Supreme Court Advocates on Record vs Union of India (Part-I)

Part-I|Part-II|Part-III|Part-VI|Part-V

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 13 OF 2015
Supreme Court Advocates-on-Record – Association and another … Petitioner(s)
versus
Union 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

Jagdish Singh Khehar, J.

Index

THE RECUSAL ORDER

1. In this Court one gets used to writing common orders, for orders are written either on behalf of the Bench, or on behalf of the Court. Mostly, dissents are written in the first person. Even though, this is not an order in the nature of a dissent, yet it needs to be written in the first person. While endorsing the opinion expressed by J. Chelameswar, J., adjudicating upon the prayer for my recusal, from hearing the matters in hand, reasons for my continuation on the Bench, also need to be expressed by me. Not for advocating any principle of law, but for laying down certain principles of conduct.

2. This order is in the nature of a prelude – a precursor, to the determination of the main controversy. It has been necessitated, for deciding an objection, about the present composition of the Bench. As already noted above, J. Chelameswar, J. has rendered the decision on the objection. The events which followed the order of J. Chelameswar, J., are also of some significance. In my considered view, they too need to be narrated, for only then, the entire matter can be considered to have been fully expressed, as it ought to be. I also need to record reasons, why my continuation on the reconstituted Bench, was the only course open to me.

And therefore, my side of its understanding, dealing with the perception, of the other side of the Bench.

3(i) A three-Judge Bench was originally constituted for hearing these matters. The Bench comprised of Anil R. Dave, J. Chelameswar and Madan B.

Lokur, JJ.. At that juncture, Anil R. Dave, J. was a part of the 1+2 collegium, as also, the 1+4 collegium. The above combination heard the matter, on its first listing on 11.3.2015. Notice returnable for 17.3.2015 was issued on the first date of hearing. Simultaneously, hearing in Y.

Krishnan v. Union of India and others, Writ Petition (MD) No.69 of 2015, pending before the High Court of Madras (at its Madurai Bench), wherein the same issues were being considered as the ones raised in the bunch of cases in hand, was stayed till further orders.

(ii) On the following date, i.e., 17.3.2015 Mr. Fali S. Nariman, Senior Advocate, in Supreme Court Advocates-on-Record Association v. Union of India (Writ Petition (C) No.13 of 2015), Mr. Anil B. Divan, Senior Advocate, in Bar Association of India v. Union of India (Writ Petition (C) No.108 of 2015), Mr. Prashant Bhushan, Advocate, in Centre for Public Interest Litigation v. Union of India (Writ Petition (C) No.83 of 2015) and Mr. Santosh Paul, Advocate, in Change India v. Union of India (Writ Petition (C) No.70 of 2015), representing the petitioners were heard. Mr.

Mukul Rohatgi, Attorney General for India, advanced submissions in response. The matter was shown as part-heard, and posted for further hearing on 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 on 18.3.2015, whereupon, Mr. Mukul Rohatgi and Mr. Ranjit Kumar, Solicitor General 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 the day. On 18.3.2015, the matter was adjourned for hearing to the following day, i.e., for 19.3.2015.

(iv) The order passed on 19.3.2015 reveals, that submissions were advanced on that date, by Mr. Dushyant A. Dave, Mr. Mukul Rohatgi, Mr. T.R.

Andhyarujina, Senior Advocate, and Mr. Mathews J. Nedumpara. When Mr. Fali S. Nariman was still addressing the Bench, the Court rose for the day, by recording inter alia, “The matters remained Part-heard.” Further hearing in the cases, was deferred to 24.3.2015.

(v) On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B. Divan, were again heard. Additionally, Mr. Mukul Rohatgi concluded his submissions. On the conclusion of hearing, judgment was reserved. On 24.3.2015, a separate order was also passed in Writ Petition (C) No.124 of 2015 (Mathews J.

Nedumpara v. Supreme Court of India, through Secretary General and others).

It read as under:

“The application filed by Mr. Mathews J. Nedumpara to argue in person before the Court is rejected. The name of Mr. Robin Mazumdar, AOR, who was earlier appearing for him, be shown in the Cause List.” (vi) On 7.4.2015, the following order came to be passed by the three-Judge Bench presided by Anil R. Dave, J.:

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

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

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

4. Sum and substance of the submissions of the counsel opposing the petition is that all these petitions are premature for the reason that the Act has not come into force till today 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 upon several judgments to substantiate their cases.

6. Looking at the facts of the case, we are of the view that these petitions involve substantial questions of law as to the interpretation of the Constitution of India and therefore, we direct the Registry to place all the matters of this group before Hon’ble the Chief Justice of India so that 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 it appropriate to discuss the submissions made by the learned counsel and the parties in-person.

8. It would be open to the petitioners to make a prayer for interim relief before the larger bench as we do not think it appropriate to grant any interim relief at this stage.”

4. During the hearing of the cases, Anil R. Dave, J. did not participate in 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 and Adarsh Kumar Goel, JJ.

6. On 13.4.2015 the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, were notified in the Gazette of India (Extraordinary). Both the above enactments, were brought into force with effect from 13.4.2015. Accordingly, on 13.4.2015 Anil R. Dave, J. became an ex officio Member of the National Judicial Appointments Commission, on account of being the second senior most Judge after the Chief Justice of India, under the mandate of Article 124A (1)(b).

7. When the matter came up for hearing for the first time, before the five-Judge Bench on 15.4.2015, it passed the following order:

“List the matters before a Bench of which one of us (Anil R. Dave, J.) is not a member.” It is, therefore, that Hon’ble the Chief Justice of India, reconstituted the Bench with myself, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ., to hear this group of cases.

8. When the reconstituted Bench commenced hearing on 21.4.2015, Mr. Fali S. Nariman made a prayer for my recusal from the Bench, which was seconded by Mr. Mathews J. Nedumpara (petitioner-in-person in Writ Petition (C) No.124 of 2015), the latter advanced submissions, even though he had been barred from doing so, by an earlier order dated 24.3.2015 (extracted above). For me, to preside over the Bench seemed to be imprudent, when some of the stakeholders desired otherwise. Strong views were however expressed by quite a few learned counsel, who opposed the prayer. It was submitted, that a prayer for recusal had earlier been made, with reference to Anil R. Dave, J. It was pointed out, that the above prayer had resulted in his having exercised the option to step aside (- on 15.4.2015). Some learned counsel went to the extent of asserting, that the recusal of Anil R. Dave, J. was not only unfair, but was also motivated. It was also suggested, that the Bench should be reconstituted, by requesting Anil R.

Dave, J. to preside over the Bench. The above sequence of facts reveals, that the recusal by Anil R. Dave, J. was not at his own, but in deference to a similar prayer made to him. Logically, if he had heard these cases when he was the presiding Judge of the three-Judge Bench, he would have heard it, when the Bench strength was increased, wherein, he was still the presiding Judge.

9(i) Mr. Fali S. Nariman strongly refuted the impression sought to be created, that he had ever required Anil R. Dave, J. to recuse. In order to support his assertion, he pointed out, that he had made the following request in writing on 15.4.2015:

“The provisions of the Constitution (Ninety-Ninth Amendment) Act, 2014 and of the National Judicial Appointments Commission Act, 2014 have been brought into force from April 13, 2015. As a consequence, the Presiding Judge on this Bench, the Hon’ble Mr. Justice Anil R. Dave, has now become (not out of choice but by force of Statute) a member ex officio of the National Judicial Appointments Commission, whose constitutional validity has been challenged.

It is respectfully submitted that it would be appropriate if it is declared at the outset – by an order of this Hon’ble Court – that the Presiding Judge on this Bench will take no part whatever in the proceedings of the National Judicial Appointments Commission.” Learned senior counsel pointed out, that he had merely requested the then presiding Judge (Anil R. Dave, J.) not to take any part in the proceedings of the National Judicial Appointments Commission, during the hearing of these matters. He asserted, that he had never asked Anil R. Dave, J. not to hear the matters pending before the Bench.

(ii) The submission made in writing by Mr. Mathews J. Nedumpara for the recusal of Anil R. Dave, J. was in the following words:

“….. VI. Though Hon’ble Shri Justice Anil R. Dave, who heads the Three- Judge Bench in the instant case, is a Judge revered and respected by the legal fraternity and the public at large, a Judge of the highest integrity, ability and impartiality, still the doctrine of nemo iudex in sua causa or nemo debet esse judex in propria causa – no one can be judge in his own cause – would require His Lordship to recuse himself even at this stage since in the eye of the 120 billion ordinary citizens of this country, the instant case is all about a law whereunder the exclusive power of appointment invested in the Judges case is taken away and is invested in the fair body which could lead to displeasure of the Judges and, therefore, the Supreme Court itself deciding a case involving the power of appointment of Judges of the Supreme Court will not evince public credibility. The question then arises is as to who could decide it. The doctrine of necessity leaves no other option then the Supreme Court itself deciding the question. But in that case, it could be by Judges who are not part of the collegium as of today or, if an NJAC is to be constituted today, could be a member thereof. With utmost respect, Hon’ble Shri Justice Dave is a member of the collegium; His Lordship will be a member of the NJAC if it is constituted today. Therefore, there is a manifest conflict of interest.

VII. Referendum. In Australia, a Constitutional Amendment was brought in, limiting the retirement age of Judges to 70 years. Instead of the Judges deciding the correctness of the said decision, the validity of the amendment was left to be decided by a referendum, and 80% of the population supported the amendment. Therefore, the only body who could decide whether the NJAC as envisaged is acceptable or not is the people of this country upon a referendum.

VIII. The judgment in Judges-2, which made the rewriting of the Constitution, is void ab initio. The said case was decided without notice to the pubic at large. Only the views of the government and Advocates on record and a few others were heard. In the instant case, the public at large ought to be afforded an opportunity to be heard; at least the major political parties, and the case should be referred to Constitutional Bench.

The constitutionality of the Acts ought to be decided, brushing aside the feeble, nay, apologetical plea of the learned Attorney General that the Acts have been brought into force and their validity cannot be challenged, and failing to come forward and state in candid terms that the Acts are the will of the people, spoken through their elected representatives and that too without any division, unanimous. The plea of the Advocates on Record Association that the notification bringing into force the said Acts be stayed be rejected forthwith; so too its demand that the collegium system, which has ceased to be in existence, be allowed to be continued and appointments to the august office of Judges of High Courts and Supreme Court on its recommendation, for to do so would mean that Judges of the High Courts who are currently Chief Justices because they were appointed at a young age in preference over others will be appointed as Judges of the Supreme Court and if that is allowed to happen, it may lead to a situation where the Supreme Court tomorrow will literally be packed with sons and sons-in-law of former Judges. There are at least three Chief Justices of High Courts who are sons of former Judges of the Supreme Court. The Petitioner is no privy to any confidential information, not even gossips.

Still he believes that if the implementation of the NJAC is stayed, three sons of former Judges of the Supreme Court could be appointed as Judges of the Supreme Court. The Petitioner has absolutely nothing personal against any of those Judges; the issue is not at all about any individual. The Petitioner readily concedes, and it is a pleasure to do so, that few of them are highly competent and richly deserving to be appointed.

IX. Equality before law and equal protection of law in the matter of public employment. The office of the Judge of the High Court and Supreme Court, though high constitutional office, is still in the realm of public employment, to which every person eligible ought to be given an opportunity to occupy, he being selected on a transparent, just, fair and non-arbitrary system. The Petitioner reiterates that he could be least deserving to be appointed when considered along with others of more meritorious than him, but the fact that since he satisfies all the basic eligibility criteria prescribed under Articles 124A, as amended, and 217, he is entitled to seek a declaration at the hands of this Hon’ble Court that an open selection be made by advertisement of vacancies or such other appropriate mechanism.

X. Judicial review versus democracy. Judicial review is only to prevent unjust laws to be enacted and the rights of the minorities, whatever colour they could be in terms of religion, race, views they hold, by a legislation which enjoys brutal majority and an of the executive which is tyrannical.

It is no way intended to substitute the voice of the people by the voice of the high judiciary.

XI. Article 124A, as amended, is deficient only in one respect. The collegium contemplated thereunder is still fully loaded in favour of the high judiciary. Three out of the six members are Judges. In that sense it is failing to meet to be just and democratic. But the Parliament has in its wisdom enacted so and if there is a complaint, the forum is to generate public opinion and seek greater democracy. The Petitioner is currently not interested in that; he is happy with the Acts as enacted and the principal relief which he seeks in the instant petition is the immediate coming into force of the said Acts by appropriate notification and a mandamus to that effect at the hands of this Hon’ble Court.”

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 of India, that I would not participate in the proceedings of the 1+4 collegium (of which I was, a member), till the disposal of these matters. Yet, the objection was pressed. It needs to be recorded that Anil R. Dave, J. was a member of the 1+2 collegium, as well as, the 1+4 collegium from the day the hearing in these matters commenced. Surprisingly, on that account, his recusal was never sought, and he had continued to hear the matters, when he was so placed (from 11.3.2015 to 7.4.2015). But for my being a member of the 1+4 collegium, a prayer had been made for my recusal.

11. It was, and still is, my personal view, which I do not wish to thrust either on Mr. Fali S. Nariman, or on Mr. Mathews J. Nedumpara, that Anil R.

Dave, J. was amongst the most suited, to preside over the reconstituted Bench. As noticed above, he was a part of the 1+2 collegium, as also, the 1+4 collegium, under the ‘collegium system’; he would continue to discharge the same responsibilities, as an ex officio Member of the National Judicial Appointments Commission, in the ‘Commission system’, under the constitutional amendment enforced with effect from 13.4.2015. Therefore, irrespective of the system which would survive the adjudicatory process, Anil R. Dave, J. would participate in the selection, appointment and transfer of Judges of the higher judiciary. He would, therefore, not be affected by the determination of the present controversy, one way or the other.

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 Supreme Court 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 case Special Reference No.1 of 1998, Re. (1998 7 SCC 739), is at present a member of the Collegium of five Hon’ble Judges which recommends judicial appointments to the Higher Judiciary, which will now come under the ambit of the National Judicial Appointments Commission set up under the aegis of the Constitution (Ninety-ninth Amendment) Act, 2014 read with National Judicial Appointments Commission Act No.40 of 2014 – if valid; but the constitutional validity of these enactments has been directly challenged in these proceedings.

The position of the Presiding Judge on this Bench hearing these cases of constitutional challenge is not consistent with (and apparently conflicts with) his position as a member of the ‘collegium’; and is likely to be seen as such; always bearing in mind that if the Constitution Amendment and the statute pertaining thereto are held constitutionally valid and are upheld, the present presiding Judge would no longer be part of the Collegium – the Collegium it must be acknowledged exercises significant constitutional power.

9. In other words would it be inappropriate for the Hon’ble Presiding Judge to continue to sit on a Bench that adjudicates whether the Collegium system, (as it is in place for the past two decades and is stated (in the writ petitions) to be a part of the basic structure of the Constitution), should continue or not continue. The impression in peoples mind would be that it is inappropriate if not unfair if a sitting member of a Collegium sits in judgment over a scheme that seeks to replace it. This is apart from a consideration as to whether or not the judgment is (or is not) ultimately declared invalid or void: whether in the first instance or by Review or in a Curative Petition.” 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 the Petitioner holds in high esteem and respect, a Judge known for his uprightness, impartiality and erudition, the Petitioner is afraid to say, ought not to preside over the Constitution Bench deciding the constitutional validity or otherwise of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (“the said Acts”, for short). His Lordship will be a member of the collegium if this Hon’ble Court were to hold that the said Acts are unconstitutional or to stay the operation of the said Acts, for, if the operation of the Acts is stayed, it is likely to be construed that the collegium 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 National Judicial Appointments Commission, for, if the NJAC is to be constituted today, it will be consisting of the Hon’ble Chief Justice of India and two seniormost Judges of this Hon’ble Court. With the retirement of Hon’ble Shri H.L. Dattu, Chief Justice of India, His Lordship Hon’ble Shri Justice J.S. Khehar will become a member of the collegium. Therefore, an ordinary man, nay, an informed onlooker, an expression found acceptance at the hands of this Hon’ble Court on the question of judicial recusal, will consider that justice would not have been done if a Bench of this Hon’ble Court headed 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’ble Court hearing the Writ Petitions challenging the aforesaid Acts is nothing but a fox being on the jury at a goose’s trial. The Petitioner believes that the Noble heart of his Lordships Justice Khehar could unwittingly be influenced by the nonconscious, subconscious, unconscious bias, his Lordships having been placed himself in a position of conflict of interest.

3. This Hon’ble Court itself hearing the case involving the power of appointment of Judges between the collegium and the Government, nay, the executive, will not evince any public confidence, except the designated senior lawyers who seem to be supporting the collegium system. The collegium system does not have any confidence in the ordinary lawyers who are often unfairly treated nor the ordinary litigants, the Daridra Narayanas, to borrow an expression from legendary Justice Krishna Iyer, who considered that the higher judiciary, and the Supreme Court in particular, is beyond the reach of the ordinary man. An ordinary lawyer finds it difficult to get even an entry into the Supreme Court premises. This is the stark reality, though many prefer to pretend not to notice it.

Therefore, the Petitioner with utmost respect, while literally worshipping the majesty of this Hon’ble Court, so too the Hon’ble presiding Judge of this Hon’ble Court, in all humility, with an apology, if the Petitioner has erred in making this plea, seeks recusal by Hon’ble Shri Justice J.S.

Khehar from hearing the above case.”

13. As a Judge presiding over the reconstituted Bench, I found myself in an awkward predicament. I had no personal desire to participate in the hearing of these matters. I was a part of the Bench, because of my nomination to it, by Hon’ble the Chief Justice of India. My recusal from the Bench at the asking of Mr. Fali S. Nariman, whom I hold in great esteem, did not need a second thought. It is not as if the prayer made by Mr. Mathews J. Nedumpara, was inconsequential.

14. But then, this was the second occasion when proceedings in a matter would have been deferred, just because, Hon’ble the Chief Justice of India, in the first instance, had nominated Anil R. Dave, J. on the Bench, and thereafter, had substituted him by nominating me to the Bench. It was therefore felt, that reasons ought to be recorded, after hearing learned counsel, at least for the guidance of Hon’ble the Chief Justice of India, so that His Lordship may not make another nomination to the Bench, which may be similarly objected to. This, coupled with the submissions advanced by Mr. Mukul Rohatgi, Mr. Harish N. Salve and Mr. K.K. Venugopal, that parameters 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, the Bench examined the prayer, whether I should remain on the reconstituted Bench, despite my being a member of the 1+4 collegium. The Bench, unanimously concluded, that there was no conflict of interest, and no other justifiable reason in law, for me to recuse from the hearing of these matters. On 22.4.2015, the Bench passed the following short order, which was pronounced by J. Chelameswar, J.:

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

16. After the order was pronounced, I disclosed to my colleagues on the Bench, that I was still undecided whether I should remain on the Bench, for I was toying with the idea of recusal, because a prayer to that effect, had been made in the face of the Court. My colleagues on the Bench, would have nothing of it. They were unequivocal in their protestation.

17. Despite the factual position noticed above, I wish to record, that it is not their persuasion or exhortation, which made me take a final call on the matter. The decision to remain a member of the reconstituted Bench was mine, and mine alone. The choice that I made, was not of the heart, but that of the head. The choice was made by posing two questions to myself.

Firstly, whether a Judge hearing a matter should recuse, even though the prayer for recusal is found to be unjustified and unwarranted? Secondly, whether I would stand true to the oath of my office, if I recused from hearing the matters?

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

…………………………….J.

(Jagdish Singh Khehar) New Delhi;

October 16, 2015.

THE REFERENCE ORDER I. THE CHALLENGE:

1. The question which has arisen for consideration, in the present set of cases, pertains to the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 (hereinafter referred to as, the Constitution (99th Amendment) Act), as also, that of the National Judicial Appointments Commission Act, 2014 (hereinafter referred to as, the NJAC Act).

2. During the course of hearing on the merits of the controversy, which pertains 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 alia relying on the judgment rendered in S.P. Gupta v. Union of India[1], (hereinafter referred to as, the First Judges case); whereas, the learned counsel for the petitioners were inter alia relying on the judgment in Supreme Court Advocates-on-Record Association v. Union of India[2] (hereinafter referred to as, the Second Judges case), and the judgment in Re: Special Reference No.1 of 1998[3], (hereinafter referred to as, the Third Judges case).

3. Per se, the stance adopted by learned counsel for the respondents in placing reliance on the judgment in the First Judges case, was not open to them. This, for the simple reason, that the judgment rendered in the First Judges case, had been overruled by a larger Bench, in the Second Judges case. And furthermore, the exposition of law declared in the Second Judges case, was reaffirmed by the Third Judges case.

4. Visualizing, that the position adopted by the respondents, was not legally permissible, the Attorney General, the Solicitor General, and other learned counsel representing the respondents, adopted the only course open to them, namely, to seek reconsideration of the decisions rendered by this Court in the Second and Third Judges cases. For the above objective it was asserted, that various vital aspects of the matter, had not been brought to the notice of this Court, when the controversy raised in the Second Judges case was canvassed. It was contended that, had the controversy raised in the Second Judges case, been examined in the right perspective, this Court would not have recorded the conclusions expressed therein, by the majority.

It was submitted, that till the respondents were not permitted to air their submissions, with reference to the unacceptability of the judgments rendered in the Second and Third Judges cases, it would not be in the fitness 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 controversy being debated, as also, the vehemence with which learned counsel representing the respondents, pressed for a re-examination of the judgments rendered by this Court, in the Second and Third Judges cases, we permitted them, to detail the basis of their assertions.

6. Before embarking on the issue, namely, whether the judgments rendered by this Court in the Second and Third Judges cases, needed to be revisited, we propose first of all, to determine whether or not it would be justified for us, in the peculiar facts and circumstances of this case, keeping in view the technical parameters laid down by this Court, to undertake the task. In case, we conclude negatively, and hold that the prayer seeking a review of the two judgments was not justified, that would render a quietus to the matter. However, even if the proposition canvassed at the behest of the respondents is not accepted, we would still examine the submissions canvassed at their behest, as in a matter of such extreme importance and sensitivity, it may not be proper to reject a prayer for review, on a mere technicality. We shall then endeavour to determine, whether the submissions canvassed at the hands of the respondents, demonstrate clear and compelling reasons, for a review of the conclusions recorded in the Second and Third Judges cases. We shall also venture to examine, whether the respondents have been able to prima facie show, that the earlier judgments could be seen as manifestly incorrect. For such preliminary adjudication, we are satisfied, that the present bench-strength satisfies the postulated requirement, expressed in the proviso under Article 145(3).

7. Consequent upon the above examination, if the judgments rendered in the Second and Third Judges cases, are shown to prima facie require a re- look, we would then delve on the merits of the main controversy, without permitting the petitioners to place reliance on either of the aforesaid two judgments.

8. In case, we do not accept the submissions advanced at the hands of the petitioners on merits, with reference to the main controversy, that too in a sense would conclude the matter, as the earlier regime governed by the Second and Third Judges cases, would become a historical event, of the past, as the new scheme contemplated under the impugned Constitution (99th Amendment) Act, along with the NJAC Act, would replace the earlier dispensation. In the above eventuality, the question of re-examination of the Second and Third Judges cases would be only academic, and therefore uncalled for.

9. However, if we accept the submissions advanced at the hands of the learned counsel for the petitioners, resulting in the revival of the earlier process, and simultaneously conclude in favour of the respondents, that the Second and Third Judges cases need a re-look, we would be obliged to refer this matter to a nine-Judge Bench (or even, to a larger Bench), for re-examining the judgments rendered in the Second and Third Judges cases.

II. THE BACKGROUND TO THE CHALLENGE:

10. Judges to the Supreme Court of India and High Courts of States, are appointed under Articles 124 and 217 respectively. Additional Judges and acting Judges for High Courts are appointed under Articles 224 and 224A.

The transfer of High Court Judges and Chief Justices, of one High Court to another, is made under Article 222. For the controversy in hand, it is essential to extract the original Articles 124 and 217, hereunder:

“124. Establishment and constitution of Supreme Court. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

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 such authority and in such manner as Parliament may by law provide.

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and— (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or (c) is, in the opinion of the President, a distinguished jurist.

Explanation I.—In this clause “High Court” means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.

Explanation II.—In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included.

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).

(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.” “217. Appointment and conditions of the office of a Judge of a High Court.— (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-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 manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and— (a) has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such courts in succession;

Explanation.— For the purposes of this clause — (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.”

11. The true effect and intent of the provisions of the Constitution, and all other legislative enactments made by the Parliament, and the State legislatures, are understood in the manner they are interpreted and declared by the Supreme Court, under Article 141. The manner in which Articles 124 and 217 were interpreted by this Court, emerges principally from three-Constitution Bench judgments of this Court, which are now under pointed consideration. The first judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges case on 30.12.1981. The correctness of the First Judges case was doubted by a three-Judge Bench in Subhash 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 Chief Justice of India constituted a nine-Judge Bench, to examine two questions.

Firstly, whether the opinion of the Chief Justice of India in regard to the appointment of Judges to the Supreme Court and to the High Courts, as well as, transfer of Chief Justices and Judges of High Courts, was entitled to primacy? And secondly, whether the fixation of the judge-strength in High Courts, was justiciable? By a majority of 7:2, a nine-Judge Bench of this Court, in the Second Judges case, overruled the judgment in the First Judges case. The instant judgment was rendered on 6.10.1993. Consequent upon doubts having arisen with the Union of India, about the interpretation of the Second Judges case, the President of India, in exercise of his power under Article 143, referred nine questions to the Supreme Court, for its opinion. A nine-Judge Bench answered the reference unanimously, on 28.10.1998.

12. After the judgment of this Court in the Second Judges case was rendered in 1993, and the advisory opinion of this Court was tendered to the 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 the higher judiciary, commenced to be interpreted as vesting primacy in the matter, with the judiciary. This according to the respondents, had resulted in the term “consultation” being understood as “concurrence” (in matters governed by Articles 124, 217 and 222). The Union of India, then framed a Memorandum of Procedure on 30.6.1999, for the appointment of Judges and Chief Justices to the High Courts and the Supreme Court, in consonance with the above two judgments. And appointments came to be made thereafter, in consonance with the Memorandum of Procedure.

13. As per the position expressed before us, a feeling came to be entertained, that a Commission for selection and appointment, as also for transfer, of Judges of the higher judiciary should be constituted, which would replace the prevailing procedure, for appointment of Judges and Chief Justices of the High Courts and the Supreme Court of India, contemplated under Articles 124(2) and 217(1). It was felt, that the proposed Commission should be broad based. In that, the Commission should comprise of members of the judiciary, the executive and eminent/important persons from public life. In the above manner, it was proposed to introduce transparency in the selection process.

14. To achieve the purported objective, Articles 124 and 217 were inter alia amended, and Articles 124A, 124B and 124C were inserted in the Constitution, through the Constitution (99th Amendment) Act, by following the procedure contemplated under Article 368(2), more particularly, the proviso thereunder. The amendment, received the assent of the President on 31.12.2014. It was however given effect to, with effect from 13.4.2015 (consequent upon its notification in the Gazette of India (Extraordinary) Part II, Section 1). Simultaneously therewith, the Parliament enacted the NJAC Act, which also received the assent of the President on 31.12.2014.

The same was also brought into force, with effect from 13.4.2015 (by its notification in the Gazette of India (Extraordinary) Part II, Section 1).

The above constitutional amendment and the legislative enactment, are subject matter of challenge through a bunch of petitions, which are collectively being heard by us. In order to effectively understand the true purport of the challenge raised by the petitioners, and the nuances of the legal and constitutional issues involved, it is imperative to have a bird’s eye view of the First Judges case, upon which reliance has been placed by the learned counsel for the respondents, in their attempt to seek a review of the Second and Third Judges cases.

The First Judges case – 1981 Supp SCC 87.

15. The Union Law Minister addressed a letter dated 18.3.1981 to the Governor of Punjab and to Chief Ministers of all other States. The addressees were inter alia informed, that “…one third of the Judges of High Court, should as far as possible be from outside the State in which the High Court is situated…”. Through the above letter, the addressees were requested to “…(a) obtain from all additional Judges working in the High Courts… their consent to be appointed as permanent Judges in any other High Court in the country…” The above noted letter required, that the concerned appointees “…be required to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and (b) obtain from persons who have already been or may in the future be proposed by you for initial appointment their consent to be appointed to any other High Court in the country along with a similar preference for three High Courts…”. The Union Law Minister, in the above letter clarified, that furnishing of their consent or indication of their preference, would not imply any commitment, at the behest of the Government, to accommodate them in accordance with their preferences. In response, quite a few additional Judges, gave their consent to be appointed outside their parent State.

(i) Iqbal Chagla (and the other petitioners) felt, that the letter dated 18.3.1981 was a direct attack on the “independence of the judiciary”, and an uninhibited assault on a vital/basic feature of the Constitution. A series of Advocates’ Associations in Bombay passed resolutions, condemning the letter dated 18.3.1981, as being subversive of “judicial independence”.

They demanded the withdrawal of the letter. Since that was not done, a writ petition was filed by the above Associations in the Bombay High Court, challenging the letter dated 18.3.1981. An interim order was passed by the High Court, restraining the Union Law Minister and the Government from implementing the letter dated 18.3.1981. A Letters Patent Appeal preferred against the above interim order, came to be dismissed by a Division Bench of the High Court. The above interim order, was assailed before this Court. While the matter was pending before this Court, the Union Law Minister and the Government of India, filed a transfer petition under Article 139A. The transfer petition was allowed, and the writ petition filed in the Bombay High Court, was transferred to the Supreme Court.

(ii) A second petition was filed by V.M. Tarkunde, in the High Court of Delhi. It raised a challenge to the constitutional validity of the letter dated 18.3.1981. One additional ground was raised with reference to the three additional Judges of the Delhi High Court, namely, O.N. Vohra, S.N.

Kumar and S.B. Wad, JJ., whose term was expiring on 6.3.1981. Rather than being appointed for a further term of two years, their appointment was extended for three months, from 7.3.1981. These short term appointments were assailed, as being unjustified under Article 224, besides being subversive of the “independence of the judiciary”. This writ petition was also transferred for hearing to the Supreme Court. So far as the circular letter dated 18.3.1981 is concerned, the Supreme Court, on an oral prayer made by the petitioner, directed that any additional Judge who did not wish to respond to the circular letter may not do so, and that, he would neither be refused extension nor permanent appointment, on the ground that he had not sent a reply to the letter dated 18.3.1981. Thereafter, the appointment of S.B. Wad, J., was continued, as an additional Judge for a period of one year from 7.6.1981, but O.N. Vohra and S.N. Kumar, JJ., were not continued beyond 7.6.1981.

(iii & iv). A third writ petition, was filed by J.L. Kalra and others, who were practicing Advocates, in the Delhi High Court. And a fourth writ petition was filed by S.P. Gupta, a practicing Advocate, of the Allahabad High Court. The third and fourth writ petitions were for substantially the same reliefs, as the earlier two petitions.

(v) A fifth writ petition, was filed by Lily Thomas. She challenged a transfer order dated 19.1.1981, whereby the Chief Justice of the High Court of Madras was 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 transfer of the Chief Justice of the High Court of Patna to the Madras High Court was challenged by asserting, that the power of transfer under Article 222(1) was limited to Judges of the High Courts, and did not extend to Chief Justices. Alternatively, it was contended, that transfers could only be made with the consent of the concerned Judge, and only in public interest, and after full and effective consultation with the Chief Justice of India.

(vi & vii) A sixth writ petition was filed by A. Rajappa, principally challenging the order dated 19.1.1981, whereby some Chief Justices had been transferred. One additional submission was raised in this petition, namely, that the transfer of the Chief Justices had been made without the prior consultation of the 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). The seventh writ petition was filed by P. Subramanian, on the same grounds, as the petition filed by A. Rajappa.

(viii) An eighth writ petition was filed by D.N. Pandey and Thakur Ramapati Sinha, practicing Advocates, of the Patna High Court. In this petition, Justice K.B.N. Singh, the Chief Justice of the Patna High Court was impleaded as respondent no.3. On a prayer made by respondent no.3, he was transposed as petitioner no.3. As petitioner no.3, Justice K.B.N.

Singh filed a detailed affidavit asserting, that his transfer had been made as a matter of punishment, and further, that it had been made on irrelevant and on insufficient grounds, and not in public interest. And further that, it was not preceded by a full and effective consultation with the Chief Justice of India.

It is therefore apparent, that the above mentioned petitions related to two different sets of cases. Firstly, the issue pertaining to the initial appointment of Judges, and the extension of the term of appointment of additional Judges, on the expiry of their original term. And secondly, the transfer of Judges and Chief Justices from one High Court to another.

16. The opinions recorded in the First Judges case, insofar as they are relevant to the present controversy, are being summarized herein:

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 which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the entire Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective…The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive, and therefore, it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution. “…It was felt, that the concept of “independence of the judiciary” was not limited only to the independence from executive pressure or influence, but it was a much wider concept, which took within its sweep, independence from many other pressures and prejudices. It had many dimensions, namely, fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong. It was held, that the principle of “independence of the judiciary” had to be kept in mind, while interpreting the provisions of the Constitution (paragraph 27).

(ii). On the subject of appointment of High Court Judges, it was opined, that just like Supreme Court Judges, who are appointed under Article 124 by the 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, was exercisable only “…after consultation with the Chief Justice of India, the Governor of the State, and, the Chief Justice of the High Court…” It was concluded, that it was clear on a plain reading of the above two Articles, that the Chief Justice of India, the Chief Justice of the High Court, and such other Judges of the High Court and of the Supreme Court (as the Central Government may deem necessary to consult), were constitutional functionaries, having a consultative role, and the power of appointments rested solely and exclusively in the decision of the Central Government.

It was pointed out, that the above power was not an unfettered power, in the sense, that the Central Government could not act arbitrarily, without consulting the constitutional functionaries specified in the two Articles.

The Central Government was to act, only after consulting the constitutional functionaries, and that, the consultation had to be full and effective (paragraph 29).

(iii). On the question of the meaning of the term “consultation” expressed in Article 124(2) and Article 217(1), it was held, that this question was no longer res integra, as the issue stood concluded by the decision of the Supreme Court in Union of India v. Sankalchand Himatlal Sheth[5], wherein its meaning was determined with reference to Article 222(1). But, since it was the common ground between the parties, that the term “consultation” used in Article 222(1) had the same meaning, which it had in Articles 124(2) and 217(1), it was held that, “…therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system…”

It was further concluded, that the above observation in the Sankalchand Himatlal Sheth case5 would apply with equal force to determine the scope and meaning of the term “consultation” within the meaning of Articles 124(2) and 217(1). Each of the constitutional functionaries, required to be consulted under these two Articles, must have for his consideration, full and identical facts bearing upon appointment or non-appointment of the person concerned, and the opinion of each of them taken on identical material, must be considered by the Central Government, before it takes a decision, whether or not to appoint the person concerned as a Judge. It was open to the Central Government to take its own decision, in regard to the appointment or non-appointment of a Judge to a High Court or the Supreme Court, after taking into account and giving due weight to, the opinions expressed. It was also observed, that the only ground on which such a decision could be assailed was, that the action was based on mala fides or irrelevant considerations. In case of a difference of opinion amongst the constitutional functionaries, who were to be consulted, it was felt, that it was for the Central Government to decide, whose opinion should be accepted. The contention raised on behalf of the petitioners, that in the consultative process, primacy should be that of the Chief Justice of India, since he was the head of the Indian judiciary and pater familias of the judicial fraternity, was rejected for the reason, that each of the constitutional functionaries was entitled to equal weightage. With reference to appointment of Judges of the Supreme Court, it was held, that the Chief Justice of India was required to be consulted, but the Central Government was not bound to act in accordance with the opinion of the Chief Justice of India, even though, his opinion was entitled to great weight. It was therefore held, that the ultimate power of appointment, rested with the Central Government (paragraph 30).

(iv). On the issue of appointment of Judges of the Supreme Court, it was concluded, that consultation with the Chief Justice of India was a mandatory requirement. But while making an appointment, consultation could extend to such other Judges of the Supreme Court, and of the High Courts, as the Central Government may deem necessary. In response to the submission, where only the Chief Justice of India was consulted (i.e., when consultation did not extend to other Judges of the Supreme Court, or of the High Courts), whether the opinion tendered by the Chief Justice of India should be treated as binding, it was opined, that there was bound to be consultation, with one or more of the Judges of the Supreme Court and of the High Courts, before exercising the power of appointment conferred under Article 124(2). It was felt, that consultation with the Chief Justice of India alone, with reference to the appointment of Judges to the Supreme Court, was not a very satisfactory mode of appointment, because wisdom and experience demanded, that no power should rest in a single individual howsoever high and great he may be, and howsoever honest and well-meaning.

It was suggested, that it would be more appropriate if a collegium would make the recommendations to the President, with regard to appointments to the higher judiciary, and the recommending authority should be more broad based. If the collegium was comprised of persons who had knowledge of persons, who may be fit for appointment to the Bench, and possessed the qualities required for such appointment, it would go a long way towards securing the right kind of Judges, who would be truly independent (paragraph 31).

(v) It was held, that the appointment of an additional Judge, must be made by following the procedure postulated in Article 217(1). Accordingly, when the term of an additional Judge expired, and he ceased to be a Judge, his reappointment could only be made by once again adopting the procedure set out in Article 217(1). The contention, that an additional Judge must automatically and without any further consideration be appointed as an additional Judge for a further term, or, as a permanent Judge, was rejected (paragraphs 38 to 44).

(vi) On the question of validity of the letter of the Union Law Minister dated 18.3.1981, it was opined, that the same did not violate any legal or constitutional provision. It was felt, that the advance consent sought to be obtained through the letter dated 18.3.1981, from additional Judges or Judges prior to their permanent appointment, would have no meaning, so far as the Chief Justice of India was concerned, because irrespective of the fact, whether the additional Judge had given his consent or not, the Chief Justice of India would have to consider, whether it would be in public interest to allow the additional Judge to be appointed as a permanent Judge in another High Court (paragraph 54).

(vii) After having determined the merits of the individual claim raised by S.N. Kumar, J., (who was discontinued by the Central Government, while he was holding the position of additional Judge), it was concluded, that it would be proper if the Union of India could find a way, to place the letter dated 7.5.1981 addressed by the Chief Justice of Delhi High Court to the Law Minister, before the Chief Justice of India, and elicit his opinion with reference to that letter. And thereupon consider, whether S.N. Kumar, J., should be reappointed as additional Judge.

(viii) With reference to K.B.N. Singh, CJ., it was opined that there was a clear abdication by the Central Government of its constitutional functions, and therefore, his transfer from the Patna High Court to the Madras High Court was held as unconstitutional and void.

A.C. Gupta, J.:

(i). On the subject of the “independence of the judiciary”, it was opined, that the same did not mean freedom of Judges to act arbitrarily. It only meant, that Judges must be free, while discharging their judicial functions. In order to maintain “independence of the judiciary”, it was felt, that Judges had to be protected against interference, direct or indirect. It was concluded, that the constitutional provisions should not be construed in a manner, that would tend to undermine the concept of “independence of the judiciary” (paragraph 119).

(ii) On the question, whether, on the expiry of the term of office of an additional Judge of a High Court, it was permissible to drop him by not giving him another term, though the volume of work, pending in the High Court, required the services of another Judge? It was opined, that the tenure of an additional Judge, was only dependent on the arrears of work, or the temporary increase in the business of a High Court. And since an additional Judge was not on probation, his performance could not be considered to determine, whether he was fit for appointment as a permanent Judge. Therefore, it was concluded, that if the volume of work pending in the High Court justified the appointment of an additional Judge, there could be no reason, why the concerned additional Judge should not be appointed for another term. The submission that the two years’ period mentioned in Article 224, depicted the upper limit of the tenure, and that the President was competent to appoint an additional Judge, for any shorter period, was rejected. Since the fitness of a Judge, had been considered at the time of his initial appointment, therefore, while determining whether he should be reappointed, under Article 217(1), it was opined, that the scope of inquiry was limited, to whether the volume of work pending in the High Court, necessitated his continuation.

(iii). Referring to the opinion expressed by the Chief Justice of the High Court, in connection with S.N. Kumar, J., it was opined, that when allegations were levelled against a Judge with respect to the discharge of his duties, the only reasonable course open, which would not undermine the “independence of the judiciary” was, to proceed with an inquiry into the allegations and remove the Judge, if the allegations were found to be true (in accordance with the procedure laid down under Article 124(4) and (5) read with Article 218). It was felt that, dropping an additional Judge, at the end of his initial term of office, on the ground that there were allegations against him, without properly ascertaining the truth of the allegations, was destructive of the “independence of the judiciary” (paragraph 123).

(iv). With reference to the non-continuation of S.N. Kumar, J., an additional Judge of the Delhi High Court, it was observed, that the letter of the Chief Justice of the Delhi High Court dated 7.5.1981, addressed to the Law Minister, was not disclosed to the Chief Justice of India. As the relevant material was withheld from the Chief Justice of India, it was concluded, that there was no full and effective “consultation”, as contemplated by Article 217(1). And therefore, the decision not to extend the term of office of S.N. Kumar, J., as additional Judge of the Delhi High Court, though the volume of pending work in the High Court required the services of an additional Judge, was invalid.

(v). On the question, whether the opinion of the Chief Justice of India would have primacy, in case of a difference of opinion between the Chief Justice of a High Court and the Chief Justice of India, the view expressed was, that the President should accept the opinion of the Chief Justice of India, unless such opinion suffered from any obvious infirmity. And that, the President could not act as an umpire, and choose between the two opinions (paragraph 134).

(vi). Referring to the judgment in the Sankalchand Himatlal Sheth case5, wherein it was concluded, that mass transfers were not contemplated under Article 222(1), it was opined, that the President could transfer a Judge from one High Court to another, only after consultation with the Chief Justice of India. And that, the Chief Justice of India must consider in each case, whether the proposed transfer was in public interest (paragraph 138).

(vii). With reference to the transfer of K.B.N. Singh, CJ., from the Patna High Court to the Madras High Court, it was opined, that even if the above transfer had been made for administrative reasons, and in public interest, it was likely to cause some injury to the transferee, and it would only be fair to consider the possibility of transferring him, where he would face least difficulties, namely, where the language difficulty would not be acute.

S. Murtaza Fazal Ali, J.:

(i) On the issue, whether the transfer of a High Court Judge under Article 222 required the consent of the Judge proposed to be transferred, it was opined, that a non-consensual transfer, would not amount to punishment, nor would it involve any stigma. It was accordingly concluded, that a transfer made after complying with Article 222, would not mar or erode the “independence of the judiciary” (paragraph 345).

(ii). With reference to appointing Chief Justices of High Courts from outside the State, and for having 1/3rd Judges in every High Court from outside the State, it was expressed, that Article 222 conferred an express power with the President, to transfer a Judge (which includes, Chief Justice) from one State to another. In determining as to how this power had to be exercised, it was felt, that the President undoubtedly possessed an implied power to lay down the norms, the principles, the conditions and the circumstances, under which the said power was to be exercised. A declaration by the President regarding the nature and terms of the policy (which virtually meant a declaration by the Council of Ministers) was quite sufficient, and absolutely legal and constitutional (paragraph 410).

(iii). On the subject of validity of the letter of the Union Law Minister dated 18.3.1981, it was held, that the same did not in any way tarnish the image of Judges, or mar the “independence of the judiciary” (paragraph 433).

(iv). On the question of appointment of additional Judges, and the interpretation of Article 217, the opinion expressed by P.N. Bhagwati and E.S. Venkataramiah, JJ. were adopted (paragraph 434).

(v). Insofar as the interpretation of Article 224 was concerned, the opinion of P.N. Bhagwati and D.A. Desai, JJ. were accepted, (paragraph 537). And accordingly, their conclusion about the continuation of S.N.

Kumar, J., as an additional Judge, after the expiry of his term of appointment, was endorsed.

(vi). On analyzing the decision rendered in the Sankalchand Himatlal Sheth case5, inter alia, the following necessary concomitants of an effective consultation between the President and the Chief Justice of India were drawn. That the consultation, must be full and effective, and must precede the actual transfer of the Judge. If consultation with the Chief Justice of India had not taken place, before transferring a Judge, it was held, that the transfer would be unconstitutional. All relevant data and necessary facts, must be provided to the Chief Justice of India, so that, he could arrive at a proper conclusion. Only after the above process was fully complied with, the consultation would be considered full and effective. It was felt, that the Chief Justice of India owed a duty, both to the President and to the Judge proposed to be transferred, to consider every relevant fact, before tendering his opinion to the President. Before giving his opinion the Chief Justice of India, could informally ascertain from the Judge, if there was any personal difficulty, or any humanitarian ground, on which his transfer should not be made. And only after having done so, the Chief Justice of India, could forward his opinion to the President.

Applying the above facets of the consultation process, with respect to the validity of the order dated 19.1.1981, by which K.B.N. Singh, CJ., was transferred, it was held, that the consultation process contemplated under Article 222, had been breached, rendering the order passed by the President invalid (paragraph 589).

V.D. Tulzapurkar, J.:

(i). Insofar as the question of “independence of the judiciary” is concerned, it was asserted that all the Judges, who had expressed their opinions in the matter, had emphasized, that the framers of the Constitution had taken the utmost pains, to secure the “independence of the Judges” of the higher judiciary. To support the above contention, several provisions of the Constitution were referred to. It was also pointed out, that the Attorney General representing the Union of India, had not dispute the 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 an undertaking was taken from them at the time of their initial appointment, that if and when a permanent judgeship of that Court was offered to them, they would not decline the same. And additionally, the Chief Justice of the Bombay High Court would require them to furnish a further undertaking, that if they decline to accept such permanent judgeship (though offered), or if they resigned from the office of the additional judgeship, they would not practice before the Bombay High Court, or any court or tribunal subordinate to it. Based on the aforesaid undertakings, the contention advanced was, that a legitimate expectancy, and an enforceable right to continue in office, came to be conferred on the additional Judges recruited from the Bar. It was felt, that it was impossible to construe Article 224(1), as conferring upon the appointing authority, any absolute power or discretion in the matter of appointment of additional Judges to a High Court (paragraphs 622 and 624).

(iii) All submissions made on behalf of the respondents, that granting extension to an additional Judge, or making him a permanent Judge was akin to a fresh appointment, were rejected. It was concluded, that extension to an additional Judge, or making him permanent, did not require re- determination of his suitability under Article 217(1) (paragraph 628).

(iv). While dealing with the question of continuation of an additional Judge, in situations where there were facts disclosing suspected misbehaviour and/or reported lack of integrity, the view expressed was, that while considering the question of continuation of a sitting additional Judge, on the expiry of his initial term, the test of suitability contemplated within the consultative process under Article 217(1) should not be evoked — at least till a proper mechanism, having a legal sanction, was provided for holding an inquiry, against the Judge concerned, with reference to any suspected misbehavior and/or lack of integrity (paragraph 628).

(v) On the scope of consideration, for continuation as a sitting additional Judge (on the expiry of a Judge’s initial term), it was opined, that the consultative process should be confined only to see, whether the preconditions mentioned in Article 224(1) existed or not, or whether, pendency of work justified continuation or not. It was held, that the test of suitability contemplated within the consultative process under Article 217(1), could not and should not, be resorted to (paragraph 629).

(vi). On the question of primacy of the Chief Justice of India, with reference to Article 217(1), the view expressed was, that the scheme envisaged therein, by implication and intent, clearly gave primacy to the advice tendered by the Chief Justice of India. It was however sought to be clarified, that giving primacy to the advice of the Chief Justice of India, in the matter of appointment of Judges of the High Court, should not be construed as a power to veto any proposal. And that, if the advice of the Chief Justice of India, had proceeded on extraneous or non germane considerations, the same would be subject to judicial review, just as the President’s final decision, if he were to disregard the advice of the Chief Justice of India, but for justified and cogent reasons. Interpreting Article 217(1) in the above manner, it was felt, would go a long way in preserving the “independence of the judiciary” (paragraph 632).

(vii) With regard to the scope of ‘consultation’, contemplated under Article 222(1), the conclusion(s) drawn by the majority view, in the Sankalchand Himatlal Sheth case5, were endorsed.

(viii). Insofar as, the issue of taking the consent of the concerned Judge, prior to his transfer is concerned, based on the decision rendered in the Sankalchand Himatlal Sheth case5, it was felt, that transfers could be made without obtaining the consent of the concerned Judge. And accordingly it was held, that non-consensual transfers, were within the purview of Article 222(1) (paragraphs 645 and 646).

(ix) With reference to the letter written by the Union Law Minister dated 18.3.1981, it was asserted, that even a policy transfer, without fixing the requisite mechanism or modality of procedure, would not ensure complete insulation against executive interference. Conversely it was felt, that a selective transfer in an appropriate case, for strictly objective reasons, and in public interest, could be non-punitive. It was therefore concluded, that each case of transfer, whether based on policy, or for individual reasons, would have to be judged on the facts and circumstances of its own, for deciding, whether it was punitive (paragraph 649).

(x) It was concluded, that by requiring a sitting additional Judge, to give his consent for being appointed to another High Court, virtually amounted to seeking his consent for his transfer from his own High Court to another High Court, falling within the ambit of Article 222(1). Referring to the judgment rendered in the Sankalchand Himatlal Sheth case5, it was felt, that the circular letter dated 18.3.1981 was an attempt to circumvent the safeguards and the stringent conditions expressed in the above judgment (paragraph 652). And further, that the circular letter clearly exuded an odour of executive dominance and arrogance, intended to have coercive effects on the minds of sitting additional Judges, by implying a threat to them, that if they did not furnish their consent to be shifted elsewhere, they would neither be continued nor made permanent. The above letter, was held to be amounting to, executive interference with the “independence of the judiciary”, and thus illegal, unconstitutional and void. Any consent obtained thereunder, was also held to be void (paragraph 654).

(xi) It was also concluded that, the advice of the Chief Justice of India, would be robbed of its real efficacy, in the face of such pre-obtained consent, and it would have to be regarded as having been issued malafide and for a collateral purpose, namely, to bypass Article 222(1) and to confront the Chief Justice of India, with a fait accompli, and as such, the same was liable to be declared as illegal and unconstitutional (paragraph 655).

(xii) The above circular letter dated 18.3.1981, was also held to be violative of Article 14, since invidious discrimination was writ large on the face of the circular letter. For this additional reason, the letter of the Union Law Minister dated 18.3.1981, it was felt, was liable to be struck down (paragraphs 659 and 660).

(xiii) On the subject of non-continuation of S.N. Kumar, J., it was held, that it was abundantly clear from the correspondence and notings, that further details and concrete facts and materials relating to his integrity, though specifically asked for by the Chief Justice of India, were not furnished, and the letter dated 7.5.1981, which contained such details and concrete facts and materials, were kept away from him, leading to the inference, that facts which were taken into consideration by the Union Law Minister and the Chief Justice of Delhi High Court (which provided the basis to the appointing authority, not to extend the appointment of S.N. Kumar, J.), were not placed before the Chief Justice of India, and therefore, there was neither full nor effective consultation, between the President and the Chief Justice of India, as required by Article 217(1). It was accordingly concluded, that the decision against S.N. Kumar, J., stood vitiated by legal mala fides, and as such, was liable to be held void and non est, and his case had to be sent back to the President, for reconsideration and passing appropriate orders, after the requisite consultation was undertaken afresh (paragraphs 664 and 666 to 668).

(xiv) With respect to the validity of the transfer of K.B.N. Singh, CJ., it was felt, that in the absence of any connivance or complicity, since no unfair play was involved in the procedure followed by the Chief Justice of India, it was liable to be concluded, that the impugned transfer had been made in public interest, and not by way of punishment. The above transfer was accordingly held to be valid (paragraph 680).

D.A. Desai, J.:

(i) After noticing, that the President under Article 74, acts on the advice of the Council of Ministers, and that, while acting under Article 217(3), the President performs functions of grave importance. It was felt, that it could not be said that while exercising the power of appointment of Judges to the higher judiciary, the President was performing either judicial or quasi judicial functions. The function of appointment of Judges was declared as an executive function, and as such, it was held, that Article 74 would come into operation. And therefore concluded, that the President would have to act, on the advice of the Council of Ministers, in the matter of appointment of Judges under Article 217 (paragraph 715). And therefore it came to be held, that the ultimate power of appointment under Article 217, “unquestionably” rested with the President.

(ii) It was pointed out, that before exercising the power of appointment of a Judge (other than the Chief Justice of a High Court), the President was under a constitutional obligation, to consult the three constitutional functionaries, mentioned in Article 217 (paragraphs 718 and 719). And that the aforementioned three constitutional functionaries were at par with one another. They were coordinate authorities, without any relative hierarchy, and as such, the opinion of the Chief Justice of India could not be given primacy on the issue of appointment of Judges of High Courts (paragraphs 724, 726 and 728).

(iii) It was also concluded, that on the expiry of the original term of appointment of an additional Judge under Article 224, the continuation of the concerned Judge, would envisage the re-adoption of the procedure contained in Article 217 (paragraphs 736 and 745).

(iv) It was felt, that there was no gainsaying, that a practice which had been followed for over 25 years, namely, that an additional Judge was always considered for a fresh tenure, if there was no permanent vacancy, and if there was such a vacancy, he was considered for appointment as a permanent Judge. It was held, that the contention of the Attorney General, that such additional Judge had no priority, preference, weightage or right to be considered, and that, he was on par with any other person, who could be brought from the market, would amount to disregarding the constitutional scheme, and must be rejected (paragraph 759). It was held, that when a Judge was appointed for a term of two years, as an additional Judge, it was sufficient to contemplate, that his appointment was not as a permanent Judge. And therefore, if a permanent vacancy arose, the additional Judge could not enforce his appointment against the permanent vacancy (paragraph 762).

(v) It was also concluded, that the term of an additional Judge could not be extended for three months or six months, since such short term appointments, were wholly inconsistent and contrary to the clear intendment of Article 224, and also, unbecoming of the dignity of a High Court Judge (paragraphs 763 and 764).

(vi) On the subject of extension of the term of an additional Judge, it was felt, that it was not open to the constitutional functionaries, to sit tight over a proposal, without expressing their opinion on the merits of the proposal, and by sheer inaction, to kill a proposal. It was accordingly opined, that when the term of an additional Judge was about to expire, it was obligatory on the Chief Justice of the High Court, to initiate the proposal for completing the process of consultation, before the period of initial appointment expired (paragraph 772).

(vii) With reference to the non-extension of the tenure of S.N. Kumar, J., it was felt, that when two high constitutional functionaries, namely, the Chief Justice of the Delhi High Court and the Chief Justice of India, had met with a specific reference to his doubtful integrity, the act of not showing the letter dated 7.5.1981 to the Chief Justice of India, would not detract from the fullness of the consultation, as required by Article 217.

Accordingly, it was held, that there was a full and effective consultation, on all relevant points, including those set out in the letter dated 7.5.1981. And the claim of the concerned Judge for continuation, was liable to be rejected. It was however suggested, that the Government of India could even now, show the letter dated 7.5.1981 to the Chief Justice of India, and request him to give his comments. After receiving his comments, the Government of India could decide afresh, whether S.N. Kumar, J., should be re-appointed as an additional Judge of the Delhi High Court.

It was however clarified, that the proposed reconsideration, should not be treated as a direction, but a mere suggestion.

(viii) On the question, whether the consent of the concerned Judge should be obtained prior to his transfer under Article 222(1), it was concluded, that the requirement of seeking a prior consent, as a prerequisite for exercising the power of transfer under Article 222(1), deserved to be rejected (paragraph 813). It was however observed, that the above power of transfer under Article 222(1) could not be exercised in the absence of public interest, merely on the basis of whim, caprice or fancy of the executive, or its desire to bend a Judge to its own way of thinking.

Three safeguards, namely, full and effective consultation with the Chief Justice of India, the exercise of power only aimed at public interest, and judicial review — in case the power was exercised contrary to the mandate of law, were suggested to insulate the “independence of the judiciary”, against an attempt by the executive to control it (paragraphs 813 to 815).

(ix) It was also concluded, that the transfer of an individual Judge, for something improper in his behavior, or conduct, would certainly cast a slur or attach a stigma, and would leave an indelible mark on his character.

Even the High Court to which he was transferred would shun him, and the consumers of justice would have little or no faith in his judicial integrity. Accordingly it was concluded, that a transfer on account of any complaint or grievance against a Judge, referable to his conduct or behaviour, was impermissible under Article 222(1).

(x) On the question of transfer of K.B.N. Singh, CJ., it was felt, that his order of transfer was vitiated for want of effective consultation, and his selective transfer would cast a slur or stigma on him. It was felt, that the transfer did not appear to be in public interest. The order of transfer dated 20.12.1980 was accordingly, considered to be vitiated, and as such, was declared void.

R.S. Pathak, J. (as he then was):

(i) With reference to the issue of “independence of the judiciary”, it was observed, that while the administration of justice drew its legal sanction from the Constitution, its credibility rested in the faith of the people. Indispensable to such faith, was the “independence of the judiciary”. An independent and impartial judiciary, it was felt, gives character and content to the constitutional milieu (paragraph 874).

(ii) On the subject of appointment of Judges to High Courts, it was essential for the President, to consult the Governor of the State, the Chief Justice of India and the Chief Justice of the concerned High Court.

It was pointed out, that three distinct constitutional functionaries were involved in the consultative process, and each had a distinct role to play (paragraph 887). In a case where the Chief Justice of the High Court and the Chief Justice of India, were agreed on a recommendation, it was within reason to hold, that the President would ordinarily accept the recommendation, unless there were strong and cogent reasons, for not doing so (paragraph 889). It was however pointed out, that the President was not always obliged to agree, with a recommendation, wherein the Chief Justice of the High Court and the Chief Justice of India, had concurred. In this behalf, it was observed, that even though, during the Constituent Assembly debates, a proposal was made, that the appointment of a Judge should require the “concurrence” of the Chief Justice of India, and the above proposal was endorsed by the Law Commission of India, yet the proposal had fallen through, and as such, the Constitution as it presently exists, contemplated “consultation” and not “concurrence” (paragraph 890).

(iii) On the question, as to whether the Chief Justice of India had primacy, over the recommendation made by the Chief Justice of the High Court, it was felt, that the Chief Justice of India did not sit in appellate judgment, over the advice tendered by the Chief Justice of the High Court. It was pointed out, that the advice tendered by the Chief Justice of India, emerged after taking into account, not only the primary material before him, but also, the assessment made by the Chief Justice of the High Court. And therefore, when he rendered his advice, the assessment of the Chief Justice of the High Court, must be deemed to have been considered by him. It was pointed out, that from the constitutional scheme, it appeared, that in matters concerning the High Courts, there was a close consultative relationship, between the President and the Chief Justice of India. In that capacity, the Chief Justice of India functioned, as a constitutional check, on the exercise of arbitrary power, and was the protector of the “independence of the judiciary” (paragraph 891).

(iv) On the subject of appointment of Judges to the High Courts, it was concluded, that the appointment of an additional Judge, like the appointment of a permanent Judge, must be made in the manner prescribed in Article 217(1). Accordingly, it was felt, that there was no reason to suspect, that a person found fit for appointment as an additional Judge, and had already gained proficiency and experience, would not be appointed as a Judge for a further period, in order that the work may be disposed of (paragraph 893).

(v) It was also opined, that the judiciary by judicial verdict, could not decide, how many permanent Judges were required for a High Court. And if a Court was not competent to do that, it could not issue a direction to the Government, that additional Judges should be appointed as permanent Judges (paragraph 895). Accordingly it was felt, that there was no doubt whatever, that the provision of Article 217(1) would come into play, when an additional Judge was to be considered for further appointment as an additional Judge, or was to be considered for appointment as a permanent Judge (paragraph 897).

(vi) With reference to the non-continuation of S.N. Kumar, J., it was pointed out, that the allegations contained in the letter dated 7.5.1981 strongly influenced the decision of the Government. Since the aforesaid letter was not brought to the notice of the Chief Justice of India, it was inevitable to conclude, that the process of consultation with the Chief Justice of India was not full and effective, and the withholding of important and relevant material from the Chief Justice of India, vitiated the process. It was accordingly held, that the non-continuation of the term of S.N. Kumar, J., was in violation of the mandatory constitutional requirements contained in Article 217(1). It was felt, that the issue pertaining to the continuation of S.N. Kumar, J., needed to be reconsidered, and a decision needed to be taken, only after full and effective consultation (paragraph 904).

(vii) On the issue of transfer of Judges under Article 222(1), it was concluded, that the consent of the concerned Judge was not one of the mandated requirements (paragraph 913). It was pointed out, that the transfer of a Judge, could be made only in public interest, and that no Judge could be transferred, on the ground of misbehaviour or incapacity.

The question of invoking Article 222(1), for purposes of punishing a Judge, was clearly ruled out (paragraphs 917 and 918). It was clarified, that the Judge proposed to be transferred, did not have a right of hearing. And that, the scope and degree of inquiry by the Chief Justice of India, fell within his exclusive discretion. All that was necessary was, that the Judge should know why his transfer was proposed, so that he would be able to acquaint the Chief Justice of India, why he should not be so transferred. It was further clarified, that the process of consultation envisaged under Article 222(1) required, that all the material in possession of the President must be placed before the Chief Justice of India (paragraph 919).

(viii) It was held that, it was open to the Judge, who was subjected to transfer, to seek judicial review, by contesting his transfer on the ground that it violated Article 222(1) (paragraph 920).

(ix) It was also felt, that the power to transfer a Judge from one High Court to another, could constitute a threat, to the sense of independence and impartiality of the Judge, and accordingly, it was held, that the said power 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 was concluded, that the considerations on which the transfer had been made, could be regarded as falling within the expression “public interest”, and therefore, the order of transfer did not violate Article 222(1).

(xi) Insofar as the validity of the letter of the Union Law Minister dated 18.3.1981 is concerned, it was observed, that neither the proposal nor the consent given thereto, had any legal status. In the above view, it was held, that the circular letter could not be acted upon, and any consent given pursuant thereto, was not binding.

E.S. Venkataramiah, J. (as he then was):

(i) With reference to the “independence of the judiciary”, it was opined, that the same was one of the central values on which the Constitution was based. It was pointed out, that in all countries, where the rule of law prevailed, and the power to adjudicate upon disputes between a man and a man, and a man and the State, and a State and another State, and a State and the Centre, was entrusted to a judicial body, it was natural that such body should be assigned a status, free from capricious or whimsical interference from outside, so that it could act, without fear and in consonance with judicial conscience (paragraph 1068).

(ii) Referring to Article 217(1) it was asserted, that each of the three functionaries mentioned therein, had to be consulted before a Judge of a High Court could be appointed. It was pointed out, that each of the consultees, had a distinct and separate role to play. Given the distinct roles assigned to them, which may to some extent be overlapping, it could not be said, that the Chief Justice of India occupied a position of primacy, amongst the three consultees (paragraph 1019).

(iii) The power of appointment of a Judge of a High Court was considered to be an executive power (paragraph 1023). Accordingly, while making an appointment of a High Court Judge, the President was bound to act, on the advice of his Council of Ministers, and at the same time, giving due regard to the opinions expressed by those who were required to be consulted under Article 217(1). Despite the above, it was felt, that there was no scope for holding, that either the Council of Ministers could not advise the President, or the opinion of the Chief Justice of India was binding on the President. Although, it was felt, that such opinion should be given due respect and regard (paragraph 1032). It was held, that the above method was intrinsic in the matter of appointment of Judges, as in that way, Judges may be called people’s Judges. If the appointments of Judges were to be made on the basis of the recommendations of Judges only, then they will be Judges’ Judges, and such appointments may not fit into the scheme of popular democracy (paragraph 1042).

(iv) It was held, that the Constitution did not prescribe different modes of appointment for permanent Judges, additional Judges, or acting Judges.

All of them were required to be appointed by the same process, namely, in the manner contemplated under Article 217(1) (paragraph 1061). The appointment of almost all High Court Judges initially as additional Judges under Article 224(1), and later on as permanent Judges under Article 217(1), was not conducive to the independence of judiciary (paragraph 1067). It was held, that the Constitution did not confer any right upon an additional Judge, to claim as of right, that he should be appointed again, either as a permanent Judge, or as an additional Judge. Accordingly, it was held, that there was no such enforceable right (paragraph 1074).

(v) Despite the above, it was observed, that in the absence of cogent reasons for not appointing an additional Judge, the appointment of somebody else in his place, would be an unreasonable and a perverse act, which would entitle the additional Judge, to move a Court for appropriate relief, in the peculiar circumstances (paragraph 1086). It was held, that having regard to the high office, to which the appointment was made, and the association of high dignitaries, who had to be consulted before any such appointment was made, the application of principles of natural justice, as of right, was ruled out (paragraph 1087).

(vi) With reference to Article 222, it was opined, that the consent of the Judge being transferred, was not a prerequisite before passing an order of transfer (paragraphs 1097 and 1099). It was held, that the transfer of a Judge of a High Court to another High Court, could not be construed as a fresh appointment, in the High Court to which the Judge was transferred.

An order of transfer made under Article 222, it was held, was liable to be struck down by a Court, if it could be shown, that it had been made for an extraneous reason, i.e., on a ground falling outside the scope of Article 222. Under Article 222, a Judge could be transferred, when the transfer served public interest. It was held, that the President had no power to transfer a High Court Judge, for reasons not bearing on public interest, or arising out of whim, caprice or fancy of the executive, or because of the executive desire to bend a Judge to its own way of thinking (paragraphs 1097, 1099 and 1132).

(vii) It was held, that Article 222 cannot be resorted to on the ground of alleged misbehaviour or incapacity of a Judge (paragraph 1139).

(viii) Based on the opinion expressed by several expert bodies, it was opined, that any transfer of a Judge of a High Court under Article 222, in order to implement the policy of appointing Chief Justice of every High Court from outside the concerned State, and of having at least 1/3rd of Judges of every High Court from outside the State, would not be unconstitutional (paragraph 1164).

(ix) The letter of the Union Minister of Law dated 18.3.1981, was found to be valid. All contentions raised against the validity thereof were rejected (paragraph 1239).

(x) The decision of the President not to issue a fresh order of appointment to S.N. Kumar, J., on the expiry of his term as an additional Judge of the Delhi High Court, was held to be justified (paragraph 1128).

(xi) The transfer of K.B.N. Singh, CJ., was held to have been made strictly in consonance with the procedure indicated in the Sankalchand Himatlal Sheth case5. It was accordingly concluded, that there was no ground to hold, that the above transfer was not considered by the Chief Justice of India, in a fair and reasonable way. On the facts and circumstances of the case, it was concluded that it was not possible to hold that the above transfer was either illegal or void (paragraphs 1252 and 1257).

The Second Judges Case – (1993) 4 SCC 441:

17. For the purpose of adjudication of the present issue, namely, whether the judgment rendered by this Court in the Second Judges case needs to be re-examined, it is not necessary to delineate the views expressed by the individual Judges, as the conclusions drawn by them are per se not subject matter of challenge. The limited challenge being, that vital aspects of the matter, which needed to have been considered were not canvassed, and therefore, could not be taken into consideration in the process of decision making. In the above perspective, we consider it just and proper to extract hereunder, only the conclusions drawn by the majority view:

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

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

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

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

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

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

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

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

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

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

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

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

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

(14) The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365:

AIR 1982 SC 149, in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us.” The Third Judges case – (1998) 7 SCC 739:

18. For exactly the same reasons as have been noticed with reference to the Second Judges case, it is not necessary to dwell into the unanimous view expressed in the Third Judges case. The concession of the Attorney General for India, as was expressly recorded in paragraph 11 of the Third Judges case, needs to be extracted to highlight the fact, that the then Attorney General had conceded, that the opinion recorded by the majority in the Second Judges case, had been accepted by the Union of India and, as such, would be binding on it. Paragraph 11 is accordingly reproduced hereunder:

“11. We record at the outset the statements of the Attorney General that (1) the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case (1993) 4 SCC 441 and that (2) the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference.”

19. It is likewise necessary to extract herein, only the final summary of conclusions expressed in the Third Judges case, which are placed below:

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

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

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

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

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

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

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

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

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

20. It was the contention of the learned Attorney General, that in the submissions advanced at the hands of the learned counsel representing the petitioners, for adjudication of the merits of the controversy, emphatic reliance had been placed on the judgments rendered by this Court in the Second and Third Judges cases. It was the contention of the learned Attorney General, that the conclusions drawn in the above judgments, needed a reconsideration by way of a fresh scrutiny, to determine, whether the conclusions recorded therein, could withstand the original provisions of the Constitution, viewed in the background of the debates in the Constituent Assembly.

21. In order to record the facts truthfully, it was emphasized, that the submissions advanced by him, could not be canvassed on behalf of the Union of India as in the Third Judges case, the Union had consciously accepted as binding the judgment rendered in the Second Judges case.

Despite the above, the Attorney General was emphatic, that the Union of India could not be debarred from seeking reconsideration of the judgment rendered by this Court in the Second Judges case. In order to dissuade the learned Attorney General from the course he insisted to pursue, it was suggested, that the determination by this Court in the Second Judges case would not prejudice the claim of the Union of India, if the Union could establish, that the “basic structure” of the Constitution, namely, the “independence of the judiciary” would not stand compromised by the Constitution (99th Amendment) Act. Despite the instant suggestion, the Attorney General pleaded, that he be allowed to establish, that the determination rendered by the nine-Judge Bench in the Second Judges case, was not sustainable in law. At his insistence, we allowed him to advance his submissions. Needless to mention, that if the Attorney General was successful in persuading us, that the said judgment did not prima facie lay down the correct legal/constitutional position, the matter would have to be examined by a Constitution Bench, with a strength of nine or more Judges of this Court, only if, we would additionally uphold the challenge to the impugned constitutional amendment, and strike down the same, failing which the new regime would replace the erstwhile system.

22. First and foremost, our attention was drawn to Article 124 of the Constitution, as it existed, prior to the present amendment. It was submitted that Article 124 contemplated, that the Supreme Court would comprise of the Chief Justice of India, and not more than seven other Judges (unless, the Parliament by law, prescribed a larger number). It was submitted, that clause (2) of Article 124 vested the power of appointment of Judges of the Supreme Court, with the President. The proviso under Article 124(2) postulated a mandatory “consultation” with the Chief Justice of India. Appointments contemplated under Article 124, also required a non- mandatory “consultation” with such other Judges of the Supreme Court and High Courts, as the President may deem necessary. It was accordingly submitted, that the consultation contemplated under Article 124(2), at the hands of the President was wide enough to include, not only the collegium of Judges, in terms of the judgment rendered by this Court in the Second Judges case, but each and every single Judge on the strength of the Supreme Court, and also the Judges of the High Courts of the States, as the President may choose to consult. It was submitted, that only a limited role assigned to the Chief Justice of India, had been altered by the judgment in the Second Judges case, into an all pervasive decision taken by the Chief Justice of India, in consultation with a collegium of Judges. It was pointed out, that the term “consultation” expressed in Article 124 with reference to the Chief Justice of India, had been interpreted to mean “concurrence”. And accordingly, the President has been held to be bound, by the recommendation made to him, by the Chief Justice of India and his collegium of Judges. It was contended, that the above determination, was wholly extraneous to the plain reading of the language engaged in Article 124 (in its original format). It was asserted, that there was never any question of “concurrence”, as Article 124 merely contemplated “consultation”. It was contended, that the above “consultation” had been made mandatory and binding, on the President even in a situation where, the opinion expressed by the Chief Justice and the collegium of Judges, was not acceptable to the President. It was asserted, that it was not understandable, how this addition came to be made to the plain and simple language engaged in framing Article 124. It was submitted, that once primacy is given to the Chief Justice of India (i.e., to the collegium of Judges, contemplated under the Second and Third Judges cases), then there was an implied exclusion of “consultation”, with the other Judges of the Supreme Court, and also, with the Judges of the High Courts, even though, there was an express provision, empowering the President to make up his mind, after consulting the other Judges of the Supreme Court and the Judges of the High Courts, as he may choose.

23. The Attorney General further contended, that the interpretation placed on Article 124 in the Second Judges case, was an absolutely unsustainable interpretation, specially when examined, with reference to the following illustration. That even if all the Judges of the Supreme Court, recommend a name, to which the Chief Justice of India alone, was not agreeable, the said recommendee could not be appointed as a Judge. This illustration, it was submitted, placed absolute power in the hands of one person – the Chief Justice of India.

24. The learned Attorney General, then invited the Court’s attention to Article 125, so as to contend, that the salary payable to the Judges of the Supreme Court has to be determined by the Parliament by law, and until such determination was made, the emoluments payable to a Judge would be such, as were specified in the Second Schedule. It was submitted, that the Parliament was given an express role to determine even the salary of Judges, which is a condition of service of the Judges of the Supreme Court.

He also pointed to Article 126, which contemplates, the appointment of one of the Judges of the Supreme Court, to discharge the functions of Chief Justice of India, on account of his absence or otherwise, or when the Chief Justice of India, was unable to perform the duties of his office. The Court’s attention was also drawn to Article 127, to point out, that in a situation where the available Judges of the Supreme Court, could not satisfy the quorum of the Bench, required to adjudicate upon a controversy, the Chief Justice of India could continue the proceedings of the case, by including therein, a Judge of a High Court (who was qualified for appointment as a Judge of the Supreme Court), in order to make up the quorum, with the previous consent of the President of India. It was submitted, that the role of the President of India was manifestly inter- twined with administration of justice, by allowing the President to appoint a Judge of the High Court, as a Judge of the Supreme Court on ‘ad hoc’ basis. Reference was then made to Article 128, whereby the Chief Justice of India, with the previous approval of the President, could require a retired Judge of the Supreme Court, or a person who has held office as a Judge of a High Court, and was duly qualified for appointment as a Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court. It was pointed out, that this was yet another instance, where the President’s noticeable role in the functioning of the higher judiciary, was contemplated by the Constitution itself. The Court’s attention was then drawn to Article 130, whereunder, even though the seat of the Supreme Court was to be at Delhi, it could be moved to any other place in India, if so desired by the Chief Justice of India, with the approval of the President.

Yet again, depicting the active role assigned to the President, in the functioning of the higher judiciary. Likewise, the Court’s attention was invited to Articles 133 and 134, providing for an appellate remedy in civil and criminal matters respectively, to the Supreme Court, leaving it open to the Parliament to vary the scope of the Courts’ appellate jurisdiction.

Insofar as Article 137 is concerned, it was pointed out, that the power of review of the judgments or orders passed by the Supreme Court, was subject to the provisions of any law made by the Parliament, or any rules that may be made under Article 145. With reference to Article 138, it was contended, that the jurisdiction of the Supreme Court, could be extended to matters falling in the Union List, as the Parliament may choose to confer.

Similar reference was made to clause (2) of Article 138, wherein further jurisdiction could be entrusted to the Supreme Court, when agreed to, by the Government of India and by any State Government, if the Parliament by law so provides. Based on the above, it was contended, that Article 138 was yet another provision, which indicated a participatory role of the Parliament, in the activities of the Supreme Court. Likewise, this Court’s attention was drawn to Article 139, whereby the Parliament could confer, by law, the power to issue directions, orders or writs, in addition to the framework demarcated through Article 32(2). This, according to the learned Attorney General, indicated another participatory role of the Parliament in the activities of the Supreme Court. Pointing to Article 140, it was submitted, that the Parliament could by law confer upon the Supreme Court supplemental powers, in addition to the powers vested with it by the Constitution, as may appear to the Parliament to be necessary 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 the Parliament, in the activities of the Supreme Court. Having read out Article 142(2), it was asserted, that even on the subject of securing the attendance of any person, and the discovery or production of any documents, or the investigation or punishment of any contempt of itself, the jurisdiction of the Supreme Court was subject to the law made by the Parliament. The learned Attorney General, also referred to Article 145, whereunder, it was open to the Parliament to enact law framed by the Parliament, for regulating generally the practice and procedure of the Supreme Court. In the absence of any such law, the Supreme Court had the liberty to make rules for regulating the practice and procedure of the Court, with the approval of the President. It was submitted, that even on elementary issues like procedure, the Parliament and/or the President were assigned a role by the Constitution, in activities strictly in the judicial domain. With reference to the activities of the Supreme Court, the Court’s attention was also drawn to Article 146, which envisages that appointments of officers and servants of the Supreme Court, were to be made by the Chief Justice of India. It was pointed out, that the authority conferred under Article 146, was subservient to the right of the President, to frame rules requiring future appointments to any office connected to the Supreme Court, to be made, only in consultation with the Union Pubic Service Commission.

The aforesaid right of appointing officers and servants to the Supreme Court, is also clearly subservient to the right of the Parliament, to make provisions by enacting law on the above subject. In the absence of a legislation, at the hands of the Parliament, the conditions of service of officers and servants of the Supreme Court would be such, as may be prescribed by rules framed, by the Chief Justice of India. The rules framed by the Chief Justice, are subject to the approval by the President, with reference to salaries, allowances, leave and pension.

25. With reference to the appointments made to the High Courts, the Court’s attention was invited to Article 217, whereunder, the authority of appointing a Judge to a High Court was vested with the President. The President alone, was authorized to make such appointments, after “consultation” with the Chief Justice of India, the Governor of the State, and the Chief Justice of the concerned High Court. The Court’s attention was also drawn to Article 221, whereunder, the power to determine the salary payable to a Judge, was to be determined by law to be enacted by the Parliament. Till any such law was framed by the Parliament, High Court Judges would be entitled to such salaries, as were specified in the Second Schedule. The allowances payable to Judges of the High Court, as also, the right in respect of leave of absence and pension, were also left to the wisdom of Parliament, to be determined by law. And until such determination, Judges of the High Courts were entitled to allowances and rights, as were indicated in the Second Schedule. The Court’s attention was also drawn to Article 222, wherein, the President was authorized, after “consulting” the Chief Justice of India, to transfer a Judge from one High Court to another. Inviting the Court’s attention to the provisions referred to in the foregoing two paragraphs contained in Part V, Chapter IV – The Union Judiciary, and Part VI, Chapter V – The High Courts in the States, it was asserted, that the role of the President, and also, that of the Parliament was thoughtfully interwoven in various salient aspects, pertaining to the higher judiciary. Exclusion of the executive and the legislature, in the manner expressed through the Second Judges case, in the matter of appointment of Judges to the higher judiciary, as also, transfer of Judges and Chief Justices of one High Court to another, was clearly against the spirit of the Constitution.

26. It was submitted, that the method of appointment of Judges to the higher judiciary, was not the “be all” or the “end all”, of the independence of the judiciary. The question of independence of the judiciary would arise, with reference to a Judge, only after his appointment as a Judge of the higher judiciary. It was submitted, that this Court had repeatedly placed reliance on the debates in the Constituent Assembly, so as to bring out the intention of the framers of the Constitution, with reference to constitutional provisions. In this behalf, he placed reliance on T.M.A. Pai Foundation v. State of Karnataka[6], Re:

Special Reference No.1 of 2002[7], and also on S.R. Chaudhuri v. State of Punjab[8]. The following observations in the last cited judgment were highlighted:

“33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member’s inclusion in the Cabinet was considered to be a “privilege” that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the “privilege” to extend “only” for six months.” For the same purpose, he referred to Indra 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 the executive while making the division or sub-classification has not properly applied its mind to various factors, indicated above which may ultimately defeat the very purpose of the division or sub-classification. In that view, para 2(i) not only becomes constitutionally invalid but also suffers from the vice of non-application of mind and arbitrariness.

xxx xxx xxx 772. We may now turn to Constituent Assembly debates with a view to ascertain the original intent underlying the use of words “backward class of citizens”. At the outset we must clarify that we are not taking these debates or even the speeches of Dr Ambedkar as conclusive on the meaning of the expression “backward classes”. We are referring to these debates as furnishing the context in which and the objective to achieve which this phrase was put in clause (4). We are aware that what is said during these debates is not conclusive or binding upon the Court because several members may have expressed several views, all of which may not be reflected in the provision finally enacted. The speech of Dr Ambedkar on this aspect, however, stands on a different footing. He was not only the Chairman of the Drafting Committee which inserted the expression “backward” in draft Article 10(3) [it was not there in the original draft Article 10(3)], he was virtually piloting the draft Article. In his speech, he explains the reason behind draft clause (3) as also the reason for which the Drafting Committee added the expression “backward” in the clause. In this situation, we fail to understand how can anyone ignore his speech while trying to ascertain the meaning of the said expression. That the debates in Constituent Assembly can be relied upon as an aid to interpretation of a constitutional provision is borne out by a series of decisions of this Court. [See Madhu Limaye, in re[1968] INSC 320; , AIR 1969 SC 1014, Golak Nath v. State of Punjab[1967] INSC 45; , AIR 1967 SC 1643 (Subba Rao, CJ); opinion of Sikri, CJ, in Union of India v. H.S. Dhillon [1971] INSC 292; (1971) 2 SCC 779 and the several opinions in Kesavananda Bharati (1973) 4 SCC 225, where the relevance of these debates is pointed out, emphasing at the same time, the extent to which and the purpose for which they can be referred to.] Since the expression “backward” or “backward class of citizens” is not defined in the Constitution, reference to such debates is permissible to ascertain, at any rate, the context, background and objective behind them. Particularly, where the Court wants to ascertain the ‘original intent’ such reference may be unavoidable.” Reliance was also placed on Kesavananda Bharati v. State of Kerala[10], and this Court’s attention was invited to the following:

“1088. Before I refer to the proceedings of the Constituent Assembly, I must first consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing these provisions. The Advocate-General of Maharashtra says until the decision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and others v.

Union of India[1970] INSC 253; , (1971) 1 SCC 85 – commonly known as Privy Purses case – debates and proceedings were held not to be admissible. Nonetheless counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate [pic]their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and others v. Bombay Company Ltd.[1952] INSC 42; , AIR 1952 SC 366, the Golaknath case (supra), the Privy Purses case (supra), and Union of India v. H.S. Dhillon, [1971] INSC 292; (1971) 2 SCC 779, there are dicta against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath case (supra), as well as Privy Purses case (supra), the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental Rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are not admissible except when the meaning was ambiguous or where the meaning was clear for further support of the conclusion arrived at. In either case they were looked into. Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention? What is the rationale for treating them as forbidden or forbidding material. The Court in a constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professional bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr Ambedkar. The assembly thereupon constituted three Committees: (1) Union Powers Committee; (2) Provincial Powers Committee;

and (3) Committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner in which they met any criticism, the resultant decisions taken thereupon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a [pic]Constituent Assembly have no such partisan nuances and their only concern is to give the national a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of forces which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and what attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings are examined from this point of view, do they throw any light on or support the view taken by me?” For the same proposition, reliance was also placed on Samsher Singh v.

State of Punjab[11], and on Manoj Narula v. Union of India[12].

27. Having emphasized, that Constituent Assembly debates, had been adopted as a means to understand the true intent and import of the provisions of the Constitution, reference was made in extenso to the Constituent Assembly debates, with reference to the provisions (more particularly, to Article 124) which are subject matter of the present consideration. It was pointed out, that after the constitution of the Constituent Assembly, the issue of judicial appointments and salaries was taken up by an ad hoc committee on the Supreme Court. The committee comprised of S. Varadachariar (a former Judge of the Federal Court), B.L.

Mitter (a former Advocate General of the Federal Court), in addition to some noted jurists – Alladi Krishnaswamy Ayyar, K.M. Munshi and B.N. Rau (Constitutional Adviser to the Constituent Assembly of India). The ad hoc committee presented its report to the Constituent Assembly on 21.5.1947.

With reference to judicial independence, it modified the consultative proposal suggested in the Sapru Committee report, by recommending a panel of 11 persons, nominated by the President, in consultation with the Chief Justice of India. Alternatively, it was suggested, that the panel would recommend three candidates, and the President in consultation with the Chief Justice of India, would choose one of the three. It was suggested, that the panel would take its decision(s) by 2/3rd majority. To ensure independence, it was recommended, that the panel should have a tenure of ten years. Based on the above report, it was submitted, that the proposal suggested a wider participation of a collegium of Judges, politicians and law officers, in addition to the President and the Chief Justice of India, in the matter of appointment of Judges to the higher judiciary. Learned Attorney General went on to inform the Court, that on the basis of the above report, B.N. Rau prepared a memorandum dated 30.5.1947, wherein he made his own suggestions. The above suggestions related to Judges of the Supreme Court, as also, of High Courts. The Court was also informed, that the Union Constitution Committee presented its report to the Constituent Assembly on 4.7.1947, also pertaining to appointments to the higher judiciary. Yet another memorandum, on the Principles of a Model Provincial Constitution was prepared by the Constitutional Adviser on 13.5.1947, relating to appointments to the higher judiciary, which was adopted by the Provincial Constitution Committee. Reliance was placed by the Attorney General, 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 of the High Court. This is considered to be very important by the committee and as the judiciary should be above suspicion and should be above party influences, it was agreed that the appointment of High Court judges should be made by the President of the Union in consultation with the Chief Justice of the Supreme Court, the Chief Justice of the Provincial High Court and the Governor with the advice of the Ministry of the Province concerned. So there are many checks provided to ensure fair appointments to the High Court.” The Court was informed, that the first draft of the new constitution prepared by B.N. Rau was presented to the Constituent Assembly in October 1947, wherein, it was expressed that Judges of the Supreme Court, would be appointed by the President, in consultation with the sitting Judges of the Supreme Court, and Judges of High Courts in consultation with the Chief Justice of India, except in the matter of appointment of the Chief Justice of India himself. It was suggested, that this was the immediate precursor to Article 124(2) of the Constitution, as it was originally framed.

28. It was pointed out, that in the above report prepared by the Constitutional Adviser, the following passage related to the judiciary:

“Regarding the removal of judges, he (Justice Frankfurter, Judge, Supreme Court of the United States of America) drew attention to a provision which had just been proposed in New York State – the provision has since been approved and which had the support of most of the judges and lawyers in this country. The provision is reproduced below:

9-a (1) A judge of the court of appeals, a justice of the supreme court, a judge of the court of claims… (types of judges) may be removed or retired also by a court on the judiciary. The court shall be composed of the chief judge of the court of appeals, the senior associate judges of the court of appeals and one justice of the appellate division in each department designated by concurrence of a majority of the justices of such appellate division… (2) No judicial officer shall be removed by virtue of this section except for cause or be retired except for mental or physical disability preventing the proper performance of his judicial duties, nor unless he shall have been served with a statement of the charges alleged for his removal or the grounds for his retirement, and shall have had an opportunity to be heard… (3) The trial of charges for the removal of a judicial officer or of the grounds for his retirement shall be held before a court on the judiciary… (4) The chief judge of the court of appeals may convene the court on the judiciary upon his own motion and shall convene the court upon written request by the governor or by the presiding justice of any appellate division…” It was submitted, that the above suggestion of vesting the power of impeachment, in-house by the judiciary itself, as recommended by Justice Frankfurter, was rejected. It was pointed out, that the second draft of the Constitution was placed before the Constituent Assembly on 21.2.1948.

Articles 103 and 193 of the above draft, pertained to appointments of Judges to the Supreme Court and High Courts. It was submitted, that several public comments were received, with reference to the second draft.

In this behalf, a memorandum was also received, from the Judges of the Federal Court and the Chief Justices of the High Courts which, inter alia, expressed as under:

“It seems desirable to insert a provision in these articles (Draft Articles 103(2) and 193(2) to the effect that no person should be appointed a judge of the Supreme Court or of a High Court who has at any time accepted the post of a Minister in the Union of India or in any State. This is intended to prevent a person who has accepted office of a Minister from exercising his influence in order to become a judge at any time. It is the unanimous view of the judges that a member of the Indian Civil Service should not be a permanent Chief Justice of any High Court. Suitable provision should be made in the article for this.” It was submitted, that in response to the above memorandum, B.N. Rau made the following observations:

“It is unnecessary to put these prohibitions into the Constitution. The Attorney-General in England is invariably one of the Ministers of the Crown and often even a Cabinet Minister; he is often appointed a judge afterwards (The Lord Chancellor is, of course, both a Cabinet Minister and the head of the judiciary). In India, Sapru and Sircar were Law Members, or Law Ministers, as they would be called in future; no one would suggest that men of this type should be ineligible for appointment as judges afterwards… Merit should be the only criterion for these high appointments; no constitutional ban should stand in the way of merit being recognized.” It was asserted, that in the memorandum submitted by the Judges of the Federal Court and the Chief Justices of the High Courts, the following suggestions were made:

“It is therefore suggested that Article 193(1) may be worded in the following or other suitable manner:

Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India… We do not think it is necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the President. Both are officers of the highest responsibility and so far no case of such refusal has arisen although a convention now exists that such appointments should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. If per chance such a situation were ever to arise it could of course be met by the President making a different proposal, and no express provision need, it seems to us, be made in that behalf.

The foregoing applies mutatis mutandis to the appointment of the Judges of the Supreme Court, and article 103(2) may also be suitably modified. In this connection it is not appreciated why a constitutional obligation should be cast on the President to consult any Judge or Judges of the Supreme Court or of the High Court in the States before appointing a Judge of the Supreme Court. There is nothing to prevent the President from consulting them whenever he deems it necessary to do so.” It was pointed out, that none of the above proposals were accepted.

Reference was also made to the Editor of the Indian Law Review and the Members of the Calcutta Bar Association, who made the following suggestions:

“That in clause (4) of Article 103 the words “and voting” should be deleted, as they consider that in an important issue as the one contemplated in this clause, opportunity should be as much minimized as practicable for the legislators for remaining neutral.” to which, the response of B.N. Rau was as under:

“In the Constitutions of Canada, Australia, South Africa and Ireland, a bare majority of the members present and voting suffices for the presentation of the address for removal of a judge. Article 103(4) requires a two-thirds majority of those present and voting. It is hardly necessary to tighten it further by deleting the words “and voting”.

With reference to the suggestions regarding non-reduction of salaries of Judges, the Constitutional Adviser made the following comments:

“The constitutional safeguard against the reduction of salary of the Chief Justice and the judges of a High Court below the minimum has been prescribed in article 197 so as to prevent the Legislatures of the States from reducing the salaries below a reasonable figure. It is hardly necessary to put such a check on the power of Parliament to fix the salaries of the judges of the Supreme Court.” The suggestions made by Pittabhi Sitaramayya and others, with reference to officers, and servants and the expenses of the Supreme Court, were also highlighted. They are extracted hereunder:

“That in article 122, for the words “the Chief Justice of India in consultation with the President” the words “the President in consultation with the Chief Justice of India” be substituted.” The response of the Constitutional Adviser was as follows:

“The provision for the fixation of the salaries, allowances and pensions of the officers and servants of the Supreme Court by the Chief Justice of India in consultation with the President contained in clause (1) of article 122 is based on the existing provision contained in section 242(4) of the Government of India Act, 1935, as adapted. The Drafting Committee considered such a provision to be necessary to ensure the independence of the judiciary, the safeguarding of which was so much stressed by the Federal Court and the High Courts in their comments on the Draft Constitution.”

29. It was pointed out, that the second draft of the Constitution, was introduced in the Constituent Assembly on 4.11.1948. The Court’s attention was drawn to the discussions, with reference to appointments to the higher judiciary, including the suggestion of B. Pocker Sahib, who proposed an alternative to Article 103(2). Reference was also made to the proposal made by Mahboob Ali Baig Sahib, guarding against party influences, that may be brought to the fore, with reference to appointment of Judges. It was submitted, that the above suggestion was rejected by the Chairman of the Drafting Committee, who felt that it would be dangerous to enable the Chief Justice to veto the appointment of a Judge to the higher judiciary. The opinion of T.T. Krishnamachari was also to the following effect:

“[T]he independence of the Judiciary should be maintained and that the Judiciary should not feel that they are subject to favours that the Executive might grant to them from time to time and which would naturally influence their decision in any matter they have to take where the interests of the Executive of the time being happens to be concerned. At the same time, Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to crate specially favoured bodies which in themselves becomes an Imperium in Imperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic”.

30. The proposals and the decision taken thereon, were brought to our notice, specially the observations made by K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar, Ananthasayanam Ayyangar, and finally Dr.

B.R. Ambedkar. Dr. B.R. Ambedkar had stated thus:

“Finally, BR Ambedkar said:

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

31. Having extensively brought to our notice, the nature of the debates before the Constituent Assembly, and the decisions taken thereon, the learned Attorney General ventured to demonstrate, that the participation of the executive in the matter of appointment of high constitutional functionaries, “could not – and did not”, impinge upon their independence, in the discharge of their duties. Illustratively, reliance was placed on Part IV Chapter V of the Constitution, comprising of 4 Articles of the Constitution (Articles 148 to 151), dealing with the Comptroller and Auditor-General of India. It was submitted, that duties and powers of the Comptroller and Auditor-General of India, delineated in Article 149, revealed, that the position of the Comptroller and Auditor-General of India, was no less in importance vis-a-vis the Judges of the higher judiciary. Pointing out to Article 148, it was his contention, that the appointment of the Comptroller and Auditor-General of India is made by the President. His removal under clause (1) of Article 148 could only, in the like manner, be made on the like grounds as a Judge of the Supreme Court of India. Just like a Judge of the Supreme Court, his salary and other conditions of service were to be determined by Parliament by law, and until they were so determined, they were to be as expressed in the Second Schedule. Further more, just like a Judge of the Supreme Court, neither the salary of the Comptroller and Auditor-General, nor his rights in respect of leave of absence, pension or age of retirement, could be varied to his disadvantage, after his appointment. In a similar fashion, as in the case of the Supreme Court, persons serving in the Indian Audit and Accounts Department, were to be subject to such conditions of service, as were determined by law made by Parliament, and till such legislative enactment was made, their conditions of service were determinable by the President, by framing rules, in consultation with the Comptroller and Auditor-General of India. Based on the above, it was contended, that even though the appointment of the Comptroller and Auditor-General of India, was exclusively vested with the executive, there had never been an adverse murmur with reference to his being influenced by the executive. The inference sought to be drawn was, that the manner of “appointment” is irrelevant, to the question of independence. Independence of an authority, according to the learned Attorney General, emerged from the protection of the conditions of the incumbent’s service, after the appointment had been made.

32. In the like manner, our attention was drawn to Part XV of the Constitution, pertaining to elections. It was submitted, that Article 324 vested the superintendence, direction and control of elections to the Parliament, and the Legislatures of every State, and election to the offices of President and Vice-President, with the Election Commission. The Election Commission in terms of Article 324(2) was comprised of the Chief Election Commissioner, and such number of other Election Commissioners as the President may from time to time fix. It was submitted, that the appointment of the Chief Election Commissioner, and the other Election Commissioners, was to be made by the President, and was subject to the provisions of law made by Parliament. It was further pointed out, that under Article 324(5), the conditions of service and the tenure of the office of the Election Commissioners (and the Regional Commissioners) is regulated in the manner, as the President may by rules determine. Of course, subject to, enactment of law by Parliament. So as to depict similarity with the matter under consideration, it was contended, that the proviso under Article 324(5) was explicit to the effect, that the Chief Election Commissioner could not be removed from his office, except in like manner, and on like grounds, as a Judge of the Supreme Court. And further more, that the conditions of service of the Chief Election Commissioner, could not be varied to his disadvantage, after his appointment. It was contended, that the Indian experience had been, that the Chief Election Commissioner, and the other Election Commissioners, had functioned with absolute independence, and that, their functioning remained unaffected, despite the fact that their appointment had been made, by the executive. It was submitted, that impartiality/independence emerged from the protection of the conditions of service of the incumbent after his appointment, and not by the method or manner of his appointment.

33. It was also the contention of the learned Attorney General, that implicit in the scheme of the Constitution, was a system of checks and balances, wherein the different constitutional functionaries participate in various processes of selection, appointment, etc., so as to ensure, that the constitutional functionaries did not exceed, the functions/responsibilities assigned to them. To substantiate the above contention, reliance was placed on the Kesavananda Bharati case10, wherein this Court observed as under:

“577. We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial process; (per Bose, J., in Bidi Supply Co. v. Union of India, [1956] INSC 23; AIR 1956 SC 479). The observations of Patanjali Sastri, C.J., in State of Madras v. V.G. Row, [1952] INSC 19; AIR 1952 SC 196, which have become locus classicus need alone be repeated in this connection. Judicial review is undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”. The respondents have also contended that to let the court have judicial review over constitutional amendments would mean involving the court in political questions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales 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 the dispute is, as here, not only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament.” There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre- dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution but it envisages such a separation to a degree as was found in Ranasinghe’s case. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances. Apart from that, as already stated, the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Constitution (per Haldane, L.C. in Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. 1914 AC 237 and Ex Parte Walsh &

Johnson; In re Yates, [1925] HCA 53; (1925) 37 CLR 36 at p.58. The function of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the Legislature conferred by the Constitution would always be a question of interpretation of the Constitution. It may be added that at no stage the respondents have contested the proposition that the validity of a constitutional amendment can be the subject of review by this Court. The Advocate-General of Maharashtra has characterised judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provisions relating to the appointment of judges, the specific restriction to which the fundamental rights are made subject, the deliberate exclusion of the due process clause in Article 21 and the affirmation in Article 141 that judges declare but not make law. To this may be added the none too [pic]rigid amendatory process which authorises amendment by means of 2/3 majority and the additional requirement of ratification.” The Court’s attention was also invited to the observations recorded in Bhim Singh v. Union of India[13]:

“77. Another contention raised by the petitioners is that the Scheme violates the principle of separation of powers under the Constitution. The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of 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 is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text.

The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability.

79. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, this Court held that: (AIR p. 556, para 12) “12. …The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.

It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law.”

80. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, and later in Indira Nehru Gandhi v. Raj Narain (1976) 3 SCC 321, this Court declared separation of powers to be a part of the basic structure of the Constitution. In Kesavananda Bharati case Shelat and Grover, JJs. in SCC para 577 observed the precise nature of the concept as follows: (SCC p.

452) “577. … There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so predominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in [pic]all its rigidity as is the case in the United States Constitution yet it envisages such a separation to a degree as was found in Ranasinghe case. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances.” and conclusion no.5, which is reproduced as under:

“…..

(5) Indian Constitution does not recognise strict separation of powers. The constitutional principle of separation of powers will only be violated if an essential function of one branch is taken over by another branch, leading to a removal of checks and balances.” Last of all, the learned Attorney General placed reliance on State of U.P.

v. Jeet S. Bisht[14], wherein this Court held:

“78. Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active [pic]jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times.”

34. The learned Attorney General emphasized, that there was a very serious and sharp cleavage of opinion on the subject, which is being canvassed before this Court. Relying on the judgment rendered by in the Sankalchand Himatlal Sheth case5, he pointed out, that in the aforesaid judgment, this Court had arrived at the conclusion, that the term “consultation” could not be deemed to be “concurrence”, with reference to Article 222. In conjunction with the above, he invited our attention to the judgment in the Samsher Singh case11, wherein a seven-Judge Bench, which was dealing with a controversy relating to Judges of subordinate courts, and the impact of Article 311, had examined the question whether the President was to act in his individual capacity, i.e., at his own discretion; or he was liable to act on the aid and advice of the Council of Ministers, as mandated under Article 74. Reliance was placed on the following observations from the aforesaid judgment:

“149. In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.”

35. It was submitted, that the aforesaid observations as were recorded in the Samsher Singh case11, were relied upon in the Second Judges case. This Court, it was pointed out, had clarified that the observations recorded in paragraph 149 in the Samsher Singh case11, were merely in the nature of an obiter. It was submitted, that the aforesaid observations in the Samsher Singh case11, were also noticed in paragraph 383 (at page 665), wherein it was 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” with the judiciary, this Court had expressed, that the Government was bound by such counsel. Reference was then made to the judgment of this Court in the First Judges case, wherein it was held, that “consultation” did not include “concurrence”, and further, that the power of appointment of Judges under Article 124, was vested with the President, and also, that the President could override the views of the consultees. Last of all, to substantiate his submission(s) pertaining to the cleavage of opinion, reliance was placed on the Kesavananda Bharati case10, wherein a thirteen-Judge Bench of this Court, had held, with reference to the power of amendment under Article 368, that the concept of “basic structure”, was a limitation, to the otherwise plenary power of amendment of the Constitution.

36. In his effort to persuade us, to refer the instant matter, to a nine- Judge Bench (or, to a still larger Bench), the learned Attorney General placed reliance on Suraz India Trust v. Union of India[15], and invited our attention to the following:

“3. Shri A.K. Ganguli, learned Senior Advocate, has submitted that the method of appointment of a Supreme Court Judge is mentioned in Article 124(2) of the Constitution of India which states:

“124. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.

Provided that in the case of appointment of a Judge other than the Chief Justice, 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 can consult any Judge of the Supreme Court or even the High Court as he deems necessary for the purpose, and is not bound to consult only the five seniormost 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 can only be done by Parliament in accordance with the procedure laid down in Article 368 of the Constitution of India.

5. That under Article 124(2) while appointing a Supreme Court Judge, the President of India has to consult the Chief Justice of India, but he may also consult any other Supreme Court Judge and not merely the four [pic]seniormost Judges. Also, the President of India can even consult a High Court Judge, whereas, according to the aforesaid two decisions the President of India cannot consult any Supreme Court Judge other than the four seniormost Judges of the Supreme Court, and he cannot consult any High Court Judge at all.

6. Shri Ganguli submits that the matter is required to be considered by a larger Bench as the petition raises the following issues of constitutional importance:

(1) Whether the aforesaid two verdicts viz. the seven-Judge Bench and nine- Judge Bench decisions of this Court referred to above really amount to amending Article 124(2) of the Constitution? (2) Whether there is any “Collegium” system for appointing the Supreme Court or High Court Judges in the Constitution? (3) Whether the Constitution can be amended by a judicial verdict or can it only be amended by Parliament in accordance with Article 368? (4) Whether the constitutional scheme was that the Supreme Court and High Court Judges can be appointed by mutual discussions and mutual consensus between the judiciary and the executive; or whether the judiciary can alone appoint 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 be made redundant, as appears to have been done in the aforesaid two decisions which have made consultation with the High Court Judges redundant while appointing a Supreme Court Judge despite the fact that it is permissible on the clear language of Article 124(2)? (7) Whether the clear language of Article 124(2) can be altered by judicial verdicts and instead of allowing the President of India to consult such Judges of the Supreme Court as he deems necessary (including even junior Judges) only the Chief Justice of India and four seniormost Judges of the Supreme Court can alone be consulted while appointing a Supreme Court Judge? (8) Whether there was any convention that the President is bound by the advice of the Chief Justice of India, and whether any such convention (assuming there was one) can prevail over the clear language of Article 124(2)? (9) Whether the opinion of the Chief Justice of India has any primacy in the aforesaid appointments? (10) Whether the aforesaid two decisions should be overruled by a larger Bench?

7. Mr G.E. Vahanvati, learned Attorney General for India, supports the petitioner contending that the aforesaid judgments require reconsideration.

However, he also submits:

(a) A writ petition under Article 32 is not maintainable at the behest of a trust as the trust cannot claim violation of any of its fundamental rights;

(b) The petitioner has no locus standi to seek review of the judgments of this Court. In fact, a petition under Article 32 of the Constitution does not lie to challenge the correctness of a judicial order; and (c) A Bench of two Judges cannot examine the correctness of the judgment of a nine-Judge Bench.

(d) A Bench of two Judges cannot refer the matter to the larger Bench of nine Judges or more, directly.

xxxx xxxx xxxx

11. However, Mr Ganguli dealing with the issue of locus standi of the Trust has submitted that the petition may not be maintainable but it should be entertained because it raises a large number of substantial questions of law. In order to fortify his submission he places reliance upon a recent Constitution Bench judgment of this Court in B.P. Singhal v. Union of India (2010) 6 SCC 331 wherein while dealing with the issue of removal of Governors, this Court held as under: (SCC p. 346, para 15) [pic]”15. The petitioner has no locus to maintain the petition in regard to the prayers claiming relief for the benefit of the individual Governors. At all events, such prayers no longer survive on account of passage of time.

However, with regard to the general question of public importance referred to the Constitution Bench, touching upon the scope of Article 156(1) and the limitations upon the doctrine of pleasure, the petitioner has the necessary locus.” Thus, Mr Ganguli submits that considering the gravity of the issues involved herein, the matter should be entertained.

12. While dealing with the issue of reference to the larger Bench, Mr Ganguli has placed a very heavy reliance on the recent order of this Court dated 30-3-2011 in Mineral Area Development Authority v. SAIL (2011) 4 SCC 450, wherein considering the issue of interpretation of the constitutional provisions and validity of the Act involved therein, a three-Judge Bench presided over by the Hon’ble Chief Justice has referred the matter to a nine-Judge Bench.

13. At this juncture, Mr Ganguli as well as Mr Vahanvati have submitted that even at the stage of preliminary hearing for admission of the petition, the matter requires to be heard by a larger Bench as this matter has earlier been dealt with by a three-Judge Bench and involves very complicated legal issues.

14. In view of the above, we place the matter before the Hon’ble the Chief Justice for appropriate directions.” It was pointed out, that when the above matter was placed before a three- Judge Bench of this Court, the same was dismissed on the ground of locus standi. Yet, since the above order was passed in the absence of the petitioner trust, an application had been moved for recall of the above order. It was his assertion, that whether or not a recall order was passed with reference to the questions raised, it was apparent, that a Bench of this Court has already expressed the view, that the conclusions drawn in the Second and Third Judges cases, need a relook.

37. Finally, to support the above suggestions, the Court’s attention was drawn to the observations recorded by H.M. Seervai in the 4th edition of his book “Constitutional Law of India” wherein, with reference to the Second Judges case, very strong and adverse views were expressed. The aforesaid views are contained in paragraphs 25.448 to 25.497. For reasons of brevity, it is not possible for us to extract the same herein. Suffice it to state, that the submissions advanced by the learned Attorney General, as have been detailed in the foregoing paragraphs, were more or less, in accord with the views expressed by H.M. Seervai.

38. In order to contend, that it was open to this Court, to make a reference for reconsideration of the matters already adjudicated upon, the learned Attorney General, invited our attention to Jindal Stainless Limited v. State of Haryana[16].

“6. In Keshav Mills Co. Ltd. v. CIT AIR 1965 SC 1636…(AIR pp.1643-44, para 23) a Constitution Bench of this Court enacted the circumstances in which a reference to the larger Bench would lie. It was held that in revisiting and revising its earlier decision, this Court should ask itself whether in the interest of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised? Whether on the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision bearing on the point not noticed? What was the impact of the error in the previous decision on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief?

7. According to the judgment in Keshav Mills case these and other relevant considerations must be born in mind whenever this Court is called upon to exercise its jurisdiction to review and revisit its earlier decisions. Of course, in Keshav Mills case a caution was sounded to the effect that frequent exercise of this Court of its power to revisit its earlier decisions may incidentally tend to make the law uncertain and introduce confusion which must be avoided. But, that is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error.

8. In conclusion, in Keshav Mills case, this Court observed that it is not possible to lay down any principles which should govern the approach of the Court in dealing with the question of revisiting its earlier decision. It would ultimately depend upon several relevant considerations.

9. In Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673…, a Constitution Bench of this Court observed that, in case of doubt, a smaller Bench can invite attention of Chief Justice and request for the matter being placed for hearing before a Bench larger than the one whose decision is being doubted.”

39. With the above noted submissions, learned Attorney General for India concluded his address, for the review of the judgments in the Second and Third Judges cases.

40. Mr. K.K. Venugopal, learned senior counsel, commenced his submissions by highlighting the main features of the Constitution (67th Amendment) Bill, 1990. He invited our attention, to the proposed amendments of Articles 124, 217, 222 and 231, and more particularly, to the inserstion of Part XIIIA in the Constitution, under the heading “National Judicial Commission”. Article 307A was proposed as the singular Article in Part XIIIA. Based on the constitution of the National Judicial Commission, it was asserted, that the above Bill, had been introduced, to negate the effect of the judgment of this Court in the First Judges case. It was submitted, that when the aforesaid Bill was introduced in the Parliament, the Supreme Court Bar Association, of which Mr. Venugopal himself was the then President, organized a seminar on 1.9.1990, for the purpose of debating the pros and cons of the Constitution (67th Amendment) Bill, 1990.

It was submitted, that a large number of speakers had taken part in the debate and had made important suggestions. The above suggestions, drafted as a resolution of the seminar, were placed before the House, and were passed either unanimously or with an overwhelming majority. It was submitted, that the aforesaid resolutions were forwarded to the Chief Justice of India, through a covering letter dated 5.10.1990. It was pointed out, that resolutions were also passed, at the conclusion of the Chief Justices’ Conference, held between 31.8.1990 and 2.9.1990, wherein also, the provisions of the Constitution (67th Amendment) Bill, 1990, were deliberated upon. It was submitted, that he had made a compilation of the resolutions passed at the Chief Justices Conference, and the conclusions drawn in the Second Judges case, which would give a bird’s eye view, of the views expressed. The compilation to which learned counsel drew our attention, is being extracted hereunder:

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

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

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

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

(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention. …” Based on the aforesaid compilation, it was contended, that the judgment rendered in the Second Judges case, completely obliterated three salient features of Article 124. Firstly, under the original Article 124, the main voice was that of the President. It was submitted, that the voice of the President was totally choked in the Second Judges case. Secondly, Article 124, as it was originally framed, vested the executive with primacy, in respect of the appointments to the higher judiciary, whereas the position was reversed by the Second Judges case, by vesting primacy with the judiciary. Thirdly, the role of the Chief Justice of India, which was originally, that of a mere consultee, was “turned over its head”, by the decision in the Second Judges case. Now, the collegium of Judges, headed by the Chief Justice of India, has been vested with the final determinative authority for making appointments to the higher judiciary. And the President is liable to “concur”, with the recommendations made. Based on the above assertions, it was the submission of the learned counsel, that by wholly misconstruing Article 124, the Supreme Court had assumed the entire power of appointment. And the voice of the executive had been completely stifled. It was submitted, that the judiciary had performed a legislative function, while interpreting Article 124. It was asserted, that originally the founding fathers had the power to frame the provisions of the Constitution, and thereafter, the Parliament had the power to amend the Constitution in terms of Article 368. It was submitted, that the role assigned to the Constituent Assembly, as also to the Parliament, has been performed by this Court in the Second Judges case. It was submitted, that all this had been done in the name of “judicial independence”. The above logic was sought to be seriously contested by asserting, that judicial independence could not stand by itself, there was something like judicial accountability also, which had to be kept in mind.

41. It was also contended, that the judiciary had taken upon itself, the exclusive role of making appointments to the higher judiciary, without taking into consideration any of the stakeholders. It is submitted, that the judiciary is meant for the litigating community, and therefore, the litigating community was liable to be vested with some role in the matter of appointments to the higher judiciary. Likewise, it was pointed out, that there were about ten lakhs lawyers in this country. They also had not been given any say in the matter. Even the Bar Associations, which have the ability to represent the lawyers’ fraternity, had been excluded from any role in the process of appointments. It was highlighted, that under the old system, all the above stakeholders, had an opportunity to make representations to the executive, in the matter of appointments to the higher judiciary. But, that role has now been totally excluded, by the interpretation placed on Article 124, by the Second Judges case. The Court’s attention was drawn to conclusion no.14 drawn in the summary of conclusions (recorded in paragraph 486, in the Second Judges case) that the majority opinion in the First Judges case, insofar as, it had taken a contrary view, relating to primacy of the role of the Chief Justice of India, in matters of appointments and transfers, and the justiciability of these matters, as well as, in relation to judge-strength, did not commend itself as being the correct view. Accordingly it was concluded, that the relevant provisions of the Constitution including the constitutional scheme must now be construed, understood and implemented, in the manner indicated in the conclusions drawn in the Second Judges case. The above determination, according to learned counsel, was absolutely misconceived, as the same totally negated the effect of Article 74, which required the President to act only on the aid and advice of the Council of Ministers.

According to learned counsel, the President would now have to act as per the dictate of the Chief Justice of India and the collegium of Judges. It was submitted, that it was impermissible in law, for a party to make a decision in its own favour. This, according to learned counsel, is exactly what the Supreme Court had done in the Second Judges case. It was contented, that the impugned constitutional amendment was an effort at the behest of the Parliament, to correct the above historical aberration.

Learned counsel concluded, by asserting, that there were two Houses of Parliament under the Constitution, but the Supreme Court in the Second Judges case, had acted as a third House of Parliament, namely, as the House of corrections. In the background of the aforesaid factual position, it was submitted, that when the Union of India and the States which ratified the Constitution (99th Amendment) Act, seek reconsideration of the Second Judges case, was it too much, that the Union and the States were asking for? 42. Following the submissions noticed hereinabove, we heard Mr. K.

Parasaran, Senior Advocate, who also supported the prayer made by the learned Attorney General. It was submitted, that the appointment of Judges had nothing to do with “independence of the Judge” concerned, or the judicial institution as a whole. It was submitted, that subsequent to their appointment to the higher judiciary, the conditions of service of Judges of the High Court and the Supreme Court were securely protected.

Thereafter, the independence of the Judges depended on their judicial conscience, and the executive has no role to play therein.

43. It was asserted, that the Judges who expressed the majority view, in the Second Judges case, entertained a preconceived notion about the “basic structure”, even before hearing commenced, in the Second Judges case. In this behalf, he placed reliance on the resolutions passed at the conclusion of the Chief Justices’ Conference, held between 31.8.1990 and 2.9.1990. It was asserted, that the controversy had not been adjudicated on the basis of an independent assessment, of the views expressed in the Constituent Assembly debates (with reference to the text of Article 124). It was submitted, that the interpretation rendered on Article 124, expressly ignored, not only the simple language indicating the procedure for appointment of Judges, but also the surrounding constitutional provisions.

According to learned senior counsel, the judiciary had encroached into the executive power of appointment of Judges. This amounted to encroaching into a constitutional power, reserved for the executive, by the Constitution. It was asserted, that the power of amendment of the Constitution, vested in the Parliament under Article 368, was only aimed at keeping the Constitution in constant repair. It was submitted, that the aforesaid power vested with the Parliament, could not have been exercised by the Supreme Court, by substituting the procedure of appointment of Judges, in the manner the Supreme Court felt. It was submitted, that in the Second Judges case, as also, the Third Judges case, the Supreme Court had violated the “basic structure”, by impinging upon legislative power. It was contended, that it was imperative for this Court to have a re-look at the two judgments, so as to determine, whether there had been a trespass by the judiciary, into the legislative domain. And, if this Court arrives at the conclusion, that such was the case, it should strike down its earlier determination. It was further submitted, that the majesty of the Constitution, must be maintained and preserved at all costs, and there should be no hesitation in revisiting any earlier judgment, so as to correct an erroneous decision. With the aforesaid observations, learned counsel commended the Bench, to accept the prayer made by the learned Attorney General, and to make a reference for reconsideration of the judgments rendered by this Court, in the Second and Third Judges cases, to a Bench with an appropriate strength.

44. Mr. Ravindra Srivastava, Senior Advocate, also supported the submissions for reference to a larger Bench. It was submitted, that the conclusions drawn by this Court in the Second Judges case, and the Third Judges case, were liable to be described as doubtful, because a large number of salient facts, had not been taken into consideration, when the same were decided. It was the contention of the learned counsel, that the submissions advanced on behalf of the petitioners, on merits, could not be supported by the text of the constitutional provisions, and that, the petitioners’ reliance squarely based on the majority judgment in the Second Judges case, as was further explained in the Third Judges case, was seriously flawed. It was submitted, that the thrust of the submissions advanced on behalf of the petitioners on merits had been, not only that the consultation with the Chief Justice of India was mandatory, but the opinion of the collegium of Judges was binding on the executive. It was asserted, that neither of the above requirements emerged from the plain reading of Article 124. It was asserted, that the basis of the learned counsel representing the petitioners, to assail the impugned constitutional amendment, as also the NJAC Act, was squarely premised on the above determination. It was asserted, that the conclusion of primacy of the judiciary, in the matter of appointment of Judges in the higher judiciary, could not be supported by any text of the original constitutional provisions. It was, accordingly suggested, that it was absolutely imperative to correct the majority view expressed in the Second Judges case.

45. According to the learned counsel, the primary objection raised, at the behest of the petitioners, opposing the reconsideration of the decision rendered in the Second Judges case, was based on the observations recorded in paragraph 10 of the Third Judges case, wherein the statement of the then Attorney General for India, had been recorded, that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges case. It was submitted, that the aforesaid statement, could not bar the plea of reconsideration, for all times to come. It was further submitted, that the above statement would not bind the Parliament. It was contended, that the statement to the effect, that the Union of India, was not seeking a review or reconsideration of the Second Judges case, should not be understood to mean, that it was impliedly conceded, that the Second Judges case had been correctly decided. It was pointed out, that the advisory jurisdiction under Article 143, which had been invoked by the Presidential Reference made on 23.7.1998, requiring this Court to render the Third Judges case, was neither appellate nor revisionary in nature. In this behalf, learned counsel placed reliance on Re: Cauvery Water Disputes Tribunal[17], wherein it was held, that an order passed by the Supreme Court, could be reviewed only when its jurisdiction was invoked under Article 137 of the Constitution (read with Rule 1 of Order 40 of the Supreme Court Rules, 1946). And that, a review of the judgment rendered by the Supreme Court, in the Second Judges case, could not be sought through a Presidential Reference made under Article 143. In fact, this Court in the above judgment, had gone on to conclude, that if the power of review was to be read in Article 143, it would be a serious inroad into the “independence of the judiciary”. It was therefore submitted, that the statement of the then Attorney General, during the course of hearing of the Third Judges case, could not be treated as binding, for all times to come, so as to deprive the executive and the legislature from even seeking a review of the judgments rendered. It was therefore contended, that it was implicit while discharging its duty, that this Court was obliged to correct the errors of law, which may have been committed in the past. Learned counsel contended, that a perusal of the judgment of this Court in the Subhash Sharma case4, clearly brought out, that no formal request was made to this Court for reconsideration of the legal position declared by this Court in the First Judges case. Yet, this Court, on its own motion, examined the correctness of the First Judges case, and suo motu, made a reference of the matter, to a nine-Judge Bench, to reconsider the law declared in the First Judges case.

46. While pointing to the reasons for reconsideration of the law laid down by this Court in the Second Judges case (read with the Third Judges case), learned senior counsel, asserted, that the essence of Article 124, had been completely ignored by the majority view. Learned senior counsel, accordingly, invited our attention to the scheme of Article 124(2) and canvassed and summarized the following salient features emerging therefrom:

“i. The authority to appoint Judges of the higher judiciary was vested in the President.

ii. The above power of appointment by the President, was subject to only one condition, namely, ‘consultation’.

iii. The above consultation was a two-fold – one which in the opinion of the President may be deemed necessary, and the other which was mandatory.

iv. The mandatory consultation was with the Chief Justice of India. The consultation which the President may have ‘if deemed necessary for the purpose, was with judges of the Supreme Court and also of the High Courts in the states, as may be felt appropriate.

v. There was no limitation on the power, scope and ambit of the President to engage in consultation, he may not only with the judges of the Supreme Court, but may also consult judges of High Courts as he may deem necessary, for this purpose.

vi. There was also no limitation on the President’s power of consultation. He could consult as many judges of the Supreme Court and High Courts which he deemed necessary for the purpose.

vii. Having regard to the object and purpose of the appointment of a judge of the Supreme Court, and that, such appointment was to the highest judicial office in the Republic, was clearly intended to be broad-based, interactive, informative and meaningful, so that, the appointment was made of the most suitable candidate.

viii. This aspect of the power of consultation of the President, as had been provided had been completely ignored in the majority judgment in Second Judges’ case. And the focus has been confined only to the consultation, with the Chief Justice of India.

ix. The interpretation of the consultative process, and the procedure laid down, in the majority judgement in the Second Judges case, that the President’s power of consultation, was all-pervasive had been ‘circumscribed’, having been so held expressly in paragraph 458 (by Justice J.S. Verma) in the Second Judges’ case.

x. The majority judgment has focused only on the requirement of consultation by the President with the Chief Justice of India which is requirement of proviso, ignoring the substantive part.

xi. The collegium system had been evolved, for consultation with the Chief Justice of India on the interpretation, that for purposes of consultation with the Chief Justice of India, the CJI alone as an individual would not matter, but would mean in plurality i.e. his collegium. But this is an interpretation only of the proviso and not of the substantive part of Article 124(2).

xii The collegium system was evolved for consultation with the CJI and his colleagues in particular in fixed numbers as laid down in the judgment.

xiii. The whole provision for consultation by the President of India with the judges of the Supreme Court and the High Court, had thus been stultified, in ignorance of the substantive part of Article 124(2), and as such, one was constrained to question the majority judgment as being ‘per incuriam’.”

47. According to learned senior counsel, a perusal of the judgment in the Subhash Sharma case4 would reveal, that reconsideration of the judgments in the First Judges case, was only on two issues. Firstly, the status and importance of consultation, and the primacy of the position of the Chief Justice of India. And secondly, the justiceability of fixation, of the judge-strength of a Court. It was asserted, that no other issue was referred for reconsideration. This assertion was sought to be supported with the following observations, noticed in the Subhash Sharma case4:

“49. …..Similarly, the writ application filed by Subhash Sharma for the reasons indicated above may also be disposed of without further directions.

As and when necessary the matter can be brought before the court. As in our opinion the correctness of the majority view in S.P. Gupta case [(1981) Supp. SCC 87] should be considered by a larger bench we direct the papers of W.P. No.1303 of 1987 to be placed before the learned Chief Justice for constituting a bench of nine Judges to examine the two questions we have referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength.” It was asserted, that there was no scope or occasion for the Bench hearing the Second Judges case, to rewrite the Constitution, on the subject of appointment of Judges to the higher judiciary. It was submitted, that the observations recorded in the Second Judges case, in addition to the above mentioned two issues, were liable to be regarded as obiter dicta. In the Second Judges case, the ratio decidendi, according to learned counsel, was limited to the declaration of the legal position, only on the two issues, referred to the larger Bench for consideration. Thus viewed, it was asserted, that all other conclusions recorded in the Second Judges case, on issues other than the two questions referred for reconsideration, cannot legitimately be described as binding law under Article 141. To support the above contention, reliance was placed on Kerala State Science and Technology Museum v. Rambal Co.[18], wherein this Court held as under:

“8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to. (See Kesho Nath Khurana v. Union of India [(1981) Supp. SCC 38], Samaresh Chandra Bose v. 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 of India”, by holding that the term “Chief Justice of India” in Article 124, included a plurality of Judges, and not the individual Chief Justice of India. This, according to learned counsel, was against the plain meaning and text of Article 124. Learned counsel, went on to add, that this Court in the Second Judges case, had laid down an inviolable rule of seniority, for appointment of Chief Justice of India. It also laid down, the rules and the norms, for transfer of Judges and Chief Justices, from one High Court to another. It also concluded, that any transfer of a Judge or Chief Justice of a High Court, made on the recommendation of the Chief Justice of India, would be deemed to be non-punitive. In sum and substance, learned counsel contended, that the Second Judges case, laid down a new structure, in substitution to the role assigned to the Chief Justice of India. The conclusions recorded in the Second Judges case, according to learned counsel, could not be described as a mere judicial interpretation. It was asserted, that the same was nothing short of judicial activism (or, judicial legislation).

49. Learned senior counsel then invited the Court’s attention, to the principles laid down for reconsideration, or review of a previous judgment.

For this he pointedly invited the Court’s attention to Bengal Immunity Co.

Ltd. v. State of Bihar[19], Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay[20], and Union of India v. Raghubir Singh[21].

Learned counsel also referred to Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[22], wherein it was observed:

“61. Should Sabhajit Tewary [1975] INSC 44; (1975) 1 SCC 485 … still stand as an authority even on the facts merely because it has stood for 25 years? We think not.

Parallels may be drawn even on the facts leading to an untenable interpretation of Article 12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be entitled to them and “[t]here is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the 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 conclusion that the decision was plainly erroneous, it is our duty to say so and not perpetuate our mistake.” It was pointed out, that in the Second Judges case, S. Ratnavel Pandian, J.

had observed as follows:

“17. So it falls upon the superior courts in a large measure the responsibility of exploring the ability and potential capacity of the Constitution with a proper diagnostic insight of a new legal concept and making this flexible instrument serve the needs of the people of this great nation without sacrificing its essential features and basic principles which lie at the root of Indian democracy. However, in this process, our main objective should be to make the Constitution quite understandable by stripping away the mystique and enigma that permeates and surrounds it and by clearly focussing on the reality of the working of the constitutional system and scheme so as to make the justice delivery system more effective and resilient. Although frequent overruling of decisions will make the law uncertain and later decisions unpredictable and this Court would not normally like to reopen the issues which are concluded, it is by now well settled by a line of judicial pronouncements that it is emphatically the province and essential duty of the superior courts to review or reconsider their earlier decisions, if so warranted under compelling circumstances and even to overrule any questionable decision, either fully or partly, if it had been erroneously held and that no decision enjoys absolute immunity from judicial review or reconsideration on a fresh outlook of the constitutional or legal interpretation and in the light of the development of innovative ideas, principles and perception grown along with the passage of time. This power squarely and directly falls within the rubric of judicial review or reconsideration.” It was submitted, that Kuldip Singh, J., in the Second Judges case, had recorded as follows:

“320. It is no doubt correct that the rule of stare decisis brings about consistency and uniformity but at the same time it is not inflexible.

Whether it is to be followed in a given case or not is a question entirely within the discretion of this Court. On a number of occasions this Court has been called upon to reconsider a question already decided. The Court has in appropriate cases overruled its earlier decisions. The process of trial and error, lessons of experience and force of better reasoning make this Court wiser in its judicial functioning. In cases involving vital constitutional issues this Court must feel to bring its opinions into agreement with experience and with the facts newly ascertained. Stare decisis has less relevance in constitutional cases where, save for constitutional amendments, this Court is the only body able to make needed changes. Re-examination and reconsideration are among the normal processes of intelligent living. We have not refrained from reconsideration of a prior construction of the Constitution that has proved “unsound in principle and unworkable in practice.”

Based on the above, learned counsel summarized his assertions as follows.

Firstly, the real constitutional question, requiring re-examination, was in the context of appointment of Judges to the higher judiciary, was the interpretation of Article 74. Because the Second Judges case, had made a serious inroad into the power of the President which was bound to be exercised in consonance with Article 74. It was contended, that the functioning of the President, in the absence of the aid and advice of the Council of Ministers, could not just be imagined under the scheme of the Constitution. And therefore, the substitution of the participatory role of the Council of Ministers (or, the Minister concerned), with that of the Chief Justice of India in conjunction with his collegium, was just unthinkable. And secondly, that the First Judges case, was wrongly overruled, and the correct law for appointment of Judges, vis-à-vis the role of the executive, was correctly laid down in the First Judges case, by duly preserving the “independence of the judiciary”. It was submitted, that reference to a larger Bench was inevitable, because it was not open to the respondents, to canvass the above submission, before a five-Judge Bench.”

50. Mr. Harish N. Salve and Mr. T.R. Andhyarujina, learned senior counsel, addressed the Court separately. Their submissions were however similar. It was their contention, that a Constitutional Court revisits constitutional issues, from time to time. This, according to learned counsel, has to be done because the Constitution is a living document, and needed to be reinvented, to keep pace with the change of times. It was submitted, that this may not be true for other branches of law, wherein judgments are not revisited, because the Courts were expected to clearly and unambiguously follow the principle of stare decisis, with reference to laws dealing with private rights. Insofar as the controversy in hand is concerned, it was submitted, that the conclusions recorded by this Court in the Second and Third Judges cases, indicated doubtful conclusions, because a large number of salient facts (as have been recorded above), had not been taken into consideration. It was submitted, that expediency in a controversy like the one in hand, should be in favour of the growth of law.

It was submitted, that in their view this was one such case, wherein the issue determined by this Court in the Second and Third Judges cases, needed to be re-examined by making a reference to a larger Bench. Learned counsel pointed out, that the submissions made in the different petitions filed before this Court, were not supported by the text of any constitutional provision, but only relied on the legal position declared by this Court, in the above two cases. In such an important controversy, according to learned counsel, this Court should not be hesitant in revisiting its earlier judgments. Mr. Andhyarujina posed a query, namely, can we decide the controversy raised in the present case, without the reconsideration of the judgments in the Second and Third Judges cases? He answered the same through another query, how can appointments of Judges be by Judges? The above position was again posed differently, by putting forth a further query, can primacy rest with the Chief Justice of India in the matter of appointment of Judges to the higher judiciary?

51. Mr. Ajit Kumar Sinha, learned Senior Advocate, in support of his contention, that the matter needed to be heard by a larger Bench, placed reliance on Mineral Area Development Authority v. Steel Authority of India[23], and invited our attention to question no.5 of the reference made by this Court:

“5. Whether the majority decision in State of W.B. v. Kesoram Industries Ltd. [(2004) 10 SCC 201] could be read as departing from the law laid down in 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 in State of West Bengal v. Kesoram Industries Ltd.[24], this Court by a majority of 4:1 had clarified the judgment rendered by a seven-Judge Bench of this Court in India Cement Ltd. v. State of Tamil Nadu[25]. This Court had to frame the above question, and refer the matter to a nine-Judge Bench. Learned counsel, then placed reliance on Sub-Committee of Judicial Accountability v. Union of India[26], wherein this Court had observed as under:

“5. Even if the prayer is examined as if it were an independent substantive proceeding, the tests apposite to such a situation would also not render the grant of this relief permissible. The considerations against grant of this prayer are obvious and compelling. Indeed, no co- ordinate bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another co-ordinate bench……” In view of the above, it was contended, that this Court while examining the merits of the controversy in hand, was bound to rely on the judgments in the Second and Third Judges cases, to record its conclusions. Referring to the factual position narrated above, it was submitted, that this Court would not be in a position to effectively adjudicate on the issues canvassed, till the matter was referred to a nine-Judge Bench (or even, a still larger Bench).

52. Mr. Ranjit Kumar, learned Solicitor General of India submitted, that he would support the claim for reference to a larger Bench, by relying upon two judgments, and say no more. First and foremost, he placed reliance on the Bengal Immunity Co. Ltd. case19, which it was pointed out, had considered the judgment in State of Bombay v. United Motors (India) Ltd.[27]. The matter, it was submitted, came to be referred to a seven- Judge Bench, to decide whether the judgment needed to be reconsidered.

This process, according to learned Solicitor General, need to be adopted in the present controversy as well, so as to take a fresh call on the previous judgments. Learned Solicitor General then placed reliance on Keshav Mills Co. 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 this Court in the New Jehangir Mills case[1959] INSC 80; , (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 such cases. Mr. Palkhivala has not disputed the fact that, in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us. In exercising this inherent power, however, this would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving question of constructing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision-making is often very difficult and delicate. When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alternative view which appears to this Court to be more reasonable; and in accepting its own view in preference to that of the High Court, this Court would be discharging its duty as a Court of Appeal. But different considerations must inevitably arise where a previous decision of this Court has taken a particular view as to the construction of a statutory provision as, for instance, s. 66(4) of the Act. When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Art. 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided.

That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: — What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court.

….. The principle of stare decisis, no doubt, cannot be pressed into service in cases where the jurisdiction of this Court to reconsider and revise its earlier decisions is invoked; but nevertheless, the normal principle that judgments pronounced by this Court would be final, cannot be ignored, and unless considerations of a substantial and compelling character make it necessary to do so, this Court should and would be reluctant to review and revise its earlier decisions. That, broadly stated, is the approach which we propose to adopt in dealing with the point made by the learned Attorney-General that the earlier decisions of this Court in the New Jehangir Mills case[1959] INSC 80; , (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. Before we do so, it is necessary to read sub-section (1), (2) and (4) of s. 66.

Section 66(1) reads thus: — “Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of section 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court.” …..” Based on the above, it was asserted, on the basis of the factual and legal position projected by the learned Attorney General, that the position declared by this Court in the Second Judges case, as also, in the Third Judges case, was clearly erroneous. It was submitted, that the procedure evolved by this Court for appointment of Judges to the higher judiciary having miserably failed, not because of any defect in the independence of the procedure prescribed, but because of the “intra-dependence of the Judges”, who took part in discharging the responsibilities vested in the collegium of Judges, certainly required a re-examination.

53. It is apparent from the submissions advanced at the hands of the learned counsel representing the Union of India and the different State Governments, that rather than choosing to respond to the assertions made with reference to the constitutional validity of the Constitution (99th Amendment) Act, 2014 and the NJAC Act, had collectively canvassed, that the present five-Judge Bench should refer the present controversy for adjudication to a Bench of nine or more Judges, which could effectively revisit, if necessary, the judgments rendered by this Court in the Second and Third Judges cases. In view of the aforesaid consideration, we are of the view, that the observations recorded by this Court, in the Suraz India Trust case15, as also, the fact that the same is pending before this Court, is immaterial. Consequent upon the instant determination by us, the above matter will be liable to be disposed of, in terms of the instant judgment.

54. Mr. Fali S. Nariman, disagreed with the suggestion that the controversy in hand, needed to be decided by a larger Bench. It was his pointed submission, that the issue canvassed had been improperly pressed, by overlooking certain salient features, which had necessarily to be taken into consideration, before a prayer for reference to a larger Bench could be agitated. It was submitted, that all the learned counsel representing the respondents had overlooked the fact, that the interpretation of Article 124 of the Constitution, was rendered in the first instance, by a seven- Judge Bench in the First Judges case. It was pointed out, that the law declared by this Court in the First Judges case, having been doubted, the matter was referred for reconsideration, before the nine-Judge Bench, which delivered the judgment in the Second Judges case. It was pointed out, that the prayer for revisitation, which is being made at the behest of the learned counsel representing the Union of India and the different participating States, was clearly unacceptable, because the legal position declared by this Court in the First Judges case had already been revisited in the Second Judges case by a larger Constitution Bench. Not only that, it was asserted, that when certain doubts arose about the implementation of the judgment in the Second Judges case, a Presidential Reference was made under Article 143, resulting in the re-examination of the matter, at the hands of yet another nine-Judge Bench, where the Union of India clearly expressed its stand in 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 the judgment in the Second Judges case and that (2) the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference.” It was submitted, that thereupon, the matter was again examined and the declared legal position in the Second Judges case, was reiterated and confirmed, by the judgment rendered in the Third Judges case. Premised on the aforesaid factual position, learned counsel raised a poser, namely, how many times, can this Court revisit the same question? It was asserted, that just because such a prayer seems to be the only way out, for those representing the respondents, the same need not be accepted.

55. Learned senior counsel pointed out, that the legal position with reference to appointments to the higher judiciary came to be examined and declared, for the first time, in the First Judges case, in 1981. It was submitted, that the aforesaid determination would not have been rendered, had this Court’s attention been drawn to the Samsher Singh case11, during the course of hearing, in the First Judges case. It was submitted, that the position declared by this Court in the First Judges case needed to be revisited, was realized during the hearing of the case in the Subhash Sharma case4. While examining the justification of the conclusions drawn by this Court, in the First Judges case, the matter was placed for consideration, before a nine-Judge Bench. It was submitted, that all the issues, which have now been raised at the hands of learned senior counsel representing the respondents, were canvassed before the Bench hearing the Second Judges case. This Court, in the Second Judges case, clearly arrived at the conclusion, that the earlier judgment rendered in the First Judges case, did not lay down the correct law. It was submitted, that the legal position had been declared in the Second Judges case, by a majority of 7:2.

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 Second Judges case by M.M. Punchhi, J.:

“500. Thus S.P. Gupta case, as I view it, in so far as it goes to permit the Executive trudging the express views of disapproval or non- recommendation made by the Chief Justice of India, and for that matter when appointing a High Court Judge the views of the Chief Justice of the High Court, is an act of impermissible deprival, violating the spirit of the Constitution, which cannot he approved, as it gives an unjust and unwarranted additional power to the Executive, not originally conceived of.

Resting of such power with the Executive would be wholly inappropriate and in the nature of arbitrary power. The constitutional provisions conceives, as it does, plurality and mutuality, but only amongst the constitutional functionaries and not at all in the extra-constitutional ones in replacement of the legitimate ones. The two functionaries can be likened to the children of the cradle, intimately connected to their common mother — the Constitution. They recognise each other through that connection. There is thus more an obligation towards the tree which bore the fruit rather than to the fruit directly. Watering the fruit alone is pointless ignoring the roots of the tree. The view that the two functionaries must keep distances from each other is counter-productive. The relationship between the two needs to be maintained with more consideration.

xxx xxx xxx 503. A centuries old Baconian example given to describe the plight of a litigant coming to a court of law comes to my mind. It was described that when the sheep ran for shelter to the bush to save itself from rain and hail, it found itself deprived of its fleece when coming out. Same fate for the institution of the Chief Justice of India. Here it results simply and purely in change of dominance. In the post – S.P. Gupta period, the Central Government i.e. the Law Minister and the Prime Minister were found to be in a dominant position and could even appoint a Judge in the higher judiciary despite his being disapproved or not recommended by the Chief Justice of India and likewise by the Chief Justice of a State High Court. Exception perhaps could be made only when the Chief Justice was not emphatic of his disapproval and was non-committed. His stance could in certain circumstance be then treated, as implied consent. These would of course be rare cases.

Now in place of the aforesaid two executive heads come in dominant position, the first and the second puisne, even when disagreeing with the Chief Justice of India. A similar position would emerge when appointing a Chief Justice or a Judge of the High Court. Thus in my considered view the position of the institution of the Chief Justice being singular and unique in character under the Constitution is not capable of being disturbed. It escaped S.P. Gupta case, though in a truncated form, and not to have become totally extinct, as is being done now. Correction was required in that regard in S.P. Gupta, but not effacement.” Pointing to the opinion extracted above, it was asserted, that the action of the executive to put off the recommendation made by the Chief Justice of India (disapproving the appointment of a person, as a Judge of the High Court) would amount to an act of deprival, “violating the sprit of the Constitution”. Inasmuch as, the above demeanour/expression, would give an unjust and unwarranted power to the executive, which was not intended by the framers of the Constitution. The Court went on to hold, that the vesting of such power with the executive, would be wholly inappropriate, and in the nature of arbitrary power. It was also noted, that after this Court rendered its decision in the First Judges case, the Law Minister and the Prime Minister were found to be in such a dominant position, that they could appoint a Judge to the higher judiciary, despite his being disapproved (or, even when he was not recommended at all) by the Chief Justice of India (and likewise, by the Chief Justice of the High Court).

Thus, in the view of M.M. Punchhi, J., these details had escaped the notice of the authors of the First Judges case, and corrections were required, in that regard, in the said judgment. Accordingly, it was the contention of the learned senior counsel, that one of the minority Judges had also expressed the same sentiments as had been recorded by the majority, on the subject of primacy of the judiciary in matters regulated under Articles 124, 217 and 222.

57. It was submitted, that the issue in hand was examined threadbare by revisiting the judgment rendered in the First Judges case, when this Court reviewed the matter through the Second Judges case. It was submitted, that during the determination of the Third Judges case, the then Attorney General for India had made a statement to the Bench, that the Union of India, was not seeking a review or reconsideration of the judgment in the Second Judges case. Even though, the opinion tendered by this Court, consequent upon a reference made to the Supreme Court by the President of India under Article 143, is not binding, yet a statement was made by Attorney General for India, that the Union of India had accepted as binding, the answers of this Court to the questions set out in the reference. All this, according to learned counsel, stands recorded in paragraph 11 of the judgment rendered in the Third Judges case. According to learned senior counsel, it was clearly beyond the purview of the Union of India, to seek a revisit of the Second and Third Judges cases.

58. Besides the position expressed in the foregoing paragraphs, even according to the legal position declared by this Court, it was not open to the Union of India and the State Governments, to require this Court to examine the correctness of the judgments rendered in the Second and Third Judges cases. It was submitted, that such a course could only be adopted, when it was established beyond all reasonable doubt, that the previous judgments were erroneous. Insofar as the instant aspect of the matter is concerned, learned counsel placed reliance on Lt. Col. Khajoor Singh v.

Union of India[29] (Bench of 7 Judges), wherefrom learned counsel highlighted the following:

“We have given our earnest consideration to the language of Art. 226 and the two decisions of this Court referred to above. We are of opinion that unless there are clear and compelling reasons, which cannot be denied, we should not depart from the interpretation given in these two cases and indeed from any interpretation given in an earlier judgment of this Court, unless there is a fair amount of unanimity that the earlier decisions are manifestly wrong. This Court should not, except when it is demonstrated beyond all reasonable doubt that its previous ruling, given after due deliberation and full hearing, was erroneous, go back upon its previous ruling, particularly on a constitutional issue.” Reference was also made to the Keshav Mills Co. Ltd. case28, wherein a seven-Judge Bench of this Court held as under:

“It must be conceded that the view for which the learned Attorney-General contends is a reasonably possible view, though we must hasten to add that the view which has been taken by this Court in its earlier decisions is also reasonably possible. The said earlier view has been followed by this Court on several occasions and has regulated the procedure in reference proceedings in the High Courts in this country ever since the decision of this Court in the New Jehangir Mills[1959] INSC 80; , (1960) 1 SCR 249, was pronounced on May 12, 1959. Besides, it is somewhat remarkable that no reported decision has been cited before us where the question about the construction of s. 66(4) was considered and decided in favour of the Attorney-General’s contention. Having carefully weighed the pros and cons of the controversy which have been pressed before us on the present occasion, we are not satisfied that a case has been made out to review and revise our decisions in the case of the New Jehangir Mills and the case of the Petlad Co. Ltd.

(1963) Supp. 1 SCR 871. That is why we think that the contention raised by Mr. Palkhivala must be upheld. In the result, the order passed by the High Court is set aside and the matter is sent back to the High Court with a direction that the High Court should deal with it in the light of the two relevant decisions in the New Jehangir Mills and the Petlad Co. Ltd.” While referring to Ganga Sugar Corporation Ltd. v. State of Uttar Pradesh[30], our attention was drawn to the following observations recorded by the five-Judge Bench:

“28. We are somewhat surprised that the argument about the invalidity of the Act on the score that it is with respect to a controlled industry’ dies hard, despite the lethal decision of this Court in Ch. Tika Ramji case [1956] INSC 30; [1956] SCR 393. Enlightened litigative policy in the country must accept as final the pronouncements of this Court by a Constitution Bench unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions, Pronouncements by Constitution Benches should not be treated so cavalierly as to be revised frequently. We cannot devalue the decisions of this Court to brief ephemerality which recalls the opinion expressed by Justice Roberts of the U.S. Supreme Court in Smith v. Allwright [1944] USSC 108; 321 U.S. 649 at 669 (1944) “that adjudications of the Court were rapidly gravitating ‘into the same class as a restricted railroad ticket, good for this day and train only'”.”

Learned counsel while relying upon Gannon Dunkerley and Co. v. State of Rajasthan[31] (Bench of 5 Judges), referred to the following:

“28. …..We are not inclined to agree. The principles governing reconsideration of an earlier decision are settled by the various decisions of this Court. It has been laid down: “This Court should not, accept when it is demonstrated beyond all reasonable doubt that its previous ruling, given after due deliberation and full hearing, was erroneous, go back upon its previous ruling, particularly on a constitutional issue.” (See: Lt.

Col. Khajoor Singh vs. The Union of India[1960] INSC 266; , (1961) 2 SCR 828). In Keshav Mills Co. Ltd. vs. CIT[1965] INSC 25; , (1965) 2 SCR 908, it has been observed: (SCR pp.

921-22) “…..but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.” xxx xxx xxx

30. Having regard to the observations referred to above and the stand of the parties during the course of arguments before us, we do not consider it appropriate to reopen the issues which are covered by the decision in Builders’ Association case….” Having referred to the above judgments, it was submitted, that it was clearly misconceived for the learned counsel for the respondents, to seek a reference of the controversy, to a larger Bench for the re-examination of the decisions rendered by this Court in the Second and Third Judges cases.

59. Yet another basis for asserting, that the prayer made at the behest of the learned counsel representing the respondents for revisiting the judgments rendered by this Court in the Second and Third Judges cases, was canvassed on the ground that the observations recorded by this Court in the Samsher Singh case11 (in paragraph 149) could neither be understood as stray observations, nor be treated as obiter dicta. The reasons expressed by the learned senior counsel on the above issue were as follows:

“(i) In the other case relating to the independence of the judiciary (re transfer of High Court Judges) – UOI vs. Sankal Chand Seth, (1977) 4 SCC 193 (5J) – as to whether a Judge of a High Court can be transferred to another High Court without his consent, it was decided by majority that he could be: the majority consisted of Justice Chandrachud, Justice Krishna Iyer and Justice Murtaza Fazal Ali.

(ii) The judgment of Justice Krishna Iyer (on behalf of himself and Justice Murtaza Fazal Ali in Sankal Chand Seth – [with which Bhagwati, J. said he was “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 the Constitution, with the Chief Justice of India. The consultation, in order to fulfil its normative function in Article 222(1), must be a real, substantial and effective consultation based on full and proper materials placed before the Chief Justice by the Government. Before giving his opinion the Chief Justice of India would naturally take into consideration all relevant factors and may informally ascertain from the Judge concerned if he has any real personal difficulty or any humanitarian ground on which his transfer may not be directed. Such grounds may be of a wide range including his health or extreme family factors. It is not necessary for the Chief Justice to issue formal notice to the Judge concerned but it is sufficient — although it is not obligatory — if he ascertains these facts either from the Chief Justice of the High Court or from his own colleagues or through any other means which the Chief Justice thinks safe, fair and reasonable. Where a proposal of transfer of a Judge is made the Government must forward every possible material to the Chief Justice so that he is in a position to give an effective opinion. Secondly, although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government because the power under Article 222 cannot be exercised whimsically or arbitrarily. In the case of Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC 36, while interpreting the word “consultation” as appearing in Article 233 of the Constitution this Court observed as follows:

“Consultation with the High Court under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion….We cannot accept this.

Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the prosper the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.

In Samsher Singh’s case[1974] INSC 156; , AIR 1974 SC 2192, one of us has struck the same chord. It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India. It seems to us that the word, ‘consultation’ has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India. Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly.” (iii) Justice Chandrachud (in the course of his judgment) agreeing – in paragraph 41 of Sankalchand Seth followed Shamsher Singh (para 149).” Based on the aforesaid, it was the assertion of the learned senior counsel that even if the contention advanced by the counsel for the respondents was to be accepted, namely, that the decisions rendered by this Court in the above two cases were required to be re-examined, by a reference to a larger Bench, still the observations recorded in paragraph 149 in the Samsher Singh case11 would continue to hold the field, as the review of the same had not been sought.

V. THE CONSIDERATION:

I.

60. In the scheme of the Constitution, the Union judiciary has been dealt in Chapter IV of Part V, and the High Courts in the States, as well as, the Subordinate-courts have been dealt with in Chapters V and VI respectively, of Part VI. The provisions of Parts V and VI of the Constitution, with reference to the Union and the States judiciaries including Subordinate- courts, have arisen for interpretative determination by this Court, on several occasions. We may chronologically notice the determination rendered by this Court, with reference to the above Parts, especially those dealing with the executive participation, in the matters relating to the Union judiciary, 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] INSC 156; (1974) 2 SCC 831 – rendered by a five- Judge Bench, (ii) Union of India v. Sankalchand Himatlal Sheth [1977] INSC 177; (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 a nine-Judge Bench.

This Court on no less than five occasions, has examined the controversy which we are presently dealing with, through Constitution Benches. In the Samsher Singh case11, it was concluded, that in all conceivable cases, consultation with the highest dignitary in the Indian judiciary – the Chief Justice of India, will and should be accepted by the Government of India, in matters relatable to the Chapters and Parts of the Constitution referred to above. In case, it was not so accepted, the Court would have an opportunity to examine, whether any other extraneous circumstances had entered into the verdict of the concerned Minister or the Council of Ministers (headed by the Prime Minister), whose views had prevailed in ignoring the counsel given by the Chief Justice of India. This Court accordingly concluded, that in practice, the last word must belong to the Chief Justice of India. The above position was also further clarified, that rejection of the advice tendered by the Chief Justice of India, would ordinarily be regarded as prompted by oblique considerations, vitiating the order. In a sense of understanding, this Court in the Samsher Singh case11, is seen to have read the term “consultation” expressed in Articles 124 and 217 as conferring primacy to the opinion tendered by the Chief Justice. When the matter came to be examined in the Sankalchand Himatlal Sheth case5, with reference to Article 222, another Constitution Bench of this Court, reiterated the conclusion drawn in the Samsher Singh case11, by holding, that in all conceivable cases, “consultation” with the Chief Justice of India, should be accepted, by the Government of India. And further, that in the event of any departure, it would be open to a court to examine whether, any other circumstances had entered into the verdict of the executive. More importantly, this Court expressly recorded an ardent hope, that the exposition recorded in the Samsher Singh case11, would not fall on deaf ears. No doubt can be entertained, that yet again, this Court read the term “consultation” as an expression, conveying primacy in the matter under consideration, to the view expressed by the Chief Justice. The solitary departure from the above interpretation, was recorded by this Court in the First Judges case, wherein it came to be concluded, that the meaning of the term “consultation” could not be understood as “concurrence”. In other words, it was held, that the opinion tendered by the Chief Justice of India, would not be binding on the executive. The function of appointment of Judges to the higher judiciary, was described as an executive function, and it was held by the majority, that the ultimate power of appointment, unquestionably rested with the President. The opinion expressed by this Court in the First Judges case, was doubted in the Subhash Sharma case4, which led to the matter being re-examined in the Second Judges case, at the hands of a nine-Judge Bench, which while setting aside the judgment rendered in the First Judges case, expressed its opinion in consonance with the judgments rendered in the Samsher Singh case11 and the Sankalchand Himatlal Sheth case5. This Court expressly concluded, in the Second Judges case, that the term “consultation” expressed in Articles 124, 217 and 222 had to be read as vesting primacy with the opinion expressed by the Chief Justice of India, based on a participatory consultative process. In other words, in matters involving Articles 124, 217 and 222, primacy with reference to the ultimate power of appointment (or transfer) was held, to be vesting with the judiciary. The above position came to be reconsidered in the Third Judges case, by a nine-Judge Bench, wherein the then learned Attorney General for India, made a statement, that the Union of India was not seeking a review, or reconsideration of the judgment in the Second Judges case, and further, that the Union of India had accepted the said judgment, and would treat the decision of this Court in the Second Judges case as binding. It is therefore apparent, that the judiciary would have primacy in matters regulated by Articles 124, 217 and 222, was conceded, by the Union of India, in the Third Judges case.

61. We have also delineated hereinabove, the views of the Judges recorded in the First Judges case, which was rendered by a majority of 4:3. Not only, that the margin was extremely narrow, but also, the views expressed by the Judges were at substantial variance, on all the issues canvassed before the Court. The primary reason for recording the view of each of the Judges in the First Judges case hereinbefore, was to demonstrate differences in the deductions, inferences and the eventual outcome. As against the above, on a reconsideration of the matters by a larger Bench in the Second Judges case, the decision was rendered by a majority of 7:2.

Not only was the position clearly expressed, there was hardly any variance, on the issues canvassed. So was the position with the Third Judges case, which was a unanimous and unambiguous exposition of the controversy. We, therefore, find ourselves not inclined to accept the prayer for a review of the Second and Third Judges cases.

62. Having given pointed and thoughtful consideration to the proposition canvassed at the hands of the learned counsel for the respondents, we are constrained to conclude, that the issue of primacy of the judiciary, in the matter of appointment and transfer of Judges of the higher judiciary, having been repeatedly examined, the prayer for a re-look/reconsideration of the same, is just not made out. This Court having already devoted so much time to the same issue, should ordinarily not agree to re-examine the matter yet again, and spend more time for an issue, already well thrashed out. But time has not been the constraint, while hearing the present cases, for we have allowed a free debate, and have taken upon ourselves the task of examining the issues canvassed. Yet, the remedy of review must have some limitations. Mr. Fali S. Nariman, learned senior counsel, is right, in his submission, that the power of review was exercised and stood expended when the First Judges case was reviewed by a larger Bench in the Second Judges case. And for sure, it was wholly unjustified for the Union of India, which had conceded during the course of hearing of the Third Judges case, that it had accepted as binding, the decision rendered in the Second Judges case, to try and reagitate the matter all over again. The matter having been revisited, and the position having been conceded by the Union of India, it does not lie in the mouth of the Union of India, to seek reconsideration of the judicial declaration, in the Second and Third Judges cases. Therefore, as a proposition of law, we are not inclined to accept the prayer of the Union of India and the other respondents, for a re-look or review of the judgments rendered in the Second and Third Judges cases.

All the same, as we have indicated at the beginning of this order, because the matter is of extreme importance and sensitivity, we will still examine the merits of the submissions advanced by learned counsel.

II.

63. The most forceful submission advanced by the learned Attorney General, 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, that the Members of the Constituent Assembly feared, that the process of selection and appointment of Judges to the higher judiciary should not be exclusively vested with the judiciary. The process of appointment of Judges by Judges, it was contended, was described as Imperium in Imperio, during the Constituent Assembly debates. In responding to the above observations, Dr. B.R. Ambedkar while referring to the contents of Article 122 (which was renumbered as Article 124 in the Constitution), had assured the Members of the Constituent Assembly, that the drafted Article had adopted the middle course, while refusing to create an Imperium in Imperio, in such a manner, that the “independence of the judiciary” would be fully preserved. The exact text of the response of Dr. B.R. Ambedkar, has been extracted in paragraph 30 above.

64. It was the contention of the learned Attorney General, that despite the clear intent expressed during the Constituent Assembly debates, not to create an Imperium in Imperio, the Second and Third Judges cases had done just that. It was submitted, that in the process of selection and appointment of Judges to the higher judiciary, being followed since 1993, Judges alone had been appointing Judges. It was also contended, that the Constitution contemplates a system of checks and balances, where each pillar of governance is controlled by checks and balances, exercised by the other two pillars. It was repeatedly emphasized, that in the present system of selection and appointment of Judges to the higher judiciary, the executive has no role whatsoever. It was accordingly the contention of the respondents, that the manner in which Articles 124, 217 and 222 had been interpreted in the Second and Third Judges cases, fell foul of the intent of the Constituent Assembly. This, according to the learned counsel for the respondents, was reason enough, to revisit and correct, the view expressed in the Second and Third Judges cases.

65. It is not possible for us to accept the contention advanced at the hands of the learned counsel for the respondents. Consequent upon the pronouncement of the judgments in the Second and Third Judges cases, a Memorandum of Procedure for Appointment of Judges and Chief Justices to the Higher Judiciary was drawn by the Ministry of Law, Justice and Company Affairs on 30.6.1999. The Memorandum of Procedure aforementioned, is available on the website of the above Ministry. The above Memorandum of Procedure has been examined by us. In our considered view, the Memorandum of Procedure provides for a participatory role, to the judiciary as well as the political-executive. Each of the above components are responsible for contributing information, material and data, with reference to the individual under consideration. While the judicial contribution is responsible for evaluating the individual’s professional ability, the political-executive is tasked with the obligation to provide details about the individual’s character and antecedents. Our analysis of the Memorandum of Procedure reveals, that the same contemplates inter alia the following steps for selection of High Court Judges:

Step 1: The Chief Justice of the concerned High Court has the responsibility of communicating, to the Chief Minister of the State concerned, names of persons to be selected for appointment. Details are furnished to the Chief Minister, in terms of the format appended to the memorandum. Additionally, if the Chief Minister desires to recommend name(s) of person(s) for such appointment, he must forward the same to the Chief 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 High Court collegium, regarding the suitability of the names proposed. The entire consultation must be in writing, and these opinions must be sent to the Chief Minister along with the Chief Justice’s recommendation.

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

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

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

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

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

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

66. We shall venture to delineate the actual consideration at the hands of the executive, in the process of selection and appointment of High Court Judges, in terms of the Memorandum of Procedure, as well as, the actual prevailing practice.

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

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

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

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

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

72. For the reasons recorded by us hereinabove, it is not possible for us to accept, that in the procedure contemplated under the Second and Third Judges cases, Judges at their own select Judges to the higher judiciary, or that, the system of Imperium in Imperio has been created for appointment of Judges to the higher judiciary. It is also not possible for us to accept, that the judgment in the Second Judges case, has interfered with the process of selection and appointment of Judges to the higher judiciary, by curtailing the participatory role of the executive, in the constitutional scheme of checks and balances, in view of the role of the executive fully described above. We find no merit in the instant contention advanced at the hands of the respondents.

III.

73. The learned Attorney General placed emphatic reliance on the Constituent Assembly debates. It was sought to be asserted, that for an apposite understanding of the provisions of the Constitution, it was imperative to refer to the Constituent Assembly debates, which had led to formulating and composing of the concerned Article(s). Reliance was accordingly placed on the debates, which had led to the drafting of Article 124. It was submitted, that the conclusions drawn by this Court, in the Second Judges case, overlooked the fact, that what had been expressly canvassed and raised by various Members of the Constituent Assembly, and rejected on due consideration, had been adopted by the judgment in the Second Judges case. It was, therefore, the contention of the learned Attorney General, that the judgments rendered in the Second and Third Judges cases recorded a view, diagonally opposite the intent and resolve of the Constituent Assembly.

74. For reasons of brevity, it is not essential for us to extract herein the amendments sought by some of the eminent Members of the Constituent Assembly in the draft provision (to which our attention was drawn). At this stage, we need only to refer to paragraph 772 (already extracted above), from the Indra Sawhney case9, in order to record, that it is not essential to refer to individual views of the Members, and that, the view expressed at the end of the debate by Dr. B.R. Ambedkar, would be sufficient to understand what had prevailed, and why. Suffice it to state, that during the course of the Constituent Assembly debates, it was expressly proposed that the term “consultation” engaged in Articles 124 and 217, be substituted by the word “concurrence”. The proposed amendment was however rejected by Dr. B.R. Ambedkar. Despite the above, this Court in the Second and Third Judges cases had interpreted the word “consultation” in clause (2) of Article 124, and clause (1) of Article 217, as vesting primacy in the judiciary, something that was expressly rejected, during the Constituent Assembly debate. And therefore, the contention advanced on behalf of the respondents was, that this Court had interpreted the above provisions, by turning the Constituent Assembly’s intent and resolve, on its head. It was submitted, that the erroneous interpretation recorded in the Second Judges case, was writ large, even on a cursory examination of the debates.

75. We are of the view, that it would suffice, for examining the above contention, to extract herein a relevant part of the response of Dr. B.R.

Ambedkar, to the above noted amendments, in the provisions noted above:

“Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. The first is, how are the Judges of the Supreme Court to be appointed? Now, grouping the different amendments which are related to this particular matter, I find three different proposals. The first proposal is that the Judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. That is one view. The other view is that the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament; and the third suggestion is that they should be appointed in consultation with the Council of States.

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

With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.” The first paragraph extracted hereinabove reveals, that there were three proposals on the issue of appointment of Judges to the Supreme Court. The first proposal was, that the Judges of the Supreme Court should not be appointed by the President in “consultation” with the Chief Justice of India, but should be appointed with the “concurrence” of the Chief Justice of India. The second proposal was, that like in the United States, appointments of Judges to the Supreme Court, should be made by the President, subject to confirmation by the Parliament, through a two-thirds majority. The third proposal was, that Judges of the Supreme Court, should be appointed by the President in “consultation” with the Rajya Sabha.

76. The response of Dr. B.R. Ambedkar to all the suggestions needs a very close examination, inasmuch as, even though rightfully pointed out by the Attorney General, and the learned counsel representing the respondents, all the issues which arise for consideration in the present controversy, were touched upon in the above response. Before dwelling upon the issue, which strictly pertained to the appointment of Judges, Dr. B.R. Ambedkar expressed in unequivocal terms, that the unanimous opinion of the Constituent Assembly was, that “our judiciary must be independent of the executive”. The same sentiment was expressed by Dr. B.R. Ambedkar while responding to K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar and Anathasayanam Ayyangar (extracted in paragraph 30 above) wherein he emphasized, that “…there is no doubt that the House in general, has agreed that the independence of the Judiciary, from the Executive should be made as clear and definite as we could make it by law…” The above assertion made while debating the issue of appointment of Judges to the Supreme Court, effectively acknowledges, that the appointment of Judges to the higher judiciary, has a direct nexus to the issue of “independence of the judiciary”. It therefore, does not lie in the mouth of the respondents to assert, that the subject of “appointment” would not fall within the domain/realm of “independence of the judiciary”.

77. While responding to the second and third proposals referred to above, Dr. B.R. Ambedkar, cited the manner of appointment of Judges in Great Britain, and pointed out, that in the United Kingdom appointments were made by the Crown, without any kind of limitation, and as such, fell within the exclusive domain of the executive. Referring to the system adopted in the United States, he noted, that Judges of the Supreme Court in the United States, could only be appointed with the “concurrence” of the Senate.

Suffice it to state, that the latter reference was to a process of appointment which fell within the domain of the legislature (because the Senate is a legislative chamber in the bicameral legislature of the United States, which together with the U.S. House of Representatives, make up the U.S. Congress). It is important to notice, that he rejected both the systems, where appointments to the higher judiciary were made by the executive, as well as, by the legislature. Dr. B.R. Ambedkar therefore, very clearly concluded the issue by expressing, that it would be improper to leave the appointments of Judges to the Supreme Court, to be made by the President – the executive (i.e., on the aid and advice of the Council of Ministers, headed by the Prime Minister). In the words of Dr. B.R.

Ambedkar, it would be dangerous to leave such appointments in the hands of the executive of the day, without any kind of reservation and limitation.

We are therefore satisfied, that the word “consultation” expressed in Articles 124 and 217, was contemplated by the Constituent Assembly, to curtail the free will of the executive. If that was the true intent, the word “consultation” could never be assigned its ordinary dictionary meaning. And Article 124 (or Article 217) could never be meant to be read with Article 74. It is therefore not possible for us to accept, that the main voice in the matter of selection and appointment of Judges to the higher judiciary was that of the President (expressed in the manner contemplated under Article 74). Nor is it possible to accept that primacy in the instant matter rested with the executive. Nor that, the judiciary has been assigned a role in the matter, which was not contemplated by the provisions of the Constitution. It is misconceived for the respondents to assert, that the determination of this Court in the Second and Third Judges cases was not interpretative in nature, but was factually legislative. Dr.

B.R. Ambedkar, therefore rejected, for the same reasons, the proposal that appointments of Judges to the Supreme Court should be made by the legislature. But the reason he expressed in this behalf was most apt, namely, the procedure of appointing Judges, by seeking a vote of approval by one or the other (or both) House(s) of Parliament would be cumbersome.

More importantly, Dr. B.R. Ambedkar was suspicious and distrustful of the possibility of the appointments being directed and impacted by “political pressure” and “political consideration”, if the legislature was involved.

We are therefore satisfied, that when the Constituent Assembly used the term “consultation”, in the above provisions, its intent was to limit the participatory role of the political-executive in the matter of appointments of Judges to the higher judiciary.

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

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

80. The paragraph following the one, that has been interpreted in the foregoing paragraphs, also leaves no room for any doubt, that the Constituent Assembly did not desire to confer the Chief Justice of India, with a veto power to make appointments of Judges. It is therefore that a consultative process was contemplated under Article 124, as it was originally drafted. The same mandated consultation not only with the Chief Justice of India, but with other Judges of the Supreme Court and the High Courts. Viewed closely, the judgments in the Second and Third Judges cases, were rendered in a manner as would give complete effect to the observations made by Dr. B.R. Ambedkar with reference to Article 124 (as originally incorporated). It is clearly erroneous for the respondents to contend, that the consultative process postulated between the President with the other Judges of the Supreme Court or the High Courts in the States, at the discretion of the President, had been done away with by the Second and Third Judges cases. Nothing of the sort. It has been, and is still open to the President, in his unfettered wisdom, to the consultation indicated in Article 124. Additionally, it is open to the President, to rely on the same, during the course of the mandatory “consultation” with the Chief Justice of India. The above, further demonstrates the executive role in the selection of Judges to the higher judiciary, quite contrary to the submission advanced on behalf of the respondents. We are satisfied, that the entire discussion and logic expressed during the debates of the Constituent Assembly, could be given effect to, by reading the term “consultation” as vesting primacy with the judiciary, on the matter being debated. We are also of the view, that the above debates support the conclusions drawn in the judgments of which review is being sought. For the reasons recorded hereinabove, we find no merit in the submissions advanced by the learned counsel for the respondents based on the Constituent Assembly debates.

IV.

81. The consideration in hand, also has a historic perspective. We would venture to examine the same, from experiences gained, after the Constitution became operational i.e., after the people of this country came to govern themselves, in terms of the defined lines, and the distinctiveness of functioning, set forth by the arrangement and allocation of responsibilities, expressed in the Constitution. In this behalf, it would be relevant to highlight the discussion which took place in Parliament, when the Fourteenth Report of the Law Commission on Judicial Reform (1958) was tabled for discussion, in the Rajya Sabha on 24- 25.11.1959. Replying to the debate on 24.11.1959, Govind Ballabh Pant, the then Union Home Minister’s remarks, as stand officially recorded, were inter alia as under:

“Sir, so far as appointments to the Supreme Court go, since 1950 when the Constitution was brought into force, nineteen Judges have been appointed and everyone of them was so appointed on the recommendation of the Chief Justice of the Supreme Court. I do not know if any other alternative can be devised for this purpose. The Chief Justice of the Supreme Court is, I think, rightly deemed and believed to be familiar with the merits of his own colleagues and also of the Judges and advocates who hold leading positions in different States. So we have followed the advice of the most competent, dependable and eminent person who could guide us in this matter.

Similarly, Sir, so far as High Courts are concerned, since 1950, 211 appointments have been made and out of these except one, i.e., 210 out of 211 were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by Government had the support of all persons who were connected with this matter. As Hon. Members are aware, under, I think, article 217, the Chief Justice of the High Court; the Chief Minister of the State concerned and the Governor first deal with these matters. Then they come to the Home Ministry and are referred by the Ministry to the Chief Justice of India and whatever suggestions or comments he makes are taken into consideration and if necessary, a reference is again made to the Chief Minister and the High Court. But as I said, these 196 appointments were made in accordance with the unanimous advice of the Chief Justice of the High Court, the Chief Minister of the State, the Governor and the Chief Justice of India…” The remarks made by Ashoke Kumar Sen, the then Union Law Minister on 25.11.1959, during the course of the debate pertaining to the Law Commission Report, also need a reference:

“…..it is my duty to point out to the honourable House again, as I did in the Lok Sabha when the Law Commission first sent an interim report – call it an interim report or some report before the final one – pointing out that Judges have been appointed on extraneous considerations, we gave them the facts and figures concerning all the appointments made since 1950. We drew their pointed attention to the fact that, as the Home Minister pointed out yesterday, except in the case of one Judge out of the 176 odd Judges appointed since 1950, all were appointed on the advice of the Chief Justice. With regard to the one there was difference of opinion between the local Chief Justice and the Chief Justice of India and the Government accepted the advice of the local Chief Justice rather than the Chief Justice of India. But it was not their nominee. We should have expected the Law Commission, in all fairness, to have dealt with the communication from the Government giving facts of all the appointments not only of the High Courts but of the Supreme Court. I am not saying that they were obliged to do so, but it is only a fair thing to do, namely, when you bring certain accusation in a solemn document like the Law Commission’s Report, you should deal with all the arguments for and against. We should have expected in all fairness that these facts ought to have been dealt with.

Unfortunately, no facts are set out so that it is impossible to deal with.

If it was said that this had been the case with A, this had been the case with B or C, it would have been easy for us to deal with them. Especially when we had given all the facts concerning the appointment of each and every Judge since 1950.”

82. If one were to draw an inference, from the factual numbers indicated in the statements of the Home Minister and the Law Minister, and the inferences drawn therefrom, it is more than apparent, that the understanding of those in-charge of working the provisions of the Constitution, relating to the appointment of Judges to the higher judiciary, was that, the 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 the Samsher Singh case11, wherein this Court through a seven-Judge Bench held as under:

“In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.”

84. Ever since 1974, when the above judgment was rendered, the above declaration, has held the field, as the above judgment has neither been reviewed nor set aside. It cannot be overlooked, that the observations extracted from the Samsher Singh 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 consultation as envisaged by Article 222(1) of the Constitution. After an effective consultation with the Chief Justice of India, it is open to the President to arrive at a proper decision of the question whether a Judge should be transferred to another High Court because, what the Constitution requires is consultation with the Chief Justice, not his concurrence with the proposed transfer. But it is necessary to reiterate what Bhagwati and Krishna Iyer, JJ., said in Shamsher Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India: “In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order.” (page 873). It is hoped that these words will not fall on deaf ears and since normalcy has now been restored, the differences, if any, between the executive and the judiciary will be resolved by 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 own order through a corrigendum, whereby his order, inter alia, came to be recorded, as under:

“Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all three constitutional functionaries, it would have great weight and if an appointment is made by the Central Government in defiance of such unanimous opinion, it may prima facie be vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds. The same position would obtain if an appointment is made by the Central Government contrary to the unanimous opinion of the Chief Justice of the High Court and the Chief Justice of India.” From the above extract, it is apparent, that the observations recorded by this Court in paragraph 149 in the Samsher Singh case11, were endorsed in the Sankalchand Himatlal Sheth case5, and were also adopted in the First Judges case. The position came to be expressed emphatically in the Second and Third Judges cases, by reading the term “consultation” as vesting primacy with the judiciary, in the matter of appointments of Judges to the higher judiciary. This time around, at the hands of two different nine- Judge Benches, which reiterated the position expressed in the Samsher Singh case11.

86. The above sequence reveals, that the executive while giving effect to the procedure, for appointment of Judges to the higher judiciary (and also, in the matter of transfer of Chief Justices and Judges from one High Court, to another), while acknowledging the participation of the other constitutional functionaries (referred to in Articles 124, 217 and 222), adopted a procedure, wherein primacy in the decision making process, was consciously entrusted with the judiciary. This position was followed, from the very beginning, after the promulgation of the Constitution, by the executive, at its own. Insofar as the legislature is concerned, it is apparent, that the issue came up for discussion, in a responsive manner when the Fourteenth Report of the Law Commission on Judicial Reforms (1958), was discussed by the Parliament, as far back as in 1959, just a few years after the country came to be governed by the Constitution. It is apparent, that when the two Houses of the Parliament, reflected inter alia on Articles 124, 217 and 222, in the matter of appointment of Judges to the higher judiciary, the unanimous feeling which emerged was, that “…the advice of the most competent dependent and eminent person…” – the Chief Justice of India, had been followed rightfully. Two aspects of the parliamentary discussion, which were kept in mind when the issue was deliberated, need to be highlighted. First, that the President meant (for all practical purposes), the concerned Minister, or the Council of Ministers headed by the Prime Minister. And second, that the provisions in question envisaged only a participatory role, of the other constitutional authorities. Therefore, the above affirmation, to the primacy of the judiciary, in the matter of appointment of Judges to the higher judiciary, was consciously recorded, after having appreciated the gamut of the other participating constitutional authorities. In the matter of judicial determination, the issue was examined by a Constitution Bench of the Supreme Court as far back, as in 1974 in the Samsher Singh case11, wherein keeping in mind the cardinal principle – the “independence of the judiciary”, it was concluded, that consultation with the highest dignitary in the judiciary – the Chief Justice of India, in practice meant, that the last word must belong to the Chief Justice of India i.e., the primacy in the matter of appointment of Judges to the higher judiciary, must rest with the judiciary. The above position was maintained in the Sankalchand Himatlal Sheth case5 in 1977, by a five-Judge Bench, only to be altered in the First Judges case, by a seven-Judge Bench in 1981, wherein it was held, that the term “consultation” could not be read as “concurrence”. The position expounded even in this case by P.N. Bhagwati, J. (as he then was), extracted above, must necessarily also be kept in mind. The earlier position was restored in 1993 by a nine-Judge Bench in the Second Judges case (which overruled the First Judges case). The position was again reaffirmed by a nine-Judge Bench, through the Third Judges case.

Historically, therefore, all the three wings of governance, have uniformally maintained, that while making appointments of Judges to the higher judiciary, “independence of the judiciary” was accepted as an integral component of the spirit of the Constitution, and thereby, the term “consultation” used in the provisions under consideration, had to be understood as vesting primacy with the judiciary, with reference to the subjects contemplated under Articles 124, 217 and 222. In view of the above historical exposition, there is really no legitimate reason for the respondents to seek a review of the judgments in the Second and Third Judges cases.

V.

87. Whilst dwelling on the subject of the intention expressed by the Members of the Constituent Assembly, it is considered just and expedient, also to take into consideration the views expressed in respect of the adoption of “separation of powers” in the Constitution. When the draft prepared by the Constituent Assembly came up for debate, Dr. B.R. Ambedkar proposed an amendment of Article 39A. It would be relevant to mention, that the aforesaid amendment, on being adopted, was incorporated as Article 50 in the Constitution (as originally enacted). It is also necessary to notice, that the Government had already commenced to function, with Jawaharlal Nehru as the Prime Minister, when the draft of the Constitution was being debated before the Constituent Assembly. His participation in the debates of the Constituent Assembly, therefore, was not only in his capacity as a Member of the Constituent Assembly, but also, as a representative of the Government of India. It is necessary to extract hereunder, the views expressed by Jawaharlal Nehru, Bakshi Tek Chand and Loknath Misra, in the above debates, relating to “separation of powers”.

Relevant extracts are being reproduced hereunder:

“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 track completely, and to suspect a sinister motive on the part of Government about this business. Government as such is not concerned with this business, but it is true that some members of Government do feel rather strongly about it and would like this House fully to consider the particular view point that Dr. Ambedkar has placed before the House today.

I may say straight off that so far as the Government is concerned, it is entirely in favour of the separation of judicial and executive functions (Cheers). I may further say that the sooner it is brought about the better (Hear, hear) and I am told that some of our Provincial Governments are actually taking steps to that end now. If anyone asked me, if anyone suggested the period of three years or some other period, my first reaction would have been that this period is too long. Why should we wait so long for this? It might be brought about, if not all over India, in a large part of India, much sooner than that. At the same time, it is obvious that India at the present moment, specially during the transitional period, is a very mixed country politically, judicially, economically and in many ways, and any fixed rule of thumb to be applied to every area may be disadvantageous and difficult in regard to certain areas. On the one hand, that rule will really prevent progress in one area, and on the other hand, it may upset the apple-cart in some other area. Therefore, a certain flexibility is desirable. Generally speaking, I would have said that in any such directive of policy, it may not be legal, but any directive of policy in a Constitution must have a powerful effect. In any such directive, there should not be any detail or time-limit etc. It is a directive of what the State wants, and your putting in any kind of time-limit therefore rather lowers it from that high status of a State policy and brings it down to the level of a legislative measure, which it is not in that sense. I would have preferred no time-limit to be there, but speaking more practically, any time-limit in this, as Dr. Ambedkar pointed out, is apt on the one hand to delay this very process in large parts of the country, probably the greater part of the country; on the other hand, in some parts where practically speaking it may be very difficult to bring about, it may produce enormous confusion. I think, therefore, that Dr. Ambedkar’s amendment, far from lessening the significance or the importance of this highly desirable change that we wish to bring about, places it on a high level before the country. And I do not see myself how any Provincial or other Government can forget this Directive or delay it much. After all, whatever is going to be done in the future will largely depend upon the sentiment of the people and the future Assemblies and Parliaments that will meet. But so far as this Constitution is concerned, it gives a strong opinion in favour of this change and it gives it in a way so as to make it possible to bring it about in areas where it can be brought about – the provinces, etc. – and in case of difficulty in any particular State, etc., it does not bind them down. I submit, therefore, that this amendment of Dr. Ambedkar should be accepted.

(Cheers).” “Dr. Bakshi Tek Chand (East Punjab: General): Mr. Vice-President, Sir, I rise to lend my whole hearted support to the amendment which has been moved by Dr. Ambedkar today. The question of the separation of executive and judicial functions is not only as old as the Congress itself, but indeed it is much older. It was in the year 1852 when public opinion in Bengal began to express itself in an organised form that the matter was first mooted.

That was 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, who were the leaders of public opinion in those days, definite proposals with regard to the separation of judicial and executive functions were put forward. Subsequently, the late Man Mohan Ghosh took up this matter and he and Babu Surendranath Bannerji year in and year out raised this question in all public meetings.

When the Congress first met in the session in Bombay in 1885, this reform in the administration was put in the forefront of its programme. Later on, not only politicians of all schools of thought, but even retired officers who had actually spent their lives in the administration, took up the matter and lent their support to it. I very well remember the Lucknow Congress of 1899 when Romesh Chunder Dutt, who had just retired from the Indian Civil Service, presided. He devoted a large part of his presidential address to this subject and created a good deal of enthusiasm for it. Not only that: even retired High Court Judges and Englishmen like Sir Arthur Hobhouse and Sir Arthur Wilson, both of whom subsequently became members of the Judicial Committee of the Privy Council, lent their support to this and they jointly with many eminent Indians submitted a representation to the Secretary 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 many years the President of the Central Legislature, appended a long Minute of Dissent and therein he devoted several pages to this question.

Therefore, Sir, the matter has been before the country for nearly a century and it is time that it is given effect to immediately. One of the Honourable Members who spoke yesterday, observed that this matter was of great importance when we had a foreign Government but now the position has changed, and it may not be necessary to give effect to it. Well, an effective reply to this has been given by the Honourable the Prime Minister today. He has expressly stated that it is the policy of the Government, and it is their intention to see that this reform is given immediate effect to.

xxxx xxxx xxxx I am glad to hear that he confirms it. This gives the quietus to these two objections which have been raised, that because of the changed circumstances, because we have attained freedom, it is no longer necessary and that the financial burden will be so heavy that it might crush provincial Governments. Both these objections are hollow.

One word more I have to say in this connection and that is, that with the advent of democracy and freedom, the necessity of this reform has become all the greater. Formerly it was only the district magistrate and a few members of the bureaucratic Government from whom interference with the judiciary was apprehended, but now, I am very sorry to say that even the Ministers in some provinces and members of political parties have begun to interfere with the free administration of justice. Those of you, who may be reading news paper reports of judicial decisions lately, must have been struck with this type of interference which has been under review in the various High Courts lately. In one province we found that in a case pending in a Criminal Court, the Ministry sent for the record and passed an order directing the trying Magistrate to stay proceedings in the case. This was something absolutely unheard of. The matter eventually went up to the High Court and the learned Chief Justice and another Judge had to pass very strong remarks against such executive interference with the administration of justice.

In another province a case was being tried against a member of the Legislative Assembly and a directive went from the District Magistrate to the Magistrate trying the case not to proceed with it further and to release the man. The Magistrate who was a member of the Judicial Service and was officiating as a Magistrate had the strength to resist this demand.

He had all those letters put on the record and eventually the matter went up to the High Court and the Chief Justice of the Calcutta High Court made very strong remarks about this matter.

Again in the Punjab, a case has recently occurred in which a Judge of the High Court, Mr. Justice Achu Ram, heard a habeas corpus petition and delivered a judgment of 164 pages at the conclusion of which he observed that the action taken by the District Magistrate and the Superintendent of Police against a member of the Congress Party was mala fide and was the result of a personal vendetta. These were his remarks.

In these circumstances, I submit that with the change of circumstances and with the advent of freedom and the introduction of democracy, it has become all the more necessary to bring about the separation of the judiciary from the executive at the earliest possible opportunity.”

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

89. Based on the consideration recorded in the immediately preceding paragraphs also, it seems to us, that the necessity of making a detailed reference to the Constituent Assembly debates in the Second Judges case, may well have been regarded, as of no serious consequence, whether it was on the subject of appointment of Judges to the higher judiciary, as a component of “independence of the judiciary”, or, on the subject of “separation of powers”, whereby the judiciary was sought to be kept apart, and separate, from the executive. This Court having concluded, that the principle of “separation of powers” was expressly ingrained in the Constitution, which removes the executive from any role in the judiciary, the right of the executive to have the final word in the appointment of Judges to the higher judiciary, was clearly ruled out. And therefore, this Court on a harmonious construction of the provisions of the Constitution, in the Second and Third Judges cases, rightfully held, that primacy in the above matter, vested with the judiciary, leading to the inference, that the term “consultation” in the provisions under reference, should be understood as giving primacy to the view expressed by the judiciary, through the Chief Justice of India.

VI.

90. It is imperative to deal with another important submission advanced by the learned Attorney General, namely, that the issue of “independence of the judiciary” has nothing to do with the process of “appointment” of Judges to the higher judiciary. It was submitted, that the question of independence of a Judge arises, only after a Judge has been appointed (to the higher judiciary), for it is only then, that he is to be shielded from the executive/political pressures and influences. It was sought to be elaborated, that Judges of the higher judiciary, immediately after their appointment were so well shielded, that there could be no occasion of the “independence of the judiciary” being compromised, in any manner, either at the hands of the executive, or of the legislature.

91. Whilst advancing the instant contention, it was the pointed assertion of the learned Attorney General, that neither of the judgments rendered in the Second and Third Judges cases had held, that the “selection and appointment” of Judges, to the higher judiciary, would fall within the purview of “independence of the judiciary”. It was therefore his contention, that it was wrongful to assume, on the basis of the above two judgments, that the question of “appointment” of Judges to the higher judiciary would constitute a component of the “basic structure” of the Constitution. It was the contention of the learned Attorney General, that the Parliament, in its wisdom, had now amended the Constitution, admittedly altering the process of “selection and appointment” of Judges to the higher judiciary (including their transfer). It was further contended, that the process contemplated through the Constitution (99th Amendment) Act, coupled with the NJAC Act, was such, that it cannot be considered to have interfered with, or impinged upon, the “independence of the judiciary”, and thus viewed, it would not be rightful to conclude, that the impugned constitutional amendment, as also the NJAC Act, were per se violative of the “basic structure”.

92. We may preface our consideration by noticing, that every two years since 1985, a conference of Supreme Court Chief Justices from the Asia Pacific region, has been held by the Judicial Section of the Law Association for Asia and the Pacific. Since its inception, the conference has served as a useful forum for sharing information and discussing issues of mutual concern among Chief Justices of the region. At its 6th Conference held in Beijing in 1997, 20 Chief Justices adopted a joint Statement of Principles of the “Independence of the Judiciary”. This statement was further refined during the 7th Conference of Chief Justices held in Manila, wherein it was signed by 32 Chief Justices from the Asia Pacific region. The Beijing Statement of Principles of the “Independence of the Judiciary” separately deals with appointment of Judges. The position expressed in the above statement with reference to “appointment” of Judges is extracted hereunder:

“Appointment of Judges

11. To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence.

12.The mode of appointment of judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.

13. In the selection of judges there must no discrimination against a person on the basis of race, colour, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status, expect that a requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory.

14. The structure of the legal profession, and the sources from which judges are drawn within the legal profession, differ in different societies. In some societies, the judiciary is a career service; in others, judges are chosen from the practising profession. Therefore, it is accepted that in different societies, difference procedures and safeguards may be adopted to ensure the proper appointment of judges.

15. In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means of ensuring that those chosen judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representatives the higher Judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.

16. In the absence of a Judicial Services Commission, the procedures for appointment of judges should be clearly defined and formalised and information about them should be available to the public.

17. Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.” Therefore to contend, that the subject of “appointment” is irrelevant to the question of the “independence of the judiciary”, must be considered as a misunderstanding of a well recognized position.

93. Whilst dealing with the instant contention, we will also examine if this Court in the Second and Third Judges cases, had actually dealt with the issue, whether “appointment” of Judges to the higher judiciary, was (or, was not) an essential component of the principle of “independence of the judiciary”? 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 is satisfactorily secured by the constitutional safeguard of the office that a judge holds and guarantees of the service conditions alone and not beyond that, are in our considered opinion, untenable. In fact we are unable even to conceive such an argument for the reason to be presently stated.” In addition to the above extract, it is necessary to refer to the following observations of Kuldip Singh, J.:

“335. Then the question which comes up for consideration is, can there be an independent judiciary when the power of appointment of judges vests in the executive? To say yes, would be illogical….” From the above it is clear, that the issue canvassed by the learned Attorney General, was finally answered by the nine-Judge Bench, which disposed of the Second Judges case by holding, that if the power of “appointment” of Judges, was left to the executive, the same would breach the principle of the “independence of the judiciary”. And also conversely, that providing safeguards after the appointment of a Judge to the higher judiciary, would not be sufficient to secure “independence of the judiciary”. In the above view of the matter, it is necessary to conclude, that the “manner of selection and appointment” of Judges to the higher judiciary, is an integral component of “independence of the judiciary”. The contentions advanced on behalf of the Union of India, indicating the participation of the President and the Parliament, in the affairs of the judiciary, would have no bearing on the controversy in hand, which primarily relates to the issue of “appointment” of Judges to the higher judiciary. And, extends to transfer of Chief Justices and Judges from one High Court, to another. The fact that there were sufficient safeguards, to secure the independence of Judges of the higher judiciary after their “appointment”, and therefore, there was no need to postulate, that in the matter of “appointment” also, primacy need not be in the hands of the judiciary, is also not acceptable. It is quite another matter, whether the manner of selection and appointment of Judges, introduced through the Constitution (99th Amendment) Act coupled with the NJAC Act, can indeed be considered to be violative of “independence of the judiciary”. This aspect, shall be examined and determined independently, while examining the merits of the challenge raised by the petitioners.

VII.

94. A perusal of the provisions of the Constitution reveals, that in addition to the appointment of the Chief Justice of India and Judges of the Supreme Court, under Article 124, the President has also been vested with the authority to appoint Judges and Chief Justices of High Courts under Article 217. In both the above provisions, the mandate for the President, inter alia is, that the Chief Justice of India “shall always be consulted”, (the first proviso, under Article 124(2), as originally enacted), and with reference to Judges of the High Court, the language engaged in Article 217 was, that the President would appoint Judges of High Courts “after consultation with the Chief Justice of India” (per sub-Article (1) of Article 217).

95. To understand the term “consultation” engaged in Articles 124 and 217, it is essential to contrast the above two provisions, with other Articles of the Constitution, whereunder also, the President is mandated to appoint different constitutional authorities. Reference in this behalf may be made to the appointment of the Comptroller and Auditor-General of India, under Article 148. The said provision vests the authority of the above appointment with the President, without any consultative process. The position is exactly similar with reference to appointment of Governors of States, under Article 155. The said provision also contemplates appointments, without any consultative process. The President is also vested with the authority, to appoint the Chairman and four Members of the Finance Commission, under Article 280. Herein also, the power is exclusively vested with the President, without any consultative process.

The power of appointment of Chairman and other Members of the Union Public Service Commission, is also vested with the President under Article 316.

The aforesaid appointment also does not contemplate any deliberation, with any other authority. Under Article 324, the power of appointment of Chief Election Commissioner and Election Commissioners is vested with the President exclusively. Likewise, is the case of appointment of Chairperson, Vice-Chairperson and Members of the National Commission for Scheduled Castes under Article 338, and Chairperson, Vice-Chairperson and other Members of the National Commission for Scheduled Tribes under Article 338A.

Under the above stated provisions, the President has the exclusive authority to make appointments, without any deliberation with any other authority. Under Article 344, the President is also vested with the authority to appoint Chairman and other Members to the Commission of Parliament on Official Languages. The instant provision also does not provide for any consultative process before such appointment. The same position emerges from Article 350B, whereunder the President is to appoint a Special Officer for Linguistic Minorities. Herein too, there is no contemplation of any prior consultation.

96. It is apparent that the Council of Ministers, with the Prime Minister as its head, is to “aid and advise” the President in the exercise of his functions. This position is not disputed by the learned counsel representing the respondents. Interpreted in the above manner, according to the learned Attorney General, in exercising his responsibilities under Articles 124, 217, 148, 155, 280, 316, 324, 338, 338A, 344 and 350B, the President is only a figurative authority, whereas truthfully, the authority actually vests in the Council of Ministers headed by the Prime Minister.

And as such, for all intents and purposes, the authority vested in the President for appointing different constitutional authorities, truly means that the power of such appointment is vested in the executive.

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

98. If “aid and advice” can be binding and mandatory, surely also, the term “consultation”, referred to in Articles 124 and 217, could lead to the same exposition. The President of India, being the first citizen of the country, is entitled to respectability. Articles 124 and 217, were undoubtedly couched in polite language, as a matter of constitutional courtesy, extended to the first citizen of the country. It is important to notice, that the first proviso under Article 124(2) clearly mandates, that the Chief Justice of India “shall always” be consulted. It was a reverse obligation, distinguishable from Article 74. Herein, the President was obliged to consult the Chief Justice of India, in all matters of appointment of Judges to the Supreme Court. The process of “consultation” contemplated therein, has to be meaningfully understood. If it was not to be so, the above provision could have been similarly worded as those relating to the appointment of the Comptroller and Auditor-General of India, Governors of States, Chairman and Members of the Finance Commission, Chairman and Members of the Union Public Service Commission, Chief Election Commissioner and Election Commissioners, Chairperson and Vice Chairperson and Members of the National Commission for Scheduled Castes, as also, those of the National Commission for Scheduled Tribes. This contrast between Articles 124 and 217 on the one hand, and the absence of any “consultation”, with reference to the appointments contemplated under Articles 148, 155, 280, 316, 324, 338, 338A, 344 and 350B, leaves no room for any doubt, that the above “consultation” was not a simplicitor “consultation”. And since, the highest functionary in the judicial hierarchy was obliged to be consulted, a similar respectability needed to be bestowed on him. What would be the worth of the mandatory “consultation”, with the Chief Justice of India, if his advice could be rejected, without any justification? It was therefore, concluded by this Court, that in all conceivable cases, consultation with the highest dignitary in the judiciary – the Chief Justice of India, will and should be accepted. And, in case it was not so acceptd, it would be permissible to examine whether such non acceptance was prompted by any oblique consideration. Rightfully therefore, the term “consultation” used in Articles 124 and 217, as they were originally enacted meant, that primacy had to be given to the opinion tendered by the Chief Justice of India, on the issues for which the President was obliged to seek such “consultation”.

The submission advanced on behalf of the respondents, cannot be accepted, 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 to the higher judiciary, is in contrast with that of the constitutional authorities referred to by the learned Attorney General, the submission advanced on behalf of the respondents with reference to the other constitutional authorities cannot have a bearing on the present controversy.

99. We would unhesitatingly accept and acknowledge the submission made by the learned Attorney General, as has been noticed hereinabove, but only limited to situations of appointment contemplated under various Articles of the Constitution, where the power of appointment is exclusively vested with the President. As such, there is no room for any doubt that the provisions of the Constitution, with reference to the appointment of Judges to the higher judiciary, contemplated that the “aid and advice” (- the “consultation”) tendered by the Chief Justice of India, was entitled to primacy, on matters regulated under Articles 124 and 217 (as also, under Article 222).

VIII.

100. In continuation with the conclusions drawn in the foregoing analysis, the matter can be examined from another perspective as well. The term “consultation” (in connection with, appointments of Judges to the higher judiciary) has also been adopted in Article 233 on the subject of appointment of District Judges. Under Article 233, the power of appointment is vested with the Governor of the concerned State, who is empowered to make appointments (including promotions) of District Judges. This Court, through a five-Judge Bench, in Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy[32], has held, that recommendations made by the High Court in the consultative process envisaged under Article 233, is binding on the Governor. In the face of the aforestated binding precedent, on a controversy, which is startlingly similar to the one in hand, and has never been questioned, it is quite ununderstandable how the Union of India, desires to persuade this Court, to now examine the term “consultation” differently with reference to Articles 124 and 217, without assailing the meaning given to the aforesaid term, with reference to a matter also governing the judiciary.

VI. CONCLUSION:

101. Based on the conclusions drawn hereinabove, while considering the submissions advanced by the learned counsel for the rival parties, as have been recorded in “V – The Consideration”, we are of the view, that the prayer made at the hands of the learned counsel for the respondents, for revisiting or reviewing the judgments rendered by this Court, in the Second and Third Judges cases, cannot be acceded to. The prayer is, accordingly, hereby declined.

…………………………….J.

(Jagdish Singh Khehar) New Delhi;

October 16, 2015.

THE ORDER ON MERITS I. PREFACE:

1. It is essential to begin the instant order by a foreword, in the nature of an explanation. For, it would reduce the bulk of the instant order, and obviate the necessity to deal with issues which have been considered and dealt with, while hearing the present set of cases.

2. The question which arises for consideration in the present set of cases pertains to the constitutional validity of the Constitution (Ninety- ninth Amendment) Act, 2014 [hereinafter referred to as the Constitution (99th Amendment) Act], as also, that of the National Judicial Appointments Commission Act, 2014 (hereinafter referred to as, the NJAC Act). The core issue that arises for consideration, relates to the validity of the process of selection and appointment of Judges to the higher judiciary (i.e., Chief Justices and Judges of the High Courts and the Supreme Court), and transfer of Chief Justices and Judges of one High Court, to another.

3. This is the third order in the series of orders passed by us, while adjudicating upon the present controversy. The first order, dealt with the prayer made at the Bar, for the “recusal” of one of us (J.S. Khehar, J.) from hearing the present set of cases. As and when a reference is made to the above first order, it would be adverted to as the “Recusal Order”. The second order, considered the prayer made by the learned Attorney General and some learned counsel representing the respondents, seeking a “reference” of the present controversy, to a nine-Judge Bench (or even, to a further larger Bench) for re-examining the judgment rendered in Supreme Court Advocates-on-Record Association v. Union of India2 (hereinafter referred to as, the Second Judges case), and the advisory opinion in Re:

Special Reference No.1 of 19983 (hereinafter referred to, as the Third Judges case), for the alleged object of restoring and re-establishing, the declaration of the legal position, expounded by this Court in S.P. Gupta v.

Union of India1 (hereinafter referred to as, the First Judges case). As and when a reference is made to the above second order, it would be mentioned as the “Reference Order”.

4. We would, therefore, not examine the issues dealt with in the Recusal Order and/or in the Reference Order, even though they may arise for consideration yet again, in the process of disposal of the present controversy on merits. As and when a reference is made to the instant third order, examining the “merits” of the controversy, it would be adverted to as the “Order on Merits”.

provided for in Article 368, it was submitted by Mr. Fali S. Nariman, Senior Advocate, that the power of amendment of the Constitution is not a plenary power. It was pointed out, that the above power was limited, inasmuch as, the power of amendment did not include the power of amending the “core” or the “basic structure” of the Constitution. In this behalf, learned counsel placed reliance on Minerva Mills Ltd. v. Union of India[33], wherein majority view was expressed through Y.V. Chandrachud, CJ., as under:

“17. Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.” In the above judgment, the minority view was recorded by P.N. Bhagwati, J., (as he then was), as under:

“88. That takes us to clause (5) of Article 368. This clause opens with the words “for the removal of doubts” and proceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368. It is difficult to appreciate the meaning of the opening words “for the removal of doubts” because the majority decision in Kesavananda Bharati case : AIR 1973 SC 1461 clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the amendatory power of Parliament and in Indira Gandhi case : [1976] 2 SCR 341, all the judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329-A(4) was to be judged. Therefore, after the decisions in Kesavananda Bharati case and Indira Gandhi case, there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not exist. What clause (5), really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one.

This was clearly and indubitably a futile exercise on the part of Parliament. I fail to see how Parliament which has only a limited power of amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basic structure. That would clearly be in excess of the limited amending power possessed by Parliament. The Constitution has conferred only a limited amending power on Parliament so that it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. It is difficult to appreciate how Parliament having a limited power of amendment can get rid of the limitation by exercising that very power and convert it into an absolute power. Clause (5) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute must therefore be held to be outside the amending power of Parliament. There is also another ground on which the validity of this clause can be successfully assailed. This clause seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which, as pointed out above, is itself an essential feature of the Constitution and it is therefore violative of the basic structure. I would in the circumstances hold clause (5) of Article 368, to be unconstitutional and void.” With reference to the same proposition, learned counsel placed reliance on Kihoto Hollohan v. Zachillhu[34]. It was submitted, that the acceptance of the principle of “basic structure” of the Constitution, resulted in limiting the amending power postulated in Article 368.

6. According to the learned counsel, it is now accepted, that “independence of the judiciary”, “rule of law”, “judicial review” and “separation of powers” are components of the “basic structure” of the Constitution. In the above view of the matter, provisions relating to appointment of Judges to the higher judiciary, would have to be such, that the above principles would remain unscathed and intact. It was submitted, that any action which would have the result of making appointment of the Judges to the Supreme Court, and to the High Courts, subservient to an agency other than the judiciary itself, namely, by allowing the executive or the legislature to participate in their selection and appointment, would render the judiciary subservient to such authority, and thereby, impinge on the “independence of the judiciary”.

7. Learned counsel invited the Court’s attention to the 1st Law Commission Report on “Reform of Judicial Administration” (14th Report of the Law Commission of India, chaired by M.C. Setalvad), wherein it was debated, that by enacting Articles 124 and 217, the framers of the Constitution had endeavoured to put the Judges of the Supreme Court “above executive control”. Paragraph 4 of the said Report is being extracted hereunder:

“(Appointment and removal of Judges)

4. Realizing the importance of safeguarding the independence of the judiciary, the Constitution has provided that a Judge of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India and after consultation with such of the other Judges of the Supreme Court and the High Courts as he may deem necessary. He holds office till he attains the age of 65 years and is irremovable except on the presentation of an address by each House of Parliament passed by a specified majority on the ground of proved misbehaviour or incapacity.

Thus has the Constitution endeavoured to put Judges of the Supreme Court above executive control.”

8. It was submitted, that “independence of the judiciary” had been held to mean and include, insulation of the higher judiciary from executive and legislative control. In this behalf, reference was made to Union of India v. Sankalchand Himatlal Sheth5, wherein this Court had observed:

“50. Now the independence of the judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document. It is indeed a part of our ancient tradition which has produced great Judges in the past. In England too, from where we have inherited our present system of administration of justice in its broad and essential features, judicial independence is prized as a basic value and so natural [pic]and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it is now almost taken for granted and it would be regarded an act of insanity for any one to think otherwise. But this has been accomplished after a long fight culminating in the Act of Settlement, 1688. Prior to the enactment of that Act, a Judge in England held tenure at the pleasure of the Crown and the Sovereign could dismiss a Judge at his discretion, if the Judge did not deliver judgments to his liking. No less illustrious a Judge than Lord Coke was dismissed by Charles I for his glorious and courageous refusal to obey the King’s writ de non procedendo rege inconsulto commanding him to step or to delay proceedings in his Court. The Act of Settlement, 1688 put it out of the power of the Sovereign to dismiss a Judge at pleasure by substituting ‘tenure during good behaviour’ for ‘tenure at pleasure’. The Judge could then say, as did Lord Bowen so eloquently:

These are not days in which any English Judge will fail to assert his right to rise in the proud consciousness that justice is administered in the realms of Her Majesty the Queen, immaculate, unspotted, and unsuspected.

There is no human being whose smile or frown, there is no Government, Tory or Liberal, whose favour or disfavour can start the pulse of an English Judge upon the Bench, or move by one hair’s breadth the even equipoise of the scales of justice.

The framers of our Constitution were aware of these constitutional developments in England and they were conscious of our great tradition of judicial independence and impartiality and they realised that the need for securing the independence of the judiciary was even greater under our Constitution than it was in England, because ours is a federal or quasi- federal Constitution which confers fundamental rights, enacts other constitutional limitations and arms the Supreme Court and the High Courts with the power of judicial review and consequently the Union of India and the States would become the largest single litigants before the Supreme Court and the High Courts. Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab, [1974] INSC 156; (1974) 2 SCC 831, can become “fearless and free only if institutional immunity and autonomy are guaranteed”. The Constitution-makers, therefore, enacted several provisions designed to secure the independence of the superior judiciary by insulating it from executive or legislative control. I shall briefly refer to these provisions to show how great was the anxiety of the constitution-makers to ensure the independence of the superior judiciary and with what meticulous care they made provisions to that end.” In continuation of the instant submission, learned counsel placed reliance on the Second Judges case, and drew our attention to the following observations recorded by S. Ratnavel Pandian, J.:

“54. Having regard to the importance of this concept the Framers of our Constitution having before them the views of the Federal Court and of the High Court have said in a memorandum:

“We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a democratic system of [pic]government is of the highest importance and interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high-handed exercise of power by the executive … in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent and efficient judiciary has been steadily kept in view. (vide B. Shiva Rao:

The Framing of India’s Constitution, Volume I-B, p. 196)

55. In this context, we may make it clear by borrowing the inimitable words of Justice Krishna Iyer, “Independence of the judiciary is not genuflexion, nor is it opposition of Government”. Vide Mainstream – November 22, 1980 and at one point of time Justice Krishna Iyer characterised this concept as a “Constitutional Religion”.

56. Indisputably, this concept of independence of judiciary which is inextricably linked and connected with the constitutional process related to the functioning of judiciary is a “fixed-star” in our constitutional consultation and its voice centres around the philosophy of the Constitution. The basic postulate of this concept is to have a more effective judicial system with its full vigour and vitality so as to secure and strengthen the imperative confidence of the people in the administration of justice. It is only with the object of successfully achieving this principle and salvaging much of the problems concerning the present judicial system, it is inter alia, contended that in the matter of appointment of Judges to the High Courts and Supreme Court ‘primacy’ to the opinion of the CJI which is only a facet of this concept, should be accorded so that the independence of judiciary is firmly secured and protected and the hyperbolic executive intrusion to impose its own selectee on the superior judiciary is effectively controlled and curbed.” And from the same judgment, reference was made to the following observations of Kuldip Singh, J.:

“335. Then the question which comes up for consideration is, can there be an independent judiciary when the power of appointment of judges vests in the executive? To say yes, would be illogical. The independence of judiciary is inextricably linked and connected with the constitutional process of appointment of judges of the higher judiciary. ‘Independence of Judiciary’ is the basic feature of our Constitution and if it means what we have discussed above, then the Framers of the Constitution could have never intended to give this power to the executive. Even otherwise the Governments – Central or the State – are parties before the Courts in large number of cases. The Union Executive have vital interests in various important matters which come for adjudication before the Apex Court. The executive – in one form or the other – is the largest single litigant before the courts. In this view of the matter the judiciary being the mediator – between the people and the executive – the Framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the executive.

This Court in S.P. Gupta v. Union of India, 1981 Supp SCC 87 proceeded on the assumption that the independence of judiciary is the basic feature of the Constitution but failed to appreciate that the interpretation, it gave, was not in conformity with broader facets of the two concepts – ‘independence of judiciary’ and ‘judicial review’ – which are interlinked.” Based on the above conclusions, it was submitted, that “independence of the judiciary” could be maintained, only if appointments of Judges to the higher judiciary, were made by according primacy to the opinion of the Chief Justice, based on the decision of a collegium of Judges. Only then, the executive and legislative intrusion, could be effectively controlled and curbed.

9. Learned counsel, then ventured to make a reference to the frequently quoted speech of Dr. B.R. Ambedkar (in the Constituent Assembly on 24.5.1949). It was submitted, that the above speech was duly considered in the Second Judges case, wherein this Court concluded as under:

“389. Having held that the primacy in the matter of appointment of Judges to the superior courts vests with the judiciary, the crucial question which arises for consideration is whether the Chief Justice of India, under the Constitution, acts as a “persona designata” or as the leader – spokesman for the judiciary.

390. The constitutional scheme does not give primacy to any individual.

Article 124(2) provides consultation with the Chief Justice of India, Judges of the Supreme Court and Judges of the High Courts. Likewise Article 217(1) talks of Chief Justice of India and the Chief Justice of the High Court. Plurality of consultations has been clearly indicated by the Framers of the Constitution. On first reading one gets the impression as if the Judges of the Supreme Court and High Courts have not been included in the process of consultation under Article 217(1) but on a closer scrutiny of the constitutional scheme one finds that this was not the intention of the Framers of the Constitution. There is no justification, whatsoever, for excluding the puisne Judges of the Supreme Court and of the High Court from the “consultee zone” under Article 217(1) of the Constitution.

391. According to Mr Nariman it would not be a strained construction to construe the expressions “Chief Justice of India” and “Chief Justice of the High Courts” in the sense of the collectivity of Judges, the Supreme Court as represented by the Chief Justice of India and all the High Courts (of the States concerned) as represented by the Chief Justice of the High Court. A bare reading of Articles 124(2) and 217(1) makes it clear that the Framers of the Constitution did not intend to leave the final word, in the matter of appointment of Judges to the superior Courts, in the hands of any individual howsoever high he is placed in the constitutional hierarchy.

Collective wisdom of the consultees is the sine qua non for such appointments. Dr B.R. Ambedkar in his speech dated May 24, 1949 in the Constituent Assembly explaining the scope of the draft articles pertaining to the appointment of Judges to the Supreme Court … xxx xxx xxx 392. Dr Ambedkar did not see any difficulty in the smooth operation of the constitutional provisions concerning the appointment of Judges to the superior Courts. Having entrusted the work to high constitutional functionaries the Framers of the Constitution felt assured that such appointments would always be made by consensus. It is the functioning of the Constitution during the past more than four decades which has brought the necessity of considering the question of primacy in the matter of such appointments. Once we hold that the primacy lies with the judiciary, then it is the judiciary as collectivity which has the primal say and not any individual, not even the Chief Justice of India. If we interpret the expression “the Chief Justice of India” as a “persona designata” then it would amount “to allow the Chief Justice practically veto upon the appointment of Judges” which the Framers of the Constitution in the words of Dr Ambedkar never intended to do. We are, therefore, of the view that the expressions “the Chief Justice of India” and the “Chief Justice of the High Court” in Articles 124(2) and 217(1) of the Constitution mean the said judicial functionaries as representatives of their respective courts.” In conjunction with the observations extracted hereinabove, the Court’s attention was also invited to the following further conclusions:

“466. It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’ which is given greater significance or primacy in the matter of appointments. In other 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 the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other Judges who are traditionally associated with this function.

467. In view of the primacy of judiciary in this process, the question next, is of the modality for achieving this purpose. The indication in the constitutional provisions is found from the reference to the office of the Chief Justice of India, which has been named for achieving this object in a pragmatic manner. The opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’, is to be obtained by consultation with the Chief Justice of India; and it is this opinion which has primacy.

468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability;

the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister.”

10. It was the emphatic contention of the learned counsel, that the conclusions recorded by this Court in the Second Judges case, had been accepted by the executive and the legislature. It was acknowledged, that in the matter of appointment of Judges to the higher judiciary, primacy would vest with the judiciary, and further that, the opinion of the judiciary would have an element of plurality. This assertion was sought to be further established, by placing reliance on the Third Judges case. It was submitted, that the conclusions of the majority judgment, in the Second Judges case, were reproduced in paragraph 9 of the Third Judges case, and thereupon, this Court recorded the statement of the then Attorney General, that through the Presidential Reference, the Union of India was not seeking, a review or reconsideration, of the judgment in the Second Judges case. And that, the Union of India had accepted the above majority judgment, as binding. In this context, paragraphs 10 to 12 of the Third Judges case, which were relied upon, are being reproduced below:

“10. We have heard the learned Attorney General, learned counsel for the interveners and some of the High Courts and the Advocates General of some States.

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 the judgment in the Second Judges case (1993) 4 SCC 441 and that (2) the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference.

12. The majority view in the Second Judges case (1993) 4 SCC 441 is that in the matter of appointments to the Supreme Court and the High Courts, the opinion of the Chief Justice of India has primacy. The opinion of the Chief Justice of India is “reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation”. It is to be formed “after taking into account the view of some other Judges who are traditionally associated with this function”. The opinion of the Chief Justice of India “so given has primacy in the matter of all appointments”. For an appointment to be made, it has to be “in conformity with the final opinion of the Chief Justice of India formed in the manner indicated”. It must follow that an opinion formed by the Chief Justice of India in any manner other than that indicated has no primacy in the matter of appointments to the Supreme Court and the High Courts and the Government is not obliged to act thereon.” [pic]

11. Learned counsel invited the Court’s attention, to the third conclusion drawn in Madras Bar Association v. Union of India[35], which is placed below:

“136.(iii) The “basic structure” of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.” Learned counsel then asserted, that the “basic structure” of the Constitution would stand violated if, in amending the Constitution and/or enacting legislation, Parliament does not ensure, that the body newly created, conformed with the salient characteristics and the standards of the body sought to be substituted. It was asserted, that the salient features of the existing process of appointment of Judges to the higher judiciary, which had stood the test of time, could validly and constitutionally be replaced, but while substituting the prevailing procedure, the salient characteristics which existed earlier, had to be preserved. By placing reliance on Articles 124 and 217, it was asserted, that the above provisions, as originally enacted, were explained by decisions of this Court, starting from 1974 in Samsher Singh v. State of Punjab11, followed by the Sankalchand Himatlal Sheth case5 in 1977, and the Second Judges case in 1993, and finally endorsed in 1998 by the Third Judges case. It was submitted, that four Constitution Benches of the Supreme Court, had only affirmed the practice followed by the executive since 1950 (when the people of this country, agreed to be governed by the Constitution). It was pointed out, that the process of appointment of Judges to the higher judiciary, had continued to remain a participatory consultative process, wherein the initiation of the proposal for appointment of a Judge to the Supreme Court, was by the Chief Justice of India; and in the case of appointment of Judges to High Courts, by the Chief Justice of the concerned High Court. And that, for transfer of a Judge/Chief Justice of a High Court, to another High Court, the proposal was initiated by the Chief Justice of India. It was contended, that in the process of taking a decision on the above matters (of appointment and transfer), the opinion of the judiciary was symbolized through the Chief Justice of India, and the same was based on the decision of a collegium of Judges, since 1993 – when the Second Judges case was decided. The only exception to the above rule, according to learned counsel, was when the executive, based on stated strong cogent reasons (disclosed to the Chief Justice of India), felt otherwise. However, if the stated reasons, as were disclosed to the Chief Justice of India, were not accepted, the decision of a collegium of Judges on reiteration, would result in the proposed appointment/transfer. This, according to learned counsel, constituted the earlier procedure under Articles 124 and 217. The aforesaid procedure, was considered as sufficient, to preserve the “independence of the judiciary”.

12. According to learned counsel, it needed to be determined, whether the NJAC now set up, had the same or similar characteristics, in the matter of appointments/transfers, which would preserve the “independence of the judiciary”? Answering the query, learned counsel was emphatic, that the primacy of the judiciary, had been totally eroded through the impugned constitutional amendment. For the above, learned counsel invited our attention to Article 124A inserted by the Constitution (99th Amendment) Act. It was submitted, that the NJAC contemplated under Article 124A would comprise of six Members, namely, the Chief Justice of India, two senior Judges of the Supreme Court (next to the Chief Justice), the Union Minister in charge of Law and Justice, and two “eminent persons”. It was submitted, that the judges component, which had the primacy (and in a manner of understanding – unanimity), under the erstwhile procedure, had now been reduced to half-strength, in the selecting body – the NJAC. It was pointed out, that the Chief Justice of India, would now have an equivalent voting right, as the other Members of the NJAC. It was submitted, that even though the Chief Justice of India would be the Chairman of the NJAC, he has no casting vote, in the event of a tie. It was submitted, that under the substituted procedure, even if the Chief Justice of India, and the two other senior Judges of the Supreme Court (next to the Chief Justice of India), supported the appointment/transfer of an individual, the same could be negatived, by any two Members of the NJAC. Even by the two “eminent persons” who may have no direct or indirect nexus with the process of administration of justice. It was therefore submitted, that the primacy vested with the Chief Justice of India had been fully and completely eroded.

13. With reference to the subject of primacy of the judiciary, it was asserted, that under the system sought to be substituted, the proposal for appointment of Judges to the Supreme Court, could only have been initiated by the Chief Justice of India. And likewise, the proposal for transfer of a Judge or the Chief Justice of a High Court, could only have been initiated by the Chief Justice of India. And likewise, the proposal for appointment of a Judge to a High Court, could only have been initiated by the Chief Justice of the concerned High Court. In order to demonstrate the changed position, learned counsel placed reliance on Article 124B introduced by the Constitution (99th Amendment) Act, whereunder, the authority to initiate the process, had now been vested with the NJAC.

Under the new dispensation, the NJAC alone would recommend persons for appointment as Judges to the higher judiciary. It was also apparent, according to learned counsel, that the NJAC has now been bestowed with the exclusive responsibility to recommend transfers of Chief Justices and Judges of High Courts. Having described the aforesaid alteration as a total subversion of the prevailing procedure, which had stood the test of time, and had secured the independence of the process of appointment and transfer of Judges of the higher judiciary, it was pointed out, that the Parliament had not disclosed the reasons, why the primacy of the Chief Justice of India and the other senior Judges, had to be dispensed with. Or for that matter, why the prevailing procedure needed to be altered. It was further the contention of learned counsel, that the non-disclosure of reasons, must inevitably lead to the inference, that there were no such reasons.

14. Dr. Rajeev Dhavan, learned senior counsel, also advanced submissions, with reference to the “basic structure”, and the scope of amending the provisions of the Constitution. Dwelling upon the power of Parliament to amend the Constitution, it was submitted, that this Court in Kesavananda Bharati v. State of Kerala10, had declared, that the “basic structure” of the Constitution, was not susceptible or amenable to amendment. Inviting our attention to Article 368, it was submitted, that the power vested with the Parliament to amend the Constitution, contemplated the extension of the constituent power, which was exercised by the Constituent Assembly, while framing the Constitution. It was pointed out, that in exercise of the above power, the Parliament had been permitted to discharge the same role as the Constituent Assembly. The provisions of the Constitution, it was asserted, could be amended, to keep pace with developments in the civil society, so long as the amendment was not in violation of the “basic structure” of the Constitution. It was submitted, that it was not enough, in the facts and circumstances of the present case, to determine the validity of the constitutional amendment in question, by limiting the examination to a determination, whether or not the “independence of the judiciary” stood breached, on a plain reading of the provisions sought to be amended. It was asserted, that it was imperative to take into consideration, judgments rendered by this Court, on the subject. It was asserted, that this Court was liable to examine the declared position of law, in the First, Second and Third Judges cases, insofar as the present controversy was concerned. According to learned counsel, if the enactments under challenge, were found to be in breach of the “basic structure” of the Constitution, as declared in the above judgments, the impugned constitutional amendment, as also, the legislation under reference, would undoubtedly be constitutionally invalid.

15. In the above context, learned counsel pointed out, that with reference to an amendment to the fundamental right(s), enshrined in Part III 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. It was submitted, that the change through the impugned amendment to the Constitution, (and by the NJAC Act) was not a peripheral change, but was a substantial one, which was also seemingly irreversible. And therefore, according to learned counsel, its validity would have to be determined, on the basis of the width and the identity tests. It was submitted, that the width and the identity tests were different from the tests applicable for determining the validity of ordinary parliamentary legislation, or a constitutional amendment relating to fundamental rights. The manner of working out the width and the identity tests, it was submitted, had been laid down in the M. Nagaraj case36, wherein this Court held:

“9. On behalf of the respondents, the following arguments were advanced.

The power of amendment under Article 368 is a “constituent” power and not a “constituted power”; that, that there are no implied limitations on the constituent power under Article 368; that, the power under Article 368 has to keep the Constitution in repair as and when it becomes necessary and thereby protect and preserve the basic structure. In such process of amendment, if it destroys the basic feature of the Constitution, the amendment will be unconstitutional. The Constitution, according to the respondents, is not merely what it says. It is what the last interpretation of the relevant provision of the Constitution given by the Supreme Court which prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment under Article 368. An interpretation placed by the Court on any provision of the Constitution gets inbuilt in the provisions interpreted.

Such articles are capable of amendment under Article 368. Such change of the law so declared by the Supreme Court will not merely for that reason alone violate the basic structure of the Constitution or amount to usurpation of judicial power. This is how the Constitution becomes dynamic.

Law has to change. It requires amendments to the Constitution according to the needs of time and needs of society. It is an ongoing process of judicial and constituent powers, both contributing to change of law with the final say in the judiciary to pronounce on the validity of such change of law effected by the constituent power by examining whether such amendments violate the basic structure of the Constitution. On every occasion when a constitutional matter comes before the Court, the meaning of the provisions of the Constitution will call for interpretation, but every interpretation of the article does not become a basic feature of the Constitution. That, there are no implied limitations on the power of Parliament under Article 368 when it seeks to amend the Constitution.

However, an amendment will be invalid, if it interferes with or undermines the basic structure. The validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic features of the Constitution.”

16. It was submitted, that whilst the Parliament had the power to amend the Constitution; the legislature (- or the executive), had no power to either interpret the Constitution, or to determine the validity of an amendment to the provisions of the Constitution. The power to determine the validity of a constitutional amendment, according to learned counsel, exclusively rests with the higher judiciary. Every amendment had to be tested on the touchstone of “basic structure” – as declared by the judiciary. It was submitted, that the aforesaid power vested with the judiciary, could not be withdrawn or revoked. This, according to learned counsel, constituted the fundamental judicial power, and was no less significant/weighty than the legislative power of Parliament. The importance of the power of judicial review vested with the higher judiciary (to examine the validity of executive and legislative actions), bestowed superiority to the judiciary over the other two pillars of governance.

This position, it was pointed out, was critical to balance the power surrendered by the civil society, in favour of the political and the executive sovereignty.

17. In order to determine the validity of the submissions advanced on behalf of the petitioners, we were informed, that the interpretation placed by the Supreme Court on Articles 124 and 217 (as they existed, prior to the impugned amendment), would have to be kept in mind. It was submitted, that the term “consultation” with reference to Article 124, had been understood as conferring primacy with the judiciary. Therefore, while examining the impugned constitutional amendment to Article 124, it was imperative for this Court, to understand the term “consultation” in Article 124, and to read it as, conferring primacy in the matter of appointment of Judges, with the judiciary. Under Article 124, according to learned counsel, the President was not required to merely “consult” the Chief Justice of India, but the executive was to accede to the view expressed by the Chief Justice of India. Insofar as the term “Chief Justice of India” is concerned, it was submitted, that the same had also been understood to mean, not the individual opinion of the Chief Justice of India, but the opinion of the judiciary symbolized through the Chief Justice of India. Accordingly, it was emphasized, that the individual opinion of the Chief Justice (with reference to Articles 124 and 217) was understood as the institutional opinion of the judiciary. Accordingly, whilst examining the impugned constitutional amendment, under the width and the identity test(s), the above declared legal position, had to be kept in mind while determining, whether or not the impugned constitutional amendment, and the impugned legislative enactment, had breached the “basic structure” of the Constitution.

18. It was contended, that the judgment in the Second Judges case, should be accepted as the touchstone, by which the validity of the impugned constitutional amendment (and the NJAC Act), must be examined. It was submitted, that the power exercised by the Parliament under Article 368, in giving effect to the impugned constitutional amendment (and by enacting the NJAC Act), will have to be tested in a manner, that will allow an organic adaptation to the changing times, and at the same time ensure, that the “basic structure” of the Constitution was not violated. Relying on the M.

Nagaraj case36, the Court’s attention was drawn to the following observations:

“18. The key issue, which arises for determination in this case is-whether by virtue of the impugned constitutional amendments, the power of Parliament is so enlarged so as to obliterate any or all of the constitutional limitations and requirements? Standards of judicial review of constitutional amendments

19. The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Therefore, a purposive rather [pic]than a strict literal approach to the interpretation should be adopted. A constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provision does not get fossilised but remains flexible enough to meet the newly emerging problems and challenges.” Learned senior counsel, also drew the Court’s attention to similar observations recorded in the Second Judges case.

19. Learned counsel was emphatic, that the impugned constitutional amendment (and the provisions of the NJAC Act), if approved, would remain in place for ten…, twenty…, thirty or even forty years, and therefore, need to be viewed closely and objectively. The provisions will have to be interpreted in a manner, that the “independence of the judiciary” would not be compromised. It was submitted, that if the impugned provisions were to be 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 the justice delivery system. The question was about the maintenance of judicial standards. All these questions emerged from the fountainhead, namely, the manner of appointment of Judges to the higher judiciary. The provisions of Article 124, it was pointed out, as it existed prior to the impugned amendment, had provided for a system of trusteeship, wherein institutional predominance of the judiciary was the hallmark. It was submitted, that the aforesaid trusteeship should not be permitted to be shared by those, whose rival claims arose for consideration before Courts of law. The judicial responsibility in the matter of appointment of Judges, according to learned counsel, being the most important trusteeship, could not be permitted to be shared, with either the executive or the legislature.

21. Referring to the amendment itself, it was contended, that merely changing the basis of the legislation, would not be the correct test to evaluate the actions of the Parliament, in the present controversy. It was likewise submitted, that reasonableness and proportionality were also not the correct test(s) to be applied. According to learned counsel, in order to determine the validity of the impugned constitutional amendment (and the NJAC Act), the Union of India and the ratifying States will have to bear the onus of satisfactorily establishing, that the amended provisions, could under no circumstances, be used (actually misused) to subvert the “independence of the judiciary”. Placing reliance on the M. Nagaraj case36, the Court’s attention was invited to the following observations:

“22. The question which arises before us is regarding the nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic structure. The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force. This doctrine has essentially developed from the German Constitution. This development is the emergence of the constitutional principles in their own right. It is not based on literal wordings.

23. …..In S.R. Bommai [1994] INSC 173; (1994) 3 SCC 1 the Court clearly based its conclusion not so much on violation of particular constitutional provisions but on this generalised ground i.e. evidence of a pattern of action directed against the principle of secularism. Therefore, it is important to note that the [pic]recognition of a basic structure in the context of amendment provides an insight that there are, beyond the words of particular provisions, systematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole. These principles are part of constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Articles 14, 19 and 21.

Some of these principles may be so important and fundamental, as to qualify as “essential features” or part of the “basic structure” of the Constitution, that is to say, they are not open to amendment. However, it is only by linking provisions to such overarching principles that one would be able to distinguish essential from less essential features of the Constitution.

xxx xxx xxx

25. For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, is the second step to be taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament i.e. to form a part of the basic structure.

The basic structure concept accordingly limits the amending power of Parliament. To sum up: in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending power of Parliament i.e.

to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.

xxx xxx xxx

30. Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance.

xxx xxx xxx

35. The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.”

22. Referring to the position expressed by this Court, learned counsel submitted, that the overarching principle for this Court, was to first keep in its mind, the exact nature of the amendment contemplated through the Constitution (99th Amendment) Act. And the second step was, to determine how fundamental the amended provision was. For this, reliance was again placed on the M. Nagaraj case36, and our attention was drawn to the following conclusions:

“102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catch-up” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services.

Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (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) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is—whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments 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 this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments.

Equality has two facets— “formal equality” and “proportional equality”.

Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.” Yet again referring to the width and the identity tests, learned counsel emphasized, that it was imperative for this Court, in the facts and circumstances of the present case, to examine whether the power of amendment exercised by the Parliament, was so wide as to make it excessive.

For the above, reference was made to the Madras Bar Association case35, wherein this Court recorded the following conclusions:

“134.(i) Parliament has the power to enact legislation and to vest adjudicatory functions earlier vested in the High Court with an alternative court/tribunal. Exercise of such power by Parliament would not per se violate the “basic structure” of the Constitution.

135.(ii) Recognised constitutional conventions pertaining to the Westminster model do not debar the legislating authority from enacting legislation to vest adjudicatory functions earlier vested in a superior court with an alternative court/tribunal. Exercise of such power by Parliament would per se not violate any constitutional convention.

136.(iii) The “basic structure” of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.

137.(iv) Constitutional conventions pertaining to the Constitutions styled on the Westminster model will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced are not incorporated in the court/tribunal sought to be created.

138.(v) The prayer made in Writ Petition (C) No. 621 of 2007 is declined.

Company Secretaries are held ineligible for representing a party to an appeal before NTT.

139.(vi) Examined on the touchstone of Conclusions (iii) and (iv) (contained in paras 136 and 137, above) Sections 5, 6, 7, 8 and 13 of the NTT Act (to the extent indicated hereinabove), are held to be unconstitutional. Since the aforesaid provisions constitute the edifice of the NTT Act, and without these provisions the remaining provisions are rendered ineffective and inconsequential, the entire enactment is declared unconstitutional.” Based on the above, it was asserted, that this Court had now clearly laid down, that on issues pertaining to the transfer of judicial power, the salient characteristics, standards and conventions of judicial power, could not be breached. It was also submitted, that evaluated by the aforesaid standards, it would clearly emerge, that the “independence of the judiciary” had been seriously compromised, through the impugned constitutional amendment (and the 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 Judges case, was that, Article 50 of the Constitution had not been appropriately highlighted, for consideration. It was submitted, that importance of Article 50 read with Articles 12 and 36, came to be examined in the Second Judges case, wherein the majority view, was as follows:

“80. From the above deliberation, it is clear that Article 50 was referred to in various decisions by the eminent Judges of this Court while discussing the principle of independence of the judiciary. We may cite Article 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 50 has to be construed in the distributive sense as including the Government and Parliament of India and the Government and the legislature of each State and all local or other authorities within the territory of India or under the control of the Government of India. When the concept of separation of the judiciary from the executive is assayed and assessed that concept cannot be confined only to the subordinate judiciary, totally discarding the higher judiciary. If such a narrow and pedantic or syllogistic approach is made and a constricted construction is given, it would lead to an anomalous position that the Constitution does not emphasise the separation of higher judiciary from the executive. Indeed, the distinguished Judges of this Court, as pointed out earlier, in various decisions have referred to Article 50 while discussing the concept of independence of higher or superior judiciary and thereby highlighted and laid stress on the basic principle and values underlying Article 50 in safeguarding the independence of the judiciary.

xxx xxx xxx

85. Regrettably, there are some intractable problems concerned with judicial administration starting from the initial stage of selection of candidates to man the Supreme Court and the High Courts leading to the present malaise. Therefore, it has become inevitable that effective steps have to be taken to improve or retrieve the situation. After taking note of these problems and realising the devastating consequences that may flow, one cannot be a silent spectator or an old inveterate optimist, looking upon the other constitutional functionaries, particularly the executive, in the fond hope of getting invigorative solutions to make the justice delivery system more effective and resilient to meet the contemporary needs of the society, which hopes, as experience shows, have never been successful. Therefore, faced with such a piquant situation, it has become imperative for us to solve these problems within the constitutional fabric by interpreting the various provisions of the Constitution relating to the functioning of the judiciary in the light of the letter and spirit of the Constitution.

xxx xxx xxx 141. Mr Ram Jethmalani, learned senior counsel expressed his grievance that the principles laid down in Chandra Mohan case (1967) 1 SCR 77, 83… were not appreciated by the learned Judges while dealing with Samsher Singh v.

State of Punjab[1974] INSC 156; , (1974) 2 SCC 831 who in his submission, have ignored the principle of harmonious construction which was articulated in K.M. Nanavati v. State of Bombay (1961) 1 SCR 497… According to him, the judgment in Gupta case 1981 Supp SCC 87 may be regarded as per incuriam. He articulates that the expression ‘consultation’ is itself flexible and in a certain context capable of bearing the meaning of ‘consent’ or ‘concurrence’.

xxx xxx xxx 154. The controversy that arises for scrutiny from the arguments addressed boils down with regard to the construction of the word ‘consultation’.

xxx xxx xxx 170. Thus, it is seen that the consensus of opinion is that consultation with the CJI is a mandatory condition precedent to the order of transfer made by the President so that non-consultation with the CJI shall render the order unconstitutional i.e. void.

171. The above view of the mandatory character of the requirement of consultation taken in Sankalchand has been followed and reiterated by some of 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 transferring a 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 in Gupta case 1981 Supp SCC 87… it can be simply held that consultation with the CJI under the first proviso to Article 124(2) as well as under Article 217 is a mandatory condition, the violation of which would be contrary to the constitutional mandate.

xxx xxx xxx 181. It cannot be gainsaid that the CJI being the head of the Indian Judiciary and paterfamilias of the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding the independence of the judiciary and he in that capacity evaluates the merit of the candidate with regard to his/her professional attainments, legal ability etc. and offers his opinion. Therefore, there cannot be any justification in scanning that opinion of the CJI by applying a superimposition test under the guise of overguarding the judiciary.

xxx xxx xxx 183. One should not lose sight of the important fact that appointment to the judicial office cannot be equated with the appointment to the executive or other services. In a recent judgment in All India Judges’ Association v.

Union of India (1993) 4 SCC 288… rendered by a three-Judge Bench presided over by M.N. Venkatachaliah, C.J. and consisting of A.M. Ahmadi and P.B.

Sawant, JJ., the following observations are made: (SCC pp. 295 e-h, 296 a and c-d, 297 b, paras 7 and 9) “The judicial service is not service in the sense of ’employment’. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the Council of Ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the ministers, the legislators and the judges, and not the members of the their staff who implement or assist in implementing their decisions. The Council of Ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive.

Similarly, [pic]the legislators are different from the legislative staff.

So also the judges from the judicial staff. The parity is between the political executive, the legislators and the judges and not between the judges and the administrative executive. In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of other services. The members of the other services, therefore, cannot be placed on a par with the members of the judiciary, either constitutionally or functionally.” Whereupon, this Court recorded its conclusions. The relevant conclusions are extracted hereunder:

“(1) The ‘consultation’ with the CJI by the President is relatable to the judiciary and not to any other service.

(2) In the process of various constitutional appointments, ‘consultation’ is required only to the judicial office in contrast to the other high- ranking constitutional offices. The prior ‘consultation’ envisaged in the first proviso to Article 124(2) and Article 217(1) in respect of judicial offices is a reservation or limitation on the power of the President to appoint the Judges to the superior courts.

xxx xxx xxx (4) The context in which the expression “shall always be consulted” used in the first proviso of Article 124(2) and the expression “shall be appointed … after consultation” deployed in Article 217(1) denote the mandatory character of ‘consultation’, which has to be and is of a binding character.

(5) Articles 124 and 217 do not speak in specific terms requiring the President to consult the executive as such, but the executive comes into play in the process of appointment of Judges to the higher echelons of judicial service by the operation of Articles 74 and 163 of the Constitution. In other words, in the case of appointment of Judges, the President is not obliged to consult the executive as there is no specific provision for such consultation.

(6) The President is constitutionally obliged to consult the CJI alone in the case of appointment of a Judge to the Supreme Court as [pic]per the mandatory proviso to Article 124(2) and in the case of appointment of a Judge to the High Court, the President is obliged to consult the CJI and the Governor of the State and in addition the Chief Justice of the High Court concerned, in case the appointment relates to a Judge other than the Chief Justice of that High Court. Therefore, to place the opinion of the CJI on a par with the other constitutional functionaries is not in consonance with the spirit of the Constitution, but against the very nature of the subject-matter concerning the judiciary and in opposition to the context in which ‘consultation’ is required. After the observation of Bhagwati, J. in Gupta case that the ‘consultation’ must be full and effective there is no conceivable reason to hold that such ‘consultation’ need not be given primary consideration.

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

xxx xxx xxx 207. No one can deny that the State in the present day has become the major litigant and the superior courts particularly the Supreme Court, have become centres for turbulent controversies, some of which with a flavour of political repercussions and the Courts have to face tempest and storm because their vitality is a national imperative. In such circumstances, therefore, can the Government, namely, the major litigant be justified in enjoying absolute authority in nominating and appointing its arbitrators.

The answer would be in the negative. If such a process is allowed to continue, the independence of judiciary in the long run will sink without any trace. By going through various Law Commission Reports (particularly Fourteenth, Eightieth and One Hundred and Twenty-first), Reports of the Seminars and articles of eminent jurists etc., we understand that a radical change in the method of appointment of Judges to the superior judiciary by curbing the executive’s power has been accentuated but the desired result has not been achieved even though by now nearly 46 years since the attainment of independence and more than 42 years since the advent of the formation of our constitutional system have elapsed. However, it is a proud privilege that the celebrated birth of our judicial system, its independence, mode of dispensation of justice by Judges of eminence holding nationalistic views stronger than other Judges in any other nations, and the resultant triumph of the Indian judiciary are highly commendable. But it does not mean that the present system should continue for ever, and by allowing the executive to enjoy the absolute primacy in the matter of appointment of Judges as its ‘royal privilege’.

208. The polemics of the learned Attorney-General and Mr Parasaran for sustaining the view expressed in Gupta case 1981 Supp SCC 87… though so distinguished for the strength of their ratiocination, is found to be not acceptable and falls through for all the reasons aforementioned because of the inherent weakness of the doctrine which they have attempted to defend.” Insofar as the minority judgment authored by A.M. Ahmadi, J., (as he then was) is concerned, it is only relevant to highlight the first conclusion recorded in paragraph 313, which is reproduced hereunder:

“313. We conclude:

(i) The concept of judicial independence is deeply ingrained in our constitutional scheme and Article 50 illuminates it. The degree of independence is near total after a person is appointed and inducted in the judicial family. …..”

24. Insofar as the instant aspect of the matter is concerned, learned counsel invited our attention to the preamble of the NJAC Act, which is reproduced below:

“An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto.” The statement of objects and reasons is also being extracted hereunder:

“Statement of Objects and Reasons xxx xxx xxx

2. The Supreme Court in the matter of the Supreme Court Advocates-on-Record Opinion in the year 1998 in the Third Judges case, had interpreted clause (2) of article 124 and clause (1) of article 217 of the Constitution with respect to the meaning of “consultation” as “concurrence”. Consequently, a Memorandum of Procedure for appointment of Judges to the Supreme Court and High Courts was formulated, and is being followed for appointment.

3. After review of the relevant constitutional provisions, the pronouncements of the Supreme Court and consultations with eminent Jurists, it is felt that a broad based National Judicial Appointments Commission should be established for making recommendations for appointment of Judges of the Supreme Court and High Courts. The said Commission would provide a meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.

4. The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 is an enabling constitutional amendment for amending relevant provisions of the Constitution and for setting up a National Judicial Appointments Commission. The proposed Bill seeks to insert new articles 124A, 124B and 124C after article 124 of the Constitution. The said Bill also provides for the composition and the functions of the proposed National Judicial Appointments Commission. Further, it provides that Parliament may, by law, regulate the procedure for appointment of Judges and empower the National Judicial Appointments Commission to lay down procedure by regulation for the discharge of its functions, manner of selection of persons for appointment and such other matters as may be considered necessary.

5. The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Courts.

6. The Bill seeks to achieve the above objectives.

New Delhi; Ravi Shankar Prasad The 8th August, 2014.” Based on the non-disclosure of reasons, why the existing procedure was perceived as unsuitable, it was contended, that the only object sought to be achieved was, to dilute the primacy, earlier vested with the Chief Justice of India (based on a decision of a collegium of Judges), provided for under Articles 124 and 217, as originally enacted. This had been done away, it was pointed out, by substituting the Chief Justice of India, with the NJAC.

25. The primary submission advanced at the hands of Mr. Fali S. Nariman, Senior Advocate, was with reference to the violation of the “basic structure”, not only through the Constitution (99th Amendment) Act, but also, by enacting the NJAC Act. It was pointed out, that since the commencement of the Constitution, whenever changes were recommended in respect of the appointment of Judges, the issue which remained the focus of attention was, the primacy of the Chief Justice of India. Primacy, it was contended, had been recognized as the decisive voice of the judiciary, based on a collective decision of a collegium of Judges, representing its collegiate wisdom. It was submitted, that the Chief Justice of India, as an individual, as well as, Chief Justices of High Courts, as individuals, could not be considered as persona designate. It was pointed out, that the judgment rendered in the Second Judges case, had not become irrelevant.

This Court, in the above judgment, provided for the preservation of the “independence of the judiciary”. The aforesaid judgment, as also, the later judgment in the Third Judges case, re-established and reaffirmed, that the Chief Justice of India, represented through a body of Judges, had primacy. According to learned counsel, the individual Chief Justice of India, could not and did not, represent the collective opinion of the Judges. It was asserted, that the Constitution (99th Amendment) Act, and the NJAC Act, had done away with, the responsibility vested with the Chief Justice of India, represented through a collegium of Judges (under Articles 124 and 217 – as originally enacted). Accordingly, it was submitted, that till the system adopted for selection and appointment of Judges, established and affirmed, the unimpeachable primacy of the judiciary, “independence of the judiciary” could not be deemed to have been preserved.

26. Insofar as the issue in hand is concerned, it was the pointed contention of the learned counsel, that the decision rendered by this Court in Sardari Lal v. Union of India[37], came to be overruled in the Samsher Singh case11. Referring to the judgment in the Samsher Singh case11, he invited this Court’s attention to the following observations recorded therein:

“147. In J.P. Mitter v. Chief Justice, Calcutta [1964] INSC 258; AIR 1965 SC 961 this Court had to consider the decision of the Government of India on the age of a Judge of the Calcutta High Court and, in that context, had to ascertain the true scope and effect of Article 217(3) which clothes the President with exclusive jurisdiction to determine the age of a Judge finally. In that case the Ministry of Home Affairs went through the exercise prescribed in Article 217(3). “The then Home Minister wrote to the Chief Minister, West Bengal, that he had consulted the Chief Justice of India, and he agreed with the advice given to him by the Chief Justice, and so he had decided that the date of birth of the appellant was….It is this decision which was, in due course communicated to the appellant”. When the said decision was attacked as one reached by the Home Minister only and not by the President personally, the Court observed:

“The alternative stand which the appellant took was that the Executive was not entitled to determine his age, and it must be remembered that this stand was taken before Article 217(3) was inserted in the Constitution; the appellant was undoubtedly justified in contending that the Executive was not competent to determine the question about his age because that is a matter which would have to be tried normally, in judicial proceedings instituted before High Courts of competent jurisdiction. There is considerable force in the plea which the appellant took at the initial stages of this controversy that if the Executive is allowed to determine the age of a sitting Judge of a High Court, that would seriously affect the independence of the Judiciary itself.” Based on this reasoning, the Court quashed the order, the ratio of the case being that the President himself should decide the age of the Judge, uninfluenced by the Executive, i.e. by the Minister in charge of the portfolio dealing with justice.

148. This decision was reiterated in Union of India v. Jyoti Prakash Mitter [1971] INSC 18; (1971) 1 SCC 396. Although an argument was made that the President was guided in that case by the Minister of Home Affairs and by the Prime Minister, it was repelled by the Court which, on the facts, found the decision to be that of the President himself and not of the Prime Minister or the Home Minister.

149. In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article-making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.”

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 was guaranteed. The view expressed in the Samsher Singh case11 in 1974 was, that the final authority in the matter of appointment of Judges to the higher judiciary, rested with the Chief Justice of India. It was pointed out, that the above position had held the field, ever since. It was submitted, that “independence of the judiciary” has always meant and included independence in the matter of appointment of Judges to the higher judiciary.

28. Mr. Arvind P. Datar, learned Senior Advocate contended, that the NJAC had been created by an amendment to the Constitution. It therefore was a creature of the Constitution. Power had been vested with the NJAC to make recommendations of persons for appointment as Judges to the higher judiciary, including the power to transfer Chief Justices and Judges of High Courts, from one High Court to another. The above constitutional authority, it was submitted, must be regulated by a constitutional scheme, which must flow from the provisions of the Constitution itself. Therefore, it was asserted, that the manner of functioning of the NJAC must be contained in the Constitution itself. It was submitted, that the method of functioning of the NJAC, could not be left to the Parliament, to be regulated by ordinary law. In order to support his aforestated contention, reliance was placed on entries 77 and 78, contained in the Union List of the Seventh Schedule. It was submitted, that the power to frame legislation, with reference to entries 77 and 78 was not absolute, inasmuch as, Article 245 authorized the Parliament, to legislate on subjects falling within its realm, subject to the substantive provisions contained in the Constitution. For the above reason, it was asserted, that the activities of the NJAC could not be made subject to, or subservient to, the power vested in the Parliament, under entries 77 and 78.

29. It was contended by Mr. Ram Jethmalani, learned Senior Advocate, that there was sufficient circumstantial evidence to demonstrate, that the present political establishment felt, that the judiciary was an obstacle for the implementation of its policies. It was contended, that the entire effort, was to subdue the judiciary, by inducting into the selection process, those who could be politically influenced. In order to project, the concerted effort of the political dispensation, in subverting the “independence of the judiciary”, learned counsel, in the first instance, pointed out, that the first Bill to constitute a National Judicial Commission [the Constitution (67th Amendment) Bill, 1990] was introduced in the Lok Sabha on 18.5.1990. 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 intention to set up a high level judicial commission, to be called the National Judicial Commission for the appointment of Judges of the Supreme Court and of the High Courts and the transfer of Judges of the High Courts so as to obviate the criticisms of arbitrariness on the part of the Executive in such appointments and transfers and also to make such appointments without any delay. The Law Commission of India in their One Hundred and Twenty- first Report also emphasised the need for a change in the system.

2. The National Judicial Commission to make recommendations with respect to the appointment of Judges of the Supreme Court will consist of the Chief Justice of India and two other Judges of the Supreme Court next in seniority to the Chief Justice of India. The Commission to make recommendations with respect to the appointment of the Judges of the High Courts will consist of the Chief Justice of India, one senior-most Judge of the Supreme Court, the Chief Minister of the State concerned, Chief Justice of the concerned High Court and one senior-most Judge of that High Court.

3. The Bill seeks to achieve the above object.

NEW DELHI;

The 11th May, 1990;” The proposed National Judicial Commission in the above Bill, was to be made a component of Part XIIIA of the Constitution, by including therein Article 307A. The Chief Justice of India, and the next two senior most Judges of the Supreme Court, were proposed to comprise of the contemplated Commission, for making appointments of Judges to the Supreme Court, Chief Justices and Judges to High Courts, and for transfer of High Court Judges from one High Court to another. The above Commission, omitted any executive and legislative participation. The proposed composition of the Commission, for appointing High Court Judges, included the Chief Justice of India, the Chief Minister or the Governor of the concerned State, the senior most Judge of the Supreme Court, the Chief Justice of the concerned High Court, and the senior most Judge of that Court. The above Bill also provided for, an independent and separate secretarial staff for the contemplated Commission. It was submitted, that the above amendment to the Constitution, was on account of the disillusionment and incredulity with the legal position, expounded by this Court in the First Judges case. It was submitted, that the necessity to give effect to the proposed Constitution (67th Amendment) Bill, 1990, stood obviated when this Court rendered its judgment in the Second Judges case. All this, according to learned counsel for the petitioners, has been forgotten and ignored.

30. Historically, the next stage, was when the Constitution (98th Amendment) Bill, 2003 was placed before the Parliament for its consideration. In the above Bill, the executive participation in the process of selection and appointment of Judges to the higher judiciary, was introduced by making the Union Minister of Law and Justice, an ex officio Member of the Commission. Two eminent citizens (either eminent jurists, or eminent lawyers, or legal academicians of high repute) would also be Members of the Commission. One of them was to be appointed by the President in consultation with the Chief Justice of India, and the other, in consultation with the Prime Minister. Yet another effort was made (by the previous U.P.A. Government), in the same direction, through the Constitution (120th Amendment) Bill, 2013, on similar lines as the 2003 Bill. It was sought to be pointed out, that there was a consensus amongst all the parties, that the aforesaid Bill should be approved. And that, learned counsel personally, as a Member of the Rajya Sabha, had strongly contested the above move. Learned counsel invited this Court’s attention to the objections raised by him, during the course of the debate before the Rajya Sabha. He emphasized, that he had submitted to the Parliament, that the Constitution Amendment Bill, needed to be referred to the Select Committee of the Parliament, as the same in his opinion was unconstitutional. An extract of the debate was also brought to our notice (by substituting the vernacular part thereof, with its English translation), it is being reproduced hereunder:

“My suggestion is: Let the Judicial Appointments Commission Bill go to the Standing Committee. The rest of the business we should pass today. Thank you.

Shri Ram Jethmalali: Madam, thank you; better late than never.

Sir, I wish to make two preliminary suggestions. If there is an assurance that the Constitution (Amendment) Bill as well as the subsidiary Bill will both be referred to a Select Committee of Parliament, I do not propose to address this House at all. But, I do not consider it suitable or proper that only the second Bill should be referred to a Select Committee. Both should be sent. And, I will give my reasons.

Sir, the second suggestion that I have to make is this. My main contention, which I am going to make, is that the Constitution (Amendment) Bill is wholly unconstitutional and, if passed, it will undoubtedly be set aside by the Supreme Court, because it interferes with the basic feature of the Constitution. Such amendments of the Constitution are outside the jurisdiction of this House. The amendment process prescribed by the Constitution requires 2/3rd majority and so on and so forth. That applies only to those amendments of the Constitution which do not touch what are called the basic features of the Constitution as understood in the Kesavananda Bharati case. This Constitutional amendment, certainly, interferes with a basic feature of the Indian Constitution and it will not be sustained ever. But, if it is said that even if you pass it, it will not be brought into force until a Reference is made to the Supreme Court and the Supreme Court answers the question of the validity of this Constitution amendment in the affirmative. If that is done, I, again, need not speak. But, Sir, since I don’t expect both these reasonable suggestions to be accepted, I intend to speak and speak my mind.

xxx xxx xxx Kapil is my great friend and is one of the Ministers in the Government whose work as the Law Minister I keep supervising and I am happy the manner in which he conducts his Ministry. But, Sir, I must declare today that my conscience, understanding and my duty towards the people of this country, which I regard as my paramount obligation, do not permit me to submit to this kind of legislation. Both the Bills, according to me are evil. The evil, first of all, consists in the misleading Statement of Objects-and- Reasons. You ought to have said with complete honesty that what you are trying to demolish is the Collegium System, which seems to be the object, and which is apparent to anyone. Some of the persons who have spoken have spoken on the assumption that that is the purpose of this particular piece of legislation.

Sir, the first point that I propose to make is that the 1993 judgment of Nine Judges is a judgment based upon the discovery of the basic feature of the Constitution, and upon devising a system to sustain that basic feature.

Madam, I have myself appeared in that litigation and I claim that I had a tremendous contribution to make to the success of that judgment. In a sense, I claim to be the founder of the Collegium System. But that does not mean that I am an unmixed admirer of the Collegium System. The Collegium System has, doubtless, some faults. But the Collegium System came into existence on the basis of one main argument. That one main argument that we advance, and advance with great vigour and force, is that there is one article of the Constitution, article 50 of the Constitution, which is the shortest article in the Constitution, consisting of only one sentence. That article says that the Government shall strive to keep the Judiciary separate from the Executive.

Sir, we argued before the Supreme Court that this article does not mean that Judges and Ministers should not socially meet. This does not mean that they should live in separate towns, or that they should not live even in adjoining bungalows. The purpose of this article is to ensure that in the appointment of Judges, the Executive has no role to play, except the advisory role. In other words, the doctrine of primacy of the Executive in the appointment process was irksome to us because the whole nation of India has been the victim of the Judges appointed in the earlier system. I have been a refugee from my own country during the Emergency. Why was it? It was because four Supreme Court Judges – I am not talking of the fifth who earned the New York Times praise that the Indian nation will have to build a monument to his memory; I am talking of the other four who – disgraced the Judiciary, disgraced the Supreme Court and were parties to the destruction of Indian democracy and the demolition and the debasement of the whole Constitution of India. Sir, of which system were they the product? They were the product of that system which, in 1981, was ultimately supported by the Gupta Judgment but, after some time, there were people, intellectuals, who spoke up that this system would not work; the system requires change. Sir, the Indian democracy has been saved not by intellectuals; Indian democracy at its most crucial hour has been saved by the poor illiterates of this country.

In times of crises, it is only the brave hearted who matter. On those which one had pride remained tongue tied (Two sentences translated).

That is the tragedy of our country. Sir, the intellectuals of this country have continuously failed, and I regret to say that they are failing even today. Collegium may be the creation of the Judiciary, it is the creation of judicial interpretation, again, of the Constitution, but whatever be the faults of the Collegium, the Collegium today represents some system which is consistent with the basic features of the Constitution, namely, the supremacy of the Judiciary and its freedom from any influence of the Executive in the appointment process.

xxx xxx xxx Sir, I am speaking for those who are not irrevocably committed to voting for this amendment. There are some people who must have kept their minds still open. I am appealing to those minds today only. Those who are irrevocably committed are committed to the destruction of Indian democracy.

Sir, the key passage in the judgment of the Supreme Court of 1993 is the passage which I wish to share with the House. The question of primacy to the opinion of the Chief Justice of India in the matters of appointment and transfer and their justifiability should be considered in the context of the independence of the Judiciary as a part of the basic structure of the Constitution to secure the rule of law essential for preservation of the democratic system. The broad scheme of separation of powers adopted in the Constitution together with the Directive Principles of separation of the Judiciary from the Executive, even at the lowest strata, provides some insight to the true meaning of the relevant provisions of the Constitution relating to the composition of the Judiciary. The construction of these provisions must accord with these fundamental concepts in the Constitutional scheme to preserve the vitality and promote the growth of the 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 place unless, of course, the judges are independent first of the Executive power because don’t forget that every citizen has a grievance against the corrupt members of the Executive, or, errant bureaucracy, public officers misusing power, indulging in corruption, making wrong and illegal orders. The citizen goes to the court, knocks the door of the court and says, “Please give me a mandamus against this corrupt official, against this corrupt Minister”. And, Sir, the judges are supposed to decide upon the claims of the poorest who go to the Supreme Court… …(Interruptions)… …and to the judges. It may be, and I am conscious… …(Interruptions)… Sir, this is not a laughing matter. Please listen, and then decide for yourself.

…

xxx xxx xxx Sir, first of all, let me say this now that the whole judgement of nine Judges is based upon this principle that in the appointment process, the Executive can never have primacy. This is principle number one. It has now become the basic feature of India’s Constitution. My grievance today against this Constitution (Amendment) Bill is that you are slowly, slowly now creating a new method by which ultimately you will revert to the system which existed prior to 1993. In other words, the same system would produce those four Judges who destroyed the Indian democracy, human rights and freedom. Sir, kindly see, why. The Constitution Amendment looks very innocent. All that it says is that we shall have a new article 124(a) in the Constitution and article 124(a) merely says that there shall be a Judicial Appointments Commission. It lays down that the Judicial Appointments Commission will have these functions. It leaves at that. But, kindly see that after the first sentence, every thing is left to a Parliamentary will. After saying that there will be a Judicial Appointments Commission, every thing will be left, according to the second part of 124(a), to a parliamentary legislation which is capable of being removed if the ruling party has one Member majority in both Houses of Parliament. Not only that, I understand that Parliament is not likely to do it, but it can do it and by a majority of one in both Houses, you can demolish the whole thing and substitute it with a Judicial Commission which will consist of only the Law Minister.

xxx xxx xxx So, Sir, my first objection is that this Bill is a Bill which is intended to deal with the basic structure of the Constitution and, therefore, this Bill is void. (Time-bell) Second, if a Constitutional Amendment is not good enough for this purpose, surely, an ordinary piece of legislation cannot do it, which ordinary piece of legislation can be removed only by a majority of one in each House. It can be removed like the 30th July Food Security Ordinance and you can pass an Ordinance on that day and say that the whole Act is repealed and now the system will be that Judges will be appointed for the next six months by only the Law Minister of India. If there was Mr.

Kapil Sibal, …(Interruptions)… If Mr. Kapil Sibal becomes the Law Minister for ever, Sir, I will allow this Bill to go. (Time-bell) But I am not prepared to accept it for the future Law Ministers.

…(Interruptions)… Sir, let me take two more minutes and tell all those Members that this Bill is not intended to ensure the judicial character.

This Bill has nothing to do with the improvement of the judicial character.

So long as the Judges are also human, there will be some Judges who will go wrong, who may go wrong. But a great Bar can control them. ….” xxx xxx xxx Sir, I hope, people will avoid this kind of a tragedy in the life of this country. You are today digging the grave of the Constitution of India and the freedom of this country. …(Interruptions)… That’s all I wished to say. …(Interruptions)…” It was submitted, that in the Rajya Sabha 131 votes were cast in affirmation of the proposed Bill, as against the solitary vote of the learned counsel, against the same on 5.9.2013. It was however pointed out, that the effort did not bear fruit, on account of the intervening declaration for elections to the Parliament.

31. Learned counsel thereafter, invited our attention to the statement of “Objects and Reasons” for the promulgation of the Constitution (121st Amendment) Bill, 2014. The Bill which eventually gave rise to the impugned Constitution (99th Amendment) Act, was taken up for consideration by the Lok Sabha on 13.8.2014, and was passed without much debate. It was submitted, that on the following day i.e., 14.8.2014, the same was placed before the Rajya Sabha, and was again passed, without much discussion. It was pointed out, that an issue, as serious as the one in hand, which could have serious repercussions on the “independence of the judiciary”, was sought 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. It was submitted, that it was imperative to have brought to the notice of the Parliament, that the Supreme Court had declared, that the “rule of law”, the “separation of powers” and the “independence of the judiciary”, were “salient and basic features” of the Constitution. And that, the same could not be abrogated, through a constitutional amendment. And further that, the Supreme Court had expressly provided for the primacy of the Chief Justice of India, based on a decision of a collegium of Judges, with reference to the appointments and transfers of Judges of the higher judiciary.

33. It was submitted by Mr. Ram Jethmalani, that the impugned constitutional amendment, so as to introduce Article 124A, ought to be described as a fraud on the Constitution itself. It was pointed out, that the first effort of introducing Article 124A was made by the previous Government, through the Constitution (120th Amendment) Bill, 2013. In the above Bill, Article 124A alone (as against Articles 124A to 124C, presently enacted) was introduced. It was submitted, that the Rajya Sabha passed the above Bill on 5.9.2013, when 131 Members of the Rajya Sabha supported the Bill (with only one Member opposing it). Learned counsel submitted, that he alone had opposed the Bill. It was asserted, that the above fraud was sought to be perpetuated, through the passing of the Constitution (121st Amendment) Bill, 2014, by the Lok Sabha on 13.8.2014, and by the Rajya Sabha on 14.8.2014. It was pointed out, that Parliamentarians from different political parties had joined hands. It was submitted, that as a Parliamentarian, he was in a position to assert, that the merits and demerits of the impugned amendment to the Constitution, were not debated, when the Bill was passed, because of the universal bias entertained by the legislature, against the judiciary. It was submitted, that prejudice and intolerance had arisen, because of the fact that the judiciary often interfered with, and often effaced legislative action(s), as also, executive decision(s).

34. Learned senior counsel also asserted, that the Constitution (99th Amendment) Act, was wholly ultra vires, as it seriously infringed the “basic structure/feature” of the Constitution i.e., the “independence of the judiciary”. It was submitted, that the veracity of the above constitutional amendment, had to be examined in the light of Article 50.

According to learned counsel, the politicization of the process of selection and appointment of Judges to the higher judiciary, would lead to a dilution of the “independence of the judiciary”. It was submitted, that the inclusion of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, had the effect of politicization of the process of appointment of Judges to the higher judiciary. It was pointed out, that the inclusion of the Union Minister in charge of Law and Justice within the framework of the NJAC, meant the introduction of the Government of the day, into the selection process. It was asserted, that the Union Minister’s inclusion, meant surrendering one-sixth of the power of appointment, to the Government. It was submitted, that in order to understand the true effect of the inclusion of the Union Minister, into the process of selection and appointment of Judges to the higher judiciary, one had to keep in mind the tremendous amount of patronage, which the Union Minister for Law and Justice carries, and as such, it would be within the inference of the Union Minister in charge of Law and Justice, to make the process fallible, by extending his power of patronage to support or oppose candidates, who may be suitable or unsuitable, to the Government of the day. Even though the Union Minister had been assigned only one vote, it was submitted, that he could paralyse the whole system, on the basis of the authority he exercised. To drive home his contention, learned counsel made a reference to the introduction of the book “Choosing Hammurabi – Debates on Judicial Appointments”, edited by Santosh Paul. In the introduction to the book, the thoughts of H.L. Mencken are expressed in the following words:

“But when politicians talk thus, or act thus without talking, it is precisely the time to watch them most carefully. Their usual plan is to invade the constitution stealthily, and then wait to see what happens. If nothing happens they go on more boldly; if there is a protest they reply hotly that the constitution is worn out and absurd, and that progress is impossible under the dead hand. This is the time to watch them especially.

They are up to no good to anyone save themselves. They are trying to whittle away the common rights of the rest of us. Their one and only object, now and always, is to get more power in to their hands that it may be used freely for their advantage, and to the damage of everyone else.

Beware of all politicians at all times, but beware of them most sharply when 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 Article 124A(1) of the Constitution (99th Amendment) Act, was also clearly unconstitutional. It was contended, that there necessarily had to be, an indication of the positive qualifications required to be possessed by the two “eminent persons”, to be nominated to the NJAC. Additionally, it was necessary to stipulate disqualifications. Illustratively, it was pointed out, that an individual having a conflict of interest, should be disqualified. And such conflict would be apparent, when the individual had a political role. A politician has to serve his constituency, he has to nourish and sustain his vote bank, and above all, he has to conform with the agenda of his political party. Likewise, a person with ongoing litigation, irrespective of the nature of such litigation, would render himself ineligible for serving as an “eminent person” within the framework of the NJAC, because of his conflict of interest.

36. With reference to the inclusion of two “eminent persons” in the NJAC, Mr. Arvind P. Datar, learned Senior Advocate, invited our attention to Article 124A, whereunder, the above two “eminent persons” are to be nominated by a committee comprising of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of People, or, where there is no such Leader of Opposition, then, leader of the single largest opposition party in the House of the People. Learned counsel submitted, that neither Article 124A, nor any other provision, and not even the provisions of the NJAC Act, indicate the qualifications, of the two “eminent persons”, who have been included amongst the six-Member NJAC. It was sought to be asserted, that in approximately 70 Statutes and Rules, the expression “eminent person” has been employed. Out of the 70 Statutes, in 67, the field in which such persons must be eminent, has been clearly expressed. Only in three statutes, the term “eminent person” was used without any further qualification. It was asserted, that the term “eminent person” had been left vague and undefined, in Article 124A. It was submitted, that the vagueness of the term “eminent person” was itself, good enough to justify the striking down of the provision. It was emphasized, that the determinative role assigned to the two “eminent persons”, included amongst the six-Member NJAC, was so important, that the same could not be left to the imagination of the nominating committee, which comprised of just men “…with all the failings, all the sentiments and all prejudices which we as common people have…” (relying on the words of Dr. B.R.

Ambedkar).

37. Referring to the second proviso under Section 5(2), as well as, Section 6(6) of the NJAC Act, it was submitted, that a recommendation for appointment of a Judge, could not be carried out, if the two “eminent persons” did not accede to the same. In case they choose to disagree with the other Members of the NJAC, the proposed recommendation could not be given effect to, even though the other four Members of the NJAC including all the three representatives of the Supreme Court approved of the same.

It was pointed out, that the two “eminent persons”, therefore would have a decisive say. It was further submitted, that the impact of the determination of the two “eminent persons”, would be such, as would negate the primacy hitherto before vested in the Chief Justice of India. It was pointed out, that a positive recommendation by the Chief Justice of India, supported by two other senior Judges of the Supreme Court (next to the Chief Justice of India), could be frustrated by an opposition at the hands of the two “eminent persons”. The above implied veto power, according to the learned counsel, could lead to structured bargaining, so as to persuade the other Members of the NJAC, to accede to the names of undesirable nominees (just to avoid a stalemate of sorts). It was submitted, that such a composition had been adversely commented upon by this Court in Union of India v. R. Gandhi[38]. In the judgment, the provision, which was subject matter of consideration, was Section 10-FX. Under the above provision, the Selection Committee for appointing the Chairperson and Members of the Appellate Tribunal, and the President and Members of the Tribunal was to be comprised of the Chief Justice of India (or his nominee), besides four Secretaries from different Ministries of the Union Government. This Court recorded its conclusions with reference to the aforesaid provision in paragraph 120(viii), which is being extracted hereunder:

“120(viii) Instead of a five-member Selection Committee with the Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and the Secretary in the Ministry of Law and Justice as members mentioned in Section 10-FX, the Selection Committee should broadly be on the following lines:

(a) Chief Justice of India or his nominee – Chairperson (with a casting vote);

(b) A Senior Judge of the Supreme Court or Chief Justice of High Court – Member;

(c) Secretary in the Ministry of Finance and Company Affairs -Member; and (d) Secretary in the Ministry of Law and Justice – Member.” It was submitted, that the purpose sought to be achieved, was not exclusivity, but primacy. It is further submitted, that if primacy was considered to be important for selection of Members to be appointed to a tribunal, primacy assumed a far greater significance, when the issue under consideration was appointment and transfer of Judges of the higher judiciary. It was accordingly contended, that the manner in which the composition of the NJAC had been worked out in Article 124A, and the manner in which the NJAC is to function with reference to the provisions of the NJAC Act, left no room for any doubt, that the same was in clear violation of the law laid down by this Court, and therefore, liable to be set aside.

38. Learned counsel on the above facts, contested not only the constitutional validity of clauses (c) and (d) of Article 124A(1), but also emphatically assailed the first proviso under Article 124A(1)(d), which postulates, that one of the “eminent persons” should belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities or Women. It was submitted, that these sort of populistic measures, ought not to be thought of, while examining a matter as important as the higher judiciary. It was submitted, that it was not understandable, what the choice of including a person from one of the aforesaid categories was aimed at. In the opinion of learned counsel, the above proviso was farcical, and therefore, totally unacceptable. While members of a particular community may be relevant for protecting the interest of their community, yet it could not be conceived, why such a measure should be adopted, for such an important constitutional responsibility. In the opinion of the learned counsel, the inclusion of such a Member in the NJAC, was bound to lead to compromises.

39. It was also the contention of Mr. Arvind P. Datar, that Article 124C introduced by the Constitution (99th Amendment) Act, was wholly unnecessary. It was pointed out, that in the absence of Article 124C, the NJAC would have had the inherent power to regulate its own functioning. It was submitted, that Article 124C was a serious intrusion into the above inherent power. Now that, the Parliament had been authorized to regulate the procedure for appointments by framing laws, it would also result in the transfer of control over the appointment process (-of Judges to the higher judiciary), to the Parliament. It was submitted, that there could not be any legislative control, with reference to appointment of Judges to the higher judiciary. Such legislative control, according to learned counsel, would breach “independence of the judiciary”. It was submitted, that the Parliament having exercised its authority in that behalf, by framing the NJAC Act, and having provided therein, the ultimate control with the Parliament, must be deemed to have crossed the line, and transgressed into forbidden territory, exclusively reserved for the judiciary. Learned counsel contended, that the duties and responsibilities vested in a constitutional authority, could only be circumscribed by the Constitution, and not by the Parliament through legislation. It was submitted, that the NJAC was a creature of the Constitution, as the NJAC flows out of Article 124A. Likewise, the Parliament, was also a creature of the Constitution.

It was submitted, that one entity which was the creation of the Constitution, could not regulate the other, owing its existence to the Constitution.

40. It was pointed out by Mr. Ram Jethmalani, learned Senior Advocate, that the statement of “Objects and Reasons”, as were projected for the instant legislation, indicated inter alia, that the NJAC would provide “a meaningful role to the judiciary”. It was submitted, that what was meant by the aforesaid affirmation, was not comprehendible to him. It was further highlighted, that it also asserted in the “Objects and Reasons”, that “the executive and the eminent persons to present their viewpoints and make the participants accountable”, was likewise unintelligible to him. It was submitted, that a perusal of the Constitution (99th Amendment) Act (as also, the NJAC Act) would not reveal, how the Members of the NJAC were to be made responsible. It was further submitted, that the statement of “Objects and Reasons” also indicate, that the manner of appointment of Judges to the higher judiciary, would introduce transparency in the selection process. It was contended, that the enactments under reference, amounted to commission of a fraud by Parliament, on the people of the country. As it was not possible to understand, how and who was to be made accountable – the executive, – the “eminent persons”, – the judiciary itself. It was accordingly sought to be asserted, that the Parliament seemed to be asserting one thing, while it was doing something else.

Learned counsel also placed reliance on Shreya Singhal v. Union of India[39], wherefrom the following observations were brought to our notice:

“50. Counsel for the Petitioners argued that the language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall.” Based on the above submissions, it was asserted, that the statement of “Objects and Reasons”, could not have been more vague, ambiguous, and fanciful than the ones in the matter at hand.

41. Mr. Anil B. Divan, Senior Advocate, while appearing for the petitioner in the petition filed by the Bar Association of India (Writ Petition (C) No.108 of 2015), first and foremost pointed out, that the Bar Association of India represents the High Court Bar Association, Kolkata (West Bengal), The Awadh Bar Association, Lucknow (Uttar Pradesh), the Madras Bar Association, Chennai (Tamil Nadu), the Supreme Court Bar Association, New Delhi, the Gujarat High Court Advocates’ Association, Gandhinagar (Gujarat), the Advocates’ Association, Chennai (Tamil Nadu), the Andhra Pradesh High Court Advocates’ Association, Hyderabad (Andhra Pradesh), the Delhi High Court Bar Association, New Delhi, the Bar Association Mumbai (Maharashtra), the Gauhati High Court Bar Association, Guwahati (Assam), the Punjab & Haryana 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), the Central Excise, Customs (Gold) Control Bar Association, New Delhi, the Advocates’ 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), the Society of India Law of Firms, New Delhi, the Chhattisgarh High Court Bar Association, Bilaspur (Chhattisgarh), the Nagpur High Court Bar Association, Nagpur (Maharashtra), the Madurai Bench of Madras High Court Bar Association, Madurai (Tamil Nadu), the Jharkhand High Court Bar Association, Ranchi (Jharkhand), the Bar Association of National Capital Region, New Delhi, and the Gulbarga High Court Bar Association, Gulbarga (Karnataka). It was submitted, that all the aforementioned Bar Associations were unanimous in their challenge, to the Constitution (99th Amendment) Act, and the NJAC Act. It was submitted, that the challenge to the former was based on the fact that it violated the “basic structure” of the Constitution, and the challenge to the latter, was based on its being ultra vires the provisions of the Constitution.

42. Learned counsel had adopted a stance, which was different from the one adopted by others. The submissions advanced by the learned senior counsel, were premised on the fact, that under the constitutional power of judicial review, the higher judiciary not only enforced fundamental rights, but also restricted the legislature and the executive, within the confines of their jurisdiction(s). It was pointed out, that it was the above power, which was the source of tension and friction between the judiciary on the one hand, and the two other pillars of governance i.e., the legislature and the executive, on the other. This friction, it was pointed out, was caused on account of the fact, that while discharging its responsibility of judicial review, executive backed actions of the legislature, were sometimes invalidated, resulting in the belief, that the judiciary was influencing and dominating the other two pillars of governance. Illustratively, it was pointed out, that in the beginning of independent governance of the country, judicial review led to the setting aside of legislations, pertaining to land reforms and zamindari abolition.

This had led to the adoption of inserting legislations in the Ninth Schedule of the Constitution, so as to exclude them from the purview of judicial review.

43. It was submitted, that the first manifestation of a confrontation between the judiciary and the other two wings of governance, were indicated in 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 conclusions were recorded, not out of any desire to a tilt at the legislative authority in a crusader’s spirit, but in discharge of the duty plainly laid upon the Courts, by the Constitution.

44. It was submitted, that the legislations placed in the Ninth Schedule of the Constitution, from the original 13 items (relating to land reforms and zamindari abolition), multiplied at a brisk rate, and currently numbered about 284. And many of them, had hardly anything to do with land reforms. It was contended, that the decision rendered by this Court in I.C. Golak Nath v. State of Punjab[41], was a judicial reaction to the uninhibited insertions in the Ninth Schedule, leading to completely eclipsing fundamental rights. It therefore came to 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 between the judiciary and the other two wings of governance, it was submitted, that from 1950 to 1973, there was virtually no attempt by the political- executive, to undermine or influence or dominate over the judiciary. It was pointed out, that during the aforesaid period, when Jawaharlal Nehru (upto 27th May, 1964), Gulzari Lal Nanda (upto 9th June, 1964), Lal Bahadur Shastri (upto 11th January,1966), Gulzari Lal Nanda (upto 24th January, 1966) and Indira Gandhi (upto 1972) were running the executive and political governance in India, in their capacity as Prime Minister, had not taken any steps to dominate over the judiciary. Thereafter, two facts could not be digested by the political-executive leadership. The first, the abolition of the Privy Purses by an executive fiat, which was invalidated by the Supreme Court in Madhavrao Scindia Bahadur v. Union of India[42]. And the second, the fundamental rights case, namely, the Kesavananda Bharati case10, wherein the Supreme Court by a majority of 7:6, had propounded the doctrine of “basic structure” of the Constitution, which limited the amending power of the Parliament, under Article 368. As a sequel to the above judgments, the executive attempted to intimidate the judiciary, by the first supersession in the Supreme Court on 25.4.1973.

Thereafter, internal emergency was declared on 25.06.1975, which continued till 21.03.1977. It was submitted, that during the emergency, by way of constitutional amendment(s), the power of judicial review vested in the higher judiciary, was sought to be undermined. It was submitted, that the intrusion during the emergency came to be remedied when the Janata Party came to power on 22.03.1977, through the 43rd and 44th Constitutional Amendments, which restored judicial review, to the original position provided for by the Constituent Assembly.

46. It was submitted, that in the recent past also, the exercise of the power of judicial review had been inconvenient for the political-executive, as it resulted in exposing a series of scams. In this behalf, reference was made to two judgments rendered by this Court, i.e., Centre for Public Interest Litigation v. Union of India[43], and Manohar Lal Sharma v.

Principal Secretary[44]. It was submitted, that the executive and the legislature can never appreciate that the power of judicial review has been exercised by the higher judiciary, as a matter of public trust. As a sequel to the above two judgments, it was pointed out, that an amount of approximately Rupees two lakh crores (Rs. 20,00,00,00,00,000/-) was gained by the public exchequer, for just a few coal block allocations (for which reliance was placed on an article which had appeared in the Indian Express dated 10.3.2015). And an additional amount of Rupees one lakh ten thousand crores (Rs.11,00,00,00,00,000/-) was gained by the public exchequer from the spectrum auction (for which reliance was placed on an article in the Financial Express dated 25.03.2015). It was submitted, that the embarrassment faced by the political-executive, has over shadowed the monumental 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 such discomfiture.

47. It was also contended, that while adjudicating upon the present controversy, it was imperative for this Court, to take into consideration the existing socio-political conditions, the ground realities pertaining to the awareness of the civil society, and the relevant surrounding circumstances. These components, according to learned counsel, were described as relevant considerations, for a meaningful judicial verdict in the V.G. Row case40. Referring to Shashikant Laxman Kale v. Union of India[45], it was contended, that for determining the purpose or the object of the legislation, it was permissible for a Court to look into the circumstances which had prevailed at the time when the law was passed, and events which had necessitated the passing of the legislation. Referring to the 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 urgent yet tantalising imperatives, is the dismal, yet die-hard, poverty of the masses and the democratic, yet graft-riven, way of life of power-wielders.

Together they blend to produce gross abuse geared to personal aggrandizement, suppression of exposure and a host of other horrendous, yet hidden, crimes by the summit executives, pro tem, the para-political manipulators and the abetting bureaucrats. And the rule of law hangs limp or barks but never bites. An anonymous poet sardonically projected the social 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 more terrible than the Watergate syndrome as perceptive social scientists have unmasked. Corruption and repression-cousins in such situations-hijack developmental processes. And, in the long run, lagging national progress means ebbing people’s confidence in constitutional means to social justice.

And so, to track down and give short shrift to these heavy-weight criminaloids who often mislead the people by public moral weight-lifting and multipoint manifestoes is an urgent legislative mission partially undertaken by the Bill under discussion. To punish such super-offenders in top positions, sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality, is a desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law. This Bill, hopefully but partially, breaks new ground contrary to people’s resigned cynicism that all high-powered investigations, reports and recommendations end in legislative and judicative futility, that all these valiant exercises are but sound and fury signifying nothing, that ‘business as usual’ is the signature tune of public business, heretofore, here and hereafter. So this social justice measure has my broad assent in moral principle and in constitutional classification, subject to the serious infirmities from which it suffers as the learned Chief Justice has tersely sketched. Whether this remedy will effectively cure the malady of criminal summitry is for the future to tell.

108. All this serves as a backdrop. Let me unfold in fuller argumentation my thesis that the Bill, good so far as it goes, is bad so far as it does not go-saved though by a pragmatic exception I will presently explain.

Where the proposed law excludes the pre-and post-emergency crime-doers in the higher brackets and picks out only ‘Emergency’ offenders, its benign purpose perhaps becomes a crypto cover up of like criminals before and after. An ‘ephemeral’ measure to meet a perennial menace is neither a logical step nor national fulfilment. The classification, if I may anticipate my conclusion, is on the brink of constitutional break-down at that point and becomes almost vulnerable to the attack of Article 14.

xxx xxx xxx 114. The crucial test is ‘All power is a trust’, its holders are ‘accountable for its exercise’, for ‘from the people, and for the people, all springs, and all must exist’. By this high and only standard the Bill must fail morally if it exempts non-Emergency criminals about whom prior Commission Reports, now asleep in official pigeon holes, bear witness and future Commission Reports (who knows?) may, in time, testify. In this larger perspective, Emergency is not a substantial differentia and the Bill nearly recognises this by ante-dating the operation to February 27, 1975 when there was no ‘Emergency’. Why ante-date if the ’emergency’ was the critical criterion? xxx xxx xxx 117. Let us take a close look at the ‘Emergency’, the vices it bred and the nexus they have to speedier justice, substantial enough to qualify for reasonable sub-classification. Information flowing from the proceedings and reports of a bunch of high-powered judicial commissions shows that during that hushed spell, many suffered shocking treatment. In the words of the Preamble, civil liberties were withdrawn to a great extent, important fundamental rights of the people were suspended, strict censorship on the press was placed and judicial powers were curtailed to a large extent.

xxx xxx xxx 128. Let us view the problem slightly differently. Even if liberty had not been curtailed, press not gagged or writ jurisdiction not cut down, criminal trials and appeals and revisions would have taken their own interminable delays. It is the forensic delay that has to be axed and that has little to do with the vices of the Emergency. Such crimes were exposed by judicial commissions before, involving Chief Ministers and Cabinet Ministers at both levels and no criminal action followed except now and that of a select group. It was lack of will-not Emergency-that was the villain of the piece in non-prosecution of cases revealed by several Commissions like the Commission of Enquiry appointed by the Government of Orissa in 1967 (Mr. Justice Khanna), the Commission of Enquiry appointed by the Government of J&K in 1965 (Mr. Justice Rajagopala Ayyangar), the Mudholkar Commission against 14 ex-United Front Ministers appointed by the Government of Bihar in 1968 and the T.L. Venkatarama Aiyar Commission of Inquiry appointed by the Government of Bihar, 1970-to mention but some. We need hardly say that there is no law of limitation for criminal prosecutions. Somehow, a few manage to be above the law and the many remain below the law. How? – I hesitate to state.” Last of all, reliance was placed on the decision of this Court in Subramanian Swamy v. Director, Central Bureau of Investigation[47], wherein this Court extensively referred to the conditions regarding corruption which prevailed in the country. For the above purpose, it took into consideration the view expressed by the N.N. Vohra Committee Report, bringing out the nexus between the criminal syndicates and mafia.

48. Reliance was, then placed on the efforts made by the executive on the death of the first Chief Justice of India (after the promulgation of the Constitution), when Patanjali Sastri, J., who was the senior most Judge, was sought to be overlooked. Relying on recorded texts in this behalf, by Granville Austin, George H. Gadbois Jr. and M.C. Chagla, it was submitted, that all the six Judges, at that time, had threatened to resign, if the senior most Judge was overlooked for appointment as Chief Justice of India.

49. Referring to the first occasion, when the convention was broken, by appointing A.N. Ray, J., as the Chief Justice of India, it was submitted, that the supersession led to public protest, including speeches by former Judges, former Attorneys General, legal luminaries and members of the Bar, throughout the country. M. Hidayatullah, CJ., in a public speech, complimented the three Judges, who were superseded, for having resigned from their office, immediately on the appointment of A.N. Ray, as Chief Justice of India. In the speech delivered by M. Hidayatullah, CJ., he made a reference about rumors being afloat, that the senior most Judge after him, namely, J.C. Shah, J., would not succeed him as the Chief Justice of India. And that, an outsider was being brought to the Supreme Court, as its Chief Justice. His speech highlighted the fact, that all except one sitting Judge of the Supreme Court had agreed to resign in the event of supersession of J.C. Shah, J.. He had also pointed out, in his speech, that if the decision was taken by the executive, even a day before his retirement, he too would join his colleagues in resigning from his position as the Chief Justice of India. It was accordingly submitted, that the constitutional convention, that the senior most Judge of the Supreme Court would be appointed as the Chief Justice of India, was truly and faithfully recognized as an impregnable convention. To support the aforesaid contention, it was also pointed out, that even in situations wherein the senior most puisne Judge would have a very short tenure, the convention had remained unbroken, despite the inefficacy of making such appointments. In this behalf, the Court’s attention was drawn to the fact that J.C. Shah, CJ. (had a tenure of 35 days), K.N. Singh, CJ. (had a tenure of 18 days) and S. Rajendra Babu, CJ. (had a tenure of 29 days).

50. It was also the contention of the learned senior counsel, that the executive is an important litigant and stakeholder before the higher judiciary, and as such, the executive ought to have no role, whatsoever, in the matter of appointments/transfers of Judges to the higher judiciary. In this behalf, learned counsel placed reliance on a number of judgments rendered by this Court, wherein the participation of the executive in the higher judiciary, had been held to be unconstitutional, in the matter of appointments of Judges and other Members of tribunals, vested with quasi judicial functions. It was submitted, that the inclusion of the Union Minister in charge of Law and Justice in the NJAC, was a clear breach of the judgments rendered by this Court. Additionally, it was pointed out, that two “eminent persons”, who were to be essential components of the NJAC, were to be selected by a Committee, wherein the dominating voice was that of the political leadership. It was pointed out, that in the three- Member Committee authorised to nominate “eminent persons” included the Prime Minister and the Leader of the Opposition in the Lok Sabha, besides the Chief Justice of India. It was therefore submitted, that in the six- Member NJAC, three Members would have political-executive lineage. This aspect of the matter, according to the learned counsel, would have a devastating affect. It would negate primacy of the higher judiciary, and the same would result in undermining the “independence of the judiciary”.

Based on the above foundation, learned senior counsel raised a number of contentions. Firstly, it was submitted, that through the impugned constitutional amendment and the NJAC Act, the constitutional convention in this country, that the senior most Judge of the Supreme Court would be appointed as the Chief Justice of India, had been breached. It was submitted, that the above convention had achieved the status of a constitutional axiom – a constitutional principle. To substantiate the above contention, it was submitted, that right from 26.01.1950, the senior most puisne Judge of the Supreme Court has always been appointed as the Chief Justice of India except on two occasions. Firstly, the above convention was breached, when A.N. Ray, J., was appointed as Chief Justice of India on 25.4.1973, by superseding three senior most Judges. It was submitted, that the aforesaid supersession was made on the day following the Supreme Court delivered the judgment in the Kesavananda Bharati case10.

Secondly, the supersession took place during the internal emergency declared 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 his senior H.R. Khanna, J.. It was contended, that the aforesaid two instances should be considered as aberrations, in the convention pertaining to appointment of Chief Justice of India.

51. Mr. Arvind P. Datar also assailed the constitutional validity of Article 124C, introduced by the Constitution (99th Amendment) Act. It was submitted, that the Parliament was delegated with the authority to “regulate the procedure for the appointment of the Chief Justice of India and other Judges of the Supreme Court, and the Chief Justices and other Judges of the High Courts”. And the NJAC was empowered to lay down, by regulation, “the procedure of discharging its own functions, the manner of selection of persons for appointment, and such other matters, as may be considered necessary by it”. It was the contention of the learned counsel, that the delegation of power contemplated under Article 124C, amounted to vesting the NJAC, with what was earlier vested with the Chief Justice of India. In this behalf, reference was also made to Sections 11, 12 and 13 of the NJAC Act. The power to make rules, has been vested with the Central Government under Section 11, and the power to make regulations has been entrusted to the NJAC under Section 12. The aforementioned rules and regulations, as drawn by the Central Government/NJAC, are required to be placed before the Parliament under Section 13, and only thereafter, the rules and regulations were to be effective (or not to have any effect, or to have effect as modified). It was submitted, that the entrustment of the procedure of appointment of Judges to the higher judiciary, and also, the action of assigning the manner in which the NJAC would discharge its functions (of selecting Judges to the higher judiciary), with either the executive or the legislature, was unthinkable, if “independence of the judiciary” was to be maintained. It was pointed out, that the intent behind Article 124C, in the manner it had been framed, stood clearly exposed, by the aforesaid provisions of the 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 the regulations so framed by the NJAC were to be consistent with the provisions of the NJAC Act, as also, the rules made thereunder (i.e., under Section 11 of the NJAC Act). Having so empowered the NJAC (under Sections 11 and 12 referred to above), and having delineated in Section 12(2), the broad outlines with reference to which the regulations could be framed, it was submitted, that the power to delegate the authority to frame regulations clearly stood exhausted. In that, the Parliament had no jurisdiction thereafter, to interfere in the matter of framing regulations. In fact, according to the learned counsel, consequent upon the empowerment of the NJAC to frame regulations, the Parliament was rendered functus officio, on the issue of framing regulations. According to learned counsel, the above also established, the inference drawn in the foregoing paragraph.

53. It was also the contention of the learned counsel, that the NJAC constituted, by way of the Constitution (99th Amendment) Act, would be sustainable, so long as it did not violate the “basic structure” of the Constitution. It was emphasized, that one of the recognized features of the “basic structure” of the Constitution was, the “independence of the judiciary”. The procedure which the NJAC could adopt for discharging its functions, and the procedure it was liable to follow while holding its meetings, and the ambit and scope with reference to which the NJAC was authorized to frame its regulations, had to be left to the exclusive independent will of an independent NJAC. That, according to learned counsel, would have ensured the “independence of the NJAC”. It was accordingly contended, that Article 124C breached the “independence of the judiciary”, and also, undermined the independence of the NJAC.

54. The next contention advanced at the hands of the learned counsel, was with reference to clause (2) of Article 124A, whereby judicial review was barred, with reference to actions or proceedings of the NJAC, on the ground of the existence of a vacancy or defect in the constitution of the NJAC.

Learned counsel then invited this Court’s attention to the exclusion of the power of judicial review, contemplated under Articles 323A(2)(d) and 323B(3)(d), wherein the power of judicial review was similarly excluded. It was submitted, that this Court struck down a similar provision in the aforesaid Articles, holding that the same were violative of the “basic structure” of the Constitution. In this behalf, learned counsel placed reliance on the decision of this Court in the Kihoto Hollohan case34, and referred to the following observations recorded therein:

“129. The unanimous opinion according to the majority as well as the minority is that Paragraph 7 of the Tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution; and, therefore, ratification by the specified number of State legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State legislatures, it is Paragraph 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, Paragraph 7 alone is liable to be struck down rendering the Speakers’ decision under Paragraph 6 that [pic]of a judicial tribunal amenable to judicial review by the Supreme Court and the High Courts under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of Paragraph 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty-second Amendment) Act, 1985 which inserted the Tenth Schedule since the President’s assent to the Bill without prior ratification by the State legislatures is non est. The minority view also is that Paragraph 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire Constitution (Fifty-second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the constitutional amendment indicated therein.” Reliance was also placed on the following conclusions recorded by this Court in Dr. Kashinath G. Jalmi v. The Speaker[48].

“43. In Kihoto Hollohan there was no difference between the majority and minority opinions on the nature of finality attaching to the Speaker’s order of disqualification made under para 6 of the Tenth Schedule, and also that para 7 therein was unconstitutional in view of the non-compliance of the proviso to clause 2 of Article 368 of the Constitution, by which judicial review was sought to be excluded. The main difference in the two opinions was, that according to the majority opinion this defect resulted in the constitution standing amended from the inception with insertion of the Tenth Schedule minus para 7 therein, while according to the minority the entire exercise of constitutional amendment was futile and an abortive attempt to amend the constitution, since Para 7 was not severable.

According to the minority view, all decisions rendered by the several Speakers under the Tenth Schedule were, therefore, nullity and liable to be ignored. According to the majority view, para 7 of the Tenth Schedule being unconstitutional and severable, the Tenth Schedule minus para 7 was validly enacted and, therefore, the orders made by the Speaker under the Tenth Schedule were not nullity but subject to judicial review. On the basis of the majority opinion, this Court has exercised the power of judicial review over the orders of disqualification made by the speakers from the very inception of the Tenth Schedule, and the exercise of judicial review has not been confined merely to the orders of disqualification made after 12th November, 1991 when the judgment in Kihoto Hollohan (1992 (1) SCC 309…) was rendered. Venkatachaliah, J. (as he then was) wrote the majority opinion and, thereafter, on this premise, exercised the power of judicial review over orders of disqualification made prior to 12.11.1991. The basic fallacy in the submission made on behalf of the respondents that para 7 must be treated as existing till 12th November, 1991 is that on that view there would be no power of judicial review against an order of disqualification made by the Speaker prior to 12th November, 1991 since para 7 in express terms totally excludes judicial review.” It was, therefore, the vehement contention of the learned counsel, that clause (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 purely technical plea. It was his contention, that 121st Constitution Amendment Bill, now the Constitution (99th Amendment) Act, was introduced in the Lok Sabha on 11th of August, 2014 and was passed by the Lok Sabha on 13th of August, 2014. It was further submitted, that the 121st Constitution Amendment Bill was discussed and passed by Rajya Sabha on 14.8.2014.

Thereupon, the said Amendment Bill, which envisaged a constitutional amendment, was sent to the State Legislatures for ratification. Consequent upon its having been ratified by 16 State Legislatures, it was placed before the President for his assent. It was pointed out, that the President accorded his assent on 31.12.2014, whereupon, it became the Constitution (99th Amendment) Act. Learned counsel then invited our attention to Section 1 of the Constitution (99th Amendment) Act, which reads as under:

“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, by notification in the Official Gazette, appoint.” Based on the aforesaid provision, it was contended, that in spite of having received the assent of the President on 31.12.2014, the Constitution (99th Amendment) Act, would not come into force automatically. And that, the same would come into force in terms of the mandate contained in Section 1(2), – “… on such date as the Central Government may, by notification in the Official Gazette, appoint.” It was submitted, that the Central Government notified the Constitution (99th Amendment) Act, in the Gazette of India Extraordinary on 13.4.2015. Based on the aforesaid factual position, the Constitution (99th Amendment) Act, came into force with effect from 13.4.2015.

56. In conjunction with the factual position noticed in the foregoing paragraph, learned counsel pointed out, that the NJAC Bill, was also introduced in the Lok Sabha on 11.8.2014. The Lok Sabha passed the Bill on 13.8.2014, whereupon, it was passed by the Rajya Sabha on 14.8.2014.

Thereafter, the NJAC Bill received the assent of the President on 31.12.2014, and became the NJAC Act. It was contended, that the enactment of the NJAC Act was based/founded on the Constitution (99th Amendment) Act.

It was submitted, that since the Constitution (99th Amendment) Act, was brought into force on 13.4.2015, the consideration of the NJAC Bill and the passing of the NJAC Act prior to the coming into force of the Constitution (99th Amendment) Act, would render it stillborn and therefore nugatory. The Court’s attention was also invited to the fact, that the aforesaid legal infirmity, was noticed and raised during the course of the parliamentary debate pertaining to the NJAC Bill, before the Rajya Sabha. Learned counsel invited this Court’s attention to the following questions and answers, which are recorded on pages 442 to 533 with reference to the debates in the Rajya Sabha on 13.8.2014, and at pages 229 to 375 on 14.8.2014 (Volume 232 No.26 and 27), as under:

“that Mr. Sitaram Yechury, Member of Parliament, (Rajya Sabha) raised a constitutional objection (on August 13, 2014) to the NJAC Bill saying:

“…….till the Constitution Amendment (121st Bill) comes into effect, the Legislature, I would like to humbly submit, does not have the right to enact a Bill for the creation of a Judicial Commission for appointments.” (page 488) “……..I am only asking you to seriously consider we are creating a situation where this proposal for creation of a Judicial Appointments Commission will become ultra vires of the Indian Constitution because our right to bring about a Bill to enact such a provision comes only after the Constitution Amendment Bill becomes effective.” (page 489) “……..Therefore, you please consider what I am saying with seriousness. I want also the law Minister to consider it. Let it not be struck down later as ultra vires. So, let us give it a proper consideration.” (Page-490) – The Leader of the Opposition (Shri Ghulam Nabi Azad) then said:

“The leader of the opposition (Shri Ghulam Nabi Azad): Sir, I just want to say that Mr. Yechury has given a totally different dimension to the entire thing. It is quite an eye opener for all of us that the entire legislation will become ultr vires. So, my suggestion is that before my colleague, Mr.

Anand Sharma, speaks, I would request one thing. Of course, we have great lawyers from all sides here but I think one of the oldest luminaries in the legal profession is Mr. Parasaran. Before we all decide what to do, can we request 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 Bill and 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 xxx Mr. Deputy Chairman: What I want to know is this. You have mentioned that there are two provisions. Number one, if it is amended in a particular way, it can directly go to the President. If the amendment involves Chapter IV, part 5, or Chapter V, etc., etc., it has to be ratified by half in the Assemblies. Okay. I accept both of them. But do any of these objections 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 separate Bill is for guidance to the Legislatures as to how the entire structure has come into existence. Therefore, it is not unconstitutional. We have got summary power under Article 246 read with Entries 77 and 78, which is not a limited power. It is a plenary power, exhaustive power. This Parliament can pass any law with regard to composition and organization of the Supreme Court; this Parliament can pass any law with regard to High Court composition. That is not a limited power. ……..” (Page-495) Mr. Deputy Chairman: Yes, I will come ….(interruptions)….

Now, Mr. Minister, the point is that you yourself admit that only after 50 per cent of the Assemblies have endorsed it by a Resolution can your Bill come into force, and after the President has given assent. And then, you are saying that the Bill was passed along with this only as a guideline, so that Members of the Assemblies know what you are going to do.

Shri Ravi Shankar Prasad: But it would become effective after assent. That is all.

Mr. Deputy Chairman: That’s what I am saying. It will become effective after six months.

Now, I would like to know one thing from Mr. Parasaran. Article 246, according to him, (the Minister) gives absolute powers to Parliament to pass a legislation. Is there any provision in the Constitution, which prevents passing of such a Bill before the Constitutional Amendment is endorsed by the President? Is there any such provision? …(interruptions)….

I will come to you. Yes, Mr. Parasaran. (Page-495) – In response Mr. K. Parasaran then said:

“Shri K. Parasaran: Sir, I would explain this. Now, we are concerned with Article 124 and a legislation under Article 246 read with the relevant entries in the Seventh Schedule, pointed out by the Hon. Minister. Now, the Supreme Court has interpreted Article 124. We cannot pass an Act contrary to that judgment and, therefore, the need for amendment to the constitution. If the Constitution is not amended, then we lack the legislative competence. There is no good of going to Article 246 and reading the entries. Had we the legislative competence, under Article 246 read with the entries…. (Emphasis supplied) page 495.

Mr. Deputy Chairman: Then, how do you explain Article 246? Shri K. Parasaran: Suppose the Constitutional Amendment is passed, then can this Bill be introduced and discussed as it is? As a hypothetical case, if this Amendment Bill is not passed, can we introduce this Bill and pass it? We will not be able to do it.” (Emphasis supplied) (Page-496).”

57. In other words, it was the contention of the learned counsel, that the NJAC Bill was passed by both Houses of Parliament, when Parliament had no power, authority or jurisdiction to consider such a Bill, in the teeth of Articles 124(2) and 217(1), as enacted in the original Constitution. It was submitted, that the passing of the said Bill, was in itself unconstitutional, ultra vires and void, because the amended provisions contained in the Constitution (99th Amendment) Act, had not come into play.

It was submitted, that the passing by the Lok Sabha, as also, by the Rajya Sabha of the 121st Constitution Amendment Bill on 13/14.8.2014, and the ratification thereof by 16 State Legislatures, as also, the assent given thereto by the President on 31.12.2014, would not bestow validity on the NJAC Act. This, for the simple reason, that the Constitution (99th Amendment) Act, was brought into force only on 13.4.2015. In the above view of the matter, according to the learned counsel, till 13.4.2015, Articles 124(2) and 217(1) of the Constitution of India were liable to be read, as they were originally enacted. In the aforesaid context, it was submitted, that the NJAC Act could not have been passed, till the unamended provisions of the Constitution were in force. And that, the mere assent of the President to the NJAC Act on 31.12.2014, could not infuse validity thereon.

58. In order to substantiate the aforesaid contention, learned counsel placed reliance on A.K. Roy v. Union of India[49], and invited our attention to the following:

“45 The argument arising out of the provisions of Article 368(2) may be considered first. It provides that when a Bill whereby the Constitution is amended is passed by the requisite majority, it shall be presented to the President who shall give his assent to the Bill, “and thereupon the Constitution shall stand amended in accordance with the terms of the Bill.”

This provision shows that a constitutional amendment cannot have any effect unless the President gives his assent to it and secondly, that nothing more than the President’s assent to an amendment duly passed by the Parliament is required, in order that the Constitution should stand amended in accordance with the terms of the Bill. It must follow from this that the Constitution stood amended in accordance with the terms of the 44th Amendment Act when the President gave his assent to that Act on April 30, 1979. We must then turn to that Act for seeing how and in what manner the Constitution stood thus amended. The 44th Amendment Act itself prescribes by Section 1(2) a pre-condition which must be satisfied before any of its provisions can come into force. That pre-condition is the issuance by the Central Government of a notification in the official gazette, appointing the date from which the Act or any particular provision thereof will come into force, with power to appoint different dates for different provisions.

Thus, according to the very terms of the 44th Amendment, none of its provisions can come into force unless and until the Central Government issues a notification as contemplated by Section 1(2).

46. There is no internal contradiction between the provisions of Article 368(2) and those of Section 1(2) of the 44th Amendment Act.

Article 368(2) lays down a rule of general application as to the date from which the Constitution would stand amended in accordance with the Bill assented to by the President. Section 1(2) of the Amendment Act specifies the manner in which that Act or any of its provisions may be brought into force. The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution. For determining the date with effect from which the Constitution stands amended in accordance with the terms of the Bill, one has to turn to the date on which the President gave, or was obliged to give, his assent to the Amendment. For determining the date with effect from which the Constitution, as amended, came or will come into force, one has to turn to the notification, if any, issued by the Central Government under Section 1(2) of the Amendment Act.

47. The Amendment Act may provide that the amendment introduced by it shall come into force immediately upon the President giving his assent to the Bill or it may provide that the amendment shall come into force on a future date. Indeed, no objection can be taken to the constituent body itself appointing a specific future date with effect from which the Amendment Act will come into force; and if that be so, different dates can be appointed by it for bringing into force different provisions of the Amendment Act. The point of the matter is that the Constitution standing amended in accordance with the terms of the Bill and the amendment thus introduced into the Constitution coming into force are two distinct things.

Just as a law duly passed by the legislature can have no effect unless it comes or is brought into force, similarly, an amendment of the Constitution can have no effect unless it comes or is brought into force. The fact that the constituent body may itself specify a future date or dates with effect from which the Amendment Act or any of its provisions will come into force shows that there is no antithesis between Article 368(2) of the Constitution and Section 1(2) of the 44th Amendment Act. The expression of legislative or constituent will as regards the date of enforcement of the law or Constitution is an integral part thereof. That is why it is difficult to accept the submission that, contrary to the expression of the constituent will, the amendments introduced by the 44th Amendment Act came into force on April 30, 1979 when the President gave his assent to that Act. The true position is that the amendments introduced by the 44th Amendment Act did not become a part of the Constitution on April 30, 1979.

They will acquire that status only when the Central Government brings them into force by issuing a notification under Section 1(2) of the Amendment Act.”

59. It was also the contention of Mr. Fali S. Nariman, that just as a constitutional amendment was liable to be declared as ultra vires, if it violated and/or abrogated, the “core” or the “basic structure” of the Constitution; even a simple legislative enactment, which violated the “basic structure” of the Constitution, was liable to be declared as unconstitutional. For the instant proposition, learned counsel referred to the Madras Bar Association case35, and placed reliance on the following observations recorded therein:

“109. Even though we have declined to accept the contention advanced on behalf of the Petitioners, premised on the “basic structure” theory, we feel it is still essential for us, to deal with the submission advanced on behalf of the respondents in response. We may first record the contention advanced on behalf of the respondents. It was contended, that a legislation (not being an amendment to the Constitution), enacted in consonance of the provisions of the Constitution, on a subject within the realm of the legislature concerned, cannot be assailed on the ground that it violates the “basic structure” of the Constitution. For the present controversy, the respondents had placed reliance on Articles 245 and 246 of the Constitution, as also, on entries 77 to 79, 82 to 84, 95 and 97 of the Union List of the Seventh Schedule, and on entries 11-A and 46 of the Concurrent List of the Seventh Schedule. Based thereon it was asserted, that Parliament was competent to enact the NTT Act. For examining the instant contention, let us presume it is so. Having accepted the above, our consideration is as follows. The Constitution regulates the manner of governance in substantially minute detail. It is the fountainhead distributing power, for such governance. The Constitution vests the power of legislation at the Centre, with the Lok Sabha and the Rajya Sabha, and in the States with the State Legislative Assemblies (and in some States, the State Legislative Councils, as well). The instant legislative power is regulated by “Part XI” of the Constitution. The submission advanced at the hands of the learned counsel for the respondents, insofar as the instant aspect of the matter is concerned, is premised on the assertion that the NTT Act has been enacted strictly in consonance with the procedure depicted in “Part XI” of the Constitution. It is also the contention of the learned counsel for the respondents, that the said power has been exercised strictly in consonance with the subject on which the Parliament is authorized to legislate. Whilst dealing with the instant submission advanced at the hands of the learned counsel for the respondents, all that needs to be stated is, that the legislative power conferred under “Part XI”

of the Constitution has one overall exception, which undoubtedly is, that the “basic structure” of the Constitution, cannot be infringed, no matter what. On the instant aspect some relevant judgments rendered by Constitutional Benches of this Court, have been cited hereinabove. It seems to us, that there is a fine difference in what the petitioners contend, and what the respondents seek to project. The submission advanced at the hands of the learned counsel for the petitioners does not pertain to lack of jurisdiction or inappropriate exercise of jurisdiction. The submission advanced at the hands of the learned counsel for the petitioners pointedly is, that it is impermissible to legislate in a manner as would violate the “basic structure” of the Constitution. This Court has repeatedly held that an amendment to the provisions of the Constitution would not be sustainable if it violated the “basic structure” of the Constitution, even though the amendment had been carried out by following the procedure contemplated under “Part 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 than amendments to the Constitution) as well, even though the legislation had been enacted by following the prescribed procedure, and was within the domain of the enacting legislature, any infringement to the “basic structure” would be unacceptable. Such submissions advanced at the hands of the learned counsel for the respondents are, therefore, liable to be disallowed, and are accordingly declined.”

60. Mr. Arvind P. Datar, learned senior counsel, assailed the constitutional validity of various provisions of the NJAC Act, by advancing the same submissions, as were relied upon by him while assailing the constitutional validity of Articles 124A, 124B and 124C. For reasons of brevity, the aforestated submissions noticed with reference to individual provisions of the NJAC Act are not being repeated again.

61. A challenge was also raised, to the different provisions of the NJAC Act. First and foremost, a challenge was raised to the manner of selection of the Chief Justice of India. Section 5(1) of the NJAC Act, it was submitted, provides that the NJAC would recommend the senior most Judge of the Supreme Court, for being appointed as Chief Justice of India, subject to the condition, that he was considered “fit” to hold the office. It was contended, that the procedure to regulate the appointment of the Chief Justice of India, was to be determined by Parliament, by law under Article 124C. It was contended, that the term “fit”, expressed in Section 5 of the NJAC Act, had not been elaborately described. And as such, fitness would have to be determined on the subjective satisfaction of the Members of the NJAC. It was submitted, that even though the learned Attorney General had expressed, during the course of hearing, that fitness meant “…mental and physical fitness alone…”, it was always open to the Parliament to purposefully define fitness, in a manner as would sub-serve the will of the executive. It was submitted, that even an ordinance could be issued without the necessity, of following the procedure, of enacting law. It was asserted, that the criterion of fitness could be defined and redefined. It was submitted, that it was a constitutional convention, that the senior most Judge of the Supreme Court would always be appointed as Chief Justice of India. And that, the aforesaid convention had remained unbroken, even though in some cases the tenure of the appointee, had been short, and as such, may not have enured to the advantage, of the judicial organization as a whole. Experience had shown, according to learned counsel, that adhering to the practice of appointing the senior most Judge as the Chief Justice of India, had resulted in institutional harmony amongst Judges, which was extremely important for the health of the judiciary, and also, for the “independence of the judiciary”. It was submitted, that it would be just and appropriate, at the present juncture, to understand the width of the power, so as to prevent any likelihood of its misuse in future. It was submitted, that various ways and means could be devised to supersede Judges, and also, to bring in favourites. Past experience had shown, that the executive had abused its authority, when it departed from the above rule in April 1973, by superseding J.M. Shelat, J., the senior most Judge and even the next two Judges in the order of seniority after him, namely, K.S. Hegde and A.N. Grover, and appointed the fourth senior most Judge A.N Ray, as the Chief Justice of India. Again in January 1977 on the retirement of A.N. Ray, CJ., the senior most Judge H.R. Khanna, was ignored, and the next senior most Judge, M.H. Beg, was appointed as the Chief Justice of India. Such control in the hands of the executive would cause immense inroads, in the decision making process. And could result in, Judges trying to placate and appease the executive, for personal gains and rewards.

62. The submission noticed above was sought to be illustrated through the following instance. It was pointed out, that it would be genuine and legitimate for the Parliament to enact, that a person would be considered fit for appointment as Chief Justice of India, only if he had a minimum remaining tenure of at least two years. Such an enactment would have a devastating effect, even though it would appear to be innocuously legitimate. It was contended, that out of the 41 Chief Justices of India appointed till date, only 12 Chief Justices of India, had a tenure of more than two years. Such action, at the hands of the Parliament, was bound to cause discontentment to those, who had a legitimate expectation to hold the office of Chief Justice of India. It was submitted, that similar instances can be multiplied with dimensional alterations by prescribing different parameters. It was submitted, that the Parliament should never be allowed the right to create uncertainty, in the matter of selection and appointment of the Chief Justice of India, because the office of the Chief Justice of India was pivotal, as it shouldered extremely serious and onerous responsibilities. The exercise of the above authority, it was pointed out, could/would seriously affect the “independence of the judiciary”. In the above context, reference was also made, to the opinion expressed by renowned persons, having vast experience in the judicial institution, effectively bringing out the veracity of the contention advanced. Reference in this regard was made to the observations of M.C. Chagla, in his book, “Roses in December – An Autobiography”, wherein he examined the impact of supersession on Judges, who by virtue of the existing convention, were in line to be the Chief Justice of India, but were overlooked by preferring a junior. Reference was also made to the opinion expressed by H.R. Khanna, J., (in his book – “Neither Roses Nor Thorns”). Finally, the Court’s attention was drawn to the view expressed by H.M. Seervai (in “Constitutional Law of India – A Critical Commentary’). It was submitted, that leaving the issue of determination of fitness with the Parliament, was liable to fan the ambitions of Judges, and would make them loyal to those who could satisfy their ambitions. It was therefore the contention of the learned counsel, that Section 5, which created an ambiguity in the matter of appointment of the Chief Justice of India, and could be abused to imperil “independence of the judiciary”, was liable to be declared as unconstitutional.

63. It was also the contention of the learned counsel for the petitioners, that on the issue of selection and appointment of Judges to the higher judiciary, the NJAC was liable to take into consideration ability, merit and suitability (as may be specified by regulations). It was submitted, that the above criteria could be provided through regulations 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 the conditions of eligibility. Inasmuch as, a candidate who did not satisfy the standards expressed in the regulations, would also not satisfy, the prescribed conditions of appointment. It was asserted, that it would be a misnomer to treat the same to be a matter of mere procedure. Thus viewed, it was contended, that the provisions of the NJAC Act, which laid down (or provided for the laying down) substantive conditions for appointment, was clearly beyond the purview of Article 124C, inasmuch as, under the above provision, Parliament alone had been authorised by law, to regulate the procedure for appointment of Judges of the Supreme Court, or to empower the NJAC to lay the same down by regulations, inter alia the manner of selection of persons for appointment, as Judges of the Supreme Court. It was submitted, that the NJAC Act, especially in terms of Section 5(2), had travelled far beyond the jurisdictional parameters contemplated under Article 124C.

64. It was also contended, that while recommending names for appointment of a Judge to the Supreme Court, seniority in the cadre of Judges, was liable to be taken into consideration, in addition to ability and merit. It was submitted, that the instant mandate contained in the first proviso under Section 5(2) of the NJAC Act, clearly breached the “federal structure” of governance, which undoubtedly required regional representation in the Supreme Court. Since the “federal structure” contemplated in the Constitution was also one of the “basic structures” envisioned by the framers of the Constitution, the same could not have been overlooked.

65. Besides the above, the Court’s attention was invited to the second proviso, under Section 5(2) of the NJAC Act, which mandates that the NJAC would not make a favourable recommendation, if any two Members thereof, opposed the candidature of an individual. It was contended, that placing the power of veto, in the hands of any two Members of the NJAC, would violate the recommendatory power expressed in Article 124B. In this behalf, it was contended, that the second proviso under Section 5(2), would enable two eminent persons (- lay persons, if the submission advanced by the learned Attorney General is to be accepted) to defeat a unanimous opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court. And thereby negate the primacy vested in the judiciary, in the matter of appointment of Judges to the higher judiciary.

66. It was submitted, that the above power of veto exercisable by two lay persons, or alternatively one lay person, in conjunction with the Union Minister in charge of Law and Justice, would cause a serious breach in the “independence of the judiciary”. Most importantly, it was contended, that neither the impugned constitutional amendment, nor the provisions of the NJAC Act, provide for any quorum for holding the meetings of the NJAC. And as such (quite contrary to the contentions advanced at the hands of the learned Attorney General), it was contended, that a meeting of the NJAC could not be held, without the presence of the all Members of the NJAC. In order to support his above contention, he illustratively placed reliance on the Constitution (122nd Amendment) Bill, 2014 [brought before the Parliament, by the same ruling political party, which had successfully amended 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 proposed Article 279A intended to create the Goods and Services Tax Council. Sub- Article (7) of Article 279A postulated, that “… One-half of the total number of Members of the Goods and Services Tax Council…” would constitute the quorum for its meetings. And furthermore, that “… Every decision of the Goods and Services Tax Council shall be taken at a meeting, by a majority of not less than three-fourths of the weighted votes of the members present and voting …”. Having laid down the above parameters, in the Bill which followed the Bill that led to the promulgation of the Constitution (99th Amendment) Act, it was submitted, that the omission of providing for a quorum for the functioning of the NJAC, and the omission to quantify the strength required for valid decision making, was not innocent.

And that, it vitiated the provision itself.

asserting, that there was no provision in the Constitution of India, either when it was originally drafted, or at any stage thereafter, which contemplated, that Judges would appoint Judges to the higher judiciary. It was accordingly asserted, that the appointment of Judges by Judges was foreign to the provisions of the Constitution. It was pointed out, that there were certain political upheavals, which had undermined the “independence of the judiciary”, including executive overreach, in the matter of appointment and transfer of Judges of the higher judiciary, starting with supersession of senior Judges of the Supreme Court in 1973, followed by, the mass transfer of Judges of the higher judiciary during the emergency in 1976, and thereafter, the second supersession of a senior Judge of the Supreme Court in 1977. It was acknowledged, that there was continuous interference by the executive, in the matter of appointment of Judges to the higher judiciary during the 1980’s. Despite thereof, whilst adjudicating upon the controversy in the First Judges case rendered in 1981, this Court, it was pointed out, had remained unimpressed, and reiterated the primacy of the executive, in the matter of appointment of Judges to the higher judiciary.

68. It was pointed out, that the issue for reconsideration of the decision rendered in the First Judges case arose in Subhash Sharma v. Union of India4, wherein the questions considered were, whether the opinion of the Chief Justice of India, in regard to the appointment of Judges to the Supreme Court and High Courts, as well as, transfer of High Court Judges, was entitled to primacy, and also, whether the matter of fixation of the judge-strength in High Courts, was justiciable? It was asserted, that the aforesaid two questions were placed for determination by a Constitution Bench of nine Judges (keeping in view the fact that the First Judges case, was decided by a seven-Judge Bench). It was asserted, that the decision rendered by this Court in the Second Judges case, was on the suo motu exercise of jurisdiction by this Court, wherein this Court examined matters far beyond the scope of the reference order. It was contended, that the Second Judges case was rendered, without the participation of all the stakeholders, inasmuch as, the controversy was raised at the behest of practicing advocates and associations of lawyers, and there was no other stakeholder involved during its hearing.

69. It was asserted, that the judiciary had no jurisdiction to assume to itself, the role of appointment of Judges to the higher judiciary. It was pointed out, that it is the Parliament alone, which represents the citizenry and the people of this country, and has the exclusive jurisdiction to legislate on matters. Accordingly, it was asserted, that the decisions in the Second and Third Judges cases, must be viewed as legislation without any jurisdictional authority.

70. It was pointed out, that the issue relating to the amendment of the Constitution, pertaining to the subject of appointment of Judges to the higher judiciary, through a Judicial Commission commenced with the Constitution (67th Amendment) Bill, 1990. The Bill however lapsed. On the same subject, the Constitution (82nd Amendment) Bill, 1997 was introduced.

The 1997 Bill, however, could not be passed. This was followed by the Constitution (98th Amendment) Bill, 2003 which was introduced when the present Government was in power. In 2003 itself, a National Commission was set up to review the working of the Constitution, followed by the Second Administrative Reforms Commission in 2007. Interspersed with the aforesaid events, were a number of Law Commission’s Reports. The intention of the Parliament, since the introduction of the Bill in 1990, it was submitted, was aimed at setting up a National Judicial Commission, for appointment and transfer of Judges of the higher judiciary. It was pointed out, that no positive achievement was made in the above direction, for well over two decades. Mr. Justice M.N. Venkatachaliah, who headed the National Commission to review the working of the Constitution, had also recommended a five-Member National Judicial Commission, whereby, a wide consultative process was sought to be introduced, in the selection and appointment of Judges. It was submitted, that all along recommendations were made, for a participatory involvement of the executive, as well as the judiciary, in the matter of appointment of Judges to the higher judiciary. It was also pointed out, that the Constitution (98th Amendment) Bill, 2003 proposed a seven-Member National Judicial Commission. Thereafter, the Administrative Reforms Commission, proposed a eight-Member National Judicial Commission, to be headed by the Vice-President, and comprising of the Prime Minister, the Speaker, the Chief Justice of India, the Law Minister and two leaders of the Opposition. The aforesaid recommendation, was made by a Commission headed by Veerappa Moily, the then Union Law Minister. The present Constitution (99th Amendment) Act, 2014, whereby Article 124 has been amended and Articles 124A to 124C have been inserted in the Constitution, contemplates a six-Member National Judicial Commission. It was submitted, that there was no justification in finding anything wrong, in the composition of the NJAC. To point out the safeguards against entry of undesirable persons into the higher judiciary, it was emphasized, that only if five of the six Members of the NJAC recommended a candidate, he could be appointed to the higher judiciary. It was submitted, that the aforestated safeguards, postulated in the amended provisions, would not only ensure transparency, but would also render a broad based consideration.

71. As a counter, to the submissions advanced on behalf of the petitioners, it was asserted, that the Parliament’s power to amend the Constitution was plenary, subject to only one restriction, namely, that the Parliament could not alter the “basic structure” of the Constitution. And as such, a constitutional amendment must be presumed to be constitutionally valid (unless shown otherwise). For the instant proposition, reliance was placed on Charanjit Lal Chowdhury v. Union of India[50], Ram Krishna Dalmia v. 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. Laxmi Devi[53].

72. It was asserted, that the Parliament was best equipped to assess the needs of the people, and to deal with the changing times. For this, reliance was placed on Mohd. Hanif Quareshi v. State of Bihar[54], State of West Bengal v. Anwar Ali Sarkar[55]. It was contended, that while enacting the Constitution (99th Amendment) Act, and the NJAC Act, the Parliament had discharged a responsibility, which it owed to the citizens of this country, by providing for a meaningful process for the selection and appointment of Judges to the higher judiciary.

73. Referring to the decisions rendered by this Court in the Second and Third Judges cases, it was asserted, that the way he saw it, there was only one decipherable difference introduced in the process of selection contemplated through the NJAC. Under the system introduced, the judiciary could not “insist” on the appointment of an individual. But the judiciary continued to retain the veto power, to stop the appointment of an individual considered unworthy of appointment. According to him, the nomination of a candidate, for appointment to the higher judiciary, under the above judgments, could also not fructify, if any two members of the collegium, expressed an opinion against the nominated candidate. It was pointed out, that the above position had been retained in the impugned provisions. According to the learned Attorney General, the only difference in the impugned provisions was, that the right of the judiciary to “insist” on the appointment of a nominee, was no longer available to the judiciary.

Under the collegium system, a recommendation made for appointment to the higher judiciary, could be returned by the executive for reconsideration.

However, if the recommendation was reiterated, the executive had no choice, but to appoint the recommended nominee. It was pointed out, that the instant right to “insist” on the appointment of a Judge, had now been vested in the NJAC. It was vehemently contended, that the denial to “insist”, on the appointment of a particular nominee, would surely not undermine the “independence of the judiciary”. The “independence of the judiciary”, according to the learned Attorney General, would be well preserved, if the right to “reject” a nominee was preserved with the judiciary, which had been done.

74. Based on the aforesaid submission, it was asserted, that the process initiated by the Parliament in 1990 (for the introduction of a Commission, for appointment of Judges to the higher judiciary), had taken twenty-four years to fructify. The composition of the NJAC introduced through the Constitution (99th Amendment) Act, according to him, meets with all constitutional requirements, as the same is neither in breach of the rule of “separation of powers”, nor that of “the independence of the judiciary”.

It was contended, that the impugned provisions preserve the “basic structure” of the Constitution.

75. It was submitted, that the assailed provisions had only introduced rightful checks and balances, which are inherent components of an effective constitutional arrangement. The learned Attorney General also cautioned this Court, by asserting, that it was neither within the domain of the petitioners, nor of this Court, to suggest an alternative combination of Members for the NJAC, or an alternative procedure, which would regulate its functioning more effectively. Insofar as the present petitions are concerned, it was asserted, that the challenge raised therein, could only be accepted, if it was shown, that the Parliament while exercising its plenary power to amend the Constitution, had violated the “basic structure” of the Constitution.

76. It was submitted, that it was not the case of any of the petitioners before this Court, either that the Parliament was not competent to amend Article 124, or that the procedure prescribed therefor under Article 368 had not been followed. In the above view of the matter, it was submitted, that the only scope for examination with reference to the present constitutional amendment was, whether while making the aforestated constitutional amendment, the Parliament had breached, any of the “basic features” of the Constitution.

77(i). For demonstrating the validity of the impugned constitutional amendment, reliance in the first instance was placed on the Kesavananda Bharati case10. Reference was made to the observations of S.M. Sikri, CJ., to contend, that the extent of the amending power under Article 368 was duly adverted to. Reading the preamble to the Constitution, it was pointed out, that the fundamental importance expressed therein was, the freedom of the individual, and the inalienability of economic, social and political justice, as also, the importance of the Directive Principles (paragraph 282). In this behalf, it was also submitted, that the “fundamental features” of the Constitution, as for instance, secularism, democracy and the freedom of the individual would always subsist in a welfare State (paragraph 283). Leading to the conclusion, that even fundamental rights could be amended in public interest, subject to the overriding condition, that the same could not be completely abrogated (paragraph 287). In this behalf, it was also pointed out, that the wisdom of the Parliament to amend the Constitution could not be the subject matter of judicial review (paragraph 288), leading to the overall conclusion, that by the process of amendment, it was open to the Parliament to adjust fundamental rights, in order to secure the accomplishment of the Directive Principles, while maintaining the freedom and dignity of every citizen (paragraph 289). Thus viewed, it was felt, that the rightful legal exposition would be, that even though every provision of the Constitution could be amended, the contemplated amendment should ensure, that the “basic foundation and structure” of the Constitution remained intact. In this behalf, an illustrative reference was made to the features, which constituted the “basic structure” of the Constitution. According to the learned Attorney General, they included, the supremacy of the Constitution, the republican and democratic form of Government, the secular character of the Constitution, the “separation of powers” between the legislature, the executive and the judiciary, and the federal character of the Constitution (paragraph 292). In addition to the above, it was asserted, that India having signed the Universal Declaration of Human Rights, had committed itself to retaining such of the fundamental rights, as were incorporated in the above declaration (paragraph 299). In the above view, according to the Attorney General, the expression “amendment of this Constitution” would restrain the Parliament, from abrogating the fundamental rights absolutely, or from completely changing the “fundamental features” of the Constitution, so as to destroy its identity. And that, within the above limitation, the Parliament could amend every Article of the Constitution (paragraph 475).

It was insisted, that the impugned provisions had not breached any of the above limitations.

(ii) Reference was then made to the common opinion expressed by J.M.

Shelat and A.N. Grover, JJ., (in the Kesavananda Bharati case10) to assert, that one of the limitations with reference to the amendment to the Constitution was, that it could not be amended to such an extent, as would denude the Constitution of its identity (paragraph 537). It was submitted, that the power to amend, could not result in the abrogation of the Constitution, or lead to the framing of a new Constitution, or to alter or change the essential elements of the constitutional structure (paragraph 539). It was pointed out, that it was not proper, to give a narrow meaning to the power vested in the Parliament to amend the Constitution, and at the same time, to give it such a wide meaning, so as to enable the amending body, to change the structure and identity of the Constitution (paragraph 546). With reference to the power of judicial review, it was contended, that there was ample evidence in the Constitution itself, to indicate that a system of “checks and balances” was provided for, so that none of the pillars of governance would become so predominant, as to disable the others, from exercising and discharging the functions entrusted to them.

It was submitted, that judicial review, provided expressly through Articles 32 and 226, was an incident of the aforestated system of checks and balances (paragraph 577). Based on the historical background, the preamble, the entire scheme of the Constitution, and other relevant provisions thereof, including Article 368, it was submitted that it could be inferred, that the supremacy of the Constitution, the republican and democratic form of Government, sovereignty of the country, the secular and federal character of the Constitution, the demarcation of powers between the legislature, the executive and the judiciary, the dignity of the individual secured through the fundamental rights, and the mandate to build a welfare State (contained in Parts III and IV), and the unity and the integrity of the nation, could be regarded as the “basic elements” of the constitutional structure (paragraph 582). It was also asserted, that as a society grows, its requirements change, and accordingly, the Constitution and the laws have to be changed, to suit the emerging needs. And accordingly, the necessity to amend the Constitution, to adapt to the changing needs, arises. Likewise, in order to implement the Directive Principles, it could be necessary to abridge some of the fundamental rights vested in the citizens. The power to achieve the above objective needed, a broad and liberal interpretation of Article 368. Having so held, it was concluded, that even the fundamental rights could be amended (paragraph 634). Reference was made to the fact, that the founding fathers were aware, that in a changing world, there would be nothing permanent, and therefore, they vested the power of amendment in the Parliament through Article 368, so as to keep the Constitution in tune with, the changing concepts of politics, economics and social ideas, and to so reshape the Constitution, as would meet the requirements of the time (paragraph 637).

With reference to the above, it was contended, that the Parliament did not have the power to abrogate or emasculate the “basic elements” or “fundamental features” of the Constitution, such as the sovereignty of India, the democratic character of our polity, the unity of the country, and the essential elements of the individual freedoms secured to the citizens. Despite the above limitations, it was pointed out, that the amending power under Article 368 was wide enough, to amend every Article of the Constitution, so as to reshape the Constitution to fulfill the obligations imposed on the State (paragraph 666). And accordingly, it was pointed out, that while recording conclusions, this Court had observed, that the power to amend the Constitution under Article 368 was very wide, yet did not include the power to destroy, or emasculate the “basic elements” or the “fundamental features” of the Constitution (paragraph 744).

(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 to 1967 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 Part III of the Constitution, so as to take away or abridge the fundamental rights. Having noticed the fact, that no attempt was made by the Parliament to take away or abridge the fundamental rights, relating to the liberty of a person, and the freedom of expression, it was recorded, that even in future it could not be done. Accordingly, with reference to Article 368, it was sought to be concluded, that the Parliament had the power to amend Part III of the Constitution, as long as the “basic structure” of the Constitution was retained (paragraph 1421). If the “basic structure” of the original Constitution was retained, inasmuch as had the original Constitution continued to subsist, even though some of its provisions were changed, the power of amendment would be considered to have been legitimately exercised (paragraph 1430). And therefore, the true effect of Article 368 would be, that the Constitution did not vest with the Parliament, the power or authority for drafting a new and radically changed Constitution, with a different structure and framework (paragraph 1433).

Accordingly, subject to the retention of the “basic structure or framework” of the Constitution, the power vested with the Parliament to amend the Constitution was treated as plenary, and would include the power to add, alter or repeal different Articles of the Constitution, including those relating to fundamental rights. All the above measures were included in the Parliament’s power of amendment, and the denial of such a broad and comprehensive power, would introduce rigidity in the Constitution, as would break the Constitution itself (paragraph 1434). As such, it was held, that the amending power conferred by Article 368, would include the power to amend the fundamental rights, contained in Part III of the Constitution (paragraph 1435). In this behalf, it was asserted, that the issue, whether the amendment introduced would (or would not) be an improvement over the prevailing position, was not justiciable. It was asserted, whether the amendment would be an improvement or not, was for the Parliament alone to determine. And Courts, could not substitute the wisdom of the legislature, by their own foresight, prudence and understanding (paragraph 1436). It was asserted, that the amending power of the Parliament must contain the right to enact legislative provisions, for experiment and trial, so as to eventually achieve the best results (paragraph 1437). In the ultimate analysis, it was held, that the amendment of the Constitution had a wide and broad connotation, and would embrace within itself, the total repeal of some of the Articles, or their substitution by new Articles, which may not be consistent, or in conformity with other Articles. And a Court while judging the validity of an amendment, could only concern itself with the question, as to whether the constitutional requirements for making the amendment had been satisfied? And accordingly, an amendment, made in consonance with the procedure prescribed, could not be struck down, on the ground that it was a change for the worst (paragraph 1442). While examining the question, whether the right to property could be included in the “basic structure or framework” of the Constitution, the answer rendered was in the negative. It was held, that in exercising the power of judicial review, Courts could not be oblivious of the practical needs of the Government.

And that, the power of amendment could be exercised even for trial and error, inasmuch as opportunity had to be allowed for vindicating reasonable belief by experience (paragraph 1535). It was contended, that no generation had a monopoly to wisdom, nor the right to place fetters on future generations, nor to mould the machinery of Government, keeping in mind eternal good. The possibility, that the power of amendment may be abused, furnished no ground for denial of its existence. According to the Attorney General, it was therefore not correct to assume, that if the Parliament was held entitled to amend Part III of the Constitution, it would automatically and necessarily result in abrogation of the fundamental rights. Whilst concluding, that the right to property did not pertain to the “basic structure or framework” of the Constitution, it was held, that power of amendment under Article 368 did not include the power to abrogate the Constitution, or to alter the “basic structure or framework” of the Constitution. Despite having so concluded, it was held, that no part of the fundamental rights could claim immunity, from the power of amendment (paragraph 1537).

78. Reference was then made to the judgments rendered by this Court in Indira Nehru Gandhi v. Raj Narain[56], Waman Rao v. Union of India[57], and the M. Nagaraj case36, to contend, that the “basic structure” of the Constitution was to be determined, on the basis of the features which existed in the text of the original enactment of the Constitution, on the date of its coming into force. It was therefore pointed out, that the subsequent amendments to the Constitution, could not be taken into consideration, to determine the “basic features” of the Constitution.

79. Having laid down the aforestated foundation, the learned Attorney General submitted, that that reference could only be made to Articles 124 and 217, as they originally existed, when the Constitution was promulgated.

If the original provisions were to be taken into consideration, according to the learned Attorney General, it would be apparent that the above Articles, expressed that the right to make appointments of Judges to the higher judiciary, being limited only to a “consultative” participation of the judiciary, was in the determinative domain of the executive. It was pointed out, that on the subject of appointment of Judges to the higher judiciary, the primacy of the Chief Justice of India, through the collegium process, was an innovation of the judiciary itself (in the Second Judges case). The above primacy, was alien to the provisions of the Constitution, as originally enacted. And as such, the amendment to Article 124, and the insertion of Articles 124A to 124C therein, could not be examined on the touchstone of material, which was in stark contrast with the plain reading of Articles 124 and 217 (as they were originally enacted). It was accordingly asserted, that the present challenge to the Constitution (99th Amendment) Act, would not fall within the defined parameters of the “basic structure” concept, elaborated extensively by him (as has been recorded by us, above). The prayers made by the petitioners on the instant ground were therefore, according to the learned Attorney General, liable to be rejected.

80. Having traveled thus far, it was pointed out, that it was important to understand the true purport and effect of the term “independence of the judiciary”. In this behalf, in the first instance, the Court’s attention was invited to, the First Judges case, wherein reference was made to the opinion expressed by E.S. Venkataramiah, J. (as he then was), who had taken the view, that it was difficult to hold, that merely because the power of appointment was with the executive, the “independence of the judiciary” would be compromised. In stating so, it was emphasized, that the true principle was, that after such appointment, the executive should have no scope, to interfere with the work of a Judge (paragraph 1033). Based thereon, it was asserted, that the independence of a Judge would not stand compromised, if after his appointment, the role of the executive, to deal with him, is totally excluded. Reference was then made to the opinion expressed by P.N. Bhagwati, J. (as he then was) (in the same judgment), to the effect, that the concept of “independence of the judiciary”, was not limited only to independence from executive pressure/influence, but was relatable to many other pressures and prejudices. And in so recording, it was held, that “independence of the judiciary” included fearlessness of the other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belonged (paragraph 1037). Based thereon, it was asserted, that “independence of the judiciary”, included independence from the influence of other Judges as well. And as such, it was concluded, that the composition of the NJAC was such, as would ensure the independence of the Judges appointed to the higher judiciary, as contemplated in the First 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 pointed out, that the scheme of the Constitution envisaged a system of checks and balances. Inasmuch as, each organ of governance while being allowed the freedom to discharge the duties assigned to it, was subjected to controls, at the hands of one of the other organs, or both of the other organs.

Illustratively, it was sought to be contended, that all executive authority, is subject to scrutiny through judicial review (at the hands of the judiciary). Likewise, legislation enacted by the Parliament, or the State legislatures, is also subject to judicial review, (at the hands of the judiciary). Even though, the executive and the legislature have the freedom to function and discharge their individual responsibilities, without interference by the other organ(s) of governance, yet the judiciary has been vested with the responsibility to ensure, that the exercise of executive and legislative functions, is in consonance with law. Likewise, it was submitted, that in the matter of appointment of Judges, Articles 124 and 217 provided for executive control, under the scheme of checks and balances. It was submitted, that the instant scheme of checks and balances, was done away with, by the Second and Third Judges cases, in the matter of appointment of Judges to the higher judiciary. It was asserted, that the position of checks and balances has been restored by the Constitution (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 Indira Nehru Gandhi case56, the Sankalchand Himatlal Sheth case5, Asif Hameed v.

State of Jammu and Kashmir[58], State of Bihar v. Bihar Distillery Limited[59], and Bhim Singh v. Union of India13, it was submitted, that this Court had recognized, that the concept of checks and balances, was inherent in the scheme of the Constitution. And that, even though the legislature, the executive and the judiciary were required to function within their own spheres demarcated through different Articles of the Constitution, yet their attributes could never be in absolute terms. It was submitted, that each wing of governance had to be accountable, and till the principle of accountability was preserved, the principle of “separation of powers” would not be achievable. It was therefore contended, that the concept of “independence of the judiciary”, could not be gauged as an absolute end, overlooking the checks and balances, provided for in the scheme of the Constitution.

82. Having so asserted, it was contended, that in the matter of appointment of Judges to the higher judiciary, the most important and significant feature was, that no unworthy or doubtful appointment should go through, even though at times, the candidature of a seemingly good candidate, may not be accepted. It was asserted, that the NJAC had provided for a complete protection, in the sense noticed hereinabove, by providing in the procedure of appointment, that a negative view expressed by any of the two Members of the NJAC, would result in the rejection of the concerned candidate. Therefore, merely two Members of the NJAC, would be sufficient to veto a proposal for appointment. It was submitted, that since three Members of the NJAC were Judges of the Supreme Court, their participation in the NJAC would ensure, that “independence of the judiciary” remained completely safeguarded and secured. It was therefore contended, that not only the Constitution (99th Amendment) Act, but also the 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, that primacy in the matter of appointment of Judges to the higher judiciary, was not contemplated in the Constitution, as originally framed. In this behalf, reference was made to Articles 124 and 217. And in conjunction therewith, adverting to the debates on the subject, by Members of the Constituent Assembly. Thereupon, it was asserted, that the issue of primacy of the Chief Justice, based on a decision by a collegium of Judges, was a judicial innovation, which required reconsideration. Moreover, it was submitted, that the Second and Third Judges cases, were founded on the interpretation of Articles of the Constitution, which had since been amended, and as such, the very basis of the Second and Third Judges cases, no longer existed. Therefore, the legal position declared in the above judgments, could not constitute the basis, of the contentions advanced at the hands of the petitioners. Furthermore, even if the ratio recorded by this Court in the Second and Third Judges cases, was still to be taken into consideration, conclusions (5), (6) and (7) recorded by J.S. Verma, J. (who had transcripted the majority view), show that the primacy of the judiciary was to ensure, that no appointment could be made to the higher judiciary, unless it had the approval of the collegium. It was submitted, that the instant aspect, which constituted the functional basis for ensuring “independence of the judiciary”, had been preserved in the impugned constitutional amendment, and the NJAC Act. It was accordingly contended, that if the right to insist on the appointment of a candidate proposed by the judiciary, was taken away, from the Chief Justice of India (based on a decision of a collegium of Judges), the same would not result, in the emasculation of the “basic structure” of the Constitution. In other words, the same would not violate the “essential and fundamental features” of the Constitution, nor in the least, the “independence of the judiciary”.

84. Based on the above submissions, the learned Attorney General invited the Court’s attention to the primary contention advanced by the petitioners, namely, that even if all the three Judges of the Supreme Court who are now ex officio Members of the NJAC, collectively recommended a nominee, such recommendation could be annulled, by the non-Judge Members of the NJAC. Learned Attorney General submitted, that the above contention was limited to the right to “insist” on an appointment. And that, the right to “insist” did not flow from the conclusions recorded in the Second and Third Judges cases. And further, that the same cannot, by itself, be taken as an incident to establish a breach of the “independence of the judiciary”.

85. Insofar as the Second and Third Judges cases are concerned, it was submitted, that the same may have been the need of the hour, on account of the fact that in 1976, sixteen Judges were transferred (from the High Courts in which they were functioning), to other High Courts. In the Sankalchand Himatlal Sheth case5, one of the transferred Judges challenged his transfer, inter alia, on the ground, that his non-consensual transfer was outside the purview of Article 222, as the same would adversely affect the “independence of the judiciary”. Irrespective of the determination rendered, on the challenge raised in the Sankalchand Himatlal Sheth case5, it was pointed out, the very same question came to be re-agitated in the First Judges case. It was held by the majority, while interpreting Article 222, that the consent of the Judge being transferred, need not be obtained.

It was also pointed out, that ever since the inception of the Constitution, the office of the Chief Justice of India, was occupied by the senior most Judge of the Supreme Court. The above principle was departed from in April 1973, as the next senior most Judge – J.M. Shelat, was not elevated to the office of the Chief Justice of India. Even the next two senior most Judges, after him – K.S. Hegde and A.N. Grover, were also ignored. The instant supersession by appointing the fourth senior most Judge – A.N. Ray, as the Chief Justice of India, was seen as a threat to the “independence of the judiciary”. Again in January 1977, on the retirement of A.N. Ray, CJ., the senior most Judge immediately next to him – H.R. Khanna, was ignored and the second senior most Judge – M.H. Beg, was appointed, as the Chief Justice of India. In the above background, the action of the executive, came to be portrayed as a subversion of the “independence of the judiciary”. It was in the above background, that this Court rendered the Second and Third Judges cases, but the implementation of the manner of appointment of Judges to the higher judiciary, in consonance therewith, had been subject to, overwhelming and all around criticism, including being adversely commented upon by J.S. Verma, CJ., the author of the majority view in the Second Judges case, after his retirement. In this behalf, the Court’s attention was invited to his observations, extracted hereunder:

“My 1993 Judgment, which holds the field, was very much misunderstood and misused. It was in this context, that I said that the working of the judgment, now, for some time, is raising serious questions, which cannot be called unreasonable. Therefore, some kind of re-think is required. My Judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise, between the Executive and the Judiciary, both taking part in it.” It was therefore contended, that in the changed scenario, this Court ought to have, at its own, introduced measures to negate the accusations leveled against the prevailing system, of appointment of Judges to the higher judiciary. Since no such remedial measures were adopted by the judiciary of its own, the legislature had brought about the Constitution (99th Amendment) Act, supplemented by the NJAC Act, to broad base the process of selection and appointment, of Judges to the higher judiciary, to make it transparent, and to render the participants accountable.

86. Having dealt with the constitutional aspect of the matter, the learned Attorney General invited the Court’s attention, to the manner in which judicial appointments were being made in fifteen countries. It was submitted, that in nine countries Judges were appointed either through a Judicial Appointment Commission (Kenya, Pakistan, South Africa and U.K.), or Committee (Israel), or Councils (France, Italy, Nigeria and Sri Lanka).

In four countries, Judges were appointed directly by the Governor General (Australia, Canada and New Zealand), or the President (Bangladesh). It was submitted, that in Germany appointment of Judges was made through a multistage process of nomination by the Minister of Justice, and confirmation by Parliamentary Committees, whereupon, the final order of appointment of the concerned individual, is issued by the President. In the United States of America, Judges were appointed through a process of nomination by the President, and confirmation by the Senate. It was submitted, that in all the fifteen countries referred to above, the executive was the final determinative/appointing authority. Insofar as the appointments made by the Judicial Appointments Commissions/Committees/Councils (referred to above) were concerned, out of nine countries with Commissions, in two countries (South Africa and Sri Lanka) the executive had overwhelming majority, in four countries (France, Israel, Kenya and U.K.) there was a balanced representation of stakeholders including the executive, in three countries (Italy, Nigeria and Pakistan) the number of Judges was in a majority. In the five countries without Commissions/ Committees/ Councils (Canada, Australia, New Zealand, Bangladesh and the United States of America), the decision was taken by the executive, without any formal process of consultation with the judiciary.

It was pointed out, that in Germany, the appointment process was conducted by the Parliament, and later confirmed by the President. It was pointed out, that the judiciary in all the countries referred to above, was totally independent. Based on the above submissions, it was contended, that the manner of selection and appointment of Judges, could not be linked to the concept of “independence of the judiciary”. It was submitted, that the judicial functioning in the countries referred to above, having been accepted as more than satisfactory, there is no reason, that the system of appointment introduced in India, would be adversely impacted by a singular representative of the executive in the NJAC. It was therefore asserted, that the submissions advanced at the hands of the petitioners, were not acceptable, even with reference to the experience of other countries, governed through a constitutional framework (some of them, of the Westminster Model).

87. It was further asserted, that the absence of the absolute majority of Judges in the NJAC, could not lead to the inference, that the same was violative of the “basic structure” of the Constitution, so as to conclude, that it would impinge upon the “independence of the judiciary”. It was asserted, that the representation of the judiciary in the NJAC, was larger than that of the other two organs of the governance, namely, the executive and the legislature. In any case, given the representation of the judiciary in the NJAC, it was fully competent, to stall the appointment of a candidate to the higher judiciary, who was considered by the judicial representatives, as unsuitable. Any two, of the three representatives of the judiciary, were sufficient to veto any appointment supported by others.

88. It was further submitted, that the NJAC was broad based with representatives from the judiciary, the executive and the “two eminent persons”, would not fall in the category of jurists, eminent legal academicians, or eminent lawyers. It was contended, that the intention to include “eminent persons”, who had no legal background was to introduce, in the process of selection and appointment of Judges, lay persons in the same manner, as has been provided for in the Judicial Appointments Commission, in the United Kingdom.

89. It was also the contention of the learned Attorney General, that this would not be the first occasion, when such an exercise has been contemplated by parliamentary legislation. The Court’s attention was drawn to the Consumer Protection Act, 1986, wherein the highest adjudicatory authority is, the National Consumer Disputes Redressal Commission. It was pointed out, that the above Redressal Commission, comprised of Members, with and without a judicial background. The President of the National Consumer Disputes Redressal Commission has to be a person, who has been a Judge of the Supreme Court. Illustratively, it was contended, where a matter is being adjudicated upon by a three-Member Bench, two of the Members may not be having any judicial background. These two non-judicial Members, could overrule the view expressed by a person, who had been a former Judge in the higher judiciary. It was submitted, that situations of the above nature, do sometimes take place. Yet, such a composition for adjudicatory functioning, where the Members with a judicial background are in a minority, is legally and constitutionally valid. If judicial independence cannot be held to be compromised in the above situation, it was asserted, that it was difficult to understand how the same could be considered to be compromised in a situation, wherein the NJAC has three out of its six Members, belonging to the judicial fraternity.

90. It was sought to be suggested, that the primacy of the judiciary, in the matter of appointment of Judges to the higher judiciary, could not be treated as a part of the “basic structure” of the Constitution.

Furthermore, the lack of absolute majority of Judges in the NJAC, would also not tantamount to the constitutional amendment being rendered violative of the “basic structure”. In the above view of the matter, it was asserted, that the submissions advanced at the hands of the learned counsel representing the petitioners, on the aspect of violation of the “basic structure” of the Constitution, by undermining the “independence of the judiciary”, were liable to be rejected.

91. With reference to the inclusion of two “eminent persons”, in the six- Member NJAC, it was submitted, that the general public was the key stakeholder, in the adjudicatory process. And accordingly, it was imperative to ensure their participation in the selection/appointment of Judges to the higher judiciary. Their participation, it was submitted, would ensure sufficient diversity, essential for rightful decision making.

It was submitted, that in the model of the commission suggested by M.N.

Venkatachaliah, CJ., the participation of one eminent person was provided.

He was to be nominated by the President, in consultation with the Chief Justice of India. In the 2003 Bill, which was placed before the Parliament, the proposed Judicial Commission was to include one eminent person, to be nominated by the executive. The 2013 Bill, which was drafted by the previous political dispensation – the U.P.A. Government, the Judicial Commission proposed, was to have two eminent persons, to be selected by the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha. The 2014 Bill, which was drafted by the present political dispensation – the N.D.A. Government, included two eminent persons, to be selected in just about the same manner as was contemplated under the 2013 Bill. The variation being, that one of the eminent persons was required to belong to the Scheduled Castes, or the Scheduled Tribes, or Other Backward Classes, or Minorities, or Women, thereby fulfilling the obvious social obligation. It was submitted, that their participation in the deliberations, for selection of Judges to the higher judiciary, could not be described as adversarial to the judicial community. Their participation would make the process of appointment, more broad based.

92. While responding to the submissions, advanced at the hands of the learned counsel for the petitioners, to the effect that the Constitution (99th Amendment) Act, did not provide any guidelines, reflecting upon the eligibility of the “eminent persons”, to be nominated to the NJAC, and as such, was liable to be struck down, it was submitted, that the term “eminent person” was in no way vague. It meant – a person who had achieved distinction in the field of his expertise. Reference was also made to the debates 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 present situation, it was submitted, that since the selection and nomination of “eminent persons”, was to be in the hands of high constitutional functionaries (no less than the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha), it was natural to assume, that the person(s) nominated, would be chosen, keeping in mind the obligation and the responsibility, that was required to be discharged.

Reliance in this behalf, was placed on the Centre for Public Interest Litigation case43, to assert, that it was sufficient to assume, that such a high profile committee, as the one in question, would exercise its powers objectively, and in a fair and reasonable manner. Based on the above, it was contended, that it was well settled, that mere conferment of wide discretionary powers, would not vitiate the provision itself.

93. Referring to the required qualities of a Judge recognized in the Indian context, as were enumerated in the “Bangalore Principles of Judicial Conduct”, and thereupon accepted the world over, as revised at the Round Table Meeting of Chief Justices held at The Hague, in November 2002, it was submitted, that the two “eminent persons” would be most suited, to assess such matters, with reference to the nominees under consideration. Whilst the primary responsibility of the Members from the judiciary would be principally relatable to, ascertaining the judicial acumen of the candidates concerned, the responsibility of the executive would be, to determine the character and integrity of the candidate, and the inputs, whether the candidate possessed the values, expected of a Judge of the higher judiciary, would be that of “eminent persons” in the NJAC. It was therefore asserted, that the two “eminent persons” would be “lay persons” having no connection with the judiciary, or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualifications. It was submitted, that the instant broad based composition of the NJAC, was bound to be more suitable, than the prevailing system of appointment of Judges. Relying upon the R. Gandhi case38, it was submitted, that it would not be proper to make appointments, by vesting the process of selection, with an isolated group, or a selection committee dominated by representatives of a singular group – the judiciary. In a matter of judicial appointments, it was submitted, the object ought to be, to pick up the best legally trained minds, coupled with a qualitative personality. For this, according to the Attorney General, a collective consultative process, would be the most suitable. It was pointed out, that “eminent persons”, having no nexus to judicial activities, would introduce an element of detachment, and would help to bring in independent expertise, to evaluate non-legal competencies, from an ordinary citizen’s perspective, and thereby, represent all the stakeholders of the justice delivery system.

It was contended, that the presence of “eminent persons” was necessary, to ensure the representative participation of the general public, in the selection and appointment of Judges to the higher judiciary. Their presence would also ensure, that the selection process was broad based, and reflected sufficient diversity and accountability, and in sync with the evolving process of selection and appointment of Judges, the world over.

94. The learned Attorney General, then addressed the issue of inclusion of the Union Minister in charge of Law and Justice, as an ex officio Member in the NJAC. Reference was first made to Articles 124 and 217, as they were originally enacted in the Constitution. It was submitted, that originally, the power of appointment of Judges to the higher judiciary, was exclusively vested with the President. In this behalf reliance was placed on Article 74, whereunder the President was obliged to act on the aid and advice of the Council of Ministers, headed by the Prime Minister. It was pointed out, that the above position, was so declared, by the First Judges case. And as such, from the date of commencement of the Constitution, the executive had the exclusive role, in the selection and appointment of Judges to the higher judiciary. It was asserted, that the position was changed, for the first time, in 1993 by the Second Judges case, wherein the term “consultation”, with reference to the Chief Justice of India, was interpreted as “concurrence”. Having been so interpreted, primacy in the matter of appointment of Judges to the higher judiciary, came to be transferred from the executive, to the Chief Justice of India (based on a collective decision, by a collegium of Judges). Despite the above, the Union Minister in charge of Law and Justice, being a representative of the executive, continued to have a role in the selection process, though his involvement was substantially limited, as against the responsibility assigned to the executive under Articles 124 and 217, as originally enacted. It was pointed out, that by including the Union Minister in charge of Law and Justice, as a Member of the NJAC, the participatory role of the executive, in the matter of selection and appointment of Judges to the higher judiciary, had actually been diminished, as against the original position. Inasmuch as, the executive role in the NJAC, had been reduced to one out of the six Members of the Commission. In the above view of the matter, it was asserted, that it was unreasonable for the petitioners to grudge, the presence of the Union Minister in charge of Law and Justice, as a Member of the NJAC.

95. Insofar as the inclusion of the Union Minister in the NJAC is concerned, it was submitted, that there could be no escape from the fact, that the Minister in question, would be the connect between the judiciary and the Parliament. His functions would include, the responsibility to inform the Parliament, about the affairs of the judicial establishment. It was submitted, that his exclusion from the participatory process, would result in a lack of coordination between the two important pillars of governance. Furthermore, it was submitted that the Minister in question, as a member of the executive, will have access to, and will be able to, provide the NJAC with all the relevant information, about the antecedents of a particular candidate, which the remaining Members of the NJAC are unlikely to have access to. This, according to the learned Attorney General, would ensure, that the persons best suited to the higher judiciary, would be selected. Moreover, it was submitted, that the executive was a key stakeholder in the justice delivery system, and as such, it was imperative for him to have, a role in the process of selection and appointment of Judges, to the higher judiciary.

96. The learned Attorney General allayed all fears, with reference to the presence of Union Minister, in the NJAC, by asserting that he would not be in a position to politicize the appointments, as he was just one of the six- Members of the NJAC. And that, the other Members would constitute an adequate check, even if the Minister in question, desired to favour a particular candidate, on political considerations. This submission was made by the learned Attorney General, keeping in mind the assumed fear, which the petitioners had expressed, on account of the political leanings of the Union Minister, with the governing political establishment. It was accordingly asserted, that the presence of one member of the executive, in a commission of six Members, would not impact the “independence of the judiciary”, leading to the clear and unambiguous conclusion, that the presence of the Union Minister in charge of Law and Justice in the NJAC, would not violate the “basic structure” of the Constitution.

97. Referring to the judgment rendered by this Court, in the Madras Bar Association case35, it was submitted that, for the tribunal in question, the participation of the executive in the selection of its Members, had been held to be unsustainable, because the executive was a stakeholder in each matter, that was to be adjudicated by the tribunal. It was submitted, that the above position did not prevail insofar as the higher judiciary was concerned, since the stakeholders before the higher judiciary were diverse.

It was, therefore, submitted, that the validity of the NJAC could not be assailed, merely on the ground of presence of the Union Minister, as an ex officio Member of the NJAC.

98. The manner of appointment of Judges to the higher judiciary, through the NJAC, it was asserted, would have two major advantages. It would introduce transparency in the process of selection and appointments of Judges, which had hitherto before, been extremely secretive, with the civil society left wondering about, the standards and the criterion adopted, in determining the suitability of candidates. Secondly, the NJAC would diversify the selection process, which would further lead to accountability in the matter of appointments. It was submitted, that not only the litigating public, or the practicing advocates, but also the civil society, had the right to know. It was pointed out, that insofar as the legislative process was concerned, debates in the Parliament are now in the public domain. The rights of individuals, determined at the hands of the executive, have been transparent under the Right to Information Act, 2005.

It was submitted that likewise, the selection and appointment of Judges to the higher judiciary, must be known to the civil society, so as to introduce not only fairness, but also a degree of assurance, that the best out of those willing, were being appointed as Judges.

99. Referring to Article 124A(2) inserted through the Constitution (99th Amendment) Act, it was asserted, that a constitutional process could not be held up, due to the unavailability (and/or the disability) of one or more Members of the NJAC. So that a defect in the constitution of the NJAC, or any vacancy therein, would not impact the process of selection and appointment of Judges to the higher judiciary. Article 124A(2) provided, that the proceedings of the NJAC would not be questioned or invalidated on account of a vacancy or a defect in the composition of the NJAC. It was contended, that it was wrongful for the petitioners to frown on Article 124A(2), as there were a number of statutory enactments with similar provisions. In this behalf, the Court’s attention was inter alia drawn to Section 4(2), of the Central Vigilance Commission Act 2003, Section 4(2), of the Lokpal and Lokayuktas Act 2013, Section 7, of the National Commission for Backward Classes Act 1993, Section 29A, of the Consumer Protection Act 1986, Section 7, of the Advocates Welfare Act 2001, Section 8, of the University Grants Commission Act 1956, Section 9, of the Protection of Human Rights Act 1993, Section 7, of the National Commission for Minorities Act 1993, Section 8, of the National Commission for Minority Educational Institutions Act 2004, Section 24, of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, and a host of other legislative enactments of the same nature. Relying on the judgments in Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Corporation of the City of Bangalore[60], Khadim Hussain v. State of U.P.[61], B.K. Srinivasan v. State of Karnataka[62], and People’s Union for Civil Liberties v. Union of India[63], it was asserted, that on an examination of provisions of similar nature, this Court had repeatedly held, that modern legislative enactments ensured, that the defects of procedure, which do not lead to any substantial prejudice, are statutorily placed beyond the purview of challenge. It was accordingly asserted, that invalidity on account of a technical irregularity, being excluded from judicial review, the submissions advanced on behalf of the petitioners, on the constitutional validity of clause (2) of Article 124A, deserved an outright rejection.

100. It was the contention of the learned Attorney General, that the NJAC did not suffer from the vice of excessive delegation. It was sought to be reiterated, that the power of nomination of “eminent persons” was securely and rightfully left to the wisdom of the Prime Minister of India, the Chief Justice of India and the Leader of the Opposition in the Parliament. It was submitted, that the parameters expressed in Sections 5 and 6 of the NJAC Act, delineating the criterion for selection, by specifically providing, that ability, merit and suitability would expressly engage the attention of the NJAC, while selecting Judges for appointment to the higher judiciary, clearly laid out the parameters for this selection and appointment process. It was submitted, that the modalities to determine ability, merit and suitability would be further detailed through rules and regulations. And that, factors such as, the minimum number of years of practice at the Bar, the number and nature of cases argued, academic publications in reputed journals, the minimum and maximum age, and the like, would be similarly provided for. All these clearly defined parameters, it was contended, would make the process of selection and appointment of Judges to the higher judiciary transparent, and would also ensure, that the candidates to be considered, were possessed of the minimum desired standards. It was submitted, that the Memorandum of Procedure for Appointment and Transfer of Chief Justices and Judges of the High Courts, as also, for elevation of Judges to the Supreme Court, were bereft of any such particulars, and the absence of any prescribed criterion, had resulted in the appointment of Judges, even to the Supreme Court, which should have ordinarily been avoided. The learned Attorney General made a reference to three instances, which according to him, were universally condemned, by one and all. One of the Judges appointed to this Court, according to him, was a non-performer as he had authored just a few judgments as a Judge of the High Courts of Delhi and Kerala, and far lesser judgments as the Chief Justice of the Uttarakhand and Karnataka High Courts, and less than ten judgments during his entire tenure as a Judge of the Supreme Court. The second Judge, according to him, was notoriously late in commencing Court proceeding, a habit which had persisted with the said Judge even as a Judge of the Patna and Rajasthan High Courts, and thereafter, as the Chief Justice of the Jharkhand High Court, and also as a Judge of the Supreme Court. The third Judge, according to the learned Attorney General, was notoriously described as a tweeting Judge, because of his habit of tweeting his views, after he had retired. Learned counsel for the respondents, acknowledged having understood the identity of the Judges from their above description by the learned Attorney General, and also affirmed the factual position asserted in respect of the Judges mentioned. The learned Attorney General also handed over to us a compilation (in a sealed cover) about appointments of Judges made to different High Courts, despite the executive having expressed an adverse opinion. The compilation made reference to elevation of five Judges to High Courts (- two Judges to the Jammu and Kashmir High Court, one Judge to the Punjab and Haryana High Court, one Judge to the Patna High Court, and one Judge to the Calcutta High Court) and three Judges to the Supreme Court. It may be clarified that the objection with reference to the Supreme Court Judges was not related to their suitability, but for the reason that some High Courts were unrepresented in the Supreme Court. We would therefore understand the above position as covering the period from 1993 till date. But it was not his contention, that these elevations had proved to be wrongful. We may only notice, that two of the three Supreme Court Judges referred to, were in due course elevated to the high office of Chief Justice of India.

101. The learned Attorney General vehemently contested the assertion made by the learned counsel representing the petitioners, that the power to frame rules and regulations for the functioning of the NJAC was unguided, inasmuch as, neither the constitutional amendment nor the legislative enactment, provided for any parameters for framing the rules and regulations, pertaining to the criterion of suitability. In this behalf, it was submitted, that sufficient guidelines were ascertainable from Articles 124B and 124C. Besides the aforesaid, the Court’s attention was drawn to Sections 5(2), 6(1) and 6(3) of the NJAC Act, wherein the parameters of suitability for appointment of Judges had been laid down. In this behalf, it was also asserted, that Article 124, as originally enacted, had laid down only basic eligibility conditions, for appointment of Judges to the higher judiciary, but no suitability criteria had been expressed. It was also asserted, that the procedure and conditions for appointment of Judges, were also not prescribed. As against the above, it was pointed out, that Articles 124B and 124C and Sections 5(2), 6(1) and 6(3) of the NJAC Act, clearly laid down conditions and guidelines for determining the suitability of a candidate for appointment as a Judge. On the basis of the aforementioned analysis, it was submitted, that neither the constitutional amendment was violative of the “basic structure”, nor the NJAC Act, was constitutionally invalid. For the above reasons, it was asserted, that the challenge raised by the petitioners was liable to be rejected.

102. In response to the technical submission advanced by Mr. Fali S.

Nariman, namely, that since the Constitution (99th Amendment) Act, was brought into force, consequent upon the notification issued by the Central Government in the Official Gazette on 13.4.2015, the consideration of the NJAC Bill and the passing of the NJAC Act, prior to the coming into force of the Constitution (99th Amendment) Act, would render it null and void, the learned Attorney General invited our attention to Article 118, which authorizes, each House of Parliament, to make rules for regulating their procedure, in the matter of conducting their business. It was pointed out, that Rules of Procedure and the Conduct of Business of the Lok Sabha, had been duly enacted by the Lok Sabha. A relevant extract of the aforesaid rules was handed over to us. Rule 66 thereof, is being extracted hereunder:

“66. A Bill, which is dependent wholly or partly upon another Bill pending before the House, may be introduced in the House in anticipation of the passing of the Bill on which it is dependent:

Provided that the second Bill shall be taken up for consideration and passing in the House only after the first Bill has been passed by the Houses and assented to by the President.” Referring to the proviso under Rule 66, it was acknowledged that the rule read independently, fully justified the submissions of Mr. Fali S. Nariman.

It was however pointed out, that it was open to the Parliament to seek a suspension of the above rule under Rule 388. Rule 388 is also extracted hereunder:

“388. Any member may, with the consent of the Speaker, move that any rule may be suspended in its application to a particular motion before the House and if the motion is carried the rule in question shall be suspended for the time being.” The learned Attorney General then handed over to us, the proceedings of the Lok Sabha dated 12.8.2014, inter alia, including the Constitution (121st Amendment) Bill, and the NJAC Bill. He invited our attention to the fact, that while moving the motion, the then Union Minister in charge of Law and Justice had sought, and was accorded approval, for the suspension of the proviso to Rule 66 of the Rules of Procedure and Conduct of Business of the Lok Sabha. Relevant extract of the Motion depicting the suspension of Rule 388 is being reproduced hereunder:

“Motion under Rule 388 Shri Ravi Shankar Prasad moved the following motion:- “That this House do suspend the proviso to rule 66 of the Rules of Procedure and Conduct of Business in Lok Sabha in its application to the motions for taking into consideration and passing the National Judicial Appointments Commission Bill, 2014 in as much as it is dependent upon the Constitution (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 new Articles 124A, 124B and 124C); and (ii) The National Judicial Appointments Commission Bill, 2014 were moved by Shri Ravi Shankar Prasad.” Premised on the strength of the Rules framed under Article 118, learned Attorney General, also placed reliance on Article 122, which is being reproduced below:

“122. Courts not to inquire into proceedings of Parliament.— (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.” Based on Article 122, it was submitted, that the Constitution itself contemplated, that the validity of the proceedings in the Parliament, could not be called in question, on the ground of alleged irregularity in procedure. While reiterating, that the procedure laid down by the Parliament under Article 118, had been duly complied with, it was submitted, that even if that had not been done, as long as the power of Parliament to legislate was not questioned, no challenge could be premised on the procedural defects in enacting the NJAC Act. In this behalf, reference was also made to Article 246, so as to contend, that the competence of the Parliament to enact the NJAC Act was clearly and unambiguously vested with the Parliament. In support of the above contention, reliance was placed on in re: Hindu Women’s Rights to Property Act, 1937[64], rendered by the Federal Court, wherein it had observed as under:

“One of the provisions included in Sch. 9 is that a bill shall not be deemed to have been passed by the Indian Legislature unless it has been agreed to by both Chambers either without amendment or with such amendments only as may be agreed to by both Chambers. It is common ground that the Hindu Women’s Rights to Property Bill was agreed to without amendment by both Chambers of the Indian Legislature, and as soon as it received the Governor-General’s assent, it became an Act (Sch. 9, para. 68 (2)). Not until then had this or any other Court jurisdiction to determine whether it was a valid piece of legislation or not. It may sometimes become necessary for a Court to inquire into the proceedings of a Legislature, for the purpose of determining whether an Act was or was not validly passed; for example, whether it was in fact passed, as in the case of the Indian Legislature the law requires, by both Chambers of the Legislature before it received the Governor. General’s assent. But it does not appear to the Court that the form, content or subject-matter of a bill at the time of its introduction into, or of its consideration by either Chamber of the Legislature is a matter with which a Court of law is concerned. The question whether either Chamber has the right to discuss a bill laid before it is a domestic matter regulated by the rules of the Chamber, as interpreted by its speaker, and is not a matter with which a Court can interfere, or indeed on which it is entitled to express any opinion. It is not to be supposed that a legislative body will waste its time by discussing a bill which, even if it receives the Governor-General’s assent, would obviously be beyond the competence of the Legislature to enact; but if it chooses to do so, that is its own affair, and the only function of a Court is to pronounce upon the bill after it has become an Act. In the opinion of this Court, therefore, it is immaterial that the powers of the Legislature changed during the passage of the bill from the Legislative Assembly to the Council of State. The only date with which the Court is concerned is 14th April 1937, the date on which the Governor General’s assent was given; and the question whether the Act was or was not within the competence of the Legislature must be determined with reference to that date and to none other.” Reliance was also placed on Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha[65], wherefrom the following observations were brought to our notice:

“It now remains to consider the other subsidiary questions raised on behalf of the petitioner. It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Art. 32 of the Constitution.

Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non- compliance with rules of procedure cannot be a ground for issuing a writ under Art. 32 of the Constitution vide Janardan Reddy v. The State of Hyderabad, (1951) SCR 344.” Based on the aforesaid submissions, it was the vehement contention of the learned Attorney General, that there was no merit in the technical objections raised by the petitioners while assailing the provisions of the NJAC Act.

103. Mr. K.K. Venugopal, learned Senior Advocate, entered appearance on behalf of the State of Madhya Pradesh. While reiterating a few of the legal submissions canvassed by the learned Attorney General, he emphasized, that the judgments rendered by this Court, in the Second and Third Judges cases, turned the legal position, contemplated under the original Articles 124 and 217, on its head. It was submitted, that this Court has been required to entertain a public interest litigation, in an unprecedented exercise of judicial review, wherein it is sought to be asserted, that the “independence of the judiciary”, had been encroached by the other two organs of governance. It was contended by learned counsel, that the instant assertion was based on a misconception, as primacy in the matter of appointment of Judges to the higher judiciary, was never vested with the judiciary. It was pointed out, that primacy in the matter of appointment of Judges to the higher judiciary, was vested with the executive under Articles 124 and 217, as originally enacted. Furthermore, this Court through its judgments culminating in the First Judges case, while correctly interpreting the aforesaid provisions of the Constitution, had rightly concluded, that the interaction between the executive and the Chief Justice of India (as well as, the other Judges of the higher judiciary) was merely “consultative”, and that, the executive was entirely responsible for discharging the responsibility of appointment of Judges including Chief Justices, to the higher judiciary. It was submitted, that the Second Judges case, by means of a judicial interpretation, vested primacy, in the matter of appointment of Judges to the higher judiciary, with the Chief Justice of India, and his collegium of Judges. It was pointed out, that after the rendering of the Second Judges case, appointments of Judges commenced to be made, in the manner expressed by the above Constitution Bench. It was asserted, that there had been, an all around severe criticism, of the process of appointment of Judges to the higher judiciary, as contemplated by the Second and Third Judges cases. It was contended, that the selection process was now limited to Judges selecting Judges, without any external participation. It was also asserted, that the exclusion of the executive from the role of selection and appointment of Judges was so extensive, that the executive has got no right to initiate any candidature, for appointment of Judges/Chief Justices to the higher judiciary. Such an interpretation of the provisions of the Constitution, it was pointed out, had not only resulted in reading the term “consultation” in Articles 124 and 217 as “concurrence”, but has gone far beyond. It was sought to be asserted, that in the impugned amendment to the Constitution, the intent contained in the original Articles 124 and 217, has been retained. The amended provisions, it was pointed out, have been tilted in favour of the judiciary, and the participatory role, earlier vested in the executive, has been severely diluted. It was submitted, that even though no element of primacy had been conferred on the judiciary by Article 124, as originally enacted, primacy has now been vested in the judiciary, inasmuch as, the NJAC has the largest number of membership from the judicial fraternity. It was highlighted, that the Union Minister in charge of Law and Justice, is the sole executive representative, in the selection process, contemplated under the amended provisions. It was therefore asserted, that it was a far cry, for anyone to advocate, that the role of the judiciary in the manner of appointment of Judges to the higher judiciary having been diluted, had impinged on its independence.

104. It was contended, that the author of the majority view in the Second Judges case (J.S. Verma, J., as he then was), had himself found fault with the manner of implementation of the judgments in the Second and Third Judges cases. It was submitted that Parliament, being the voice of the people, had taken into consideration, the criticism levelled by J.S. Verma, J. (besides others), to revise the process of appointment of Judges contemplated under the Second and Third Judges cases. Having so contended, learned counsel asserted, that if this Court felt that any of the provisions, with reference to selection and appointment of Judges to the higher judiciary, would not meet the standards and norms, which this Court felt sacrosanct, it was open to this Court to read down the appropriate provisions, in a manner as to round off the offending provisions, rather than quashing the impugned constitutional and legislative provisions in their entirety.

105. Mr. Ranjit Kumar, learned Solicitor General of India submitted, that the entire Constitution had to be read as a whole. In this behalf, it was contended, that each provision was an integral part of the Constitution, and as such, its interpretation had to be rendered holistically. For the instant proposition, reliance was placed on the Kihoto Hollohan case34, T.M.A. Pai Foundation v. State of Karnataka6, R.C. Poudyal v. Union of India[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, would lead to the clear and unambiguous conclusion, that the President while discharging his responsibility with reference to appointment of Judges/Chief Justices to the higher judiciary, was bound by the aid and advice of the Council of Ministers, as contemplated under Article 74. It was contended, that the aforesaid import was rightfully examined and interpreted with reference to Article 124, in the First Judges case. But had been erroneously overlooked, in the subsequent judgments. Accordingly, it was asserted, that there could be no doubt whatsoever, while examining the impugned constitutional amendment, as also, the impugned legislative enactment, that Parliament had not breached any component of the “basic structure” of the Constitution.

106. It was also contended, that in case the challenge raised to the impugned constitutional amendment, was to be accepted by this Court, and the legal position declared by this Court, was to be given effect to, the repealed provisions would not stand revived, merely because the amendment/legislation which were being assailed, were held to be unconstitutional. Insofar as the instant aspect of the matter is concerned, learned Solicitor General raised two independent contentions.

107. Firstly, that the issue whether a constitutional amendment once struck down, would revive the original/substituted Article, was a matter which had already been referred to a nine-Judge Constitutional Bench. In order to support the aforesaid contention, and to project the picture in its entirety, reliance was placed on, Property Owners’ Association v. State of Maharashtra[67], Property Owners’ Association v. State of Maharashtra[68], and Property Owners’ Association v. State of Maharashtra[69]. It was submitted, that the order passed by this Court, wherein the reference to a nine-Judge Constitution Bench had been made, was a case relating to the constitutionality of Article 31C. It was pointed out that Article 31C, as originally enacted provided, that “…notwithstanding anything contained in Article 13, no law giving effect to the policy of the State, towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it was inconsistent with, the rights conferred by Articles 14 and 19”. It was submitted, that the latter part of Article 31C, which provided “…and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy…” had been struck down by this Court in the Kesavananda Bharati case10. It was contended, that when the matter pertaining to the effect of the striking down of a constitutional amendment, had been referred to a nine-Judge Bench, it would be improper for this Court, sitting in its present composition, to determine the aforesaid issue.

108. The second contention advanced at the hands of the learned Solicitor General, was based on Sections 6, 7 and 8 of the General Clauses Act. It was contended, that an amendment which had deleted some part of the erstwhile Article 124 of the Constitution, and substituted in its place something different, as in the case of Article 124, by the Constitution (99th Amendment) Act, would not result in the revival of the original Article which was in place, prior to the constitutional amendment, even if the amendment itself was to be struck down. It was submitted, that if a substituted provision was declared as unconstitutional, for whatever ground or reason(s), the same would not automatically result in the revival of the repealed provision. In order to support the aforesaid contention, reliance was placed on Ameer-un-Nissa Begum v. Mahboob Begum[70], Firm A.T.B. Mehtab Majid & 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 of Andhra Pradesh[75], State of Maharashtra v. Central Provinces Manganese Ore 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 repeal through a repealing enactment, would not revive anything repealed thereby.

Reliance was also placed on, State of U.P. v. Hirendra Pal Singh[79], Joint Action Committee of Air Line Pilots’ Association of India v. Director General of Civil Aviation[80], and State of Tamil Nadu v. K. Shyam Sunder[81], to contend, that the settled legal proposition was, whenever an Act was repealed, it must be considered as if it had never existed. It was pointed out, that consequent upon the instant repeal of the earlier provisions, the earlier provisions must be deemed to have been obliterated/abrogated/wiped out, wholly and completely. The instant contention was sought to be summarized by asserting, that if a substituted provision was to be struck down, the question of revival of the original provision (which had been substituted, by the struck down provision) would not arise, as the provision which had been substituted, stood abrogated, and therefore had ceased to exist in the statute itself. It was therefore submitted, that even if the challenge raised to the impugned constitutional amendment was to be accepted by this Court, the originally enacted provisions of Articles 124 and 217 would not revive.

109. The learned Solicitor General additionally contended, that the present challenge at the hands of the petitioners should not be entertained, as it has been raised prematurely. It was submitted, that the challenge raised by the petitioners was based on assumptions and presumptions, without allowing the crystallization of the impugned amendment to the Constitution. It was asserted, that the position would crystalise only after rules and regulations were framed under the NJAC Act.

It was submitted, that the question of “independence of the judiciary”, with reference to the amendments made, could be determined only after the NJAC Act was made operational, by laying down the manner of its functioning. Since the pendency of the present litigation had delayed the implementation of the provisions of the amendment to the Constitution, as also to the NJAC Act, it would be improper for this Court, to accede to a challenge based on conjectures and surmises.

110. Mr. K. Parasaran, Senior Advocate, entered appearance on behalf of the State of Rajasthan. He submitted, that he would be supporting the validity of the impugned constitutional amendment, as also, the NJAC Act, and that, he endorsed all the submissions advanced on behalf of the Union of India. It was his contention, that Judges of the higher judiciary were already burdened with their judicial work, and as such, they should not be seriously worried about the task of appointment of Judges, which by the impugned amendment, had been entrusted to the NJAC. In his view, the executive and the Parliament were accountable to the people, and therefore, they should be permitted to discharge the onerous responsibility, of appointing Judges to the higher judiciary. It was asserted, that the executive and the legislature would then be answerable, to the people of this country, for the appointments they would make.

111. On the issue of inclusion of two “eminent persons” in the six-Member NJAC, it was asserted, that the nomination of the “eminent persons” was to be made by the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha. All these three individuals, being high ranking constitutional functionaries, should be trusted, to discharge the responsibility bestowed on them, in the interest of the “independence of the judiciary”. It was submitted, that if constitutional functionaries, and the “eminent persons”, could not be trusted, then the constitutional machinery itself would fail. It was pointed out, that this Court had repeatedly described, that the Constitution was organic in character, and it had an inbuilt mechanism for evolving, with the changing times. It was asserted, that the power vested with the Parliament, under Article 368 to amend the provisions of the Constitution, was a “constituent power”, authorizing the Parliament to reshape the Constitution, to adapt with the changing environment. It was contended, that the above power vested in the Parliament could be exercised with the sole exception, that “the basic structure/features” of the Constitution, as enunciated by the Supreme Court in the Kesavananda Bharati case10, could not be altered/changed. According to the learned senior counsel, the Constitution (99th Amendment) Act was an exercise of the aforestated constituent power, and that, the amendment to the Constitution introduced thereby, did not in any manner, impinge upon the “independence of the judiciary”.

112. Referring to Article 124A, it was asserted, that the NJAC was a six- Member Commission for identifying, selecting and appointing Judges to the higher judiciary. It could under no circumstances, be found wanting, with reference to the assertions made by the petitioners. It was pointed out, that the only executive representative thereon being the Union Minister in charge of Law and Justice, it could not be inferred, that the executive would exert such influence through him, as would undermine the independence of the five other Members of the Commission. It was submitted, that the largest representation of the Commission, was that of Judges of the Supreme Court, inasmuch as, the Chief Justice of India, and the two senior most Judges of the Supreme Court were ex officio Members of the NJAC.

113. With reference to the two “eminent persons” on the NJAC, it was his contention, that they could not be identified either with the executive or the legislature. For the nomination of the two “eminent persons”, the Selection Committee comprises of one member of the executive, one member of the legislature, and one member of the judiciary. In the above view of the matter, it was asserted, that the contention, that the two “eminent persons” in the Commission would support the executive/the legislature, was preposterous. It was therefore the submission of the learned senior counsel, that the “independence of the judiciary” could not be considered to have been undermined, keeping in mind the composition of the NJAC.

114. It was also contended, that the proceedings before the NJAC would be more transparent and broad based, and accordingly, more result oriented, and would ensure, that the best candidates would be selected for appointment as Judges to the higher judiciary.

115. It was asserted, that the NJAC provided for a consultative process with persons who were ex-hypothesi, well qualified to give proper advice in the matter of appointment of Judges to the higher judiciary. It was accordingly the assertion of learned counsel, that the determination rendered by this Court, in the Second and Third Judges cases, was not in consonance with the intent, with which Articles 124 and 217 were originally enacted. It was therefore submitted, that the subject of “independence of the judiciary”, with reference to the impugned constitutional amendment, should not be determined by relying on the Second and Third Judges cases, but only on the basis of the plain reading of Articles 124 and 217, in conjunction with, the observations expressed by the Members of the Constituent Assembly while debating on the above provisions. It was submitted, that whilst the Union Minister in charge of Law and Justice, would be in an effective position to provide necessary inputs, with reference 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 selection process, by representing the general public, and thereby, the selection process would be infused with all around logical inputs, for a wholesome consideration.

116. It was submitted, that since any two Members of the NJAC, were competent to veto the candidature of a nominee, three representatives of the Supreme Court of India, would be clearly in a position to stall the appointment of unsuitable candidates. It was therefore contended, that the legislations enacted by the Parliament, duly ratified in terms of Article 368, should be permitted to become functional, with the constitution of the NJAC, and should further be permitted to discharge the responsibility of appointing Judges to the higher judiciary. It was submitted, that in case of any deficiency in the discharge of the said responsibility, this Court could suo motu negate the selection process, or exclude one or both of the “eminent persons” from the selection process, if they were found to be unsuitable or unworthy of discharging their responsibility. Or even if they could not establish their usefulness. It was submitted, that this Court should not throttle the contemplated process of selection and appointment of Judges to the higher judiciary, through the NJAC, without it’s even having been tested.

117. Mr. T.R. Andhyarujina, Senior Advocate, entered appearance on behalf of the State of Maharashtra. It was his contention, while endorsing the submissions advanced on behalf of the Union of India, that the impugned Constitution (99th Amendment) Act, was a rare event, inasmuch as, the Parliament unanimously passed the same, with all parties supporting the amendment. He asserted, that there was not a single vote against the amendment, even though it was conceded, that there was one Member of Parliament, who had abstained from voting. Besides the above, it was asserted, that even the State legislatures ratified the instant constitutional amendment, wherein the ruling party, as also, the parties in opposition, supported the amendment. Based on the above, it was contended, that the instant constitutional amendment, should be treated as the unanimous will of the people, belonging to all sections of the society, and therefore the same could well be treated, as the will of the nation, exercised by all stakeholders.

118. It was submitted, that the amendment under reference should not be viewed with suspicion. It was pointed out, that Articles 124 and 217 contemplated a dominating role for the executive. It was contended, that the judgment in the Second Judges case, vested primacy in the matter of appointment of Judges to the higher judiciary, with the Chief Justice of India and his collegium of Judges. This manner of selection and appointment of Judges to the higher judiciary, according to learned counsel, was unknown to the rest of the world, as in no other country, the appointment of Judges is made by Judges themselves. Indicating the defects of the collegium system, it was asserted, that the same lacked transparency, and was not broad based enough. Whilst acknowledging, the view expressed by J.S. Verma, CJ., that the manner of appointment of Judges contemplated by the Second and Third Judges cases was very good, it was submitted, that J.S. Verma, CJ., himself was disillusioned with their implementation, as he felt, that there had been an utter failure on that front. Learned senior counsel submitted, that the questions that needed to be answered were, whether there was any fundamental illegality in the constitutional amendment? Or, whether the appointment of Judges contemplated through the NJAC violated the “basic structure” of the Constitution? And, whether the “independence of the judiciary” stood subverted by the impugned constitutional amendment? It was asserted, that it was wrong to assume, that the manner of appointment of Judges, had any impact on the “independence of the judiciary”. In this behalf, it was pointed out, that the independence of Judges, did not depend on who appointed them. It was also pointed out, that independence of Judges depended upon their individual character. Learned counsel reiterated the position expounded by Dr. B.R. Ambedkar, during the Constituent Assembly debates. He submitted, that the concept of “independence of the judiciary” should not be determined with reference to the opinion expressed by this Court in the Second and Third Judges cases, but should be determined with reference to the debates in the Constituent Assembly, which led to the crystallization of Articles 124 and 217, as originally enacted.

119. Learned counsel placed reliance on Lord Cooke of Thorndon in his article titled “Making the Angels Weep”, wherein he scathingly criticized the Second Judges case. Reference was also made to his article “Where Angels Fear to Tread”, with reference to the Third Judges case. The Court’s attention was also drawn to the criticism of the Second and Third Judges cases, at the hands of H.M. Seervai, Fali S. Nariman and others, especially the criticism at the hands of Krishna Iyer and Ruma Pal, JJ., and later even the author of the majority judgment in the Second Judges case – J.S.

Verma, CJ.. It was, accordingly, the contention of the learned senior counsel, that whilst determining the issue of “independence of the judiciary”, reference should not be made to either of the above two judgments, but should be made to the plain language of Articles 124 and 217. Viewed in the above manner, it was asserted, that there would be no question of arriving at the conclusion, that the impugned constitutional amendment, violated the basic concepts of “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 in the working of courts. On the Court’s asking, learned senior counsel suggested, that “eminent persons” for the purpose could only be picked out of eminent lawyers, eminent jurists, and even retired Judges, or the like.