpose and general intent of the provision. After all,legislative history only tends to reveal the legislative purpose inenacting the provision and thereby sheds light upon legislative intent. Itwould be drawing an invisible distinction if resort to debates is permittedsimply to show the legislative history and the same is not allowed to showthe legislative intent [pic]in case of latent ambiguity in theprovision.”[415]227. In Samsher Singh in their concurring opinion, Justice Krishna Iyer(for himself and Justice P.N. Bhagwati) extensively referred to the CAD forarriving at their conclusion, while Chief Justice Ray (for himself and fourother learned judges) made no reference to the CAD.228. Be that as it may, reference to the CAD again came up forconsideration in Indra Sawhney v. Union of India.[416] Speaking for thelearned Chief Justice, Justice M.N. Venkatachaliah, Justice Ahmadi andhimself, Justice B.P. Jeevan Reddy clarified that though the CAD or thespeeches of Dr. Ambedkar cannot be ignored, they are not conclusive orbinding on the Court but can be relied upon as an aid to interpreting aconstitutional provision. The CAD were referred to for ‘furnishing thecontext and the objective’ to be achieved by clause (4) of Article 16 ofthe Constitution. Reference was made, inter alia, to Golaknath, Dhillon andKesavananda Bharati and it was held:“We are aware that what is said during these debates is not conclusive orbinding upon the Court because several members may have expressed severalviews, all of which may not be reflected in the provision finally enacted.The speech of Dr Ambedkar on this aspect, however, stands on a differentfooting. He was not only the Chairman of the Drafting Committee whichinserted the expression “backward” in draft Article 10(3) [it was not therein the original draft Article 10(3)], he was virtually piloting the draftArticle. In his speech, he explains the reason behind draft clause (3) asalso the reason for which the Drafting Committee added the expression“backward” in the clause. In this situation, we fail to understand how cananyone ignore his speech while trying to ascertain the meaning of the saidexpression. That the debates in Constituent Assembly can be relied upon asan aid to interpretation of a constitutional provision is borne out by aseries of decisions of this Court……… Since the expression “backward” or“backward class of citizens” is not defined in the Constitution, referenceto such debates is permissible to ascertain, at any rate, the context,background and objective behind them. Particularly, where the Court wantsto ascertain the ‘original intent’ such reference may be unavoidable.”[417]229. In S.R. Chaudhuri v. State of Punjab[418] it was held that it issettled that the CAD may be relied upon ‘as an aid to interpret aconstitutional provision because it is the function of the court to findout the intention of the framers of the Constitution.’ This view wasfollowed by me in Manoj Narula v. Union of India.[419]230. In T.M.A. Pai Foundation v. State of Karnataka[420] Justice Kharereferred to Kesavananda Bharati and observed therein that though the CADare not conclusive, yet they can throw light into the intention of theframers in enacting provisions of the Constitution. On this basis thelearned judge held:“Thus, the accepted view appears to be that the report of the ConstituentAssembly debates can legitimately be taken into consideration forconstruction of the provisions of the Act or the Constitution.”[421]231. Justice Variava (for himself and Justice Bhan) also referred toKesavananda Bharati and held that though the CAD are not conclusive, but‘in a constitutional matter where the intent of the framers of theConstitution is to be ascertained, the Court should look into theproceedings and the relevant data, including the speeches, which throwlight on ascertaining the intent.’232. Justice Syed Shah Quadri stated an interesting principle in thefollowing words:“The correct way to interpret an article is to go by its plain language andlay bare the meaning it conveys. It would no doubt be useful to refer tothe historical and political background which supports the interpretationgiven by the court and in that context the debates of the ConstituentAssembly would be the best record of understanding all those aspects. Ahost of considerations might have prompted the people of India throughMembers of Constituent Assembly to adopt, enact and to give to themselvesthe Constitution. We are really concerned with what they have adopted,enacted and given to themselves in these documents. We cannot and we shouldnot cause scar on it which would take years for the coming generations toremove from its face.”[422]233. The learned judge then went on to hold, relying on Prem Lal Mullick,A.K. Gopalan, State of Travancore-Cochin, Kesavananda Bharati and IndraSawhney that ‘admissibility of speeches made in the Constituent Assemblyfor interpreting provisions of the Constitution is not permissible’ andthat ‘The preponderance of opinion appears to me not to rely on the debatesin the Constituent Assembly or the Parliament to interpret a constitutionalprovision although they may be relevant for other purposes.’ The learnedjudge quoted a sentence from Black Clawson International Ltd. v.Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft[423] to the followingeffect:“We are seeking not what Parliament meant but the true meaning of whatParliament said.”[424]234. In re: Special Reference No. 1 of 2002 (Gujarat Assembly ElectionMatter)[425] the issue of relying on the CAD again came up forconsideration. Justice Khare (for the Chief Justice, Justice Bhan andhimself) referred to Kesavananda Bharati and held:“Constituent Assembly Debates although not conclusive, yet show theintention of the framers of the Constitution in enacting provisions of theConstitution and the Constituent Assembly Debates can throw light inascertaining the intention behind such provisions.”[426]235. In a decision rendered by the Constitutional Court of the Republic ofSouth Africa in The State v. T. Makwanyane[427] a brief survey of the lawin the United States Supreme Court, German Constitutional Court, CanadianSupreme Court, this Court, European Court of Human Rights and the UnitedNations Committee on Human Rights was carried out and it was held (perJustice Chaskalson):In countries in which the constitution is similarly the supreme law, it isnot unusual for the courts to have regard to the circumstances existing atthe time the constitution was adopted, including the debates and writingswhich formed part of the process. The United States Supreme Court paysattention to such matters, and its judgments frequently contain reviews ofthe legislative history of the provision in question, including referencesto debates, and statements made, at the time the provision was adopted. TheGerman Constitutional Court also has regard to such evidence. The CanadianSupreme Court has held such evidence to be admissible, and has referred tothe historical background including the pre-confederation debates for thepurpose of interpreting provisions of the Canadian Constitution, althoughit attaches less weight to such information than the United States SupremeCourt does. It also has regard to ministerial statements in Parliament inregard to the purpose of particular legislation. In India, whilst speechesof individual members of Parliament or the Convention are apparently notordinarily admissible, the reports of drafting committees can, according toSeervai, “be a helpful extrinsic aid to construction.” Seervai cites KaniaCJ in A. K. Gopalan v The State for the proposition that whilst not taking“...into consideration the individual opinions of Members of Parliament orConvention to construe the meaning of a particular clause, when a questionis raised whether a certain phrase or expression was up for considerationat all or not, a reference to debates may be permitted.” The European Courtof Human Rights and the United Nations Committee on Human Rights all allowtheir deliberations to be informed by travaux preparatoires.”[428](Internal citations omitted)236. Earlier, on a consideration of the law in England it was held (perJustice Chaskalon):“Debates in Parliament, including statements made by Ministers responsiblefor legislation, and explanatory memoranda providing reasons for new billshave not been admitted as background material. It is, however, permissibleto take notice of the report of a judicial commission of enquiry for thelimited purpose of ascertaining “the mischief aimed at the statutoryenactment in question.” These principles were derived in part from Englishlaw. In England, the courts have recently relaxed this exclusionary ruleand have held, in Pepper (Inspector of Taxes) v Hart that, subject to theprivileges of the House of Commons:...reference to Parliamentary material should be permitted as an aid to theconstruction of legislation which is ambiguous or obscure or the literalmeaning of which leads to an absurdity. Even in such cases references incourt to Parliamentary material should only be permitted where suchmaterial clearly discloses the mischief aimed at or the legislativeintention lying behind the ambiguous or obscure words.”[429] (Internalcitations omitted)237. It is quite clear that the overwhelming view of the various learnedjudges in different decisions rendered by this Court and in otherjurisdictions as well is that: (1) A reference may be made to the CAD or toParliamentary debates (as indeed to any other ‘relevant material’) tounderstand the context in which the constitutional or statutory provisionswere framed and to gather the intent of the law makers but only if there issome ambiguity or uncertainty or incongruity or obscurity in the languageof the provision. A reference to the CAD or the Parliamentary debates oughtnot to be made only because they are there;[430] (2) The CAD orParliamentary debates ought not to be relied upon to interpret theprovisions of the Constitution or the statute if there is no ambiguity inthe language used. These provisions ought to be interpreted independently –or at least, if reference is made to the CAD or Parliamentary debates, theCourt should not be unduly influenced by the speeches made. Confirmation ofthe interpretation may be sought from the CAD or the Parliamentary debatesbut not vice versa.238. This discussion has been necessitated by the submission of thelearned Attorney-General that the Constituent Assembly did not intend thatfor the appointment of a judge of the Supreme Court or of the High Courtthe concurrence of the Chief Justice of India is necessary. The word‘consultation’ in Article 124 of the Constitution and in Article 217 of theConstitution did not and could not mean ‘concurrence’. This, according tothe learned Attorney-General is specifically and clearly borne out from theCAD. In fact, the learned Attorney-General drew our attention to thediscussion that took place in the Constituent Assembly on 23rd and 24thMay, 1949.239. It was submitted that under the circumstances there was no ambiguityin the meaning of the word ‘consultation’ and a reference to the CAD wasnecessary, applying the dictum of Chief Justice Sikri, only to confirm theinterpretation of ‘consultation’ as not meaning ‘concurrence’. It is forthis reason, apart from others that the Second Judges case and the ThirdJudges case required reconsideration.240. The learned Attorney-General also drew our attention to the followingexpression of opinion by Mr. T.T. Krishnamachari in the ConstituentAssembly on 27th May, 1949 in relation to clause (3) of the draft Article122 concerning the officers and servants and expenses of the SupremeCourt.[431] The contention was that it was not the intention of theConstituent Assembly to make the Chief Justice of India or the SupremeCourt above the executive or the Legislature thereby discarding the theoryof separation of powers, and if ‘consultation’ is interpreted to mean‘concurrence’, then that would be the inevitable result. Reliance wasplaced on the following speech:“While I undoubtedly support the amendment moved by Dr. Ambedkar, I thinkit should be understood by the Members of this House, and I do hope bythose people who will be administering justice and also administering thecountry in the future that this is a safeguard rather than an operativeprovision. The only thing about it is that a matter like the employment ofstaff by the Judges should be placed ordinarily outside the purview of theExecutive which would otherwise have to take the initiative to includethese items in the budget for the reason that the independence of theJudiciary should be maintained and that the Judiciary should not feel thatthey are subject to favours that the Executive might grant to them fromtime to time and which would naturally influence their decision in anymatter they have to take where the interests of the Executive of the timebeing happens to be concerned. At the same time, Sir, I think it should bemade clear that it is not the intention of this House or of the framers ofthis Constitution that they want to create specially favoured bodies whichin themselves becomes an Imperium in Imperio, completely independent of theExecutive and the Legislature and operating as a sort of superior body tothe general body politic. If that were so, I think we should be ratherchary of introducing a provision of this nature, not merely in regard tothe Supreme Court but also in regard to the Auditor-General, in regard tothe Union Public Service Commission, in regard to the Speaker and thePresident of the two House of Parliament and so on, as we will thereby becreating a number of bodies which are placed in such a position that theyare bound to come into conflict with the Executive in every attempt theymake to display their superiority. In actual practice, it is better for allthese bodies to more or less fall in line with the regulations that obtainin matters of recruitment to the public services, conditions of promotionand salaries paid to their staff.”[432]Replying to this debate, Dr. Ambedkar clarified the position that there wasno question of creating an Imperium in Imperio. Dr. Ambedkar said:“Mr. President, Sir, I would just like to make a few observations in orderto clear the position. Sir, there is no doubt that the House in general,has agreed that the independence of the Judiciary from the Executive shouldbe 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, wemight be creating, what my Friend Mr. T. T. Krishnamachari very aptlycalled an "Imperium in Imperio". We do not want to create an Imperium inImperio, and at the same time we want to give the Judiciary ampleindependence so that it can act without fear or favour of the Executive. Myfriend, if they will carefully examine the provisions of the new amendmentwhich I have proposed in place of the original article 122, will find thatthe new article proposes to steer a middle course. It refuses to create anImperium in Imperio, and I think it gives the Judiciary as muchindependence as is necessary for the purpose of administering justicewithout fear or favour. I need not therefore, dilate on all the provisionscontained in this new article 122…..”[433]241. It is quite clear from the above that the endeavour of Dr. Ambedkarwas to ensure the independence of the judiciary from the executive withoutcreating any power imbalance and this, therefore, needed steering a middlecourse whether in the appointment of judges or the officers of the SupremeCourt. 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 the99th Constitution Amendment Act impact on that independence? These are sometroubling questions that need an answer with reference to the issue beforeus, namely, the constitutional validity of the 99th Constitution AmendmentAct.1 Judicial pronouncements and the third preliminary issue242. The learned Attorney-General submitted that in any event the SecondJudges case requires reconsideration. There is large volume of case lawwhich gives guidance on the circumstances when an earlier decision of thisCourt should be reconsidered. It is necessary to consider these casesbefore deciding whether a platform for reconsideration of the Second Judgescase has been made.243. Bengal Immunity Co. Ltd. v. State of Bihar & Ors.[434] concerned theinterpretation of Article 286 of the Constitution which, it was contended,had been incorrectly interpreted in State of Bombay v. The United Motors(India) Ltd.[435] This Court addressed the issue of reconsideration of aprevious decision rendered by it. Chief Justice Das (speaking for himself,Justice Vivian Bose and Justice Syed Jafer Imam) discussed the judgmentsdelivered in England, Australia, the United States and by the Privy Counciland was of the view (for several reasons) that a previous decision renderedby this Court could be departed from. It was observed that it was not easyto amend the Constitution and if an erroneous interpretation was put upon aprovision thereof it could ‘conceivably be perpetuated or may at any rateremain unrectified for a considerable time to the great detriment to publicwell being.’ It was held, inter alia, that if this Court was convinced ofits error and ‘baneful effect’ on the general interests of the public of anerroneous interpretation of a provision of the Constitution, then there isnothing in the Constitution that prevents this Court in departing from itsearlier decision. It could also depart from a previous decision if it wasvague or inconsistent or plainly erroneous. It was held that the doctrineof stare decisis ‘is not an inflexible rule of law and cannot be permittedto perpetuate our errors to the detriment to the general welfare of thepublic or a considerable section thereof.’244. In a significant passage (one that will have a bearing on thissubject), it was observed:“The majority decision does not merely determine the rights of the twocontending parties to the Bombay appeal. Its effect is far reaching as itaffects the rights of all consuming public. It authorises the impositionand levying of a tax by the State on an interpretation of a constitutionalprovision which appears to us to be unsupportable. To follow thatinterpretation will result in perpetuating what, with humility we say, isan 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 of two privateindividuals inter se. It involves an adjudication on the taxing power ofthe States as against the consuming public generally. If the decision iserroneous, as indeed we conceive it to be, we owe it to that public toprotect them against the illegal tax burdens which the States are seekingto impose on the strength of that erroneous recent decision.”[436]245. Justice N.H. Bhagwati also reviewed several decisions from variousjurisdictions and agreed with Chief Justice Das but drew a distinctionbetween reconsideration of a previous decision concerning theinterpretation of a provision of a legislative enactment and theinterpretation of a provision of the Constitution. While an erroneousinterpretation of the former by the Court could be corrected by theLegislature, it was not easy to amend the Constitution to correct itserroneous interpretation by the Court. It is for this reason that JusticeN.H. Bhagwati held that if the previous decision interpreting theprovisions of the Constitution was ‘manifestly wrong or erroneous’ and that‘public interest’ demanded its reconsideration then the Court should haveno hesitation in doing so.246. Justice Jagannadhadas also held that this Court is competent toreconsider its earlier decisions. It was added that: ‘But, it does notfollow that such power can be exercised without restriction or limitationor that a prior decision can be reversed on the ground that, on laterconsideration, the Court disagrees with the prior decision and thinks iterroneous.’ It was held that though the power to reconsider a priordecision does exist, the actual exercise of that power should be confined‘within very narrow limits.’ The learned Judge preferred to adopt the viewexpressed by Justice Dixon of the High Court of Australia in Attorney-General for N.S.W. v. The Perpetual Trustee Co. Ltd.[437] to the effectthat a prior decision should not be reconsidered simply because an oppositeconclusion is to be preferred.247. Justice Venkatarama Aiyar also held the view that this Court couldreconsider an earlier decision rendered by it. However, the learned Judgewas of the opinion that the power to reconsider should be ‘exercised verysparingly and only in exceptional circumstances, such as when a materialprovision of law had been overlooked, or where a fundamental assumption onwhich the decision is based, turns out to be mistaken.’ Agreeing with theview canvassed by Justice Jagannadhadas (and Justice Dixon) the learnedJudge posed the following question and also answered it: ‘Can we differfrom a previous decision of this Court, because a view contrary to the onetaken therein appears to be preferable? I would unhesitatingly answer it inthe negative, not because the view previously taken must necessarily beinfallible but because it is important in public interest that the lawdeclared should be certain and final rather than that it should be declaredin one sense or the other.’248. Justice B.P. Sinha agreed with Justice Jagannadhadas and JusticeVenkatarama Aiyar and held that a previous judgment of this Court ought notto be reviewed simply because another view may be taken of the points incontroversy. This Court should review its previous decisions only inexceptional circumstances. It was observed that ‘Definiteness and certaintyof the legal position are essential conditions for the growth of the ruleof law.’249. Lt. Col. Khajoor Singh v. Union of India[438] concerned theinterpretation of Article 226 of the Constitution and Article 32(2-A) ofthe Constitution (as applicable to Jammu & Kashmir). Though Justice SubbaRao (dissenting) and Justice Das Gupta (concurring) delivered separatejudgments, they did not advert to the question of reconsideration of adecision of this Court. Chief Justice B.P. Sinha speaking for the remaininglearned judges took the view that a previous decision rendered by thisCourt may be reconsidered if there are ‘clear and compelling reasons’ to doso 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 waserroneous ‘beyond all reasonable doubt’ particularly on a constitutionalissue. If any inconvenience is felt on the interpretations of theprovisions of the Constitution under consideration, then the remedy ‘seemsto be a constitutional amendment.’250. In Keshav Mills v. CIT[439] the question for consideration was thescope 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 earlierdecisions on the subject, that is, New Jehangir Vakil Mills Ltd. v.CIT[440] and Petlad Turkey Red Dye Works Co. Ltd., Petlad v. CIT[441]needed reconsideration. In considering this submission, it was held thatwhen this Court interprets a statutory provision, merely because analternative view different from an opinion earlier expressed by this Courtis more reasonable is not necessarily an adequate reason for reconsideringthe earlier opinion. This Court should ask itself the question whether inthe interests of the public good or for any other valid and compulsivereasons, it is necessary that the earlier decision should be revised. ThisCourt held:“When this Court decides questions of law, its decisions are, under Article141 binding on all courts within the territory of India and so it must bethe constant endeavour and concern of this Court to introduce and maintainan element of certainty and continuity in the interpretation of law in thecountry…..That is not to say that if on a subsequent occasion, the Court issatisfied that its earlier decision was clearly erroneous, it shouldhesitate to correct the error; but before a previous decision is pronouncedto be plainly erroneous, the Court must be satisfied with a fair amount ofunanimity amongst its members that a revision of the said view is fullyjustified.”[442]251. Maganlal Chhaganlal v. Municipal Corporation of Greater Bombay[443]concerned the validity of proceedings under Chapter V-A of the BombayMunicipal Corporation Act, 1888 and the Bombay Government Premises(Eviction) Act, 1955 in the context of the decision of this Court inNorthern India Caterers v. State of Punjab.[444] Justice H.R. Khanna aloneconsidered the question of overruling an earlier decision of this Court,namely, in Northern India Caterers. It was observed that certainty in lawwould be eroded if a decision that ‘held the field’ for several years isreadily overruled – ‘certainty and continuity are essential ingredients ofrule of law.’ It was held that if two views are possible then, simplybecause the earlier decision does not take a view that is more acceptablewould not be a ground for overruling the earlier decision. An earlierdecision ought to be overruled only for compelling reasons otherwise itwould create ‘uncertainty, instability and confusion if the law propoundedby this Court on the basis of which numerous cases have been decided andmany transactions have taken place is held to be not the correct law.’Justice Khanna observed that new ideas and developments in the field of lawand that the fullness of experience and indeed subsequent experience cannotbe wished away. The learned judge held:“As in life so in law things are not static. Fresh vistas and horizons mayreveal themselves as a result of the impact of new ideas and developmentsin different fields of life. Law, if it has to satisfy human needs and tomeet the problems of life, must adapt itself to cope with new situations.Nobody is so gifted with foresight that he can divine all possible humanevents in advance and prescribe proper rules for each of them. There are,however, certain verities which are of the essence of the rule of law andno law can afford to do away with them. At the same time it has to berecognized that there is a continuing process of the growth of law and onecan retard it only at the risk of alienating law from life itself. Thereshould not be much hesitation to abandon an untenable position when therule to be discarded was in its origin the product of institutions orconditions which have gained a new significance or development with theprogress of years. It sometimes happens that the rule of law which grew upin remote generations may in the fullness of experience be found to serveanother generation badly. The Court cannot allow itself to be tied down byand become captive of a view which in the light of the subsequentexperience has been found to be patently erroneous, manifestly unreasonableor to cause hardship or to result in plain iniquity or publicinconvenience.”[445]252. Ganga Sugar Corporation v. State of Uttar Pradesh[446] related to theconstitutional validity of a levy under the U.P. Sugarcane (Purchase Tax)Act, 1961. The decision does not contain any detailed discussion on thesubject of reconsideration of an earlier decision of this Court. But it wasnevertheless held that decisions of a Constitution Bench must be acceptedas final unless the subject is of fundamental importance to national lifeor the reasoning of the previous decision is so plainly erroneous that ‘itis wiser to be ultimately right rather than to be consistently wrong. Staredecisis is not a ritual of convenience but a rule with limited exceptions.Pronouncements by Constitution Benches should not be treated so cavalierlyas to be revised frequently.’253. A rather exhaustive reference to the cases and the law laid down indifferent jurisdictions was adverted to in Union of India v. RaghubirSingh.[447] This decision concerned itself with the grant of solatium underthe Land Acquisition Act, 1894 as amended by the Land Acquisition(Amendment) Act, 1984. Reference was made to the ‘guidelines’ culled outfrom the decisions of the House of Lords[448] which suggest that thefreedom to reconsider an earlier decision ought to be exercised sparingly;a decision ought not to be overruled if it upsets the legitimateexpectation of persons who have made arrangements based on the earlierdecision or causes great uncertainty in the law; decisions involving theinterpretation of statutes or documents ought not to be overruled except inrare or exceptional circumstances; if the consequences of departing from anearlier decision are not foreseeable; merely because an earlier decisionwas wrongly taken is not a good enough justification for overruling it. Onthe other hand, a prior decision ought to be overruled ‘if in relation tosome broad issue or principle it is not considered just or in keeping withcontemporary social conditions or modern conceptions of public policy.’254. Reference was also made to several decisions earlier rendered by thisCourt (including those mentioned above) and though no new or differentprinciples or guidelines were laid down, the law as stated by this Courtwas iterated, and it was observed: ‘It is not necessary to refer to all thecases on the point. The broad guidelines are easily deducible from what hasgone before. The possibility of further defining these guiding principlescan be envisaged with further juridical experience, and when commonjurisprudential values linking different national systems of law may make aconsensual pattern possible. But that lies in the future.’255. Echoing the views expressed in Maganlal Chhaganlal and Raghubir Singhwith regard to acknowledging changes with the passage of time and modernconceptions of public policy, it was said:“Not infrequently, in the nature of things there is a gravity-heavyinclination to follow the groove set by precedential law. Yet a sensitivejudicial conscience often persuades the mind to search for a [pic]differentset of norms more responsive to the changed social context. The dilemmabefore the Judge poses the task of finding a new equilibrium prompted notseldom 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 something fixed and settled, whoseauthority was beyond question, while at the same time enabling it to makeconstant readjustments and occasional radical changes under the pressure ofinfinite and variable human desires”. The reconciliation suggested by LordReid in The Judge as Law Maker lies in keeping both objectives in view,“that the law shall be certain, and that it shall be just and shall movewith the times”.” [449] (Internal citations have been omitted).256. In Gannon Dunkerley & Co. v. State of Rajasthan[450] the questionrelated to ‘the imposition of tax on the transfer of property in goodsinvolved in the execution of works contracts. The power to impose this taxbecame available to the State Legislatures as a result of the amendmentsintroduced in the Constitution by the Constitution (Forty-sixth Amendment)Act, 1982.’ The constitutional validity of this Amendment Act had beenupheld in Builders’ Association of India v. Union of India.[451] One of theissues raised was whether Builders’ Association had been correctly decidedor not. This Court did not add to the discourse on the subject butconcluded, relying upon Khajoor Singh, Keshav Mills and Ganga SugarCorporation that there was no occasion to reconsider the decision inBuilders’ Association.257. Another decision (which is rather interesting) on the subject ofreconsideration of an earlier decision is Pradeep Kumar Biswas v. IndianInstitute of Chemical Biology.[452] The question before this Court waswhether the Council for Scientific and Industrial Research was ‘the State’as ‘defined’ in Article 12 of the Constitution. The answer to this questionrequired consideration of an earlier unanimous decision of this Court inSabhajit Tewary v. Union of India[453] which had stood undisturbed forabout 25 years. While answering this question, this Court did not detailthe law on the subject of reconsideration of an earlier decision of thisCourt, but on a consideration of the facts (and the law) concluded thatSabhajit Tewary had been wrongly decided and was overruled. This Courtreferred to Maganlal Chhaganlal and Raghubir Singh and held:“From whichever perspective the facts are considered, there can be no doubtthat the conclusion reached in Sabhajit Tewary was erroneous. …….In the assessment of the facts, the Court had assumed certain principles,and sought precedential support from decisions which were irrelevant andhad “followed a groove chased amidst a context which has long sincecrumbled.”[454] Had the facts been closely scrutinised in the properperspective, it could have led and can only lead to the conclusion thatCSIR is a State within the meaning of Article 12.Should Sabhajit Tewary still stand as an authority even on the facts merelybecause it has stood for 25 years? We think not. Parallels may be drawneven on the facts leading to an untenable interpretation of Article 12 anda consequential denial of the benefits of fundamental rights to individualswho would otherwise be entitled to them and“[T]here is nothing in our Constitution which prevents us from departingfrom a previous decision if we are convinced of its error and its banefuleffect on the general interests of the public”.Since on a re-examination of the question we have come to the conclusionthat the decision was plainly erroneous, it is our duty to say so and notperpetuate our mistake.” [455] (Internal citations have been omitted).258. One of the more interesting aspects of Pradeep Kumar Biswas is thatout of the 7 (seven) learned judges constituting the Bench, 5 learnedjudges overruled the unanimous decision of another set of 5 learned judgesin Sabhajit Tewary. Two of the learned judges in Pradeep Kumar Biswas foundthat Sabhajit Tewary had been correctly decided. In other words, while atotal of 7 learned judges took a particular view on an issue of fact andlaw, that view was found to be incorrect by 5 learned judges, whosedecision actually holds the field today. Is the weight of numbersirrelevant? Is it that only the numbers in a subsequent Bench are whatreally matters? What would have been the position if only 4 learned judgesin Pradeep Kumar Biswas had decided to overrule Sabhajit Tewary while theremaining 3 learned judges found no error in that decision? Would adecision rendered unanimously by a Bench of 5 learned judges standoverruled by the decision of 4 learned judges in a subsequent Bench of 7learned judges? Pradeep Kumar Biswas presents a rather anomalous situationwhich needs to be addressed by appropriate rules of procedure. If thisanomaly is perpetuated then the unanimous decision of 9 learned judges inthe Third Judges case can be overruled (as sought by the learned Attorney-General) by 6 learned judges in a Bench of 11 learned judges, with 5 ofthem taking a different view, bringing the total tally of judges having oneview to 14 and having another view to 6, with the view of the 6 learnedjudges being taken as the law!259. Be that as it may, two other decisions of importance on the subjectof reconsidering a prior decision of this Court are Kesavananda Bharati andthe Second Judges case.260. In Kesavananda Bharati it was pithily stated by Chief Justice S.M.Sikri that the question before the Court was whether Golak Nath wascorrectly decided. The learned Chief Justice observed:“However, as I see it, the question whether Golak Nath case was rightlydecided or not does not matter because the real issue is different and ofmuch greater importance, the issue being: what is the extent of theamending power conferred by Article 368 of the Constitution, apart fromArticle 13(2), on Parliament ?”[456]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 earlierdecision of this Court.262. In the Second Judges case it was observed by Justice Pandian that anearlier decision rendered by this Court may be reconsidered if, amongstothers, ‘exceptional and extraordinarily compelling’ circumstances sowarrant. It was observed that ‘no decision enjoys absolute immunity fromjudicial review or reconsideration on a fresh outlook of the constitutionalor legal interpretation and in the light of the development of innovativeideas, principles and perception grown along with the passage oftime.’[457] Recalling the observations in Maganlal Chhaganlal, RaghubirSingh and Pradeep Kumar Biswas it was held that:“Therefore, in exceptional and extraordinarily compelling circumstances orunder new set of conditions, the court is on a fresh outlook and in thelight of the development of innovative ideas, principles and perceptiongrown along with the passage of time, obliged by legal and moral forces toreconsider its earlier ruling or decision and if necessitated even tooverrule or reverse the mistaken decision by the application of the‘principle of retroactive invalidity’. Otherwise even the wrong judicialinterpretation that the Constitution or law has received over decades willbe holding the field for ages to come without that wrong being corrected.Indeed, no historic precedent and long-term practice can supply a rule ofunalterable decision.”[458]263. There is absolutely no dispute or doubt that this Court canreconsider (and set aside) an earlier decision rendered by it. But what arethe circumstances under which the reconsideration can be sought? This Courthas debated and discussed the issue on several occasions as mentioned aboveand the broad principles that can be culled out from the various decisionssuggest that:(1) If the decision concerns an interpretation of the Constitution, perhapsthe bar for reconsideration might be lowered a bit (as in KesavanandaBharati). Although the remedy of amending the Constitution is available toParliament, not all amendments are easy to carry out. Some amendmentsrequire following the procedure of ratification by the States.Nevertheless, where a constitutional issue is involved, the necessity ofreconsideration should be shown beyond all reasonable doubt, the remedy ofamending the Constitution always being available to Parliament.(2) If the decision concerns the imposition of a tax, then too the barmight be lowered a bit since the tax burden would affect a large section ofthe public. However, the general principles for requiring reconsiderationdo not necessarily fall by the wayside.(3) If the decision concerns the fundamental rights of the people, then toothe bar might be lowered for obvious reasons. However again, the generalprinciples for requiring reconsideration must be adhered to.(4) In other cases, the Court must be convinced that the earlier decisionis plainly erroneous and has a baneful effect on the public; that it isvague or inconsistent or manifestly wrong.(5) If the decision only concerns two contending private parties orindividuals, then perhaps it might not be advisable to reconsider it. Eachand every error of law cannot obviously be corrected by this Court.(6) The power to reconsider is not unrestricted or unlimited, but isconfined within narrow limits and must be exercised sparingly and underexceptional circumstances for clear and compelling reasons. Therefore,merely because a view different from or contrary to what has been expressedearlier is preferable is no reason to reconsider an earlier decision. Theendeavour of this Court must always be to ensure that the law is definiteand certain and continuity in the interpretation of the law is maintained.In this regard, Raghubir Singh presents an interesting picture. Section23(2) of the Land Acquisition Act, 1894 (as amended in 1984) wasinterpreted by this Court on 14th February, 1985 in K. Kamalajammanniavaruv. Special Land Acquisition Officer.[459] That decision was overruled sixmonths later on 14th August, 1985 in Bhag Singh v. Union Territory ofChandigarh.[460] That decision was in turn overruled on 16th May, 1989 inRaghubir Singh and the law laid in Kamalajammanniavaru was reiterated. Itis this uncertainly and absence of continuity in the law that is requiredto be avoided.(7) An earlier decision may be reconsidered if a material provision of lawis overlooked[461] or a fundamental assumption is found to be erroneous orif there are valid and compulsive or compelling reasons or if the issue isof fundamental importance to national life. However, it might not be wiseto overrule a decision if people have changed their position on the basisof the existing law. This is because it might upset the legitimateexpectation of persons who have made arrangements based on the earlierdecision and also because the consequences of such a decision might not beforeseeable.(8) Whether a decision has held the field for a long time or not is not ofmuch consequence. In Bengal Immunity a recent decision delivered by theConstitution Bench was overruled; in Pradeep Kumar Biswas a decisionholding the field for a quarter of a century was overruled. (9) Significantly, this Court has taken note of and approved the viewthat the changing times might require the interpretation of the law to bereadjusted keeping in mind the ‘infinite and variable human desires’ andchanged conditions due to ‘development with the progress of years.’ Theinterpretation of the law, valid for one generation may not necessarily bevalid for subsequent generations. This is a reality that ought to beacknowledged as has been done by this Court in Maganlal Chhaganlal and byChief Justice Dickson of the Canadian Supreme Court in The Queen v.Beauregard.[462] Similarly, the social context or ‘contemporary socialconditions or modern conceptions of public policy’ cannot be overlooked.Oliver Wendell Holmes later a judge of the Supreme Court of the UnitedStates put itrather pithily when he said that: ‘But the present has a right to governitself so far as it can; and it ought always to be remembered that historiccontinuity with the past is not a duty, it is only a necessity.’[463]264. It is trite that the Constitution is a living document[464] and it isalso wise to remember, in this context, what was said in R.C. Poudyal v.Union of India[465] that:“In the interpretation of a constitutional document, ‘words are but theframework of concepts and concepts may change more than words themselves’.The significance of the change of the concepts themselves is vital and theconstitutional issues are not solved by a mere appeal to the meaning of thewords without an acceptance of the line of their growth. It is aptly saidthat ‘the intention of a Constitution is rather to outline principles thanto engrave details’.”[466]265. On the basis of the law as laid down by this Court and consideringthe historical developments over the last six decades, it was submitted bythe learned Attorney-General that a fundamental and significant question asto the interpretation of the Constitution has arisen; that the SecondJudges case and the Third Judges case did not correctly appreciate theConstituent Assembly Debates on the Judiciary and that the time has nowcome to make a course correction.Conclusions on the preliminary issue266. It is quite clear that there is a distribution of power through asystem of checks and balances rather than a classical separation of powerbetween the Legislature, the Executive and the Judiciary. These threeorgans of the State are not in a silo and therefore there is an occasionaloverlap – but every overlap does not necessarily lead to a violation of theseparation of powers theory. [467]267. There are several examples of this ‘overlap’ and the learned Attorney-General has taken us through the various provisions of the Constitution inthis regard: Article 124(1) of the Constitution enables Parliament to passa law prescribing the composition of the Supreme Court as consisting ofmore than seven judges. Pursuant to this the Supreme Court (Number ofJudges) Act, 1956 was passed; Article 124(4) provides for the impeachmentprocess for the removal of a judge; Article 124(5) enables Parliament tolegislate for regulating the procedure for the presentation of an addressin the impeachment process and in the investigation and proof of themisbehavior or incapacity of a judge; Article 125(1) enables Parliament bylaw to determine the salary of a judge while Article 125(2) enablesParliament to pass a law with regard to the privileges, allowances, etc. ofa judge. Pursuant to this the Supreme Court Judges (Conditions of Service)Act, 1958 has been enacted; Article 134(2) enables Parliament to confer onthe Supreme Court by legislation, further powers to entertain and hearappeals and criminal proceedings. Pursuant to this, Parliament has enactedthe Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,1970; Article 135 enables Parliament to make a law with regard to thejurisdiction and power of the Supreme Court with respect of any matter towhich the provisions of Article 133 and Article 134 do not apply; Article137 provides that subject to any law made by Parliament the Supreme Courtshall have the power to review any judgment pronounced or order made by it;Article 138 enables Parliament by law to enlarge the jurisdiction of theSupreme Court with respect to any matter as the Government of India and theGovernment of any State may by special agreement confer and Article 139enables Parliament to make a law to issue writs other than those mentionedin Article 32 of the Constitution; Article 140 enables Parliament to make alaw conferring upon the Supreme Court supplementary powers; Article 142enables Parliament to make a law for the enforcement of a decree or orderof the Supreme Court and the exercise of power by the Supreme Court to makeany order for the purpose of securing the attendance of any person, thediscovery or production of any documents, or the investigation orpunishment of any contempt, Article 145 enables Parliament to make any lawfor regulating the practice and procedure of Supreme Court while Article146(2) enables Parliament to lay down the conditions of service of officersand servants of the Supreme Court. Article 130 of the Constitution permitsthe Supreme Court to sit at any place other than Delhi with the approval ofthe President while Article 145 enables the Supreme Court to make rules forregulating the practice and procedure of the Court with the approval of thePresident.268. There is quite clearly an entire host of parliamentary andlegislative checks placed on the judiciary whereby its administrativefunctioning can be and is controlled, but these do not necessarily violatethe theory of separation of powers or infringe the independence of thejudiciary as far as decision making is concerned. As has been repeatedlyheld, the theory of separation of powers is not rigidly implemented in ourConstitution, but if there is an overlap in the form of a check withreference to an essential or a basic function or element of one organ ofState as against another, a constitutional issue does arise. It is in thiscontext that the 99th Constitution Amendment Act has to be viewed – whetherit impacts on a basic or an essential element of the independence of thejudiciary, namely, its decisional independence.269. The learned Attorney-General is not right in his submission that theSecond Judges case overlooked the separation of powers and the CAD andincorrectly interpreted the provisions of the Constitution particularlyArticle 124(2) thereof. This is a rather narrow understanding of the SecondJudges case which, amongst others, considered the interpretation of Article50 of the Constitution, constitutional history and conventions, the entirespectrum of issues relating to the appointment of judges in the context ofthe independence of the judiciary, transparency and sharing of informationbetween the constitutional authorities, the primacy of the President or theJudiciary in the appointment process (depending on the circumstances), theimportance of the President in the integrated consultative process derivedfrom the debates in the Constituent Assembly and several other relatedaspects. All this involved a pragmatic and workable interpretation of theConstitution, which is the task only of the judiciary and there can be nodoubt about this. This was pithily stated in Marbury v. Madison[468]: ‘Itis emphatically the province and duty of the Judicial Department to saywhat the law is.’ It was also explicitly held in Re: Powers, Privileges andImmunities of State Legislatures[469] where it was said:“[W]hether or not there is distinct and rigid separation of powers underthe Indian Constitution, there is no doubt that the Constitution hasentrusted to the Judicature in this country the task of construing theprovisions of the Constitution and of safeguarding the fundamental rightsof the citizens. When a statute is challenged on the ground that it hasbeen passed by a legislature without authority, or has otherwiseunconstitutionally trespassed on fundamental rights, it is for the courtsto determine the dispute and decide whether the law passed by thelegislature is valid or not. Just as the legislatures are conferredlegislative authority and their functions are normally confined tolegislative functions, and the functions and authority of the executive liewithin the domain of executive authority, so the jurisdiction and authorityof the Judicature in this country lie within the domain of adjudication. Ifthe validity of any law is challenged before the courts, it is neversuggested that the material question as to whether legislative authorityhas been exceeded or fundamental rights have been contravened, can bedecided by the legislatures themselves.”[470]270. The learned Attorney-General is also not right in reducing the SecondJudges case to only one aspect – the decision of this Court has to beappreciated as a part of the larger constitutional scheme relating to theindependence of the judiciary. The learned Attorney-General may or may notagree with the interpretation given by this Court to the constitutionalscheme but that is no indication that the theory of the separation ofpowers has broken down. If there is an interpretational error, it can becorrected only by the judiciary, or by a suitable amendment to theConstitution that does not violate its basic structure.271. No one thought that this Court, in the Second Judges case, haderroneously interpreted or misunderstood the constitutional schemeconcerning the appointment of judges and the independence of the judiciary.There were some problem areas and these were referred to this Court in theform of questions raised by the President seeking the advisory opinion ofthis Court in the Third Judges case. The correctness of the decisionrendered in the Second Judges case was not in doubt and to remove anymisunderstanding in this regard the learned Attorney-General categoricallystated in the Third Judges case that ‘the Union of India is not seeking areview or reconsideration of the judgment in the Second Judges case.’Therefore, neither the President nor the Union of India nor anybody elsefor that matter sought a reconsideration of the Second Judges case. Thereis no reason (apart from an absence of a reason at law) why such a requestshould be entertained at this stage, except on a fanciful misunderstandingof the law by the Union of India.272. The contention of the learned Attorney-General is that theappointment of a judge of the Supreme Court or a High Court is an executivefunction and that has been taken over by the judiciary by a process ofjudicial encroachment through a ‘right to insist’ thereby breaking down theseparation of power theory. It is not possible to accept this line ofthought. The appointment of a judge is an executive function of thePresident and it continues to be so. However, the constitutional conventionestablished even before Independence has been that a judge is appointedonly if the Chief Justice of India or the Chief Justice of the High Courtgives his/her nod to the appointment. This position continued even afterIndependence. Justice Kuldip Singh summarized the appointments position inthe Second Judges case in the following words:“(i) The executive had absolute power to appoint the Judges under theGovernment of India Act, 1935. Despite that all the appointments madethereunder were made with the concurrence of the Chief Justice of India.(ii) A convention had come to be established by the year 1948 thatappointment of a Judge could only be made with the concurrence of the ChiefJustice of India.(iii) All the appointments to the Supreme Court from 1950 to 1959 were madewith the concurrence of the Chief Justice of India. 210 out of 211appointments made to the High Courts during that period were also with theconcurrence of the Chief Justice of India.(iv) Mr Gobind Ballabh Pant, Home Minister of India, declared on the floorof the Parliament on November 24, 1959 that appointment of Judges werevirtually being made by the Chief Justice of India and the executive wasonly an order-issuing authority.(v) Mr Ashoke Sen, the Law Minister reiterated in the Parliament onNovember 25, 1959 that almost all the appointments made to the SupremeCourt and the High Courts were made with the concurrence of the ChiefJustice of India.(iv) Out of 547 appointments of Judges made during the period January 1,1983 to April 10, 1993 only 7 were not in consonance with the viewsexpressed by the Chief Justice of India.”[471]273. These facts and figures clearly indicate that at least since 1935, ifnot earlier, the appointment of judges was made in accordance with the viewof the Chief Justice of India or the Chief Justice of the High Court as thecase may be. There were aberrations but these appear to have mainly takenplace only after Independence, as mentioned above. But even in those caseswhere there were aberrations pre-1959 (with the Chief Justice of the HighCourt having been by-passed) the concurrence of the Chief Justice of Indiawas taken. The executive, therefore, never had real primacy in the matterof appointment of judges. But, post the First Judges case the executiveexerted its newly given absolute primacy in the appointment of judges andthe aberrations increased. Surely, the executive cannot take advantage ofthe aberrations caused at its instance and then employ them as an argumentthat no constitutional convention existed regarding the concurrence of theChief Justice of India. On the contrary, the aberrations indicate thestealthy attempt of the political executive to subvert the independence ofthe judiciary through appointments that were not necessarily merit-based,and the submissions advanced before us suggest that henceforth theindependence of the judiciary may not necessarily be sacrosanct. It is forthis reason that the Bar has fought back to preserve and protect theexisting conventions and practices and will, hopefully maintain its vigil.274. In The Pocket Veto case[472] the US Supreme Court referred to a longstanding practice as an interpretation to a constitutional provision, whichwould be equally applicable to India. It was said:“The views which we have expressed as to the construction and effect of theconstitutional provision here in question are confirmed by the practicalconstruction that has been given to it by the Presidents through a longcourse of years, in which Congress has acquiesced. Long settled andestablished practice is a consideration of great weight in a properinterpretation of constitutional provisions of this character. CompareMissouri Pac. Ry. Co. v. Kansas[473]; Myers v. United States[474];and State v. South Norwalk[475] in which the court said that a practice ofat least twenty years' duration on the part of the executive department,acquiesced in by the legislative department, while not absolutely bindingon the judicial department, is entitled to great regard in determining thetrue construction of a constitutional provision the phraseology of which isin any respect of doubtful meaning.”275. By claiming absolute executive primacy, the learned Attorney-Generalis, in effect, propagating the view that the President can exercise a vetoon the proposal to appoint a judge, even if that proposal has the approvalof all other constitutional authorities. Such a view was not acceptable toDr. Ambedkar and the Constituent Assembly and it is impermissible tointroduce it through the back door. The Chief Justice of India has no‘right to insist’ on an appointment nor does the President have the ‘rightto reject’ or a veto. The Constitution postulates a consultative andparticipatory process between the constitutional functionaries forappointing the ‘best’ possible person as a judge of a High Court or theSupreme Court. In this consultative process the final word is given, by aconstitutional convention and practice developed over the years, to theChief Justice of India since that constitutional functionary is bestequipped to appreciate the requirements of effective justice delivery, tomaintain the independence of the judiciary, to keep at bay externalinfluences, ‘eliminate political influence even at the stage of initialappointment of a Judge’[476] and as the head of the judiciary, his/herjudgment ought to be trusted in this regard. That this could becharacterized as a ‘right to insist’ is not at all justified, nor can anyvoice of disagreement by the executive be construed as a ‘right to reject’or a veto. These expressions do not gel with the constitutional scheme orthe responsibilities of constitutional functionaries.276. What did the Second Judges case and the Third Judges case decide thatshould lead the political executive to misunderstand the views expressedand misunderstand the law interpreted or call for a reconsideration of thelaw laid down? In essence, all that was decided was that the Chief Justiceof India (in an individual capacity) could not recommend a person forappointment as a judge, but must do so in consultation with the otherjudges (and if necessary with non-judges). Such a recommendation of theChief Justice of India, if made unanimously, ought normally to be acceptedby the President. However, the President can return the recommendation forreconsideration for strong and cogent reasons. If the Chief Justice ofIndia (in consultation with the other judges and unanimously) reiteratesthe recommendation, it should be accepted. On the other hand, arecommendation made by the Chief Justice of India, which is initially notunanimous, may not be accepted by the President. As pointed out by JusticeVerma, the President occasionally failed to exercise this particularconstitutional power, for unknown reasons or due to a misunderstanding ofthe dicta laid down by this Court. The path taken by this Court was inconsonance with the views of the Constituent Assembly, in that in theappointment of judges, no constitutional functionary could act in anindividual capacity but the Chief Justice of India and other judges werewell qualified to give the correct advice to the President in a matter ofthis sort, and that ought to be accepted as long as it was unanimous.277. The debate on 24th May, 1949 discloses that a variety of options wereavailable before the Constituent Assembly with regard to the procedure forthe appointment of judges of the Supreme Court and the High Court.278. One of the available methods was to have the appointment of a judgeapproved 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 tothe Council of State then there is a possibility of canvassing in whichevent the issue of ability etc. of a person recommended for appointment asa judge will cease to be relevant. Mr. Sidhwa was of the opinion that thismethod would be the same as an election, although Prof. K.T. Shah thoughtotherwise. The proposal was also opposed by Mr. Biswanath Das (Orissa:General) who referred to this method of appointment as laying down a verydangerous principle.279. Another method of appointment discussed was to leave the processentirely to the President. Mr. Rohini Kumar Chaudhari (Assam: General)apparently supported that view and went on to suggest that the amendmentproposed by Dr. Ambedkar for deletion of consultation by the President withjudges of the Supreme Court and the High Court should be accepted. He wasof the opinion that the matter should be dealt with only by the Presidentwho could consult anybody, why only judges of the Supreme Court and theHigh Court. If the President knew a person to be of outstanding ability,it might not be necessary for him/her to consult anybody for making theappointment. This view was supported by Mr. M. Ananthasayanam Ayyangar(Madras: General) who also felt that it should be left to the President todecide whom to consult, if necessary.280. Yet another method of appointment was the British system whereappointments were made by the Crown without any kind of limitationwhatsoever, that is, by the political executive. A fourth method discussedwas that prevailing in the United States where appointments were made withthe concurrence of the Senate.281. Dr. Ambedkar was of the view that none of the methods proposed wassuitable for a variety of reasons and therefore a middle path was takenwhich required the President to consult the Chief Justice of India andother judges. Dr. Ambedkar felt that consultation with the Chief Justice ofIndia and other judges was necessary since they were ex hypothesi wellqualified to give advice in a matter of this nature.282. The Chief Justice of India and other judges are undoubtedly wellqualified to give proper advice with regard to the knowledge, ability,competence and suitability of a person to be appointed as a judge of a HighCourt of the Supreme Court. There is no reason, therefore, why the opinionof the Chief Justice of India taken along with the opinion of other judgesshould not be accepted by the executive, which is certainly not betterqualified to make an assessment in this regard. However, it is possiblethat the executive may be in possession of some information about someaspect of a particular person which may not be known to the Chief Justiceof India and as postulated in Sankalchand Himatlal Sheth and in the SecondJudges case the entire material should be made available to the ChiefJustice of India leaving it to him/her to decide whether the personrecommended for appointment meets the requirement for being appointed ajudge or not, despite any antecedents, peculiarities and angularities. Ifthe Chief Justice of India and others with whom he/she has discussed thematter conclude – unanimously - that the person ought to be appointed as ajudge of a High Court or the Supreme Court despite the antecedents,peculiarities and angularities, there can be no earthly reason why thatcollective view should not be accepted. The Chief Justice of India is in asense the captain of the ship as far as the judiciary is concerned andhis/her opinion (obtained collectively and unanimously) should be acceptedrather than the opinion of someone who is a passenger (though an importantone) in the ship. Dr. Ambedkar was of the confirmed view that thejudiciary should be independent and impartial and if the Chief Justice ofIndia does not have the final say in the matter then the judiciary is, in asense, under some other authority and therefore not independent to thatextent. This would be a rejection of the views of Dr. Ambedkar and anegation 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 that only the Chief Justice ofIndia (as an individual) should have the final say in the matter. There isnothing to suggest that the Constituent Assembly had any objection to anintegrated consultative participatory process as mentioned in the SecondJudges case and the Third Judges case or, as Dr. Rajeev Dhavan described itas ‘institutional participation’ in the matter of appointment of judges.The objection only was to one person (the President or the Chief Justice ofIndia) having a final say in the matter and that one person (the ChiefJustice of India) could possibly suffer from the same frailties as any oneof us and this is what Dr. Ambedkar sought to emphasize in his objection.It must be appreciated that when the debate took place (on 24th May, 1949)the appointment of judges was, due to the insertion of clause (5)a inArticle 62 of the Draft Constitution[477] considered to be theresponsibility of the President acting on his own and not through theCouncil of Ministers. That this theory was in the process of being given up(and was actually given up) is a different matter altogether.Alternatively, if the thinking at that time was that the President was toact only the advice of the Council of Ministers (and not as an individualhaving unfettered discretion) there can today possibly be no objection tothe Chief Justice of India acting institutionally on the views of his/hercolleagues and not, as desired by Dr. Ambedkar, as an individual. In otherwords, constitutionalism in India has undergone a positive transformationand the objection that Dr. Ambedkar had to any individual having the finalsay is rendered non-existent. In view of Samsher Singh the President cannotact in an individual capacity (except to a limited extent) and in view ofthe Second Judges case and the Third Judges case the Chief Justice of Indiacannot act in an individual capacity (except to a limited extent). TheConstitution being an organic and living document must be and has beeninterpreted positively and meaningfully.284. It is this philosophy, of the Constitution being an organic andliving document that ought to be positively and meaningfully interpreted,that is to be found in Samsher Singh. It is this constructiveinterpretation read with the CAD that made the advice of the Council ofMinisters binding on the President and not a ‘take it or leave it’ advice.Similarly, ‘consultation’ with the Chief Justice of India has to beunderstood 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 the Constitution has beentorpedoed by the interpretation given to Article 124(2) of the Constitutionin the Second Judges case. On the contrary, the constitutional convention,the constitutional scheme and the constitutional practice recognize theresponsibility of the judiciary in the appointment of judges and this wasmerely formalized in the Second Judges case. The theory of the separationof powers or the distribution of powers was maintained by the Second Judgescase rather than thrown overboard. To rephrase Justice Jackson of the USSupreme Court in Youngstown Sheet & Tube Co. v. Sawyer[478] theConstitution enjoins upon its branches ‘separateness but interdependence,autonomy but reciprocity’ and the Second Judges case has effectivelymaintained this equilibrium between the judiciary and the politicalexecutive, keeping the independence of the judiciary in mind, including theappointment of judges.286. Taking all these factors and the CAD into account, all of which werediscussed in the Second Judges case it is difficult to accept thecontention of the learned Attorney General that the Second Judges caserequires reconsideration on merits. While the various decisions referred todealt with the issue of reconsideration of an earlier decision of thisCourt, it is difficult to conclude that a decision rendered by 8 out of 9judges who decided the Second Judges case (Justice Punchhi also concurredon the primacy of the Chief Justice of India) ought to be rejected onlybecause there could be a change of opinion or a change of circumstances.The Second Judges case was accepted by the Attorney-General as mentioned inthe Third Judges case and also by the President who did not raise anyquestion about the interpretation given to Article 124(2) and Article217(1) of the Constitution. These constitutional authorities havingaccepted the law laid down in the Second Judges case, there is no reason toreconsider that decision on the parameters repeatedly laid down by theCourt. There are no exceptional circumstances, clear and compelling reasonsfor reconsideration, nor can it be said that the Second Judges case wasplainly erroneous or that it has a baneful effect on the public. On thecontrary, the decision restored the independence of the judiciary in realterms and eliminated the baneful effect of executive controls.287. It may also be mentioned that it was categorically laid down inSamsher Singh that the last word in matters pertaining to judiciary shouldbe with the Chief Justice of India. Samsher Singh was decided by a Bench ofseven learned judges and no one has said that that decision requiresreconsideration or that it does not lay down the correct law. The SecondJudges case merely reiterates the ‘last word’ view in a limited sense.288. The consensus of opinion across the board is quite clear that theSecond Judges case has been correctly decided and that the conventions andthe principles laid down therein flow from our constitutional history andthese do not need any reconsideration.289. This is not to say that the Second Judges case and the Third Judgescase do not leave any gaps. Perhaps better institutionalization and finetuning of the scheme laid down in these decisions is required, but nothingmore. But, in view of the submission made by the learned Attorney-Generalthat the only question for consideration is the constitutional validity ofthe 99th Constitution Amendment Act and the NJAC Act the issue ofreconsideration becomes academic and it is not at all necessary at presentto express any further view on this. By the 99th Constitution Amendment Actthe word ‘consultation’ has been deleted from Article 124(2) and Article217(1) of the Constitution. Therefore the question whether that word hasbeen correctly interpreted in the Second Judges case or not is todaycompletely academic. A new constitutional regime has been put in place andthat has to be tested as it is. It is only if the 99th ConstitutionAmendment Act is held as violating the basic structure of the Constitutionand is declared unconstitutional that the fine tuning and filling in thegaps in the Second Judges case and the Third Judges case would arise.290. Hence the only question now is whether the 99th ConstitutionAmendment Act violates the basic structure of the Constitution and todecide this question it is not necessary to reconsider the Second Judgescase or the Third Judges case. This is apart from the fact thatreconsideration is not warranted at law, even on merits.Rule of Law291. On the merits of the controversy before us, it is necessary toproceed on the basis that there is no doubt that the CAD, the Constitutionand judicial pronouncements guarantee the independence 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 apart of the independence of the judiciary, but not a predominant part.292. Before considering these issues, it is necessary to appreciate therole of the Rule of Law in our constitutional history. It has been said:‘Ultimately, it is the rule of law, not the judges, which provides thefoundation for personal freedom and responsible government.’[479]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 isabove you’ is acknowledged and implemented by the Judiciary. If the Rule ofLaw is a basic feature of our Constitution, so must be the independence ofthe judiciary since the ‘enforcement’ of the Rule of Law requires anindependent judiciary as its integral and critical component.294. Justice Mathew concluded in Indira Nehru Gandhi that according tosome judges constituting the majority in Kesavananda Bharati the Rule ofLaw is a basic structure of the Constitution.[480]295. In Samsher Singh the independence of the judiciary was held to be acardinal principle of the Constitution by Justice Krishna Iyer speaking forhimself and Justice Bhagwati.[481] That it is a part of the basic structureof the Constitution was unequivocally stated for the first time in theFirst Judges case by Justice Bhagwati,[482] by Justice A.C. Gupta[483] andby Justice V.D. Tulzapurkar.[484]296. In the Second Judges case Justice Pandian expressed the view thatindependence of the judiciary is ‘inextricably linked and connected withthe judicial process.’[485] This was also the view expressed by JusticeKuldip Singh who held that the independence of the judiciary is a basicfeature of the Constitution.[486] Justice J.S. Verma speaking for themajority and relying upon a few decisions held that the Rule of Law is abasic feature of the Constitution.[487] Similarly, Justice Punchhi(dissent) held that the Rule of Law is a basic feature of the Constitutionand the independence of the judiciary is its essential attribute:“It is said that Rule of Law is a basic feature the Constitution permeatingthe whole constitutional fabric. I agree. Independence of the judiciary isan essential attribute of Rule of Law, and is part of the basic structureof the Constitution. To this I also agree.”[488]297. In Sub-Committee on Judicial Accountability v. Union of India[489] itwas held by Justice B.C. Ray speaking for the majority that the Rule of Lawis a basic feature of the Constitution and an independent judiciary is anessential attribute thereof. It was said:“Before we discuss the merits of the arguments it is necessary to take aconspectus of the constitutional provisions concerning the judiciary andits independence. In interpreting the constitutional provisions in thisarea the Court should adopt a construction which strengthens thefoundational features and the basic structure of the Constitution. Rule oflaw is a basic feature of the Constitution which permeates the whole of theconstitutional fabric and is an integral part of the constitutionalstructure. Independence of the judiciary is an essential attribute of ruleof law.”[490]298. Similarly, in Kartar Singh v. State of Punjab[491] it was said byJustice K. Ramaswamy (dissent) that an independent judiciary is the mostessential attribute of the Rule of Law:“Independent judiciary is the most essential attribute of rule of law andis indispensible to sustain democracy. Independence and integrity of thejudiciary in a democratic system of Government is of the highest importanceand interest not only to the judges but to the people at large who seekjudicial redress against perceived legal injury or executiveexcesses.”[492]299. This view was reiterated by the learned judge in yet another dissent,that is, in Krishna Swami v. Union of India.[493]300. In Union of India v. Madras Bar Association[494] speaking for theCourt, Justice Raveendran held:“The rule of law has several facets, one of which is that disputes ofcitizens will be decided by Judges who are independent and impartial; andthat disputes as to legality of acts of the Government will be decided byJudges who are independent of the executive.”[495]301. Finally, in State of Tamil Nadu it was unanimously held by the Benchspeaking through Chief Justice Lodha that the independence of the judiciaryis fundamental to the Rule of Law:“Independence of courts from the executive and legislature is fundamentalto the rule of law and one of the basic tenets of Indian Constitution.Separation of judicial power is a significant constitutional principleunder the Constitution of India.”[496]302. The view that the Rule of Law and the independence of the judiciarygo hand in hand and are a part of the basic structure of the Constitutionhas been acknowledged in several other decisions as well and is no longerin dispute, nor was it disputed by any of the learned counsel before us. Itis, therefore, not necessary to cite a train of cases in this regard,except to conclude that the Rule of Law and the independence of thejudiciary are intertwined and inseparable and a part of the basic structureof our Constitution.Independence of the judiciary – its nature and content303. What are the attributes of an independent judiciary? It is impossibleto define them, except illustratively. At this stage, it is worth recallingthe words of Sir Ninian Stephen, a former Judge of the High Court ofAustralia who memorably said: ‘[An] independent judiciary, although aformidable protector of individual liberty, is at the same time a veryvulnerable institution, a fragile bastion indeed.’[497] It is this fragilebastion that needs protection to maintain its independence and if thisfragile bastion is subject to a challenge, constitutional protection isnecessary.304. The independence of the judiciary takes within its fold two broadconcepts: (1) Independence of an individual judge, that is, decisionalindependence; and (2) Independence of the judiciary as an institution or anorgan of the State, that is, functional independence. In a lecture onJudicial Independence, Lord Phillips[498] said: ‘In order to be impartial ajudge must be independent; personally independent, that is free of personalpressures and institutionally independent, that is free of pressure fromthe State.’305. As far as individual independence is concerned, the Constitutionprovides security of tenure of office till the age of 65 years for a judgeof the Supreme Court.[499] However, the judge may resign earlier or may beremoved by a process of impeachment on the ground of proved misbehavior orincapacity.[500] To give effect to this, Parliament has enacted the Judges(Inquiry) Act, 1968. The procedure for the impeachment of a judge is thata motion may be passed after an address by each House of Parliamentsupported by a majority of the total membership of that House and by amajority of not less than 2/3rd members of that House present and voting inthe same session. To maintain the integrity and independence of thejudiciary, the impeachment process is not a cake walk.306. A judge’s salary, privileges, allowances, leave of absence andpension and such other privileges, allowances and rights mentioned in theSecond Schedule of the Constitution are protected and will not be varied tohis/her disadvantage after appointment.[501] To give effect to this,Parliament has enacted the Supreme Court Judges (Conditions of Service)Act, 1958.307. The salary, allowances and pension payable to or in respect of ajudge of the Supreme Court is charged to the Consolidated Fund ofIndia.[502] The estimate of this expenditure may be discussed but shall notbe submitted to the vote of Parliament.[503]308. As far as this subject is concerned in respect of a judge of the HighCourt, there is an extensive reference in Sankalchand Sheth. Broadly, theconstitutional protections and provisions for a judge of the High Court arethe same as for a judge of the Supreme Court.309. A judge of the High Court has security of tenure till the age of 62years[504] and the removal process is the same as for a judge of theSupreme Court.[505] The salary, privileges, allowances, right of leave ofabsence and pension etc. are protected by Article 221 of the Constitution.While the salary and allowances are charged to the Consolidated Fund of theState,[506] the pension payable is charged to the Consolidated Fund ofIndia.[507] As in the case of the Supreme Court, the estimate of thisexpenditure may be discussed but shall not be submitted to the vote of theLegislative Assembly.[508] The conditions of service of a High Court judgeare governed by 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 judgeremains independent and is free to take a decision in accordance with lawunmindful of the consequences to his/her continuance as a judge. This doesnot mean that a judge may take whatever decision he/she desires to take.The parameters of decision making and discretion are circumscribed by theConstitution, the statute and the Rule of Law. This is the essence ofdecisional independence, not that judges can do as they please.311. In this context, Justice Anthony M. Kennedy of the US Supreme Courthad this to say before the United States Senate Committee on the Judiciary(Judicial Security and Independence) on 14th February, 2007:“Judicial independence is not conferred so judges can do as they please.Judicial independence is conferred so judges can do as they must. Ajudiciary with permanent tenure, with a sufficient degree of separationfrom other branches of government, and with the undoubted obligation toresist improper influence is essential to the Rule of Law as we have cometo understand that term.”[509]312. As far as decisional independence is concerned, a good example of theprotection is to be found in Anderson v. Gorrie[510] where it was said byLord Esher M.R.:“the question arises whether there can be an action against a judge of acourt of record for doing something within his jurisdiction, but doing itmaliciously and contrary to good faith. By the common law of England it isthe law that no such action will lie.”Explaining this, Lord Bridge of Harwich said in McC (A Minor), Re[511]:“The principle underlying this rule is clear. If one judge in a thousandacts dishonestly within his jurisdiction to the detriment of a party beforehim, it is less harmful to the health of society to leave that partywithout a remedy than that nine hundred and ninety nine honest judgesshould be harassed by vexatious litigation alleging malice in the exerciseof their proper jurisdiction.”313. As far as institutional independence is concerned, our Constitutionprovides for it as well. For the Supreme Court, institutional independenceis provided for in Article 129 which enables the institution to punish forcontempt of itself. A similar provision is made for the High Court inArticle 215. The law declared by the Supreme Court shall be binding on allcourts within the territory of India.[512] All authorities, civil andjudicial are obliged to act in aid of the Supreme Court.[513] The SupremeCourt is entitled to pass such decree or make such order as is necessaryfor doing complete justice in any cause or matter pending before it andsuch decree or order shall also be enforceable throughout the territory ofIndia.[514] Subject to a law made by Parliament, the Supreme Court isentitled to frame rules to regulate its practice and procedure.[515] TheChief Justice of India is empowered to appoint officers and ‘servants’ ofthe Supreme Court but their conditions of service shall be regulated byrules made by the Supreme Court (subject to approval by the President) orby law made by Parliament. [516] The administrative expenses of the SupremeCourt, including expenses related to its officers and ‘servants’ shall becharged upon the Consolidated Fund of India.[517]314. Significantly, no discussion shall take place in Parliament withrespect to the conduct of a judge of the Supreme Court or the High Court,except in proceedings for impeachment.[518] Similarly, the Legislature of aState shall not discuss the conduct of a judge of the Supreme Court or theHigh Court in the discharge of his or her duties.[519]315. In addition to the above, there are other general protectionsavailable to an individual judge or to the institution as such. ThroughArticle 50[520] which is a provision in Part IV of the Constitution(Granville Austin in ‘The Constitution: Cornerstone of a Nation’ describesPart III and Part IV of the Constitution as ‘the conscience of theConstitution’)[521] the judiciary shall be insulated from executiveinterference. Justice Krishna Iyer speaking for himself and Justice FazlAli pointed out in Sankalchand Sheth that:“Under the general law of civil liability (Tort) words spoken or written inthe discharge of his judicial duties by a Judge of the High Court areabsolutely privileged and no action for defamation can lie in respect ofsuch words. This absolute immunity is conferred on the Judges on the groundof public policy, namely, that they can thereby discharge their dutyfearlessly.”[522]316. Similarly, Section 3 of the Judges (Protection) Act, 1985 provides,inter alia, that no court shall entertain or continue any civil or criminalproceeding against any person who is or was a judge for any act, thing orword committed, done or spoken by him when, or in the course of, acting orpurporting to act in the discharge of his official or judicial duty orfunction. This is in addition to the protection given by Section 77 of theIndian Penal Code which provides that: ‘Nothing is an offence which is doneby a Judge when acting judicially in the exercise of any power which is, orwhich in good faith he believes to be, given to him by law.’317. In the overall conspectus and structure of the independence of thejudiciary, it was stated in the First Judges case by Justice D.A. Desaithat: ‘Independence of judiciary under the Constitution has to beinterpreted within the framework and the parameters of theConstitution.’[523] It may be added that the framework and parameters ofthe law are also required to be taken into consideration. Justice Bhagwatiput it quite succinctly when he said:“The concept of independence of the judiciary is not limited only toindependence from executive pressure or influence but it is a much widerconcept which takes within its sweep independence from many other pressuresand prejudices. It has many dimensions, namely, fearlessness of other powercentres, economic or political, and freedom from prejudices acquired andnourished by the class to which the Judges belong.”[524]318. Generally speaking, therefore, the independence of the judiciary ismanifested in the ability of a judge to take a decision independent of anyexternal (or internal) pressure or fear of any external (or internal)pressure and that is ‘decisional independence’. It is also manifested inthe ability of the institution to have ‘functional independence’. Acomprehensive and composite definition of ‘independence of the judiciary’is elusive but it is easy to perceive.319. The Constituent Assembly fully appreciated the necessity of having anindependent judiciary and perhaps devoted more time to discussing this thanany other issue. Granville Austin points out the following:“The subjects that loomed largest in the minds of Assembly members whenframing the Judicial provisions were the independence of the courts and twoclosely related issues, the powers of the Supreme Court and judicialreview. The Assembly went to great lengths to ensure that the courts wouldbe independent, devoting more hours of debate to this subject than toalmost any other aspect of the provisions. If the beacon of the judiciarywas to remain bright, the courts must be above reproach, free from coercionand from political influence.”[525]Separation between the judiciary and the executive320. Another facet of the discussion relating to the independence of thejudiciary can be resolved by considering Article 50 of theConstitution.[526] This Article was referred to in the Second Judges caseand, according to learned counsel for the petitioners, overlooked in theFirst Judges case. It was urged that that Article is of great importance inas much as the Constituent Assembly was quite explicit that there should bea separation between the executive and the judiciary. The learned Attorney-General submitted, on the other hand, that the separation postulated byArticle 50 of the Constitution was only limited to the public services ofthe State and not the judiciary as a whole.321. Article 50 was incorporated in the Constitution in the chapter onDirective Principles of State Policy at the instance of Dr. Ambedkar whomoved a proposal on 24th November, 1948 to insert Article 39A in the DraftConstitution.[527]322. Explaining the necessity of inserting Article 39A in the DraftConstitution, Dr. Ambedkar said that it had been the desire for a long timethat there should be a separation of the judiciary from the executive and ademand for this had been continuing ever since the Congress (party) wasfounded. The British Government, however, did not give any effect to thisdemand. Dr. Ambedkar moved for the insertion of Article 39A in the DraftConstitution in the following words:“I do not think it is necessary for me to make any very lengthy statementin support of the amendment which I have moved. It has been the desire ofthis country from long past that there should be separation of thejudiciary from the executive and the demand has been continued right fromthe time when the Congress was founded. Unfortunately, the BritishGovernment did not give effect to the resolutions of the Congress demandingthis particular principle being introduced into the administration of thecountry. We think that the time has come when this reform should becarried out. It is, of course, realized that there may be certaindifficulties in the carrying out of this reform; consequently thisamendment has taken into consideration two particular matters which may befound to be matters of difficulty. One is this: that we deliberately didnot make it a matter of fundamental principle, because if we had made it amatter of fundamental principle it would have become absolutely obligatoryinstantaneously on the passing of the Constitution to bring about theseparation of the judiciary and the executive. We have thereforedeliberately put this matter in the chapter dealing with directiveprinciples and there too we have provided that this reform shall be carriedout within three years, so that there is no room left for what might becalled procrastination in a matter of this kind. Sir, I move.”[528]323. Mr. B. Das (Orissa: General) opposed the amendment on the ground thatwhen the people were harassed by the British Government, the feeling wasthat no justice was given and that is why there was a demand for theseparation of the judiciary from the executive. After Independence thatsuspicion did not exist and therefore it was essential to examine whetherseparation was necessary.324. The debate continued the next day on 25th November, 1948 when, assoon as the Constituent Assembly met, Dr. Ambedkar moved an amendment forthe deletion of certain words from Article 39A of the Draft Constitution.As a result of this proposed amendment, Article 39A would read as follows:“The State shall take steps to separate the judiciary from the executive inthe public services of the State.”325. During the course of the debate on 25th November, 1948 a self-evidenttruth came into focus. It was pointed out by Pandit Jawaharlal Nehru(United Provinces: General) that the Constitution is expected to last along time and that it should not be rigid. As far as the ‘basic nature’ ofthe Constitution is concerned it must deal with fundamental aspects of thepolitical, social, economic and other spheres and not with the detailswhich are matters for legislation. It was stated in this context asfollows:“Coming to this present amendment, if I may again make some generalobservations with all respect to this House, it is this: that I have feltthat the dignity of a Constitution is not perhaps maintained sufficientlyif one goes into too great detail in that Constitution. A Constitution issomething which should last a long time, which is built on a strongfoundation, and which may of course be varied from time to time – it shouldnot be rigid – nevertheless, one should think of it as something which isgoing to last, which is not a transitory Constitution, a provisionalConstitution, a something which you are going to change from day to day, asomething which has provisions for the next year or the year after next andso on and so forth. It may be necessary to have certain transitoryprovisions. It will be necessary, because there is a change to have somesuch provisions, but so far as the basic nature of the Constitution isconcerned, it must deal with the fundamental aspects of the political, thesocial, the economic and other spheres, and not with the details which arematters for legislation. You will find that if you go into too greatdetail and mix up the really basic and fundamental things with theimportant but nevertheless secondary things, you bring the basic things tothe level of the secondary things too. You lose them in a forest ofdetail. The great trees that you should like to plant and wait for them togrow and to be seen are hidden in a forest of detail and smaller trees. Ihave felt that we are spending a great deal of time on undoubtedlyimportant matters, but nevertheless secondary matters – matters which arefor legislation, not for a Constitution. However, that is a generalobservation.”[529]326. The significance of the view expressed by Pandit Jawaharlal Nehru isthat the existence of the ‘basic nature’ of the Constitution was recognizedand it appears that this is what we call today as the basic structure orbasic features of the Constitution. Undoubtedly there was anacknowledgement of certain fundamental aspects of the Constitution but itwas not possible to go into details in respect of each and every one ofthem. 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 ruleof thumb to be applied to every area may be disadvantageous and difficultin regard to certain areas. On the one hand, that rule will really preventprogress in one area, and on the other hand, it may upset the apple-cart insome other area. Therefore, a certain flexibility is desirable.’[530]327. The views expressed by Dr. Bakshi Tek Chand (East Punjab: General)are extremely important in this regard. The Hon’ble Member gave a detailedhistorical background for the demand of separation of the executive and thejudiciary and expressed the view that as far back as in 1852 when publicopinion in Bengal began to express itself in an organized manner that thematter of separation was first mooted. In other words, the separation ofthe executive from the judiciary had been in demand for almost 100 years.328. Dr. Bakshi Tek Chand was of the view that with Independence, thenecessity of this reform had become greater. The Hon’ble Member citedthree illustrative instances of interference with the judiciary byMinisters of some Provinces and members of political parties in the fairadministration of justice. Dr. Bakshi Tek Chand gave these extremelytelling 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 theadvent of democracy and freedom, the necessity of this reform has becomeall the greater. Formerly it was only the district magistrate and a fewmembers of the bureaucratic Government from whom interference with thejudiciary was apprehended, but now, I am very sorry to say that even theMinisters in some provinces and members of political parties have begun tointerfere with the administration of justice. Those of you, who may bereading news paper reports of judicial decisions lately, must have beenstruck with this type of interference which has been under review in thevarious High Courts lately. In one province we found that in a case pendingin a Criminal Court, the Ministry sent for the record and passed an orderdirecting the trying Magistrate to stay proceedings in the case. This wassomething absolutely unheard of. The matter eventually went up to the HighCourt and the learned Chief Justice and another Judge had to pass verystrong remarks against such executive interference with the administrationof justiceIn another province a case was being tried against a member of theLegislative Assembly and a directive went from the District Magistrate tothe Magistrate trying the case not to proceed with it further and torelease the man. The Magistrate who was a member of the Judicial Serviceand 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 wentto the High Court and the Chief Justice of the Calcutta High Court madevery strong remarks about this matter.Again in the Punjab, a case has recently occurred in which a Judge of theHigh Court, Mr. Justice Achru Ram, heard a habeas corpus petition anddelivered a judgment of 164 pages at the conclusion of which he observedthat the action taken by the District Magistrate and the Superintendent ofPolice against a member of the Congress Party was mala fide and was theresult of a personal vendetta. These were his remarks.In these circumstances, I submit that with the change of circumstances andwith the advent of freedom and the introduction of democracy, it has becomeall the more necessary to bring about the separation of the judiciary fromthe executive at the earliest possible opportunity.”[531]329. The debate concluded on 25th November, 1948 with the ConstituentAssembly eventually accepting the insertion of Article 39A in the DraftConstitution. This is now Article 50 in our Constitution.330. The importance of the debate must be looked at not only from ahistorical perspective but also what was intended for the future by theConstituent Assembly. In the past there had been unabashed interference bythe executive in the administration of justice by the subordinate judiciaryand this definitely needed to be checked. In that sense, the debate on24th and 25th November, 1948 was a precursor to the debate on Article 103of the Draft Constitution held on 23rd and 24th May, 1949. By that time itwas becoming clear (if it was not already clear) to the ConstituentAssembly that there should be no interference by the executive in theadministration of justice and that it was not necessary to provide forevery detail in the Draft Constitution. That constitutional conventionsexisted prior to Independence were known, but that they were required to becontinued after Independence was of equal significance.331. With the need for avoiding details in the Constitution, the DraftConstitution did not specifically provide for the independence of thejudiciary other than the subordinate judiciary. If this is looked at quiteplainly, it would appear anachronistic to hold a view that Article 39A ofthe Draft Constitution required the subordinate judiciary to be independentand separate from the executive but it was not necessary for the superiorjudiciary to be independent or separate. Such an obvious anachronismcannot be attributed to the Constituent Assembly. One must, therefore,assume that either the superior judiciary was already independent (and thisneeded no iteration) or that if it was not independent then, like thesubordinate judiciary, it must be made independent, with the executive notbeing permitted to interfere in the administration of justice. Either way,separation between the judiciary and the executive with the intention ofhaving an independent judiciary was a desirable objective.332. No one can doubt and, indeed, even the learned Attorney-General didnot doubt that the independence of the judiciary is absolutely necessary.But, the independence of the judiciary is not an end in itself. ‘Instead,the aim is to secure an independent judiciary that will discharge itsfundamental responsibilities, which include a crucial role in upholding therule of law.’[532] In addition, the judiciary should clearly be separatefrom the executive.333. By way of digression, a word may also be said about the financialindependence of the judiciary. In a letter of 15th June, 2008 forwardingthe Report of the Task Force on ‘Judicial Impact Assessment’ it was pointedout by Justice M. Jagannadha Rao (Retired) to the Minister for Law andJustice that ‘the Planning Commission and Finance Commission must makeadequate provision in consultation with the Chief Justice of India, forrealization of the basic human rights of ‘access to justice’ and ‘speedyjustice’ both civil and criminal. The present allocation of 0.071%, 0.078%and 0.07% of the Plan outlay in the 9th, 10th and 11th Plan are whollyinsufficient.’ Financial independence is one area which is also critical tothe independence of the judiciary but is among the least discussed.Independence of the judiciary and the appointment process334. We must proceed on the basis that the independence of the judiciaryis vital to democracy and there ought to be a separation between theexecutive and the judiciary. The independence of the judiciary begins withthe appointment of a judge. Granville Austin says: ‘An independentjudiciary begins with who appoints what calibre of judges.’[533] It mustbe appreciated and acknowledged that methodological independence, namely,the recommendation and appointment of judges to a superior Court is animportant facet of the independence of the judiciary.[534] If a person ofdoubtful ability or integrity is appointed as a judge, there is aprobability of his/her succumbing to internal or external pressure anddelivering a tainted verdict. This will strike at the root of theindependence of the judiciary and destroy the faith of the common person infair justice delivery. Therefore, there is a great obligation andresponsibility on all constitutional functionaries, including the ChiefJustice of India and the President, to ensure that not only are deservingpersons appointed as judges, but that deserving persons are not deniedappointment.[535]335. Chief Justice Marshall in Marbury v. Madison observed that inrespect of the commissioning of all officers of the United States, theclauses in the Constitution and the laws of the United States ‘seem tocontemplate three distinct operations’, namely:“1. The nomination. This is the sole act of the president, and iscompletely voluntary.2. The appointment. This is also the act of the president, and is also avoluntary act, though it can only be performed by and with the advice andconsent of the senate. 3. The commission. To grant a commission to a person appointed, mightperhaps be deemed a duty enjoined by the constitution. “He shall,” saysthat instrument, “commission all the officers of the United States.”[536]336. Transposing this to the appointment of judges in our country, thefirst step is a recommendation (or nomination) of persons for appointmentas judges. Historically, the recommendation is made by the Chief Justice ofIndia for the appointment of a judge of the Supreme Court and by the ChiefJustice of a High Court for appointment of a judge to the High Court.Occasionally, the Chief Minister of a State also makes a recommendation,but that is required to be routed through the Chief Justice of the HighCourt. There is no instance of the President recommending any person forappointment as a judge of the Supreme Court.337. The second step is the appointment of a judge and this is possibleonly through a consultative participatory process between the President andthe Chief Justice of India. It is in this process that there has been someinterpretational disagreement, but the Second Judges case and the ThirdJudges case have laid that to rest with a shared primacy and responsibilitybetween the President and the Chief Justice of India. This has already beendiscussed above.338. The third step is the issuance of a warrant of appointment (orcommission). It is quite clear that the warrant of appointment can beissued only by the President. There is not and cannot be any dispute aboutthis. Under the circumstances it is clear that the executive function ofthe President remains intact, unlike what the learned Attorney-General saysand there is no scope for the recitation of the ‘judges appointingjudges’mantra.339. It is perhaps this simple three-step process that the ConstituentAssembly intended. But this got distorted over the years, thanks to theinterference by the political executive in the first and second steps.340. In a Report entitled ‘Judicial Independence: Law and Practice ofAppointments to the European Court of Human Rights’[537] the interplaybetween the Rule of Law, the independence of the judiciary and theappointment of judges is commented upon and in a reference to internationalstandards, it is said that the appointment of judges plays a key role insafeguarding the independence of the judiciary. This is what was said:“The independence of the judiciary is one of the cornerstones of the ruleof law. Rather than being elected by the people, judges derive theirauthority and legitimacy from their independence from political or otherinterference. It is clear from the existing international standards thatthe selection and appointment of judges plays a key role in thesafeguarding of judicial independence and ensuring the most competentindividuals are selected.”341. India is a part of the Commonwealth and The Commonwealth Principleson the accountability of and the relationship between the three branches ofgovernment[538] provide, inter alia, with regard to the appointment ofjudges, as follows:“An independent, impartial, honest and competent judiciary is integral toupholding the rule of law, engendering public confidence and dispensingjustice. The function of the judiciary is to interpret and apply nationalconstitutions and legislation, consistent with international human rightsconventions and international law, to the extent permitted by the domesticlaw of each Commonwealth country. To secure these aims: (a) Judicialappointments should be made on the basis of clearly defined criteria and bya publicly declared process. The process should ensure: equality ofopportunity for all who are eligible for judicial office; appointment onmerit; and that appropriate consideration is given to the need for theprogressive attainment of gender equity and the removal of other historicfactors of discrimination;”[539]342. Jack Straw was the Lord Chancellor in the United Kingdom from 2007 to2010. He delivered the 64th series of Hamlyn Lectures in 2012 titled‘Aspects of Law Reform – An Insider’s Perspective’. The 3rd lecture in thatseries was delivered by him on 4th December, 2012 on ‘JudicialAppointments’. In that lecture, he says:“The appointment of judges - by whom, according to what standards andprocess, and with what outcome – is of critical importance. To maintain ajudiciary that is independent, which makes good decisions, and in whom thepublic can continue to have confidence, we need to appoint the mostmeritorious candidates and secure a judiciary that is as reflective aspossible of the society it is serving.And we need to get it right first time, every time, because, once appointedto a full-time salaried position, judges may not be removed from officeother than in the most extreme of circumstances.”[540]343. Therefore, in the appointment of a judge, it is not only (negativelyexpressed) that a ‘wrong person’ should not be appointed but (positivelyexpressed) the best talent, amongst lawyers and judicial officers should beappointed as judges of the High Court and the best amongst the judges ofthe High Courts or amongst advocates or distinguished jurists should beappointed to the Supreme Court. It has been stated in the 14th Report ofthe LCI that the selection of judges is of pivotal importance to theprogress of the nation and that responsibility must be exercised with greatcare.344. In the Report on Judicial Independence: Law and Practice ofAppointments to the European Court of Human Rights, great emphasis was laidon the procedure for the appointment of judges and the criteria forappointment. It was said:“The issue of how judges are appointed is important in two respects. First,appointment procedures impact directly upon the independence andimpartiality of the judiciary. Since the legitimacy and credibility of anyjudicial institution depends upon public confidence in its independence, itis imperative that appointment procedures for judicial office conformto—and are seen to conform to—international standards on judicialindependence. It would be anomalous and unacceptable if the Court [EuropeanCourt of Human Rights] failed to meet the international human rightsstandards that it is charged with implementing, including the requirementthat cases are heard by an independent and impartial court of law.Second, without the effective implementation of ‘objective and transparentcriteria based on proper professional qualification,’ there is the veryreal possibility that the judges selected will not have the requisiteskills and abilities to discharge their mandate. Declining standards willultimately impact negatively on the standing of the Court [European Courtof Human Rights], as well as on the application and development of humanrights law on the international and (ultimately) national level.”345. In the First Judges case, the question of appointment of judges asbeing integral to the independence of the judiciary was not an issue butJustice Venkataramiah expressed the view that it is difficult to hold thatif the appointment of judges is left to the executive, it will impair theindependence of the judiciary. The learned judge was of the view that it isonly ‘after such appointment the executive should have no scope tointerfere with the work of a judge.’[541] This view is, with respect, fartoo narrow and constricted. However, Justice D.A. Desai held a differentview which was expressed in the following words:“Now, the independence of the judiciary can be fully safeguarded not bymerely conferring security on the Judges during their term of office but byensuring in addition that persons who are independent, upright and of thehighest character are appointed as Judges. Moreover, there is always thefear that appointments left to the absolute discretion of the appointingexecutive could be influenced by party considerations.”[542]346. In the Second Judges case Justice Pandian was quite explicit andexpressed the view that the selection and appointment of a proper and fitcandidate to the superior judiciary is inseparable from the independence ofthe judiciary and a vital condition in securing it.[543] Similarly, JusticeKuldip Singh also held that there cannot be an independent judiciary whenthe power of appointment of judges rests with the executive and that theindependence of the judiciary is ‘inextricably linked and connected withthe constitutional process of appointment of judges of the higherjudiciary.’[544] Justice Verma, speaking for the majority, expressed theview that all constitutional authorities involved in the process ofappointing judges of the superior courts ‘should be fully alive to theserious implications of their constitutional obligation and be zealous inits discharge in order to ensure that no doubtful appointment can bemade.’[545] The learned judge further said that the independence of thejudiciary can be safeguarded by preventing the influence of politicalconsideration in making appointment of judges to the superiorjudiciary.[546]347. There is, therefore, no doubt that the appointment of a judge to theSupreme Court or the High Court is an integral part of the independence ofthe 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 ofthe independence of the judiciary, it is but a small part and certainly nota predominant part. I would say that it is really the foundational part ofthe 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 bearing on both theintegrity and independence of the judges. Weak appointments lower thestatus of the judiciary in the eyes of the public and create a climate inwhich the necessary independence of the judiciary is likely to beundermined. Similarly, political appointments that are seen by the publicas not based on merit may arouse concern about the judge’s independence andimpartiality on the bench. The quality of judicial appointments dependsupon the process and standards applied by the appointing authorities, yetevery appointment system has its limitation. It is difficult to predictwhat sort of judge a man or woman will be and irreversible mistakes injudicial appointments are bound to occur, even when the method ofappointment is fair and efficient and the standards are high, as they arein England. Such errors in selection apply equally to appointing personswho were unfit for occupying a judicial office as well as failing toappoint a person who might have been a good judge.”[547]349. How do international conventions look at this issue? The BeijingStatement of Principles of the Independence of the Judiciary in the LAWASIARegion[548] provides, inter alia, as follows:“Independence of the Judiciary requires that; a) The judiciary shall decidematters before it in accordance with its impartial assessment of the factsand its understanding of the law without improper influences, direct orindirect, from any source; and b) The judiciary has jurisdiction, directlyor by way of review, over all issues of a justiciable nature.[549]To enable the judiciary to achieve its objectives and perform itsfunctions, it is essential that judges be chosen on the basis of provencompetence, integrity and independence.[550]The mode of appointment of judges must be such as will ensure theappointment of persons who are best qualified for judicial office. It mustprovide safeguards against improper influences being taken into account sothat only persons of competence, integrity and independence areappointed.”[551]This document was signed by Justice S.C. Agrawal of this Court representingChief Justice A. M. Ahmadi.350. The Bangalore Principles of Judicial Conduct, 2002 which lay down sixessential values for a judge (and which are accepted world-wide both incivil law and common law countries) would be totally unworkable if a personappointed as a judge, at the time of appointment, lacks basic competenceand independence.[552] Given all these considerations, it must be held andis held that the process for appointment and the actual appointment of ajudge to a High Court or the Supreme Court is a predominant part of theindependence of the judiciary and, therefore, an integral part of the basicstructure of the Constitution.351. Therefore, the procedure for the appointment of judges of the SupremeCourt or the High Courts can impact on the independence of the judiciaryand the basic structure of the Constitution.The recommendation process352. How can the President ensure that the most deserving persons areappointed as judges or that they are not denied appointment? This is thenub of the controversy before us and this is the problem that has vexed theexecutive, the judiciary, academia, the legal fraternity and civil societyover several decades. Since justice delivery is undoubtedly theresponsibility of the judiciary, therefore, the judiciary (symbolized as itwere by the Chief Justice of India) is obliged to ensure that only the mostdeserving persons are considered for appointment as judges.[553]353. The process of consideration of a person for appointment as a judgeis important both at a stage prior to the recommendation being made by theChief Justice of India in consultation with his/her colleagues,constituting a ‘collegium’ and also after the recommendation is sent by theChief Justice of India to the executive. At both stages, the process isparticipatory. In the pre-recommendation stage, it is a participatoryprocess involving the Chief Justice of India and his/her colleagues,constituting the collegium.[554] It is at this stage that the Chief Justiceof India takes the opinion of the other judges and anybody else, if deemednecessary. This stage also includes the participation of the executivebecause it is at this stage that the Chief Justice of India receives inputsfrom the executive about the frailties, if any, of a person who mayeventually be appointed a judge. In the post-recommendation stage also theprocess is participatory but primarily with the executive in the event theexecutive has some objection to the appointment of a particular person forstrong and cogent reasons to be recorded in writing.[555] Therefore, when aperson is considered for appointment as a judge, there is extensive andintensive participatory consultation within the judiciary before the ChiefJustice of India actually recommends a person for appointment as a judge;and after the recommendation is made, there is consultation between theexecutive and the judiciary before the process is carried further. What canbe a more meaningful consultation postulated by Article 124(2) of theConstitution?354. If a person is not recommended for appointment by the Chief Justiceof India or the Chief Justice of a High Court, the chapter of his/herappointment closes at that stage. And, if there is no difference of opinionbetween the constitutional functionaries about the suitability of a personfor appointment then, of course, there are no hurdles to the issuance of awarrant of appointment.355. The difficulty in considering and accepting a recommendation arisesonly if there is a difference of opinion during consultations between theexecutive and the judiciary. The Second Judges case effectively resolvesthis controversy.356. At the pre-recommendation stage, it is quite possible that theexecutive is in possession of material regarding some personal trait orweakness of character of a lawyer or a judge that is not known to the ChiefJustice of India or the Chief Justice of the High Court and which maypotentially disentitle that person from being appointed a judge. It is thenfor the executive, as a consultant, to bring this information or materialto the notice of the Chief Justice of India.[556] Since the judiciary hasthe responsibility of recommending an appropriate candidate for appointmentas a judge, primacy is accorded to the view of the judiciary (symbolized bythe view of the Chief Justice of India) that will weigh and objectivelyconsider the material or information and take a final decision on thedesirability of the appointment.[557] The Chief Justice of India may, forgood reason, accept the view of the executive or may, also for good reason,not accept the view of the executive. It is in this sense that‘consultation’ occurring in Article 124(2) and Article 217(1) of theConstitution has to be understood. Primacy to the judiciary is accordedonly to this limited extent, but subject to a proviso which will bediscussed a little later.357. Why is it that limited primacy has been accorded to the judiciary?That the judiciary is the best suited to take a decision whether a personshould be appointed a judge or not is implicit in Article 124(2) andArticle 217(1) of the Constitution. In Article 124(2) of the Constitution,the President is mandated to consult the Chief Justice of India and ‘suchof the Judges of the Supreme Court and of the High Courts in the States asthe President may deem necessary.’ That the President may choose to consulteminent persons from the legal fraternity or civil society is anothermatter, but the President is not required to do so. One of the possiblereasons for this could be that the Constitution framers were of the opinionthat ultimately what is important is the opinion of judges and notnecessarily of others. Similarly, for the appointment of a judge of theHigh Court under Article 217(1) of the Constitution, the President isrequired to consult the Chief Justice of India, the Governor of the Stateand the Chief Justice of the High Court – again not anybody else from thelegal fraternity or civil society.358. Similarly, limited primacy is accorded to the political executive. Inthe event the judiciary does not make a unanimous recommendation for theappointment of a judge of the Supreme Court or the High Courts, thePresident is entitled to turn down the recommendation. But if therecommendation is unanimous but returned for reconsideration by thePresident and thereafter unanimously reiterated by the judiciary, then theCouncil of Ministers is bound by the decision of the judiciary and mustadvise the President accordingly.359. Since the Constitution is a flexible document, neither the Presidentnor the Chief Justice of India is precluded from taking the advice of anyperson, lay or professional. In fact, Justice Verma stated in an interviewin this regard as follows:“Can you throw light on how, during your tenure as the CJI, appointmentstook place?For every Supreme Court appointment, I consulted senior lawyers like FaliS. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers.I used to consult even lawyers belonging to the middle level. Similarconsultation took place in the case of High Courts. I recorded details ofevery consultation. I wish all my correspondence is made public. After theappointment, why should it be secret? If there is a good reason to appointthe Judges, then at least the doubts people cast on them even now will notbe there. And if there is a good reason why they should not have beenappointed, then it would expose the persons who were responsible for theirappointment.”[558] 360. It is this pragmatic interpretation of the Constitution thatwas postulated by the Constituent Assembly, which did not feel thenecessity of filling up every detail in the document, as indeed it was notpossible to do so.361. Leaving aside the discussion on the textual interpretation of theconstitutional provisions and the Constituent Assembly debates, aconstitutional convention has evolved over the last more than seven decadesof accepting the opinion of the Chief Justice in the appointment of aperson as a judge of a superior Court. This constitutional convention hasexisted, if not from the days of the Government of India Act, 1919 thencertainly from the days of the Government of India Act, 1935. Thisconstitutional convention has been exhaustively dealt with by JusticeKuldip Singh in the Second Judges case and it was concluded that aconstitutional convention is as binding as constitutional law.[559] In anyevent, there is no cogent reason to discard a constitutional convention ifit is working well. At this stage, it is useful to recall the comment ofChief Justice Beg in State of Rajasthan v. Union of India[560] that: ‘…constitutional practice and convention become so interlinked with orattached to constitutional provisions and are often so important and vitalfor grasping the real purpose and function of constitutional provisionsthat the two cannot often be viewed apart.’ This is precisely what hashappened in the present case where constitutional conventions and practicesare so interlinked to the constitutional provisions that they are difficultto disassemble.362. It is this constitutional interpretation and constitutionalconvention that results in binding the recommendation of the Chief Justiceof India on the executive that is objected to by the learned Attorney-General as being contrary to the Constitution as framed and it is this thatis sought to be ‘corrected’ by the 99th Constitution Amendment Act.363. The issue may be looked at from yet another angle. Assuming, theexecutive rejects the recommendation of the Chief Justice of India evenafter its unanimous reiteration, what is the solution to the impasse thatis created? The answer is to be found in Samsher Singh and reiterated inSankalchand Sheth. It was held in Samsher Singh that in such an event, thedecision of the executive is open to judicial scrutiny. It was said:“In all conceivable cases consultation with that highest dignitary ofIndian justice will and should be accepted by the Government of India andthe Court will have an opportunity to examine if any other extraneouscircumstances have entered into the verdict of the Minister, if he departsfrom the counsel given by the Chief Justice of India.”[561]This view was reiterated in Sankalchand Sheth.[562] Of course, it isanother matter that no one has a right to be appointed as a judge, butcertainly if the unanimous recommendation of the judiciary through theChief Justice of India is not accepted by the President, if nothing else,at least the record will be put straight and the possible damage to thedignity, reputation and honour of the person who was recommended by theChief Justice of India will be restored, at least to some extent. 364.But is judicial review necessarily the only answer to a problem of thisnature? Should the executive and the judiciary ever be on a collisioncourse in the appointment of a judge? Not only did Dr. Ambedkar think thatsuch a situation would not occur, he never visualized it. Dr. Ambedkar madeprovision for virtually every contingency, except a stalemate or deadlocksituation - he never imagined that such an eventuality would ever arise.365. That there would be no difference or little difference or amanageable difference of opinion between the President and the ChiefJustice of India or that the judiciary should have a final say in thematter so as not to make the consultation process a mere formality, isquite apparent from the fact that the Constituent Assembly deliberatelydrew a distinction between the appointment by the President of a judge ofthe Supreme Court and a judge of the High Court (on the one hand) and theappointment by the President of other constitutional authorities. For theappointment of a judge, it is mandated in the Constitution that thePresident must consult the Chief Justice of India. However, to appoint theComptroller and Auditor General under Article 148 of the Constitution (forexample), the President is under no such obligation to consult anybody eventhough the position is one of vital importance. Dr. Ambedkar had said inthis regard:“I cannot say I am very happy about the position which the DraftConstitution, including the amendments which have been moved to thearticles relating to the Auditor-General in this House, assigns to him.Personally speaking for myself, I am of opinion that this dignitary orofficer is probably the most important officer in the Constitution ofIndia. He is the one man who is going to see that the expenses voted byParliament are not exceeded, or varied from what has been laid down byParliament in what is called the Appropriation Act. If this functionary isto carry out the duties - and his duties, I submit, are far more importantthan the duties even of the judiciary - he should have been certainly asindependent as the Judiciary. But, comparing the articles about the SupremeCourt and the articles relating to the Auditor-General, I cannot helpsaying that we have not given him the same independence which we have givento the Judiciary, although I personally feel that he ought to have fargreater independence than the Judiciary itself.”[563]Similarly, the appointment of the Chief Election Commissioner and theElection Commissioners under Article 324 of the Constitution does notrequire the President to consult anybody, even though free and fairelections are undoubtedly vital to our democracy. Since the consultationprovision was incorporated only for the appointment of judges, surely, theConstituent Assembly had good reasons for making this distinction. JusticeKhehar has referred to other Presidential appointments in his draftjudgment and it is not necessary to repeat them. What isimportant is the ‘message’ sought to be conveyed by the ConstituentAssembly and the sanctity given to a recommendation by the Chief Justice ofIndia for the appointment of a judge of the Supreme Court or the HighCourt.366. It is trite that the Constitution is a living document.[564] Keepingthis in mind, could it be said that a strained interpretation has beengiven to Article 124(2) and Article 217(1) of the Constitution particularlywhen the substitution of ‘consultation’ with ‘concurrence’ in the draft ofArticle 124 was discussed in the Constituent Assembly and notaccepted?[565] Definitely not, particularly if one looks at the context inwhich ‘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 inthe best interests of the judiciary.367. But, as mentioned earlier, it is not necessary to dwell at lengthupon the correctness or otherwise of the procedure for the appointment of ajudge as laid down in the Second Judges case and the Third Judges case. Thequestion really is whether the change in the procedure of appointment ofjudges violates the basic structure of the Constitution. Can the Judiciarybe independent if the appointment process is in the hands of the NationalJudicial Appointments Commission?Amendment of the Constitution through Article 368368. Proceeding on the basis, as we should, that the independence of thejudiciary is a part of the basic structure of the Constitution, and thatthe appointment of a judge to the Supreme Court or a High Court is anintegral and foundational part of the independence of the judiciary, thequestion that arises is to what extent, if at all, can the appointmentprocess be tinkered with by Parliament.369. Article 368 of the Constitution provides for the ‘Power of Parliamentto amend the Constitution and procedure therefor’. While the power is vast,empowering Parliament to add, vary or repeal any provision of theConstitution, the breadth of that power has inherent limitations asexplained in Kesavananda Bharati which is that the basic structure of theConstitution cannot be altered. What constitutes the basic structure of theConstitution has been considered in several decisions of this Court anddemocracy (for example) or free and fair elections or judicial review oflegislative action or separation (or distribution) of powers between theLegislature, the Executive and the Judiciary have all been held to be apart of the basic structure of the Constitution. There is no doubt, and noone has disputed it, that the independence of the judiciary is also a partof the basic structure of the Constitution.370. The constitutional requirement for amending the Constitution is: (a)The amendment may be initiated only by the introduction of a Bill forthe purpose;(b) The Bill may be moved in either House of Parliament; (c) The Bill oughtto be passed in each House by a majority of the total membership of thatHouse and by a majority of not less than two-thirds of the members of thatHouse present and voting; (d) The Bill shall be presented to the Presidentwho shall give his assent to the Bill and thereupon the Constitution shallstand amended in accordance with the terms of that Bill.371. There is a proviso to Article 368 of the Constitution and for thepresent purposes, the further requirement is that ‘if such amendment seeksto make any change’ in Chapter IV of Part V (The Union Judiciary) andChapter V of Part VI (The High Courts in the States) the amendment ‘shallalso require to be ratified by the Legislatures of the States by resolutionto that effect passed by those Legislatures before the Bill makingprovision for such amendment is presented to the President for assent.’372. As far the Constitution (One Hundred and Twenty-first Amendment)Bill, 2014 is concerned, there is no doubt or dispute that the procedurementioned above was followed and that it received the assent of thePresident on 31st December, 2014. To that extent the Constitution (Ninety-ninth) Amendment Act, 2014 is a procedurally valid legislation.Limitations to amending the Constitution373. To appreciate the inherent limitations placed on Parliament withregard to an amendment to the Constitution, it is necessary to consider theviews constituting the majority in Kesavananda Bharati. In that case, thequestion before this Court (as framed by Chief Justice Sikri) was: What isthe extent of the amending power conferred by Article 368 of theConstitution, apart from Article 13(2) on Parliament?374. The learned Chief Justice noted that the word ‘amendment’ has notbeen defined in the Constitution. In some provisions of the Constitution ithas a narrow meaning, while in other provisions it has an expansivemeaning. This view was expressed by Justice Shelat and Justice Grover aswell, who observed that the words ‘amendment’ and ‘amend’ have been used toconvey different meanings in different provisions of the Constitution. Insome Articles these words have a narrow meaning while in others the meaningis much larger or broader. The word is not one of precise import and hasnot been used in different provisions of the Constitution to convey thesame meaning. This is of some significance since it is on this basis thatthis Court referred to the CAD to interpret the words ‘amendment’ and‘amend’.375. On a reading of various provisions of the Constitution the learnedChief Justice concluded that the expression ‘amendment of thisConstitution’ occurring in Article 368 thereof would mean any addition orchange in any provision of the Constitution ‘within the broad contours ofthe Preamble and the Constitution to carry out the objectives in thePreamble and the directive principles. Applied to fundamental rights, itwould mean that while fundamental rights cannot be abrogated, reasonableabridgments of fundamental rights can be effected in the publicinterest.’[566] In this context, the learned Chief Justice referred to theUniversal Declaration of Human Rights to conclude that certain rights ofindividuals are inalienable.[567]376. The learned Chief Justice concluded by holding, inter alia:“The expression “amendment of this Constitution” does not enable Parliamentto abrogate or take away fundamental rights or to completely change thefundamental features of the Constitution so as to destroy its identity.Within these limits Parliament can amend every article.”[568]377. Justice Shelat and Justice Grover looked at the text of Article 368as it stood prior to its amendment by the 24th Constitution Amendment Actand observed that there is intrinsic evidence to suggest that the amendingpower of Parliament is limited. However widely worded the power might be,it cannot be used to render the Constitution to lose its character ornature or identity and it has to be exercised within the framework of theConstitution. It was observed that an unlimited power of amendment cannotbe conducive to the survival of the Constitution. On this basis, it wasconcluded that:“The meaning of the words “amendment of this Constitution” as used inArticle 368 must be such which accords with the true intention of theConstitution-makers as ascertainable from the historical background, thePreamble, the entire scheme of the Constitution, its structure andframework and the intrinsic evidence in various articles including Article368. It is neither possible to give it a narrow meaning nor can such a widemeaning be given which can enable the amending body to change substantiallyor entirely the structure and identity of the Constitution.”[569]378. Justice Hegde and Justice Mukherjea observed that Article 368 cannotbe interpreted in a narrow and pedantic manner but must be given a broadand liberal interpretation. It was observed that the word ‘amendment’ hasno precise meaning and that it is a ‘colourless’ word. In fact, the words‘amendment’ and ‘amend’ have been used in the Constitution in differentplaces with different connotations. Notwithstanding this, the learnedjudges were of the view that the meaning of these expressions cannot be asexpansive as to enable Parliament to change the ‘personality’ of theConstitution since its scheme and structure proceed ‘on the basis thatthere are certain basic features which are expected to be permanent.’Therefore, the amending power under Article 368 of the Constitution issubject to implied limitations.379. Having considered all these factors, the learned judges concludedthat:“On a careful consideration of the various aspects of the case, we areconvinced that the Parliament has no power to abrogate or emasculate thebasic elements or fundamental features of the Constitution such as thesovereignty of India, the democratic character of our polity, the unity ofthe country, the essential features of the individual freedoms secured tothe citizens. Nor has the Parliament the power to revoke the mandate tobuild a welfare State and egalitarian society. These limitations are onlyillustrative and not exhaustive. Despite these limitations, however, therecan be no question that the amending power is a wide power and it reachesevery Article and every part of the Constitution. That power can be used toreshape the Constitution to fulfil the obligation imposed on the State. Itcan also be used to reshape the Constitution within the limits mentionedearlier, to make it an effective instrument for social good. We are unableto agree with the contention that in order to build a welfare State, it isnecessary to destroy some of the human freedoms. That, at any rate is notthe perspective of our Constitution.”[570]380. Justice Khanna dwelt on the basic structure of the Constitution andexpressed the view that ‘amendment’ postulates the survival of the ‘old’Constitution without loss of its identity and the retention of the basicstructure 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 ofchanging conditions, it is not permissible to touch the foundation or toalter the basic institutional pattern. The words “amendment of theConstitution” with all their wide sweep and amplitude cannot have theeffect of destroying or abrogating the basic structure or framework of theConstitution.”381. Thereafter, Justice Khanna travelled much further than necessary andheld that as long as the basic structure and framework of the Constitutionis retained, the plenary power of amendment ‘would include within itselfthe power to add, alter or repeal the various articles including thoserelating to fundamental rights.’ The rationale for this was given a littlelater in the judgment in the following words:“The word “amendment” in Article 368 must carry the same meaning whetherthe amendment relates to taking away or abridging fundamental rights inPart III of the Constitution or whether it pertains to some other provisionoutside Part III of the Constitution. No serious objection is taken torepeal, addition or alteration of provisions of the Constitution other thanthose in Part III under the power of amendment conferred by Article 368.The same approach, in my opinion, should hold good when we deal withamendment relating to fundamental rights contained in Part III of theConstitution. It would be impermissible to differentiate between scope andwidth of power of amendment when it deals with fundamental right, and thescope and width of that power when it deals with provisions not concernedwith fundamental rights.”[571]382. The conclusion arrived at by Justice Khanna is stated by the learnedjudge in the following words:“The power of amendment under Article 368 does not include the power toabrogate the Constitution nor does it include the power to alter the basicstructure or framework of the Constitution. Subject to the retention of thebasic structure or framework of the Constitution, the power of amendment isplenary and includes within itself the power to amend the various articlesof the Constitution, including those relating to fundamental rights as wellas those which may be said to relate to essential features. No part of afundamental right can claim immunity from amendatory process by beingdescribed as the essence, or core of that right. The power of amendmentwould also include within itself the power to add, alter or repeal thevarious articles.”[572]383. It may be mentioned en passant that the aforesaid view expressed byJustice Khanna generated much controversy. That was adverted to by thelearned judge in Indira Nehru Gandhi and it was clarified in paragraphs 251and 252 of the Report that the ‘offending’ passages were in the context ofthe extent of the amending power and not in the context of the basicstructure of the Constitution. The learned judge clarified that fundamentalrights were a part of the basic structure of the Constitution but the rightto property was not.[573]384. Simplistically put, the sum and substance of the decision inKesavananda Bharati is that it recognized that the Constitution has a basicstructure and that the basic structure of the Constitution is unalterable.Perhaps to avoid any doubts and since as many as nine judgments weredelivered by the thirteen judges constituting the Bench, a summary of theconclusions was prepared. This summary was signed by nine of the thirteenjudges. Among the nine signatories were two learned judges who were in theminority. One of the conclusions agreed upon by the nine learned judges whosigned the summary was: ‘Article 368 does not enable Parliament to alterthe basic structure or framework of the Constitution.’Judicial review of an amendment to the Constitution385. In Indira Nehru Gandhi it was held that an amendment to theConstitution can be challenged only on the ground of violation of the basicstructure, while a statute cannot be so challenged. A statute can bechallenged only if it is passed by a Legislature beyond its legislativecompetence or if it offends Article 13 of the Constitution.[574]“The constitutional amendments may, on the ratio of the Fundamental Rightscase,[575] be tested on the anvil of basic structure. But apart from theprinciple that a case is only an authority for what it decides, it does notlogically follow from the majority judgment in the Fundamental Rights casethat ordinary legislation must also answer the same test as aconstitutional amendment. Ordinary laws have to answer two tests for theirvalidity: (1) The law must be within the legislative competence of thelegislature as defined and specified in Chapter I, Part XI of theConstitution, and (2) it must not offend against the provisions of Article13(1) and (2) of the Constitution. “Basic structure”, by the majorityjudgment, is not a part of the fundamental rights nor indeed a provision ofthe Constitution. The theory of basic structure is woven out of theconspectus of the[pic]Constitution and the amending power is subjected toit because it is a constituent power. “The power to amend the fundamentalinstrument cannot carry with it the power to destroy its essential features— this, in brief, is the arch of the theory of basic structure. It iswholly out of place in matters relating to the validity of ordinary lawsmade under the Constitution.”386. A similar view was taken in State of Karnataka v. Union of India[576]wherein the above passage from Indira Nehru Gandhi was quoted withapproval. It was said by Justice Untwalia in a concurring judgment forhimself, Justice Shinghal and Justice Jaswant Singh:“Mr. Sinha also contended that an ordinary law cannot go against the basicscheme or the fundamental backbone of the Centre-State relationship asenshrined in the Constitution. He put his argument in this respect in avery ingenious way because he felt difficulty in placing it in a directmanner by saying that an ordinary law cannot violate the basic structure ofthe Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj Narainsuch an argument was expressly rejected by this Court. We may rest contentby referring to a passage from the judgment of our learned brotherChandrachud, J. which runs thus………..”387. In Kuldip Nayar v. Union of India[577] a Constitution Benchreiterated the above view in the following words:“The basic structure theory imposes limitation on the power of Parliamentto amend the Constitution. An amendment to the Constitution under Article368 could be challenged on the ground of violation of the basic structureof the Constitution. An ordinary legislation cannot be so challenged. Thechallenge to a law made, within its legislative competence, by Parliamenton the ground of violation of the basic structure of the Constitution isthus not available to the petitioners.”388. Finally, in Ashoka Kumar Thakur v. Union of India[578] it was heldthat a law can be challenged if it violates a provision of the Constitutionbut an amendment to the Constitution can be challenged only if it violatesa basic feature of the Constitution which is a part of its basic structure.It was held:“For determining whether a particular feature of the Constitution is partof the basic structure or not, it has to be examined in each individualcase keeping in mind the scheme of the Constitution, its objects andpurpose and the integrity of the Constitution as a fundamental instrumentfor the country’s governance. It may be noticed that it is not open tochallenge the ordinary legislations on the basis of the basic structureprinciple. State legislation can be challenged on the question whether itis violative of the provisions of the Constitution. But as regardsconstitutional amendments, if any challenge is made on the basis of basicstructure, it has to be examined based on the basic features of theConstitution.”389. A different opinion was expressed in Madras Bar Association v. Unionof India[579] wherein it was held that the view that an amendment to theConstitution can be challenged on the ground of violation of the basicstructure of the Constitution is made applicable to legislation also. Thiswas assumed to be a logical extension of a principle. It was held:“This Court has repeatedly held that an amendment to the provisions of theConstitution would not be sustainable if it violated the “basic structure”of the Constitution, even though the amendment had been carried out byfollowing the procedure contemplated under “Part XI” of the Constitution.This leads to the determination that the “basic structure” is inviolable.In our view, the same would apply to all other legislations (other thanamendments to the Constitution) as well, even though the legislation hadbeen enacted by following the prescribed procedure, and was within thedomain of the enacting legislature, any infringement to the “basicstructure” would be unacceptable.”390. For the purposes of the present discussion, I would prefer to followthe view expressed by a Bench of seven learned judges in State of Karnatakav. Union of India that it is only an amendment of the Constitution that canbe challenged on the ground that it violates the basic structure of theConstitution – a statute cannot be challenged on the ground that itviolates the basic structure of the Constitution. [The only exception tothis perhaps could be a statute placed in the Ninth Schedule of theConstitution]. The principles for challenging the constitutionality of astatute are quite different.Challenge to the 99th Constitution Amendment Act – the preliminaries1 (a) Limitations to the challenge391. The first submission made by the learned Attorney-General forupholding the constitutionality of the 99th Constitution Amendment Act wason the basis of Kesavananda Bharati. It was submitted that a ConstitutionAmendment Act can be challenged as violating the basic structure of theConstitution within limited parameters, that is, only if it ‘emasculates’the Constitution, or ‘abrogates’ it or completely changes its fundamentalfeatures so as to destroy its identity or personality or shakes the pillarson which it rests. While accepting that the independence of the judiciaryis one such pillar, it was submitted that a change in the method andprocedure in the appointment of a judge of the Supreme Court or a HighCourt does not emasculate, abrogate or shake the foundations or the pillarsof the independence of the judiciary. Consequently the 99th ConstitutionAmendment Act does not fall foul of the basic structure of theConstitution.392. This argument fails to appreciate that a majority of the learnedjudges constituting the Bench that decided Kesavananda Bharati were of theopinion that it is enough to declare a constitutional amendment asviolating the basic structure if it alters the basic structure.Undoubtedly, some of the learned judges have used very strong words in thecourse of their judgment – emasculate, destroy, abrogate, and substantiallychange the identity etc. but when it came to stating what is the lawactually laid down, the majority decided that ‘Article 368 does not enableParliament to alter the basic structure or framework of theConstitution.’[580]393. This was reiterated and explained by Justice Khanna in Indira NehruGandhi. The words ‘destroy’ and ‘abrogate’ etc. were used with reference tothe words ‘amendment’ and ‘amendment of the Constitution’ which is to saythat ‘amendment’ and ‘amendment of the Constitution’ cannot be interpretedexpansively as meaning ‘destroy’ or ‘abrogate’ etc. but have a limitedmeaning. The words ‘destroy’ and ‘abrogate’ etc. were not used in thecontext of destroying or abrogating the basic structure of theConstitution. The learned judge clearly said that ‘the power of amendmentunder Article 368 [of the Constitution] does not enable the Parliament toalter the basic structure of [or] framework of the Constitution….’ In fact,this was the precise submission of learned counsel for the electionpetitioner, namely, that the constitutional amendment ‘affects the basicstructure or framework of the Constitution and is, therefore, beyond theamending power under Article 368 [of the Constitution].’[581] The learnedjudge explained this crucial distinction in the following words:“The proposition that the power of amendment under Article 368 does notenable Parliament to alter the basic structure of framework of theConstitution was laid down by this Court by a majority of 7 to 6 in thecase of His Holiness Kesavananda Bharati v. State of Kerala. Apart fromother reasons which were given in some of the judgments of the learnedJudges who constituted the majority, the majority dealt with theconnotation of the word “amendment”. It was held that the words “amendmentof the Constitution” in Article 368 could not have the effect of destroyingor abrogating the basic structure of the Constitution. Some of us who wereparties to that case took a different view and came to the conclusion thatthe words “amendment of the Constitution” in Article 368 did not admit ofany limitation. Those of us who were in the minority in Kesavananda casemay still hold the same view as was given expression to in that case. Forthe purpose of the present case, we shall have to proceed in accordancewith the law as laid down by the majority in that case.”[582]394. While dealing with the constitutional validity of Clause (4) ofArticle 329-A of the Constitution as introduced by the 39th ConstitutionAmendment Act, Justice Khanna expressed the view that if a principle,imperative rule or postulate of the basic structure of the Constitution isviolated, then the constitutional amendment loses its immunity from attack.“The question to be decided is that if the impugned amendment of theConstitution violates a principle which is part of the basic structure ofthe Constitution, can it enjoy immunity from an attack on its validitybecause of the fact that for the future, the basic structure of theConstitution remains unaffected. The answer to the above question, in myopinion, should be in the negative. What has to be seen in such a matter iswhether the amendment contravenes or runs counter to an imperative rule orpostulate which is an integral part of the basic structure of theConstitution. If so, it would be an impermissible amendment and it wouldmake no difference whether it relates to one case or a large number ofcases. If an amendment striking at the basic structure of the Constitutionis not permissible, it would not acquire validity by being related only toone case. To accede to the argument advanced in support of the validity ofthe amendment would be tantamount to holding that even though it is notpermissible to change the basic structure of the Constitution, whenever theauthority concerned deems it proper to make such an amendment, it can do soand circumvent the bar to the making of such an amendment by confining itto one case. What is prohibited cannot become permissible because of itsbeing confined to one matter.”[583]In conclusion it was said by Justice Khanna as follows:“As a result of the above, I strike down clause (4) of Article 329-A on theground that it violates the principle of free and fair elections which isan essential postulate of democracy and which in its turn is a part of thebasic structure of the Constitution inasmuch as (1) it abolishes the forumwithout providing for another forum for going into the dispute relating tothe validity of the election of the appellant and further prescribes thatthe said dispute shall not be governed by any election law and that thevalidity of the said election shall be absolute and not consequently beliable to be assailed, and (2) it extinguishes both the right and theremedy to challenge the validity of the aforesaid election.”[584]395. Similarly, Justice K.K. Mathew who was in the minority in KesavanandaBharati expressed the view (in Indira Nehru Gandhi) that the majoritydecision was that by an amendment, the basic structure of the Constitutioncannot be damaged or destroyed, and the learned judge proceeded on thatbasis and held that Clause (4) of Article 329-A of the Constitution asintroduced by the 39th Constitution Amendment Act damaged or destroyed thebasic structure of the Constitution.[585]396. Justice Y.V. Chandrachud who too was in the minority in KesavanandaBharati took the view that according to the majority opinion in thatdecision the principle that emerged was that Article 368 of theConstitution ‘does not confer power on Parliament to alter the basicstructure or framework of the Constitution.’[586] The learned judge furthersaid that the ratio decidendi in Kesavananda Bharati was that ‘the power ofamendment [in Article 368 of the Constitution] cannot be exercised todamage or destroy the essential elements or basic structure of theConstitution, whatever these expressions may comprehend.’[587]397. The issue again came up for consideration in Minerva Mills v. Unionof India.[588] The question in that case was whether Section 4 and Section55 of the 42nd Constitution Amendment Act transgress the limitation of theamending power of Article 368 of the Constitution. Speaking for himself andthe other learned judges in the majority (Justice A.C Gupta, Justice N.L.Untwalia and Justice P.S. Kailasam) it was held by Chief JusticeChandrachud that:“In Kesavananda Bharati, this Court held by a majority that though byArticle 368 Parliament is given the power to amend the Constitution, thatpower cannot be exercised so as to damage the basic features of theConstitution or so as to destroy its basic structure. The question forconsideration in this group of petitions under Article 32 is whetherSections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 transgressthat limitation on the amending power.”[589]A little later in the judgment, it was held as follows:“The summary of the various judgments in Kesavananda Bharati was signed bynine out of the thirteen Judges. Para 2 of the summary reads to say thataccording to the majority, “Article 368 does not enable Parliament to alterthe basic structure or framework of the Constitution”. Whether or not thesummary is a legitimate part of the judgment, or is per incuriam for thescholarly reasons cited by authors, it is undeniable that it correctlyreflects the majority view.The question which we have to determine on the basis of the majority viewin Kesavananda Bharati is whether the amendments introduced by Sections 4and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basicstructure of the Constitution by destroying any of its basic features oressential elements.”[590]It appears from the above exposition of the ratio decidendi in KesavanandaBharati that the words ‘alter’ and ‘damage’ are used interchangeably.Similarly, ‘damage the basic features’ and ‘destroy the basic structure’are used interchangeably with ‘damage the basic structure’ and ‘destroy thebasic features’.[591] The bottom line is what is contained in the ‘summary’of Kesavananda Bharati, namely: Article 368 does not enable Parliament toalter the basic structure or framework of the Constitution. There are tworeasons for this. Firstly, it is a contemporaneous exposition of the viewsof the majority in Kesavananda Bharati and there is no other or differentexposition and secondly, the exposition is by the majority of judgesthemselves (including two in the minority) and by no other.398. It may be mentioned that some misgivings were expressed ‘about’Minerva Mills in Sanjeev Coke Manufacturing Co. v. Bharat Coking CoalLtd.[592] The misgivings were not spelt out by the Bench except that it isstated that the case ‘has left us perplexed’ seemingly for the reason thatno question had arisen regarding the constitutional validity of Section 4and Section 55 of the 42nd Constitution Amendment Act.[593] This is ratherodd since the majority decision in Minerva Mills begins by stating: ‘Thequestion for consideration in this group of petitions under Article 32 iswhether Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976transgress that limitation on the amending power.’ Justice Bhagwati whopartly dissented from the views of the majority also stated that theconstitutional validity of Sections 4 and 55 of the Constitution (42ndAmendment) Act, 1976 were under challenge.[594] However, it is notnecessary to enter into this thicket, but it must be noted that SanjeevCoke did not disagree with Minerva Mills in its understanding ofKesavananda Bharati.399. More recently, in M. Nagaraj v. Union of India[595] it was held(rephrasing Justice Khanna in Indira Nehru Gandhi) that the basic structuredoctrine is really a check on the amending power of Parliament. The basicstructure of the Constitution consists of constitutional principles thatare so fundamental that they limit the amending power of Parliament. It wasconcluded that the basic structure theory is based on the concept ofconstitutional identity (rephrasing Justice Bhagwati in Minerva Mills). Itwas then said:“The basic structure jurisprudence is a preoccupation with constitutionalidentity. In Kesavananda Bharati v. State of Kerala it has been observedthat “one cannot legally use the Constitution to destroy itself”. It isfurther observed “the personality of the Constitution must remainunchanged”. Therefore, this Court in Kesavananda Bharati while propoundingthe theory of basic structure, has relied upon the doctrine ofconstitutional identity. The word “amendment” postulates that the oldConstitution survives without loss of its identity despite the change andit continues even though it has been subjected to alteration. This is theconstant theme of the opinions in the majority decision in KesavanandaBharati. To destroy its identity is to abrogate the basic structure of theConstitution. This is the principle of constitutional sovereignty…... Themain object behind the theory of the constitutional identity is continuityand within that continuity of identity, changes are admissible dependingupon the situation and circumstances of the day.”400. The ‘controversy’ is now set at rest with the decision rendered inI.R. Coelho where alteration of the basic structure has been accepted asthe test to determine the constitutional validity of an amendment to theConstitution. It was said:“The decision in Kesavananda Bharati case was rendered on 24-4-1973 by athirteen-Judge Bench and by majority of seven to six Golak Nath case[596]was overruled. The majority opinion held that Article 368 did not enableParliament to alter the basic structure or framework of theConstitution.”[597]And again,“In Kesavananda Bharati case the majority held that the power of amendmentof the Constitution under Article 368 did not enable Parliament to alterthe basic structure of the Constitution.”[598]The attack, therefore, is not on the basic structure of the Constitutionbut on the amending power of Parliament.401. The learned Attorney-General placed reliance on the following passagefrom the judgment of Justice Krishna Iyer in Bhim Singhji v. Union ofIndia[599] to contend that for a constitutional amendment to violate thebasic structure, it must be shocking, unconscionable or an unscrupuloustravesty of the quintessence of equal justice. That case dealt with theconstitutional validity of the Urban Land (Ceiling and Regulation) Act,1976 which was placed in the Ninth Schedule to the Constitution by the 40thConstitution Amendment Act, 1976 and therefore had the protection ofArticle 31-B and Article 31-C of the Constitution. In that context, it washeld that the question of the basic structure of the Constitution does notarise if the constitutional validity of legislation (as distinguished froma constitutional amendment) is under challenge. It was then said:“The question of basic structure being breached cannot arise when weexamine the vires of an ordinary legislation as distinguished from aconstitutional amendment. Kesavananda Bharati cannot be the last refuge ofthe proprietariat when benign legislation takes away their “excess” forsocietal weal. Nor, indeed, can every breach of equality spell disaster asa lethal violation of the basic structure. Peripheral inequality isinevitable when large-scale equalisation processes are put into action. Ifall the Judges of the Supreme Court in solemn session sit and deliberatefor half a year to produce a legislation for reducing glaring economicinequality their genius will let them down if the essay is to avoid evenperipheral inequalities. Every large cause claims some martyr, associologists will know. Therefore, what is a betrayal of the basic featureis not a mere violation of Article 14 but a shocking, unconscionable orunscrupulous travesty of the quintessence of equal justice. If alegislation does go that far it shakes the democratic foundation and mustsuffer the death penalty.”[600]402. This decision dealt with a statute placed in the Ninth Schedule ofthe Constitution and is, therefore, a class apart as far as the presentdiscussion is concerned.403. From this analysis, it must be concluded that if a constitutionalamendment alters the basic structure of the Constitution, then it can andshould be declared unconstitutional. What is of importance is the ‘width ofpower’ test propounded by Mr. Palkhivala in Kesavananda Bharati and adoptedin M. Nagaraj and now rechristened in I.R. Coelho as the direct impact andeffect test ‘which means the form of an amendment is not relevant, itsconsequence would be [the] determinative factor.’[601]404. In the light of the above discussion the question, therefore, isthis: How does the 99th Constitution Amendment Act alter the basicstructure of the Constitution, if at all? There is no doubt or dispute thatthe independence of the judiciary is a basic structure of the Constitution.I have already held that the appointment of a judge to the Supreme Courtand a High Court is an integral part of the independence of the judiciary.Therefore, has the introduction of the National Judicial AppointmentsCommission by the 99th Constitution Amendment Act so altered theappointment process as to impact on the independence of the judiciarythereby making the 99th Constitution Amendment Act unconstitutional? The learned Attorney-Generalanswered this in the negative.2 (b) Presumption of constitutionality405. The learned Attorney-General submitted that there is a presumption inlaw that the 99th Constitution Amendment Act is constitutionally valid andthat the petitioners have not been able to rebut that presumption.406. In Charanjit Lal Chowdhuri v. Union of India[602] Justice Fazal Aliexpressed the view that ‘the presumption is always in favour of theconstitutionality of an enactment.’407. Similarly, in Ram Krishna Dalmia v. Justice S.R. Tendolkar[603] itwas held, on a consideration of the decisions of this Court by ChiefJustice S.R. Das that ‘there is always a presumption in favour of theconstitutionality of an enactment and the burden is upon him who attacks itto show that there has been a clear transgressions of the constitutionalprinciples.’408. In Kesavananda Bharati it was held by Justice Hegde and JusticeMukherjea that:“But the courts generally proceed on the presumption of constitutionalityof all legislations. The presumption of the constitutional validity of astatute will also apply to constitutional amendments.”[604]409. Finally, in R.K. Garg v. Union of India[605] it was held by JusticeBhagwati, speaking for the Court as follows:“Now while considering the constitutional validity of a statute said to beviolative of Article 14, it is necessary to bear in mind certain wellestablished principles which have been evolved by the courts as rules ofguidance in discharge of its constitutional function of judicial review.The first rule is that there is always a presumption in favour of theconstitutionality of a statute and the burden is upon him who attacks it toshow that there has been a clear transgression of the constitutionalprinciples. This rule is based on the assumption, judicially recognised andaccepted, that the legislature understands and correctly appreciates theneeds of its own people, its laws are directed to problems made manifest byexperience and its discrimination are based on adequate grounds. Thepresumption of constitutionality is indeed so strong that in order tosustain it, the Court may take into consideration matters of commonknowledge, matters of common report, the history of the times and mayassume every state of facts which can be conceived existing at the time oflegislation.”[606]410. It is not possible to disagree with the learned Attorney-General inthis regard. A statute or a constitutional amendment must always be deemedto be constitutionally valid and it is for those challenging the validityto demonstrate a violation of the Constitution or an alteration of thebasic structure of the Constitution, as the case may be. As far as thepetitioners are concerned, it is for them to conclusively show that the99th Constitution Amendment Act alters the basic structure of theConstitution in that it replaces a well thought-out and fully- discussedmethod of appointment of judges with another wherein the constitutionalrole giving significant value to the opinion of the Chief Justice of Indiais substantively diminished or perhaps eliminated and substituted by theNJAC. The question is not whether the alternative model is good or not goodbut whether it is constitutionally valid or not.3 (c) Basis of judgment is removed411. The third submission was that Article 124(2) of the Constitution hasbeen amended by the 99th Constitution Amendment Act and, therefore, thebasis of the judgment delivered by this Court in the Second Judges case hasbeen completely taken away or that the Constitution has been amended withthe result that that judgment cannot now be used to interpret Article124(2) of the Constitution as it is today. In other words, the challenge tothe 99th Constitution Amendment Act will have to be adjudicatedindependently and regardless of the law laid down in the Second Judges caseor the Third Judges case.412. In Shri Prithvi Cotton Mills Ltd. v. Broach BoroughMunicipality[607] it was said by Chief Justice Hidayatullah that grantedlegislative competence, it is not sufficient to declare merely that thedecision of the Court shall not bind for that is tantamount to reversingthe decision in exercise of judicial power which the Legislature does notpossess or exercise. A Court’s decision must always bind unless theconditions on which it is based are so fundamentally altered that thedecision could not have been given in the altered circumstances. It wassaid:“Granted legislative competence, it is not sufficient to declare merelythat the decision of the Court shall not bind for that is tantamount toreversing the decision in exercise of judicial power which the Legislaturedoes not possess or exercise. A court’s decision must always bind unlessthe conditions on which it is based are so fundamentally altered that thedecision could not have been given in the altered circumstances.Ordinarily, a court holds a tax to be invalidly imposed because the powerto tax is wanting or the statute or the rules or both are invalid or do notsufficiently create the jurisdiction. Validation of a tax so declaredillegal may be done only if the grounds of illegality or invalidity arecapable of being removed and are in fact removed and the tax thus madelegal. Sometimes this is done by providing for jurisdiction wherejurisdiction had not been properly invested before. Sometimes this is doneby re-enacting retrospectively a valid and legal taxing provision and thenby fiction making the tax already collected to stand under the re-enactedlaw. Sometimes the Legislature gives its own meaning and interpretation ofthe law under which tax was collected and by legislative fiat makes the newmeaning binding upon courts. The Legislature may follow any one method orall of them and while it does so it may neutralise the effect of theearlier decision of the court which becomes ineffective after the change ofthe law. Whichever method is adopted it must be within the competence ofthe legislature and legal and adequate to attain the object ofvalidation.”[608]413. Similarly, in Indira Nehru Gandhi it was held by Chief Justice Ray asfollows:“The effect of validation is to change the law so as to alter the basis ofany judgment, which might have been given on the basis of old law and thusmake the judgment ineffective. A formal declaration that the judgmentrendered under the old Act is void, is not necessary. If the matter ispending in appeal, the appellate court has to give effect to the alteredlaw and reverse the judgment. The rendering of a judgment ineffective bychanging its basis by legislative enactment is not an encroachment onjudicial power but a legislation within the competence of the Legislaturerendering the basis of the judgment non est.”414. In K. Sankaran Nair v. Devaki Amma Malathy Amma[609] it was observedas follows:“It is now well settled that the legislature cannot overrule any judicialdecision without removing the substratum or the foundation of that judgmentby a retrospective amendment of the legal provision concerned.” [610] It was further stated, relying upon Shri Prithvi Cotton Mills Ltd. asfollows:“It is now well settled by a catena of decisions of this Court that unlessthe legislature by enacting a competent legislative provisionretrospectively removes the substratum or foundation of any judgment of acompetent court the said judgment would remain binding and operative and inthe absence of such a legislative exercise by a competent legislature theattempt to upset the binding effect of such judgments rendered against theparties would remain an incompetent and forbidden exercise which could bedubbed as an abortive attempt to legislatively overrule binding decisionsof courts.” [611]415. Similarly, in Bhubaneshwar Singh v. Union of India[612] reliance wasplaced on Shri Prithvi Cotton Mills Ltd. and a host of other decisionsrendered by this Court and a similar conclusion arrived at in the followingwords:“From time to time controversy has arisen as to whether the effect ofjudicial pronouncements of the High Court or the Supreme Court can be wipedout by amending the legislation with retrospective effect. Many suchAmending Acts are called Validating Acts, validating the action taken underthe particular enactments by removing the defect in the statuteretrospectively because of which the statute or the part of it had beendeclared ultra vires. Such exercise has been held by this Court as not toamount to encroachment on the judicial power of the courts. The exercise ofrendering ineffective the judgments or orders of competent courts bychanging the very basis by legislation is a well-known device of validatinglegislation. This Court has repeatedly pointed out that such validatinglegislation which removes the cause of the invalidity cannot be consideredto be an encroachment on judicial power. At the same time, any action inexercise of the power under any enactment which has been declared to beinvalid by a court cannot be made valid by a Validating Act by merelysaying so unless the defect which has been pointed out by the court isremoved with retrospective effect. The validating legislation must removethe cause of invalidity. Till such defect or the lack of authority pointedout by the court under a statute is removed by the subsequent enactmentwith retrospective effect, the binding nature of the judgment of the courtcannot be ignored.”[613]416. In Re Cauvery Water Disputes Tribunal[614] it was pithily stated, ona review of several decisions of this Court that:“The principle which emerges from these authorities is that the legislaturecan change the basis on which a decision is given by the Court and thuschange the law in general, which will affect a class of persons and eventsat large. It cannot, however, set aside an individual decision inter partesand affect their rights and liabilities alone. Such an act on the part ofthe legislature amounts to exercising the judicial power of the State andto functioning as an appellate court or tribunal.”[615]417. More recently, in State of Tamil Nadu this Court approved thefollowing conclusion arrived at in Indian Aluminium Co. v. State ofKerala[616]:“In exercising legislative power, the legislature by mere declaration,without anything more, cannot directly overrule, revise or override ajudicial decision. It can render judicial decision ineffective by enactingvalid law on the topic within its legislative field fundamentally alteringor changing its character retrospectively. The changed or alteredconditions are such that the previous decision would not have been renderedby the court, if those conditions had existed at the time of declaring thelaw as invalid. It is also empowered to give effect to retrospectivelegislation with a deeming date or with effect from a particular date. Thelegislature can change the character of the tax or duty from impermissibleto permissible tax but the tax or levy should answer such character and thelegislature is competent to recover the invalid tax validating such a taxon removing the invalid base for recovery from the subject or render therecovery from the State ineffectual. It is competent for the legislature toenact the law with retrospective effect and authorise its agencies to levyand collect the tax on that basis, make the imposition of levy collectedand recovery of the tax made valid, notwithstanding the declaration by thecourt or the direction given for recovery thereof.”[617]418. Without commenting on the view canvassed by the learned Attorney-General that the 99th Constitution Amendment Act has actually removed thebasis of the judgment delivered by this Court in the Second Judges case theconstitutional validity of the said amendment will nevertheless need to betested on that assumption, keeping in mind the above decisions.4 (d) Wisdom of an amendment to the Constitution419. The next submission of the learned Attorney-General was that thewisdom of Parliament in enacting the 99th Constitution Amendment Act cannotbe disputed. Hence, this Court ought not to substitute its own views on thenecessity or otherwise of the 99th Constitution Amendment Act over the lawlaid down in the Second Judges case.420. In Lochner v. New York[618] Justice Oliver Wendell Holmes famouslystated (in dissent) almost a century ago:“This case is decided upon an economic theory which a large part of thecountry does not entertain. If it were a question whether I agreed withthat theory, I should desire to study it further and long before making upmy mind. But I do not conceive that to be my duty, because I stronglybelieve that my agreement or disagreement has nothing to do with the rightof a majority to embody their opinions in law.”In other words, one may or may not agree with the content or wisdom of alegislation, but that has nothing to do with the correctness or otherwiseof the majority decision taken by a Legislature. This view has beenfollowed in our country as well.421. The Courts in our country do not question the wisdom or expediency ofthe Legislature enacting a statute, let alone a constitutional amendment.422. In one of the earliest cases relating to the wisdom of Parliament inenacting a law, it was contended in A.K. Gopalan v. The State ofMadras[619] that the Preventive Detention Act, 1950 was unconstitutional.Justice Das expressed the view that:“The point to be noted, however, is that in so far as there is anylimitation on the legislative power, the Court must, on a complaint beingmade to it, scrutinise and ascertain whether such limitation has beentransgressed and if there has been any transgression the Court willcourageously declare the law unconstitutional, for the Court is bound byits oath to uphold the Constitution. But outside the limitations imposed onthe legislative powers our Parliament and the State Legislatures aresupreme in their respective legislative fields and the Court has noauthority to question the wisdom or policy of the law duly made by theappropriate legislature.”423. The Payment of Bonus Act, 1965 and the scheme for payment of minimumbonus were under challenge in Jalan Trading Company (P) Ltd v. Mill MazdoorSabha Union.[620] Speaking for the Court, Justice J.C. Shah observed thatthe wisdom of the scheme selected by the Legislature may be open to debatebut it would not be invalid merely because some fault can be found with thescheme. It was said:“Whether the scheme for payment of minimum bonus is the best in thecircumstances, or a more equitable method could have been devised so as toavoid in certain cases undue hardship is irrelevant to the enquiry in hand.If the classification is not patently arbitrary, the Court will not rule itdiscriminatory merely because it involves hardship or inequality of burden.With a view to secure a particular object a scheme may be selected by theLegislature, wisdom whereof may be open to debate; it may even bedemonstrated that the scheme is not the best in the circumstances and thechoice of the legislature may be shown to be erroneous, but unless theenactment fails to satisfy the dual test of intelligible classification andrationality of the relation with the object of the law, it will not besubject to judicial interference under Article 14. Invalidity oflegislation is not established by merely finding faults with the schemeadopted by the Legislature to achieve the purpose it has in view.424. In Kesavananda Bharati it was observed by Chief Justice Sikri that:‘It is of course for Parliament to decide whether an amendment [to theConstitution] is necessary. The Courts will not be concerned with thewisdom of the amendment.’[621] The learned Chief Justice further observed:‘If Parliament has power to pass the impugned amendment acts, there is nodoubt that I have no right to question the wisdom of the policy ofParliament.’[622]425. Similarly, Justice Shelat and Justice Grover held:“It is not for the courts to enter into the wisdom or policy of aparticular provision in a Constitution or a statute. That is for theConstitution-makers or for the Parliament or the legislature.”[623]426. Justice A.N. Ray expressed his view in the following words: ‘Courtsare not concerned with the wisdom or policy of legislation. The Courts areequally not concerned with the wisdom and policy of amendments to theConstitution.’[624]427. Justice Jaganmohan Reddy expressed the same sentiments when thelearned judge said:“The citizen whose rights are affected, no doubt, invokes the aid of thejudicial power to vindicate them, but in discharging its duty, the Courtshave nothing to do with the wisdom or the policy of the Legislature.”[625]428. On the question of the wisdom of a constitutional amendment whichostensibly improves an existing situation, Justice Khanna expressed theview that this was not justiciable. The Court cannot substitute its opinionfor that of Parliament in this regard. It was held:“Whether the amendment is in fact, an improvement or not, in my opinion, isnot a justiciable matter, and in judging the validity of an amendment thecourts would not go into the question as to whether the amendment has ineffect brought about an improvement. It is for the special majority in eachHouse of Parliament to decide as to whether it constitutes an improvement;the courts would not be substituting their own opinion for that of theParliament in this respect. Whatever may be the personal view of a judgeregarding the wisdom behind or the improving quality of an amendment, hewould be only concerned with the legality of the amendment and this, in itsturn, would depend upon the question as to whether the formalitiesprescribed in Article 368 have been complied with.”[626]429. With reference to the Lochner dissent, Justice Khanna noted that theview was subsequently accepted by the US Supreme Court in Ferguson v.Skrupa[627] in the following words:“In the face of our abandonment of the use of the ‘vague contours’ of theDue Process clause to nullify laws which a majority of the Court believedto be economically unwise, reliance on Adams v. Tanner[628] is as mistakenas would be adherence to Adkins v. Children’s Hospital[629] overruled byWest Coast Hotel Co. v. Parrish[630] …..…. We refuse to sit as a ‘superlegislature to weigh the wisdom of legislation’, and we emphatically refuseto go back to the time when courts used the Due Process clause ‘to strikedown State laws, regulatory of business and industrial conditions, becausethey may be unwise, improvident, or out of harmony with a particular schoolof thought’.”[631]430. Justice Khanna reiterated his views in Indira Nehru Gandhi whereinthe learned judge held:“Before dealing with the question as to whether the impugned amendmentaffects the basic structure of the Constitution, I may make it clear thatthis Court is not concerned with the wisdom behind or the propriety of theimpugned constitutional amendment. These are matters essentially for thosewho are vested with the authority to make the constitutional amendment. Allthat this Court is concerned with is the constitutional validity of theimpugned amendment.”[632]431. Justice Chandrachud also expressed the same view, that is to say:“The subject-matter of constitutional amendments is a question of highpolicy and courts are concerned with the interpretation of laws, not withthe wisdom of the policy underlying them.”[633]432. A similar view was expressed in Karnataka Bank Ltd. v. State ofAndhra Pradesh[634] wherein it was specifically observed by this Courtthat:“In pronouncing on the constitutional validity of a statute, the court isnot concerned with the wisdom or unwisdom, the justice or injustice of thelaw. If that which is passed into law is within the scope of the powerconferred on a legislature and violates no restrictions on that power, thelaw must be upheld whatever a court may think of it.”[635]5433. In view of the judicial pronouncements, there is absolutely nodifficulty in accepting this proposition canvassed by the learned Attorney-General. The constitutional validity of the 99th Constitution Amendment Acthas to be tested on its own merit. The question of any Court substitutingits opinion for that of the Legislature simply cannot and does not arise. Ajudge may have a view one way or the other on the collegium system ofappointment of judges and on the manner of its implementation – but thatopinion cannot colour the application and interpretation of the law or thereasoning that a judge is expected to adopt in coming to a conclusionwhether the substitute introduced by the 99th Constitution Amendment Act isconstitutionally valid or not. Similarly, a judge may have an opinion aboutthe National Judicial Appointments Commission – but again that view cannotreplace a judicial interpretation of the 99th Constitution Amendment Act orthe NJAC Act.434. The collegium system of appointment of judges has undoubtedly beenthe subject of criticism. In fact, Mr. Fali Nariman who led the submissionson behalf of the Advocates on Record Association was quite critical of thecollegium system of appointments. Some of the learned counsel for therespondents went overboard in their criticism. But personal opinions do notmatter. Lord Templeman of the House of Lords was of the view that thecollegium system of appointments is best suited to ensure the independenceof the judiciary – but there are other eminent persons who are critical ofthe Second Judges case.435. In the final analysis, therefore, the Courts must defer to the wisdomof the Legislature and accept their views, as long as they are within theparameters of the law, nothing more and nothing less. The constitutionalvalidity of the 99th Constitution Amendment Act cannot be tested onopinions, however strong they may be or however vividly expressed.67 (e) Needs of the people436. It was also submitted by the learned Attorney-General that Parliamentis aware of the needs of the people and the people want a change from thecollegium system of appointment of judges. Parliament has responded to thisdemand and this Court should not reject this demand only because itbelieves that the collegium system is working well and that the 99thConstitution Amendment Act introduces a different system which reduces therole of the judiciary in making appointments by taking away its primacy inthis regard.437. Apart from the presumption that an enactment is constitutionallyvalid, there is also a presumption that the Legislature understands andcorrectly appreciates the needs of the people. This was observed inCharanjit Lal Chowdhuri and reliance was placed on the following passagefrom Middleton v. Texas Power and Light Co.[636]:“It must be presumed that a legislature understands and correctlyappreciates the need of its own people, that its laws are directed toproblems made manifest by experience and that its discriminations are basedupon adequate grounds.”438. Similarly, in Ram Krishna Dalmia the presumption that the Legislatureunderstands and correctly appreciates the needs of the people wasreiterated.439. Finally in Mohd. Hanif Quareshi v. State of Bihar[637] this view wasendorsed by Chief Justice S.R. Das speaking for this Court (though it maybe mentioned that this decision was subsequently overruled on anotherissue) in the following words:“The courts, it is accepted, must presume that the legislature understandsand correctly appreciates the needs of its own people, that its laws aredirected to problems made manifest by experience and that itsdiscriminations are based on adequate grounds.”440. It was observed (on an issue relating to the constitutionality of thedeath penalty) in Makwanyane[638] as follows:“Public opinion may have some relevance to the enquiry, but in itself, itis no substitute for the duty vested in the Courts to interpret theConstitution and to uphold its provisions without fear or favour. If publicopinion were to be decisive there would be no need for constitutionaladjudication. The protection of rights could then be left to Parliament,which has a mandate from the public, and is answerable to the public forthe way its mandate is exercised, but this would be a return toparliamentary sovereignty, and a retreat from the new legal orderestablished by the 1993 Constitution…….This Court cannot allow itself to be diverted from its duty to act as anindependent arbiter of the Constitution by making choices on the basis thatthey will find favour with the public. Justice Powell's comment in hisdissent in Furman v Georgia bears repetition:...the weight of the evidence indicates that the public generally has notaccepted either the morality or the social merit of the views sopassionately advocated by the articulate spokesmen for abolition. Buthowever one may assess amorphous ebb and flow of public opinion generallyon this volatile issue, this type of inquiry lies at the periphery - notthe core - of the judicial process in constitutional cases. The assessmentof popular opinion is essentially a legislative, and not a judicial,function.[639]So too does the comment of Justice Jackson in West Virginia State Board ofEducation v Barnette:The very purpose of a Bill of Rights was to withdraw certain subjects fromthe vicissitudes of political controversy, to place them beyond the reachof majorities and officials and to establish them as legal principles to beapplied by the courts. One's right to life, liberty, and property, to freespeech, a free press, freedom of worship and assembly and other fundamentalrights may not be submitted to vote; they depend on the outcome of noelections.[640]To put it differently: ‘The legitimacy of the Judicial Branch ultimatelydepends on its reputation for impartiality and nonpartisanship.’[641]Public opinion, manifested through Parliament or otherwise, really palesinto insignificance over the law that is interpreted impartially and in anon-partisan manner.441. It must be appreciated that the debate cannot be reduced to theacceptance of an unconstitutional but popular decision versus aconstitutional but unpopular decision. All of us are bound by theConstitution and judges have to abide by the oath of office to uphold theConstitution and the laws, even if the decision is unpopular orunacceptable to Parliament. This is the essence of judicial reviewotherwise no law passed by Parliament (obviously having a popular mandate)could be struck down as unconstitutional.89 (f) Passage of time442. Finally, it was submitted by the learned Attorney-General that thepassage of time over the last over sixty years has shown that the system ofappointment of judges that was originally operational (in which theexecutive has the ‘ultimate power’) and the collegium system (in which thejudiciary had shared responsibility) had both yielded some negativeresults. It was submitted that millions of cases are pending, persons whoshould have been appointed as judges were not recommended for appointmentand persons who did not deserve to be judges were not only appointed butwere brought to this Court. The 99th Constitution Amendment Act seeks tocorrect the imbalances created over a period of time and sinceconstitutional experiments are permissible, the 99th Constitution AmendmentAct should be allowed to pass muster.443. There is no doubt that with the passage of time changes take place insociety and in the development of the law. In fact, the only constant ischange. In State of West Bengal v. Anwar Ali Sarkar[642] it wasacknowledged by Justice Mehr Chand Mahajan that good faith and knowledge ofexisting conditions on the part of the Legislature has to be presumed.Appreciating this, it was later observed in Ram Krishna Dalmia that:“In order to sustain the presumption of constitutionality the court maytake into consideration matters of common knowledge, matters of commonreport, the history of the times and may assume every state of facts whichcan be conceived existing at the time of legislation.”444. In Kesavananda Bharati Justice Hegde and Justice Mukherjea observedthat: ‘The society grows, its requirements change. The Constitution andthe laws may have to be changed to suit those needs. No single generationcan bind the course of the generation to come.’[643]445. Justice Khanna expressed the view (and this was relied on by thelearned Attorney-General) that the Constitution is also intended for thefuture and must contain ample provision for experiment and trial. This iswhat Justice Khanna said:“It has also to be borne in mind that a Constitution is not a gate but aroad. Beneath the drafting of a Constitution is the awareness that thingsdo not stand still but move on, that life of a progressive nation, as of anindividual, is not static and stagnant but dynamic and dashful. AConstitution must therefore contain ample provision for experiment andtrial in the task of administration. A Constitution, it needs to beemphasised, is not a document for fastidious dialectics but the means ofordering the life of a people. It had its roots in the past, its continuityis reflected in the present and it is intended for the unknownfuture.”[644]446. A little later on in the judgment, the learned judge cited Abrams v.United States[645] and quoting Justice Holmes said:“The Constitution of a nation is the outward and visible manifestation ofthe life of the people and it must respond to the deep pulsation for changewithin. “A Constitution is an experiment as all life is an experiment.” Ifthe experiment fails, there must be provision for making another.”[646]447. Fortunately for the people of the country, the independence of thejudiciary is not a ‘task of administration’ nor is the Constitution ofIndia a failed experiment nor is there any need for ‘making provision foranother’. If the basic structure of the Constitution is to be changed,through experimentation or otherwise, then its overthrow is necessary. Itis not a simple document that can be experimented with or changed through acut and paste method. Even though the independence of the judiciary is abasic structure of the Constitution and being a pillar of democracy it canbe experimented with, but only if it is possible without altering the basicstructure. The independence of the judiciary is a concept developed overcenturies to benefit the people against arbitrary exercise of power. Ifduring experimentation, the independence of the judiciary is lost, it isgone forever and cannot be regained by simply concluding that the loss ofindependence is a failed experiment. The independence of the judiciary isnot physical but metaphysical. The independence of the judiciary is notlike plasticine that it can be moulded any which way.448. This is not to say that the Constitution must recognize only physicalchanges with the passage of time – certainly not. New thoughts and ideasare generated with the passage of time and a line of thinking that wasacceptable a few decades ago may not be acceptable today and what isacceptable today may not be acceptable a decade hence. But basic conceptslike democracy, secularism, Rule of Law, independence of the judiciary, allof which are constituents of the basic structure of our Constitution areimmutable as concepts, though nuances may change. A failed experiment ofthese basic concepts would lead to disastrous consequences. It is notpossible as an experiment to try out a monarchy or a dictatorship or toconvert India into a religious State for about ten or fifteen years and seehow the experiment works. Nor is it possible to suspend the Rule of Law ortake away the independence of the judiciary for about ten or fifteen yearsand see how the experiment works. These concepts are far too precious forexperimentation.449. Yes, the Constitution has to be interpreted as a living organicdocument for years and years to come, but within accepted parameters. Itwas said by Chief Justice Dickson of the Canadian Supreme Court in TheQueen v. Beauregard[647]:“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 thegrowth of the country and its people. Accordingly, if the Constitution canaccommodate, as it has, many subjects unknown in 1867--airplanes, nuclearenergy, hydroelectric power -- it is surely not straining section 100 toomuch to say that the word ‘pensions’, admittedly understood in one sense in1867, can today support federal legislation based on a differentunderstanding of ‘pensions’.”[648]450. It is this that Justice Khanna possibly had in mind when the learnedjudge spoke of the ‘unknown future’.Challenge to a statute and the package deal451. The learned Attorney-General also adverted to the legal bases forchallenging a statute. This was necessary since he desired to segregate thechallenge to the 99th Constitution Amendment Act and the NJAC Act. Inprinciple, the segregation would be justified, but as far as this case isconcerned, the learned Attorney-General had argued that the 99thConstitution Amendment Act and the NJAC Act were a ‘package deal’ and inthis he is correct. Both were discussed and debated in both Houses ofParliament almost at the same time, both were sent to the President forassent at the same time and were in fact assented to at the same time andfinally both were notified at the same time. The only difference was thatwhile the 99th Constitution Amendment Act had to undergo the ratificationprocess, the NJAC Act did not. It was therefore a ‘package deal’ presentedto the country in which the 99th Constitution Amendment Act and the NJACAct were so interlinked that one could not operate without reference to theother. In fact, Mr. Nariman submitted that the NJAC Act should also haveundergone the ratification process, but he was unable to support hisargument with any law, judicial precedent, convention or practice. Thisquestion is left open for greater discussion at an appropriate stage shouldthe occasion arise.452. Be that as it may, in the context of a challenge to a statute, it wassubmitted by the learned Attorney-General that the principles for such achallenge are quite different from a challenge to a constitutionalamendment. He is right in this submission.453. The accepted view is that a Parliamentary statute can be struck downonly if it is beyond legislative competence or violates Art.13 or thefundamental rights. The basic structure doctrine is not available forstriking down a statute. It was held in State of A.P. v. McDowell & Co[649]that:“The power of Parliament or for that matter, the State Legislatures isrestricted in two ways. A law made by Parliament or the [pic]legislaturecan be struck down by courts on two grounds and two grounds alone, viz.,(1) lack of legislative competence and (2) violation of any of thefundamental rights guaranteed in Part III of the Constitution or of anyother constitutional provision. There is no third ground.”454. This view was followed in Public Services Tribunal Bar Assn v. Stateof U.P.[650] in the following words:“The constitutional validity of an Act can be challenged only on twogrounds viz. (i) lack of legislative competence; and (ii) violation of anyof the fundamental rights guaranteed in Part III of the Constitution or ofany other constitutional provisions. In State of A.P. v. McDowell & Co thisCourt has opined that except the above two grounds there is no third groundon the basis of which the law made by the competent legislature can beinvalidated and that the ground of invalidation must necessarily fallwithin the four corners of the aforementioned two grounds.”455. Earlier, this Court had taken a much broader view of the issue of achallenge to a statute in Chhotabhai Jethabhai Patel v. Union ofIndia.[651] It was held therein that apart from the question of legislativecompetence and violation of Article 13 of the Constitution, a statute couldbe challenged if its enactment was prohibited by a provision of theConstitution. It was held as follows:“If by reason of Article 265 every tax has to be imposed by “law” it wouldappear to follow that it could only be imposed by a law which is valid byconformity to the criteria laid down in the relevant Articles of theConstitution. These are that the law should be (1) within the legislativecompetence of the legislature being covered by the legislative entries inSchedule VII of the Constitution; (2) the law should not be prohibited byany particular provision of the Constitution such as for example, Articles276(2), 286 etc., and (3) the law or the relevant portion thereof shouldnot be invalid under Article 13 for repugnancy to those freedom which areguaranteed by Part III of the Constitution which are relevant to thesubject-matter of the law.”456. This view was taken forward in Kihoto Hollohan v. Zachillhu[652]wherein it was held that the procedure for enacting a ‘law’ should befollowed. Although it is not expressly stated, but it appears that if theprocedure is not followed then the ‘law’ to that extent will have noeffect. In this case, it was held that Paragraph 7 of the Tenth Schedule tothe Constitution needed ratification in terms of clause (b) of the provisoto Article 368(2) of the Constitution. It was held:“That having regard to the background and evolution of the principlesunderlying the Constitution (Fifty-second Amendment) Act, 1985, insofar asit seeks to introduce the Tenth Schedule in the[pic]Constitution of India,the provisions of Paragraph 7 of the Tenth Schedule of the Constitution interms and in effect bring about a change in the operation and effect ofArticles 136, 226 and 227 of the Constitution of India and, therefore, theamendment would require to be ratified in accordance with the proviso tosub-article (2) of Article 368 of the Constitution of India.”457. Strictly speaking, therefore, an amendment to the Constitution can bechallenged only if it alters the basic structure of the Constitution and alaw can be challenged if: (1) It is beyond the competence of theLegislature; (2) It violates Article 13 of the Constitution; (3) It isenacted contrary to a prohibition in the Constitution; and (4) It isenacted without following the procedure laid down in the Constitution.458. At the same time, it has been emphasized by this Court that thepossibility of abuse of a provision of a statute is not a ground forstriking it down. An abuse of power can always be checked through judicialreview of the action complained of. In D.K. Trivedi & Sons v. State ofGujarat[653] it was said:“Where a statute confers discretionary powers upon the executive or anadministrative authority, the validity or constitutionality of such powercannot be judged on the assumption that the executive or such authoritywill act in an arbitrary manner in the exercise of the discretion conferredupon it. If the executive or the administrative authority acts in anarbitrary manner, its action would be bad in law and liable to be struckdown by the courts but the possibility of abuse of power or arbitraryexercise of power cannot invalidate the statute conferring the power or thepower 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, Justice B.N. Kirpal andhimself) held in Mafatlal Industries Ltd. v. Union of India[654]:“It is equally well-settled that mere possibility of abuse of a provisionby those in charge of administering it cannot be a ground for holding theprovision procedurally or substantively unreasonable. In Collector ofCustoms v. Nathella Sampathu Chetty, this Court observed: “The possibilityof abuse of a statute otherwise valid does not impart to it any element ofinvalidity.” It was said in State of Rajasthan v. Union of India, “it mustbe remembered that merely because power may sometimes be abused, it is noground for denying the existence of power. The wisdom of man has not yetbeen able to conceive of a government with power sufficient to answer allits legitimate needs and at the same time incapable of mischief”. (Also seeCommr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.”(Internal citations omitted)Article 122 of the Constitution460. Before dealing with the substantive issue of the challenge before us,it may be mentioned that Mr. Fali S. Nariman contended that Parliament didnot have the competence to pass the NJAC Act until the 99th ConstitutionAmendment Act was brought into force or at least it had the assent of thePresident. It is not possible to accept this submission since the passageof the 99th Constitution Amendment Act and the NJAC Act wascontemporaneous, if not more or less simultaneous. In view of Article122(1) of the Constitution which provides that the validity of anyproceedings in Parliament shall not be called in question on the ground ofany alleged irregularity of procedure, it is not possible to delve into theproceedings in Parliament.461. In Babulal Parate v. State of Bombay[655] this Court added, by wayof a post-script, its view on Article 122(1) of the Constitution. It wasobserved that in a given hypothetical situation the question will not bethe validity of proceedings in Parliament but the violation of aconstitutional provision. It was said as follows:“It is advisable, perhaps, to add a few more words about Art. 122(1) of theConstitution. Learned counsel for the appellant has posed before us thequestion as to what would be the effect of that Article if in any Billcompletely unrelated to any of the matters referred to in Cls. (a) to (e)of Art. 3 an amendment was to be proposed and accepted changing (forexample) the name of a State. We do not think that we need answer such ahypothetical question except merely to say that if an amendment is of sucha character that it is not really an amendment and is clearly violative ofArt. 3, the question then will be not the validity of proceedings inParliament but the violation of a constitutional provision.”462. In Raja Ram Pal v. Lok Sabha[656] the question of the extent ofjudicial review of parliamentary matters came up for consideration.Speaking for Justices K.G. Balakrishnan, D.K. Jain and himself, it was heldby Chief Justice Sabharwal, with reference to the CAD that proceduralirregularities in Parliament cannot undo or vitiate what happens within itsfour walls, that is, internal parliamentary proceedings. However,proceedings that are substantively illegal or unconstitutional, as opposedto irregular are not protected from judicial scrutiny by Article 122(1) ofthe Constitution.[657]463. Insofar as the NJAC Act is concerned, nothing has been shown by wayof any substantive illegality in its passage or anything unconstitutionalin its passage in the sense that any provision of the Constitution or anysubstantive rule regulating parliamentary activity has been violated. Atbest, it can be argued that procedurally there was a violation but ourattention was drawn to the rules of procedure and the decision taken inaccordance with the rules which indicate that there was no proceduralviolation in the introduction of the NJAC Act and its passage. JusticeKhehar has elaborately dealt with this issue in substantial detail in hisdraft judgment and it is not necessary to repeat what has been said.The amendments that are challenged - discussion464. Though no one has a right to be appointed a judge either of theSupreme Court or a High Court, it does not mean that the President candecline to appoint a person as a judge without any rhyme or reason nor doesit 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. TheConstituent Assembly did not give this unfettered power to the Presidentand, therefore, mandated consultation between the President and the ChiefJustice of India for the appointment of a judge of the Supreme Court. Therewere reasons for this as mentioned above. Prior to the 99th ConstitutionAmendment Act, under Article 124(2) of the Constitution, the President hadthe discretion to consult some other judges of the Supreme Court or theHigh Courts, as the President thought necessary for the purpose. The sameconstitutional position prevailed (mutatis mutandis) so far as theappointment of a judge of a High Court under Article 217(1) of theConstitution was concerned. Article 124(2) of the Constitution had threebasic ingredients: The power of the President to appoint a judge of theSupreme Court; a mandatory requirement of consultation with the ChiefJustice of India; a discretionary consultation with other judges of theSupreme Court and the High Courts.465. The 99th Constitution Amendment Act has completely changed thisconstitutional position and has changed the role of the President in theappointment process as also substantially modified the mandatoryconsultation with the Chief Justice of India and substituted or replacedthe entire process by a recommendation of the NJAC. The table below givesthe textual changes made in Article 124(2) of the Constitution.|Pre- Amendment provisions |Post-Amendment provisions ||124. Establishment and constitution |124. Establishment and constitution ||of Supreme Court. - (1) There shall |of Supreme Court. - (1) There shall ||be a Supreme Court of India |be a Supreme Court of India ||consisting of a Chief Justice of |consisting of a Chief Justice of ||India and, until Parliament by law |India and, until Parliament by law ||prescribes a larger number, of not |prescribes a larger number, of not ||more than seven other Judges. |more than seven other Judges. || | ||(2) Every Judge of the Supreme Court|(2) Every Judge of the Supreme Court ||shall be appointed by the President |shall be appointed by the President ||by warrant under his hand and seal |by warrant under his hand and seal on||after consultation with such of the |the recommendation of the National ||Judges of the Supreme Court and of |Judicial Appointments Commission ||the High Courts in the States as the|referred to in article 124A and shall||President may deem necessary for the|hold office until he attains the age ||purpose and shall hold office until |of sixty-five years: ||he attains the age of sixty-five | ||years: | || | ||Provided that in the case of |omitted ||appointment of a Judge other than | ||the Chief Justice, the Chief Justice| ||of India shall always be consulted: | || | ||Provided further that— (a) a Judge |Provided that- (a) a Judge may, by ||may, by writing under his hand |writing under his hand addressed to ||addressed to the President, resign |the President, resign his office; ||his office; |(b) a Judge may be removed from his ||(b) a Judge may be removed from his |office in the manner provided in ||office in the manner provided in |clause (4). ||clause (4). | |466. The composition of the NJAC is provided for in Article 124A of theConstitution. Therefore, Article 124A of the Constitution and Article124(2) are required to be read in conjunction with each other. The ChiefJustice of India is the Chairperson of the NJAC. The members of the NJACare two other judges of the Supreme Court next to the Chief Justice ofIndia, the Union Minister in charge of Law and Justice and two eminentpersons 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 LokSabha.467. The duty of the NJAC as provided for in Article 124B of theConstitution is to recommend persons for appointment as the Chief Justiceof India, judges of the Supreme Court, Chief Justices of High Courts andother judges of High Courts and to recommend the transfer of Chief Justicesand other judges of a High Court from one High Court to any other HighCourt. The NJAC has the duty to ensure that the person recommended hasability and integrity.468. Article 124C of the Constitution provides that Parliament may by lawregulate the procedure for the appointment of the Chief Justice of Indiaand other judges of the Supreme Court, the Chief Justice and other judgesof the High Courts. The Article empowers the NJAC to lay down, byregulations, the procedure for the discharge of its functions, the mannerof selection of persons for appointment and such other matters as may beconsidered necessary.469. Simultaneous with the above amendments in the Constitution, the NJACAct was passed by Parliament. The NJAC Act provides for recommending thesenior-most judge of the Supreme Court as the Chief Justice of India ‘if heis considered fit to hold the office’ and for recommending names forappointment as a judge of the Supreme Court persons who are eligible to beso appointed. Interestingly, the NJAC ‘shall not recommend a person forappointment if any two members of the Commission do not agree for suchrecommendation’ (Section 5 of the NJAC Act). A somewhat similar procedurehas been provided for recommending the appointment of the Chief Justice ofa High Court and a judge of a High Court (Section 6 of the NJAC Act).470. The President may accept the recommendation of the NJAC for theappointment of a particular person as a judge, but may also require theNJAC to reconsider its recommendation. If the NJAC affirms its earlierrecommendation 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 theCentral Government in consultation with the NJAC and the convener of theNJAC shall be the Secretary to the Government of India in the Department ofLaw and Justice (Section 8 of the NJAC Act).472. The procedure for the transfer of judges from one High Court toanother has been left to be determined by regulations to be framed by theNJAC (Section 9 of the Act). Similarly, the NJAC shall frame regulationswith regard to the procedure for the discharge of its functions (Section 10of the Act).473. The Central Government is empowered to make Rules to carry out theprovisions of the NJAC Act (Section 11 thereof) and the Commission may makeRules to carry out the provisions of the NJAC Act (Section 12 thereof). TheRules and Regulations framed by the Central Government and by the NJACshall be laid before Parliament and these may be modified if both theHouses of Parliament agree to the modification and Parliament may alsoprovide that a Rule or Regulation shall have no effect (Section 13thereof).474. The sum and substance of the controversy is this: If theestablishment of the NJAC by the 99th Constitution Amendment Act alters thebasic structure of the Constitution, the 99th Constitution Amendment Actand the NJAC Act must be declared unconstitutional. Since the establishmentof the NJAC by Article 124A of the Constitution is integral to the 99thConstitution Amendment Act and the NJAC Act and they are not severable andcannot stand alone, they too must be declared unconstitutional.475. While considering the constitutional validity of the 99thConstitution Amendment Act and the NJAC Act it is necessary to deal with asubmission made with reference to the Constitutional Reform Act 2005 (CRA)passed by the British Parliament. This is because it was referred, in thecourse of submissions, on more than one occasion. It was sought to besuggested that judges in the UK Supreme Court are appointed by the JudicialAppointments Commission constituted in terms of the CRA and there isnothing wrong if a somewhat similar procedure is adopted by our Parliamentwhere judges of the High Courts and the Supreme Court are recommended bythe NJAC.476. The CRA and its working was adverted to by Jack Straw, the LordChancellor from 2007 to 2010. At that time the Lord Chief Justice was thehead of the judiciary in the UK but the Lord Chancellor was neverthelessresponsible ‘for upholding the independence of the judiciary’. In the 3rdlecture on ‘Judicial Appointments’ delivered on 4th December, 2012 of the64th series of Hamlyn Lectures titled ‘Aspects of Law Reform – An Insider’sPerspective’ he said:“The CRA provided for the establishment of an independent JudicialAppointments Commission (JAC).The JAC was made responsible for operating the appointments process andmaking recommendations to the Lord Chancellor for all but the most seniorappointments. 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 provisionwas made for recommendations to be made to the Lord Chancellor by speciallyconstituted selection panels. For each appointment, the JAC, or the specially constitutedselection panel,was required to make one recommendation to the Lord Chancellor.”[658]“In practice, as I found out through painful experience, there were anumber of problems with this set-up.”[659]“I accept that the role of the Lord Chancellor in relation to High Courtand Court of Appeal appointments should be limited. But for the two groupsof our most senior judges, and for different reasons, in my view the LordChancellor should have a greater role than is provided for by theConstitutional Reform Act, or than is likely to be provided for by thecurrent Crime and Courts Bill.The two groups of judges I am talking about are, first, the most seniormembers of the Court of Appeal – that is, the Heads of Division and LordChief Justice- and, second, the members of the UK Supreme Court. Theconclusion is the same, but the arguments are different.”[660]The ‘specially constituted selection panel’ for the appointment of judgesof the UK Supreme Court (for example) is provided for in Section 26(5) ofthe CRA read with Schedule 8 thereof and the selection panel consists of(a) the President of the Supreme Court, (b) the Deputy President of theSupreme Court, (c) one member each of (i) the Judicial AppointmentsCommission, (ii) the Judicial Appointments Board for Scotland, (iii) theNorthern Ireland Judicial Appointments Commission. At least one member incategory (c) must be ‘non-legally qualified’. With this sort of acomposition of the ‘specially constituted selection panel’ Jack Straw couldnot 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 theConstitutional Reform Act, which provides that these two groups of verysenior appointments should not be made by the normal Judicial AppointmentsCommission process.The reality of a connection between the senior judiciary and the executiveis also recognized in almost every other jurisdiction. By far the mostusual approach elsewhere in the world, including in well-functioning common-law jurisdictions, is for the relevant minister to be recommended three tofive names, and for that minister then to be able to choose from amongthese nominees. In the United Kingdom we are very unusual in insistingthat the minister receives one name alone. This is explicable only in thecontext of where we have come from: the untrammeled discretion of the LordChancellor until the mid 1990s, the non-statutory nature of the pre-2005arrangements, the opaque decision-making process and the mounting criticismof it.But these literally peculiar arrangements for these very seniorappointments, intended to create a partnership approach between thejudiciary and the Lord Chancellor in recognition of the requirements of theoffices in question, have proved to be unsatisfactory.Both the detailed wording and the expectation in practice make it verydifficult for the Lord Chancellor to exercise even his limited powers toreject or request a reconsideration of a recommendation. As is a matter ofrecord in the press, there was one occasion when, as Lord Chancellor, Isought to use these powers.Since I have always observed the confidentiality necessary for theconsideration of such appointments, I am not here going into any detail. Ihope, however, that it will be accepted that I would not have sought toexercise these powers unless I believed that I had good grounds within theAct for doing so I did – good grounds, as many can now see. I went toconsiderable lengths to ensure that my actions could not be construed,which they were not remotely, as party political. In the event, the matterwas not seen through to a conclusion. Partisans to the appointment – notanyone directly involved in the process – leaked extensive detail to thepress, an election was looming; I confirmed the appointment.”[661]477. Adverting to this lecture and the actual working of the CRA, it issaid that for making senior level judicial appointments, it is ‘impossiblefor the Lord Chancellor to against the wishes of the judiciary’. In arecent article published in Public Law it is said:“Judicial appointments are the next biggest change, responsibility forwhich has shifted from the executive in the form of the Lord Chancellor, tothe judiciary. Formally the process is managed by the independent JudicialAppointments Commission (JAC), but in practice the process is heavilyinfluenced by the judiciary at every stage. The Lord Chief Justice isconsulted at the start of each competition. Judges prepare case studies andqualifying tests. Judges write references. A judge sits on the panels thatinterview candidates; and judges are consulted in statutory consultation.On the JAC, 7 of the 15 commissioners are judges. Once the JAC hascompleted its selection, at lower levels (Circuit judges and below) alljudicial appointments are now formally made by the Lord Chief Justice, andtribunal appointments are made by the Senior President of Tribunals. TheLord Chief Justice and SPT are now responsible for 97 per cent of alljudicial appointments. At more senior levels appointments are stillformally decided by the Lord Chancellor; but in practice it has provedimpossible for the Lord Chancellor to go against the wishes of thejudiciary.”[662]So much for the appointment process in the UK and the ‘judges appointingjudges’ criticism in India!478. 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 ofjudicial independence and conventions and systems of the appointment ofjudges in other countries without a full understanding of their problemsand issues. We ought to better understand the situation in our country (andthe decisions rendered by this Court) and how best to protect and preservejudicial independence in the circumstances that exist in our country andnot have grand illusions of the systems in place in other countries.Validity of Articles 124A and 124(2) of the Constitution - the package deal479. The submission of the learned Attorney-General (as mentioned above)is that the 99th Constitution Amendment Act and the NJAC Act are a ‘packagedeal’ and one cannot be appreciated without the other. The discussion willbe in the light of this submission.480. At the outset, it is important to note that the package isincomplete. The 99th Constitution Amendment Act and the NJAC Act raise aseries of unanswered questions. For example, how is the NJAC expected toperform its duties? Will there be any transparency in the working of theNJAC and if so to what extent? Will privacy concerns of the ‘candidates’ betaken care of? Will issues of accountability of the NJAC be addressed? Thelearned Attorney-General submitted that a large number of hypotheticalissues and questions have been raised not only by the petitioners but alsoby the Bench and it is not possible to answer all of them in the absence ofa composite law and regulations being framed in accordance with thepostulates of the 99th Constitution Amendment Act. This submission of thelearned Attorney-General cannot be appreciated particularly in view of hiscontention, raised on more than one occasion, that what is enacted by the99th Constitution Amendment Act is a package deal. Unless all eventualitiesare taken care of, the package deal presented to the country is an emptypackage with the wrapping paper in the form of the NJAC Act and a ribbon inthe form of the 99th Constitution Amendment Act. If it is not possible toanswer all the questions in the absence of a composite law, rules andregulations, what was the hurry in bringing the 99th Constitution AmendmentAct and the NJAC Act into force as a half-baked measure?481. It is true that the Constitution cannot specify and incorporate eachand every detail, particularly procedural details.[663] But the same time,the substantive requirements of the NJAC scheme must be apparent from the99th Constitution Amendment Act read with the NJAC Act, particularly whenit seeks to overthrow an existing method of appointment of judges thatmaintains the independence of the judiciary. Vital issues cannot be left tobe sorted out at a later date through supplementary legislation orsupplementary subordinate legislation, otherwise an unwholesome hiatuswould be created, making matters worse.482. The package deal must survive as whole or fall as a whole – therecannot be piecemeal existence.483. Viewed in this light, the constitutional validity of Article 124(2)read with Article 124A of the Constitution as introduced by the 99thConstitution Amendment Act is suspect for several reasons.(a) The NJAC and the role of the President484. Article 124(2) of the Constitution requires the NJAC constitutedunder Article 124A thereof to make a recommendation to the President forthe appointment of a judge of the Supreme Court or a High Court. Mr. FaliS. Nariman pointed out that as far as the NJAC is concerned, it is notclear whether the President means the President acting in his/herindividual capacity or the Council of Ministers. The President certainlycannot mean the individual otherwise the procedure for appointment ofjudges postulated by the 99th Constitution Amendment Act and the NJAC Actwould be creating an Imperium in Imperio which the Constituent Assemblydeliberately avoided. On the other hand, if the President means the Councilof Ministers, then on what basis can the Council of Ministers/President askthe NJAC (under the proviso to Section 7 of the NJAC Act) to reconsider itsview? The Council of Ministers/President is already represented as a‘voting member’ in the NJAC through the Law Minister. Can thePresident/Council of Ministers/Prime Minister ask for reconsideration of arecommendation made by the NJAC to which the Law Minister (a member of theCabinet) is a party? Would this be permissible particularly since the LawMinister represents the Union Government/President in the NJAC and would itnot go against the well established principle of Cabinet responsibility?Alternatively, would it not undermine the authority of the Law Minister ifin a given case the Law Ministers agrees to an appointment but the Councilof Ministers does not accept it? More importantly, is the Council ofMinisters/President an oversight body as far as the NJAC is concerned?485. Assuming (despite the above doubts) that the Council ofMinisters/President requires the NJAC to reconsider its recommendation andon reconsideration the NJAC reiterates its recommendation, the Presidentwill be bound thereby even if it means overruling the objections of theChief Justice of India. The objection to this process of appointment ofjudges is two-fold. Firstly, the authority that is statutorily conferred onthe NJAC to bind the President by the NJAC Act is well beyond the powerconferred by Article 124(2) of the Constitution or the 99th ConstitutionAmendment Act. Secondly, in the event of such a reiteration, the opinion ofthe Chief Justice of India eventually counts for nothing, contrary to theintention of the Constituent Assembly and the constitutional conventionsfollowed over decades. Historically, no appointment (except perhaps one)has been made without the consent of the Chief Justice of India. Is the99th Constitution Amendment Act intended, wittingly or unwittingly, to givea short shrift to the views of the Constituent Assembly and constitutionalconventions and to sublimate the views of the Chief Justice of India? Thisprocedure may be contrasted with the collegium system of appointment inwhich the President could turn down a recommendation made by the collegiumif it was not unanimous. In the present dispensation, this entitlement ofthe President is taken away, even if the recommendation is not unanimous,and thereby the importance of the President is considerably downsized.486. Additionally, the decision of the President is, in one sense, made todepend upon the opinion of two members of the NJAC, who may in a given casebe the two eminent persons nominated to the NJAC in terms of Article124A(1)(d) of the Constitution. These two eminent persons can actuallystymie a recommendation of the NJAC for the appointment of a judge byexercising a veto conferred on each member of the NJAC by the secondproviso to sub-section (2) of Section 5 of the NJAC Act, and withoutassigning any reason. In other words, the two eminent persons (or any twomembers of the NJAC) can stall the appointment of judges without reason.That this may not necessarily happen with any great frequency is notrelevant – that such a situation can occur is disturbing. As a result ofthis provision, the responsibility of making an appointment of a judgeeffectively passes over, in part, from the President and the Chief Justiceof India to the members of the NJAC, with a veto being conferred on any twounspecified members, without any specific justification. This is a verysignificant constitutional change brought about by the 99th ConstitutionAmendment Act which not only impinges upon but radically alters the processof appointment of judges, by shifting the balance from the President andthe Chief Justice of India to the NJAC. To make matters worse, thePresident cannot even seek the views of anybody (other judges or lawyers orcivil society) which was permissible prior to the 99th ConstitutionAmendment Act and a part of Article 124(2) of the Constitution prior to itsamendment. It may be recalled that Article 124(2) of the Constitutionenables the President to consult judges of the Supreme Court and the HighCourt but that entitlement is now taken away by the 99th ConstitutionAmendment Act. The President, in the process, is actually reduced to adummy.487. It may also be recalled that the President (as an individual) hadexpressed a viewpoint as reported in India Today magazine of 25th January,1999 concerning the appointment of judges of the Supreme Court. Theexistence of such a possibility is now not possible since the President (asan individual) has really no role to play in the appointment process exceptissuing a warrant of appointment when asked to do so.488. The sum and substance of this discussion is that there is no clarityon the role of the President. In any event, the discretion available to thePresident to consult judges of the Supreme Court in the matter ofappointment of judges is taken away; the decision of the President issubject to the opinion of two eminent persons neither of whom isconstitutionally accountable; there is a doubt on the well establishedprinciple of Cabinet responsibility; a statute - the NJAC Act, not theConstitution binds the President contrary to the constitutional framework;the 99th Constitution Amendment Act makes serious and unconstitutionalinroads into Article 124(2) of the Constitution, as originally framed.(b) Role of the Chief Justice of India and the Judiciary489. The Chief Justice of India is undoubtedly the Chairperson of theNJAC. However, the participation of the Chief Justice of India as anindividual and the participation of the judiciary as an institution in theNJAC is made farcical by the 99th Constitution Amendment Act and the NJACAct. Even though the opinion of the Chief Justice of India, a pre-eminentconstitutional authority in the judiciary, regarding the suitability of aperson for appointment as a judge is acceptable to a majority of members ofthe NJAC, it can be thumbed down by two of its other members in terms ofSection 5 of the NJAC Act. These two persons might be the Law Minister(representing the President) and an eminent person or two eminent personsneither of whom represent or purport to represent the President, the otherpre-eminent constitutional authority in the appointment process underArticle 124(2) of the Constitution prior to its amendment.490. The 99th Constitution Amendment Act reduces the Chief Justice ofIndia, despite being the head of the judiciary, to one of six in the NJACmaking a recommendation to the President thereby denuding him/her ofconventional, historical and legitimate constitutional significance andauthority and substantially skewing the appointment process postulated bythe Constituent Assembly and the Constitution. The opinion of the ChiefJustice of India had ‘graded weight’ or the ‘greatest weight’ prior to the99th Constitution Amendment Act. But now with the passage of the 99thConstitution Amendment Act and the NJAC Act the Chief Justice of India isreduced to a mere voting statistic. Designating the Chief Justice of Indiaas the Chairperson of the NJAC is certainly not a solace or a solution todownsizing the head of the Judiciary.491. The participation of the judiciary as an institution in the NJAC isalso farcical. The 99th Constitution Amendment Act does not postulate a‘veto’ being conferred on any person in the NJAC. But the NJAC Acteffectively gives that power to all members of the NJAC despite the 99thConstitution Amendment Act. This is evident from the provisions of the NJACAct which enable two persons, one of them being the Law Minister to vetothe unanimous opinion of the three participating judges (including theChief Justice of India). Therefore, even if the Judiciary as a whole and asan institution (that is the three participating judges) is in favour of aparticular appointment, that unanimous opinion can be rendered worthless byany two other members of the NJAC, one of whom may very well include theLaw Minister representing the political executive and another havingperhaps nothing to do with justice delivery. This is certainly not what theConstitution, as framed, postulated or intended.492. To get over this outlandish situation it was suggested (as analternative argument) by Mr. K.K. Venugopal appearing for the State ofMadhya Pradesh that the unanimous opinion of the three participating judgesshould have overriding weight, that is a veto over a veto or a ‘tie breakvote’. Mr. Venugopal puts this Court in a Catch-22 situation. Thealternative suggested would clearly amount to judicial overreach and thejudiciary rewriting the statute. The only rational course is to interpretthe law as it is and if it is constitutionally valid so be it and if it isconstitutionally invalid so be it. It is not advisable or possible torewrite the law when the language of the statute is express.493. As mentioned above in considerable detail, the independence of thejudiciary took up so much discussion time of several Committees, theConstituent Assembly and various other bodies and institutions. Severallegal luminaries have also devoted considerable effort and given athoughtful study to the independence of the judiciary. There was a purposeto it, namely, that the independence should not be subverted via externalor internal pressures. Through the medium of the 99th ConstitutionAmendment Act and the NJAC Act, this independence is subtly put tojeopardy. The President has virtually no role to play in the appointment ofjudges, the Chief Justice of India is sidelined in the process and a systemthat is subject to possible erosion is put in place. Justice O’Connor said:‘Judicial independence doesn’t happen all by itself….. It’s tremendouslyhard to create, and easier than most people imagine to destroy.’ The 99thConstitution Amendment Act and the NJAC Act puts us face to face with thistruism in respect of the fragile bastion.494. The sum and substance of this discussion is that the unanimousopinion of the Judiciary can be rejected by two eminent persons or oneeminent person and the Law Minister (whose opinion is subject to theopinion of the Council of Ministers, whom he/she represents); the unanimousopinion of the judiciary as an institution, an opinion that was respected(and deservedly so) counts for virtually nothing with the passage of the99th Constitution Amendment Act and the NJAC Act; the Chief Justice ofIndia is rendered, by the 99th Constitution Amendment Act to a mere votingstatistic and one among six in the NJAC virtually stripping him/her of theconstitutional responsibility of appointing judges to the superior courtsand denuding him/her of the authority conferred by history, constitutionalconvention and the Constitution; the Chief Justice of India and theinstitution of the judiciary is now subject to a veto by civil society inits decisions. The entire scheme of appointment of judges postulated by theConstituent Assembly is made topsy-turvy by the 99th Constitution AmendmentAct and the NJAC Act. If this does not alter the basic structure of theConstitution, what does?(c) Eminent persons and the veto495. The inspiration for having eminent persons in the NJAC comes from theReport of the NCRWC which made this recommendation as a part of thedemocratic process of selecting a judge of the Supreme Court or the HighCourt. Article 124A(1)(d) of the Constitution provides for two eminentpersons to be nominated as members of the NJAC. The nomination is by aCommittee consisting of the Prime Minister, the Chief Justice of India andthe Leader of the Opposition in the Lok Sabha or where there is no suchLeader, then the Leader of the single largest Opposition Party in the LokSabha. The first proviso mandates that one of the eminent persons shall benominated from amongst persons belonging to the Scheduled Castes, theScheduled Tribes, Other Backward Classes, Minorities or Women.496. The apprehension expressed by some learned counsel appearing for thepetitioners is that since no guidelines have been laid down for thenomination of the two eminent persons, there is a possibility that personswho are not really eminent may be nominated to the NJAC or that theirappointment will be politically motivated. So also, acknowledged eminentpersons might not be nominated to the NJAC. But then, who is an eminentperson?497. In A.K. Roy v. Union of India[664] reference was made to thedifficulty in framing precise definitions. Although the decision pertainedto preventive detention and criminal law, the following observation ispertinent in the context of the present discussion:“The impossibility of framing a definition with mathematical precisioncannot either justify the use of vague expressions or the total failure toframe any definition at all which can furnish, by its inclusiveness atleast, a safe guideline for understanding the meaning of the expressionsused by the legislature. But the point to note is that there areexpressions which inherently comprehend such an infinite variety ofsituations that definitions, instead of lending to them a definite meaning,can only succeed either in robbing them of their intended amplitude or inmaking it necessary to frame further definitions of the termsdefined.”[665]498. It is also necessary to notice the view expressed in the SecondJudges case by Justice Verma speaking for the majority. The learned judgewas of the opinion that arbitrariness in the exercise of discretion can beminimized through a collective decision. It was observed as follows:“The rule of law envisages the area of discretion to be the minimum,requiring only the application of known principles or guidelines to ensurenon-arbitrariness, but to that limited extent, discretion is a pragmaticneed. 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 andpragmatism are reconciled and integrated, to make the system workable in asatisfactory manner. Entrustment of the task of appointment of superiorjudges to high constitutional functionaries; the greatest significanceattached to the view of the Chief Justice of India, who is best equipped toassess the true worth of the candidates for adjudging their suitability;the opinion of the Chief Justice of India being the collective opinionformed after taking into account the views of some of his colleagues; andthe executive being permitted to prevent an appointment considered to beunsuitable, for strong reasons disclosed to the Chief Justice of India,provide the best method, in the constitutional scheme, to achieve theconstitutional purpose without conferring absolute discretion or veto uponeither the judiciary or the executive, much less in any individual, be hethe Chief Justice of India or the Prime Minister.”[666]499. Justice Pandian in a separate but concurring opinion held the sameview and expressed it in the following words:“It is essential and vital for the establishment of real participatorydemocracy that all sections and classes of people, be they backward classesor Scheduled Castes or Scheduled Tribes or minorities or women, should beafforded equal opportunity so that the judicial administration is alsoparticipated in by the outstanding and meritorious candidates belonging toall sections of the society and not by any selective or insular group.”[667]500. In Centre for PIL v. Union of India[668] the question related to theappointment of the Central Vigilance Commissioner and the VigilanceCommissioners under the Central Vigilance Commission Act, 2003. Therelevant provision was to the effect that a Selection Committee consistingof the Prime Minister, the Minister of Home Affairs and the Leader of theOpposition in the Lok Sabha would make a recommendation to the Presidentwho would then appoint the Central Vigilance Commissioner or the VigilanceCommissioners, as the case may be, by warrant under his or her hand andseal. In this context, this Court held that Parliament had put its faithin a High Powered Committee and it is presumed that the High PoweredCommittee entrusted with wide discretion would exercise its powers inaccordance with the Act objectively and in a fair and reasonable manner.501. It was pointed out by Mr. Arvind Datar, learned senior counselappearing for one of the petitioners that a large number of statutesmention the presence of eminent persons in a body, including some that aresubject specific. However, it was pointed out by the learned Attorney-General that in a random sampling of some of these statutes, it has beenfound that none of them has such a High Powered Committee as in the CentralVigilance Commission Act for nominating or recommending a person forappointment to a post.502. Apart from anything else, it was submitted by the learned Attorney-General that the presence of eminent persons in the NJAC would lenddiversity in the composition of the ‘selection panel’ and that this wouldnecessarily reflect the views of society. Reference in this context wasmade to Registrar General, High Court of Madras v. R. Gandhi[669] whereinit was held as follows:“Appointments cannot be exclusively made from any isolated group nor shouldit be pre-dominated by representing a narrow group. Diversity therefore injudicial appointments to pick up the best legally trained minds coupledwith a qualitative personality, are the guiding factors that deserve to beobserved uninfluenced by mere considerations of individual opinions. It isfor this reason that collective consultative process as enunciated in theaforesaid decisions has been held to be an inbuilt mechanism against anyarbitrariness.”[670]503. Under these circumstances, there can be little objection to theparticipation by eminent persons as consultants in the appointment process.In fact, Justice Verma acknowledged that he had sought the views of eminentlawyers while considering recommendations for the appointment of judges. Ifthe Committee cannot be trusted to nominate ‘eminent’ persons, perhaps noother committee can. The trust placed on the Committee is not a simple orstatutory trust but a constitutional trust. In this regard, it is worthrecalling the words of Justice Krishna Iyer in Bhim Singhji:“The confusion between the power and its oblique exercise is anintellectual fallacy we must guard against. Fanciful possibilities, freakexercise and speculative aberrations are not realistic enough forconstitutional invalidation. The legislature cannot be stultified by thesuspicious improvidence or worse of the Executive.”[671]504. It is, therefore, not advisable to be alarmist, as some learnedcounsel for the petitioners were, but at the same time possible abuse ofpower cannot be wished away, as our recent history tells us. Perhaps farbetter and precise legislative drafting coupled with a healthy debate is asolution, but, what is of significance is the decision-taking (asdistinguished from decision-making) process of the Committee. It waspointed 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, thenomination of eminent persons will be through a majority decision of themembers of the Committee.[672] What this means is that the Chief Justice ofIndia would have a subsidiary role in the nomination process if he/she isin the minority. What this also means is that an executive cum legislativeinfluence would sneak in in the process of nomination of eminent persons.In other words, from the word ‘go’ the Chief Justice of India is sidelined,directly or indirectly, in the process of appointment of judges of the HighCourts and the Supreme Court.505. It is also not possible to accept the contention that the presence ofeminent persons with a voting right in the NJAC would have no impact on theindependence of the judiciary, but would be beneficial in terms of bringingabout diversity. The same result could very well be achieved, as suggestedby Justice Verma without altering the basic structure of the Constitution,without conferring a veto on the consultants.506. What makes matters worse is that in the absence of a quorum orunanimity in the nomination of eminent persons, the Committee could makethe nomination without consulting the Chief Justice of India. Therefore, iffor some valid reason, the Chief Justice of India is unable to attend ameeting, the Committee could nominate eminent persons (perhaps believing inthe concept of a committed judiciary) to the NJAC and influence itsdecisions to accept a committed judiciary rather than an independentjudiciary.[673] It is unlikely that this would happen, but if the politicalexecutive is determined, at some point of time, to have a committedjudiciary, the nomination of politically active eminent persons to the NJACdisregarding the view of the Chief Justice of India is a real possibility.507. Another objection raised to the ‘eminent person’ category is thatsuch a person might not have any knowledge of the requirements of thejudiciary and would not be able to make any effective contribution in theselection of a judge. It was submitted that the eminent person must havesome background of law and the judiciary. In principle this argument isquite attractive, but really has little substance. Several members of theConstituent Assembly had no training or background in law and yet theycontributed in giving us a glorious Constitution. One of the finest mindsthat we have today - Professor Amartya Sen - has had no training orbackground in law and yet has given us The Idea of Justice an importantcontribution to jurisprudence, the idea of justice in an organizationalsense (niti) and the idea of realized justice (nyaya). Therefore, it wouldnot be correct to say that an eminent person in the NJAC (or as an outsideconsultant) must have some connection with the law or justice delivery. Ifthe eminent person does have that ‘qualification’ it might be useful, butit certainly need not be absolutely necessary.508. Finally, it was argued that the requirement that one eminent personshould be from a specified category as mentioned in the first proviso toArticle 124A(1)(d) of the Constitution is discriminatory and serves nopurpose at all. In response, the learned Attorney-General submitted thatthe presence of an eminent person, outside the field of law would bringabout a much needed diversity in the appointment of judges. The experiencein the United Kingdom, as explained by Jack Straw, does not seem to bearout this assumption. In his lecture, he stated: ‘The assumption ondiversity – naïve as it turned out – was that if we changed the process, wewould change the outcome.’ In any event, which category should or shouldnot be represented in the NJAC through an eminent person is essentially amatter of policy and that policy does not appear to be perverse in anymanner, 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 confers a veto on each member of theNJAC. What is objectionable about the veto (a part of the package dealreferred to by the learned Attorney-General) is that it can also beexercised by two eminent persons whose participation in the appointmentprocess was not even imagined by the Constituent Assembly. Article 124(2)of the Constitution (prior to its amendment) had only two constitutionalauthorities involved in the appointment process – the President and theChief Justice of India. The 99th Constitution Amendment Act has introduceda third and a previously non-constitutional ‘authority’ namely an eminentperson. Two eminent persons who had no role to play in the appointmentprocess prior to the 99th Constitution Amendment Act have suddenly assumedKafkaesque proportions and together they can paralyze the appointmentprocess, reducing the President and the Chief Justice of India to ciphersfor reasons that might have nothing to do with the judicial potential orfitness and suitability of a person considered for appointment as a judge.That they might not do so is another matter altogether but in aconstitutional issue as grave as the appointment of judges, allpossibilities require to be taken into consideration since it affects theindependence of the judiciary and eventually the rights, including thefundamental rights, of the people. The conferment of a veto to any memberof the NJAC, eminent person or otherwise, is clearly an unconstitutionalcheck on the authority of the President and the Chief Justice of India.510. The sum and substance of this discussion is that in principle, therecan be no objection to consultation with eminent persons from all walks oflife in the matter of appointment of judges, but that these eminent personscan veto a decision that is taken unanimously or otherwise by the ChiefJustice of India (in consultation with other judges and possibly othereminent persons) is unthinkable – it confers virtually a monarchical poweron the eminent persons in the NJAC, a power without any accountability; thecategories of eminent persons ought not to be limited to scheduled castes,scheduled tribes, other backward classes, minorities or women but that is amatter of policy and nothing more can be said about this, except that arethink is necessary; there can be no guidelines for deciding who is or isnot an eminent person for the purposes of nomination to the NJAC, but thatthe choice is left to a high powered committee is a sufficient check,provided the decision of the committee is unanimous.(d) Law Minister511. The presence of the Law Minister in the NJAC was objected to by thepetitioners for several reasons. Principally, it was contended that theUnion of India is the biggest litigant in the courts and to have the LawMinister as a member of the NJAC might prove detrimental to a fairselection, if not counter-productive.512. It is true that the Union of India is the largest litigant in thecountry and that was recognized in the Second Judges case. It was said byJustice Pandian as follows:“No one can deny that the State in the present day has become the majorlitigant and the superior courts particularly the Supreme Court, havebecome centres for turbulent controversies, some of which with a flavour ofpolitical repercussions and the Courts have to face tempest and stormbecause their vitality is a national imperative. In such circumstances,therefore, can the Government, namely, the major litigant be justified inenjoying absolute authority in nominating and appointing its arbitrators.The answer would be in the negative. If such a process is allowed tocontinue, the independence of judiciary in the long run will sink withoutany trace.”[674]513. Similarly, Justice Kuldip Singh also mentioned that the Union ofIndia is the single largest litigant in the country. The learned judgesaid:“In S.P. Gupta case this Court construed the words in Articles 124(2) and217(1) of the Constitution by taking the clock back by forty years. Thefunctioning of the Apex Judiciary during the last four decades, theexpanding horizon of, ‘judicial review’, the broader concept of‘independence of judiciary’, practice and precedents in the matter ofappointment of judges which ripened into conventions and the role of theexecutive being the largest single litigant before the courts, are some ofthe vital aspects which were not adverted to by this Court whileinterpreting the constitutional provisions.”[675]514. The learned judge expressed the same sentiment far more emphaticallyin the following words:“Then the question which comes up for consideration is, can there be anindependent judiciary when the power of appointment of judges vests in theexecutive? To say yes, would be illogical. The independence of judiciary isinextricably linked and connected with the constitutional process ofappointment of judges of the higher judiciary. ‘Independence of Judiciary’is the basic feature of our Constitution and if it means what we havediscussed above, then the Framers of the Constitution could have neverintended to give this power to the executive. Even otherwise theGovernments - Central or the State - are parties before the Courts in largenumber of cases. The Union Executive have vital interests in variousimportant matters which come for adjudication before the Apex Court. Theexecutive - in one form or the other - is the largest single litigantbefore the courts. In this view of the matter the judiciary being themediator - between the people and the executive - the Framers of theConstitution could not have left the final authority to appoint the Judgesof 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 theindependence of judiciary is the basic feature of the Constitution butfailed to appreciate that the interpretation, it gave, was not inconformity with broader facets of the two concepts - ‘independence ofjudiciary’ and ‘judicial review’ - which are interlinked.”[676]In view of this, there can be no doubt that the Government of India is amajor litigant and for a Cabinet Minister to be participating (and having aveto) in the actual selection of a judge of a High Court or the SupremeCourt is extremely anomalous.[677]515. Historically, and I have quoted chapter and verse from virtuallyevery relevant committee in this regard, the executive was always intendedto be kept out of the decision-taking process in the matter of appointmentof judges. What is sought to be achieved by including the Law Minister inthe NJAC is to cast a doubt on the wisdom of legal luminaries, Dr. Ambedkarand the Constituent Assembly in keeping the executive out of the decision-taking process in the appointment of judges.516. Nevertheless, it is true that inputs from the executive are importantin the process of taking a decision whether a person should or should notbe appointed as a judge of a High Court or the Supreme Court. Butproviding inputs by the executive is quite different from the process oftaking a decision by the executive or the executive being involved in theprocess of taking a decision. While it must be acknowledged that the LawMinister is only one of six in the NJAC but being a Cabinet Ministerrepresenting the entire Cabinet and the Government of India in the NJAC,the Law Minister is undoubtedly a very important and politically powerfulfigure whose views can, potentially, have a major impact on the views thatother members of the NJAC may hold. Since the Law Minister is, by virtue ofthe office held, potentially capable of influencing the decision of amember of the NJAC, it would be inappropriate for the Law Minister to be apart of the decision-taking process. The selection process must not only befair but must appear to be fair.517. It must be realized and appreciated that the tectonic shift inseveral countries towards constituting a judicial appointment commission istaking place only to ensure that the executive does not have a role in theappointment of judges. The learned Attorney-General supported the shiftbut if the trend is to be taken seriously, the Law Minister can have noplace in any commission or, as in the present case, in the NJAC. Therefore,while the 99th Constitution Amendment Act and the NJAC Act attempt to setup a body intended to be independent of the executive, the NJAC that hasbeen set up has an important member of the political executive as a part ofthis body, which is rather anachronistic.518. It must also be realized that as mentioned in the First Judges casetwo countries Australia (today having a total of about 200 judges in theHigh Court and the State Supreme Courts) and New Zealand (today having atotal of about 20 judges [in the Supreme Court and in the Court of Appeal])were veering round to having a judicial appointment commission for thehigher judiciary.[678] We were informed during the hearing of thesepetitions that these countries have not, even after four decades,established such commissions, while our country seems to be in a great rushto do so. The issues, debates, discussions and considerations in thesecountries would be different from ours, but merely because these and othercountries are looking towards a judicial appointment commission is noreason 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 concernpost apartheid. It is, therefore, odious to compare the judicialappointment systems in other countries with our country and to lift ideasand concepts that might be workable in those countries without consideringwhether they could be adopted or adapted in our country.519. In Australia, an article suggesting adoption of the UK JudicialAppointments Commission introduced by the CRA has this to say aboutjudicial appointments and political patronage (which might be possible inthe NJAC as established):“While the collective strength and quality of the Australian judiciary isnot in doubt, it is the case that particular appointments have attractedcriticism, either in relation to the character and ability of theindividual chosen or their conduct while in office. It is a notorious factthat judicial officers have been appointed, including to the High Court,whose character and intellectual and legal capacities have been doubted andwhose appointments have been identified as instances of politicalpatronage.…………What is essential is that decisional independence be guaranteed to judicialofficers. The core of judicial independence is freedom from influence inthe central judicial task of adjudicating disputes about legal rights thatarise between private parties, between the State and private parties, and(in a federation) between components of the State. The core is protectedthrough institutional arrangements such as tenure, remuneration and thejurisdictional separation of powers. As we have already noted, it isinescapable that politics will have a role to play in the appointmentprocess. However, if appointments are perceived to be made on the basis ofpolitical patronage there is a threat to (at least the appearance of)decisional independence. It is impossible — and undesirable — to remove thepolitical entirely from the appointments process. Indeed, in our view,‘political’ considerations, in the sense of responsibility andaccountability for appointments, need to be intensified rather thanobscured. What an appointments model should attempt to do is attenuate thedirect influence of the political branch on the appointment process andsubject its involvement in the appointment process to greater transparencyand accountability, while preserving all the existing constitutionalarrangements for ensuring decisional independence. ”[679]520. In South Africa, while dealing with judicial appointments, JusticeYvonne Mokgoro, former judge of the Constitutional Court had this to say:“Thus, judicial transformation in South Africa must include a new judicialappointments procedure which is open and independent of external influence;changing the demographics of the Bench, in particular with regards to raceand gender as critical aspects of shaping the form of a judiciary whichserves an open and democratic society; appreciating that judicialcompetence and how judges manage their judicial power and independence aremajor aspects of enhancing access to justice and judicial accountability.Enforcing and embracing the principles and values of a fundamentally newlegal order is also a critical attitudinal change that will havesubstantive implications for the judicial interpretation of the law and thecreation of a new constitutional jurisprudence. These reforms are all nodoubt necessary considerations for judicial transformation. Courts musttherefore function efficiently so that judges can dispense justice to all,most competently. Fundamental to this principle is that when appointingjudges consideration must be given to the need for the judiciary to reflectbroadly the racial and gender composition of South Africa.---------In a society such as ours, where patriarchy is so deeply entrenched,affecting adversely the everyday lives of so many women, including women inthe law, the strategic value of women’s participation on the Bench andpositions of power and authority should not be underestimated. Theirdevelopment management style, the influence of the unique perspectives theybring to the adjudicative task and even the mere symbolism of theirpresence there could bring enormous returns for the transformation processitself and respect for women in society at large. The need for women bothin the judiciary as a whole and in leadership positions in particularcannot be exaggerated. Although, we have come a long way, we must agreethat we have just scratched the surface. We must step up our efforts. Somethings must change.”[680]The considerations in different countries are, to put it simply, different.We need to have our own indigenous system suited to our environment and ourown requirements.521. In a Position Paper of 11th December, 2011 on the Appointment ofJudges, the Law Society of Botswana emphasized that different legal systemsrequire different responses in the appointment of judges. It was said:“Throughout the region, the relevance of judicial independence to the ruleof law, democracy and the protection and promotion of human rights isundisputed. This acknowledgment notwithstanding, judicial independencecontinues to face threats that compromise not only individual judges butmore so the institutions vested with the responsibility of dispensingjustice. To that end, judicial independence remains one of the cornerstonesof democracy and constitutionalism the world over, remaining the centralgoal of most legal systems. It has been noted that the independence of thejudiciary necessitates that there should be freedom from influence orcontrol from the executive and legislative branches of the Government.To achieve this important goal, systems of appointment of judicial officersare seen as crucial to ensuring that the independence of the judiciary isachieved. Whilst there is general consensus on the importance of judicialindependence, different legal systems have utilized various methods ofappointing occupants of judicial office. These include; a) appointment bypolitical institutions; b) appointment by the judiciary itself; c)appointment by a judicial council (which may include non-judge members) andsometimes d) selection through an electoral system. This diversity at thevery least indicates that there exists no general consensus on the bestapproach to guarantee judicial independence. That notwithstanding, themechanisms for the appointment of judges remain crucial in maintainingjudicial independence and public confidence in the judiciary.”[681]522. It was pointed out by the learned Attorney-General that at all timessince Independence, the Law Minister has been a part of the process in theappointment of judges. In fact it is through the Law Minister thatimportant inputs are placed before the Chief Justice of India particularlywith 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 consideredfor appointment as a judge. There is, therefore, no reason to now excludethe Law Minister from this process.523. There is a distinction, as mentioned above, between the Law Ministerproviding inputs to the Chief Justice of India and the Law Minister havinga say in the final decision regarding the appointment of a judge of a HighCourt or the Supreme Court. While the former certainly cannot be objectedto and in fact would be necessary, it is the participation in the decision-taking process that is objectionable. In other words, the Law Ministermight be a part of the decision-making process (as the position was priorto the 99th Constitution Amendment Act) but ought not to be a part of thedecision-taking process. This distinction is quite crucial. The votingparticipation of the Law Minister in the decision-taking process goesagainst the grain of the debates in the Constituent Assembly and clearlyamounts to an alteration of the basic structure of the Constitution.524. It was faintly contended by Mr. Nariman that having only the LawMinister of the Government of India as a member of the NJAC and not havinghis/her counterpart from the State Government as a member of the NJAC mayhave an impact on federalism in our Constitution. Apart from mentioningit, no serious argument was advanced in this regard, perhaps because theprincipal objection is to the representation of the Government of India inthe NJAC. In view of the fact that no detailed submissions were made inthis regard, I would not like to express any opinion on this contention.525. The sum and substance of this discussion is that the struggle for theindependence of the judiciary has always been pivoted around the exclusionof the executive in decision-taking, but the inclusion of the Law Ministerin the NJAC is counter-productive, historically counter-majoritarian andgoes against the grain of various views expressed in various committees –more so since the Law Minister can exercise a veto in the decision-takingbody; the presence of the Law Minister in the NJAC is totally unnecessaryand ill-advised; the presence of the Law Minister in the NJAC casts a doubton the principle of Cabinet responsibility.(e) The NJAC and the impact on mandatory consultation526. Article 124(2) of the Constitution as originally framed made itmandatory for the President to consult the Chief Justice of India in theappointment of judges. The rationale behind this has already beendiscussed. The 99th Constitution Amendment Act completely does away withthe mandatory consultation. The President is not expected to consultanybody in the appointment process – he/she is expected to act only on therecommendation of the NJAC. The authority that the President had to turndown a recommendation made by the collegium, if it was not unanimous, isnow taken away from the President who is obliged to accept a recommendationfrom the NJAC even if it is not unanimous. This is a considerable whittlingdown of the authority of the President and a drastic change in theappointment process and in a sense reduces the President (as an individual)to a rubber stamp.[682] Similarly, as mentioned above the Chief Justice ofIndia is reduced to just another number in the NJAC.527. Mandatory consultation between the President and the Chief Justice ofIndia was well thought out by the Drafting Committee and the ConstituentAssembly but has now been made farcical by the 99th Constitution AmendmentAct, for the reasons mentioned above. Article 124(2) of the Constitution(prior to its amendment) placed the President and the Chief Justice ofIndia on an equal pedestal. It is this that made the consultation betweenthese two constitutional authorities meaningful and made one constitutionalauthority act as a check on the other. This was the ‘partnership approach’that the Constituent Assembly had in mind and this was given flesh andblood through, what Dr. Rajeev Dhavan referred to as ‘institutionalparticipation’ in the Second Judges case. The importance of the SecondJudges case lies not so much in the shared responsibility but the‘institutional participation’ of the judiciary in the appointment processintegrated with the participation of the President. This is now missing.528. What is the importance of the mandatory consultation? There are twocrucial factors to be carefully considered before a person is appointed asa judge of the Supreme Court or a High Court. These are: (1) Theprofessional skills, judicial potential, suitability and temperament of aperson to be a good judge, and (2) The personal strengths, weaknesses,habits and traits of that person. As far as the professional skills,judicial potential, suitability and temperament of a person being a goodjudge is concerned, the most appropriate person to make that assessmentwould be the Chief Justice of India (in consultation with the other judges)and not somebody from outside the legal fraternity. On the other hand, asfar as the personal strengths, weaknesses, habits and traits of a personare concerned, appropriate inputs can come only from the executive, sincethe Chief Justice of India and other judges may not be aware of them. It isfor this reason that the Constituent Assembly made it mandatory forconsultation between the Chief Justice of India (as the head of theJudiciary) having vital inputs on the potential of a person being a goodjudge and the President (as the Head of State acting through the Council ofMinisters with the Prime Minister as the head of the Executive) being thebest judge to assess the personal traits of a person being considered forappointment as a judge. In other words, the Chief Justice of India is the‘expert’ with regard to potential while the executive is the ‘expert’ withregard to the antecedents and personal traits. Since these two facets ofthe personality of a would-be judge are undoubtedly distinct, there cannotbe a difference of opinion between the judiciary and the executive in thisregard since they both express an opinion on different facets of a person’slife. The Chief Justice of India cannot comment upon the ‘expert opinion’of the executive nor can the executive comment upon the ‘expert opinion’ ofthe Chief Justice of India.529. It is for the Chief Justice of India as the head of the judiciary tomanage the justice delivery system and it is for him/her to take the finalcall whether the antecedents or personal traits of a person will or willnot interfere in the discharge of functions as a judge or will, in anymanner, impact on the potential of becoming a good judge. As stated by JackStraw, what is important is that it is necessary to get it right the firsttime and every time. There can be a situation where the personal traits ofa person may be such as to disqualify that person from being appointed as ajudge and there can be a situation where the personal traits, thoughobjected to, would not have any impact whatsoever on the potential of thatperson becoming a good judge. For example, in the recent past, there hasbeen considerable debate and discussion, generally but not relating to thejudiciary, with regard to issues of sexual orientation. It is possible thatthe executive might have an objection to the sexual orientation of a personbeing considered for appointment as a judge but the Chief Justice of Indiamay be of the opinion that that would have no impact on his/her ability toeffectively discharge judicial functions or the potential of that person tobe a good judge.[683] In situations such as this, it is the opinion ofthe Chief Justice of India that should have greater weight since, asmentioned earlier, it is for the Chief Justice of India to efficiently andeffectively manage the justice delivery system and, therefore, the lastword should be with the Chief Justice of India, unanimously expressed.530. The 99th Constitution Amendment Act and the NJAC Act not only reducethe Chief Justice of India to a number in the NJAC but also convert themandatory consultation between the President and the Chief Justice of Indiato a dumb charade with the NJAC acting as an intermediary. On earlieroccasions, Parliament enhanced its power through constitutional amendments,which were struck down, inter alia, in Indira Nehru Gandhi and MinervaMills.[684] The 99th Constitution Amendment Act unconstitutionallyminimizes the role of the Chief Justice of India and the judiciary to avanishing point in the appointment of judges. It also considerablydownsizes the role of the President. This effaces the basic structure ofthe independence of the judiciary by sufficiently altering the process ofappointment of judges to the Supreme Court and the High Court, or at leastalters it unconstitutionally thereby striking at the very basis of theindependence of the judiciary.531. The entire issue may be looked at in another light: Why did theConstituent Assembly make it mandatory for the President to consult theChief Justice of India for the appointment of judges of the Supreme Courtor the High Court when equally important, if not more importantconstitutional authorities could be appointed by the President withoutconsulting anybody and in his/her ‘unfettered discretion’? The reason forthe ‘special’ treatment in the case of appointments to the judiciary isbecause the Constituent Assembly appreciated and acknowledged and,therefore, accepted the necessity of preserving and protecting theindependence of the judiciary, a significant pillar of parliamentarydemocracy. It also acknowledged that the most appropriate person to guideand advice the President in the appointment of judges would be none otherthan the Chief Justice of India. It was known to the Constituent Assemblythat the rights of the people, including their fundamental rights, needprotection against arbitrary executive power and excessive legislativeaction and unless the judiciary steps in and grants that protection, sucharbitrary power or excessive action can be misused and abused. This hadhappened in pre Independent India and has happened in our recent history.The 99th Constitution Amendment Act and the NJAC Act positively indicate(unconstitutionally) that now the Chief Justice of India and the otherjudges are not necessarily the best persons to advise the President on theappointment of judges.532. Underscoring the importance of the appointment of independent judges(to Americans, and this would equally apply to Indians) it has been saidthat:“Judicial appointments are important because judges matter, not just toacademics, politicians, and practitioners, but to all Americans. Judgesplay an increasingly significant role in everyday life decisions. Itfollows that the process by which they are selected matters. It likewisefollows that because of the perceived importance of appointing judges, theappointments process breeds contention.”[685]533. Without an independent judiciary, not only ‘everyday life decisions’are affected but a dominant executive can ensure that the statutory rightswould have no meaning and the fundamental rights of the people of thecountry can be easily trampled upon. Highlighting the impact of thejudiciary (generally) on the Rule of Law and particularly on the rights andinterests of individuals, Chief Justice Mason of Australia had this to say:“Another factor relevant to the mode of selection of judges is thejudiciary’s position as an important branch or institution of government.The judges exercise public power in a way that has substantial impact uponthe rights and interests of individuals and upon the making of importantdecisions by government, government agencies and other organisations.”[686]534. The Constituent Assembly was well aware of the misuse and abuse ofpower by the executive, having fought for our freedom and knew andunderstood the value of an independent judiciary. It is for this reasonthat the Constituent Assembly gave prime importance to the independence ofthe 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 Bharati while laying the basis for the ‘width ofpower’ test (later adopted in M. Nagaraj) that:“…the test of the true width of a power is not how probable it is that itmay be exercised but what can possibly be done under it; that the abuse ormisuse of power is entirely irrelevant; that the question of the extent ofthe power cannot be mixed up with the question of its exercise and thatwhen the real question is as to the width of the power, expectation that itwill never be used is as wholly irrelevant as an imminent danger of itsuse. The court does not decide what is the best and what is the worst. Itmerely decides what can possibly be done under a power if the wordsconferring it are so construed as to have an unbounded and limitless width,as claimed on behalf of the respondents.”[687]536. Now, consider this - given the width of the power available underthe 99th Constitution Amendment Act if committed judges are appointed (aswas propagated at one point of time and it can get actualized after the99th Constitution Amendment Act) then no one can expect impartial justiceas commonly understood from a ‘committed’ Supreme Court or a High Court.The Constituent Assembly wished to completely avoid this and that is whyconsiderable importance was given to the process of appointing judges andthe independence of the judiciary. ‘Common to all forms of judicialfunction is independent, impartial and neutral adjudication, though thereis a question as to the possibility of achieving completely neutraladjudication.’[688] The 99th Constitution Amendment Act and the NJAC Actlead to the clear possibility of a committed judiciary being put in place.If this does not violate the basic structure of the Constitution, whatdoes?537. The sum and substance of this discussion is that mandatoryconsultation between the President and the Chief Justice of Indiapostulated in the Constitution is by-passed – bringing about a hugealteration in the process of appointment of judges; the 99th ConstitutionAmendment Act and the NJAC Act have reduced the consultation process to afarce – a meaningful participatory consultative process no longer exists;the shared responsibility between the President and the Chief Justice ofIndia in the appointment of judges is passed on to a body well beyond thecontemplation of the Constituent Assembly; the possibility of havingcommitted judges and the consequences of having a committed judiciary, ajudiciary that might not be independent is unimaginable.(f) The NJAC and the appointment of High Court judges538. As far as the appointment of a judge of a High Court is concerned,the 99th Constitution Amendment Act and the NJAC Act have made twoextremely significant changes in the process of appointment. Firstly, themandatory requirement for consultation with the Chief Justice of the HighCourt has been completely dispensed with. Article 217(1) of theConstitution as it was originally enacted made it mandatory for thePresident to consult the Governor of the State and the Chief Justice of theHigh Court in the appointment of a judge of a High Court. The Chief Justicehas now been left out in the cold. Secondly, the constitutional obligationand constitutional convention that has developed over the last severaldecades is that a recommendation for the appointment of a judge of the HighCourt originates from the Chief Justice of the High Court. This has nowbeen given a go-bye by the 99th Constitution Amendment Act and the NJACAct. The entire initiation of the appointment process has now beenoverhauled.539. In terms of Section 6(2) of the NJAC Act, the recommendation for theappointment of a judge of a High Court cannot originate from the ChiefJustice of the High Court but the NJAC will seek a nomination for thatpurpose from the Chief Justice of the High Court. In other words, theinitiative for the appointment of a judge of the High Court is wrested fromthe Chief Justice of the High Court by the NJAC. There is a qualitativedifference between the Chief Justice of a High Court nominating a personfor appointment as a judge of a High Court on the initiative of the NJAC(Section 6(2) of the NJAC Act) and the Chief Justice of a High Courtrecommending a person for appointment as a judge of a High Court (Article217(1) of the Constitution). With such a major departure from theconstitutional obligation and the constitutional convention establishedover the last several decades, the dispensation might encourage canvassingsupport for a nomination – a somewhat similar occurrence was looked downupon by the LCI in its 14th Report.540. However, what is more disturbing and objectionable is that theconsultation process with the Chief Justice of the High Court after anomination is made by him/her of a person for appointment as a judge ofthat High Court has been done away with. The process of consultation is anintegrated and participatory process but by virtue of the 99th ConstitutionAmendment Act and the NJAC Act only a nomination is sought from the ChiefJustice of a High Court by the NJAC. Thereafter, the Chief Justice has norole to play. This is clear from Section 6(7) of the NJAC Act whichmandates the NJAC to elicit in writing the views of the Governor and theChief Minister of the State before recommending a person for appointment asa judge of the High Court, but not the views of the Chief Justice, who isreduced to a mere nominating officer, whose assigned task is over as soonas the nomination is made.541. The combined effect of the 99th Constitution Amendment Act andSection 6 of the NJAC Act is that the entire control over the appointmentof a judge of a High Court is taken over by the NJAC and the paradigm iscompletely altered with the Chief Justice of a High Court downgraded from amandatory consultant, and the originator of a recommendation forappointment as postulated by Article 217(1) of the Constitution asconventionally understood, to someone who merely makes a nomination andthereafter is not required to be consulted one way or the other withrespect to the nomination made. This drastic change in the process ofappointment of a judge of a High Court obviously has a very long termimpact since it is ultimately from the ‘cadre’ of High Court judges thatmost Supreme Court judges would be appointed, if the existing practice isfollowed. This in turn will obviously have a long term impact on theindependence of the judiciary apart from completely altering the processfor appointment of a judge of a High Court.542. The appointment of judges is a very serious matter and it isdifficult to understate its importance. Referring to a view expressed byShimon Shetreet[689] it is stated by Sarkar Ali Akkas of the University ofRajshahi, Bangladesh that:“The appointment of judges is an important aspect of judicial independencewhich requires that in administering justice judges should be free from allsorts of direct or indirect interference or influences. The principle ofthe independence of the judiciary seeks to ensure the freedom of judges toadminister justice impartially, without any fear or favour. This freedom ofjudges has a close relationship with judicial appointment because theappointment system has a direct bearing on the impartiality, integrity andindependence of judges.”[690]543. Essentially, the 99th Constitution Amendment Act replaces orsubstitutes the collegium system of appointment of judges by the NJAC. Itmust be realized that a judicial appointments commission (by whatever namecalled) is a worldwide reaction to the executive taking over and appointingjudges. No system following the Rule of Law would like to retain a systemof appointment of judges where the executive plays a major role or has thelast word on the subject, hence the occasional clamour for a judicialappointments commission. As the Hamlyn lecture of Jack Straw illustrates,the executive desires greater control in the appointment of judges but thejudiciary eventually has the upper hand, as it should – but not so with theNJAC.544. The decision of this Court in Kumar Padma Prasad v. Union ofIndia[691] is an example of how wrong the executive can be in the matter ofappointment of judges. In that case, a judicial officer was recommended forappointment as a judge of the Gauhati High Court at the instance of theChief Minister of Mizoram. The recommendation was agreed to by the ChiefJustice of India and the warrant of appointment of the recommended personwas issued by the President but it was subsequently not given effect tosince the person was found not qualified to be appointed as a judge of theHigh Court. Recently, the Canadian Supreme Court answered a reference madeby the Governor General in Council as a result of which the appointment andswearing in of a judge of the Supreme Court was declared void ab initiosince he did not possess the eligibility requirement.[692] Instances ofthis nature, fortunately few and far between have shaken public confidencein a system of appointment of judges where primacy is with the executive,hence the desire to shift to an efficacious alternative. While there mightbe 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 variousgaps in its functioning, the NJAC system downgrading the President and theChief Justice of India and incorporating a host of other features thatseverely impact on the appointment of judges and thereby on theindependence of the judiciary and thereby on the basic structure of theConstitution.545. It was submitted by the learned Attorney-General that there is adisenchantment with the collegium system of appointment of judges and thatis why it needs to be replaced or substituted and that is precisely whatthe 99th Constitution Amendment Act has achieved. The learned Attorney-General referred to the NJAC as the third chapter in the appointment ofjudges - the first chapter being one in which the executive had the‘ultimate power’ in the appointment process and the second chapter beingone in which the Executive and the Judiciary have a shared responsibilitywith the judiciary having institutional participation. This may be so, butthrough the 99th Constitution Amendment Act the NJAC takes away theresponsibility not only of the executive but also the shared responsibilityof the judiciary and the executive, completely decapitating the appointmentsystem given to us by the Constituent Assembly – a system that ensures theindependence of the judiciary.546. Working within the parameters suggested by the learned Attorney-General, namely, the presumption of constitutionality of the 99thConstitution Amendment Act, that the basis of the judgment in the SecondJudges case has been removed, the wisdom of Parliament and the needs of thepeople cannot be questioned and that this Court must recognize that societyand its requirements have changed with the passage of time, it is notpossible to uphold the constitutional validity of the 99th ConstitutionAmendment Act. The recipe drastically alters the process of appointment ofjudges of the Supreme Court and the High Courts by taking away itsessential ingredients leading to a constitutional challenge that must beaccepted. 547. Taking an overall and composite view of the 99thConstitution Amendment Act and the NJAC Act, rather than a piecemealdiscussion or a dissection of each provision, there can be little doubtthat Article 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 124B and Article 124C of theConstitution and the other provisions of the 99th Constitution AmendmentAct, which are not severable and therefore these provisions must be and aredeclared unconstitutional being in violation of and altering the basicstructure of the Constitution.548. The sum and substance of this discussion is that the process ofinitiating a recommendation for the appointment of a judge, generallyaccepted since Independence, has been radically changed, with wellentrenched constitutional conventions being given short shrift; the ChiefJustice of the High Court has been reduced to the role of a nominatingofficer, whose opinion is taken only for nomination purposes but not takenas a consultant in so vital a matter as the appointment of a judge; theconstitutional importance given to the Chief Justice of a High Court hasbeen completely whittled down virtually to a vanishing point.Convenor of the NJAC549. There are some peripheral issues that need to be discussed. Theinvolvement of the executive in the NJAC does not stop with the LawMinister being one of itsmembers. The Secretary to the Government of India in the Department ofJustice is the convenor of the NJAC in terms of Section 8(3) of the NJACAct. The duties and responsibilities of the convenor have not beendelineated in the NJAC Act and, as mentioned above, the rules andregulations under the Act have not been framed. It is therefore difficultto appreciate the functions that the convenor is expected to perform.550. That apart, the Secretary is an officer of the government and is notanswerable to the NJAC. The Secretary is paid a salary and allowances fromthe government coffers. This is quite unlike officers of the High Courts orthe Supreme Court who are directly answerable to their respective ChiefJustice. Moreover, their salary and allowances are charged upon theConsolidated Fund of India. The ‘independence’ of these officers ismaintained while that of the Secretary to the Government of India in theDepartment of Justice is not. Moreover, the Secretary holds a transferableposition 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 drywhenever it pleases the executive. This is clearly objectionable. However,to be fair to the learned Attorney-General, it was submitted that ifnecessary a Registrar in the Supreme Court may be appointed as theconvenor, but with respect that is not at all an answer to the issueraised.Transparency551. In the context of confidentiality requirements, the submission of thelearned Attorney-General was that the functioning of the NJAC would becompletely transparent. Justifying the need for transparency it wassubmitted that so far the process of appointment of judges in the collegiumsystem has been extremely secret in the sense that no one outside thecollegium or the Department of Justice is aware of the recommendations madeby the Chief Justice of India for appointment of a judge of the SupremeCourt or the High Courts. Reference was made to Renu v. District Judge[693]to contend that in the matter of appointment in all judicial institutions‘complete darkness in the light house has to be removed.’[694]552. In addition to the issue of transparency a submission was made thatin the matter of appointment of judges, civil society has the right to knowwho is being considered for appointment. In this regard, it was held inIndian Express Newspapers v. Union of India[695] that the people have aright to know. Reliance was placed on Attorney General v. Times NewspapersLtd.[696] where the right to know was recognized as a fundamentalprinciple of the freedom of expression and the freedom of discussion.553. In State of U.P. v. Raj Narain[697] the right to know was recognizedas having been derived from the concept of freedom of speech.554. Finally, in Reliance Petrochemicals Ltd. v. Proprietors of IndianExpress Newspapers Bombay (P) Ltd.[698] it was held that the right to knowis a basic right which citizens of a free country aspire in the broaderhorizon of the right to live in this age in our land under Article 21 ofour Constitution.555. The balance between transparency and confidentiality is very delicateand if some sensitive information about a particular person is made public,it can have a far reaching impact on his/her reputation and dignity. The99th Constitution Amendment Act and the NJAC Act have not taken note of theprivacy concerns of an individual. This is important because it wassubmitted by the learned Attorney-General that the proceedings of the NJACwill be completely transparent and any one can have access to informationthat is available with the NJAC. This is a rather sweeping generalizationwhich obviously does not take into account the privacy of a person who hasbeen recommended for appointment, particularly as a judge of the High Courtor in the first instance as a judge of the Supreme Court. The right to knowis not a fundamental right but at best it is an implicit fundamental rightand it is hedged in with the implicit fundamental right to privacy that allpeople enjoy. The balance between the two implied fundamental rights isdifficult to maintain, but the 99th Constitution Amendment Act and the NJACAct do not even attempt to consider, let alone achieve that balance.556. It is possible to argue that information voluntarily supplied by aperson who is recommended for appointment as a judge might not have a rightto privacy, but at the same time, since the information is supplied inconfidence, it is possible to argue that it ought not to be disclosed tothird party unconcerned persons. Also, if the recommendation is notaccepted by the President, does the recommended person have a right to non-disclosure of the adverse information supplied by the President? These aredifficult questions to which adequate thought has not been given and merelyon the basis of a right to know, the reputation of a person cannot bewhitewashed in a dhobi-ghat.Doctrine of Revival557. The learned Solicitor-General submitted that when a law is amendedand the amendment is declared unconstitutional, the pre-amendment law doesnot revive. Therefore, even if the 99th Constitution Amendment Act isdeclared as altering the basic structure of the Constitution, Article124(2) of the Constitution as it existed prior to the 99th ConstitutionAmendment Act will not automatically revive and the collegium system willnot resurface.558. An interesting discussion is to be found in this regard in West U.P.Sugar Mills Assn. v. State of U.P.[699] This Court referred to B.N. Tewariv. Union of India[700] and Firm A.T.B. Mehtab Majid & Co. v. State ofMadras[701] in both of which it was held that if a statutory rulesubstitutes a rule and the new rule is struck down or declared invalid, thesubstituted or old rule does not revive since it ceased to exist on itssubstitution. The same rationale was applied to a notification in IndianExpress Newspapers (Bom) (P) Ltd. v. Union of India.[702]559. However, it was further held that if a subsequent law is held to bevoid such as in a case where the Legislature had no competence to enact thelaw, then the earlier or the old law would revive. It was held:“It would have been a different case where a subsequent law which modifiedthe earlier law was held to be void. In such a case, the earlier law shallbe deemed to have never been modified or repealed and, therefore, continuedto be in force. Where it is found that the legislature lacked competence toenact a law, still amends the existing law and subsequently it is foundthat the legislature or the authority was denuded of the power to amend theexisting law, in such a case the old law would revive and continue.”[703]560. In State of T.N. v. K. Shyam Sunder[704] the two extant views on thesubject have been noted. In paragraph 56 of the Report, it is pointed outthat on the repeal of a statute it is effectively obliterated from thestatute books and even if the amending [repealing] statute is declaredunconstitutional on the ground of lack of legislative competence in theLegislature, 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, para22)“22. It is a settled legal proposition that whenever an Act is repealed, itmust be considered as if it had never existed. The object of repeal is toobliterate the Act from the statutory books, except for certain purposes asprovided under Section 6 of the General Clauses Act, 1897. Repeal is not amatter of mere form but is of substance. Therefore, on repeal, the earlierprovisions stand obliterated/abrogated/wiped out wholly i.e. pro tantorepeal….”Thus, undoubtedly, submission made by the learned Senior Counsel on behalfof the respondents that once the Act stands repealed and the amending Actis struck down by the Court being invalid and ultra vires/unconstitutionalon the ground of legislative incompetence, the repealed Act willautomatically revive is preponderous [preposterous] and needs no furtherconsideration. This very Bench in State of U.P. v. Hirendra Pal Singh,after placing reliance upon a large number of earlier judgmentsparticularly in Ameer-un-Nissa Begum v. Mahboob Begum, B.N. Tewari v. Unionof India, India Tobacco Co. Ltd. v. CTO, Indian Express Newspapers (Bombay)(P) Ltd. v. Union of India, West U.P. Sugar Mills Assn. v. State of U.P.,Zile Singh v. State of Haryana, State of Kerala v. Peoples Union for CivilLiberties and Firm A.T.B. Mehtab Majid and Co. reached the sameconclusion.” (Internal citations omitted)On the other hand, it is pointed out in paragraph 57 of the Report that ifa statute is repealed and the new statute is declared unconstitutional onthe ground that it violates the fundamental rights chapter, then therepealed statute revives. It was said:“There is another limb of this legal proposition, that is, where the Act isstruck down by the Court being invalid, on the ground of arbitrariness inview of the provisions of Article 14 of the Constitution or being violativeof fundamental rights enshrined in Part III of the Constitution, such Actcan be described as void ab initio meaning thereby unconstitutional,stillborn or having no existence at all. In such a situation, the Act whichstood repealed, stands revived automatically. (See Behram Khurshid Pesikakaand Mahendra Lal Jaini.)” (Internal citations omitted)There does appear to be a doubt (if not a subtle conflict of views) thatneeds to be resolved in the sense that if a statute is repealed andobliterated from the statute books, under what circumstances does theobliteration vanish, if at all. However, none of these decisions make anyreference to an amendment of the Constitution, and for the present it isnot necessary to dive into that controversy. This is for the simple reasonthat the issue requires considerable debate, of which we did not have thebenefit. Justice Khehar has elaborately dealt with this issue in his draftjudgment but I would like to leave the question open for debate on anappropriate occasion. 561. But, quite apart from this, if the contentionof the learned Solicitor-General is accepted, then on the facts of thiscase, the result would be calamitous. The simple reason is that if the 99thConstitution Amendment Act is struck down as altering the basic structureof the Constitution and if Article 124(2) in its original form is notrevived then Article 124(2) of the Constitution minus the words deleted (bythe 99th Constitution Amendment Act) and minus the words struck down (thoseinserted by the 99th Constitution Amendment Act) would read as follows:|Article 124(2) as it was |Article 124(2) after the |Article 124(2) ||originally |99th Constitution Amendment |after the 99th || |Act |Constitution || | |Amendment is struck|| | |down and the || | |original Article || | |124(2) is not || | |revived ||(2) Every Judge of the |(2) Every Judge of the |(2) Every Judge of ||Supreme Court shall be |Supreme Court shall be |the Supreme Court ||appointed by the President|appointed by the President |shall be appointed ||by warrant under his hand |by warrant under his hand |by the President by||and seal after |and seal on the |warrant under his ||consultation with such of |recommendation of the |hand and seal and ||the Judges of the Supreme |National Judicial |shall hold office ||Court and of the High |Appointments Commission |until he attains ||Courts in the States as |referred to in article 124A |the age of ||the President may deem |and shall hold office until |sixty-five years: ||necessary for the purpose |he attains the age of | ||and shall hold office |sixty-five years: | ||until he attains the age | | ||of sixty-five years: | | |562. This would give absolute power to the President to appoint a judge tothe Supreme Court without consulting the Chief Justice of India (and alsoto appoint a judge to a High Court). The result of accepting his submissionwould be to create a tyrant, as James Madison put it in the FederalistPapers No. 47:“The accumulation of all powers, legislative, executive, and judiciary, inthe same hands, whether of one, a few, or many, and whether hereditary,self-appointed, or elective, may justly be pronounced the very definitionof tyranny.”563. This was put to the learned Solicitor-General and it was also put tohim that if his submissions are correct, then it would be better for theUnion of India to have the 99th Constitution Amendment Act struck down sothat absolute power resides in the President making him/her an Imperium inImperio as far as the appointment of judges is concerned. The learnedSolicitor-General smiled but obviously had no answer to give. It must,therefore, be held that the constitutional provisions amended by the 99thConstitution Amendment Act spring back to life on the declaration that the99th Constitution Amendment Act is unconstitutional.Conclusions564. Very briefly, Dr. Ambedkar was of the view that the President shouldhave some discretion but not unfettered discretion in the appointment ofjudges. The Second Judges case acknowledged that the President has thediscretion to turn down a recommendation made by the Chief Justice ofIndia, but only under certain circumstances. This was the fetter on thediscretion of the President. However, the 99th Constitution Amendment Actand the NJAC Act have completely taken away the discretion of the Presidentto turn down a recommendation for the appointment of a judge, reducing theconstitutional significance of the President.565. Dr. Ambedkar was of the view that the President should have thediscretion to consult judges of the Supreme Court and the High Courts inrespect of a recommendation for appointment by the Chief Justice of India.The President waspresented, by Second Judges case and the Third Judges case, with the resultof the consultation exercise carried out by the Chief Justice of Indiawhich the Chief Justice of India was mandated to do. It is over and abovethis that the President was entitled to consult other judges of the SupremeCourt or the High Courts. However, the 99th Constitution Amendment Act andthe NJAC Act have taken away this freedom of consultation from thePresident, who has no option but to take into account only therecommendation of the NJAC and not travel beyond that. Once again, theconstitutional significance and importance of the President is considerablyreduced, if not taken away.566. Dr. Ambedkar was opposed to the concurrence of the Chief Justice ofIndia (as an individual) in respect of every appointment of a judge. TheSecond Judges case made it mandatory for the Chief Justice of India to takethe opinion of other judges and also left it open to the Chief Justice ofIndia to consult persons other than judges in this regard. The opinion ofthe Chief Justice of India ceased to be an individual opinion (as per the‘desire’ of Dr. Ambedkar) but became a collective or institutional opinion,there being a great deal of difference between the two. However, the 99thConstitution Amendment Act and the NJAC Act have considerably limited andcurtailed the authority of the Chief Justice of India (both individually aswell as institutionally) and the Chief Justice of India is now precludedfrom 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 aninstitutional head.567. Dr. Ambedkar was not prepared to accept the opinion of the ChiefJustice of India (as an individual) as the final word in the appointment ofjudges. This is because the Chief Justice of India has frailties like allof us. The apprehension of Dr. Ambedkar was allayed by the Second Judgescase and the Third Judges case which made it mandatory for the ChiefJustice of India to express a collective opinion and not an individualopinion. The collective and unanimous opinion (duly reiterated ifnecessary) would bind the President being the collective and unanimousopinion of persons who were ex hypothesi ‘well qualified to give properadvice in matters of this sort.’ However, the 99th Constitution AmendmentAct and the NJAC Act reversed the process well thought out in the SecondJudges case and the Third Judges case and have taken away theconstitutional authority of the Chief Justice of India and placed it on aplatter for the NJAC to exploit.568. Given our constitutional history, the established conventions, theviews of various committees over the last seventy years and the views ofscores of legal luminaries beginning with Mr. Motilal Setalvad, the throesthrough which the judiciary has gone through over several decades and theprovisions of our Constitution, I hold that the Article 124A as introducedin the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014impinges on the independence of the judiciary and in the matter ofappointment of judges (which is a foundational and integral part of theindependence of the judiciary) and alters the basic structure of theConstitution. It is accordingly declared unconstitutional. The otherprovisions of the Constitution (Ninety-ninth Amendment) Act, 2014 cannotstand by themselves and are therefore also declared unconstitutional.Similarly, the National Judicial Appointments Commission Act, 2014 confersarbitrary and unchartered powers on various authorities under the statuteand it violates Article 14 of the Constitution and is declaredunconstitutional. Even otherwise, the National Judicial AppointmentsCommission 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 Judges case getsrevived. However, the procedure for appointment of judges as laid down inthese decisions read with the (Revised) Memorandum of Procedure definitelyneeds fine tuning. We had requested learned counsel, on the close ofsubmissions, to give suggestions on the basis that the petitions aredismissed and on the basis that the petitions are allowed. Unfortunately,we received no response, or at best a lukewarm response. Under thecircumstances, in my opinion, we need to have a ‘consequence hearing’ toassist us in the matter for steps to be taken in the future to streamlinethe process and procedure of appointment of judges, to make it moreresponsive to the needs of the people, to make it more transparent and intune with societal needs, and more particularly, to avoid a fifth judgescase! I would, therefore, allow the petitions but list them for a‘consequence hearing’ on an appropriate date......…………………………JNew Delhi; (Madan B. Lokur)16th October, 2015 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 13 OF 2015Supreme Court Advocates-on-Record-Association and another … Petitioner(s) VersusUnion of India … Respondent(s) WITH WRIT PETITION (CIVIL) NO. 14 OF 2015 WITH WRIT PETITION (CIVIL) NO. 18 OF 2015 WITH WRIT PETITION (CIVIL) NO. 23 OF 2015 WITH WRIT PETITION (CIVIL) NO. 24 OF 2015 WITH WRIT PETITION (CIVIL) NO. 70 OF 2015 WITH WRIT PETITION (CIVIL) NO. 83 OF 2015 WITH TRANSFER PETITION (CIVIL) NO. 391 OF 2015 WITH WRIT PETITION (CIVIL) NO. 108 OF 2015 WITH WRIT PETITION (CIVIL) NO. 124 OF 2015 AND WRIT PETITION (CIVIL) NO. 209 OF 2015 O R D E RKURIAN, J.:I wholly agree with the view taken by my esteemed brother, Chelameswar, J.that there is no situation warranting recusal of Justice Khehar in thiscase. Now, that we have to pass a detailed and reasoned order as to why aJudge need not recuse from a case, I feel it appropriate also to deal withthe other side of the coin, whether a Judge should state reasons for hisrecusal in a particular case.One of the reasons for recusal of a Judge is that litigants/the publicmight entertain a reasonable apprehension about his impartiality. As LordChief Justice Hewart said:“It is not merely of some importance but is of fundamental importance thatjustice should not only be done, but should manifestly and undoubtedly beseen to be done.”[705]And therefore, in order to uphold the credibility of the integrityinstitution, the Judge recuses from hearing the case.A Judge of the Supreme Court or the High Court, while assuming Office,takes an oath as prescribed under Schedule III to the Constitution ofIndia, that:“… I will bear true faith and allegiance to the Constitution of India as bylaw established, that I will uphold the sovereignty and integrity of India,that I will duly and faithfully and to the best of my ability, knowledgeand judgment perform the duties of my office without fear or favour,affection or ill-will and that I will uphold the Constitution and thelaws.”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 pecuniary interest, affinity oradversity with the parties in the case, direct or indirect interest in theoutcome of the litigation, family directly involved in litigation on thesame issue elsewhere, the Judge being aware that he or someone in hisimmediate family has an interest, financial or otherwise that could have asubstantial bearing as a consequence of the decision in the litigation,etc., to recuse himself from the adjudication of a particular matter. Nodoubt, these examples are not exhaustive.Guidelines on the ethical conduct of the Judges were formulated in theChief Justices’ Conference held in 1999 known as “Restatement of JudicialValues of Judicial Life”. Those principles, as a matter of fact, formed thebasis of “The Bangalore Principles of Judicial Conduct, 2002” formulated atthe Round Table Meeting of Chief Justices held at the Peace Palace, TheHague. It is seen from the Preamble that the Drafting Committee had takeninto consideration thirty two such statements all over the world includingthat of India. On Value 2 “Impartiality”, it is resolved as follows:“Principle:Impartiality is essential to the proper discharge of the judicial office.It applies not only to the decision itself but also to the process by whichthe decision is made.Application:2.1 A judge shall perform his or her judicial duties without favour, biasor prejudice.2.2 A judge shall ensure that his or her conduct, both in and out ofcourt, maintains and enhances the confidence of the public, the legalprofession and litigants in the impartiality of the judge and of thejudiciary.2.3 A judge shall, so far as is reasonable, so conduct himself or herselfas to minimise the occasions on which it will be necessary for the judge tobe disqualified from hearing or deciding cases.2.4 A judge shall not knowingly, while a proceeding is before, or couldcome before, the judge, make any comment that might reasonably be expectedto affect the outcome of such proceeding or impair the manifest fairness ofthe process. Nor shall the judge make any comment in public or otherwisethat might affect the fair trial of any person or issue.2.5 A judge shall disqualify himself or herself from participating in anyproceedings in which the judge is unable to decide the matter impartiallyor in which it may appear to a reasonable observer that the judge is unableto decide the matter impartially. Such proceedings include, but are notlimited to, instances where2.5.1 the judge has actual bias or prejudice concerning a party or personalknowledge of disputed evidentiary facts concerning the proceedings;2.5.2 the judge previously served as a lawyer or was a material witness inthe matter in controversy; or2.5.3 the judge, or a member of the judge's family, has an economicinterest in the outcome of the matter in controversy:Provided that disqualification of a judge shall not be required if no othertribunal can be constituted to deal with the case or, because of urgentcircumstances, failure to act could lead to a serious miscarriage ofjustice.”The simple question is, whether the adjudication by the Judge concerned,would cause a reasonable doubt in the mind of a reasonably informedlitigant and fair-minded public as to his impartiality. Being aninstitution whose hallmark is transparency, it is only proper that theJudge discharging high and noble duties, at least broadly indicate thereasons for recusing from the case so that the litigants or the well-meaning public may not entertain any misunderstanding that the recusal wasfor altogether irrelevant reasons like the cases being very old, involvingdetailed consideration, decision on several questions of law, a situationwhere the Judge is not happy with the roster, a Judge getting undulysensitive about the public perception of his image, Judge wanting not tocause displeasure to anybody, Judge always wanting not to decide anysensitive or controversial issues, etc. Once reasons for recusal areindicated, there will not be any room for attributing any motive for therecusal. To put it differently, it is part of his duty to be accountable tothe Constitution by upholding it without fear or favour, affection or ill-will. Therefore, I am of the view that it is the constitutional duty, asreflected in one’s oath, to be transparent and accountable, and hence, aJudge is required to indicate reasons for his recusal from a particularcase. This would help to curb the tendency for forum shopping.In Public Utilities Commission of District of Columbia et al. v. Pollak etal.[706], the Supreme Court of United States dealt with a question whetherin the District of Columbia, the Constitution of the United Statesprecludes a street railway company from receiving and amplifying radioprogrammes through loudspeakers in its passenger vehicles. JusticeFrankfurter was always averse to the practice and he was of the view thatit is not proper. His personal philosophy and his stand on the courseapparently, were known to the people. Even otherwise, he was convinced ofhis strong position on this issue. Therefore, stating so, he recused fromparticipating in the case. To quote his words,“The judicial process demands that a judge move within the framework ofrelevant legal rules and the covenanted modes of thought for ascertainingthem. He must think dispassionately and submerge private feeling on everyaspect of a case. There is a good deal of shallow talk that the judicialrobe does not change the man within it. It does. The fact is that on thewhole judges do lay aside private views in discharging their judicialfunctions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to theobligation with which they are entrusted. But it is also true that reasoncannot control the subconscious influence of feelings of which it isunaware. When there is ground for believing that such unconscious feelingsmay operate in the ultimate judgment, or may not unfairly lead others tobelieve they are operating, judges recuse themselves. They do not sit injudgment. They do this for a variety of reasons. The guidingconsideration is that the administration of justice should reasonablyappear to be disinterested as well as be so in fact.This case for me presents such a situation. My feelings are so stronglyengaged as a victim of the practice in controversy that I had better notparticipate in judicial judgment upon it. I am explicit as to the reasonfor my non-participation in this case because I have for some time been ofthe view that it is desirable to state why one takes himself out of acase.”According to Justice Mathew in S. Parthasarathi v. State of A.P.[707], incase, the right-minded persons entertain a feeling that there is anylikelihood of bias on the part of the Judge, he must recuse. Merepossibility of such a feeling is not enough. There must existcircumstances where a reasonable and fair-minded man would think itprobably or likely that the Judge would be prejudiced against a litigant.To quote:“The tests of “real likelihood” and “reasonable suspicion” are reallyinconsistent with each other. We think that the reviewing authority mustmake a determination on the basis of the whole evidence before it, whethera reasonable man would in the circumstances infer that there is reallikelihood of bias. The Court must look at the impression which otherpeople have. This follows from the principle that Justice must not only bedone but seen to be done. If right minded persons would think that thereis real likelihood of bias on the part of an inquiring officer, he must notconduct the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstancesfrom which reasonable men would think it probable or likely that theinquiring officer will be prejudiced against the delinquent. The Courtwill not inquire whether he was really prejudiced. If a reasonable manwould think on the basis of the existing circumstances that he is likely tobe prejudiced, that is sufficient to quash the decision [see per LordDenning, H.R. in (Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon andOthers, etc. [(1968) 3 WLR 694 at 707]). We should not, however, beunderstood to deny that the Court might with greater propriety apply the“reasonable suspicion” test in criminal or in proceedings analogous tocriminal proceedings.”There may be situations where the mischievous litigants wanting to avoid aJudge may be because he is known to them to be very strong and thus makingan attempt for forum shopping by raising baseless submissions on conflictof interest. In the Constitutional Court of South Africa in The Presidentof the Republic of South Africa etc. v. South African Rugby Football Unionetc.[708], has made two very relevant observations in this regard:“Although it is important that justice must be seen to be done, it isequally important that judicial officers discharge their duty to sit and donot, by acceding too readily to suggestions of appearance of bias,encourage parties to believe that by seeking the disqualification of ajudge, they will have their case tried by someone thought to be more likelyto decide the case in their favour.”“It needs to be said loudly and clearly that the ground of disqualificationis a reasonable apprehension that the judicial officer will not decide thecase impartially or without prejudice, rather than that he will decide thecase adversely to one party.”Ultimately, the question is whether a fair-minded and reasonably informedperson, on correct facts, would reasonably entertain a doubt on theimpartiality of the Judge. The reasonableness of the apprehension must beassessed in the light of the oath of Office he has taken as a Judge toadminister justice without fear or favour, affection or ill-will and hisability to carry out the oath by reason of his training and experiencewhereby he is in a position to disabuse his mind of any irrelevant personalbelief or pre-disposition or unwarranted apprehensions of his image inpublic or difficulty in deciding a controversial issue particularly whenthe same is highly sensitive.These issues have been succinctly discussed by the Constitutional Court inThe President of the Republic of South Africa (supra), on an applicationfor recusal of four of the Judges in the Constitutional Court. Afterelaborately considering the factual matrix as well as the legal position,the Court held as follows:-“While litigants have the right to apply for the recusal of judicialofficers where there is a reasonable apprehension that they will not decidea case impartially, this does not give them the right to object to theircases being heard by particular judicial officers simply because theybelieve that such persons will be less likely to decide the case in theirfavour, than would other judicial officers drawn from a different segmentof society. The nature of the judicial function involves the performanceof difficult and at times unpleasant tasks. Judicial officers arenonetheless required to “administer justice to all persons alike withoutfear, favour or prejudice, in accordance with the Constitution and thelaw”. To this end they must resist all manner of pressure, regardless ofwhere it comes from. This is the constitutional duty common to alljudicial officers. If they deviate, the independence of the judiciarywould be undermined, and in turn, the Constitution itself.” (Emphasis supplied)The above principles are universal in application. Impartiality of a Judgeis the sine qua non for the integrity institution. Transparency inprocedure is one of the major factors constituting the integrity of theoffice of a Judge in conducting his duties and the functioning of thecourt. The litigants would always like to know though they may not have aprescribed right to know, as to why a Judge has recused from hearing thecase or despite request, has not recused to hear his case. Reasons arerequired to be indicated broadly. Of course, in case the disclosure of thereasons is likely to affect prejudicially any case or cause or interest ofsomeone else, the Judge is free to state that on account of personalreasons which the Judge does not want to disclose, he has decided to recusehimself from hearing the case. .....……………….J. (KURIAN JOSEPH)New Delhi;October 16, 2015. IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 13 OF 2015Supreme Court Advocates-on-Record-Association and another … Petitioner(s) VersusUnion of India … Respondent(s) WITH WRIT PETITION (CIVIL) NO. 23 OF 2015 WITH WRIT PETITION (CIVIL) NO. 70 OF 2015 WITH WRIT PETITION (CIVIL) NO. 83 OF 2015 WITH TRANSFER PETITION (CIVIL) NO. 391 OF 2015 WITH WRIT PETITION (CIVIL) NO. 108 OF 2015 WITH WRIT PETITION (CIVIL) NO. 124 OF 2015 WITH WRIT PETITION (CIVIL) NO. 14 OF 2015 WITH WRIT PETITION (CIVIL) NO. 18 OF 2015 WITH WRIT PETITION (CIVIL) NO. 24 OF 2015 WITH WRIT PETITION (CIVIL) NO. 209 OF 2015 WITH WRIT PETITION (CIVIL) NO. 309 OF 2015 WITH WRIT PETITION (CIVIL) NO. 310 OF 2015 WITH WRIT PETITION (CIVIL) NO. 323 OF 2015 WITH TRANSFER PETITION (CIVIL) NO. 971 OF 2015 AND WRIT PETITION (CIVIL) NO. 341 OF 2015 J U D G M E N TKURIAN, J.:Entia Non Sunt Multiplicanda Sine Necessitate (Things should not bemultiplied without necessity). This is the first thought which came to mymind after reading the judgments authored by my noble brothers Khehar,Chelameswar, Lokur and Goel, JJ., exhaustively dealing with the subject.The entire gamut of the issue has been dealt with from all possible anglesafter referring extensively to the precedents, academic discourses andjudgments of various other countries. Though I cannot, in all humility,claim to match the level of such masterpieces, it is a fact that I too haddrafted my judgment. However, in view of the principle enunciated above onunnecessary multiplication, I decided to undo major portion of what I havedone, also for the reason that the judgment of this Bench should not beaccused of Bharati fate (His Holiness Kesavananda Bharati Sripadagalvaru v.State of Kerala and another[709] has always been criticized on thataccount).Leaving all legal jargons and using a language of the common man, the coreissue before us is the validity of the Constitution 99thamendment. It is to be tested on the touchstone of the theory of the basicstructure. The amendment has introduced a new constitutional scheme forappointment of Judges to the High Courts and the Supreme Court. During thefirst phase of the working of the Constitution, the Executive claimed anupper hand in the appointment and the Chief Justice of India or the ChiefJustices of the High Courts concerned were only to be ‘consulted’, theexpression often understood in its literal sense. In other words, thedecision was taken by the Executive with the participation of the ChiefJustice. This process fell for scrutiny in one of the celebrated decisionsof this Court in Samsher Singh v. State of Punjab and another[710].In Samsher Singh case (supra), a seven-Judge Bench of this Court, inunmistakable terms, held at paragraph 149 as follows:“149. … The independence of the Judiciary, which is a cardinal principle ofthe Constitution and has been relied on to justify the deviation, isguarded by the relevant article making consultation with the Chief Justiceof India obligatory. In all conceivable cases consultation with thathighest dignitary of Indian justice will and should be accepted by theGovernment of India and the Court will have an opportunity to examine ifany other extraneous circumstances have entered into the verdict of theMinister, if he departs from the counsel given by the Chief Justice ofIndia. In practice the last word in such a sensitive subject must belong tothe Chief Justice of India, the rejection of his advice being ordinarilyregarded as prompted by oblique considerations vitiating the order. In thisview it is immaterial whether the President or the Prime Minister or theMinister for Justice formally decides the issue.” (Emphasis supplied)This principle, settled by a Bench of seven Judges, should have been takenas binding by the Bench dealing with the First Judges Case which had acoram only of seven. Unfortunately, it held otherwise, though with amajority of four against three. Strangely, the presiding Judge in the FirstJudges case and author of the majority view, was a member who concurredwith the majority in Samsher Singh case (supra) andyet there was not even a reference to that judgment in the lead judgment!Had there been a proper advertence to Samsher Singh case (supra), probablythere would not have been any need for the Second Judges Case.It appears, the restlessness on the incorrect interpretation of theconstitutional structure and position of judiciary in the matter ofappointments with the super voice of the Executive, as endorsed in theFirst Judges Case, called for a serious revisit leading to the SecondJudges Case. Paragraph 85 of the Judgment gives adequate reference to thebackground. To quote:“85. Regrettably, there are some intractable problems concerned withjudicial administration starting from the initial stage of selection ofcandidates to man the Supreme Court and the High Courts leading to thepresent malaise. Therefore, it has become inevitable that effective stepshave to be taken to improve or retrieve the situation. After taking note ofthese problems and realising the devastating consequences that may flow,one cannot be a silent spectator or an old inveterate optimist, lookingupon the other constitutional functionaries, particularly the executive, inthe fond hope of getting invigorative solutions to make the justicedelivery system more effective and resilient to meet the contemporary needsof the society, which hopes, as experience shows, have never beensuccessful. Therefore, faced with such a piquant situation, it has becomeimperative for us to solve these problems within the constitutional fabricby interpreting the various provisions of the Constitution relating to thefunctioning of the judiciary in the light of the letter and spirit of theConstitution.” (Emphasis supplied)The nine-Judges Bench in the Second Judges Case overruled the First JudgesCase, after a threadbare analysis of the relevant provisions ‘in the lightof the letter and spirit of the Constitution’, holding that appointment ofJudges to the High Courts and the Supreme Court forms an integral part ofthe independence of judiciary, that independence of judiciary is part ofthe basic structure of the Constitution of India, and therefore, theExecutive cannot interfere with the primacy of the judiciary in the matterof appointments. Third Judges Case, in 1998, is only an explanatoryextension of the working of the principles in the Second Judges Case byinstitutionalizing the procedure of appointment, introducing the Collegium.Thus, the structural supremacy of the judiciary in the constitutionallyallotted sphere was restored by the Second and Third Judges Cases.Apparently, on account of certain allegedly undeserving appointments, whichin fact affected the image of the judiciary, the politico Executive starteda new campaign demanding reconsideration of the procedure of appointment.It was clamoured that the system of Judges appointing Judges is not in thespirit of the Constitution, and hence, the whole process required astructural alteration, and thus, the Constitution 99th Amendment wherebythe selection is left to a third body, the National Judicial AppointmentsCommission (NJAC). The Parliament also passed the National JudicialAppointments Commission Act, 2014, which is only a creature of Constitution99th Amendment. The validity of the Act is also under challenge.‘What is the big deal about it?’, has been the oft made observation of myesteemed brother Khehar, J., the presiding Judge, in the thirty days of thehearing of the case, which included an unusual two weeks long sittingduring 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 isno requirement for reconsideration of the Second Judges Case, the fate ofthe case is sealed; there is no need for any further deal, big or small.Though I generally agree with the analysis and statement of law, in thematter of discussion and summarization of the principles on reconsiderationof judgments made by Lokur, J. at paragraph 263, I would like to add onemore, as the tenth. Once this Court has addressed an issue on a substantialquestion of law as to the structure of the Constitution and has laid downthe law, a request for revisit shall not be welcomed unless it is shownthat the structural interpretation is palpably erroneous. None before uscould blur the graphic picture on the scheme of appointment of Judges andits solid structural base in the Constitution portrayed in the SecondJudges Case. This Bench is bound by the ratio that independence ofjudiciary is part of the basic structure of Constitution and that theappointment of Judges to the High Courts and the Supreme Court is anintegral part of the concept of independence of judiciary. And for thatsimple reason, the Constitution 99th Amendment is bound to be declaredunconstitutional and I do so. Thus, I wholly agree with the view taken byKhehar, Lokur and Goel, JJ., that the amendment is unconstitutional and Irespectfully disagree with the view taken by Chelameswar, J. in thatregard. Since it is being held by the majority that the amendment itself isbad, there is no point in dealing with the validity of the creature of theamendment, viz., the National Judicial Appointments Commission Act, 2014.It does not exist under law. Why then write the horoscope of a stillbornchild!However, I would like to provide one more prod. Professor Philip Bobbit inhis famous book ‘Constitutional Fate Theory of the Constitution’, has dealtwith a typology of constitutional arguments. To him, there are fivearchetypes: historical, textual, structural, prudential and doctrinal. Toquote from Chapter 1:“Historical argument is argument that marshals the intent of the draftsmenof the Constitution and the people who adopted the Constitution. Sucharguments begin with assertions about the controversies, the attitudes, anddecisions of the period during which the particular constitutionalprovision to be construed was proposed and ratified. The second archetype is textual argument, argument that is drawn froma consideration of the present sense of the words of the provision. Attimes textual argument is confused with historical argument, which requiresthe consideration of evidence extrinsic to the text. The third type ofconstitutional argument in structural argument. Structural arguments areclaims that a particular principle or practical result is implicit in thestructures of government and the relationships that are created by theConstitution among citizens and governments. The fourth type ofconstitutional argument is prudential argument. Prudential argument is self-conscious to the reviewing institution and need not treat the merits of theparticular controversy (which itself may or may not be constitutional),instead advancing particular doctrines according to the practical wisdom ofusing the courts in a particular way. Finally, there is doctrinal argument, argument that assertsprinciples derived from precedent or from judicial or academic commentaryon precedent.”Professor (Dr.) Upendra Baxi has yet another tool – ‘episodic’, whichaccording to him, is often wrongly used in interpreting the Constitution.To Dr. Baxi, ‘structural’ is the most important argument while interpretingthe Constitution.Structural argument is further explained in Chapter 6. To quote a fewobservations:“Structural arguments are inferences from the existence of constitutionalstructures and the relationships which the Constitution ordains among thesestructures. They are to be distinguished from textual and historicalarguments, which construe a particular constitutional passage and then usethat construction in the reasoning of an opinion.”xxx xxx xxx“Structural arguments are largely factless and depend on deceptively simplelogical moves from the entire Constitutional text rather than from one ofits parts. At the same time, they embody a macroscopic prudentialismdrawing not on the peculiar facts of the case but rather arising fromgeneral assertions about power and social choice.”xxx xxx xxx“Notice that the structural approach, unlike much doctrinalism, is groundedin the actual text of the Constitution. But, unlike textualist arguments,the passages that are significant are not those of express grants of poweror particular prohibitions but instead those which, by setting upstructures of a certain kind, permit us to draw the requirements of therelationships among structures.”Professor Bobbit has also dealt with a sixth approach – ethical, whichaccording to him, is seldom used in constitutional law. In interpreting theConstitution, all the tools are to be appropriately used, and quite often,in combination too. The three constitutional wings, their powers andfunctions under the Constitution, and their intra relationship being thekey 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 issuesarising in the case. In support, I shall refer to a recent judgment of theU.S. Supreme Court in State v. Arizona Independent RedistrictingCommission[711], decided on 29.06.2015. It is an interesting case, quiterelevant to our discussion. U.S. Constitution Article I, Section 4 ,Clause1 (Election Clause) reads as follows:“The Times, Places and Manner of holding Elections for Senators andRepresentatives, shall be prescribed in each State by the Legislaturethereof; but the Congress may at any time by Law make or alter suchRegulations, except as to the Places of chusing Senators.”Arizona Constitution, Article IV, Part 1, to the extent relevant, reads asfollows:“Section 1. (1) Senate; house of representatives; reservation of power topeople. The legislative authority of the state shall be vested in thelegislature, consisting of a senate and a house of representatives, but thepeople reserve the power to propose laws and amendments to the constitutionand to enact or reject such laws and amendments at the polls, independentlyof the legislature; and they also reserve, for use at their own option, thepower to approve or reject at the polls any act, or item, section, or partof any act, of the legislature.” Thus, under Section 1, people are involved in direct legislationeither by the process known as ‘initiative’ or ‘referendum’. While theinitiative allows the electorate to adopt positive legislation, referendumis meant as a negative check. Popularly, the process of initiative is saidto correct ‘sins of omission’ by the Legislature while the referendumcorrects ‘sins of commission’ by the Legislature.In 2000, Arizona voters adopted Proposition 106, an initiative aimed at theproblem of gerrymandering. Proposition 106 amended Arizona's Constitution,removing redistricting authority from the Arizona Legislature and vestingit in an independent commission, the Arizona Independent RedistrictingCommission (AIRC). After the 2010 census, as after the 2000 census, theAIRC adopted redistricting maps for congressional as well as statelegislative districts. The Arizona Legislature challenged the map which theCommission adopted in 2012 for congressional districts arguing that theAIRC and its map violated the "Elections Clause" of the U.S. Constitution.Justice Ginsburg and four other Justices formed the majority and held thatthe independent commission is competent to provide for redistricting. Toquote the main reasoning:“The Framers may not have imagined the modern initiative process in whichthe people’s legislative powers is coextensive with the state legislature’sauthority, but the invention of the initiative was in full harmony with theConstitution's conception of the people as the font of governmental power.”However, Chief Justice Roberts and three other Justices dissented. ChiefJustice Roberts pointed out that the majority position has no basis in thetext, structure, or history of the Constitution and it contradictsprecedents from both Congress and the Supreme Court. The Constitutioncontains seventeen provisions referring to the ‘Legislature’ of a State,many of which cannot possibly be read to mean ‘the people’. To quotefurther:“The majority largely ignores this evidence, relying instead ondisconnected observations about direct democracy, a contortedinterpretation of an irrelevant statute, and naked appeals to publicpolicy. Nowhere does the majority explain how a constitutional provisionthat vests redistricting authority in "the Legislature" permits a State towholly exclude "the Legislature" from redistricting. Arizona's Commissionmight be a “noble endeavor" although it does not seem so "independent" inpractice but the "fact that a given law or procedure is efficient,convenient, and useful ... will not save it if it is contrary to theConstitution” INS v. Chadha, 462 U.S. 919, 944 (1983).” xxx xxx xxx“The constitutional text, structure, history, and precedent establish astraightforward rule: Under the Elections Clause, "the Legislature" is arepresentative body that, when it prescribes election regulations, may berequired to do so within the ordinary lawmaking process, but may not be cutout of that process. Put simply, the state legislature need not beexclusive in congressional districting, but neither may it be excluded.”xxx xxx xxx“The majority today shows greater concern about redistricting practicesthan about the meaning of the Constitution. I recognize the difficultiesthat arise from trying to fashion judicial relief for partisangerrymandering. See Vieth v. Jubelirer, 541 U.S. 267 (2004); ante, at 1.But our inability to find a manageable standard in that area is no excuseto abandon a standard of meaningful interpretation in this area. This Courthas stressed repeatedly that a law's virtues as a policy innovation cannotredeem its inconsistency with the Constitution.” (Emphasis supplied)While wholly agreeing with the historic, textual, prudential and doctrinalapproaches made by Khehar and Lokur, JJ., my additional stress is on thestructural part. The minority in Arizona case (supra), to me, is thecorrect approach to be made in this case.Separation of powers or say distribution of powers, as brother Lokur, J.terms it, is the tectonic structure of the Constitution of India. Thevarious checks and balances are provided only for maintaining a properequilibrium amongst the structures and that is the supreme beauty of ourConstitution. Under our constitutional scheme, one branch does notinterfere impermissibly with the constitutionally assigned powers andfunctions of another branch. The permissible areas of interference are thechecks and balances. But there are certain exclusive areas for each, branchwhich Khehar, J. has stated as ‘core functions’, and which I would describeas powers central. There shall be no interference on powers central of eachbranch. What the Constitution is, is only for the court to define; whereaswhat the constitutional aspirations are for the other branches to detailand demonstrate. As held in Samsher Singh case (supra) and theSecond and Third Judges Cases, selection of Judges for appointment in HighCourts and the Supreme Court belongs to the powers central of the Judiciaryand the permissible checks and balances are provided to other branches liein the sphere of appointment. If the alignment of tectonic plates ondistribution of powers is disturbed, it will quake the Constitution. Oncethe constitutional structure is shaken, democracy collapses. That is ourown painful history of the Emergency. It is the Parliament, in post-Emergency, which corrected the constitutional perversions and restored thesupremacy of rule of law which is the cornerstone of our Constitution. Asguardian of the Constitution, this Court should vigilantly protect thepristine purity and integrity of the basic structure of the Constitution.Direct participation of the Executive or other non-judicial elements wouldultimately lead to structured bargaining in appointments, if not, anythingworse. Any attempt by diluting the basic structure to create a committedjudiciary, however remote be the possibility, is to be nipped in the bud.According to Justice Roberts, court has no power to gerrymander theConstitution. Contextually, I would say, the Parliament has no power togerrymander the Constitution. The Constitution 99th amendment impairs thestructural distribution of powers, and hence, it is impermissible.One word on the consequence. Though elaborate arguments have been addressedthat even if the constitutional amendment is struck down, the Collegiumdoes not resurrect, according to me, does not appeal even to common sense.The 99th Amendment sought to ‘substitute’ a few provisions in theConstitution and ‘insert’ a few new provisions. Once the process ofsubstitution and insertion by way of a constitutional amendment is itselfheld to be bad and impermissible, the pre-amended provisions automaticallyresurface and revive. That alone can be the reasonably inferentialconclusion. Legal parlance and common parlance may be different but therecannot be any legal sense of an issue which does not appeal to commonsense.All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium system lacks transparency,accountability and objectivity. The trust deficit has affected thecredibility of the Collegium system, as sometimes observed by the civicsociety. Quite often, very serious allegations and many a time notunfounded too, have been raised that its approach has been highlysubjective. Deserving persons have been ignored wholly for subjectivereasons, social and other national realities were overlooked, certainappointments were purposely delayed so as either to benefit vested choicesor to deny such benefits to the less patronised, selection of patronised orfavoured persons were made in blatant violation of the guidelines resultingin unmerited, if not, bad appointments, the dictatorial attitude of theCollegium seriously affecting the self-respect and dignity, if not,independence of Judges, the court, particularly the Supreme Court, oftenbeing styled as the Court of the Collegium, the looking forward syndromeaffecting impartial assessment, etc., have been some of the otherallegations in the air for quite some time. These allegations certainlycall for a deep introspection as to whether the institutional trusteeshiphas kept up the expectations of the framers of the Constitution. Though onewould not like to go into a detailed analysis of the reasons, I feel thatit is not the trusteeship that failed, but the frailties of the trusteesand the collaborators which failed the system. To me, it is a curablesituation yet.There is no healthy system in practice. No doubt, the fault is not whollyof the Collegium. The active silence of the Executive in not preventingsuch unworthy appointments was actually one of the major problems. TheSecond and Third Judges Case had provided effective tools in the hands ofthe Executive to prevent such aberrations. Whether ‘Joint venture’, asobserved by Chelameswar, J., or not, the Executive seldom effectively usedthose tools.Therefore, the Collegium system needs to be improved requiring a ‘glasnost’and a ‘perestroika’, and hence the case needs to be heard further in thisregard. .....……………….J. (KURIAN JOSEPH)New Delhi;October 16, 2015.REPORTABLE IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.13 OF 2015SUPREME COURT ADVOCATES-ON-RECORDASSOCIATION AND ANR. …PETITIONERSVERSUSUNION OF INDIA …RESPONDENT WITH WRIT PETITION (CIVIL) NOS.23 OF 2015, 70 OF 2015, 83 OF 2015, T.P. (C) NO. 391 OF 2015, W.P. (C) NOS. 108 OF 2015, 124 OF 2015, 14 OF 2015, 18 OF 2015, 24 OF 2015, 209 OF 2015, 309 OF 2015, 310 OF 2015 AND 323 OF 2015 J U D G M E N TADARSH KUMAR GOEL, J. Introduction1. Articles 124, 127, 128, 217, 222, 224 and 231 of the Constitution ofIndia (‘the Constitution’) deal with the appointment of the judges of theSupreme Court and the High Courts (‘the Constitutional courts’), and otherallied matters. The Constitution (Ninety-Ninth Amendment) Act, 2014 (‘theAmendment Act’) inter alia seeks to amend these constitutional provisions.The National Judicial Appointments Commission Act, 2014 (‘the NJAC Act’),enacted simultaneously, purports to regulate the procedure of the NationalJudicial Appointments Commission (NJAC). The present batch of petitionschallenge the constitutional validity of the Amendment Act and the NJACAct. . The Supreme Court Advocates-on-Record Association has filed WritPetition (Civil) No.13 of 2015, which has been treated as the leadpetition.2. I have perused the erudite opinions of my esteemed brothers. While Irespectfully agree with the conclusions arrived at by Khehar J., Lokur J.and Kurian Joseph J., and respectfully disagree with the view ofChelameswar J. I prefer to record my own reasons.Pre-Amendment Scheme of Appointment and Transfer of Judges3. The scheme of appointment and transfer of Judges in force prior tothe amendment is set out in two memoranda dated 30th June, 1999 issued bythe Government of India – first for appointment of Chief Justice of India(CJI) and judges of the Supreme Court and second for appointment andtransfer of Chief Justices and the judges of the High Courts.3.1 Broadly the procedure laid down in the first memorandum is thatappointment to the office of the CJI should be of the senior most judge ofthe Supreme Court considered fit to hold the office. For this purpose,recommendation is sought from the outgoing CJI and if there is doubt aboutthe fitness of the senior most judge, consultation is made with the otherjudges under Article 124(2). Thereafter, the Law Minister puts up thematter to the Prime Minister (PM) who advises the President. Afterapproval of the President, the appointment is notified. For appointment asjudges of the Supreme Court, the CJI initiates the proposal and forwardshis recommendation to the Union Minister of Law who puts up the matter tothe PM, who in turn advises the President. Opinion of the CJI is formed inconsultation with four senior most judges and if successor CJI is not inthe said four senior most judges, he is also made part of the collegium.CJI also ascertains the views of the senior most judge in the Supreme Courtwho hails from the High Court from where a person recommended comes.Opinions in respect of the recommendation are in writing and aretransmitted to the Government of India for record. If the views of non-judges are solicited, a memorandum thereof and its substance is conveyed tothe Government of India. Once appointment is approved by the President ofIndia, certificate of physical fitness is obtained and after the warrant ofappointment is signed by the President, the appointment is announced and anotification issued in the Gazette of India.3.2 The procedure laid down in the second memorandum deals with theappointments to the High Courts and transfers. The Chief Justices of HighCourts are appointed from outside. Inter se seniority in a particular HighCourt is considered for appointment as Chief Justice from that High Court.Initiation of proposal for appointment of Chief Justice of a High Court isby the CJI. The CJI consults two senior most Judges of the Supreme Courtand also ascertains the views of his senior most colleague in the SupremeCourt who is conversant with the affairs of the High Court in which therecommendee has been functioning and whose opinion is likely to besignificant in adjudging the suitability of the candidate. The views of theJudges are sent along with the proposal of the Union Minister of Law whoobtains the views of the concerned State Government and then submits theproposal to the PM who advises the President. As soon as appointment isapproved by the President, notification is issued in the Gazette of India.As regards the appointment of a Judge of the High Court, the Chief Justiceof the High Court communicates to the Chief Minister his views, afterconsulting two of his senior most colleagues regarding suitability of theperson to be selected. All consultations must be in writing and theseopinions are sent to the Chief Minister, along with the recommendation. Ifthe Chief Minister desires to recommend a name, he has to forward the sameto the Chief Justice for his consideration. A copy of the recommendation isalso sent to the CJI and the Union Law Minister. The Chief Minister advisesthe Governor who forwards his recommendation to the Law Minister. The LawMinister considers the recommendation in the light of such other reports(such as I.B. report) as may be available to the Government and thenforwards the material to the CJI. CJI consults two senior most Judges andalso takes into account the views of the Chief Justice and Judges of theHigh Court (consulted by the Chief Justice) and those Judges of the SupremeCourt who are conversant with the affairs of the candidate. Thereafter theCJI sends the recommendation to the Union Law Minister along with thecorrespondence with his colleagues. If the Law Minister considers itexpedient to refer back the name for opinion of the State ConstitutionalAuthorities, opinion of the CJI must be obtained. The Law Minister thenputs up the recommendation to the PM who advises the President. Thecorrespondence between the Chief Justice, the Chief Minister and Governorinter se is in writing. As soon as the appointment is approved by thePresident, physical fitness is ascertained and as soon as warrant ofappointment is signed by the President, notification is issued in theGazette of India.3.3 Proposal for transfer is initiated by the CJI. Consent of the Judgeconcerned is not necessary. The CJI consults four senior most Judges ofthe Supreme Court and takes into account the views of the Chief Justice ofthe High Court from which the Judge is to be transferred and Chief Justiceof the High Court to which the transfer is to be effected. CJI also takesinto account the views of one or more Supreme Court Judges who are in aposition to offer his/their views. The views are expressed in writing, andare considered by the CJI and four senior most Judges. The personal factsrelating to the Judge and his response to the proposal are invariably takeninto account. The proposal is then referred to the Government. The LawMinister submits the recommendation to the PM who advises the President.After the President approves the transfer, a notification is issued in theOfficial Gazette.3.4 The above memoranda were issued by the Government of India in thelight of unamended Constitutional provisions and the judgment of this Courtdated 28th October, 1998 in Special Reference No.1 of 1998[712] (ThirdJudges’ case) which in substance reiterates the earlier Nine Judge Benchjudgment in SCAORA vs. Union of India[713] (Second Judges’ case).3.5 Reference may also be made to the unamended constitutionalprovisions. Article 124 (2) provides that a Judge of the Supreme Courtshall be appointed by the President after consultation with such Judges ofthe Supreme Court and the High Courts as are deemed necessary. However,the CJI is always to be consulted. Article 217 provides that a Judge ofthe High Court shall be appointed by the President after consultation withCJI, Governor of the State and in case of a Judge other than the ChiefJustice, the Chief Justice of the High Court. The question arose beforethis Court on several occasions as to the value of the opinion of the CJIin the process of ‘consultation’. This Court held that under the schemeof the Constitution a proposal for appointment to the Supreme Court mustemanate from the CJI and for appointment to the High Court it shouldemanate from the Chief Justice of the High Court and the last word onappointment must rest with the CJI[714]. This Court noted that byconvention proposals for appointments were always initiated by thejudiciary and appointments were made with the concurrence of the CJI. Thisview was reiterated in Third Judges’ case on the basis of which the abovememoranda were issued by the Government of India. Scheme under the Amendment4. Reference may now be made to the impugned Amendment. It amendsArticle 124 and provides that such appointments and transfers will now beon the recommendation of the NJAC (Section 2). Requirement of mandatoryconsultation with the CJI and consultation with such Judges as may beconsidered necessary has been deleted. Convention of initiation of proposalby Chief Justice for the High Courts and CJI for the Supreme Court andother scheme as reflected in the memoranda earlier mentioned and as laiddown in decisions of this Court has been replaced. The amendment inserts anew Article 124A, under which the NJAC is to be constituted. It willcomprise the CJI, two senior most judges of Supreme Court next to the CJI,Union Law Minister and two eminent persons to be nominated by the Committeecomprising of the PM, the CJI and the Leader of the Opposition in the Houseof the People/Leader of single largest Opposition Party in the House of thePeople. The nomination of one of these eminent persons is reserved forpersons belonging to the Scheduled Castes, the Scheduled Tribes, OBC,minorities or women. Under the new scheme, for any proposal five out ofsix members must concur. If any two members disagree, no proposal can bemade.5. The Amendment Act also provides for the Parliament to enact law toregulate the procedure for appointment of judges of higher courts and toempower the Commission to lay down, by regulations, the procedure fordischarge of its functions, the manner of selection of its members and suchother matters, as may be considered necessary (Section 3).6. The NJAC Act provides for the appointment of the senior most judge ofthe Supreme Court as CJI, if considered fit to hold the office; and forrecommendation for appointment as judge of the Supreme Court (Section 5).The Second proviso to Section 5(2) of the NJAC Act states that theCommission shall not recommend a person if two members of theCommission do not agree. Apart from its other functions, the Commissionwould also recommend appointments of Chief Justice and judges of HighCourts (Section 6(1), (3)). Alternatively, the Commission can seek anomination from the Chief Justice of the High Court for recommendingappointment as judge of the High Court(Section 6(2)). For appointment ofjudges of High Courts, however, the Commission must seek priorconsultation with the Chief Justice of the concerned High Court, who inturn has to consult two senior most judges of the said High Court and suchother judges and eminent advocates as may be specified. (Section 6(4)).The Commission is also to seek views of the Governor and Chief Minister ofthe concerned State. The power of appointment of officers and employees ofthe Commission is with the Central Government. The Convener of theCommission is the Secretary, Government of India, in the Department ofJustice. Central Government is authorised to make rules for carrying outthe provisions of the Act(section 11). The Commission is authorised tomake regulations consistent with the Act and the Rules. The Rules and theRegulations framed under the Act are required to be placed before theParliament, which may modify such rules or regulations(sections 12, 13).7. The statement of objects and reasons of the amendment mentions thatthis Court had interpreted the word “consultation” as “concurrence” inArticles 124(2) and 217 (2) of the Constitution (S.2). It further statesthat after review of the constitutional provisions, pronouncements of thisCourt and consultation with eminent jurists, it was felt that a broad basedNational Judicial Appointments Commission should be established for makingrecommendation for appointment of judges of the Supreme Court and the HighCourts. The Commission will provide meaningful role to the judiciary, theexecutive and eminent persons to present their view points and make theparticipants accountable while also introducing transparency in theselection process (S.3).7.1 Though by notification dated 13th April, 2015, the Amendment and theAct have been brought into force, the Commission has not been constitutedso far, as two eminent persons have not been so far appointed.7.2 Key Constitutional unamended provisions and the provisions of theAmendment and the Act are as follows:-|Unamended Provisions |Provisions of the Amendment ||Article 124 xxxx xxxx |“124A. (1) There shall be a ||xxxx |Commission to be known as the ||(2) Every Judge of the Supreme|National Judicial Appointments||Court shall be appointed by |Commission consisting of the ||the President by warrant under|following, namely:–– ||his hand and seal after |(a) the Chief Justice of ||consultation with such of the |India, Chairperson, ex ||Judges of the Supreme Court |officio; ||and of the High Courts in the |(b two other senior Judges of||States as the President may |the Supreme Court next to the ||deem necessary for the purpose|Chief Justice of India ||and shall hold office until he|––Members, ex officio; ||attains the age of sixty-five |(c) the Union Minister in ||years. |charge of Law and ||Provided that in the case of |Justice––Member, ex officio; ||appointment of a Judge other |(d) two eminent persons to be ||than the Chief Justice, the |nominated by the committee ||Chief Justice of India shall |consisting of the Prime ||always be consulted: |Minister, the Chief Justice of|| |India and the Leader of ||Article 217. Appointment and |Opposition in the House of the||conditions of the office of a |People or where there is no ||Judge of a High Court - Every|such Leader of Opposition, ||Judge of a High Court shall be|then, the Leader of single ||appointed by the President by |largest Opposition Party in ||warrant under his hand and |the House of the People –– ||seal after consultation with |Members: ||the Chief Justice of India, |Provided that one of the ||the Governor of the State, |eminent person shall be ||and, in the case of |nominated from amongst the ||appointment of a Judge other |persons belonging to the ||than the Chief Justice, the |Scheduled Castes, the ||Chief Justice of the High |Scheduled Tribes, Other ||court, and shall hold office, |Backward Classes, Minorities ||in the case of an additional |or Women: ||or acting Judge, as provided |Provided further that an ||in Article 224, and in any |eminent person shall be ||other case, until he attains |nominated for a period of ||the age of sixty two years: |three years and shall not be || |eligible for renomination. || |(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. || |124B. 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 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 || |(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 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 of persons for || |appointment and such other || |matters as may be considered || |necessary by it.”. |7.3 The relevant constitutional and statutory provisions are set outseparately in an Appendix to this opinion. Rival Contentions8. The Amendment Act is challenged as ultra vires, inter alia for beingbeyond the competence of the Parliament as it alters and destroys the basicstructure of the Constitution, as embodied in the independence of judiciaryin the context of appointment of judges of the higher judiciary. Thepetitioners submit that the power of the Parliament to amend theConstitution under Article 368 is limited and does not extend to alteringor destroying the basic structure or basic features of the Constitution.The independence of the judiciary is a constitutional concept, regarded asa basic feature of the Constitution, and includes insulating the judiciaryfrom executive or legislative control, primacy of higher judiciary in thematter of appointment of judges to the High Courts and the Supreme Court,non-amendability of conditions of service of judges of the Supreme Courtand the High Court to their disadvantage. The Amendment takes away theprimacy of the collective opinion of the CJI and the senior most SupremeCourt judges by stalling an appointment unanimously proposed by them if thesame is not concurred by two non-judge Commission members [second provisoto Section 5(2) and Section 6(6)]. This endows unchecked veto power to non-judges in appointing judges to higher courts, compromising the judiciary’sindependence. The Amendment also dilutes the judiciary’s constitutionally-conferred power by granting unbridled power on the Parliament to control,by ordinary law, the manner of selection of a person for appointment tohigher judiciary, which also damages the independence of judiciary. Thispower enables the Parliament to substitute judiciary’s primacy with that ofthe executive. If allowed to stand, the provision could easily be furtheramended thereby denying any effective role for the senior most judges ofthe higher judiciary in appointment of judges of the Supreme Court and theHigh Courts. Thus, the Amendment does not envisage predominant voice forthe judges and makes the executive element in appointment of judgesdominant which alters and damages the basic structure of the Constitution. It is also contended that the NJAC Act was void as it was passed by theParliament before the Amendment Act became operative.9. Thus, the contentions on behalf of the petitioners are:-(i) Constitution is supreme and powers of all organs are defined andcontrolled thereunder;(ii) Amending power of Parliament is limited by the concept of basicstructure as judicially interpreted;Final interpreter of the Constitution and the scope of powers thereunder isthis Court;Independence of judiciary and separation of powers are part of basicstructure;Primacy of judiciary in appointment of judges is crucial part ofindependence of judiciary and separation of powers and thus part of basicstructure;Role of executive and legislature in appointment of judges being kept atminimum was also part of basic structure;The composition of the Commission in the impugned Amendment severallydamages the basic structure of the Constitution by destroying primacy ofjudiciary in appointment of judges and giving controlling role to theexecutive and legislature in such appointments;The impugned amendment enables stalling of appointment of judges proposedby the judiciary unless candidates suggested by the executive are appointedthereby compromising independence of judiciary;The impugned amendment expands the power of amendment by delegating crucialissues of appointment of judges to Parliament which is against the basicstructure of the Constitution;The composition of the Commission will shake confidence of people inJudiciary if Executive or Legislature have dominant voice; andThe impugned Act is beyond legislative competence of the Parliament.10. The Joint Secretary, Department of Justice has filed a counteraffidavit on behalf of the Union of India (UOI), defending the Amendmentand the Act. UOI’s case is that independence of judiciary is only postappointment. Appointment is an executive act and the judiciary’sindependence has no relevance with the executive act of appointment. UOIsubmits that judicial independence is to be coupled with checks andbalances and that a contextual reading of Articles 124(2) and 217(1) withthe Constituent Assembly Debates (CAD) makes it evident that there is noprimacy of the CJI in appointment of judges. Consultation with the CJI wasonly by way of a check on executive, which had the final say in the matter.Further, provision for consultation with other judges does not justifycreation of a collegium. UOI’s submission refers to impeachment provisionsfor removal of judges (Article 124(4); Parliament’s power to regulateprocedure for presentation of an address and investigation and proof ofmisbehaviour or incapacity of a judge (Article 124(5)) and to determinesalary of judges and provisions pertaining to other aspects of judicialfunctioning conferring power on Parliament to legislate (Article 125). UOIsubmits that the decisions of this Court in Second Judges’ case and ThirdJudges’ case laying down primacy of the judiciary in the context ofconsultative process under Articles 124(1) and 217(1) have no relevance totest the validity of the impugned Ninety Ninth Amendment by whichprovisions of Articles 124(2) and 217(1) stand amended. However, it iscontended that the view taken in the said judgments that the judiciary hasprimacy in appointment is erroneous, and needs to be revisited. In anycase, the UOI contends that the primacy of judiciary in the matter ofappointment of judges of the higher judiciary has no connection withindependence of judiciary and is not the basic feature of the Constitution. In several countries, such as Australia, independence of judiciary existswithout primacy of the judiciary in appointments of judges to the higherjudiciary. UOI submits that the power conferred on Parliament to enact lawto regulate the procedure of the NJAC or to modify the regulations framedby the NJAC is valid. The NJAC is accountable to Parliament in framingregulations. The presence of Law Minister as a member of the NJAC ensuresaccountability to public. The presence of two eminent persons is a checkand balance on the functioning of other members. Diversity of members willensure greater accountability of each member to the other. This willensure greater public confidence in the functioning of the judiciary. TheNJAC will fall under the purview of Right to Information Act, 2005 whichwill ensure transparency. Even if the Amendment was struck down, originalprovisions could not be revived as doctrine of revival does not apply toConstitutional Amendments. The issue was raised in Property Owners’Association vs. State of Maharashtra[715] with respect to Article 31C ofthe Constitution which is pending before a nine-judge Bench. It is alsosubmitted that the writ petition is pre-mature as the new system has notbeen given a chance to operate and no rights have been affected.11. The contentions on behalf of the respondents can be summed up asfollows:-(a) Power of appointment of judges rests with the executive and role ofjudiciary is confined to consultation which may or may not be accepted bythe executive;(b) Primacy of judiciary in appointments was recognised by erroneousinterpretation of unamended provisions of the Constitution and by way ofamendment such interpretation has been corrected and thus there is noviolation of basic structure. Alternatively larger Bench be constituted tocorrect the earlier interpretation;(c) Primacy of judiciary in appointments was not inalienable and inchanged situation, in the light of experiences gained, the primacy could bedone away with or modified;(d) Wisdom of constituent body in making a choice was not open tojudicial review;(e) Taking the Constitution as a whole, value of independence ofjudiciary could be balanced with other constitutional values of democracy,accountability and checks and balances;(f) Power of amendment was plenary and could not be questioned unless itresults in destruction of a pillar of Constitution;(g) Even with power being with executive or power of veto being withexecutive, independence of judiciary could survive so long as there wasprotection of tenure and service conditions of judges;(h) Accountability and transparency in functioning of everyconstitutional organ was part of democracy in which case exclusive power ofappointment of judges with the judiciary was undemocratic;(i) The impugned amendment retains primacy by having three out of sixmembers, out of which two could stop an undesirable appointment. Theexecutive did not have predominant role as two eminent persons wereappointed by a committee having the Prime Minister, the CJI and the Leaderof Opposition thereby role of Prime Minister being limited. Law Ministerand eminent persons as members ensured giving of relevant feedback andensuring accountability and transparency.;(j) The impugned amendment in conferring power on Parliament and theCentral Government in procedural matters did not violate independence ofjudiciary; and (k) The impugned Act was within legislative competence of Parliament.12. Shri Fali S. Nariman, learned senior counsel led the arguments onbehalf of the petitioners in the lead petition followed by S/Shri RamJethmalani, Anil B. Divan, K.N. Bhat, Arvind Datar, Dr. Rajeev Dhawan,learned senior counsel and other counsel appearing either in person or asintervenor or otherwise. They have been opposed by learned AttorneyGeneral Shri Mukul Rohtagi, learned Solicitor General Shri Ranjit Kumar andS/Shri K. Parasaran, Soli J. Sorabjee, K.K. Venugopal, Harish N. Salve,T.R. Andhyarujina, Dushyant Dave learned senior counsel and other learnedcounsel for various States and intervenors or otherwise. I record mygratitude to learned counsel for their painstaking assistance to theCourt with their exceptional ability and skill for deciding importantissues arising for consideration. Their contentions will be referred to atappropriate stage to the extent necessary.13. While generally learned counsel on either side have taken identicalstand, Shri Venugopal, appearing for the State of M.P., which is otherwisesupporting the amendment, in his alternative submission, filed on 14thJuly, 2015 by way of additional propositions, inter alia submitted asfollows:“3 Looking at the scheme of the 99th Amendment and the National JudicialCommission Appointments Act, 2014 (NJAC Act), the scheme evolved providesfor the constitution of a 6 member Commission and under Article 124-C, forthe procedure to be provided under a law made by the Parliament. The NJACAct has certain salient features that includes under the second proviso toSection 5(2), a provision in the nature of a ‘veto’, as no appointment canbe made if two members of the Commission do not agree to that appointment.This provision is challenged by the Petitioners as the 99th Amendment Actdoes 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 Actor, in any event, not a matter of procedure.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 into the NJAC Act as well.Any Act providing for procedure would be ultra vires the Constitutionalprovision if it does not satisfy the requirement of primacy. The ‘veto’provision, therefore, is clearly antithetical to the concept of ‘primacy’and must be struck down as being ultra vires the amendment.xxxxxx xxxxxx xxxxx6. Irrespective of the nine Judges’ Bench judgment, certain concepts inlaw exist in the matter of the functioning of the judiciary in a democracy. The existence of an independent judiciary is a sine qua non for democracyto flourish. Here, we are concerned with the issue of appointment ofjudges to the higher judiciary. Whether, the power is executive or not, itcannot be gainsaid that it impinges on the independence of the judiciary incase the executive were to exclusively have the power to appoint thejudges. Such a system of appointment could result in brining intoexistence judges who are subservient to the will of the Government, whichwould be a major litigant in the Courts. Independence therefore, wouldstand affected.7. If the ‘veto’ is invalid, then the common law principle of majoritywould apply. The Chief Justice of India and the two other judges haveexpertise in the matter of selection of judges to the higher judiciary andalso have full knowledge of the functioning of the potential candidates.However, the unanimous view of the three judges would not carry the day ifopposed by the other three members. In every other case, where all six arein agreement on a candidate, no problem in making the right decision wouldarise. The real question, therefore, is what would be the position if adeadlock arises when the unanimous decision of the three judges is opposedby the other three members. Needless to state, that if the three judgesare not ad idem on a candidate, no ‘issue of primacy’ would arise and themajority would prevail.8. It is true that the nine judges case can no more hold the field forthe purpose of nullifying the 99th amendment, which, obviously, isinconsistent with the Collegium system evolved by the nine judges judgment. But that does not mean that the principles enunciated by the said judgmentcould not be relied upon as being a juristic principle that would beapplicable in such cases. In other words, these principles can be said tobe relevant for all time to come because of the following reasons :a. The power of appointment can be used to affect or subvert theindependence of the appointees when functioning as members of the superiorjudiciary.b. A system of appointment where the executive voice predominates wouldaffect such independence.c. If however, the voice of the Chief Justice of India, representing thejudiciary prevails, even in a system where the executive or anyone else hasa minor part to play, this will nevertheless not affect the independenceand on the other hand would sub-serve independence. In other words,primacy in the matter of appointment has to be with the judiciary.xxxxx xxxxx xxxxx11. These are general principles enunciated by the Supreme Court based onthe concept of independence of the judiciary. That concept is allpervasive and whenever that situation arises, the Court would, in the samemanner as it did in the Second Judges’ case , interpret the present Article124-A. This would mean that the principle of independence underlying theappointment of judges of the higher judiciary would require that the viewsof the three judges of the Commission, speaking with a single voice wouldhave primacy. This would be the result not because the judgment in theSecond Judges’ case would bind the Court but because the concept ofjudicial independence applicable in the case of appointment of judges tothe higher judiciary would be applicable wherever and whenever a situationarose where no explicit provision in the Constitution gave primacy to thejudicial wing. In such cases, the validity of the constitutional provisionwould be upheld and legitimized exactly on the same basis as the conceptwas evolved in the Second Judges’ case. As a result, the 99th amendment tothe Constitution, would always be deemed to have been a valid exercise ofConstituent power. In the absence of the existence of a ‘veto’, if thethree Judges speak with a single voice, their decision would prevail. ThePresident would then have to issue the warrant of appointment.xxxxx xxxxx xxxxx16. Apart from the above, petitioners have also contended that the term‘eminent person’ is too broad and that the appointment of eminent personswho have nothing to do with the law and who are not aware of the working ofthe judicial system would result in a violation of the principle ofjudicial independence. ‘The rule of purposive interpretation’ can beapplied to this provision. By application of this rule, the Court caninterpret eminent persons to mean only ‘persons trained in law’ or ‘eminentjurists’ (see in this regard, P. Vaikunta Shenoy v. P. Hari Sharma (2007)14 SCC 297 @ Paras 11-13 and VC Shukla v. State (Delhi Amn.) (1980 Supp.SCC 249 @ para 28)” The Issue14. There being no dispute that a Constitutional Amendment can be validonly if it is consistent with the basic structure of the Constitution, thecore issue for consideration is whether the impugned amendment alters ordamages the said basic structure and is void on that ground. According tothe petitioners the primacy of judiciary in appointment of judges andabsence of interference by the Executive therein is by itself a part ofbasic feature of the Constitution being integral part of independence ofjudiciary and separation of judiciary from the Executive. According to therespondents primacy of judiciary in appointment of judges is not part ofindependence of judiciary. Even when appointments are made by Executive,independence of judiciary is not affected. Alternatively in the amendedscheme, primacy of judiciary is retained and independence of judiciary isstrengthened. The amendment promotes transparency and accountability andis a part of needed reform without affecting the basic structure of theConstitution. To determine the question one has to look at the concept ofbasic feature which controls the amending power of the Parliament. Thisunderstanding will lead to the decision whether primacy of judiciary andabsence of Executive interference in appointment of judges is part of suchbasic structure.DiscussionA. Concept of Basic Features – As Limitation on Power of theParliament to amend the Constitution15. Article 368 of the Constitution provides for power to amend theConstitution and procedure therefor. In Kesavananda Bharti vs. State ofKerala[716] (Kesavananda Bharti case), the scope of amending power was goneinto by a bench of 13-Judges. In the concluding para signed by 9-Judges itwas held that “Article 368 does not enable Parliament to alter the basicstructure or framework of the Constitution”. The conclusion was based oninterpretation of the word ‘amendment’. It was observed that the word wascapable of wide as well as narrow meaning and while wide meaning was to bepreferred but consistent with the intention of Constitution makers and thecontext. It could not be given too wide meaning so as to permit damage tothe constitutional values which depict the identity of theConstitution.[717]15.1 The basic structure or framework was not exhaustively defined butsome of the features of the Constitution were held to be the illustrationsof the basic structure by the majority of seven Judges – Sikri CJ, Shelat,Grover, Hegde, Mukherjea, Reddy and Khanna, JJ. Illustrations by theminclude Supremacy of the Constitution, democratic form of Government,secular character of the Constitution, separation of powers between theJudiciary, the Executive and the Legislature, federal character of theConstitution, dignity of the individual secured by basic rights inaccordance with Parts III and IV, unity and integrity of the nation.[718]15.2 It was held that the power of the Parliament to amend theConstitution was limited by the requirement that basic foundation andstructure of the Constitution remains the same. Power of amendment wasenvisaged to meet the challenge of the problems which may arise in thecourse of socio economic progress of the country but it was nevercontemplated that in exercise of the power of amendment certain inalienablefeatures of the Constitution will be changed. The court referred tovarious decisions in different jurisdictions dealing with the scope ofamendment of the Constitution. Sikri, CJ. observed that having regard toimportance of freedom of the individual and the importance of economic,social and political justice, mentioned in the preamble the word“amendment” could not be read in its widest sense. The Fundamental Rightscould not be amended out of existence. Fundamental features of secularism,democracy and freedom of individual should always subsist. The expression“amendment” had a limited meaning. Otherwise a political party with two-third majority could so amend the Constitution as to debar any other partyfrom functioning, establish totalitarianism and enslave the people andthereafter make the Constitution unamendable. Thus, the appeal todemocratic principles to justify absolute amending power, if accepted,could damage the very democratic principles. Thus, the amendment meantaddition or change within the broad contours of the preamble of theConstitution. The Parliament could adjust the Fundamental Rights to securethe objectives of the Directive Principles while maintaining freedom anddignity of every citizen. The dignity and freedom of the individual washeld to be of supreme importance. The basic features were held to bediscernible not only from the preamble but the whole scheme of theConstitution. Shelat & Grover, JJ. observed that the Constitution makersdid not desire that the citizens will not enjoy the basic freedoms,equality, freedom of religion etc. so that dignity of an individual ismaintained. The economic and social changes were to be made without takingaway dignity of the individual. The vital provisions of Part III or PartIV 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 Constitutionwas given by the people to themselves. The voice of the members of theConstituent Assembly was of the voice of the people. Two-third members ofthe two Houses of Parliament did not necessarily represent even themajority of the people. Thus, the two-third members of the two Houses ofParliament could not speak on behalf of the entire people of thecountry[719]. Even best of the Government was not averse to have more andmore powers to carry out their plans and programmes which they believe tobe in public interest, but freedom once lost could hardly be regained.Every encroachment of freedom sets a pattern for further encroachment. Thedevelopment was envisaged without destruction of individual freedoms.Reddy, J. observed if any of the essential features was altered, theConstitutional structure could not maintain its identity. There could beno justice, liberty or equality without democracy. There could be nodemocracy without justice, equality and liberty. The structure of theConstitution was an organic instrument. The core commitment to socialrevolution lies in Parts III and IV. They are the conscience of theConstitution. They had roots deep in the struggle for independence. Theywere included with the hope that one day victory of people would bloom inIndia. They connect India’s future, present and past. The demand forFundamental Rights had its inspiration in Magna Carta, the English Bill ofRights, the French Revolution, the American Bill of Rights incorporated inthe US Constitution. Referring to the statement of Dr. Ambedkar, thatArticle 32 was the soul of the Constitution and the very heart of it, itwas observed that such an article could not be abrogated by an amendment.Khanna, J. observed that as a result of amendment, the old Constitutioncould not be done away with. Basic structure of framework must beretained. It was not permissible to touch the foundation or to alter thebasic institutional pattern. What can be amended is the existingConstitution and what must emerge as a result of amendment is not a new anddifferent Constitution but the existing Constitution. What wascontemplated by amendment was varying of the Constitution here and thereand not elimination of its basic structure resulting in losing itsidentity.15.3 One of the questions considered was validity of Section 3 of theTwenty-Fifth Amendment Act, 1971 adding Article 31-C as follows:-“416. Section 3 of the twenty-fifth amendment, reads thus:3. After Article 31B of the Constitution, the following article shall beinserted, namely:31. C. Notwithstanding anything contained in Article 13, no law givingeffect to the policy of the State towards securing the principles specifiedin Clause (b) or Clause (c) of Article 39 shall be deemed to be void on theground that it is inconsistent with, or takes away or abridges any of therights conferred by Article 14, Article 19 or Article 31; and no lawcontaining a declaration that it is for giving effect to such policy shallbe called in question in any court on the ground that it does not giveeffect to such policy:“Provided that where such law is made by the legislature of a State, theprovisions of this article shall not apply thereto unless such law, havingbeen reserved for the consideration of the President, has received hisassent.” The highlighted part was held by majority to be unconstitutional, forgranting immunity from challenge thereby affecting the basic feature ofjudicial review[720].15.4 The scope of amending power was again considered by this Court inthe course of challenge to Thirty-Ninth Amendment which debarred anychallenge to the election of PM and Speaker of the Lok Sabha in IndiraNehru Gandhi vs. Raj Narain[721]. Chandrachud, J. (later the ChiefJustice) observed that it is not that only certain named features of theConstitution are part of its basic structure. The features named byindividual judges in Kesavananda Bharti case were merely illustrations andwere not intended to be exhaustive. Having regard to its place in thescheme of the Constitution, its object and purpose and the consequences ofits denial on the integrity of the Constitution, a feature of theConstitution could be held to be a basic feature[722]. He added thatundoubted unamendable basic features are :-“(i) India is a Sovereign Democratic Republic; (ii) Equality of status andopportunity shall be secured to all its citizens; (iii) The State shallhave no religion of its own and all persons shall be equally entitled tofreedom of conscience and the right freely to profess, practise andpropagate religion and that (iv) the Nation shall be governed by aGovernment of laws not of men”.39th Amendment debarring challenge to election inter alia of PM was struckdown as being against the basic features of the Constitution.[723] Article329A, Clause (4) (added by way of Amendment) provided that election lawwill not apply to a person holding office of PM and Speaker and election ofsuch persons shall not be deemed to be void under any such law. It washeld that the democracy was the part of the basic structure whichcontemplated free and fair election. Without there being machinery forresolving an election dispute, the elections could not be free and fairwhich in turn will damage the basic feature of democracy. In absence ofany law to deal with validity of election of PM, the basic feature of ruleof law will be violated. Referring to the writing of Madison in “TheFederalist”, it was observed that all powers of the Government could not bevested in one Department. No Constitution could survive without adherenceto checks and balances. “Just as courts ought not to enter into problemsentwined in the “political thicket”, Parliament must also respect thepreserve of the courts[724].”15.5. Validity of Forty-Second Amendment was considered by this Court inMinerva Mills Ltd. vs. Union of India[725]. The court considered thevalidity of Sections 4 and 55 of the 42nd Amendment Act. By Section 4,Article 31C was sought to be amended to provide that a law giving effect toPart IV of the Constitution could not be deemed to be void for beinginconsistent with Articles 14, 19 and 31 and could not be challenged on theground that the said law was not for giving effect to the said Part IV. BySection 55, it was provided that no amendment of the Constitution could bechallenged on any ground and that there will be no limitation on theconstituent power of Parliament to amend the Constitution. This Courtobserved that the Constitution had conferred limited amending power on theParliament which itself was a basic feature of the Constitution. TheParliament could not expand its amending power so as to destroy the saidbasic feature of the Constitution. The limited power could not beconverted into unlimited one. Clauses 4 and 5 of Article 368 added by Forty-Second Amendment were struck down as violative of basic structure of theConstitution. It was observed that the balance between Part III and PartIV of the Constitution was basic feature of the Constitution[726]. Limitedamending power of Parliament was also part of basic structure.[727] It wasalso held that judicial review to determine whether a law was to giveeffect to Part IV could not be excluded as judicial review was part of thebasic structure.[728] It was also observed that though there is no rigidseparation of powers in three departments of the State – the Executive, theLegislature and the Judiciary, there is broad demarcation. Fine balancebetween the three organs could not be upset as it will destroy thefundamental premise of a democratic government. The judiciary is entrustedwith the duty to keep the Executive and the Legislature within the limitsof power conferred on them which is also a basic feature of theConstitution.[729]15.6. In L. Chandra Kumar vs. Union of India[730], part of Article 323 –A(2)(d) and 323 – B (3)(d) to the extent it excluded the jurisdiction ofHigh Courts in respect of specified matters for which jurisdiction wasconferred on Tribunals was struck down as violative of basic structure.Power of judicial review conferred on this Court and the High Courts washeld to be integral to constitutional scheme in view of earlier decisionsand conferment of power of judicial review on another judicial body couldnot justify exclusion of jurisdiction of the High Courts.[731]15.7. In I.R. Coelho vs. State of Tamil Nadu[732], bench of nine Judges,considered the scope of judicial review of inclusion of a law in NinthSchedule by a constitutional amendment thereby giving immunity fromchallenge in view of Article 31B of the Constitution. It was held thatevery such amendment shall have to be tested on the touchstone of essentialfeatures of the Constitution which included those reflected in Articles 14,19 and 21 and principles underlying them. Such amendments are not immunefrom 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 III of the Constitution. Itwas further observed that the Court has to be guided by the ‘impact test’in determining whether a basic feature was violated. The Court will firstdetermine if there is violation of rights in Part III by impugnedAmendment, its impact on the basic structure of the Constitution and theconsequence of invalidation of such Amendment[733].15.8 In M. Nagaraj vs. Union of India[734] , Eighty-Fifth and alliedamendments to the Constitution were called in question on the ground ofviolation of right of equality as a basic feature of the Constitution.While considering the challenge, it was observed that the Constitution setsout principles for an expanding future. This called for a purposiveapproach to the interpretation. It was observed that a constitutionalprovision must not be construed in a narrow sense but in a wide and liberalsense so as to take into account changing conditions and emerging problemsand challenges. The content of the rights is to be defined by the Courts.Some of the concepts like federalism, secularism, reasonableness andsocialism reasonableness are beyond the words of a particular provision.They give coherence to the Constitution and make the Constitution anorganic whole. They are part of constitutional law even if they are notexpressly stated in the form of rules. To qualify as essential feature, aprinciple has to be established as part of constitutional law and as suchbinding on the legislature. Only then, it could be examined whether itwas a part of basic feature. Theory of basic feature was based on conceptof constitutional identity. The personality of the Constitution mustremain unchanged. The word ‘amendment’ postulated that the Constitutionsurvived without loss of identity despite the change. [735] Conclusion:15.9 It can safely be held that a constitutional amendment has to pass thetest of basic structure. Whether or not the basic structure was violatedhas to be finally determined by this Court from case to case.B. Whether Primacy of Judiciary in Appointment of Judges is Part ofBasic Structure16. Whether a feature of the Constitution is basic feature or part ofbasic structure is to be determined having regard to its place in thescheme of the Constitution and consequence of its denial on the working ofthe Constitution.16.1 The judiciary has been assigned the role of determining powers ofevery Constitutional organ as also the rights of individuals. The disputesmay arise between the Government of India and the States, between a citizenand the State or between a citizen and a citizen. Disputes relating to thepowers of Union Legislature and the State Legislature or the exercise ofthe executive power may involve issues of constitutionality or legality.It may involve allegations of malafides even against highest constitutionaldignitaries. This requires an impartial and independent judiciary. Thejudiciary is required to be separate from the executive control. Judiciaryhas to inspire confidence of the people for its impartiality andcompetence. It has not been disputed by learned Attorney General thatindependence of judiciary is part of the basic structure. It is alsoundisputed that judicial review is part of basic structure. The decisionsof this Court expressly lay down that independence of judiciary andjudicial review are part of basic structure. Broad separation of powersbetween the three departments of the State is a part of doctrine of checksand balances. It is also a part of democracy. Independence of judiciaryis integral to the entire scheme of the Constitution without which neitherprimacy of the Constitution nor Federal character, Social Democracy norrights of equality and liberty can be effective.16.2 The judiciary has apolitical commitment in its functioning. Onceindependence of judiciary is acknowledged as a basic feature of theConstitution, question is whether power of appointing Judges can bedelinked from the concept of independence of judiciary or is integral partof it. Can the independence of judiciary be maintained even if theappointment of Judges is controlled directly or indirectly by theexecutive?16.3 To what extent primacy of judiciary in appointment of judges is partof unamendable basic feature of the Constitution. Since the issue has beengone into in earlier binding precedents, reference to such decisions isapt. As already mentioned, it remains undisputed that power of judicialreview, independence of judiciary, broad separation of powers in threedepartments of the State, federalism and democracy are the basic featuresof the Constitution. Stand of the respondents is that power of appointmentof judges does not have impact on such basic features as independence ofjudges is envisaged post appointment. By an amendment, process ofappointment of judges can be altered to reduce the role of judiciary and toincrease the role of Executive and Legislature. Alternatively, it issubmitted 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 examinedthe question of interpretation of unamended constitutional scheme dealingwith the appointment of judges of the Constitution case. The issue wasreferred to the Bench of 9-Judges on account of doubts having arisen as tothe correctness of the view expressed in S.P. Gupta vs. Union ofIndia[736] (First Judges’ case), laying down that primacy in the matter ofappointment of judges rested with the Central Government[737]. The basisof 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 asbinding as the ultimate power of appointment rested with the CentralGovernment. It was held that the views of the CJI or other Judges who wereconsulted may be entitled to great weight but the final view in case ofdifference of opinion could be taken by the Central Government. The word‘consultation’ could not be read as ‘concurrence’.16.5 The view taken was doubted in Subhash Sharma vs. Union of India[738].The question whether opinion of CJI with regard to appointment of Judgeswas entitled to primacy was referred for consideration of a larger bench,as already mentioned. This Court observed that Constitutional phraseologywas required to be read and expounded in the context of Constitutionalphilosophy of separation of powers and the cherished values of judicialindependence. The role of the CJI was required to be recognised as ofcrucial importance for which the view taken in First Judges’ case requiredreconsideration by a larger Bench. It was noted that there was an anxietyon the part of the Government of the day to assert choice in selection ofJudges and if the power to recommend appointment of Judges was vested inthe State Government or the Central Government, the picture was likely tobe blurred and process of selection may turn out to be difficult. It wasalso observed that the judiciary had apolitical commitment and theassurance of non-political complexion of judiciary should not be divorcedfrom the process of appointment. The phrase “consultation” had to beunderstood consistent with and to promote the constitutional spirit. Theconstitutional values could not be whittled down by calling the appointmentof judges as an executive act. The appointment was rather the result ofcollective constitutional process. It could not be said that power toappoint solely vested with the executive or that the executive was free totake such decision as it deems fit after consultation with the judiciary.The word “consultation” was used in recognition of the status of highconstitutional dignitary and could not be interpreted literally. Moreover,the appointment not recommended by Chief Justice of the State and the CJIwould be inappropriate and arbitrary exercise of power. The CJI should havepreponderant role. Primacy of CJI will improve the quality of selection.The view of the Chief Justices of States and CJI should be decisive unlessthe executive had material indicating that the appointee will beundesirable. The view of the majority in First Judges’ case did notrecognise the said pivotal position of the institution of the CJI andcorrectness of the said opinion required reconsideration. It was notedthat the Union Government had often stated before Parliament and outsidethat as a matter of policy it had not made any appointment without the namebeing given by the CJI and the executive must be held to the standard bywhich it professed its actions to be judged. Upon reference to largerBench, the 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 tobe construed in the constitutional background of its purpose and tomaintain and uphold independence of judiciary. So interpreted, it was heldthat in the event of conflicting opinions of the constitutionalfunctionaries, the opinion of the judiciary as symbolized by the view ofthe CJI and formed in the manner indicated, would have primacy.16.6 Pandian, J. held that the requirement of consultation was notrelatable to any other service and only applied to appointment of judges incontrast to other high ranking offices. The consultation with the CJI wascondition precedent for appointment and advice given by the judiciary inthe process had sanctity. The executive power of appointment comes intoplay by virtue of Articles 74 and 163 though it was not specificallyprovided for in Articles 124 and 217. The State was major litigant. Thesuperior courts were faced with controversies with political flavour and insuch a situation if the executive had absolute say in appointment ofjudges, the independence of judiciary will be damaged. The Law CommissionReports and opinion of jurists suggested radical change in appointment ofjudges by curbing the executive power[739].16.7 Kuldip Singh, J. observed that the concept of judicial independencedid not only mean the security of tenure to individual judges. There hasto be independence of judiciary as an institution so that it couldeffectively act as an impartial umpire between the Governments and theindividuals or between the Governments inter se. It would be illogical tosay that the judiciary could be independent when power of appointmentvested in the Executive. The framers of the Constitution never intended togive this power to the Executive which was the largest litigant before thecourts[740]. There was established constitutional convention recognisingthe primal and binding opinion of CJI in the matter of appointment ofjudges. All appointments since the commencement of the Constitution weremade with the concurrence of the CJI. The 14th Report of the LawCommission and discussion in the Parliament on 23rd and 24th November, 1959were referred to[741]. With regard to the statement of Dr. Ambedkar on24th May, 1949 before the Constituent Assembly that the CJI could not begiven a veto on appointment of judges, it was observed that primacy of theCJI acting in representative as against individual capacity would not beagainst the objective of the said statement[742].16.8 Verma, J. observed that the scheme of the Constitution of separationof powers, with the Directive Principles of separation of judiciary fromExecutive, and role of the judiciary to secure rule of law required thatappointment of judges in superior judiciary could not be left to thediscretion of the Executive. Independence of judges was required even atthe time of their appointment instead of confining it to the provisions forsecurity of tenure and conditions of service. It was necessary to preventinfluence of political consideration on account of appointments by theExecutive. In choice of a candidate, opinion of CJI should have greatestweight. The role of the Executive in the participatory consultativeprocess was intended to be by way of a check on the exercise of power bythe CJI. The Executive element was to be the minimum to eliminatepolitical influence[743].16.9 Accordingly, conclusions were recorded in para 486 to the effect thatinitiation of proposal for appointment and transfer could be initiated bythe judiciary and in case of conflicting opinions, the opinion of the CJIhad the primacy. In exceptional cases the appointment could be declined bydisclosing the reasons but if the reasons were not accepted by the CJIacting in representative capacity, the appointment was required to be madeas a healthy convention. The CJI was to be appointed by seniority. Thesenior most judge, considered fit to hold the office, was to be the CJI.16.10 Conclusions in Third Judges’ case in para 44 reiterated this viewwith only slight modification. On that basis, memoranda of procedurementioned in earlier part of this opinion were issued. The NationalCommission to Review the Working of the Constitution (NCRWC) headed byJustice M.N. Venkatachaliah, in its report dated 31st March, 2002, observedthat appointment of judges was part of independence of judiciary. It wasobserved that the Executive taking over the power of appointment andplaying a dominant role will be violative, of basic structure of theConstitution, of independence of judiciary[744].16.11 Contention of the petitioners is that the said decisions conclusivelyrecognise primacy of judiciary in appointment of judges inferred from thescheme of the Constitution and such primacy was part of basic structure.16.12 It is submitted that if the Executive has primacy, the power ofappointment of Judges can be used to affect or subvert the independence ofthe appointees as members of the Constitutional Courts. This would beagainst the intention of the Constitution makers. The unamended provisioncould not be replaced by the new mechanism unless the new mechanism ensuredthat a role of the Judiciary was not decreased and the role of theExecutive was not increased and the change made had no adverse impact onthe functioning of the Constitution. If this contention is upheld, theimpugned amendment will have to be struck down unless it could be held thatthe amended provisions also retained the said primacy. If primacy ofjudiciary is held not to be a part of basic structure of the Constitutionor it is held that the same is still retained, the amendment will have tobe upheld.C. Plea of the Respondents for re-visiting earlier binding precedents17. The correctness of the view taken in the above decisions was soughtto be challenged by learned counsel for the respondents. The ground onwhich reconsideration of the earlier view is sought is that theinterpretation in Second and Third Judges cases is patently erroneous.Members of the Constituent Assembly never intended that the CJI should havelast word on the subject of appointment of Judges. The text which wasfinally approved and which became part of the Constitution did not providefor concurrence of the CJI as has been laid down by this Court. It isalso submitted that the interpretation taken by this Court may have beenjustified on account of the abuse of powers by the Executive speciallyduring emergency (as noticed in Union of India vs. Sankalchand HimatlalSheth[745]) and in the Law Commission Reports (particularly 14th and 121stReports), the same situation no longer continues. More over there isglobal trend for Judicial Appointment Commissions. Even without primacy ofthe judiciary in appointment of judges, the judiciary could functionindependently. Judicial Appointment Commission was suggested even earlier. The eminent jurists had criticized the existing mechanism for appointmentof Judges and particularly the working of the collegium system.17.1 Referring to the scheme of Chapter IV of the Constitution, learnedAttorney General submitted that Executive and the Legislature had the rolein the working of the judiciary. Salary and Conditions of Service ofJudges are fixed by the Parliament. The Rules for functioning of theSupreme Court are framed with the approval of the President and are subjectto the law made by the Parliament. Parliament could confer supplementarypowers on the Supreme Court. Conditions of service of officers andservants of the Supreme Court are subject to law made by the Parliament.The rules framed by the CJI require approval of the President. There wasinter play of Executive and Legislature in the functioning of thejudiciary. Independence of judges was in respect of their security oftenure and service conditions. Manner of appointment did not affectindependence of judiciary. Executive appointing Comptroller General ofIndia or Election Commission did not affect their independence. Power ofappointment of judges is the Executive power to be exercised by thePresident with the advice of the Council of Ministers after consultationwith the judiciary. The doctrine of separation of powers or separation ofjudiciary from Executive does not require that the Executive could have norole in appointment of judges. Primacy of judiciary in appointment ofjudges ignores the principles of checks and balances. The interpretationplaced in the earlier decisions ignores the principles of transparency andaccountability. Even without there being manifest error in earlierdecisions, having regard to the sensitive nature of the issue and also thefact that an amendment has now been brought about, the earlier decisionsneed to be revisited.17.2 The stand of learned Attorney General and other learned counselappearing for the respondents was contested by learned counsel for thepetitioners. It was submitted that all issues sought to be raised by therespondents were duly considered by the Bench of nine-judges. The CentralGovernment sought opinion of this Court under Article 143. A statement wasmade by the then learned Attorney General that the Second Judges’ case wasnot sought to be reconsidered. The view of the nine-Judge Bench was basedon earlier binding decisions in Shamsher Singh vs. State of Punjab[746] andSankalchand case (supra) laying down that the last word on such matters wasof the CJI. The expert studies and the Constituent Assembly Debates ruledout pre-dominant role for the Executive or Legislature in appointment ofjudges. The constitutional scheme did not permit interference of theExecutive in appointment of judges. The Executive could give feed backand carry out the Executive functions by making appointments but theproposal had to be initiated and finalised by the judiciary. Frequentreconsideration of opinions by larger Benches of this Court was notdesirable in absence of any doubt about the correctness of the earlierview.17.3 Parameters for determining as to when earlier binding decisionsought to be reopened have been repeatedly laid down by this Court. Thesettled principle is that court should not, except when it is demonstratedbeyond all reasonable doubts that its previous ruling given after duedeliberation and full hearing was erroneous, revisit earlier decisions sothat the law remains certain.[747] In exceptional circumstances or undernew set of conditions in the light of new ideas, earlier view, ifconsidered mistaken, can be reversed. While march of law continues and newsystems can be developed whenever needed, it can be done only if earliersystems are considered unworkable[748].17.4 No such situation has arisen. On settled principles, no case forrevisiting earlier decisions by larger Benches is made out. As regards thecontention that there was patent error in the earlier decisions, the SecondJudges’ case shows that the Constituent Assembly Debates are exhaustivelyquoted and considered. Neither the debates nor the text adopted by theConstitution show that the power of appointment of Judges was intended tobe conferred on the Executive or the Legislature. The word ‘consultation’as interpreted and understood meant that the final word on the subject ofappointment of Judges was with the CJI. The practice and convention eversince the commencement of the Constitution showed that proposal forappointment was always initiated by the Judiciary and the last word on thesubject belonged to the CJI. This scheme was consistent with the intentionof the Constitution makers. All the points now sought to be raised bylearned Attorney General have been exhaustively considered in the SecondJudges case. The contention that earlier situation of Executiveinterference has now changed also does not justify reconsideration of theearlier view. If the situation has changed, there can be no reason forchange of the system which is functioning as per the intention of theConstitution makers when such change will be contrary to basic structurewhich is not constitutionally permissible. The objection as todeficiencies in the working of the collegium system will be subject matterof discussion in the later part of this judgment. Individual failings maynever be ruled out in functioning of any system. The Judicial AppointmentCommissions earlier considered were not on the same pattern. Initiallyproposal to set up Judicial Commission was made prior to Second Judgescase, with the object of doing away with the primacy of the Executive aslaid down in First Judges case. In Sixty-Seventh Amendment Bill, in theStatement of Objects and Reasons, it is mentioned that the object ofsetting up of Commission was to ‘obviate the criticism of arbitrariness onthe part of the Executive’[749]. Ninety-Eighth Amendment Bill, 2003 wasintroduced with a different composition on recommendation of NationalCommission to review the working of the Constitution. One-TwentiethAmendment Bill, 2013 did not provide for any composition and left thecomposition to be provided for by the Parliament. Validity of suchproposed Commissions was never tested as such Commissions never came intoexistence.17.5 The Judicial Commissions in other countries and provisions ofConstitutions of other countries conferring power on the Executive toappoint Judges may also not call for reconsideration of the Second Judges’case as many of such and similar provisions were duly considered in theSecond Judges’ case to which reference will be made. No case is thus madeout for revisiting the earlier decisions in Second and Third Judges’ cases.D. Consequential consideration of issue of primacy of judiciary inappointment of judges as part of basic structure.18. The earlier decisions in Second and Third Judges’ case have to betaken as binding precedents. Once it is so, it has to be held that primacyof the judiciary in appointment of judges is part of the basic structure.Appointment of judges is part of independence of judiciary. It is alsoessential to uphold balance of powers between Legislature, Executive andJudiciary which by itself is key to the functioning of the entireConstitution. The judiciary is entrusted the power to control the power ofthe Executive and the Legislature whenever it is alleged that the saidorgans have exceeded their constitutionally assigned authority. This isthe essence of the democracy. Learned counsel for the petitionershighlighted that at times exercise of powers of Judicial Review by theConstitutional Courts may not be to the liking of the Executive or theLegislature. Particular instances have been given of decisions of thisCourt in 2G Spectrum case[750] and Coal Scam case[751] where actions of theExecutive were found to be violative of constitutional obligations causinghuge loss to public exchequer. It was submitted that arbitrarydistribution of State largess by way of giving scarce resources orcontracts or jobs or positions of importance akin to ‘spoil system’ havebeen held by this Court to be in violation of the Constitution. Policiesof the State for arbitrary acquisition of land or in violation ofenvironmental laws have been struck down by this Court. Dissolution ofState Assemblies and dismissal of State Governments have also been struckdown by this Court[752]. This Court also had to deal with the issuesarising out of decisions of Speakers in recognizing or otherwise thedefections in Central or State Legislatures[753]. There are enumerableinstances when the Courts have to deal with validity of Legislative orExecutive decisions of far reaching nature. It is the faith of the peoplein the impartiality and competence of judiciary which sustains democracy.If appointment of judges, which is integral to functioning of judiciary isinfluenced or controlled by the Executive, it will certainly affectimpartiality of judges and their functioning. Faith of people inimpartiality and effectiveness of judiciary in protecting theirconstitutional rights will be eroded.18.1 Submissions of learned Attorney General are that even if appointmentof judges is held to be part of independence of judiciary, choice of aparticular model is not part of basic structure. The role of the Executivecannot be denied altogether nor there can be any objection to members ofcivil society being included in the process of appointment. The primacy ofjudiciary in appointment of judges is not an absolutist ideal. Power ofappointment has to be seen in the light of need for checks and balances.Independence of judiciary is not a uni- dimensional test. There could beinter mingling of other wings in the process of appointment of judges.After repeal of Articles 124 and 217, basis of Second Judges’ case did notsurvive. Primacy of judiciary in appointment of judges is only in thecontext of stopping wrong appointment or preventing pre-dominance of theExecutive. Even if primacy of judiciary was recognized at a given point oftime, the same could apply only till the Constitution is amended. Twoeminent persons could be laymen to give societal view point. The LawMinister was made a member of the Commission for accountability andtransparency. As laid down in I.R. Coelho case, inspite of separation ofpowers, different branches of the Government could have overlappingfunctions[754]. In Sahara India Real Estate Corpn. Ltd. vs. SEBI[755], itwas observed that under the Constitution there are different values whichmust be balanced. Thus, independence of judiciary, checks and balances,democracy and separation of powers are to be considered as a whole. Hereferred to the background of supersession of judges in the year 1973 and1977 and selective transfer of judges during emergency as noted in 121stReport of the Law Commission[756]. The report records that in 1976,sixteen judges were transferred from the respective High Courts in whichthey were functioning to other High Courts. This was perceived to be anact of interference with the judiciary. Circular of the then Law Ministerproviding for transfer and short term appointment of judges considered inFirst Judges’ case was taken in the said report as the executiveinterference. The report also mentioned the concern arising out ofsupersession in appointment of CJI, non confirmation of additional judges,transfer of judges giving rise to apprehension of erosion of independenceof judiciary at the hands of the Executive. It was concluded that themodel then prevalent (with the primacy of the Executive) had failed todeliver the goods. This led to introduction of 67th Amendment Bill, 1990.18.2 The contentions of learned Attorney General cannot be accepted. Thematter having been gone into in great details in above binding precedentswhich do not require reconsideration, I do not consider it necessary torepeat in detail the discussion which has been recorded in the saiddecisions.18.3 In Second Judges’ case, following findings have been recorded :(i) The word ‘consultation’ used in Articles 124, 217 and 222 of theConstitution meant that the opinion of consultee was normally to beaccepted thereby according primacy to the judiciary;The Executive being major litigant and role of judiciary being toimpartially decide disputes between citizen and the State, the Executivecould not have decisive say in appointing judges;Doctrine of separation of powers under the Constitution required primacy ofjudiciary in appointing judges;Since traits of candidates could be better assessed by the Chief Justice,the view of the Chief Justice as to suitability and merit of the candidatehad higher weight;The Chief Justice of India was not to make a recommendation individuallybut as representing the judiciary in the manner laid down, that is, afterconsulting the collegium; andPrimacy of judiciary in appointment of judges is part of independence ofjudiciary and separation of powers under the Constitution.18.4 Referring to the constitutional scheme, its background andinterpretation, irrespective of the literal meaning of the languageemployed in Articles 214 and 217 of the Constitution, it was observed thatinitiation of proposal must always emanate from the Chief Justice of theHigh Court/CJI (in representative capacity as laid down) and last word onany objection thereto should be normally of the CJI.[757]18.5 Reference was made to the interpretation of the word ‘consultation’in the context of appointment of judges in earlier judgments in ChandraMoulishwar Prasad vs. Patna High Court[758], Shamsher Singh and Sankalchandcases. It was held that “in practice, the last word in such sensitivesubject must belong to CJI, the rejection of his advice being ordinarilyregarded as prompted by oblique considerations vitiating the order.”18.6 Reference was also made to the statement of Dr. Ambedkar thatit was dangerous to give power to appoint judges to the Executive or withconcurrence of the Legislature.[759] Further statement that it wasdangerous to give veto power to CJI was explained to mean that the CJI mustact not in individual capacity but after consulting senior judges.[760]18.7 Needless to say that the Constitution of India is unique.While reference to other Constitutions can be made for certainpurposes[761], the basic features of Indian Constitution (which may bedistinctly different from other Constitutions) have to be retained andcannot be given a go bye. In the above judgment, in the context of workingof Indian Constitution, it was held that the role of Executive andLegislature in appointment of judges could not be predominant. Even in theConstituent Assembly, models of other countries were not found to besuitable to be followed in India[762]. As already mentioned theGovernment of India appointed First Law Commission headed by Shri M.C.Stealvad to review the system of judicial administration and all itsaspects. The Commission expressly mentioned that the Executiveinterference in appointment of Judges has not been congenial toindependence of judiciary. The Commission noted that the Chief Ministerswere having direct or indirect hand in appointment of Judges which resultsin appointments being made not on merit but on considerations of community,caste, political affiliations. The Chief Minister holding a politicaloffice is dependent on the goodwill of his party followers. Therecommendation of the CJI is more likely to be on merit. An opinion notedin the report mentions that if the Executive continued to have powerfulrole, the independence of judiciary will disappear and the Courts will befilled with Judges who owe from appointments to politicians[763]. It wasrecommended that the hands of CJI should be strengthened and instead ofrequiring consultation it should require recommendation by the CJI[764].There should be requirement of concurrence of the CJI[765]. The Report wasdiscussed in the Parliament and the then Home Minister declared that theExecutive was only an order issuing authority and appointments werevirtually being made by the CJI. This statement was reiterated by the thenLaw Minister[766]. Again in 121st Report, it was observed that appointmentof Judges with Executive influence was not conducive to healthy growth ofjudicial review. Trends all over the world indicate that power of theExecutive in appointment of Judges was required to be diluted[767]. TheSecond Judges’ case took care of the ground realities in the light ofconstitutional convention. It held that the CJI was better equipped toselect the best and for appointments being free from Executive dominationto inspire public confidence in impartiality and consistent with theprinciple of separation of Judiciary from Executive and also consistentwith the spirit of Constitution makers. The principle of primacy wasrecognised and appointment of Judges was held to be integral to theindependence of judiciary[768]. To check arbitrary exercise of power byany individual, it was made mandatory that the Chief Justices consultsenior Judges. Thus, primacy of judiciary was recognized in initiatingproposal as well as in taking final decision[769]. However, participationof the Executive in giving inputs by suggesting names before the proposalwas initiated or giving feedback even after the proposal was initiated waspermissible. It was noted that right from beginning of the Constitution,all the proposals for appointments were always initiated by the ChiefJustices[770]. View in First Judges’ case that primacy in appointment ofJudges was of the Central Government was held to be erroneous by largerBench inter alia for following reasons :(i) The judiciary has apolitical commitment and if power of appointmentof judges is given to the Executive, this will affect independence ofjudiciary[771];(ii) Rule of law requires that justice is impartial and people haveconfidence in judiciary being separate and independent of the Executive sothat it can discharge its functions of keeping vigilant watch forprotection of rights even against the Executive[772];Judiciary has key role in working of the democracy and for upholding therule of law[773];The constitutional scheme provides for mandatory consultation with the CJIsince the CJI was better equipped to assess the merit of the candidatewhich consultation was not provided for in respect of other highconstitutional appointments[774].The appointment of judges was inextricably linked with the independence ofjudiciary and even in the matter of appointment of district judges, theconclusive say was of the High Courts and not of the Government[775].Even in countries where power of appointment of judges was with theExecutive, there is demand/proposal for minimizing the role of theExecutive[776].The effort of the Executive to have say in appointment of judges was foundby expert studies to be not congenial to the independence ofjudiciary[777]. Reference was made to the 14th Report of the LawCommission that if the Executive had powerful voice in appointment ofjudges, the independence of judiciary will disappear and the courts will befilled with judges who owe their appointments to the politicians.Reference was also made to 121st Report of the Law Commission to the effectthat even in UK there was thinking to create a check on the power of theExecutive to select and appoint judges.Consultation with the CJI was not envisaged by the Constitution makers tobe of formal nature but implied that great weight was to be given so thatthe last word belonged to the CJI[778].Article 50 and the background of its enactment spells out the mandate forappointment of judges being taken away from the Executive and itstransference to the judiciary.[779]18.8 In the above background, the forceful contention of learnedAttorney General that the scheme of the Constitution did not envisageprimacy of judiciary but only mandatory consultation with the CJI andoptional consideration with such other judges as may be considerednecessary cannot be accepted, even if it is so suggested by the literalmeaning of the words used in the text of the provision. It may bementioned that the word ‘consultation’, on account of the scheme of theConstitution, was held to carry special meaning, on a purposiveinterpretation. The interpretation was not based solely on the word‘consultation’ but on scheme of independence of judiciary. The contentionthat independence of judiciary was not affected even when the Executivemade the appointment is contrary to the expert studies and well considereddecisions of this Court. The acknowledged scheme of the Constitution andits working is not to allow domination of the Executive in appointment ofJudges. Such domination affects independence of judiciary, public faith inits impartiality (when the Government is major litigant), brings inextraneous considerations, compromises merit, weakens the principles ofchecks and balances and separation of judiciary from the Executive. Thus,by substitution of the words, the Parliament could not interfere with theprimacy of judiciary in appointment of judges and thereby interfere withthe basic feature of the Constitution. It may be mentioned that use ofsimilar expression in Article 74 of the Constitution in the context ofExecutive power of the President to act on “aid and advice” of Council ofMinisters was held to mean that the President was only a formal head.[780]It cannot be suggested that by amendment of the expression used,constitutional scheme of the President being formal head can be changed assuch amendment will be repugnant to the basic structure of theConstitution. Likewise, even by amendment primacy of judiciary inappointment of judges cannot be excluded. Such primacy existed not merelyby word ‘consultation’ but by virtue of role of judiciary in working of theConstitution, by CJI being better suited to assess merit of the candidateand on account of Executive being major litigant. There is no change inthese factors even after amendment. It is not thus a question of change ofmodel or of available choice with the Parliament. Plea of presumption ofconstitutionality can be of no avail where an established basic feature ofthe Constitution is sought to be damaged. Similarly, the plea thatParliament is best equipped to assess the needs of the people is not enoughreason to extend the power of Parliament to amend the basic feature of theConstitution. The change of time does not justify greater role for theExecutive in appointment of judges. The plea of overlapping role ofdifferent Departments of the Government is against the basic structure asfar as appointment of judges is concerned.18.9 While it is true that the Legislature can even retrospectivelyclarify its intention and thereby bring about a change in law[781], in thepresent context meaning of the unamended provision was not based merely onthe words used but also the entire scheme of the Constitution particularlythe independence of judiciary. It has been held that in the context of theIndian Constitution, having regard to the consistent past practice and toavoid political interference in appointment of judges, and also on accountof the CJI/CJ being better equipped to assess the merit of a candidate,proposal must always be initiated by the CJI/CJ and the CJI must also havefinal word on the subject. It can hardly be doubted that the Constitutionis a dynamic document and has to be interpreted to meet the felt needs oftimes and cannot bind all future generations. At the same time, it is alsonow well settled that the amending power is limited to non essential/nonbasic features and does not extend to altering the basic features andframework of the Constitution. Primacy of judiciary is certainly a part ofthe basic feature of the Constitution. If primacy of judiciary in theappointment of judges is held to be not a part of basic feature, theParliament may be free to confer the said power on the Executive or theLegislature or to any other authority which can certainly compromise theindependence of judiciary. It will also in turn disturb the doctrine ofseparation of powers and other basic features like rule of law, democracyand federalism and working of the Constitution as a whole. Independence ofjudiciary is key element in the entire functioning of the Constitution andsuch independence is integrally linked with the appointment of judges freefrom Executive interference. The alternative submission of Shri Venugopal,learned senior counsel appearing for the State of Madhya Pradesh in Paras 4and 8 (reproduced in para 13 above) also supports the conclusion thatappointment of judges is part of independence of judiciary and primacy ofjudiciary in appointment of judges is required to be retained. The powerof appointment of judges cannot be exercised by the Executive as the samewill affect independence of judiciary. Even after the original provisionsare amended, this principle is still applicable.18.10 At this stage, it may be mentioned that any perceived shortcomingin the working of existing mechanism of appointment of judges cannot byitself justify alteration or damage of the existing scheme once it is heldto be part of basic feature. As Dr. Ambedkar observed[782] :-“The Constitution can provide only the organs of State such as theLegislature, the Executive and the Judiciary. The factors on which theworking of those organs of the State depend are the people and thepolitical parties they will set up as their instruments to carry out theirwishes and their politics.”To the same effect Dr. Rajendra Prasad* said :-“If the people who are elected are capable and men of character andintegrity, they would be able to make the best even of a defectiveConstitution. If they are lacking in these, the Constitution cannot helpthe country. After all, a Constitution like a machine is a lifeless thing.It acquires life because of the men who control it and operate it, andIndia needs today nothing more than a set of honest men who will have theinterest of the country before them.”Even a good system may have shortcomings in its working on account ofindividual failures. It may be mentioned that criticism of working may beleveled against working of every organ of the Constitution including theExecutive and the Legislature and while all efforts must be continuouslymade to bring about improvement in every sphere, the basic scheme set up bythe Constitution cannot be given a go bye on that ground. It is notnecessary to comment upon how good or bad any constitutional authoritieshave performed in discharge of their duties or how good or bad thejudiciary has performed, as the limited question for consideration of theCourt is to identify and retain the basic structure of the Constitution inappointment of judges. The improvement in working of existing system ofappointment of judges can be the subject matter of separate considerationwhich is being proposed but certainly without giving a go bye to the basicfeatures of the Constitution of independence of judiciary. In Manoj Narulavs. Union of India[783], question considered was how persons with criminalantecedents could be prevented from being appointed as Ministers. Therewas also reference to the concern as to how persons with such antecedentscould be prevented from being legislators. This Court held that the issuehas to be dealt with by those to whom the Constitution has entrusted theresponsibility and this Court could only enforce the constitutional scheme.18.11 At this stage, it may be mentioned that the claim of learnedAttorney General that the Parliament represented the will of the people orthat the amendment represented the will of the people and interferencetherewith will be undesirable is contrary to the law laid down inKesavananda Bharti case (supra)[784]. The will of the people is theConstitution while the Parliament represents the will of the majority at agiven point of time which is subordinate to the Constitution, that is, thewill of the people. The Constitution was supreme and even Parliament hasno unlimited amending power. Learned Attorney General rightly submittedthat the last word on the validity of a constitutional amendment is ofthis Court. Even if the judiciary is not an elected body, it dischargesthe constitutional functions as per the will of the people reflected in theConstitution and the task of determining the powers of variousconstitutional organs is entrusted to the judiciary[785].Conclusion:18.12 Accordingly, I hold that primacy of judiciary and limited role of theExecutive in appointment of judges is part of the basic structure of theConstitution. The primacy of judiciary is in initiating a proposal andfinalising the same. The CJI has the last word in the matter. TheExecutive is at liberty to give suggestions prior to initiation of proposaland to give feedback on character and antecedents of the candidatesproposed and object to the appointment for disclosed reasons as held inSecond and Third Judges’ cases.E. Whether the Impugned Amendment alters or damages the basic structure19. In the above background, the only question which remains to beconsidered is whether under the impugned amendment the basic feature ofprimacy of judiciary in appointment of judges has been altered or damaged.19.1 Learned Attorney General submitted that basic structure comprisesmany features like several pillars in a foundation, some of which areenumerated in opinions rendered in Kesavananda Bharti case. In judging thevalidity of a constitutional amendment, test is whether the amendment wouldlead to collapse of the Constitution. Merely affecting or impinging upon anArticle embodying a feature that is part of the basic structure was notsufficient to declare an amendment unconstitutional. Violation of basicstructure of the constitution must be such that the structure itself wouldcollapse. He also relied upon the observations in Bhim Singh Ji vs. Unionof India[786] particularly the following observations :“Therefore, what is a betrayal of the basic feature is not a mere violationof Article 14 but a shocking, unconscionable or unscrupulous travesty ofthe quintessence of equal justice. If a legislation does go that far itshakes the democratic foundation and must suffer the death penalty. But topermit the Bharati8 ghost to haunt the corridors of the court brandishingfatal writs for every feature of inequality is judicial paralysation ofparliamentary function. Nor can the constitutional fascination for thebasic structure doctrine be made a trojan horse to penetrate the entirelegislative camp fighting for a new social order and to overpower thebattle for abolition of basic poverty by the ‘basic structure’ missile.”and following observations in Ashoka Kumar Thakur vs. Union of India[787]:-“There are large number of provisions in the Constitution dealing with thefederal character of the Constitution. If any one of the provisions isaltered or modified, that does not amount to the alteration of the basicstructure of the Constitution. Various fundamental rights are given in theConstitution dealing with various aspects of human life. The Constitutionitself sets out principles for an expanding future and is obligated toendure for future ages to come and consequently it has to be adapted to thevarious changes that may take place in human affairs.”19.2. Applying the above tests it was submitted that the Ninety-NinthAmendment was consonant with and strengthens the independence of judiciarywhile upholding the democracy, rule of law and checks and balances. NJAC isin sync with the needs of time and is modelled on checks and balances toensure a democratic process with plurality of views. NJAC dilutes power ofexecutive in favour of the judiciary. He submitted that identity test wasrequired to be applied which means that after the amendment the amendedConstitution loses the identity of the original Constitution. There is nobar to making changes and to adopt the Constitution to the requirements ofchanging times without touching the foundation or altering the basicconstitutional pattern. He further relied upon the observations in theIndira Gandhi and Minerva Mills Ltd. cases (supra).19.3 The learned Attorney General further submitted that the object of theamendment is to broad base the collegiate body so as to provide forparticipatory and collective role to the judiciary, the executive and thecivil society. The executive has only one member, the Law Minister. Theobject of having the Law Minister is to provide information about thecandidates which information the other members may not have. The eminentpersons will be independently appointed by a committee comprising of thePM, the CJI and the Leader of Opposition. In this way there is noabrogation of independence of judiciary. Moreover, three of the six membersare from the judiciary and thus, the right to reject was available to thejudges, while the executive alone cannot exercise the right to reject. Evenin Second Judges’ case it is observed that the process of appointment is aparticipatory process. An area relating to suitability of candidates suchas his antecedents and personal character may be better known to consulteesother than the CJI. The expression, ‘eminent person’ is well known and itmeans distinguished in character or attainments or by success in any walkof life. The expression ‘distinguished’ is used in Article 124 (3)providing for eligibility criteria for judges of the Supreme Court. Sincethe high powered committee comprising three high functionaries is toappoint an eminent person, there is sufficient safeguard against anyuncanalised power. The principles of constitutional trust apply to the highpowered committee which can be trusted to select the most appropriatepersons. Such eminent persons shall provide inputs for the qualities whichmake a person suitable for appointment as a judge. Diversity in compositionof the Commission will mitigate the danger of cloning. In other bodiesalso there are provisions for non judges. For example, Consumer ProtectionAct. Reservation in favour of minorities, women, Scheduled Castes,Scheduled Tribes and OBC will have the effect of sensitizing other membersfor the problems to be faced by these sections. Even in the report ofNational Commission to Review the Working of the Constitution (NCRWC), alsoknown as Venkatachalliah Commission, a provision for an eminent person wasmade without prescribing any criteria. The eminent person will be guided bythe CJI, who will be the Chairman and best placed to access the legal meritof the candidates. The executive is a key stake holder in justice deliverysystem for which it is accountable to the Parliament and it cannot bedenied role in appointment of judges. Mere possibility of abuse ofprovision cannot be a ground for holding a provision unreasonable. Reliancehas been placed on Mafat Lal Industries Ltd. vs. Union of India[788] whichreads as under :-“To the same effect are the observations by Khanna, J. in KesavanandaBharati v. State of Kerala (SCR at p. 755 : SCC p. 669). The learned Judgesaid: (SCC p. 821, para 1535)“In exercising the power of judicial review, the Courts cannot be obliviousof the practical needs of the government. The door has to be left open fortrial and error. Constitutional law like other mortal contrivances has totake some chances. Opportunity must be allowed for vindicating reasonablebelief by experience.”To the same effect are the observations in T.N. Education Deptt.Ministerial and General Subordinate Services Assn. v. State of T.N. [(1980)3 SCC 97] (SCR at p. 1031) (Krishna Iyer, J.). It is equally well-settledthat mere possibility of abuse of a provision by those in charge ofadministering it cannot be a ground for holding the provision procedurallyor substantively unreasonable. In Collector of Customs v. Nathella SampathuChetty [ 1962 (3) SCR 786], this Court observed: “The possibility of abuseof a statute otherwise valid does not impart to it any element ofinvalidity.” It was said in State of Rajasthan v. Union of India [(1977) 3SCC 592] (SCR at p. 77), “it must be remembered that merely because powermay sometimes be abused, it is no ground for denying the existence ofpower. The wisdom of man has not yet been able to conceive of a governmentwith power sufficient to answer all its legitimate needs and at the sametime incapable of mischief”. (Also see Commr., H.R.E. v. Sri LakshmindraThirtha Swamiar of Sri Shirur Mutt [ (1954) SCR 1005] (SCR at p. 1030).”Transparency and accountability in the matter of appointment are essentialfor public confidence in the judiciary. In this connection reference hasbeen made to Inderpreet Singh Kahlon vs. State of Punjab[789] which readsas under :-“This unfortunate episode teaches us an important lesson that beforeappointing the constitutional authorities, there should be a thorough andmeticulous inquiry and scrutiny regarding their antecedents. Integrity andmerit have to be properly considered and evaluated in the appointments tosuch high positions. It is an urgent need of the hour that in suchappointments absolute transparency is required to be maintained anddemonstrated. The impact of the deeds and misdeeds of the constitutionalauthorities (who are highly placed), affect a very large number of peoplefor a very long time, therefore, it is absolutely imperative that onlypeople of high integrity, merit, rectitude and honesty are appointed tothese constitutional positions.”19.4 These submissions cannot be accepted. It is obvious thatpre-dominant role of the judiciary, as it exists in light of originalConstitutional scheme in taking a final decision on the issue ofappointment of judges of the Supreme Court and appointment and transfer ofjudges of the High Courts, has been given a go bye. Under the unamendedscheme of appointment of judges, which is a basic feature of theConstitution, the President is to make appointment, after consultation withthe CJI representing the judiciary. Disregarding the views of the CJI ispermissible in exceptional situations for recorded reasons having bearingon character and antecedents of a candidate and if such reasons are foundto be acceptable to the CJI. Under the amended scheme, no such final viewcan be taken by the CJI. Without giving any reason, the Minister or thenominated members can reject the unanimous view of the judges. ChiefJustice of the High Court is not a member of the Commission and has noConstitutional role in appointment/transfer of the judges of the HighCourts. Mere fact that without the judges, the Minister and the nominatedmembers cannot make an appointment is not at par with the situation where adecision itself is taken by the CJI representing the judiciary. TheConstitutional power of the Chief Justice of the High Court to initiateproposal for appointment as judge of the High Court has been done awaywith, at least as far as the Constitutional provisions are concerned.19.5 The contention that the amendment strengthens the independence ofjudiciary or the democracy or brings about transparency or accountabilityis not shown to be based on any logic beyond the words. Even if inappointing two eminent members CJI is also a member of the Committee, thefact remains that the PM and the Leader of the Opposition have significantrole in appointing such members, who will have power not only equal to theCJI and two senior most judges of the Supreme Court in making appointmentof judges of the Supreme Court and appointment/transfer of judges of theHigh Courts but also right to reject the unanimous proposal of the CJI andthe two senior most judges. Such composition of the Commission cannot beheld to be conducive to the independence of judiciary. Appointment ofjudges of the Supreme Court and appointment/transfer of judges of the HighCourts, can certainly be influenced to a great extent by the Law Ministerand two nominated members, thereby affecting the independence of judiciary.19.6 Contention of learned Attorney General that there is a presumptionthat the Law Minister and the nominated members will conduct themselvesindependently and will make value addition in selecting the judges in abetter way cannot be accepted. The views of the Constitution makers andeminent expert committees clearly show that role of the Executive inappointment of judges has to be minimum and by and large limited to checkthe character and antecedents of the candidates and not to finally assessthe merit and suitability of such candidates. In this view of the matter,even if the contention that no guideline was required for criteria forappointment of eminent persons when the Committee will be comprised of highdignitaries is accepted the fact remains that such persons will play notmerely supporting but pre-dominant role in appointing Supreme Court andHigh Court judges which will not be congenial to the independence ofjudiciary. There is no justification for reservation for one of thenominated members being from specified categories. Such provision isagainst the scheme of the Constitution and contrary to the object ofselecting judges purely by merit. The nature of appointment does notjustify any affirmative action for advancement of any socially andeducationally backward classes or for the Scheduled Castes or ScheduledTribes or women. The appointment of judges has to be on evaluation ofmerits and suitability of the candidates. Religion, caste or sex of theevaluator has no relevance. The plea that the Law Minister and thenominated members will provide feed back also does not provide anyjustification for their being members of the Commission and therebyparticipating in evaluation and suitability of a candidate for appointmentas judge of the Supreme Court or High Courts and having power to overruleunanimous view of judges. The appointment of a judge of the Supreme Courtis normally made out of Chief Justices of High Courts or senior judges oreminent lawyers or eminent jurists whose merit is better known to seniorjudges. Their evaluation has to be impartial and free from any politicalor other considerations. Persons making selection are required to be bestplaced to assess their merit and suitability. Pre-dominant and decisiverole of the judiciary is a requirement not only of independence ofjudiciary and separation of powers but also for inspiring confidence of thepeople at large necessary for strength of the Democracy. The citizenshaving a grievance of violation of their fundamental and legal rightsagainst the Executive or the Legislature expect that their grievance isconsidered by persons whose appointments are not influenced by theExecutive or the Legislature. If an appointment is perceived as beinginfluenced by political consideration or any other extraneous influence,faith in impartiality, which is hall mark of independence of judiciary,will be eroded. The scheme in other countries cannot be mechanicallyfollowed when it is in conflict with the basic scheme of the IndianConstitution.19.7 In this regard, it may be recalled that the word amendment literallymeans betterment or improvement and sponsor of amendment may always claimimprovement. Such claim has to be tested by applying the ‘identity test’and the ‘impact test’. The said tests have already been mentioned in theearlier part of its opinion. The amendment should not affect the identityof an essential feature of the Constitution. The impact of the amendmenton the working of the scheme of the Constitution has to be taken intoaccount[790]. This brings to some extent subjective element which isunavoidable even while testing any legislation which is alleged to beviolative of fundamental rights and justified on the concept of ‘reasonablerestrictions’[791]. In this regard, effect of Executive interference whichhas been documented by expert studies cannot be held to be irrelevant orignored on the ground that this is a subject of wisdom of Parliament. Asalready mentioned, the working of the Judiciary has affected the Executiveand Legislature on several occasions, including (by way of illustration)Privy Purses case[792], Bank Nationalisation Case[793], Freedom of Presscase[794], Kesavananda Bharati case (supra), Indira Gandhi case (supra),Minerva Mills case (supra), L. Chandrakumar case (supra), M. Nagaraj case(supra), I.R. Coelho case (supra), S.R. Bommai case[795].19.8 The new structure provides for decisive voice with the Commissionwhich apart from judges comprises of Law Minister and two eminent personsto be nominated by a specified committee. Before examining the saidstructure, it may be noted that it is not merely the text of the amendmentbut 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 thenew scheme[796]. In a similar context when an alternative judicial forumwas sought to be created to deal with the company matters in place of HighCourts, this Court held that the concept of rule of law required that thenew mechanism should, as nearly as possible, have same standards[797].Same view was taken in the context of setting up of National Tax Tribunalsto substitute the jurisdiction of the High Courts in tax matters[798]. Thenew scheme may iron out the creases but the mechanism should be comparableto the substituted scheme.19.9 As already mentioned under the unamended scheme, as authoritativelyinterpreted by this Court, power of initiating a proposal was always withthe judiciary. At the time of making of the Constitution, the draft of theConstitution was circulated to the Federal Court and High Courts to elicitviews of the judges. In the memorandum representing the views of thejudges, it was mentioned that the existing convention was that appointmentof judges was made after referring the matter to the Chief Justice andobtaining his concurrence[799].19.10 In CAD, various models were considered but the system applicable inother countries providing for final say of the Executive or concurrence ofLegislature (as in UK and USA) were found to be unsuitable. It was statedby Dr. Ambedkar that the power could not be left to be exercised on theadvice of the Executive or be made subject to concurrence of theLegislature. It was further stated that the Chief Justice could also notbe given a veto upon the appointment of judges[800]. The Law Commission inits 14th Report criticised the interference by the Executive in appointmentof judges. The matter came up for discussion before the Parliament and theHome Minister and the Law Minister made a statement that all appointmentswere made on the recommendation of the CJI as the CJI was familiar with themerits of the candidates. Out of 211, 210 appointments were made with theconsent and concurrence of the CJI[801]. It was noted that the procedurefor appointment of judges applicable prior to Second Judge’s case was thata proposal for appointment was initiated by the CJI in case of the SupremeCourt and by Chief Justice of the High Court in case of the High CourtJudges[802]. This mechanism was held to be a part of the convention[803].19.11 In Shamsher Singh case (supra) this Court observed that in practicethe last word in matters of judiciary must belong to the CJI. The sameview was expressed in Sankalchand case (supra) in the context of transferof judges[804]. In 80th Report of the Law Commission headed by JusticeH.R. Khanna, J. (1979), a Commission was proposed with a pre-dominant voiceof judiciary to deal with the appointment and transfer of judges. TheReport was significant in the background of supersession of judges inappointment of the CJI and selective transfer of judges which wereperceived to be interference with the independence of judiciary. However,contrary to the said recommendations, a circular was issued by the LawMinister in 1981 proposing transfer of judges and makingappointment of judges for short period which itself was perceived to beinterference with the independence of judiciary and was challenged in FirstJudges’ case. As already mentioned, the majority held that primacy in suchmatters rested with the Central Government[805]. The said view wassubject matter of severe criticism. Eminent constitutional expert Seervaicommented that the Executive was not qualified to assess the merits ordemerits of a candidate. Initiation of a proposal by the Executive wasagainst the intention of the framers of the Constitution. Political,Executive or Legislative pressure should not enter into the appointment ofa judge[806]. The Law Commission headed by Justice D.A. Desai in its 121stReport also criticised the system where the Executive had overriding powersin the matter of appointment of judges. He stated that power to appointand transfer judges of superior courts by the Executive affectsindependence of judiciary and is not conducive to its healthy growth. Herecommended a Judicial Commission to check the arbitrariness on the part ofthe Executive in such appointments and transfers[807].19.12 The interpretation in the Second Judge’s case was in the abovehistorical background. In the context of working of the IndianConstitution, the dominant role of the Executive in appointment of judgesadversely affected the independence of judiciary. The judiciary isassigned important role for upholding the rule of law and democracy. Itsindependence 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 saidprimacy of judiciary in appointment of judges.19.13 Under the new scheme, the Law Minister has been given role equal tothe CJI. Right from the commencement of the Constitution, this role of theLaw Minister was never envisaged while initiating the process andfinalizing it. Law Minister, in participatory scheme, could at bestsuggest a name or give his comments on the names proposed but the proposalcould and was always initiated by the CJI. At the stage of initiation, ifequal authority is conferred, this will erode the primacy of judiciary asdeclared by this Court authoritatively. Any deviation in the past wasalways adversely commented upon and held to be undesirable amounting tointerference with the independence of judiciary[808]. Other two persons tobe nominated by a Committee which also has predominant political voice tobe placed at par with the CJI in initiating and finalizing a proposaldestroys the original scheme beyond its identity. Any suggestion beforeinitiation of a name or feedback even after initiation may be useful andmay not affect independence of judiciary but equal participation by the LawMinister and two outsiders in final decision for initiation or appointmentcan be detrimental to the independence of judiciary. It cannot be wishedaway by presuming that the Law Minister and the two distributors will notbe influenced by any extraneous consideration. Such a presumption will becontrary to the acknowledged factual experience. It will also be againstthe concept of separation of judiciary from the Executive. More over thiswill be contrary to the basic intention of the Constitution makers. Theamendment is not an insignificant amendment and is not within the basicframework of the working of the Constitution. The very premise and objectof the amendment as reflected in the Statement of Objects and Reasons andthe stand of the Union of India in its pleadings and during the course ofarguments is that the primacy of judiciary was evolved by erroneousinterpretation which is sought to be corrected. It is stated that theprimacy of judiciary was undemocratic and denied the Executive a meaningfulrole. These reasons are untenable for reasons already discussed. Asregards the plea of transparency and accountability, the same has to beachieved without compromising independence of judiciary. If on theperceived plea of transparency and accountability, the independence ofjudiciary is sought to be adversely affected by the Amendment, this willcause severe damage to the functioning of the Constitution. The primacy ofjudiciary, as already noticed, is integral to the independence ofjudiciary, separation of powers, federalism and democracy, rule of law andsupremacy of the Constitution. The amendment does away with the primacy ofeven unanimous opinion of the judicial members as such opinion is notenough to finalise an appointment. While Shri Venugopal has rightly statedin his alternative submission that primacy of judiciary is part of judicialindependence and if Executive has pre-dominant voice, it could subvertindependence of judiciary, his submission that the situation could beretrieved by giving the suggested interpretation cannot be accepted. Suchinterpretation is not warranted by the text of the amendment or by theprinciples of interpretation. It is difficult to hold that primacy ofjudiciary is still retained as a wrong proposal can still be stalled by anytwo members, including two judges. The primacy of judiciary as alwaysunderstood in binding judicial precedents comprises of initiation of nameand taking a final call[809]. These two core features constitute identityof the primacy of judiciary. Subject to these two features, any amendmentcould have been made and if these two features are compromised, the basicidentity of the Constitution can be held to have been altered or damaged.19.14 There can be no doubt about the propositions forcefully canvassedby the respondents that the legislative wisdom of the choice of theParliament was not open to question and that possibility of abuse of powercould not affect the existence and exercise of power but these submissionscannot ignore the limitation of basic features. Examining whether basicfeature was sought to be altered, is different from questioning the wisdomof the Parliament. It is testing the power of Parliament conferred by theConstitution. Similarly determining whether the new mechanism compliedwith the framework of the Constitution is different from the issue ofpossibility of abuse. In the present case, question is of independence ofjudiciary which implies having judges not influenced by any politicalconsideration as per the intention of framers of the Constitution. Evenassuming the best of intention, can the power of judicial review by theconstitutional courts be subjected to scrutiny by any ‘eminent persons’ onthe ground that working of the judiciary was perceived to beunsatisfactory. Obviously it will be clear interference with independenceof judiciary[810]. Same way, constitutionally conferred judicial primacyin appointment of judges cannot be whittled down or sought to be controlledby those who are not given or allowed to take over such functions. Evengranting the best of intentions, the Parliament could not act beyond theauthority conferred on it by the Constitution. Thus, taking away primacyof judiciary or conferring such primacy on a body which is not at par withthe said concept is certainly not a choice available with the Parliament.As already mentioned, the concept of primacy of judiciary comprises ofinitiating the proposal and taking a final decision in case any adversefeed back is received after the proposal is initiated. This concept ofprimacy is compromised if the judiciary is unable to initiate a proposal inthe first instance or if such proposal can be effectively rejected. Theimpact thereof being that the appointment of judges could be made under theinfluence of the Executive represented by the Law Minister or the non-judgemembers in whose appointment the pre-dominant voice is not of thejudiciary. The impact of such appointments will be that the judgesappointed will owe their appointments to the Executive which may bedestructive of the public confidence and impartiality of judiciary andadversely affect the role of the judiciary as an important impartialconstitutional organ. As already noted, the role of the judiciary is todefine and regulate working of other constitutional authorities within thescope of roles assigned to them[811].19.15 If the amendment had merely provided for advisory or recommendatoryrole to the Law Minister or the non-judicial members with the professedobject of transparency and accountability, the situation may have beendifferent. It may not have, in that case, interfered with the primacy ofthe judiciary in appointment of judges which is the mandate of theConstitution. Such power cannot be justified under the doctrine of wisdomof Parliament nor on the principles of trust once such power is inviolation of principle of primacy of judiciary in appointment of judges. Noindividual instance either of working of the Executive or Legislature orthe existing system of appointment of judges need be discussed as the issueinvolved here is of interpretation of the Constitution and not of successor failure of any individual or persons. As already mentioned, theshortcomings in working of every institution may need to be removed byconstant efforts constitutionally permissible but cannot justify thealtering of the framework of the Constitution or the same being damaged.20. Reference may now be made to the submission of learned counsel forthe respondents that in many countries without primacy of judiciary inappointment of judges, independent judiciary is functioning and thusunfettered 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, Germany and United States.20.1 The submission of learned Attorney General in relation to judicialappointments in the said 15 countries is as follows : “a. 9 countries conduct appointment of judges through either judicialappointment commissions (Kenya, Pakistan, South Africa and UK), committees(Israel) or councils (France, Italy, Nigeria and Sir Lanka); 4 countriesappoint judges through a direct order of the Governor General (Australia,Canada, New Zealand) or the President (Bangladesh), where applicable; 1(Germany) follows a multi-stage process of nomination by the Minister ofJustice, confirmation by Parliamentary Committees and final appointment bythe President; and 1 (United States) follows a process of nomination by thePresident (executive) and confirmation by the Senate (legislature).b. In all 15 countries, the executive is the final or determinativeappointing authority. Out of the 9 countries with commissions, in 2countries (South Africa and Sri Lanka) the executive has absolute majorityin comparison with members of other groups (judiciary, legislature andindependent persons). In 4 countries (France, Israel, Kenya and UK) thereis a balanced representation of various stakeholders, including theexecutive. Out of 3 countries where the number of judges are in a majority(Italy, Nigeria and Pakistan), in 2 countries (Nigeria and Pakistan) thedecision of the commission is subject to the vote of a parliamentarycommittee/Senate, while in 1 (Italy), the President of the Republic is thefinal appointing authority and the chairman of the judicial appointmentbody. In 5 of the countries without commissions (Canada, Australia, NewZealand, Bangladesh and United States of America), the decision is taken bythe Executive without any formal process of consultation with thejudiciary, while in 1 (Germany), the appointment process is conducted bythe Parliament, and later confirmed by the President.c. In 8 countries (France, Israel, Italy, Kenya, Nigeria, Pakistan,South Africa and UK) with bodies for judicial appointments, independentmembers have a mandated role in the selection process throughrepresentation on the said bodies. In 4 countries where independentmembers 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 appointment processfor their feedback on the selection or recommendation of a prospectivecandidate. In 3 countries (Bangladesh, Germany and Sri Lanka) nodocumented process of consultation with independent members is providedfor.”20.2 Learned counsel for the respondents also referred to criticism ofthe collegium system by some jurists including the eminent jurist ShriNariman, appearing in the present case for the petitioners.20.3 On the other hand, Shri Nariman opposed the above submissions andreferred to decisions of this Court particularly Kesavananda Bharti case,Indira Gandhi case and Minerva Mills case, where the Constitutionamendments were struck down. He also referred to expert studies includingreports of the 14th and 121st Law Commissions and the National Commissionto Review the Working of the Constitution (NCRWC), headed by Justice M.N.Venkatachaliah (retired CJI), wherein it was observed that independence ofjudiciary was basic feature of the Constitution and composition of aNational Commission was required to be consistent with the concept ofindependence of judiciary. Method of appointment of judges could not bealtered in such a way as may impinge upon the independence of judiciary.Composition of a Judicial Commission has to uphold the primacy ofjudiciary.[812]20.4 Shri Nariman also submitted that the impugned amendment wasintroduced in response to decisions of this Court affecting certainlegislators. He submitted that independent functioning of the judiciaryoften comes in conflict with the Executive and the Legislature but mandateof the Constitution of upholding the independence of judiciary wasnecessary to inspire faith of citizens in impartial justice and to upholdthe constitutional values like the Rule of law and the Democracy, byupholding protection of fundamental rights even against the State. Heparticularly made reference to the history of proposed Forty-FifthAmendment vide Bill 88 of 1978 to provide in Article 368 that an Amendmentcompromising the independence of judiciary could be made by approval bymajority at a referendum. The same was brought about by the JantaGovernment led by leaders who were arrested during emergency. It was notapproved for want of majority in Rajya Sabha. He also referred to decisionsof this Court Lily Thomas vs. Union of India[813] and Chief ElectionCommissioner vs. Jan Chaukidar[814] holding that a member of a Legislaturewill stand qualified on conviction and that a person confined in jail couldnot contest an election and efforts to undo such decisions. He alsoreferred to the treatise, Constitutional Law of India by Seervai, 4th Edition, to the effect that the decision of First Judges’ case putthe judicial independence at the mercy of the Executive[815].20.5 He also gave a personal note, in response to reliance on behalf ofthe respondents on his own biography “Before Memory Fades” as follows:-“I have been, and I continue to be, a supporter of the “Judicial-Appointment-Commission-system” and so are my clients whom I represent (thisis so stated in the Writ Petition at page 26 to 31, and 44 to 45). BUT Iam definitely opposed to a pretence of a Judicial Appointments Commission -which in reality is not judicial, only partly or quasi judicial. The“Judicial Appointments Commission system” (so called) as embodied in the99th Constitutional Amendment, 2014 and along with the NJAC Act, 2014, isopposed BECAUSE is not in accordance with and does not conform to theBeijing Principles on Independence of the Judiciary (by which we in Indiaare governed). The principles were formulated after long deliberation byHeads of the Judiciary in the LAWASIA region (including India’s ChiefJustice) - who are all signatories to the Beijing Principle. PrinciplesNo.15 reads as follows:-“15. In some societies, the appointment of judges, by, with the consent of,or after consultation with a Judicial Services Commission has been seen asa means of ensuring that those chosen judges are appropriate for thepurpose. Where a Judicial Services Commission is adopted, it shouldinclude representatives of the higher Judiciary and the independent legalprofession as a means of ensuring that judicial competence, integrity andindependence are maintained.”Note - NOT OUTSIDERS, not representatives of the EXECUTIVE: because this isnot helpful in the interests of maintaining the INDEPENDENCE OF THEJUDICIARY. Text of Beijing Principles are annexed as Exhibit-II.The then Law Minister had stated in Parliament, when these measures werefirst introduced, that he had consulted named persons including myself -and as to what I said is accurately recorded in the Minutes of the Meetingprepared by the office of the Law Minister. This is what the minutesrecord:Constitutional Expert and Senior Advocate, Shri Fali Nariman stated that itis important to remember the independence of the judiciary and theseparation of powers. The basic structure doctrine as laid down by theSupreme Court in the Keshavananda Bharti case could not be violated and anyproposal for appointment of judges must be in conformity with the basicstructure. He felt that the Government should consider following the modelof the Appointments Commission as suggested by the Justice VenkatchaliahCommission that gave dominance to the judiciary in the appointment process. He stated that composition of the Commission is the basic issue, and aCommission with non-Judge domination would not be viable in India.…………………..”21. As already mentioned, the Constitution of India has its ownbackground and personality[816]. Models of other countries could not beblindly followed so as to damage the identity and personality of the IndianConstitution. The Judicial Commissions referred to by learned AttorneyGeneral do not show the trend of reducing the pre-existing role ofjudiciary. In fact, the trend is for reducing the pre-existing role of theExecutive. In the impugned amendment it is the reverse. Thus, thecontention of working of other Constitutions or setting up of judicialCommissions with varying compositions in other countries does not justifythe impugned amendment which is contrary to the basic structure of theIndian Constitution.22. There is also no merit in the contention that in the present casemere alteration in a constitutional provision does not amount to damage ofa basic feature. It is not a case of simple amendment to iron out creases.Its impact clearly affects the independence of judiciary. As alreadymentioned, appointment of judges has always been considered in the schemeof the working of the Indian Constitution to be integral to theindependence of judiciary. It is for this reason that primacy inappointment of judges has always been intended to be of the judiciary. Pre-dominant role of the Executive is not permissible. Such primacy comprisesof initiating the proposal by the judiciary and final word being normallywith the CJI (in representative capacity). This scheme is beyond thepower of amendment available to the Parliament.22.1 In the new scheme, the Chief Justices of the High Courts have notbeen provided any constitutional say. The Chief Justice of the High Courtis in a better position to initially assess the merit of a candidate forappointment as judge of the High Court. The constitutional amendment doesnot provide for any role to the Chief Minister of the State. This mayaffect the quality of the candidate selected and thereby the independenceof judiciary. The statutory provision in the NJAC Act will be gone intoseparately.22.2 The contention of learned Attorney General that the amendment wasjustified to uphold the principles of checks and balances and transparencywhich were equally important constitutional values cannot be accepted.Even assuming that there is a scope for improvement in the working of thecollegium system, it cannot be held that under the existing system there isno transparency or checks and balances. The procedure laid down inmemoranda issued by the Central Government has been noted in the earlierpart of this opinion. All proceedings in initiating a proposal are inwriting and are forwarded to the constitutional functionaries. The ChiefMinister, the Governor, the Law Minister, the PM and the President haveopportunity to give their views in the matter of appointment of ChiefJustices and Judges of High Courts apart from judges and non-judgesinvolved in the process. The Law Minister, the PM and the President alsohave opportunity to give their comment on appointment of CJI and the Judgesof the Supreme Court. There is also an opportunity to suggest names beforeinitiation of proposal. There is no bar to an expert feedback from thecivil society through the constitutional functionaries involved. Thus,there is transparency as well as checks and balances. These considerationsdo not justify interference with the final initiation of proposal by thejudiciary or in taking a final view in the matter by the judiciary,consistent with the mandate of the Constitution.22.3 Learned Attorney General sought to compare the existing provision forveto by two members of collegium in appointment of Supreme Court Judges asper Third Judges’ case to justify veto under Section 6 (6). As alreadymentioned, the role of the Law Minister and the non-judge members cannot beplaced at par with the Chief Justice and Judges of the Supreme Court. Theycannot be compared for obvious reasons. The veto power with the LawMinister or with a non-judge members, as against a Supreme Court Judge whois the member of the collegium, may involve interference with theindependence of judiciary. Similarly, requirement of special majority inany other ordinary situation was not comparable with the scheme ofappointment of judges which is sui generis. Similarly, the plea of givingvital inputs does not justify participation of the non-judge members withthe Chief Justice and the Judges in discharging their functions ofinitiating a proposal or taking a final view. Though, formal act ofappointment of judges may be an executive function, there is a uniquejudicial element in the process of appointment of judges of constitutionalcourts. The criticism against perceived short comings in the working ofthe collegium also does not justify the impugned provisions. As alreadyobserved, there may be criticism even against discharging of judicialfunctions by the aggrieved parties or otherwise. But that does not justifyinterference with the judicial decisions[817]. Needless to say thatcriticism can be against the working of any system but the systems can bechanged only as per the Constitution. Efforts to improve all systems haveto be continuously made.Conclusion:-22.4 I would conclude that the new scheme damages the basic feature of theConstitution under which primacy in appointment of judges has to be withthe judiciary. Under the new scheme such primacy has been given a go-bye.Thus the impugned amendment cannot be sustained.F. Validity of the NJAC Act23. In view of my conclusion about the amendment being beyond thecompetence of the Parliament, I do not consider it necessary to discuss thevalidity of the NJAC Act in great detail as the said Act cannot surviveonce the amendment is struck down. However, consistent with my earlierview that primacy of judiciary in appointment of judges cannot becompromised and on that ground not only Section 2 of the Amendmentdispensing with the mandatory consultation with the judiciary ascontemplated under the unamended provisions, Section 3 conferring power onthe NJAC (under Article 124B) and providing for composition of theCommission under Article 124A giving a role to the Law Minister and twoeminent persons equal to the CJI in recommending appointments as CJI,Judges of Supreme Court, Chief Justices and other Judges of the High Courtsand recommending transfer of Chief Justices and Judges of the High Courtsare unconstitutional but also Article 124C giving power to the Parliamentto regulate the procedure and to lay down the manner of selection was alsounconstitutional, the impugned Act has to be struck down. It goes farbeyond the procedural aspects. In Section 5 (2) ‘suitability criteria’ isleft to be worked out by regulations. Second proviso to Section 5 (2) andSection 6 (6) give veto to two members of the Commission which is notcontemplated by the Amendment. Section 5 (3) and Section 6 (8) provide forconditions for selection to be laid down by regulations which are not mereprocedural matters. Section 6 authorises the recommendations forappointment as judges of the High Courts without the proposal being firstinitiated by the Chief Justice of the High Court. Section6 (1) provides for recommendation for appointment of Chief Justice of aHigh Court on the basis of inter se seniority of High Court Judges. Thismay affect giving representation to as many High Courts as viable as, ininter se seniority, many judges of only one High Court may be senior most.Section 6 (2) provides for seeking nomination from Chief Justices of HighCourts, but Section 6 (3) empowers the Commission itself to makerecommendation for appointment as Judge of the High Court and seek commentsfrom Chief Justice after short listing the candidates by itself. Section 8enables the Central Government to appoint officers and employees of theCommission and to lay down their conditions of service. The Secretary ofthe Government is the Convenor of the Commission. Section 13 requires allregulations to be approved by the Parliament. These provisions in the Actimpinge upon the independence of judiciary. Even if the doctrine of basicstructure is not applied in judging the validity of a parliamentarystatute, independence of judiciary and rule of law are parts of Articles14, 19 and 21 of the Constitution and absence of independence of judiciaryaffects the said Fundamental Rights. The NJAC Act is thus liable to bestruck down.G. Effect of Amendment being struck down24. The contention that even if Amendment is held to be void, the pre-existing system cannot be restored has no logic. In exercise of power ofjudicial review, a provision can be declared void in which case the legalposition 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 decidingan issue. Power of this Court to declare the effect of its order cannot bedoubted nor the decisions relied upon by the respondents show otherwise. Ihold that on amendment being struck down, the pre-existing system standsrevived.H. Review of Working of the Existing System25. Since the system existing prior to amendment will stand revived onthe amendment being struck down and grievances have been expressed aboutits functioning, I am of the view that such grievances ought to beconsidered. It is made clear that grievances have not been expressed bythe petitioners about the existence of the pre-existing system ofappointment but about its functioning in practice. It has been argued thatthis Court can go into this aspect without re-visiting the earlierdecisions of the larger Benches. I am of the view that such grievancesought to be gone into for which the matter needs to be listed for hearing.Conclusion26. The impugned Amendment and the Act are struck down asunconstitutional. Pre-existing scheme of appointment of judges standsrevived. The matter be listed for consideration of the surviving issue ofgrievances as to working of pre-existing system. …………..….………………………………..J. [ ADARSH KUMAR GOEL ]NEW DELHIOCTOBER 16, 2015 APPENDIXKey Provisions of the Unamended Constitution“124. Establishment and constitution of Supreme Court - (1) There shall bea Supreme Court of India consisting of a Chief Justice of India and, untilParliament by law prescribes a larger number, of not more than seven otherJudges.(2) Every Judge of the Supreme Court shall be appointed by the President bywarrant under his hand and seal after consultation with such of the Judgesof the Supreme Court and of the High Courts in the States as the Presidentmay deem necessary for the purpose and shall hold office until he attainsthe age of sixty-five years:Provided that in the case of appointment of a Judge other than the ChiefJustice, the Chief Justice of India shall always be consulted:Provided further that—(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).xxxxxxx217. 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 warrantunder his hand and seal after consultation with the Chief Justice of India,the Governor of the State, and, in the case of appointment of a Judge otherthan the Chief Justice, the Chief Justice of the High court, and shall holdoffice, in the case of an additional or acting Judge, as provided inArticle 224, and in any other case, until he attains the age of sixty twoyears:xxxxxx222. Transfer of a Judge from one High Court to another- The President may,after consultation with the Chief Justice of India, transfer a Judge fromone High Court to any other High Court.xxxxx”(II) The 99th Amendment Act “THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014 [31st December, 2014] An Act further to amend the Constitution of India.Be it enacted by Parliament in the Sixty-fifth Year of the Republic ofIndia as follows:—1. (1) This Act may be called the Constitution (Ninety-ninthAmendment) Act, 2014.(2) It shall come into force on such date as the Central 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 Judges of theSupreme Court and of the High Courts in the States as the President maydeem necessary for the purpose”, the words, figures and letter “on therecommendation of the National Judicial Appointments Commission referred toin article 124A” shall be substituted;(b) the first proviso shall be omitted;(c) in the second proviso, for the words “Provided further that”, thewords “Provided that” shall be substituted.3. After article 124 of the Constitution, the following articles shallbe inserted, namely:—“124A. (1) There shall be a Commission to be known as the NationalJudicial Appointments Commission consisting of the following, namely:––(a) the Chief Justice of India, Chairperson, ex officio;(b two other senior Judges of the Supreme Court next to the ChiefJustice 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 by the committee consisting ofthe Prime Minister, the Chief Justice of India and the Leader of Oppositionin 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 thePeople –– Members:Provided that one of the eminent person shall be nominated from amongst thepersons belonging to the Scheduled Castes, the Scheduled Tribes, OtherBackward Classes, Minorities or Women:Provided further that an eminent person shall be nominated for a period ofthree years and shall not be eligible for renomination.(2) No act or proceedings of the National Judicial AppointmentsCommission shall be questioned or be invalidated merely on the ground ofthe existence of any vacancy or defect in the constitution of theCommission.124B. It shall be the duty of the National Judicial Appointments Commissionto—(a) recommend persons for appointment as Chief Justice of India, Judgesof the Supreme Court, Chief Justices of High Courts and other Judges ofHigh Courts;(b) recommend transfer of Chief Justices and other Judges of High Courtsfrom one High Court to any other High Court; and(c) ensure that the person recommended is of ability and integrity.124C. Parliament may, by law, regulate the procedure for the appointment ofChief Justice of India and other Judges of the Supreme Court and ChiefJustices and other Judges of High Courts and empower the Commission to laydown by regulations the procedure for the discharge of its functions, themanner of selection of persons for appointment and such other matters asmay be considered necessary by it.”.4. In article 127 of the Constitution, in clause (1), for the words “theChief Justice of India may, with the previous consent of the President”,the words “the National Judicial Appointments Commission on a referencemade to it by the Chief Justice of India, may with the previous consent ofthe President” shall be substituted.5. In article 128 of the Constitution, for the words “the Chief Justiceof India”, the words “the National Judicial Appointments Commission” shallbe substituted.6. In article 217 of the Constitution, in clause (1), for the portionbeginning with the words “after consultation”, and ending with the words“the High Court”, the words, figures and letter “on the recommendation ofthe 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, figuresand letter “on the recommendation of the National Judicial AppointmentsCommission 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 appoint”, the words“the President may, in consultation with the National Judicial AppointmentsCommission, appoint” shall be substituted;(b) in clause (2), for the words “the President may appoint”, the words“the President may, in consultation with the National Judicial AppointmentsCommission, appoint” shall be substituted.9. In article 224A of the Constitution, for the words ‘‘the ChiefJustice of a High Court for any State may at any time, with the previousconsent of the President’’, the words ‘‘the National Judicial AppointmentsCommission on a reference made to it by the Chief Justice of a High Courtfor any State, may with the previous consent of the President’’ shall besubstituted.10. In article 231 of the Constitution, in clause (2), sub-clause (a)shall be omitted.”The NJAC Act “THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014 NO. 40 OF 2014 [31st December, 2014]An Act to regulate the procedure to be followed by the National JudicialAppointments Commission for recommending persons for appointment as theChief Justice of India and other Judges of the Supreme Court and ChiefJustices and other Judges of High Courts and for their transfers and formatters connected therewith or incidental thereto.Be it enacted by Parliament in the Sixty-fifth Year of the Republic ofIndia as follows:—1. (1) This Act may be called the National Judicial AppointmentsCommission Act, 2014.(2) It shall come into force on such date as the Central Government may, bynotification in the Official Gazette, appoint.2. In this Act, unless the context otherwise requires,––(a) “Chairperson” means the Chairperson of the Commission;(b) “Commission” means the National Judicial Appointments Commissionreferred to in article 124A of the Constitution;(c) “High Court” means the High Court in respect of which recommendationfor appointment of a Judge is proposed to be made by the Commission;(d) “Member” means a Member of the Commission and includes its Chairperson;(e) “prescribed” means prescribed by the rules made under this Act;(f) “regulations” means the regulations made by the Commission under thisAct.3. The Headquarters of the Commission shall be at Delhi.4. (1) The Central Government shall, within a period of thirty days fromthe date of coming into force of this Act, intimate the vacancies existingin the posts of Judges in the Supreme Court and in a High Court to theCommission for making its recommendations to fill up such vacancies.(2) The Central Government shall, six months prior to the date ofoccurrence of any vacancy by reason of completion of the term of a Judge ofthe Supreme Court or of a High Court, make a reference to the Commissionfor making its recommendation to fill up such vacancy.(3) The Central Government shall, within a period of thirty days from thedate of occurrence of any vacancy by reason of death or resignation of aJudge of the Supreme Court or of a High Court, make a reference to theCommission for making its recommendations to fill up such vacancy.5. (1) The Commission shall recommend for appointment the senior-mostJudge of the Supreme Court as the Chief Justice of India if he isconsidered fit to hold the office: Provided that a member of the Commissionwhose name is being considered for recommendation shall not participate inthe meeting.(2) The Commission shall, on the basis of ability, merit and any othercriteria of suitability as may be specified by regulations, recommend thename for appointment as a Judge of the Supreme Court from amongst personswho are eligible to be appointed as such under clause (3) of article 124 ofthe Constitution:Provided that while making recommendation for appointment of a High CourtJudge, apart from seniority, the ability and merit of such Judge shall beconsidered:Provided further that the Commission shall not recommend a person forappointment if any two members of the Commission do not agree for suchrecommendation.(3) The Commission may, by regulations, specify such other procedure andconditions for selection and appointment of a Judge of the Supreme Court asit may consider necessary.6. (1) The Commission shall recommend for appointment a Judge of a HighCourt to be the Chief Justice of a High Court on the basis of inter seseniority of High Court Judges and ability, merit and any other criteria ofsuitability as may be specified by regulations.(2) The Commission shall seek nomination from the Chief Justice of theconcerned High Court for the purpose of recommending for appointment aperson to be a Judge of that High Court.(3) The Commission shall also on the basis of ability, merit and any othercriteria of suitability as may be specified by regulations, nominate namefor appointment as a Judge of a High Court from amongst persons who areeligible to be appointed as such under clause (2) of article 217 of theConstitution and forward such names to the Chief Justice of the concernedHigh Court for its views.(4) Before making any nomination under sub-section (2) or giving its viewsunder sub-section (3), the Chief Justice of the concerned High Court shallconsult two senior-most Judges of that High Court and such other Judges andeminent advocates of that High Court as may be specified by regulations.(5) After receiving views and nomination under sub-sections (2) and (3),the Commission may recommend for appointment the person who is foundsuitable on the basis of ability, merit and any other criteria ofsuitability as may be specified by regulations.(6) The Commission shall not recommend a person for appointment under thissection if any two members of the Commission do not agree for suchrecommendation.(7) The Commission shall elicit in writing the views of the Governor andthe Chief Minister of the State concerned before making such recommendationin such manner as may be specified by regulations.(8) The Commission may, by regulations, specify such other procedure andconditions for selection and appointment of a Chief Justice of a High Courtand 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 or a Judge of the Supreme Court or, asthe case may be, the Chief Justice of a High Court or the Judge of a HighCourt:Provided that the President may, if considers necessary, require theCommission to reconsider, either generally or otherwise, the recommendationmade by it:Provided further that if the Commission makes a recommendation afterreconsideration in accordance with the provisions contained in sections 5or 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 other employees for the discharge offunctions of the Commission under this Act.(2) The terms and other conditions of service of officers and otheremployees of the Commission appointed under sub-section (1) shall be suchas may be prescribed.(3) The Convenor of the Commission shall be the Secretary to the Governmentof India in the Department of Justice.9. The Commission shall recommend for transfer of Chief Justices andother Judges of High Courts from one High Court to any other High Court,and for this purpose, specify, by regulations, the procedure for suchtransfer.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 as the Chairperson maydirect and observe such rules of procedure in regard to the transaction ofbusiness at its meetings (including the quorum at its meeting), as it mayspecify by regulations.11. (1) The Central Government may, by notification in the OfficialGazette, make rules to carry out the provisions of this Act.(2) In particular and without prejudice to the generality of the foregoingpower, such rules may provide for all or any of the following matters,namely:–– (a) the fees and allowances payable to the eminent persons nominatedunder sub-clause (d) of clause (1) of article 124A of the Constitution; (b) the terms and other conditions of service of officers and otheremployees of the Commission under sub-section (2) of section 8; (c) any other matter which is to be, or may be, prescribed, inrespect of which provision is to be made by the rules.12. (1) The Commission may, by notification in the Official Gazette, makeregulations consistent with this Act, and the rules made thereunder, tocarry out the provisions of this Act.(2) In particular, and without prejudice to the generality of the foregoingpower, such regulations may provide for all or any of the followingmatters, namely:—(a) the criteria of suitability with respect to appointment of a Judge ofthe Supreme Court under sub-section (2) of section 5; (b) other procedure and conditions for selection and appointment of aJudge of the Supreme Court under sub-section (3) of section 5; (c) the criteria of suitability with respect to appointment of a Judge ofthe High Court under sub-section (3) of section 6; (d) other Judges and eminent advocates who may be consulted by the ChiefJustice under sub-section (4) of section 6; (e) the manner of eliciting views of the Governor and the Chief Ministerunder sub-section (7) of section 6; (f) other procedure and conditions for selection and appointment of aJudge of the High Court under sub-section (8) of section 6; (g) the procedure for transfer of Chief Justices and other Judges from oneHigh Court to any other High Court under section 9; (h) the procedure to be followed by the Commission in the discharge of itsfunctions under sub-section (1) of section 10; (i) the rules of procedure in regard to the transaction of business at themeetings of Commission, including the quorum at its meeting, under sub-section (2) of section 10; (j) any other matter which is required to be, or may be, specified byregulations or in respect of which provision is to be made by regulations.13. Every rule and regulation made under this Act shall be laid, as soonas may be after it is made, before each House of Parliament, while it is insession, for a total period of thirty days, which may be comprised in onesession or in two or more successive sessions, and if, before the expiry ofthe session immediately following the session or the successive sessionsaforesaid, both Houses agree in making any modification in the rule orregulation or both Houses agree that the rule or regulation should not bemade, the rule or regulation shall thereafter have effect only in suchmodified form or be of no effect, as the case may be; so, however, that anysuch modification or annulment shall be without prejudice to the validityof anything previously done under that rule or regulation.14. (1) If any difficulty arises in giving effect to the provisions ofthis Act, the Central Government may, after consultation with theCommission, by an order published in the Official Gazette, make suchprovisions, not inconsistent with the provisions of this Act as appear toit to be necessary or expedient for removing the difficulty: Provided that no such order shall be made after the expiry of aperiod of five years from the date of commencement of this Act.(2) Every order made under this section shall, as soon as may be after itis made, be laid before each House of Parliament.”The Statement of Objects and Reasons of the Amendment Act “Statement of Objects and ReasonsThe Judges of the Supreme Court are appointed under clause (2) of article124 and the Judges of the High Courts are appointed under clause (1) ofarticle 217 of the Constitution, by the President. The Ad-hoc Judges andretired Judges for the Supreme Court are appointed under clause (1) ofarticle 127 and article 128 of the Constitution respectively. Theappointment of Additional Judges and Acting Judges for the High Court ismade under article 224 and the appointment of retired Judges for sittingsof the High Courts is made under article 224A of the Constitution. Thetransfer of Judges from one High Court to another High Court is made by thePresident after consultation with the Chief Justice of India under clause(1) of article 222 of the Constitution.2. The Supreme Court in the matter of Supreme Court Advocates-on-RecordAssociation Vs. Union of India in the year 1993, and in its AdvisoryOpinion in the year 1998 in the Third Judges case, had interpreted clause(2) of article 124 and clause (1) of article 217 of the Constitution withrespect to the meaning of “consultation” as “concurrence”. Consequently, aMemorandum of Procedure for appointment of Judges to the Supreme Court andHigh Courts was formulated, and is being followed for appointment.3. After review of the relevant constitutional provisions, thepronouncements of the Supreme Court and consultations with eminent Jurists,it is felt that a broad based National Judicial Appointments Commissionshould be established for making recommendations for appointment of Judgesof the Supreme Court and High Courts. The said Commission would provide ameaningful role to the judiciary, the executive and eminent persons topresent their view points and make the participants accountable, while alsointroducing transparency in the selection process.4. The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 isan enabling constitutional amendment for amending relevant provisions ofthe Constitution and for setting up a National Judicial AppointmentsCommission. The proposed Bill seeks to insert new articles 124A, 124B and124C after article 124 of the Constitution. The said Bill also provides forthe composition and the functions of the proposed National JudicialAppointments Commission. Further, it provides that Parliament may, by law,regulate the procedure for appointment of Judges and empower the NationalJudicial Appointments Commission to lay down procedure by regulation forthe discharge of its functions, manner of selection of persons forappointment and such other matters as may be considered necessary.5. The proposed Bill seeks to broad base the method of appointment ofJudges in the Supreme Court and High Courts, enables participation ofjudiciary, executive and eminent persons and ensures greater transparency,accountability and objectivity in the appointment of the Judges in theSupreme Court and High Court.6. The Bill seeks to achieve the above objectives.”ITEM NO.1A COURT NO.4 SECTION X,PIL,XVIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGSWrit Petition(s)(Civil) No(s). 13/2015SUPREME COURT ADVOCATES-ON-RECORDASSOCIATION AND ANOTHER Petitioner(s) VERSUSUNION OF INDIA Respondent(s)WITHW.P.(C) No. 23/2015W.P.(C) No. 70/2015W.P.(C) No. 83/2015T.P.(C) No. 391/2015W.P.(C) No. 108/2015W.P.(C) No. 124/2015W.P.(C) No. 14/2015W.P.(C) No. 18/2015W.P.(C) No. 24/2015W.P.(C) No. 209/2015W.P.(C) No.309/2015W.P.(C) No. 310/2015W.P.(C) No.323/2015T.P.(C) No.971/2015W.P.(C) No.341/2015[HEARD BY HON'BLE JAGDISH SINGH KHEHAR, HON'BLE J. CHELAMESWAR, HON'BLEMADAN B. LOKUR, HON'BLE KURIAN JOSEPH AND HON'BLE ADARSH KUMAR GOEL, JJ.]Date :16/10/2015 These petitions were called on for judgment today.For Petitioner(s) Mr. Fali S. Nariman, Sr. Adv.In WP 13/2015 Mr. Subhash C. Kasyap, Adv. Mr. Pranav Vyas, Adv. for Mr. Surya Kant, AdvFor Petitioner(s) Prof. Bhim Singh, Sr. Adv.In WP 23/2015For Petitioner(s) Mr. Santosh Paul, Adv.In WP 70/2015 Mr. Joseph Aristotle S.,Adv. Mr. Arvind Gupta, Adv. Mr. M.B. Elakkumanan, Adv. Mr. Malay Swapnil, Adv. Ms. Priya Aristotle, Adv. Ms. Savita Singh, Adv.For Petitioner(s) Mr. Prashant Bhushan,Adv.In WP 83/2015For Petitioner(s) Mr. Anil. B. Divan, Sr. Adv.In WP 108/2015 Mr. R.K.P. Shankar Das, Sr. Adv. Mr. K.N. Bhat, Sr. Adv. Mr. Prashant Kumar, Adv. Mr. Syed Rehan, Adv. Mr. Ranvir Singh, Adv. Ms. Anindita Pujari,AOR Mr. Jitendra Mahapatra, Adv.For Petitioner(s) Mr. Mathews J. Nedumpara, in personin WP 124/2015 Mr. A.C.Philip, Adv. Mr. Rabin Majumder,AORFor Petitioner(s) Mr. Manohar Lal Sharma, in personin WP 14/2015 Ms. Suman, Adv.For Petitioner(s) Mr. R.K. Kapoor, in personin WP 18/2015For Petitioner(s) Mr. Bishwajit Bhattacharyya, in personin WP 24/2015For Petitioner(s) Mr. Rajiv Daiya, in personin WP 209/2015For Petitioner(s) Mr. P.M. Duraiswamy, in personin WP(C) 309/2015 Mr. V.N. Subramaniam, Adv.For Petitioner(s) Mr. Subhasish Bhowmick, AORin WP 310/2015For Petitioner(s) Mr. S.K.Sinha, Adv.In WP 323/2015 Mr. Joydeep Mukherjee, Adv. for Mr. Rabin Majumder,AORFor Petitioner(s) Mr. Sriram Parakkat, Adv.In WP 341/2015 Mr. Vishnu Shankar Jain, Adv. for Mr. Ankur S. Kulkarni, AORFor Petitioner(s) Ms. Prachi Bajpai, Adv.in TP(C) No.971/2015For Respondent(s) Mr. Ranjit Kumar, Solicitor General of India(UOI) Mr. P.S. Narasimha, ASGand for Mr. Guru Krishna Kumar, Sr. Adv.petitioner(s) Ms. V. Mohana, Sr. Adv.In TP 391/2015 Mr. D.L. Chidananda, Adv. Ms. Madhvi Divan, Adv. Mr. Abhinav Mukherji, Adv. Ms. Binu Tamta, Adv. Dr. Arghya Sengupta, Adv. Ms. Ranjeeta Rohatgi, Adv. Ms. Devanshi Singh, Adv. Ms. Diksha Rai, Adv. Mr. Ninad Laud, Adv. Mr. Ajay Sharma, Adv. Ms. Ritwika Sharma, Adv. Mr. Samit Khosla, Adv. Mr. Nikhil Rohatgi, Adv. Mr. R.K. Sharma, Adv. Mr. Gurmehar s. Sistani, Adv. for Mr. B.V. Balaram Das, AOR Mr. Gautam Narayan, Adv.for SCBA Mr. Dushyant Dave, Sr. Adv. Ms. Aishwarya Bhati, Adv. Mr. Devashish Bharuka,AOR Capt. K.S. Bhati, Adv. Mr. A.K. Tiwari, Adv. Mr. T. Gopal, Adv. Mr. Dilip Nayak, Adv.for State of Mr. Shiv Mangal Sharma, AAGRajasthan Mr. S.S. Shamshery, AAG Mr. Sandeep Singh, Adv. Mr. Amit Sharma, Adv. for Ms. Ruchi Kohli, AORIA 10/2015 Mr. Ashish Dixit, in person Mr. Gautam Takuldar, AORfor State of MP Mr. Ankur Talwar, Adv. Mr. Rohit Bhat, Adv. Ms. Prerna Priyadarshini, Adv. Ms. Suhasini Sen, Adv. Mr. Ankit Kr., Adv. for Mr. Mishra Saurabh, Adv.for State of Mr. T.R. Andhyarujina, Sr. Adv.Maharashtra Mr. Mahaling Pandarge, Adv. Mr. Nishant Kanteshwarkar, AOR Mr. Arpit Rai, Adv. Mr. Anip Sachthey, Adv. Mr. Saakaar Sardana, Adv. Ms. K. Enatoli Sema, Adv. Mr. Edward Belho, Adv. Mr. Amit Kumar Singh, Adv. Mr. Vir Bahadur Singh, AG Mr. Gaurav Bhatia, AAG Mr. Abhisth Kumar, AOR. Mr. Abhishek Kumar Singh, Adv. Mr. Vijay Pratap Yadav Adv. Mr. Som Raj Choudhury, Adv. Ms. Anitha Shenoy, Adv. Mr. V.N. Raghupathy, Adv. Mr. Tapesh Kumar Singh, Adv. Mr. Mohd. Waquas, Adv. Mr. Kumar Anurag Singh, Adv. Ms. Rachana Srivastava, Adv. Mr. Ravindra Shrivastava, Sr. Adv. Mr. C.D. Singh, AAG Ms. Shashi Juneja, Adv. Mr. A.P. Mayee, Adv. Mr. Apoorv Kurup, Adv. Mr. V.C. Shukla, Adv. Mr. Pulkit, Adv. Mr. Ramesh Babu M.R., Adv. Ms. Swati Setia, Adv. Mr. Sapam Biswajit Meitei, Adv. Mr. Z.H. Isaac Haiding, Adv. Mr. Ashok Kumar Singh, Adv. Mr. Tushar Mehta, ASG Ms. Hemantika Wahi,Adv. Mr. Sanchar Anand, AAG Mr. Ajay Bansal, AAG Mr. Jagjit Singh Chhabra, Adv. Mr. Kuldip Singh, AOR Mr. Ajay Yadava, Adv. Mr. Anil Nishani, Adv. Mr. Jaswant P, Adv. Mr. Sibo Sankar Mishra, Adv. Mr. Suryanarayana Singh, AAG Ms. Pragati Neekhra,AOR Mr. Indra Pratap Singh, Adv. Mr. Prakash Kumar Singh,AOR Mr. Arun Monga, Adv. Ms. Kudrat Sandho, Adv. for Mr. Tushar Bakshi, AOR Mr. M.Yogesh Kanna, Adv. Mr. Jayant Patel, Adv. Dr. Rajeev Dhawan, Sr. Adv. Mr. Krishna Sarma, Adv. Mr. Avijit Roy, Adv. Mr. Navnit Kumar, Adv. Ms. Barnali Das, Adv. Ms. Deepika, Adv. for M/s Corporate Law Group Mr. Guntur Prabhakar, Adv. Ms. Prerna Singh, Adv. Mr. Anil Grover, AAG Mr. Ajay Bansal, AAG Mr. Gaurav Yadava, Adv. Ms. Nupur Singhal, Adv. Mr. Sanjay Visen, Adv. Mr. Anil Kumar Chopra, Adv. Mr. Ashok Kumar Thakur, Adv. Mr. Imran Khan Burni, Adv. Hon'ble Mr. Justice Jagdish Singh Khehar, Hon'ble J. Chelameswar,Hon'ble Madan B. Lokur, Hon'ble Kurian Joseph and Hon'ble Adarsh KumarGoel, JJ. Pronounced the separate judgments, the prayer for reference to alarger Bench, and for reconsideration of the Second and Third Judges cases[(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively] is rejected; theConstitution (Ninety-ninth Amendment) Act, 2014 is declaredunconstitutional and void; the National Judicial Appointments CommissionAct, 2014, is declared unconstitutional and void; the system of appointmentof Judges to the Supreme Court, and Chief Justices and Judges to the HighCourts; and transfer of Chief Justices and Judges of High Courts from oneHigh Court, to another, as existing prior to the Constitution (Ninety-ninthAmendment) Act, 2014 (called the “collegium system”), is declared to beoperative; and to consider introduction of appropriate measures, if any,for an improved working of the “collegium system”, list on 3.11.2015.(Renuka Sadana) (Parveen Kr. Chawla) Court Master AR-cum-PS[pic]-----------------------[1] 1981 (Supp) SCC 87[2] (1993) 4 SCC 441[3] (1998) 7 SCC 739[4] 1991 Supp (1) SCC 574[5] (1977) 4 SCC 193[6] (2002) 8 SCC 481[7] (2002) 8 SCC 237[8] (2001) 7 SCC 126[9] 1992 Supp (3) SCC 217[10] (1973) 4 SCC 225[11] (1974) 2 SCC 831[12] (2014) 9 SCC 1[13] (2010) 5 SCC 538[14] (2007) 6 SCC 586[15] (2012) 13 SCC 497[16] (2010) 4 SCC 595[17] 1993 Supp (1) SCC 96(II)[18] (2006) 6 SCC 258[19] (1955) 6 SCR 603[20] (1974) 2 SCC 402[21] (1989) 2 SCC 754[22] (2002) 5 SCC 111[23] (2011) 4 SCC 450[24] (2004) 10 SCC 201[25] (1990) 1 SCC 12[26] (1992) 4 SCC 97[27] (1953) SCR 1069[28] (1965) 2 SCR 908[29] (1961) 2 SCR 828[30] (1980) 1 SCC 223[31] (1993) 1 SCC 364[32] (1999) 7 SCC 725[33] (1980) 3 SCC 625[34] 1992 Supp (2) SCC 651[35] (2014) 10 SCC 1[36] (2006) 8 SCC 212[37] AIR 1971 SC 1547[38] (2010) 11 SCC 1[39] 2015 (4) SCALE 1[40] (1952) SCR 597[41] AIR 1967 SC 1643[42] (1971) 1 SCC 85[43] (2012) 3 SCC 1[44] (2014) 2 SCC 532[45] (1990) 4 SCC 366[46] (1979) 1 SCC 380[47] (2014) 8 SCC 682[48] AIR 1993 SC 1873[49] (1982) 1 SCC 271[50] AIR 1951 SC 41[51] AIR 1958 SC 538[52] (1975) 1 SCC 166[53] (2008) 4 SCC 720[54] AIR 1958 SC 731[55] 1952 SCR 284[56] (1975) Supp SCC 1[57] (1981) 2 SCC 362[58] 1989 Supp (2) SCC 364[59] (1997) 2 SCC 453[60] (1961) 3 SCR 707[61] (1976) 1 SCC 843[62] (1987) 1 SCC 658[63] (2005) 5 SCC 363[64] AIR 1941 FC 72[65] 1961 (1) SCR 96[66] 1994 Supp (1) SCC 324[67] (1996) 4 SCC 49[68] (2001) 4 SCC 455[69] (2013) 7 SCC 522[70] AIR 1955 SC 352[71] AIR 1963 SC 928[72] AIR 1965 SC 1430[73] (1969) 1 SCC 255[74] (1971) 3 SCC 53[75] (1974) 2 SCC 376[76] (1977) 1 SCC 643[77] (1975) 3 SCC 512[78] (2000) 2 SCC 536[79] (2011) 5 SCC 305[80] (2011) 5 SCC 435[81] (2011) 8 SCC 737[82] (1969) 1 SCC 475[83] (1970) 2 SCC 780[84] (1995) 4 SCC 611[85] (2007) 2 SCC 1[86] (2013) 7 SCC 653[87] (2013) 7 SCC 507[88] (1977) 4 SCC 608[89] (2006) 7 SCC 1[90] (2008) 6 SCC 1[91] (2003) 4 SCC 104[92] (2012) 7 SCC 1[93] (2000) 4 SCC 640[94] (2015) 5 SCC 479[95] (1985) 1 SCC 641[96] 1988 (Supp) SCC 30[97] (1996) 5 SCC 60[98] (2002) 2 SCC 645[99] (2006) 3 SCC 354[100] Supreme Court Advocates-on-Record Association & Others v. Union ofIndia, (1993) 4 SCC 441[101] The position of the Presiding Judge on this Bench hearing thesecases of constitutional challenge is not consistent with (and apparentlyconflicts with) his position as a member of the ‘Collegium’; and is likelyto be seen as such; always bearing in mind that if the ConstitutionAmendment and the statute pertaining thereto are held constitutionallyvalid and are upheld, the present Presiding Judge would no longer be partof the Collegium – The Collegium, it must be acknowledged exercisessignificant constitutional power.[102] Order dated 22.04.2015 insofar as it is relevant reads thus: “A preliminary objection, whether Justice Jagdish Singh Khehar shouldpreside over this Bench, by virtue of his being the fourth senior mostJudge of this Court, also happens to be a member of the collegium, wasraised by the petitioners. Elaborate submissions were made by the learnedcounsel for the petitioners and the respondents. After hearing all thelearned counsel, we are of the unanimous opinion that we do not see anyreason in law requiring Justice Jagdish Singh Khehar to recuse himself fromhearing the matter. Reasons will follow. Issue rule. ”[103] The expression ‘recuse’ according to the New Oxford DictionaryEnglish means – (the act of a Judge) to excuse himself from a case becauseof possible conflict of interest for lack of impartiality.[104] R. Grant Hammond, Judicial Recusal: Principles, Process andProblems, (Hart Publishing, 2009).[105] Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex partePinochet Ugarte, (1999) 1 All E.R. 577[106] P.D. Dinakaran(1) v. Judges Inquiry Committee, (2011) 8 SCC 380,paras 49 to 53.[107] Wakefield Local Board of Health v. West Riding and Grimsby Rly Co.(1865) 1 Q.B. 84.[108] R V. Byles ex p. Hollidge (1912) 77 J.P. 40; R. v. NailsworthLicensing Justices ex p. Bird [1953] 1 W.L.R. 1046; R v. LilydaleMagistrates Court ex p. Ciccone [1973] V.R. 122; and see R. v. AntrimJustices [1895] 2 I.R. 603; Tolputt (H.) & Co. Ltd. v. Mole [1911] 1 K.B.836; Corrigan v. Irish Land Commission [1977] I.R. 317.[109] The details of which are already noted in the judgment of mybrother Khehar, J.[110] Section 6 (6). “The Commission shall not recommend a person forappointment under this section if any two members of the Commission do notagree for such recommendation.”[111] “Para 520. There is another fact of life which, however unpleasant,cannot be denied and this is that precious little are our masses orlitigants concerned with which Judge is appointed or not appointed or whichone is continued or not continued. The high sounding concept ofindependence of judiciary or primacy of one or the other of theConstitutional functionaries or the mode of effective consultation arematters of academic interest in which our masses are least interested. Onthe other hand, they are mainly concerned with dangerous forces at work andevils reflected in economic-pressures, inflationary tendencies, gruellingpoverty, emancipation of women, maintenance of law and order, food andclothing, bread and butter, and above all the serious problem ofunemployment, 521. It is only a sizeable section of the intellectuals consisting ofthe press and the lawyers who have made a prestigious issue of theindependence of judiciary. I can fully understand that lawyers or otherpersons directly connected with the administration of justice may have agrievance however ill-founded that proper selection of Judges orinterference with the appointment of Judges strictly according toconstitutional provisions may mar the institution of judiciary andtherefore they may to some extent be justified in vindicating their rights.But at the same time, however biting or bitter, distasteful and diabolicalit may seem to be, the fact remains that the masses in general are not atall concerned with these legal niceties and so far as administration ofjustice is concerned they merely want that their cases should be decidedquickly by Judges who generate confidence.“[112] 5 U.S 137 (1803)[113] Supreme Court of Canada in Valente v. Queen, (1985) 2 SCR 673[114] “… judges commissions be made quamdiu se bene gesserint, and theirsalaries ascertained and established; but upon the address of both housesof parliament it may be lawful to remove them.” This clause has beenrepealed by ____[115] Sir William Blackstone’s, Commentaries on the Laws of England,(1765) Vol. I p. 269[116] Article III Section I. The judicial power of the United States,shall be vested in one Supreme Court, and in such inferior courts as theCongress may from time to time ordain and establish. The judges, both ofthe supreme and inferior courts, shall hold their offices during goodbehaviour, and shall, at stated times, receive for their services, acompensation, which shall not be diminished during their continuance inoffice.[117] Article II Section 4. The President, Vice President and all civilofficers of the United States, shall be removed from office on impeachmentfor, and conviction of, treason, bribery, or other high crimes andmisdemeanors.[118] Section 72. Judges' appointment, tenure, and remuneration: The Justices of the High Court …. (ii) shall not be removed except …… on an address from bothHouses of the Parliament in the same session, praying for such removal onthe ground of proved misbehaviour or incapacity; (iii) shall receive such remuneration as the Parliament mayfix; but the remuneration shall not be diminished during their continuancein office. [119] The British North America Act, 1867 renamed by the Amendment in 1982as the Constitution Act, 1867[120] Commonwealth of Australia Constitution Act, 1900.[121] The existing constitution and organization of constitutionalcourts in this country is discussed in some detail by Justice Verma in theSecond Judges case at paras 444, 445, 446. 444. The Government of India Act, 1919 provided in Section 101 forthe Constitution of High Courts; and the appointment of the Chief Justiceand the permanent Judges was in the absolute discretion of the Crown,subject only the prescribed conditions of eligibility. The tenure of theiroffice, according to Section 102, was dependent entirely on the Crown’spleasure. xxxxx xxxxxx xxxxxx xxxxx 445. Then, in the Government of India Act, 1935, provision for theestablishment and Constitution of the Federal Court was made in Section200, while the Constitution of High Courts was provided for in Section 220. xxxxx xxxxxx xxxxxx xxxxx 446. Thus, even under the Government of India Act, 1935,appointments of Judges of the Federal Court and the High Courts were in theabsolute discretion of the Crown or, in other words, of the executive, withno specific provision for consultation with the Chief Justice in theappointment process.[122] L Chandra Kumar & Ors v. Union of India & Ors., (1997) 3 SCC 261,para 78[123] Article 124(4) A Judge of the Supreme Court shall not be removedfrom his office except by an order of the President passed after an addressby each House of Parliament supported by a majority of the total membershipof that House and by a majority of not less than two thirds of the membersof that House present and voting has been presented to the President in thesame session for such removal on the ground of proved misbehaviour orincapacity.[124] Article 217(1)(b) A Judge may be removed from his office by thePresident in the manner provided in clause (4) of article 124 for theremoval of a Judge of the Supreme Court;[125] Under the proviso to Article 125(2) and proviso to Article 221(2)respectively.[126] Article 112(3)(d) – (3) The following expenditure shall beexpenditure charged on the Consolidated Fund of India – ***** ***** ***** *********** (i) the salaries, allowances and pensions payable to or in respect ofJudges of the Supreme Court; Article 202(3)(d) – (3) The following expenditure shall beexpenditure charged on the Consolidated Fund of each State – ***** ***** ***** *********** (d) expenditure in respect of the salaries and allowances ofJudges of any High Court;[127] 113(1) - So much of the estimates as relates to expenditurecharged upon the Consolidated Fund of India shall not be submitted to thevote of Parliament, but nothing in this clause shall be construed aspreventing the discussion in either House of Parliament of any of thoseestimates.[128] 203 (1) - So much of the estimates as relates to expenditurecharged upon the Consolidated Fund of a State shall not be submitted to thevote of the Legislative Assembly, but nothing in this clause shall beconstrued as preventing the discussion in the Legislature of any of thoseestimates.[129] [130] Fali S. Nariman, Before Memory Fades: An Autobiography, [FirstEdition Hay House (2010 ), p.348 ] “I once knew a fine, independent judge in South Africa during thedays of apartheid – Judge- President John Milne of the Natal Supreme Court. We used to correspond, and Milne said something similar. Milne wrote tome on one occasion (in despair) : It seems that however much they may pay lip service to the idea thatthe Judiciary is totally independent of the Executive, politiciansthroughout the ages and throughout the world would actually much prefer tohave executive minded lackeys and are considerably irritated by independentJudges functioning in an independent manner.”[131] Article II Section 2 The President “shall have power … to .. nominate and by and with theadvise and consent of the Senate .. appoint .. Judges of the Supreme Court..” In the case of the appointment of Judges of the otherStatutory Federal Courts, the Congress can by law entrust the power to theSupreme Court itself.[132] The Federal Legislature of America is called the Congress of theUnited States consisting of two chambers – Senate and House ofRepresentatives.[133] Section 101. The Parliament of Canada may, notwithstandinganything in this Act, from Time to Time provide for the Constitution,Maintenance, and Organization of a General Court of Appeal for Canada, andfor the Establishment of any additional Courts for the betterAdministration of the Laws of Canada.[134] Now replaced by Supreme Court Act, 1985.[135] [136] Section 71. Judicial power and Courts The judicial power of the Commonwealth shall be vested in a FederalSupreme Court, to be called the High Court of Australia, and in such otherfederal courts as the Parliament creates, and in such other courts as itinvests with federal jurisdiction. The High Court shall consist of a ChiefJustice, and so many other Justices, not less than two, as the Parliamentprescribes.[137] Constituent Assembly Debates, 24th May 1949 (Vol. VIII)[138] Recall the words of Jackson, J. in Sacher v. 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 humanflesh is heir.”[139] Para 371 “……… (iii) All the appointments to the Supreme Court from 1950 to 1959were made with the concurrence of the Chief Justice of India. 210 out of211 appointments made to the High Courts during that period were also withthe concurrence of the Chief Justice of India. (iv) Mr. Gobind Ballabh Pant, Home Minister of India, declared onthe floor of the Parliament on November 24, 1959 that appointment of Judgeswere virtually being made by the Chief Justice of India and the Executivewas only an order - issuing authority. (v) Mr. Ashok Sen, the Law Minister reiterated in the Parliament onNovember 25,1959 that almost all the appointments made to the Supreme Courtand the High Courts were made with the concurrence of the Chief Justice ofIndia. (vi) Out of 547 appointments of Judges made during the periodJanuary 1, 1983 to April 10, 1993 only 7 were not in consonance with theviews expressed by the Chief Justice of India.”[140] Article 222 - Transfer of a Judge from one High Court to another (1) The President may, after consultation with the Chief Justice ofIndia, 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 theperiod he serves, after the commencement of the Constitution (FifteenthAmendment) Act, 1963 , as a Judge of the other High Court, be entitled toreceive in addition to his salary such compensatory allowance as may bedetermined by Parliament by law and, until so determined, such compensatoryallowance as the President may by order fix[141] During the subsistence of a (partially controversial) declaration ofemergency.[142] Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC193 (Bhagwati, J. – para 46)[143] Para 47 of Sankalchand case, Bhagwati, J.[144] Para 41 of Sankalchand case – Chandrachud, J.[145] Para 62 of Sankalchand case – Bhagwati, J.[146] Para 115 of Sankalchand case – Krishna Iyer, J.[147] Per Fazal Ali, J. – S.P. Gupta case, p.403 - “It is true that therewere, quite a few transfers during the emergency which were not inconsonance with the spirit of Article 222 and that is why the Governmenthad conceded this fact and took steps to revoke the transfers byretransferring, almost all the Judges to the High Courts from where theyhad been transferred.” [148] Para 2 of S.P. Gupta case - Bhagwati, J.[149] 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 – E SVenkataramaiah,J[150] Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, at page586 : Para 18. “We gather that the Kerala High Court where the sanctionedstrength has been reduced by 2, has a sanctioned strength of 22 while itspendency as on January 1, 1990 being 34,330 cases justifies a Judgestrength of almost 50 on the basis of the measure of 650 cases per Judgeper year. We intend to indicate that there was no justification forreduction of the sanctioned strength.”[151] Para 19. “For the present we suggest to government that the mattershould be reviewed from time to time and steps should be taken fordetermining the sanctioned strength in a pragmatic way on the basis of theexisting need. If there be no correlation between the need and thesanctioned strength and the provision of Judge-manpower is totallyinadequate, the necessary consequence has to be backlog and sluggishenforcement of the Rule of Law. ……”[152] Abhinav Chandrachud, The Informal Constitution : Unwritten Criteriain Selecting Judges for the Supreme Court of India, (Oxford UniversityPress, United Kingdom 2014) See Pages 113 to 120[153] From 1978, Governments at the State level and the Union level ceasedto be necessarily of the same political party. Regional parties in partsof the country had captured power putting an end to one party rule at boththe levels.[154] Para 421 - These questions have to be considered in the context ofthe independence of the judiciary, as a part of the basic structure of theConstitution, to secure the ‘rule of law’, essential for the preservationof the democratic system. The broad scheme of separation of powers adoptedin the Constitution, together with the directive principle of ‘separationof judiciary from executive’ even at the lowest strata, provides someinsight to the true meaning of the relevant provisions in the Constitutionrelating to the composition of the judiciary. The construction of theseprovisions must accord with these fundamental concepts in theconstitutional scheme to preserve the vitality and promote the growthessential for retaining the Constitution as a vibrant organism.[155] Article 50. Separation of judiciary from executive – “The State shalltake steps to separate the judiciary from the executive in the publicservices of the State.”[156] [157] Form of oath or affirmation to be made by the Judges of theSupreme Court and the Comptroller and Auditor-General of India:— “I, A.B., having been appointed Chief Justice (or a Judge) of theSupreme Court of India (or Comptroller and Auditor-General of India) doswear in the name of God that I will bear true faith and solemnly affirmfaith and allegiance to the Constitution of India as by law established,that I will uphold the sovereignty and integrity of India, that I will dulyand faithfully and to the best of my ability, knowledge and judgmentperform the duties of my office without fear or favour, affection orillwill and that I will uphold the Constitution and the laws.”[158] Form of oath or affirmation to be made by the Judges of a HighCourt:— “I, A.B., having been appointed Chief Justice (or a Judge) of theHigh Court at (or of) ………-….. do swear in the name of God that I will bearsolemnly affirm true faith and allegiance to the Constitution of India asby law established, that I will uphold the sovereignty and integrity ofIndia, that I will duly and faithfully and to the best of my ability,knowledge and judgment perform the duties of my office without fear orfavour, affection or ill-will and that I will uphold the Constitution andthe laws.”[159] Article 124(5). Parliament may by law regulate the procedure for thepresentation of an address and for the investigation and proof of themisbehaviour or incapacity of a Judge under clause (4).[160] Article 124(4). A Judge of the Supreme Court shall not be removedfrom his office except by an order of the President passed after an addressby each House of Parliament supported by a majority of the total membershipof that House and by a majority of not less than two thirds of the membersof that House present and voting has been presented to the President in thesame session for such removal on the ground of proved misbehaviour orincapacity.[161] (per Hon. Pandian, J.) - Para 49. “one other basic and inseparablevital condition is absolutely necessary for timely securing theindependence of judiciary; and that concerns the methodology followed inthe matter of sponsoring, selecting and appointing a proper and fitcandidate to the (Supreme Court or High Court) higher judiciary. Theholistic condition is a major component that goes along with otherconstitutionally guaranteed service conditions in securing a completeindependence of judiciary. To say differently, a healthy independentjudiciary can be said to have been firstly secured by accomplishment of theincreasingly important condition in regard to the method of appointment ofjudges and, secondly, protected by the fulfilment of the rights, privilegesand other service conditions. The resultant inescapable conclusion is thatonly the consummation or totality of all the requisite conditions beginningwith the method and strategy of selection and appointment of judges willsecure and protect the independence of the judiciary. Otherwise, not onlywill the credibility of the judiciary stagger and decline but also theentire judicial system will explode which in turn may cripple the properfunctioning of democracy and the philosophy of this cherished concept willbe only a myth rather than a reality.” (per Hon. Kuldip Singh, J.) – Para 335. “Then the question whichcomes up for consideration is, can there be an independent judiciary whenthe power of appointment of judges vests in the executive? To say yes,would be illogical. The independence of judiciary is inextricably linkedand connected with the constitutional process of appointment of judges ofthe higher judiciary. ‘Independence of Judiciary’ is the basic feature ofour Constitution and if it means what we have discussed above, then theFramers of the Constitution could have never intended to give this power tothe executive. Even otherwise the Governments — Central or the State — areparties before the Courts in large number of cases. The Union Executivehave vital interests in various important matters which come foradjudication before the Apex Court. The executive — in one form or theother — is the largest single litigant before the courts. In this view ofthe matter the judiciary being the mediator — between the people and theexecutive — the Framers of the Constitution could not have left the finalauthority to appoint the Judges of the Supreme Court and of the High Courtsin the hands of the executive.” (per Hon. Verma, J.) – Para 447. “When the Constitution was beingdrafted, there was general agreement that the appointments of Judges in thesuperior judiciary should not be left to the absolute discretion of theexecutive, and this was the reason for the provision made in theConstitution imposing the obligation to consult the Chief Justice of Indiaand the Chief Justice of the High Court. This was done to achieveindependence of the Judges of the superior judiciary even at the time oftheir appointment, instead of confining it only to the provision ofsecurity of tenure and other conditions of service after the appointmentwas made. It was realised that the independence of the judiciary had to besafeguarded not merely by providing security of tenure and other conditionsof service after the appointment, but also by preventing the influence ofpolitical considerations in making the appointments, if left to theabsolute discretion of the executive as the appointing authority. It isthis reason which impelled the incorporation of the obligation ofconsultation with the Chief Justice of India and the Chief Justice of theHigh Court in Articles 124(2) and 217(1). The Constituent Assembly Debatesdisclose this purpose in prescribing for such consultation, even though theappointment is ultimately an executive act.”[162] See the articles of Lord Templeman’s favourable opinion and thecritical view of Lord Cooke of Thorndon published in the book titled Supreme but not Infallible– Oxford University Press – 2000 A.D. “Article 124 of the Constitution empowers the President (acting onthe advice of the Prime Minister and Cabinet) to appoint the judges of theSupreme Court. The President is given a discretion about consulting judgesof the Supreme Court and High Courts but in the case of appointments of aJudge other than the Chief Justice, the Chief Justice of India shall alwaysbe consulted. Similarly, Article 217 requires the Chief Justice of Indiato be consulted concerning the appointment of a judge of the High Court ofa state. In 1993, in the Supreme Court Advocates on Record Associationcase the Supreme Court by a majority held that, having regard to theindependence of the judiciary and the separation of powers which the Courtheld to be implicit in the Constitution, the views of the Chief Justice ofIndia expressed when he was consulted must be supreme. The Court also laiddown guidelines governing the appointment and duration of office oftemporary acting judges. The majority decision has been criticized as anextension of the meaning of the word ‘consultation’. However, havingregard to the earlier experience in India of attempts by the executive toinfluence the personalities and attitudes of members of the judiciary, andhaving regard to the successful attempts made in Pakistan to control thejudiciary and having regard to the unfortunate results of the appointmentof Supreme Court judges of the United States by the President subject toapproval by Congress, the majority decision of te Supreme Court of India inthe Advocates on Record case marks a welcome assertion of the independenceof the judiciary and is the best method of obtaining appointments ofintegrity and quality, a precedent method which the British could followsuch advantage.” ---- Lord Templeman “All in all, the opinion of the Supreme Court in the third Judgescase must be one of the most remarkable rulings ever issued by a supremenational appellate court in the coomon law world. Since, in some respects,I have had to voice respectful doubts about the soundness of theconstitutional foundations of that opinion….” ---- Lord Cooke ofThorndon[163] Iyer, V.R. Krishna, Judiciary : A reform agenda –II, The Hindu(online edition) 15.08.2002[164] “An Independent Judiciary” – speech delivered by Ms. Justice RumaPal at the 5th V.M. Tarkunde Memorial Lecture on 10th November 2011. “As I have said elsewhere ‘the process by which a judge is appointedto a superior court is one of the best kept secrets in this country. Thevery secrecy of the process leads to an inadequate input of information asto the abilities and suitability of a possible candidate for appointment asa judge. A chance remark, a rumour or even third-hand information may besufficient to damn a judge’s prospects. Contrariwise a personal friendshipor unspoken obligation may colour a recommendation. Consensus within thecollegium is sometimes resolved through a trade-off resulting in dubiousappointments with disastrous consequences for the litigants and thecredibility of the judicial system. Besides, institutional independencehas also been compromised by growing sycophancy and ‘lobbying’ within thesystem.”[165] Shanti Bhushan (supra) - Para 2. The primary ground urged is thatthe opinion of the Chief Justice of India has to be formed collectivelyafter taking into account the views of his senior colleagues who arerequired to be consulted by him for the formation of opinion and noappointment can be made unless it is in conformity with the final opinionof the Chief Justice of India formed in the aforesaid manner. …. It is,therefore, submitted that the appointment of Respondent No.2 as a permanentJudge as notified on 2.2.2007 has no sanctity in law.[166] Mehta, Pratap Bhanu, ‘Whom do you trust’, The Indian Express, May14, 2015 – “The implicit constitutional accusation is this. The judiciaryhad, through improvisation, created a method of appointing judges thateffectively sidelined other branches of government. This arrangement wastolerated, not because it conformed to a constitutional text or somehallowed principle, but because it seemed to maintain judicialindependence. The experience of the 1970s made the prospect of politicalpacking of the judiciary a live fear. This arrangement is being challenged,not because we have discovered a new principle, but because the credibilityof the judiciary has declined. We are, in effect, saying that anyarrangement that relies solely on the judiciary has proved untrustworthy.Those challenging the NJAC are relying on the ghost of the 1970s: Do youreally want the political class to have a greater say in appointments? Bothbranches of government are accusing each other of not being worthy oftrust. In the process, they have dragged each other down. The problem isthat both are right.”[167] See para 31 (supra)[168] Constituent Assembly Debates, 24th May 1949 (Vol. VIII)[169] On 24th May 1949 while draft Article 103 of the draft Constitutionwas being discussed corresponding to present Article 124, four members,Prof. Shibban Lal Saksena and Prof. K.T. Shah, who represented the UnitedProvinces of Bihar and Mr. B. Pocker Sahib and Mr. Mahboob Ali Beig Sahib,who represented Madras Provinces suggested amendments to Article 103, therelevant portions of which read as follows: “Prof. Shibban Lal Saksena: That for clause (2) of article 103, the following clauses besubstituted- (2) The Chief Justice of Bharat, who shall be the Chief Justice ofthe Supreme Court, shall be appointed by the President subject toconfirmation by two-thirds majority of Parliament assembled in a jointsession of both the Houses of Parliament.” “Prof. K.T. Shah: Every judge of the Supreme Court shall be appointed by the Presidentby warrant under his hand and seal after consultation with the Council ofStates and such of the judges of the Supreme Court and of the High Courtsin the States as may be necessary for the purpose and shall hold officeuntil he attains the age of sixty-five years.” “Mr. B. Pocker Sahib: That for clause (2) and the first proviso of clause (2) of article103, the following be substituted- (2) Every judge of the Supreme Court other than the Chief Justiceof India shall be appointed by the President by warrant under his hand andseal after consultation with the concurrence of the Chief Justice of India;and the Chief Justice of India shall be appointed by the President by awarrant under his hand and seal after consultation with the judges of theSupreme Court and the Chief Justices of the High Court in the States andevery judge of the Supreme Court.” “Mr. Mahboob Ali Beig Sahib: 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 shallbe made with the concurrence of the Chief Justice of India’ besubstituted.”[170] See Footnote 50 (supra)[171] Heard by a Bench of 11 Judges and decided by a majority of 6:5[172] Article 13(3)(a). “law” includes any Ordinance, order, bye-law,rule, regulation, notification, custom or usage having in the territory ofIndia the force of law.[173] Article 13(2). The State shall not make any law which takes away orabridges the rights conferred by this Part and any law made incontravention of this clause shall, to the extent of the contravention, bevoid.[174] [175] (Per Sikri, CJ) – Para 292, “fundamental rights cannot beabrogated but reasonable abridgements of fundamental rights can be effectedin public interest”. … “That every provision of the Constitution can beamended provided in the result the basic foundation and structure of theConstitution remains the same. The basic structure may be said to consistof the following features: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) Separation of powers between the legislature, the executive andthe judiciary; (5) Federal character of the Constitution.” (Per Shelat, J. who spoke for himself and Grover, J.) – Paras 582,583, “there can be no difficulty in discerning that the following can beregarded as the basic elements of the constitutional structure. Thesecannot be catalogued but can only be illustrated: (1) The supremacy of the Constitution. (2) Republican and Democratic form of government and sovereigntyof the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the Legislature, the executive andthe judiciary. (5) The dignity of the individual secured by the various freedomsand basic rights in Part III and the mandate to build a welfare Statecontained in Part IV. (6) The unity and the integrity of the Nation.” and, therefore, “the power under Article 368 is wide enough to permitamendment of each and every article … so long as its basic elements are notabrogated or denuded of their identity”. (Per Hegde, J, who also spoke for Mukherjea, J.) – Para 666,“Parliament has no power to abrogate or emasculate the basic elements orfundamental features of the Constitution such as the sovereignty of India,the democratic character of our polity, the unity of the country, theessential 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 sovereigndemocratic republic. Parliamentary democracy, the three organs of the State… constitute the basic structure.” He further held that “without eitherthe fundamental rights or directive principles it cannot be democraticrepublic. Therefore, the power of amendment under Article 368 ….. is notwide enough to totally abrogate ….. any one of the fundamental rights orother essential elements of the basic structure of the Constitution anddestroy its identity”. (Per Khanna, J.) – para 1426,, “the power under Article 368 does nottake 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 basicinstitutional pattern.” According to Justice Khanna, “such limitationsare inherent and implicit in the word “amendment”.”[176] See the summary of the majority of the judgment signed by 9 Judges,p. 1007 of (1973) 4 SCC 225.[177] The judgment in Indira Nehru Gandhi case (supra) is neatlysummarised by Chandrachud, J. in Waman Rao case at para 15: “15.……… in Indira Gandhi v. Raj Narain Article 329-A(4) was held bythe Court to be beyond the amending competence of the Parliament since, bymaking separate and special provisions as to elections to Parliament of thePrime Minister and the speaker, it destroyed the basic structure of theConstitution. Ray, C.J. based his decision on the ground that the 39thAmendment 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 thatdemocracy was a basic feature of the Constitution, that democracycontemplates that elections should be free and fair and that the clause inquestion struck at the basis of free and fair elections (pp. 467 and 471)(SCC pp. 87 and 91); Mathew, J. struck down the clause on the ground thatit was in the nature of legislation ad hominem (p. 513) (SCC p. 127) andthat it damaged the democratic structure of the Constitution (p. 515) (SCCp. 129); while one of us, Chandrachud, J., held that the clause was badbecause it violated the Rule of Law and was an outright negation of theprinciple of equality which is a basic feature of the Constitution (pp. 663-65) (SCC p. 257).”[178] Para 13. The question which we have to determine on the basis of themajority view in Kesavananda Bharati is whether the amendments introducedby Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damagethe basic structure of the Constitution by destroying any of its basicfeatures or essential elements.[179] Para 31. For these reasons, we are of the view that the Amendmentintroduced by Section 4 of the Constitution (First Amendment) Act, 1951does not damage or destroy the basic structure of the Constitution. TheAmendment must, therefore, be upheld on its own merits.[180] See paras 25 to 29 – Ahmadi, J., para 145 – Sawant, J., paras 183to 186 – Ramaswamy, J., para 304 – Jeevan Reddy, J.[181] In this case, this Court had to decide the validity of theConstitution (Eighty Fifth) Amendment Act 2001 by which Article 16(4A) wasamended in the Constitution with retrospective effect. It provided a ruleof reservation in the context of the promotion in the Government service.Such an amendment was challenged to be violative of the basic structure ofthe Constitution.[182] Articles 79-84 and 168-173[183] Articles 83 and 172[184] Article 326[185] Articles 245 and 246 etc.[186] Article 324[187] The National Commission to Review the Working of the Constitution(NCRWC), 2002 chaired by Justice M.N. Venkatachaliah[188] 7.3.7 “The matter relating to manner of appointment of judges hadbeen debated over a decade. The Constitution (Sixty-seventh Amendment)Bill, 1990 was introduced on 18th May, 1990 (9th Lok Sabha) providing forthe institutional frame work of National Judicial Commission forrecommending the appointment of judges to the Supreme Court and the variousHigh Courts. Further, it appears that latterly there is a movementthroughout the world to move this function away from the exclusive fiat ofthe executive and involving some institutional frame work whereunderconsultation with the judiciary at some level is provided for before makingsuch appointments. The system of consultation in some form is alreadyavailable in Japan, Israel and the UK. The Constitution (Sixty-seventhAmendment) Bill, 1990 provided for a collegium of the Chief Justice ofIndia and two other judges of the Supreme Court for making appointment tothe Supreme Court. However, it would be worthwhile to have a participatorymode with the participation of both the executive and the judiciary inmaking such recommendations. The Commission proposes the composition of theCollegium which gives due importance to and provides for the effectiveparticipation of both the executive and the judicial wings of the State asan integrated scheme for the machinery for appointment of judges. ThisCommission, accordingly, recommends the establishment of a NationalJudicial Commission under the Constitution. The National Judicial Commission for appointment ofjudges of the Supreme Court shall comprise of: 1. The Chief Justice of India Chairman 2. Two senior most judgesof the Supreme Court: Member 3 The Union Minister for Law andJustice: Member 4 One eminent person nominated by the President afterconsulting the CJI Member The recommendation for the establishment of a National JudicialCommission and its composition are to be treated as integral in view of theneed to preserve the independence of the judiciary.”[189] Fali S. Nariman, Before Memory Fades – An Autobiography, p. 389 – “If there is one important case decided by the Supreme Courtof India in which I appeared and won, and which I have lived to regret, itis the decision that goes by the title – Supreme Court Advocates-on-RecordAssociation vs Union of India. It is a decision of the year 1993 and isbetter known as the Second Judges Case.” p.400 - “I don’t see what is so special about the first five judgesof the Supreme Court. They are only the first five in seniority ofappointment – not necessarily in superiority of wisdom or competence. Isee no reason why all the judges in the highest court should not beconsulted when a proposal is made for appointment of a high court judge (oran eminent advocate) to be a judge of the Supreme Court. I would suggestthat the closed-circuit network of five judges should be disbanded. Theyinvariably hold their ‘cards’ close to their chest. They ask no one.They consult no one but themselves.”[190] See Federist No.51 – (Hamilton or Madison) (1788)[191] Sudhanshu Ranjan, ‘Justice, Judocracy and Democracy in India :Boundaries and Breaches’, p.185-186[192] Laurence H. Tribe, God Save this Honorable Court, First Edition,p.10-11[193] A.K. Gopalan v. State of Madras AIR 1950 SC 27[194] Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC193[195] ADM Jabalpur Vs. S.S. Shukla Etc. Etc. AIR 1976 SC 1207[196] Laurence H. Tribe (American Constitutional Law) Second Edition,Page 2 of Chapter 1 “Approaches to Constitutional Analysis” - “That alllawful power derives from the people and must be held in check to preservetheir freedom is the oldest and most central tenet of Americanconstitutionalism. At the outset, only a small number of explicitsubstantive limitations on the exercise of governmental authority werethought essential; in the main, it was believed that personal freedom couldbe secured more effectively by decentralization than by express command.From the thought of seventeenth century English liberals, particularly, aselaborated in eighteenth century France by Montesquieu, the Constitution’sframers had derived the conviction that human rights could best bepreserved by inaction and indirection-shielded behind the lay ofdeliberately fragmented centers of countervailing power, in a vision almostNewtonian in its inspiration. In this first model, the centralizedaccumulation of power in any man or single group of men meant tyranny; thedivision and separation of powers, both vertically (along the axis offederal, state and local authority) and horizontally (along the axis oflegislative, executive and judicial authority) meant liberty. It was thusessential that no department, branch, or level of government be empoweredto achieve dominance on its own. If the legislature would punish, it mustenlist the cooperation of the other branches-the executive to prosecute,the judicial to try and convict. So too with each other center ofgovernmental power; exercising the mix of functions delegated to it by thepeople in the social compact that was the Constitution, each power centerwould remain dependent upon the others for the final efficacy of the socialdesigns.”[197] Article 124A. National Judicial Appointments Commission.- (1)There shall be a Commission to be known as the National JudicialAppointments Commission consisting of the following, namely- xxx xxx xxx xxx (d) two eminent persons to be nominated by the committee consistingof the Prime Minister, the Chief Justice of India and the Leader ofOpposition in the House of the People or where there is no such Leader ofOpposition, then, the Leader of single largest Opposition Party in theHouse of the People-Members. Provided that one of the eminent person shall be nominated fromamongst the persons belonging to the Scheduled Castes, the ScheduledTribes, Other Backward Classes, Minorities or Women. Provided further that an eminent person shall be nominated for aperiod of three years and shall not be eligible for renomination.[198] AIR 1967 SC 1, para 20.[199] “An Independent Judiciary” – speech delivered by Ms. Justice RumaPal at the 5th V.M. Tarkunde Memorial Lecture on 10.11.2011[200] Sankalchand case (supra) para 78.[201] Maharao Sahib Shri Bhim Singhji v. Union of India & Ors., (1981) 1SCC 166, Krishna Iyer, J. – “20. The question of basic structure being breached cannot arisewhen we examine the vires of an ordinary legislation as distinguished froma constitutional amendment.”[202] Thomas Babington Macaulay’s address on 2nd March 1831 in the Houseof Commons on Parliamentary Reforms[203] MANU/DE/9073/2007[204] 325 US 897 (1945)[205] 446 US 1301 (1980)[206] PLD 1996 SC 324 (Five Judges Bench)[207]https://archive.org/stream/saprucommittee035520mbp/saprucommittee035520mbp_djvu.txt[208] Paragraph 288[209] http://164.100.47.132/LssNew/constituent/vol4p6.html[210] Lay persons were also not included in the consultation process.[211] B. Shiva Rao: ‘The Framing of India’s Constitution’ SelectDocuments, Volume II page 486[212] B. Shiva Rao: ‘The Framing of India’s Constitution’ SelectDocuments, Volume II page 519[213] Paragraphs 4.4 and 4.5[214] B. Shiva Rao: ‘The Framing of India’s Constitution’ SelectDocuments, Volume II page 583[215] B. Shiva Rao: ‘The Framing of India’s Constitution’ - SelectDocuments, Volume II page 662[216] The text of the Memorandum is available in B. Shiva Rao: ‘TheFraming of India’s Constitution’ - Select Documents, Volume IV page 193[217] Page 373-374[218] The Framing of India’s Constitution – Select Documents, Volume –IV,Page 84.[219] Article 103(2) of the Draft Constitution reads: “Every judge of theSupreme Court shall be appointed by the President by warrant under his handand seal after consultation with such of the judges of the Supreme Courtand of the High Courts in the States as may be necessary for the purposeand shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a judge, other than theChief Justice, the Chief Justice of India shall always be consulted.”[220] The Framing of India’s Constitution – Select Documents, Volume – IV,Page 147.[221] Indian Constitution – Cornerstone of a Nation by Granville Austin atpage 126, footnote 39[222] http://parliamentofindia.nic.in/ls/debates/vol10p4.htm[223] http://parliamentofindia.nic.in/ls/debates/vol10p7c.htm[224] Indian Constitution – Cornerstone of a Nation, pages 138-139[225] http://parliamentofindia.nic.in/ls/debates/vol8p7a.htm[226] http://parliamentofindia.nic.in/ls/debates/vol8p7a.htm[227] http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm[228] http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm[229] (1993) 4 SCC 441 (Nine Judges Bench)[230] Paragraph 207 (Justice Pandian). A similar view was expressed byJustice Kuldip Singh in paragraph 327.[231] Former President of the Supreme Court of the United Kingdom and LordChief Justice of England and Wales[232] https://www.ucl.ac.uk/constitution-unit/events/judicial-independence-events/lord-phillips-transcript.pdf[233] 1981 (Supp) SCC 87 (Seven Judges Bench)[234] 1991 Supp (1) SCC 574[235] Lee Epstein, Jack Knight & Olga Shvetsova, Comparing JudicialSelection Systems, 10 WM & MARY BILL RTS J. 7, n.9 (2001) (quoting PhilipDubois).[236] The Report is titled ‘Reforms of the Judicial Administration’[237] Chapter 5 paragraph 5[238] Chapter 5 paragraph 6[239] Chapter 6 paragraph 8[240] Chapter 6 paragraph 11[241] Chapter 6 paragraph 14[242] Chapter 6 paragraph 14 and 15[243] Chapter 6 paragraph 82[244] Page 287[245] Page 288-289[246] Although Justice H.R. Khanna did not sign the Report, it had hisfull concurrence[247] Paragraphs 2.2 to 2.5 are relevant in this context[248] Chapter 7[249] This later on became what is commonly called the ‘collegium system’of appointment of judges[250] Chapter 9[251] Paragraph 5.9[252] Paragraph 6.14[253] Chapter 9[254] Chapter 1 paragraph 1.4[255] Paragraph 7.8[256] Paragraph 7.10 and 7.15[257] Paragraph 5.1[258] Paragraph 5.4[259] Paragraphs 5.5 and 5.6[260] Paragraph 5.8[261] Paragraph 6.11[262] Paragraph 6.9[263] Paragraph 124[264] Paragraph 130[265] This expression was used by Justice Bhagwati and by Justice D.A.Desai in paragraph 719 of S.P. Gupta v. Union of India.[266] http://parliamentofindia.nic.in/ls/debates/vol11p12.htm[267] Judicial Independence, Transitional Justice and the Rule of Law byDavid Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at 345-346[268] S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven Judges Bench)[269] Supreme Court Advocates-on-Record Association v. Union of India,(1993) 4 SCC 441 (Nine Judges Bench)[270] Special Reference No. 1 of 1998, (1998) 7 SCC 739 (Nine JudgesBench)[271] Paragraphs 27, 320 and 634. This view has been upheld in severaldecisions thereafter.[272] Paragraph 27[273] Paragraph 1033[274] Paragraph 30 and paragraph 890[275] Paragraphs 30, 632 and 848[276] Paragraph 30[277] Paragraph 30[278] Paragraph 30 and 31[279] (1977) 4 SCC 1993 (Five Judges Bench)[280] AIR 1953 Mad 392[281] Paragraph 30[282] I entirely agree with Justice Chelameswar when he says that theSecond Judges case did not hold that consultation means concurrence.[283] Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574[284] Paragraph 27[285] Paragraph 28[286] Paragraph 31[287] Paragraph 32[288] Paragraph 728 of the First Judges case[289] Paragraph 34[290] Paragraph 34[291] Paragraph 49[292] Paragraph 63[293] Paragraph 81[294] 50. Separation of judiciary from executive - The State shall takesteps to separate the judiciary from the executive in the public servicesof the State.[295] Paragraphs 95 to 99. Though such a practice exists and is accepted,there have been some aberrations in this regard as mentioned in the 14thReport of the LCI and in the Conference of Chief Justices.[296] Paragraph 164[297] Paragraph 172[298] Paragraph 197 and 209[299] Paragraph 212[300] Paragraph 254[301] Paragraph 313[302] Paragraph 303 and 313. It was observed in paragraph 303: “If thePresident has to act on the aid and advice of the Council of Ministers itis difficult to hold that he is bound by the opinion of the Chief Justiceof India unless we hold that the Council of Ministers including the PrimeMinister would be bound by the opinion of the Chief Justice of India, aconstruction which to our mind is too artificial and strained to commendacceptance.”[303] Paragraph 334[304] Paragraph 335[305] Paragraph 277, 356, 383 and 411[306] Paragraph 359, 371,373 and 376. The figures relating to theappointment of judges have been mentioned in paragraphs 367 and 369.[307] Paragraph 377 and 411[308] Paragraph 385, 387 and 411[309] Paragraph 392 and 411[310] Paragraphs 369 and 370[311] Paragraph 447[312] Paragraph 444, 446, 448 and 450[313] Paragraph 450, 451, 455, 478 and 486[314] Paragraph 462[315] Paragraph 478(7)[316] Paragraph 456 and 466[317] Paragraph 478(8)[318] Paragraph 478(7)[319] Paragraph 448[320] Paragraph 457[321] Paragraph 457 and 476[322] Paragraph 478(10) and 486(2)[323] Paragraph 486[324] Paragraph 500[325] According to the learned Attorney-General, this would have made Dr.Ambedkar turn in his grave. Not so and quite to the contrary.[326] Paragraph 478(1)[327] Paragraph 478(5)[328] Paragraph 478(7)[329] The Frontline, Volume 25 Issue 20 September 27, 2008 to October10,2008[330][331] Paragraph 44[332] (1974) 2 SCC 831 (Seven Judges Bench)[333] (1971) 1 SCC 411 (Five Judges Bench)[334] Paragraph 88[335] Paragraph 154[336] [1965] 2 SCR 53 (Five Judges Bench)[337] 217. Appointment and conditions of the office of a Judge of a HighCourt. – (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 theChief Justice of India and the decision of the President shall be final.[338] (1971) 1 SCC 396 (Five Judges Bench)[339] Paragraph 149[340] Granville Austin: Working a Democratic Constitution page131[341] (1977) 4 SCC 193 (Five Judges Bench)[342] 222. Transfer of a Judge from one High Court to another.—(1) ThePresident may, after consultation with the Chief Justice of India, transfera Judge from one High Court to any other High Court. (2) When a Judge has been or is so transferred, he shall, during theperiod he serves, after the commencement of the Constitution (FifteenthAmendment) Act, 1963, as a Judge of the other High Court, be entitled toreceive in addition to his salary such compensatory allowance as may bedetermined by Parliament by law and, until so determined, such compensatoryallowance as the President may by order fix.[343] Paragraph 37[344] Paragraph 41[345] Paragraph 115[346] Paragraph 115[347] Paragraph 39[348] Paragraph 30[349] Paragraph 563, 564 and 569[350] Paragraph 632 and 663[351] Paragraph 848 and 849[352] Paragraphs 129 to 133 and 164[353] http://doj.gov.in/sites/default/files/memohc.pdf (for High CourtJudges) http://doj.gov.in/sites/default/files/memosc.pdf (for Supreme Courtjudges)[354] Paragraph 96 and 97[355] Paragraph 7.8[356] The Consultation Paper can be found on the website of the LawMinistry. This was accessed on 2nd May, 2015:http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm[357] Second Judges case[358] Paragraph 7.3.7[359] This is factually incorrect. The Memorandum was drawn up by the LawMinister and did not confer any power upon the judiciary.[360] Paragraph 486(1)[361] I am somewhat uncomfortable with the word ‘primacy’ while dealingwith the President and the Chief Justice of India. In the context of theappointment of judges, the word ‘responsibility’ used by the LCI in its14th Report seems more appropriate.[362] See for example: Hammond v. Clark, 136 Ga. 313 (1911), Fahey v.Hackmann, 291 Mo. 351 (1922), Associated Industries of Oklahoma v. OklahomaTax Commission, 176 Okla. 120 (1936), State of Wisconsin v. Adam S.Gonzales, 253 Wis.2d 134 (2002), The State v. Swift, 69 Ind. 505 (1880)etc.[363] http://parliamentofindia.nic.in/ls/debates/vol11p11.htm[364] By Professor M.P. Singh, (1999) 8 SCC (Jour) 1[365] Supreme But Not Infallible, Essays in Honour of the Supreme Court ofIndia page 48, 53[366] Supreme Court Advocates-on-Record Association v. Union of India,(1993) 4 SCC 441 (Nine Judges Bench)[367] Special Reference No. 1 of 1998, (1998) 7 SCC 739 (Nine JudgesBench)[368] [1955] 2 SCR 225 (Five Judges Bench)[369] Paragraph 12[370] (1973) 4 SCC 225 (Thirteen Judges Bench)[371] 1965 AC 172[372] Paragraph 577[373] 1975 Supp SCC 1 (Five Judges Bench)[374] (4) No law made by Parliament before the commencement of theConstitution (Thirty-ninth Amendment) Act, 1975, insofar as it relates toelection petitions and matters connected therewith shall apply or shall bedeemed ever to have applied to or in relation to the election of any suchperson as is referred to in clause (1) to either House of Parliament andsuch election shall not be deemed to be void or ever to have become void onany 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 andnotwithstanding any order made by any court, before such commencement,declaring such election to be void, such election shall continue to bevalid in all respects and any such order and any finding on which suchorder is based shall be and shall be deemed always to have been void and ofno effect.[375] Paragraph 190[376] A Grammar of Politics (Works of Harold J. Laski), 297[377] Paragraph 318[378] 293 U.S. 388 (1935)[379] Paragraph 87[380] (1980) 3 SCC 625 (Five Judges Bench)[381] Paragraph 86[382] Paragraph 87[383] (2007) 2 SCC 1 (Nine Judges Bench)[384] Paragraph 63. This has been reiterated in paragraphs 67, 125 and129.[385] (2010) 5 SCC 538 (Five Judges Bench)[386] Paragraphs 77 and 78[387] (2014) 12 SCC 696 (Five Judges Bench)[388] Paragraphs 98 to 126.7. The conclusions are stated in paragraphs126.1 to 126.7.[389] (2006) 3 SCC 643 (Five Judges Bench)[390] Paragraph 298 and 304[391] Paragraph 443[392] (1894-95) 22 I.A. 107, 118[393] 1950 SCR 88 (6 Judges Bench)[394] Quoted from Willoughby on the Constitution of the United States,page 64[395] (1904) 1 Com LR 208[396] 169 US 649, 699[397] Page 110 and 111[398] Page 158 and 159[399] Page 201 and 202[400] Page 273 and 274[401] 1952 SCR 1112 (5 Judges Bench)[402] 169 US 290, 318[403] Page 1121[404] (1967) 2 SCR 762 (11 Judges Bench)[405] Page 782[406] Page 783[407] Page 792[408] Page 836, 837 and 838[409] Page 922[410] Page 917[411] (1972) 2 SCR 331[412] Paragraph 183[413] Paragraph 184 to 186[414] Paragraph 683[415] Paragraph 1368[416] Paragraph 2137[417] Paragraph 2140[418] Paragraph 1088[419] Paragraph 1598[420] 1992 Supp (3) SCC 217 (9 Judges Bench)[421] Paragraph 772[422] (2001) 7 SCC 126[423] (2014) 9 SCC 1 (5 Judges Bench)[424] (2002) 8 SCC 481 (11 Judges Bench)[425] This conclusion appears to be doubtful[426] Paragraph 286[427] [1975] AC 591[428] Paragraph 297[429] (2002) 8 SCC 237[430] Paragraph 16[431] 1995 (3) SA 391 (CC) (Eleven Judges Bench) paragraph 16[432] Paragraph 16[433] Paragraph 14[434] With due apologies to George Mallory who is famously quoted ashaving replied to the question "Why do you want to climb Mount Everest?"with the retort "Because it's there."[435] (3) The administrative expenses of the Supreme Court, including allsalaries, allowances and pensions payable to or in respect of the officersand servants of the court, shall be charged upon the revenues of India, andany fees or other moneys taken by the court shall form part of thoserevenues.[436] http://parliamentofindia.nic.in/ls/debates/vol8p10b.htm[437] http://parliamentofindia.nic.in/ls/debates/vol8p10b.htm[438] AIR 1955 SC 661 (7 Judges Bench)[439] (1953) 4 SCR 1069 (5 Judges Bench)[440] Paragraph 17[441] 85 CLR 237[442] AIR 1961 SC 532 (7 Judges Bench)[443] AIR 1965 SC 1636 (7 Judges Bench)[444] (1960) 1 SCR 249[445] (1963) Supp 1 SCR 871[446] Paragraph 23[447] (1974) 2 SCC 402 (7 Judges Bench)[448] AIR 1967 SC 1581[449] Paragraph 22[450] (1980) 1 SCC 223 (5 Judges Bench)[451] (1989) 2 SCC 754 (5 Judges Bench)[452] Reference was made to Dr. Alan Paterson’s Law Lords. This referenceis not at all clear and is simply stated as ‘1982 at pp. 156-157’[453] Paragraph 13[454] (1993) 1 SCC 364[455] (1989) 2 SCC 645[456] (2002) 5 SCC 111 (7 Judges Bench)[457] (1975) 1 SCC 485 (5 Judges Bench)[458] Sabhajit Tewary was a unanimous decision of 5 learned judges of thisCourt. To conclude that it “sought precedential support from decisionswhich were irrelevant” is, with respect, rather uncharitable.[459] Paragraph 59 to 61[460] Paragraph 10[461] Paragraph 17[462] Paragraph 19[463] (1985) 1 SCC 582[464] (1985) 3 SCC 737[465] How is this to be ascertained?[466] [1986] 2 SCR 56 wherein it is stated: With respect to the first ofthese arguments, I do not think s.100 [of the Constitution Act, 1867]imposes on Parliament the duty to continue to provide judges with preciselythe same type of pension they received in 1867. The Canadian Constitutionis not locked forever in a 119-year old casket. It lives and breathes andis capable of growing to keep pace with the growth of the country and itspeople. Accordingly, if the Constitution can accommodate, as it has, manysubjects 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 federallegislation based on a different understanding of `pensions'.[467] “The law, so far as it depends on learning, is indeed, as it hasbeen called, the government of the living by the dead. To a veryconsiderable extent no doubt it is inevitable that the living should be sogoverned. The past gives us our vocabulary and fixes the limits of ourimagination; we cannot get away from it. There is, too, a peculiar logicalpleasure in making manifest the continuity between what we are doing andwhat has been done before. But the present has a right to govern itself sofar as it can; and it ought always to be remembered that historiccontinuity with the past is not a duty, it is only a necessity.” "Learning and Science", speech at a dinner of the Harvard Law SchoolAssociation in honor of Professor C. C. Langdell (June 25, 1895); reportedin Speeches by Oliver Wendell Holmes (1896). p. 67-68[468] I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 paragraph 42[469] 1994 Supp (1) SCC 324[470] 1994 Supp (1) SCC 324 paragraph 124[471] In his concluding speech, Br. Rajendra Prasad used the expression‘distribution of powers’ and not ‘separation of powers’. See:http://parliamentofindia.nic.in/ls/debates/vol11p12.htm[472] 5 U.S. (1 Cranch) 137, 177 (1803)[473] [1965] 1 SCR 413 (Seven Judges Bench)[474] Page 446[475] Paragraph 371[476] 279 U.S. 655, 689 (1929)[477] 248 U.S. 276[478] 272 U.S. 52[479] 77 Conn. 257[480] Second Judges case, paragraph 450[481] Clause 5(a) of Article 62 reads: “(5)a In the choice of his Ministers and the exercise of his otherfunctions under this Constitution, the President shall be generally guidedby the instructions set out in Schedule III-A, but the validity of anythingdone by the President shall not be called in question on the ground that itwas done otherwise than in accordance with such instructions.”[482] 343 U.S. 579, 635 (1952)[483] Judicial Independence and the Rule of Law by Jonathan K. Van Patten,Volume 2 Benchmark page 117, 129 (1986)[484] Paragraph 335[485] Paragraph 149[486] Paragraph 27 and paragraph 83[487] Paragraph 320[488] Paragraph 634[489] Paragraph 56[490] Paragraph 331[491] Paragraph 421[492] Paragraph 502[493] (1991) 4 SCC 699 (Five Judges Bench)[494] Paragraph 16[495] (1994) 3 SCC 569 (Five Judges Bench)[496] Paragraph 412[497] (1992) 4 SCC 605 paragraph 66[498] (2010) 11 SCC 1 (Five Judges Bench)[499] Paragraph 101[500] Paragraph 126.2[501] Southey Memorial Lecture, 1981[502] Former President of the Supreme Court of the United Kingdom and LordChief Justice of England and Wales[503] Article 124(2)[504] Article 124(4)[505] Article 125[506] Article 112(2)(d)[507] Article 113[508] Article 217[509] Article 218[510] Article 202[511] Article 112(3)(d)[512] Article 203[513][514] [1895] 1 Q.B. 668, 670[515] [1985] A.C. 528, 540[516] Article 141. There is no corresponding constitutional provision forthe High Court.[517] Article 144. There is no corresponding constitutional provision forthe High Court.[518] Article 142. There is no corresponding constitutional provision forthe High Court.[519] Article 145. There is no corresponding constitutional provision forthe High Court.[520] Article 146. The corresponding constitutional provision for the HighCourt is Article 229.[521] Article 146. The corresponding constitutional provision for the HighCourt is Article 229.[522] Article 121[523] Article 211[524] Article 50: The State shall take steps to separate the judiciaryfrom the executive in the public services of the State.[525] Page 50[526] Paragraph 77[527] Paragraph 709[528] Paragraph 27[529] Granville Austin – “Indian Constitution: Cornerstone of a Nation”pages 164-164[530] 50. Separation of judiciary from executive.-The State shall takesteps to separate the judiciary from the executive in the public servicesof the State.[531] 39-A. That State shall take steps to secure that, within a period ofthree years from the commencement of this Constitution, there is separationof the judiciary from the executive in the public services of the State.[532] http://parliamentofindia.nic.in/ls/debates/vol7p12.htm[533] http://parliamentofindia.nic.in/ls/debates/vol7p13.htm[534] http://parliamentofindia.nic.in/ls/debates/vol7p13.htm[535] http://parliamentofindia.nic.in/ls/debates/vol7p13.htm[536] J. van Zyl Smit, The Appointment, Tenure and Removal of Judges underCommonwealth Principles: A Compendium and Analysis of Best Practice (Reportof Research Undertaken by Bingham Centre for the Rule of Law) paragraph0.2.9[537] Granville Austin – “Working a Democratic Constitution: The IndianExperience” page 124[538] Second Judges case, paragraph 49, 335 and 447.[539] 14th Report of the LCI, Chapter 5[540] Pages 155 and 156[541] Contributors: Professor Dr Jutta Limbach, Professor Dr PedroVillalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, ProfessorDr Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr AndrzejZoll. Available at http://www.interights.org/document/142/index.html[542] As agreed by Law Ministers and endorsed by the Commonwealth Heads ofGovernment Meeting, Abuja, Nigeria, 2003[543] http://thecommonwealth.org/sites/default/files/history-items/documents/LatimerHousePrinciples.pdf[544] Page 52[545] Paragraph 1033[546] Paragraph 886[547] Paragraph 49[548] Paragraph 335[549] Paragraph 431[550] Paragraph 447[551] Judges on Trial: The Independence and Accountability of the EnglishJudiciary, Chapter 4[552] As amended at Manila on 28th August, 1997. This has been referred toin Vishaka v. State of Rajasthan, (1997) 6 SCC 241 in paragraph 11 of theReport.[553] Clause 3[554] Clause 11[555] Clause 12[556] The six values are: Independence, Impartiality, Integrity,Propriety, Equality, Competence and Diligence[557] It is not necessary, for the purposes of this discussion, to getinto the controversy whether the recommendation of a person to beconsidered for appointment should originate from the executive or thejudiciary.[558] Second Judges case, paragraph 293 and 428[559] Second Judges case, paragraph 442, 450, 461, 486 and 509[560] Second Judges case paragraph 462 and 478(6)[561] Second Judges case paragraph 467, 468 and 478(6)[562] Frontline, Volume 25 – Issue 20: September 27-October 10, 2008[563] Second Judges case paragraph 353 and 376[564] (1977) 3 SCC 592 at paragraph 56[565] Paragraph 149[566] Paragraph 41[567] http://parliamentofindia.nic.in/ls/debates/vol8p11a.htm[568] I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 paragraph 42[569] Foot Note 16[570] Paragraph 287[571] Article 8 and 10 of the UDHR are relevant in this regard: Article 8: Everyone has the right to an effective remedy by thecompetent national tribunals for acts violating the fundamental rightsgranted him by the constitution or by law. Article 10: Everyone is entitled in full equality to a fair andpublic hearing by an independent and impartial tribunal, in thedetermination of his rights and obligations and of any criminal chargeagainst him.[572] Paragraph 475[573] Paragraph 546[574] Paragraph 666[575] Paragraph 1435[576] Paragraph 1537[577] Paragraphs 251 and 252. Justice Bhagwati also adverts to this inMinerva Mills v. Union of India, (1980) 3 SCC 625.[578] 13. Laws inconsistent with or in derogation of the fundamentalrights — (1) All laws in force in the territory of India immediately beforethe commencement of this Constitution, in so far as they are inconsistentwith the provisions of this Part, shall, to the extent of suchinconsistency, be void. (2) The State shall not make any law which takes away or abridges therights conferred by this Part and any law made in contravention of thisclause 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 oflaw; (b) “laws in force” includes laws passed or made by a Legislature orother competent authority in the territory of India before the commencementof this Constitution and not previously repealed, notwithstanding that anysuch law or any part thereof may not be then in operation either at all orin particular areas. (4) Nothing in this article shall apply to any amendment of thisConstitution made under Article 368.[579] Kesavananda Bharati[580] (1977) 4 SCC 608 paragraph 238 (Seven Judges Bench)[581] (1996) 7 SCC 1 paragraph 107 (Five Judges Bench)[582] (2008) 6 SCC 1 paragraph 116 (Five Judges Bench)[583] (2014) 10 SCC 1 paragraph 109 (Five Judges Bench)[584] Justice Khanna refers to this conclusion in paragraph 198 in thedecision rendered in Indira Nehru Gandhi[585] Paragraph 173[586] Paragraphs 175 and 176[587] Paragraph 210[588] Paragraph 213[589] Paragraph 264 and 265[590] Paragraph 651[591] Paragraph 663[592] (1980) 3 SCC 625 (Five Judges Bench)[593] Paragraph 1[594] Paragraphs 12 and 13[595] 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 twodimensions of the same picture. In any event, for the present discussion,the distinction, if any, is not relevant.[596] (1983) 1 SCC 147 (Five Judges Bench)[597] Paragraph 11[598] Paragraph 77-A[599] (2006) 8 SCC 212 (Five Judges Bench)[600] [1967] 2 SCR 762 (Eleven Judges Bench)[601] Paragraph 21[602] Paragraph 119[603] (1981) 1 SCC 166 (Five Judges Bench)[604] Paragraph 20[605] Paragraph 70 and 151[606] [1950] SCR 869 (Five Judges Bench)[607] [1959] SCR 279 (Five Judges Bench)[608] Paragraph 661[609] (1981) 4 SCC 675 (Five Judges Bench)[610] Paragraph 7[611] (1969) 2 SCC 283 (Five Judges Bench)[612] Paragraph 4[613] (1996) 11 SCC 428[614] Paragraph 5[615] Paragraph 5[616] (1994) 6 SCC 77[617] Paragraph 11[618] (1993) Supp (1) SCC 96[619] Paragraph 76[620] (1996) 7 SCC 637[621] Paragraph 111[622] 198 US 45[623] [1950] 1 SCR 88 (Five Judges Bench)[624] [1967] 1 SCR 15 (Five Judges Bench)[625] Paragraph 288[626] Paragraph 317[627] Paragraph 532[628] Paragraph 909[629] Paragraph 1106[630] Paragraph 1436. This view was reiterated in paragraph 1534.[631] 372 US 726[632] 244 U.S. 590 (1917)[633] 261 U.S. 525 (1923)[634] 300 U.S. 379 (1937)[635] Paragraph 1442[636] Paragraph 176[637] Paragraph 661[638] (2008) 2 SCC 254[639] Paragraph 19[640] 249 US 152, 157 paragraph 11[641] [1959] SCR 629 (Five Judges Bench)[642] Per Chaskalon, J paragraphs 88 and 89[643] 408 U.S. 238, 290 (1972)[644] 319 U.S. 624, 638 (1943)[645] Mistretta v. United States, 488 U.S. 361, 407 (1989)[646] [1952] SCR 284 (Seven Judges Bench)[647] Paragraph 634[648] Paragraph 1437[649] 250 US 616 (1919)[650] Paragraph 1563[651] [1986] 2 SCR 56 paragraph[652] Paragraph 46[653] (1996) 3 SCC 709 paragraph 43[654] (2003) 4 SCC 104 paragraph 26[655] 1962 Supp (2) SCR 1 = AIR 1962 SC 104 (Five Judges Bench)[656] 1992 Supp (2) SCC 651 paragraph 61 and 62 (Five Judges Bench)[657] 1986 Supp SCC 20 in paragraph 50[658] (1997) 5 SCC 536 in paragraph 88[659] [1960 (1) SCR 605 (Five Judges Bench)[660] (2007) 3 SCC 184 (Five Judges Bench)[661] Paragraphs 360 (Two), 366[662] Page 54[663] Page 55[664] Page 56[665] Page 57-59[666] Public Law (2015): Judicial Independence and Accountability in theUK have both emerged stronger as a result of the Constitutional Reform Act2005 by Robert Hazell[667] See State of Punjab v. Salil Sablok, (2013) 5 SCC 1 paragraph 115 ofthe Report.[668] (1982) 1 SCC 271 (Five Judges Bench)[669] Paragraph 61[670] Paragraph 468[671] Paragraph 216(3)[672] (2011) 4 SCC 1[673] (2014) 11 SCC 547[674] Paragraph 16[675] Paragraph 20[676] The discussion in paragraphs 79 to 86 of the Report is quite useful.[677] It was held in Ishwar Chandra v. Satyanarain Sinha, (1972) 3 SCC 383in paragraph 10 of the Report: “… where there is no rule or regulation orany other provision for fixing the quorum, the presence of the majority ofthe members would constitute it a valid meeting and matters consideredthereat cannot be held to be invalid.”[678] Paragraph 207[679] Paragraph 327[680] Paragraph 335[681] The position that the State is a major litigant in the countryremains the same even today.[682] Justice Bhagwati: “We may point out that even countries likeAustralia and New Zealand have veered round to the view that there shouldbe a Judicial Commission for appointment of the higher judiciary. Asrecently as July 1977 the Chief Justice of Australia publicly stated thatthe time had come for such a commission to be appointed in Australia. Soalso in New Zealand, the Royal Commission on the Courts chaired by MrJustice Beattle, who has now become the Governor-General of New Zealand,recommended that a Judicial Commission should consider all judicialappointments including appointments of High Court Judges.” [Paragraph 31][683] Appointing Australian Judges: A New Model by Simon Evans and JohnWilliams, [2008] Sydney Law Review Volume 30 page 295. See[684] http://www.sabar.co.za/law-journals/2010/december/2010-december-vol023-no3-pp43-48.pdf[685]http://www.lawsociety.org.bw/news/Position%20Paper%20on%20Appointment%20of%20Judges%20Final%2014%20june%202012%20'Final'.pdf[686] This may be contrasted with the direct exchange of views between thePresident and the Chief Justice of India referred to earlier.[687] Australia and South Africa have had a gay judge on the Bench. Thepresent political executive in India would perhaps not permit theappointment of a gay person to the Bench.[688] In I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 this Courtobserved in paragraph 138 of the Report: “The relevance of Indira Gandhicase, Minerva Mills case and Waman Rao case [(1981) 2 SCC 362] lies in thefact that every improper enhancement of its own power by Parliament, be itclause (4) of Article 329-A or clauses (4) and (5) of Article 368 orSection 4 of the 42nd Amendment has been held to be incompatible with thedoctrine of basic structure as they introduced new elements which alteredthe identity of the Constitution or deleted the existing elements from theConstitution by which the very core of the Constitution is discarded. Theyobliterated important elements like judicial review. They made directiveprinciples en bloc a touchstone for obliteration of all the fundamentalrights and provided for insertion of laws in the Ninth Schedule which hadno nexus with agrarian reforms.”[689] Carly Van Orman, Introduction to the Symposium: The Judicial ProcessAppointments Process, 10 Wm. & Mary Bill Rts. J. 1 (2001),http://scholarship.law.wm.edu/wmborj/vol10/iss1/2[690] ‘The Appointment and Removal of Judges’ by Sir Anthony Mason AC KBE,formerly Chief Justice of Australiahttp://www.judcom.nsw.gov.au/publications/education-monographs-1/monograph1/fbmason.htm[691] Paragraph 531[692] ‘The Appointment and Removal of Judges’ by Sir Anthony Mason AC KBE,formerly Chief Justice of Australiahttp://www.judcom.nsw.gov.au/publications/education-monographs-1/monograph1/fbmason.htm[693] Shimon Shetreet, Judges on Trial (North-Holland Publishing Company,Amsterdam, (1976), p 46.[694] Akkas, Sarkar Ali (2004) "Appointment of Judges: A Key Issue ofJudicial Independence," Bond Law Review: Vol. 16: Iss. 2, Article 8.Available at: http://epublications.bond.edu.au/blr/vol16/iss2/8[695] (1992) 2 SCC 428[696] Reference Re Supreme Court Act, sections 5 and 6, [2014] 1 SCR 433[697] (2014) 14 SCC 50[698] Paragraph 4[699] (1985) 1 SCC 641[700] 1973 3 All ER 54[701] (1975) 4 SCC 428[702] (1988) 4 SCC 592[703] (2002) 2 SCC 645[704] AIR 1965 SC 1430 (Five Judges Bench)[705] AIR 1963 SC 928 (Five Judges Bench)[706] (1985) 1 SCC 641[707] Paragraph 15[708] (2011) 8 SCC 737[709] R v. Sussex Justices, Ex parte McCarthy, [1924] 1KB 256, [1923] AllER Rep. 233[710] 343 U.S. 451 (1952)[711] (1974) 3 SCC 459[712] 1999 (4) SA 147.[713] (1973) 4 SCC 225[714] (1974) 2 SCC 831[715] Manu/USSC/0060/2015[716] (1998) 7 SCC 739[717] (1993) 4 SCC 441[718] Paras 210, 214, Pandian, J., Paras 361 to 376, Kuldip Singh, J.,Para 486, Verma, J., Para 505, Punchhi, J. in Second Judges’ case[719] (1996) 4 SCC 49[720] 1973 (4) SCC 225[721] (Para 284, Sikri, CJ.) ; (Para 583, Shelat & Grover, JJ.); (Para651 Hegde & Mukherjea, JJ.); (Para 1162, Reddy, J.) and (Para 1426, Khanna,J.)[722] Paras 292, 582, 666, 1159, 1426[723] Paras 652 and 653[724] Para 1535 A. (Khanna, J.) In my opinion, the second part ofArticle 31-C is liable to be quashed on the following grounds: (1) It gives a carte blanche to the Legislature to make any lawviolative of Articles 14, 19 and 31 and make it immune from attack byinserting the requisite declaration. Article 31-C taken along with itssecond part gives in effect the power to the Legislature, including a StateLegislature, to amend the Constitution. (2) The Legislature has been made the final authority to decide as towhether the law made by it is for the objects mentioned in Article 31-C. The vice of second part of Article 31-C lies in the fact that even ifthe law enacted is not for the object mentioned in Article 31-C, thedeclaration made by the Legislature precludes a party from showing that thelaw is not for that object and prevents a court from going into thequestion as to whether the law enacted is really for that object. Theexclusion by the Legislature, including a State Legislature, of even thatlimited judicial review strikes at the basic structure of the Constitution.The second part of Article 31-C goes beyond the permissible limit of whatconstitutes amendment under Article 368. The second part of Article 31-C can be severed from the remainingpart of Article 31-C and its invalidity would not affect the validity ofthe remaining part. I would, therefore, strike down the following words inArticle 31-C: “and no law containing a declaration that it is for giving effect tosuch policy shall be called in question in any court on the ground that itdoes not give effect to such policy.”[725] (1975) Supp. SCC 1[726] Para 663 - For determining whether a particular feature of theConstitution is a part of its basic structure, one has perforce to examinein each individual case the place of the particular feature in the schemeof our Constitution, its object and purpose, and the consequences of itsdenial on the integrity of the Constitution as a fundamental instrument ofcountry's governance. But it is needless for the purpose of these appealsto ransack every nook and cranny of the Constitution to discover the bricksof the basic structure. Those that are enumerated in the majority judgmentsare massive enough to cover the requirements of Shri Shanti Bhushan'schallenge.[727] Khanna and Mathew, JJ held that free and fair election wasessential 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 Constitutionwhich was violated.[728] Para 688[729] (1980) 3 SCC 625[730] Para 56[731] Paras 17 and 88[732] Paras 12, 88[733] Paras 21, 86 and 87[734] (1997) 3 SCC 261[735] Judicial review by constitutional courts was held to be part ofbasic structure. (Paras 77, 78)[736] (2007) 2 SCC 1[737] Fundamental Rights under Articles 14, 15, 19 and 21 were held to bepart of basic structure. (Paras 109 and 147)[738] (2006) 8 SCC 212[739] Identity test discussed in M. Nagaraj case (supra) (Para 28)[740] 1981 Supp. SCC 87, Para 30 (Primacy in appointment of judges is heldto be of Central Government by holding that obligation of the President(the Central Government) was only to consult the judiciary which could notbe treated as binding)[741] Para 25, Pandian J. (Second Judges Case) : Reasons which led toreconsideration of First Judges’ case[742] 1991 Supp (1) SCC 574 – Paras 31-34, 42-46[743] Paras 195 and 207[744] Paras 334, 335[745] Para 357[746] Para 392[747] Paras 421, 422, 447 and 450[748] Paras 9.6 and 9.7[749] 1977 (4) SCC 193 (referred to in Paras 125 to 130 Second Judges’case)[750] 1974 (2) SCC 831[751] Gannon Dunkerly vs. State of Rajasthan, 1993 (1) SCC 364, paras 28to 31[752] 2nd Judges’ case, Paras 19 to 22[753] The Bill was introduced in the light of 121st Report of the LawCommission.[754] [755] Centre for Public Interest Litigation vs. UOI (2012) 3 SCC 1[756] Manohar Lal Sharma vs. UOI (2014) 2 SCC 532[757] S.R. Bommai vs. UOI (1994) 3 SCC 1; Rameshwar Prasad vs. UOI (2006)2 SCC 1; M.C. Mehta vs. Kamal Nath (1997) 1 SCC 388[758] Kihoto Hollohan vs. Zachillhu (1992) Supp. (2) 651[759] Para 64[760] (2012) 10 SC 603[761] Paras 1.21 to 1.23, 7.1 and 7.2[762] Reasons for holding the primacy in appointment of judges to be withthe judiciary have been summarized by Pandian, J. in Para 195 (SecondJudges’ case)[763] 1969 (3) SCC 56[764] Para 25(5), Pandian, J.[765] Para 392, Verma, J. (Second Judges’ case)[766] Such as power of Judicial Review, content of right to life etc.[767] Paras 184 & 192, Second Judges’ case (In para 192 reference is madeto famous statement of Dr. Ambedkar about unsuitability of UK and US modelsin this regard)[768] Para 14[769] Para 19[770] Para 20[771] Paras 362-371 (Second Judges’ case)[772] Paras 7.5 – 7.11 (121st Law Commission Report)[773] Paras 333-335, Kuldip Singh, J., Paras 47, 49,63, Pandian, J.[774] Para 486[775] Para 505, Punchhi, J.; 210, 214, Pandian, J.; Paras 361 to 376,Kuldip Singh, J.[776] Paras 84 and 197, Pandian, J; Paras 428 and 439, Verma, J; Para 334,Kuldip Singh, J[777] Paras 56, 72 to 74 and 207, Pandian, J.[778] Paras 55 to 57, Pandian, J.[779] Para 195 Pandian, J and Para 450, Verma, J.;[780] Paras 447 to 463, Verma, J.; Paras 195 to 197, Pandian, J.; Paras335 and 380, Kuldip Singh, J. (Para 215, Pandian, J. – Appointments andcontrol of district judges is with the High Courts)[781] Para 25(6), Pandian, J.[782] 14th Report of the Law Commission is referred to in paras 64 and 65by Pandian, J.; 121st Report of Law Commission is referred to in Paras 184to 191 and 204, Pandian, J.[783] Paras 383 to 387, Kuldip Singh, J. (However, CJI was not to be thepersona designata but as spokesman of the judiciary in the manner laid downin the judgment.)[784] Second Judges’ case (Paras 74 to 81)[785] Paras 48 and 57, Shamsher Singh case[786] Shri Prithvi Cotton Mills Ltd. vs. Broach Borough Municipality, 1969(2) SCC 283[787] In speech dated 25.11.1949 on conclusion of proceedings of theConstituent Assembly (Page 975 of the CAD). *In his speech as President of the Constituent Assembly quoted inPara 429 of the Second Judges’ case)[788] 2014 (9) SCC 1[789] Paras 652 amd 653[790] Paras 328 and 334, Kuldip Singh, J. (Second Judges’ case)[791] (1981) 1 SCC 166[792] (2008) 6 SCC 1[793] (1997) 5 SCC 536[794] (2006) 11 SCC 356[795] Kesavananda Bharati case – Para 531; Maneka Gandhi vs. UOI (1978) 1SCC 248 – Para 19; I.R. Coelho case – Para 149[796] V.G. Row vs. State of Madras (1952) SCR 597[797] Madhav Rao Jivaji Rao Scindia vs. UOI [1971 (1) SCC 85],[798] Rustom Cavasjee Cooper vs. Union of India [1970 (1) SCC 248][799] Bennett Coleman & Co. Ltd. vs. Union of India [1972 (2) SCC 788][800] S.R. Bommai vs. UOI [(1994) 3 SCC 1][801] Kesavananda Bharati case – Para 531; Maneka Gandhi vs. UOI (1978) 1SCC 248 – Para 19; I.R. Coelho case – Para 149[802] Union of India vs. Madras Bar Asson. (2010) 11 SCC 1 – Para 108[803] Madras Bar Asson. vs. UOI (2014) 10 SCC 1 – Pars 136 and 137[804] Second Judges’ case – Paras 360 and 361[805] Statement of Dr. Ambedkar referred in Para 192 in Second Judges’case[806] Debates reproduced in Paras 362 – 368 in Second Judges’ case[807] Para 98 Second Judges’ case[808] Para 370, Kuldip Singh, J. and Para 505, Punchhi, J. in SecondJudges’ case[809] Paras 39, 41 Chandrachud, J.; 50-52 Bhagwati, J.; 103, 115 KrishnaIyer, J.,[810] Para 30 – First Judges’ case[811] Seervai, 4th Edition, Constitutional Law of India – Paras 25.350,25.353 and 25.354[812] Para 7.5 and 7.8 – 121st Report of the Law Commission[813] Para 505, Punchhi, J.; Paras 210,214, Pandian, J.; Paras 361 to 376,Kuldip Singh, J. in Second Judges’ case[814] Paras 471, 478, 486(2), 486 (3), 486(4 and 5) , Verma, J.[815] By way of illustration : P. Sambamurthy vs. State of A.P. [(1994) 3SCC 1]; Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535; Union of Indiavs. Madras Bar Asson. (2010) 11 SCC 1; Madras Bar Asson. vs. UOI (2014) 10SCC 1[816] Special Reference No.1 (1965) 1 SCC 413 at 446[817] (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)[818] 2013 (7) SCC 653[819] 2013 (7) SCC 507[820] Paras 25.350 to 25.354[821] R.C. Poudyal vs. UOI (1994) Supp. 1 SCC 324, para 53[822] P. Sambamurthy vs. State of A.P. (1987) 1 SCC 362 – Paras 3 and 4,striking down Article 371D(5), Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC535 – Para 15 – 17, striking down Section 347D of the Delhi MunicipalCorporation Act, 1957 (66 of 1957)----------------------- REPORTABLE REPORTABLE-----------------------451

Original author: Mohit Singh