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

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Insofar as the instant aspect of the matter is concerned, it is obvious that learned senior counsel had adopted a position, diametrically opposite to the one canvassed by the learned Attorney General. Another aspect, on which we found a little divergence in the submission of Mr. T.R.

Andhyarujina was, that in many countries the executive participation in the matter of appointment of Judges to the higher judiciary, was being brought down. And in some countries it was no longer in the hands of the executive. In this behalf, the clear contention advanced by the learned senior counsel was, that the world over, the process of appointment of Judges to the higher judiciary was evolving, so as to be vested in Commissions of the nature of the NJAC. And as such, it was wholly unjustified to fault the same, on the ground of “independence of the judiciary”, when the world over Commissions were found to have been discharging the responsibility satisfactorily.

121. Mr. Tushar Mehta, Additional Solicitor General of India, entered appearance on behalf of the State of Gujarat. He adopted the submissions advanced by the learned Attorney General, as also, Mr. Ranjit Kumar, the learned Solicitor General. It was his submission, that the system innovated by this Court for appointment of Judges to the higher judiciary, comprising of the Chief Justice and his collegium of Judges, was a judicial innovation. It was pointed out, that since 1993 when the above system came into existence, it had been followed for appointment of Judges to the higher judiciary, till the impugned constitutional amendment came into force. It was asserted that, in the interregnum, some conspicuous events had taken place, depicting the requirement of a change in the method and manner of appointment of Judges to the higher judiciary. Learned counsel invited our attention to the various Bills which were introduced in the Parliament for the purpose of setting up a Commission for appointments of Judges to the higher judiciary, as have already been narrated hereinbefore.

It was pointed out, that several representations were received by the Government of the day, advocating the replacement of the “collegium system”, with a broad based National Judicial Commission, to cater to the long standing aspiration of the citizens of the country. The resultant effect was, the passing of the Constitution (99th Amendment) Act, and the NJAC Act, by the Parliament. It was submitted, that the same came to be passed almost unanimously, with only one Member of Rajya Sabha abstaining.

It was asserted, that this was a rare historical event after independence, when all political parties, having divergent political ideologies, voted in favour of the impugned constitutional amendment. In addition to the above, it was submitted, that as of now 28 State Assemblies had ratified the Bill.

It was asserted, that the constitutional mechanism for appointment of Judges to the higher judiciary, had operated for a sufficient length of time, and learning from the experience emerging out of such operation, it was felt, that a broad based Commission should be constituted. It was contended, that the impugned constitutional amendment, satisfied all the parameters for testing the constitutional validity of an amendment.

Learned Additional Solicitor General similarly opposed, the submissions advanced at the hands of the petitioners challenging the inclusion of the Union Minister in charge of Law and Justice, as a Member of the NJAC. He also found merit in the inclusion of two “eminent persons”, in the NJAC.

It was contended, that the term “eminent persons”, with reference to appointment of Judges to the higher judiciary, was by itself clear and unambiguous, and as and when, a nomination would be made, its authenticity would be understood. He distanced himself from the submission advanced by Mr. T.R. Andhyarujina, who represented the State of Maharashtra, while advancing submission about the identity of those who could be nominated as “eminent persons” to the NJAC. It was submitted, by placing reliance on Municipal Committee, Amritsar v. State of Punjab[82], K.A. Abbas v. Union of India[83], and the A.K. Roy case49, that similar submissions advanced before this Court, with reference to vagueness and uncertainty of law, were consistently rejected by this Court. According to learned counsel, with reference to the alleged vagueness in the term “eminent persons”, in case the nomination of an individual was assailed, a court of competent jurisdiction would construe it, as far as may be, in accordance with the intention of the legislature. It was asserted, that it could not be assumed, that there was a political danger, that if two wrong persons were nominated as “eminent persons” to the NJAC, they would be able to tilt the balance against the judicial component of the NJAC. It was submitted, that the appointment of the two “eminent persons” was in the safe hands, of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha. In the above view of the matter, the learned Additional Solicitor General, concluded with the prayer, that the submissions advanced at the hands of the learned counsel for the petitioners deserved to be rejected.

122. Mr. Ravindra Srivastava, Senior Advocate, entered appearance on behalf of the State of Chhattisgarh. He had chosen to make submissions divided under eleven heads. However, keeping in view the fact, that detailed submissions had already been advanced by counsel who had entered appearance before him, he chose to limit the same. It was the primary contention of the learned senior counsel, that the impugned constitutional amendment, as also the NJAC Act, did not in any manner violate the “basic structure” of the Constitution. According to the learned senior counsel, the impugned constitutional amendment, furthers and strengthens the “basic structure” principle, of a free and independent judiciary. It was his submission, that the assertions made at the hands of the petitioners, to the effect that the impugned constitutional amendment, impinges upon the “basic structure” of the Constitution, and the “independence of the judiciary”, were wholly misconceived. It was submitted, that this Court had not ever held, that the primacy of the judiciary through the Chief Justice of India, was an essential component of the “independence of the judiciary”. It was asserted, that while considering the challenge raised by the petitioners to the impugned constitutional amendment, it would be wholly unjustified to approach the challenge by assuming, that the primacy of the judiciary through the Chief Justice of India, would alone satisfy the essential components of “separation of power” and “independence of the judiciary”. It was submitted, that the introduction of plurality, in the matter of appointment of Judges to the higher judiciary, was an instance of independence, rather than an instance of interference. With reference to the Members of the NJAC, it was submitted, that the same would ensure not only transparency, but also a broad based selection process, without any ulterior motives. It was asserted, that the adoption of the NJAC for selection of Judges to the higher judiciary, would result in the selection of the best out of those willing to be appointed. With reference to the participation of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, it was submitted, that the mere participation of one executive representative, would not make the process incompatible, with the concept of “independence of the judiciary”. In this behalf, emphatic reliance was placed on the observations of E.S. Venkataramiah, J., from two paragraphs of the First Judges case, which are being extracted hereunder:

“1033. As a part of this very contention it is urged that the Executive should have no voice at all in the matter of appointment of Judges of the superior courts in India as the independence of the judiciary which is a basic feature of the Constitution would be in serious jeopardy if the executive can interfere with the process of their appointment. It is difficult to hold that merely because the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that after such appointment the executive should have no scope to interfere with the work of a Judge.” “1038. The foregoing gives a fairly reliable picture of the English system of appointments of Judges. It is thus seen that in England the Judges are appointed by the Executive. “Nevertheless, the judiciary is substantially insulated by virtue of rules of strict law, constitutional conventions, political practice and professional tradition, from political influence.” It was finally submitted by learned counsel, that a multi-member constitutional body, was expected to act fairly and independently, and not in violation of the Constitution. It was contended, that plurality by itself was an adequate safeguard. Reliance in this behalf was placed on T.N. Seshan v. Union of India[84], so as to eventually conclude, that the constitutional amendment did not violate the “basic structure” of the Constitution, and that, it was in consonance with the concept of a free and independent judiciary, by further strengthening the “basic structure” of the Constitution.

123. Mr. Ajit Kumar Sinha, Senior Advocate, entered appearance on behalf of the State of Jharkhand. He asserted, that he should be taken as having adopted all the submissions addressed, on behalf of the Union of India.

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

124. The second contention advanced by learned senior counsel was, that it should not be assumed as if the NJAC, would take away the power of appointment of Judges to the higher judiciary, from the judiciary. It was submitted, that three of the six Members of the NJAC belonged to the judiciary, and that, one of them, namely, the Chief Justice of India was to preside over the proceedings of the NJAC, as its Chairperson. Thus viewed, it was submitted, that it was wholly misconceived on the part of the petitioners to contend, that the power of appointment of Judges, had been taken away from the judiciary, and vested with the executive. It was submitted, that there was nothing fundamentally illegal or unconstitutional in the manner of appointment of Judges to the higher judiciary, as contemplated by the impugned constitutional amendment. It was also contended, that the manner of appointment of Judges, contemplated through the NJAC, could not be perceived as violative of the “basic structure” of the Constitution, by the mere fact, that any two Members of the NJAC can veto a proposal of appointment of a Judge to the higher judiciary. And that, the above would result in the subversion of the “independence of the judiciary”. In support of the aforestated submissions, it was highlighted, that the manner of appointment of Judges, which was postulated in the judgments rendered in the Second and Third Judges cases, do not lead to the inference, that if the manner of appointment as contemplated therein was altered, it would violate the “basic structure” of the Constitution.

125. Mr. Yatindra Singh, learned Senior Advocate, entered appearance as an intervener. He contended, that the preamble to the Constitution of India, Article 50 (which provides for separation of the judiciary from the executive), the oath of office of a Judge appointed to the higher judiciary, the security of his tenure including the fixed age of retirement, the protection of the emoluments payable to Judges including salary and leave, etc., the fact that the Judges appointed to the higher judiciary served in Courts of Record, having the power to punish for contempt, and the provisions of the Judicial Officers Protection Act, 1850, and the Judges (Protection) Act, 1985, which grant immunity to them from civil as well as criminal proceedings, are incidents, which ensured “independence of the judiciary”. It was submitted, that the manner of appointment of Judges to the higher judiciary, had nothing to do with “independence of the judiciary”. It was pointed out, that insofar as the determination of the validity of the impugned constitutional amendment was concerned, it was not essential to make a reference to the judgments rendered by this Court in the Second and Third Judges cases. It was submitted, that the only question that needed to be determined insofar as the present controversy is concerned, was whether, the manner of appointment postulated through the NJAC, would interfere with “independence of Judges”. In this behalf, it was firstly asserted, that neither the Second nor the Third Judges case had concluded, that the manner of appointment of Judges would constitute the “basic structure” of the Constitution. Nor that, the manner of appointment of Judges to the higher judiciary as postulated in the Second and Third Judges cases, if breached, would violate the “basic structure” of the Constitution. It was submitted, that the judgments rendered in the Second and Third Judges cases merely interpreted the law, as it then existed. It was asserted, that the above judgments did not delve into the question, whether any factor(s) or feature(s) considered, were components of the “basic structure” of the Constitution.

126. Learned senior counsel, also placed reliance on the manner of appointment of Judges in the United States of America, Australia, New Zealand, Canada, and Japan to contend, that in all these countries Judges appointed to the higher judiciary, were discharging their responsibilities independently, and as such, there was no reason or justification for this Court to infer, if the manner of appointment of Judges was altered from the position contemplated in the Second and Third Judges cases, to the one envisaged by the impugned constitutional amendment, it would affect the “independence of the Judges”. It was submitted, that different countries in the world had adopted different processes of selection for appointment of Judges. Each country had achieved “independence of the judiciary”, and as such, it was presumptuous to think that Judges appointed by Judges alone, can discharge their duties independently.

127. Learned senior counsel also pointed out, that the “collegium system” was not the only process of appointment of Judges, which could achieve the “independence of the judiciary”. Had it been so, it would have been so concluded in the judgments rendered in the Second and Third Judges cases.

It was the submission of the learned senior counsel, that “independence of the judiciary” could be achieved by other methods, as had been adopted in other countries, or in a manner, as the Parliament deemed just and proper for India. It was asserted, that the manner of appointment contemplated by the impugned constitutional amendment had no infirmity, with reference to the issue of “independence of the judiciary”, on account of the fact, that there was hardly any participation in the NJAC, at the behest of organs other than the judiciary.

128. Last of all, learned senior counsel contended, that the “collegium system” did not serve the purpose of choosing the best amongst the available. The failure of the “collegium system”, according to the learned senior counsel, was apparent from the opinion expressed by V.R. Krishna Iyer, J. in the foreword to the book “Story of a Chief Justice”, authored by U.L. Bhat, J. The “collegium system” was also adversely commented upon, by Ruma Pal, J., while delivering the 5th V.M. Tarkunde Memorial Lecture on the topic “An Independent Judiciary”. Reference in this behalf, was also made to the observations made by S.S. Sodhi, J., a former Chief Justice of the Allahabad High Court, in his book “The Other Side of Justice”, and the book authored by Fali S. Nariman, in his autobiography “Before Memory Fades”. It was contended, that the aforesaid experiences, and the adverse all around comments, with reference to the implementation of the “collegium system”, forced the Parliament to enact the Constitution (99th Amendment) Act, which provided for a far better method for selection and appointment of Judges to the higher judiciary, than the procedure contemplated under the “collegium system”. It was submitted, that whilst the NJAC did not exclude the role of the judiciary, it included two “eminent persons” with one executive nominee, namely, the Union Minister in charge of Law and Justice, as Members of the NJAC. Since the role of the executive/Government in the NJAC was minimal, it was preposterous to assume, that the executive would ever be able to have its way, in the matter of appointment of Judges to the higher judiciary. It was submitted, that the NJAC would fulfill the objective of transparency, in the matter of appointment of Judges, and at the same time, would make the selection process broad based. While concluding his submissions, it was also suggested by the learned counsel, that the NJAC should be allowed to operate for some time, so as to be tested, before being scrapped at its very inception. And that, it would be improper to negate the process even before the experiment had begun.

129. Mr. Dushyant A. Dave, Senior Advocate and President of the Supreme Court Bar Association, submitted that the only question that needed to be adjudicated upon, with reference to the present controversy was, whether the manner of appointment of Judges to the higher judiciary, through the NJAC, would fall within the constitutional frame work? Learned senior counsel commenced his submissions by highlighting the fact, that parliamentary democracy contemplated through the provisions of the Constitution, was a greater basic concept, as compared to the “independence of the judiciary”. It was submitted, that the manner in which submissions had been advanced at the behest of the petitioners, it seemed, that the matter of appointment of Judges to the higher judiciary, is placed at the highest pedestal, in the “basic structure doctrine”. Learned senior counsel seriously contested the veracity of the aforesaid belief. It was submitted, that if those representing the petitioners, were placing reliance on the judgment rendered in the Second Judges case, to project the aforesaid principle, it was legally fallacious, to do so. The reason, according to learned senior counsel was, that the judgment in the Second Judges case, was not premised on an interpretation of any constitutional provision(s), nor was it premised on an elaborate discussion, with reference to the subject under consideration, nor was reliance placed on the Constituent Assembly debates. It was pointed out, that the judgment in the Second Judges case was rendered, on the basis of the principles contemplated by the authors of the judgment, and not on any principles of law. It was accordingly asserted, that the petitioners’ contentions, deserved outright rejection.

130. Learned senior counsel invited this Court’s attention to the fact, that the judgments rendered in the Kesavananda Bharati case10, the Minerva Mills Ltd. case33, and I.R. Coelho v. State of Tamil Nadu[85], wherein the concept of “basic structure” of the Constitution was formulated and given effect to, were all matters wherein on different aspects, the power of judicial review had been suppressed/subjugated. It was submitted, that none of the aforesaid judgments could be relied upon to determine, whether the manner of appointment of the Judges to the higher judiciary, constituted a part of the “basic structure” of the Constitution. It was therefore, that reliance was placed on Article 368 to contend, that the power to amend the Constitution, had been described as a “constituent power”, i.e., a power similar to the one which came to be vested in the Constituent Assembly, for drafting the Constitution. It was submitted, that no judgment could negate or diminish the “constituent power” vested with the Parliament, under Article 368. Having highlighted the aforesaid factual position, learned senior counsel advanced passionate submissions with reference to various appointments made, on the basis of the procedure postulated in the Second and Third Judges cases. Reference was pointedly made to the appointment of a particular Judge to this Court as well. It was pointed out, that the concerned Judge had decided a matter, by taking seisin of the same, even though it was not posted for hearing before him.

Thereafter, even though a review petition was filed to correct the anomaly, the same was dismissed by the concerned Judge. While projecting his concern with reference to the appointment of Judges to the higher judiciary under the collegium system, learned senior counsel emphatically pointed out, that the procedure in vogue before the impugned constitutional amendment, could be described as a closed-door process, where appointments were made in a hush-hush manner. He stated that the stakeholders, including prominent lawyers with unimpeachable integrity, were never consulted. It was submitted, that inputs were never sought, from those who could render valuable assistance, for the selection of the best, from amongst those available. It was pointed out, that the process of appointment of Judges under the collegium system, was known to have been abused in certain cases, and that, there were certain inherent defects therein. It was submitted, that the policy of selection, and the method of selection, were not justiciable, being not amenable to judicial review, and as such, no challenge could be raised to the wrongful appointments made under the “collegium system”.

131. On the subject of the manner of interpreting the Constitution, with reference to appointments to the higher judiciary, reliance was placed on Registrar (Admn), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy32, to contend, that in spite of having noticed the judgments rendered in the Second Judges case, this Court struck a note of caution, with reference to the control, vested in the High Courts, over the subordinate judiciary. It was pointed out, that it had been held, that control had to be exercised without usurping the power vested with the executive, especially the power under Articles 233, 234 and 235. It is submitted, that the power of the executive in the matter of appointments of Judges to the higher judiciary, could not be brushed aside, without any justification. It was contended, that it was improper to assume, that only the judiciary could appoint the best Judges, and the executive or the legislature could not.

132. Learned senior counsel also made an impassioned reference, to the failure of the judiciary, to grant relief to the victims of the 1984 riots in Delhi, and the 2003 riots in Gujarat. It was also asserted, that justice had been denied to those who deserved it the most, namely, the poor citizenry of this country. It was pointed out, that the manner of appointment of Judges, through the “collegium system”, had not produced Judges of the kind who were sensitive to the rights of the poor and needy.

It was the assertion of the learned senior counsel, that the new system brought in for selection and appointment of Judges to the higher judiciary, should be tried and tested, and in case, certain parameters had to be provided for, to ensure its righteous functioning to achieve the best results, it was always open to this Court to provide such guidelines.

V. THE DEBATE AND THE DELIBERATION:

I.

133. The Union Government, as also, the participating State Governments, were all unanimous in their ventilation, that the impugned constitutional amendment, had been passed unanimously by both the Lok Sabha and the Rajya Sabha, wherein parliamentarians from all political parties had spoken in one voice. The Lok Sabha had passed the Bill with 367 Members voting in favour of the Bill, and no one against it (the Members from the AIADMK – 37 in all, had however abstained from voting). The Rajya Sabha passed the Bill with 179 Members voting in favour of the Bill, and one of its Members – Ram Jethmalani, abstaining. It was submitted, that on account of the special procedure prescribed under the proviso to Article 368(2), the Bill was ratified in no time by half the State Legislatures. Mr. Tushar Mehta, learned Additional Solicitor General of India, had informed the Court, that as many as twenty-eight State Assemblies, had eventually ratified the Bill.

It was assented to by the President on 31.12.2014. It was therefore asserted, that the Constitution (99th Amendment) Act manifested, the unanimous will of the people, and therefore, the same must be deemed to be expressive of the desire of the nation. Based on the fact, that impugned constitutional amendment reflected the will of the people, it was submitted, that it would not be appropriate to test it through a process of judicial review, even on the touchstone of the concept of “basic structure”.

134. Learned counsel representing the petitioners, described the aforesaid assertion as misplaced. The contention was repulsed by posing a query, whether the same was the will of the nation of the “haves”, or the will of the nation of the “have-nots”? Another question posed was, whether the impugned constitutional amendment represented the desire of the rich, the prosperous and the influential, or the poor and the needy, whose conditions, hopes and expectations had nothing to do with the impugned constitutional amendment? It was submitted, that the will of the nation, could only be decided by a plebiscite or a referendum. It was submitted, that the petitioners would concede, that it could certainly be described as the overwhelming will of the political-executive. And no more. It was asserted, that the impugned constitutional amendment had an oblique motive.

The amendment was passed unanimously, in the opinion of the petitioners, for the simple reason, that the higher judiciary corrects the actions of the executive and the legislatures. This, it was pointed out, bothers the political-executive.

135. With reference to the will of the people, it was submitted, that the same could easily be ascertainable from the decision rendered in the L.C Golak Nath case41, wherein a eleven-Judge Bench declared, that a constitutional amendment was “law” with reference to Part III of the Constitution, and therefore, was subject to the constraint of the fundamental rights, in the said part. It was pointed out, that the Parliament, had invoked Article 368, while passing the Constitution (25th Amendment) Act, 1971. By the above amendment, a law giving effect to the policy of the State under Articles 39(b) and 39(c) could not be declared void, on the ground that it was inconsistent with the fundamental rights expressed through Articles 14, 19 and 31. Article 31C also provided, that a legislative enactment containing such a “declaration”, namely, that it was for giving effect to the above policy of the State, would not be called in question on the ground, that it did not factually gave effect to such policy. It was pointed out, that this Court in the Kesavananda Bharati case10, had overruled the judgment in the I.C. Golak Nath case41. This Curt, while holding as unconstitutional the part of Article 31C, which denied judicial review, on the basis of the “declaration” referred to above, also held, that the right of judicial review was a part of the “basic structure” of the Constitution, and its denial would result in the violation of the “basic structure” of the Constitution.

136. Proceeding further, it was submitted, that on 12.6.1975, the election of Indira Gandhi to the Lok Sabha was set aside by the Allahabad High Court. That decision was assailed before the Supreme Court. Pending the appeal, the Parliament passed the Constitution (39th Amendment) Act, 1975.

By the above amendment, election to the Parliament, of the Prime Minister and the Speaker could not be assailed, nor could the election be held void, or be deemed to have ever become void, on any of the grounds on which an election could be declared void. In sum and substance, by a deeming fiction of law, the election of the Prime Minister and the Speaker would continue to be valid, irrespective of the defect(s) and illegalities therein. By the above amendment, it was provided, that any pending appeal before the Supreme Court would be disposed of, in conformity with the provisions of the Constitution (39th Amendment) Act, 1975. The aforesaid amendment was struck down by this Court, by declaring that the same amounted to a negation of the “rule of law”, and also because, it was “anti- democratic”, and as such, violated the “basic structure” of the Constitution. It was submitted, that as an answer to the striking down of material parts of Article 39A of the Constitution, the Parliament while exercising its power under Article 368, had passed the Constitution (42nd Amendment) Act, 1976, by an overwhelming majority. Through the above amendment, the Parliament added clauses (4) and (5) to Article 368, which read as under:

“(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” The aforesaid amendment was set aside, as being unconstitutional, by a unanimous decision, in the Minerva Mills Ltd. case33. It was held, that the amending power of the Parliament under Article 368 was limited, inasmuch as, it had no right to repeal or abrogate the Constitution, or to destroy its “basic or essential features”.

137. Learned senior counsel pointed out, that over the years, yet another stratagem was adopted by the Parliament, for avoiding judicial interference in the working of the Parliament. In this behalf, reference was made to the Constitution (45th Amendment) Bill, 1978, wherein it was provided, that even the “basic structure” of the Constitution could be amended, on its approval through a referendum. The amendment added a proviso to Article 368(2) postulating, that a law compromising with the “independence of the judiciary” would require ratification by one half of the States, and thereupon, would become unassailable, if adopted by a simple majority vote in a referendum. Through its aforesaid action, the Government of the day, revealed its intention to compromise even the “independence of the judiciary”. Though the above Bill was passed by an overwhelming majority in the Lok Sabha, it could not muster the two-thirds majority required in the Rajya Sabha. It was pointed out, that the propounder of the Bill was the then Janata Party Government, and not the Congress Party Government (which was responsible for the emergency, and the earlier constitutional amendments). It was therefore asserted, that it should not surprise anyone, if all political parties had spoken in one voice, because all political parties were united in their resolve, to overawe and subjugate the judiciary.

138. It was submitted, that the intention of the legislature and the executive, irrespective of the party in power, has been to invade into the “independence of the judiciary”. It was further submitted, that attempts to control the judiciary have been more pronounced in recent times. In this behalf, the Court’s attention was drawn to the judgments in Lily Thomas v.

Union of India[86], and Chief Election Commissioner v. Jan Chaukidar[87].

It was pointed out, that in the former judgment, this Court held as invalid and unconstitutional, Section 8(4) of the Representation of the People Act, 1951, which provided inter alia, that a Member of Parliament convicted of an offence and sentenced to imprisonment for not less than two years, would not suffer the disqualification contemplated under the provision, for a period of three months from the date of conviction, or if the conviction was assailed by way of an appeal or revision – till such time, as the appeal or revision was disposed of. By the former judgment, convicted Members became disqualified, and had to vacate their respective seats, even though, the conviction was under challenge. In the latter judgment, this Court upheld the order passed by the Patna High Court, declaring that a person who was confined to prison, had no right to vote, by virtue of the provisions contained in Section 62(2) of the Representation of the People Act, 1951. Since he/she was not an elector, therefore it was held, that he/she could not be considered as qualified, to contest elections to either House of Parliament, or to a Legislative Assembly of a State.

139. It was pointed out, that Government (then ruled by the U.P.A.) introduced a series of Bills, to invalidate the judgment rendered by this Court in the Jan Choukidar case87. This was sought to be done by passing the Representation of the People (Amendment and Validation) Act, 2013, within three months of the rendering of the above judgment. It was submitted, that it was wholly misconceived for the learned counsel representing the Union of India, and the concerned States to contend, that the determination by the Parliament and the State Legislatures, with reference to constitutional amendments, could be described as actions which the entire nation desired, or represented the will of the people. It was submitted, that what was patently unconstitutional, could not constitute either the desire of the nation, or the will of the people.

140. Referring to the “collegium system” of appointing Judges to the higher judiciary, it was pointed out, that the same was put in place by a decision rendered by a nine-Judge Bench, in the Second Judges case, through which the “independence of the judiciary” was cemented and strengthened.

This could be achieved, by vesting primacy with the judiciary, in the matter of selection and appointment of Judges to the higher judiciary. It was further pointed out, that the collegium system has been under criticism, on account of lack of transparency. It was submitted, that taking advantage of the above criticism, political parties across the political spectrum, have been condemning and denouncing the “collegium system”. Yet again, it was pointed out, that the Parliament in its effort to build inroads into the judicial system, had enacted the impugned constitutional amendment, for interfering with the judicial process. This oblique motive, it was asserted, could not be described as the will of the people, or the will of the nation.

141. In comparison, while making a reference to the impugned constitutional amendment and the NJAC Act, it was equally seriously contended, that the constitutional amendment compromised the “independence of the judiciary”, by negating the “primacy of the judiciary”. With reference to the insinuations levelled by the Union of India and the concerned State Governments, during the course of hearing, reference was made to an article bearing the title “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts”, authored by Nick Robinson. Reference was made to the following expositions made therein:

“Given their virtual self-selection, judges on the Indian Supreme Court are viewed as less politicised than in the United States. The panel structure of the Court also prevents clear ideological blocks from being perceived (even if there are more “activist” or “conservative” judges) there is not the sense that all the judges have to assemble together for a decision to be legitimate or fair in the eyes of the public. Quite the opposite, judges are viewed as bringing different skills or backgrounds that should be selectively utilized.” 142. It was submitted, that the method of appointment, evolved through the Second and Third Judges cases, had been hailed by several jurists, who had opined that the same could be treated as a precedent worthy of emulation by the United Kingdom. Reference in this behalf was also made to, the opinion of Lord Templeman, a Member of the House of Lords in the United Kingdom.

143. Having given our thoughtful consideration to the position assumed by the learned counsel representing the rival parties, it is essential to hold, that every constitutional amendment passed by the Parliament, either by following the ordinary procedure contemplated under Article 368(2), or the special procedure contemplated in the proviso to Article 368(2), could in a sense of understanding, by persons not conversant with the legal niceties of the issue, be treated as the will of the people, for the simple reason, that parliamentarians are considered as representatives of the people. In our view, as long as the stipulated majority supports a constitutional amendment, it would be treated as a constitutional amendment validly passed. Having satisfied the above benchmark, it may be understood as an expression of the will of the people, in the sense noticed above. The strength and enforceability of a constitutional amendment, would be just the same, irrespective of whether it was passed by the bare minimum majority postulated therefor, or by a substantial majority, or even if it was approved unanimously. What is important, is to keep in mind, that there are declared limitations, on the amending power conferred on the Parliament, which cannot be breached.

144. An ordinary legislation enacted by the Parliament with reference to subjects contained in the Union List or the Concurrent List, and likewise, ordinary legislation enacted by State Legislatures on subjects contained in the State List and the Concurrent List, in a sense of understanding noticed above, could be treated as enactments made in consonance with the will of the people, by lay persons not conversant with the legal niceties of the issue. Herein also, there are declared limitations on the power of legislations, which cannot be violated.

145. In almost all challenges, raised on the ground of violation of the “basic structure” to constitutional amendments made under Article 368, and more particularly, those requiring the compliance of the special and more rigorous procedure expressed in the proviso under Article 368(2), the repeated assertion advanced at the hands of the Union, has been the same.

It has been the contention of the Union of India, that an amendment to the Constitution, passed by following the procedure expressed in the proviso to Article 368(2), constituted the will of the people, and the same was not subject to judicial review. The same argument had been repeatedly rejected by this Court by holding, that Article 368 postulates only a “procedure” for amendment of the Constitution, and that, the same could not be treated as a “power” vested in the Parliament to amend the Constitution, so as to alter, the “core” of the Constitution, which has also been described as, the “basic features/basic structure” of the Constitution. The above position has been projected, through the judgments cited on behalf of the petitioners, to which reference has been made hereinabove.

146. Therefore, even though the Parliament may have passed the Constitution (121st Amendment) Bill, with an overwhelming majority, inasmuch as, only 37 Members from the AIADMK had consciously abstained from voting in the Lok Sabha, and only one Member of the Rajya Sabha – Ram Jethmalani, had consciously abstained from voting in favour thereof, it cannot be accepted, that the same is exempted from judicial review. The scope of judicial review with reference to a constitutional amendment and/or an ordinary legislation, whether enacted by the Parliament or a State Legislature, cannot vary, so as to adopt different standards, by taking into consideration the strength of the Members of the concerned legislature, which had approved and passed the concerned Bill. If a constitutional amendment breaches the “core” of the Constitution or destroys its “basic or essential features” in a manner which was patently unconstitutional, it would have crossed over forbidden territory. This aspect, would undoubtedly fall within the realm of judicial review. In the above view of the matter, it is imperative to hold, that the impugned constitutional amendment, as also, the NJAC Act, would be subject to judicial review on the touchstone of the “basic structure” of the Constitution, and the parameters laid down by this Court in that behalf, even though the impugned constitutional amendment may have been approved and passed unanimously or by an overwhelming majority, and notwithstanding the ratification thereof by as many as twenty-eight State Assemblies.

Accordingly, we find no merit in the contention advanced by the learned counsel for the respondents, that the impugned constitutional amendment is not assailable, through a process of judicial review.

II.

147. It was the submission of the learned Attorney General, that the “basic features/basic structure” of the Constitution, should only be gathered from a plain reading of the provision(s) of the Constitution, as it/they was/were originally enacted. In this behalf, it was acknowledged by the learned counsel representing the petitioners, that the scope and extent of the “basic features/basic structure” of the Constitution, was to be ascertained only from the provisions of the Constitution, as originally enacted, and additionally, from the interpretation placed on the concerned provisions, by this Court. The above qualified assertion made on behalf of the petitioners, was unacceptable to the learned counsel representing the respondents.

148. The above disagreement, does not require any detailed analysis. The instant aspect, stands determined in the M. Nagaraj case36, wherein it was held as under:

“…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.” 149. The cause, effect and the width of a provision, which is the basis of a challenge, may sometimes not be apparent from a plain reading thereof.

The interpretation placed by this Court on a particular provision, would most certainly depict a holistic understanding thereof, wherein the plain reading would have naturally been considered, but in addition thereto, the vital silences hidden therein, based on a harmonious construction of the provision, in conjunction with the surrounding provisions, would also have been taken into consideration. The mandate of Article 141, obliges every court within the territory of India, to honour the interpretation, conclusion, or meaning assigned to a provision by this Court. It would, therefore be rightful, to interpret the provisions of the Constitution relied upon, by giving the concerned provisions, the meaning, understanding and exposition, assigned to them, on their interpretation by this Court. In the above view of the matter, it would neither be legal nor just, to persist on an understanding of the concerned provision(s), merely on the plain reading thereof, as was suggested on behalf of the respondents. Even on a plain reading of Article 141, we are obligated, to read the provisions of the Constitution, in the manner they have been interpreted by this Court.

150. The manner in which the term “consultation” used in Articles 124, 217 and 222 has been interpreted by the Supreme Court, has been considered at great length in the “Reference Order”, and therefore, there is no occasion for us, to re-record the same yet again. Suffice it to notice, that the term “consultation” contained in Articles 124, 217 and 222 will have to be read as assigning primacy to the opinion expressed by the Chief Justice of India (based on a decision, arrived at by a collegium of Judges), as has been concluded in the “Reference Order”. In the Second and Third Judges cases, the above provisions were interpreted by this Court, as they existed in their original format, i.e., in the manner in which the provisions were adopted by the Constituent Assembly, on 26.11.1949 (-which took effect on 26.01.1950). Thus viewed, we reiterate, that in the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, under Articles 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted). Therefore, when a question with reference to the selection and appointment (as also, transfer) of Judges to the higher judiciary is raised, alleging that the “independence of the judiciary” as a “basic feature/structure” of the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached.

Then alone, would it be possible to conclude, whether or not, the “independence of the judiciary” as an essential “basic feature” of the Constitution, had been preserved (-and had not been breached).

III.

151. We have already concluded in the “Reference Order”, that the term “consultation” used in Articles 124, 217 and 222 (as originally enacted) has to be read as vesting primacy in the judiciary, with reference to the decision making process, pertaining to the selection and appointment of Judges to the higher judiciary, and also, with reference to the transfer of Chief Justices and Judges of one High Court, to another. For arriving at the above conclusion, the following parameters were taken into consideration:

(i) Firstly, reference was made to four judgments, namely, the Samsher Singh case11, rendered in 1974 by a seven-Judge Bench, wherein keeping in mind the cardinal principle – the “independence of the judiciary”, it was concluded, that consultation with the highest dignitary in the judiciary – the Chief Justice of India, in practice meant, that the last word must belong to the Chief Justice of India, i.e., the primacy in the matter of appointment of Judges to the higher judiciary must rest with the judiciary.

The above position was maintained in the Sankalchand Himatlal Sheth case5 in 1977 by a five-Judge Bench, wherein it was held, that in all conceivable cases, advice tendered by the Chief Justice of India (in the course of his “consultation”), should principally be accepted by the Government of India, and that, if the Government departed from the counsel given by the Chief Justice of India, the Courts would have an opportunity to examine, if any other extraneous circumstances had entered into the verdict of the executive. In the instant judgment, so as to emphasize the seriousness of the matter, this Court also expressed, that it expected, that the above words would not fall on deaf ears. The same position was adopted in the Second Judges case rendered in 1993 by a nine-Judge Bench, by a majority of 7:2, which also arrived at the conclusion, that the judgment rendered in the First Judges case, did not lay down the correct law. M.M. Punchhi, J., (as he then was) one of the Judges on the Bench, who supported the minority opinion, also endorsed the view, that the action of the executive to put off the recommendation(s) made by the Chief Justice of India, would amount to an act of deprival, “violating the spirit of the Constitution”.

In sum and substance therefore, the Second Judges case, almost unanimously concluded, that in the matter of selection and appointment of Judges to the higher judiciary, primacy in the decision making process, unquestionably rested with the judiciary. Finally, the Third Judges case, rendered in 1998 by another nine-Judge Bench, reiterated the position rendered in the Second Judges case.

(ii) Secondly, the final intent emerging from the Constituent Assembly debates, based inter alia on the concluding remarks expressed by Dr. B.R.

Ambedkar, maintained that the judiciary must be independent of the executive. The aforesaid position came to be expressed while deliberating on the subject of “appointment” of Judges to the higher judiciary. Dr. B.R.

Ambedkar while responding to the sentiments expressed by K.T. Shah, K.M.

Munshi, Tajamul Husain, Alladi Krishnaswami Aayar and Ananthasayanam Ayyangar, noted the view of the Constituent Assembly, that the Members were generally in agreement, that “independence of the judiciary”, from the executive “should be made as clear and definite as it could be made by law”. The above assertion made while debating on the issue of appointment of Judges to the Supreme Court, effectively resulted in the acknowledgement, that the issue of “appointment” of the Judges to the higher judiciary, had a direct nexus with “independence of the judiciary”.

Dr. B.R. Ambedkar declined the proposal of adopting the manner of appointment of Judges, prevalent in the United Kingdom and in the United States of America, and thereby, rejected the subjugation of the process of selection and appointment of Judges to the higher judiciary, at the hands of the executive and the legislature respectively. While turning down the latter proposal, Dr. B.R. Ambedkar was suspicious and distrustful, that in such an eventuality, appointments to the higher judiciary, could be impacted by “political pressure” and “political considerations”.

(iii) Thirdly, the actual practice and manner of appointment of Judges to the higher judiciary, emerging from the parliamentary debates, clearly depict, that absolutely all Judges (except in one case) appointed since 1950, had been appointed on the advice of the Chief Justice of India. It is therefore clear, that the political-executive has been conscious of the fact, that the issue of appointment of Judges to the higher judiciary, mandated the primacy of the judiciary, expressed through the Chief Justice of India. In this behalf, even the learned Attorney General had conceded, that the supersession of senior Judges of the Supreme Court, at the time of the appointment of the Chief Justice of India in 1973, the mass transfer of Judges of the higher judiciary during the emergency in 1976, and the second supersession of a Supreme Court Judge, at the time of the appointment of the Chief Justice of India in 1977, were executive aberrations.

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

(v) Fifthly, having adverted to the procedure in place for the selection and appointment of Judges to the higher judiciary, the submission advanced on behalf of the respondents, that the Second and Third Judges cases had created a procedure, where Judges select and appoint Judges, or that, the system of Imperium in Imperio had been created for appointment of Judges, was considered and expressly rejected (in the “Reference Order”).

Furthermore, the submission, that the executive had no role, in the prevailing process of selection and appointment of Judges to the higher judiciary was also rejected, by highlighting the role of the executive in the matter of appointment of Judges to the higher judiciary. Whilst recording the above conclusions, it was maintained (in the “Reference Order”), that primacy in the matter of appointment of Judges to the higher judiciary, was with the Chief Justice of India, and that, the same was based on the collective wisdom of a collegium of Judges.

(vi) Sixthly, the contention advanced at the behest of the respondents, that even in the matter of appointment of Judges to the higher judiciary (and in the matter of their transfer) under Articles 124, 217 (and 222), must be deemed to be vested in the executive, because the President by virtue of the constitutional mandate contained in Article 74, had to act in accordance with the aid and advice tendered to him by the Council of Ministers, was rejected by holding, that primacy in the matter of appointment of Judges to the higher judiciary, continued to remain with the Chief Justice of India, and that, the same was based on the collective wisdom of a collegium of Judges. In recording the above conclusion, reliance was placed on Article 50. Reliance was also placed on Article 50, for recording a further conclusion, that if the power of appointment of Judges was left to the executive, the same would breach the principles of “independence of the judiciary” and “separation of powers”.

152. In view of the above, it has to be concluded, that in the matter of appointment of Judges to the higher judiciary, as also, in the matter of their transfer, primacy in the decision making process, inevitably rests with the Chief Justice of India. And that, the same was expected to be expressed, on the basis of the collective wisdom, of a collegium of Judges.

Having so concluded, we reject all the submissions advanced at the hands of the learned counsel for the respondents, canvassing to the contrary.

IV.

153. The next question which arises for consideration is, whether the process of selection and appointment of Judges to the higher judiciary (i.e., Chief Justices, and Judges of the High Courts and the Supreme Court), and the transfer of Chief Justices and Judges of one High Court to another, contemplated through the impugned constitutional amendment, retains and preserves primacy in the decision making process, with the judiciary? It was the emphatic contention of the learned Attorney General, the learned Solicitor General, the learned Additional Solicitor General, and a sizeable number of learned senior counsel who represented the respondents, that even after the impugned constitutional amendment, primacy in the decision making process, under Articles 124, 217 and 222, has been retained with the judiciary. Insofar as the instant aspect of the matter is concerned, it was contended on behalf of the respondents, that three of the six Members of the NJAC were ex officio Members drawn from the judiciary – the Chief Justice of India, and two other senior Judges of the Supreme Court, next to the Chief Justice. In conjunction with the aforesaid factual position, it was pointed out, that there was only one nominee from the political-executive – the Union Minister in charge of Law and Justice. It was submitted, that the remaining two Members, out of the six-Member NJAC, were “eminent persons”, who were expected to be politically neutral. Therefore, according to learned counsel representing the respondents, primacy in the matter of selection and appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to another, even under the impugned constitutional amendment, continued to remain, in the hands of the judiciary.

154. In conjunction with the aforesaid submission, it was emphatically pointed out, that the provisions of the NJAC Act postulate, that the NJAC would not recommend a person for appointment as a Judge to the higher judiciary, if any two Members of the NJAC, did not agree with such recommendation. Based on the fact, that the Chief Justice of India and the two other senior Judges of the Supreme Court, were ex officio Members of the NJAC, it was asserted, that the veto power for rejecting an unsuitable recommendation by the judicial component of the NJAC, would result in retaining primacy in the hands of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to another.

This according to learned counsel for the respondents, was because the judicial component would be sufficient, in preventing the other Members of the NJAC, from having their way.

155. Having given our thoughtful consideration to the above contention, there can be no doubt, that in the manner expressed by the learned counsel, the suggested inference may well be justified on paper. The important question to be considered is, whether as a matter of practicality, the impugned constitutional amendment can be considered to have sustained, primacy in the matter of decision making, under the amended provisions of Articles 124, 217 and 222, in conjunction with the inserted provisions of Articles 124A to 124C, with the judiciary? 156. The exposition made by the learned Attorney General and some of the other learned counsel representing the respondents, emerges from an over simplified and narrow approach. The primacy vested in the Chief Justice of India based on the collective wisdom of a collegium of Judges, needs a holistic approach. It is not possible for us to accept, that the primacy of the judiciary would be considered to have been sustained, merely by ensuring that the judicial component in the membership of the NJAC, was sufficiently capable, to reject the candidature of an unworthy nominee. We are satisfied, that in the matter of primacy, the judicial component of the NJAC, should be competent by itself, to ensure the appointment of a worthy nominee, as well. Under the substituted scheme, even if the Chief Justice of India and the two other senior most Judges of the Supreme Court (next to the Chief Justice of India), consider a nominee to be worthy for appointment to the higher judiciary, the concerned individual may still not be appointed, if any two Members of the NJAC opine otherwise. This would be out-rightly obnoxious, to the primacy of the judicial component. The magnitude of the instant issue, is apparent from the fact that the two “eminent persons” (-lay persons, according to the learned Attorney General), could defeat the unanimous recommendation made by the Chief Justice of India and the two senior most Judges of the Supreme Court, favouring the appointment of an individual under consideration. Without any doubt, demeaning primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary. The reason to describe it as being obnoxious is this – according to the learned Attorney General, “eminent persons” had to be lay persons having no connection with the judiciary, or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualification, such lay persons would have the collective authority, to override the collective wisdom of the Chief Justice of India and two Judges of the Supreme Court of India. The instant issue, is demonstrably far more retrograde, when the Union Minister in charge of Law and Justice also supports the unanimous view of the judicial component, because still the dissenting voice of the “eminent persons” would prevail. It is apparent, that primacy of the judiciary has been rendered a further devastating blow, by making it extremely fragile.

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

158. Articles 124A(1)(a) and (b) do not provide for an adequate representation in the matter, to the judicial component, to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary, and therefore, the same are liable to be set aside and struck down as being violative of the “basic structure” of the Constitution of India. Thus viewed, we are satisfied, that the “basic structure” of the Constitution would be clearly violated, if the process of selection of Judges to the higher judiciary was to be conducted, in the manner contemplated through the NJAC. The impugned constitutional amendment, being ultra vires the “basic structure” of the Constitution, is liable to be set aside.

V.

159. It is surprising, that the Chief Justice of India, on account of the position he holds as pater familias of the judicial fraternity, and on account of the serious issues, that come up for judicial adjudication before him, which have immeasurable political and financial consequences, besides issues of far reaching public interest, was suspected by none other than Dr. B.R. Ambedkar, during the course of the Constituent Assembly debates, when he declined to accept the suggestions made by some Members of the Constituent Assembly, that the selection and appointment of Judges to the higher judiciary should be made with the “concurrence” of the Chief Justice of India, by observing, that even though the Chief Justice of India was a very eminent person, he was after all just a man with all the failings, all the sentiments, and all the prejudices, which common people have. And therefore, the Constituent Assembly did not leave it to the individual wisdom of the Chief Justice of India, but required consultation with a plurality of Judges, by including in the consultative process (at the discretion of the President of India), not only Judges of the Supreme Court of India, but also Judges of High Courts (in addition to the mandatory consultation with the Chief Justice of India). One would also ordinarily feel, that the President of India and/or the Prime Minister of India in the discharge of their onerous responsibilities in running the affairs of the country, practically all the time take decisions having far reaching consequences, not only in the matter of internal affairs of the country on the domestic front, but also in the matter of international relations with other countries. One would expect, that vesting the authority of appointment of Judges to the higher judiciary with any one of them should not ordinarily be suspect of any impropriety. Yet, the Constituent Assembly did not allow any of them, any defined participatory role. In fact the debate in the Constituent Assembly, removed the participation of the political-executive component, because of fear of being impacted by “political-pressure” and “political considerations”. Was the view of the Constituent Assembly, and the above noted distrust, legitimate? 160. A little personal research, resulted in the revelation of the concept of the “legitimate power of reciprocity”, debated by Bertram Raven in his article – “The Bases of Power and the Power/Interaction Model of Interpersonal Influence” (this article appeared in Analyses of Social Issues and Public Policy, Vol. 8, No.1, 2008, pp. 1-22). In addition to having dealt with various psychological reasons which influenced the personality of an individual, reference was also made to the “legitimate power of reciprocity”. It was pointed out, that the reciprocity norm envisaged, that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate (“I helped you when you needed it, so you should feel obliged to do this for me.” – Goranson and Berkowitz, 1966; Gouldner, 1960). In the view expressed by the author, the inherent need of power, is universally available in the subconscious of the individual. On the satisfaction and achievement of the desired power, there is a similar unconscious desire to reciprocate the favour.

161. The psychological concept of the “legitimate power of reciprocity”, was also highlighted by Dennis T. Regan of the Cornell University in his article – “Effects of a Favour and Liking on Compliance”. It was pointed out, that there was sufficient evidence to establish, that favours do generate feelings of obligation, and the desire to reciprocate. According to the author, the available data suggested, that a favour would lead to reported feelings of obligation, on the part of its recipient.

162. In his book “Influence: The Psychology of Persuasion” – Robert Cialdini, Regent’s Professor Emeritus of Psychology and Marketing at Arizona State University, in Chapter II titled – “Reciprocation”, expressed the view, that “possibly one of the most potent compliance techniques, was the rule of reciprocation, which prompts one to repay, what someone has given to him. When a gift is extended, the recipient feels indebted to the giver, often feels uncomfortable with this indebtedness, and feels compelled to cancel the debt…often against his/her better judgment”. It was pointed out, that the rule of reciprocation, was widespread across the human cultures, suggesting that it was fundamental to creating interdependencies on which societies, cultures, and civilizations were built. It was asserted, that in fact the rule of reciprocation assured, that someone who had given something away first, has a relative assurance, that this initial gift will eventually be repaid. In the above view of the matter, nothing would be lost. Referring to Marcel Nauss, who had conducted a study on gift giving, it was emphasised, that “there is an obligation to give, an obligation to receive, and an obligation to repay”.

According to the author, it was in the above network of indebtedness, that the first giver could exploit the favour, and would rightfully assume the role of a compliance practitioner. And accordingly it was concluded, that although the obligation to repay constituted the essence of the reciprocity rule, it was the obligation to receive, that made the rule so easy to exploit. Describing the power of reciprocity, Cialdini in his article expressed, that the person who gives first remains, in control; and the person who was the recipient, always remained in debt. It is pointed out, that the above situation was often deliberately created, and psychologically maintained. It was also the view of the author, that the more valuable, substantial and helpful the original favour, the more indebted the recipient would continue to feel. In the above article, a reference was made to Alvin Gouldner, in whose opinion, there was no human society on earth, that does not follow the rule of reciprocity. Referring also to the views of the renowned cultural anthropologists – Lionel Tiger and Robin Fox, it was affirmed, that humans lived in a “web of indebtedness”. Therefore it was felt, that reciprocity was a debt and a powerful psychological tool, which was all, but impossible to resist.

163. Under the constitutional scheme in place in the United States of America, federal Judges are nominated by the President, and confirmed by the Senate. The issue being debated, namely, the concept of “the legitimate power of reciprocity”, therefore directly arises in the United States, in the matter of appointment of federal Judges. The first favour to the federal Judge is extended by the President, who nominates his name, and further favours are extended by one or more Member(s) of the Senate, with whose support the Judge believes he won the vote of confirmation. An article titled as “Loyalty, Gratitude, and the Federal Judiciary”, written by Laura E. Little (Associate Professor of Law, Temple University School of Law, as far back as in 1995), deals with the issue in hand, pointedly with reference to appointment of Judges. The article reveals, that the issue of reciprocity has been a subject of conscious debate, with reference to the appointment of Judges for a substantial length of time. The conclusions drawn in the above article are relevant to the present controversy, and are being extracted hereunder:

“On the issue of impartiality, an individual undertaking a federal judgeship confronts a difficult task. Contemporary lawyers commonly agree that the law is not wholly the product of neutral principles and that a judge must choose among values as she shapes the law. Yet, the standards governing impartiality in federal courts largely assume that total judicial neutrality and dispassion are possible. The process of mapping out a personal framework for decisionmaking is therefore apt to create considerable discordance for the judge. Added to this burden are the special pulls of gratitude and loyalty toward the individuals who made possible the judge’s job.

I have sought to show both that gratitude and loyalty can have a powerful influence for a federal judge undertaking to decide a case. The problem is complex because loyalty and gratitude pose a greater potential problem for some judges than for others. This complexity emerges to a great degree from the process of nomination and confirmation, which often generates, or at least reinforces, a judge’s sense of loyalty and gratitude to her benefactors.

In the last few years, we have witnessed a wave of dissatisfaction with the selection process for federal judges. Legal scholarship in particular has offered frequent critique and constructive suggestions for change. As it must, this scholarship recognizes that any change ventured must weigh the impact of nomination and confirmation on a number of segments of American life, including the constitutional balance of powers and public perception of the judiciary.

To omit from these concerns the effect of any change on the ultimate quality of judicial decisionmaking would, of course, be a mistake. Thus, in studying any new selection procedure, we must contemplate the procedure’s potential for creating and invigorating a judge’s feelings of loyalty and gratitude to her benefactors. The foregoing should, therefore, not only shed light on the process of federal court decisionmaking in general, but also give much needed guidance for evaluating proposed changes to judicial selection.” 164. It is however pertinent to mention, that in her article, Laura E.

Little has expressed, what most moral philosophers believed, that gratitude has significant moral components. And further, that gratitude has a ready place in utilitarian moral systems, which were designed to ensure the greatest good for the greatest number of individuals. The concept of gratitude was however intertwined with loyalty by Laura E. Little, as in her view, gratitude and loyalty, were closely related. A beneficiary could show gratitude to a benefactor, through an expression of loyalty. The point sought to be made was, that in understanding loyalty one understands, who we are in our friendships, loves, family bonds, national ties, and religious devotion. Insofar as the patterns of behaviour in the Indian cultural system is concerned, a child is always obligated to his parents for his upbringing, and it is the child’s inbuilt moral obligation, to reciprocate to his parents by extending unimpeachable loyalty and gratitude. The above position finds replication in relationships of teacher and taught, master and servant, and the like. In the existing Indian cultural scenario, an act of not reciprocating towards a benefactor, would more often than not, be treated as an act of grave moral deprivation. When the favour extended is as important as the position of judgeship in the higher judiciary, one would best leave it to individual imagination, to determine the enormity of the reciprocal gratitude and loyalty.

165. The consideration recorded hereinabove, endorses the view, that the political-executive, as far as possible, should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary.

Specially keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication. Reciprocity, and feelings of pay back to the political-executive, would be disastrous to “independence of the judiciary”. In this, we are only reiterating the position adopted by Dr. B.R. Ambedkar. He feared, that with the participation of the political-executive, the selection of Judges, would be impacted by “political pressure” and “political considerations”. His view, finds support from established behavioural patterns expressed by Psychologists. It is in this background, that it needs to be ensured, that the political-executive dispensation has the least nexus, with the process of finalization of appointments of Judges to the higher judiciary.

VI.

166. The jurisdictions that have to be dealt with, by Judges of the higher judiciary, are large and extensive. Within the above jurisdictions, there are a number of jurisdictions, in which the executive is essentially a fundamental party to the lis. This would inter alia include cases arising out of taxing statutes which have serious financial implications. The executive is singularly engaged in the exploitation of natural resources, often through private entrepreneurs. The sale of natural resources, which also, have massive financial ramifications, is often subject to judicial adjudication, wherein also, the executive is an indispensable party.

Challenges arising out of orders passed by Tribunals of the nature of the Telecom Disputes Settlement & Appellate Tribunal and the Appellate Tribunal for Electricity, and the like, are also dealt with by the higher judiciary, where also the executive has a role. Herein also, there could be massive financial implications. The executive is also a necessary party in all matters relating to environmental issues, including appeals from the National Green Tribunals. Not only in all criminal matters, but also in high profile scams, which are no longer a rarity, the executive has an indispensable role. In these matters, sometimes accusations are levelled against former and incumbent Prime Ministers and Ministers of the Union Cabinet, and sometimes against former and incumbent Chief Ministers and Ministers of the State Cabinets. Even in the realm of employment issues, adjudication rendered by the Central Administrative Tribunal, and the Armed Forces Appellate Tribunal come up before the Judges of the higher judiciary. These adjudications also sometimes include, high ranking administrators and armed forces personnel. Herein too, the executive is an essential constituent. This is only a miniscule part of the extensive involvement of the political-executive, in litigation before the higher judiciary.

167. Since the executive has a major stake, in a majority of cases, which arise for consideration before the higher judiciary, the participation of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, would be clearly questionable. In today’s world, people are conscious and alive to the fact, that their rights should be adjudicated in consonance of the rules of natural justice. One of the rules of natural justice is, that the adjudicator should not be biased. This would mean, that he should neither entertain a prejudice against either party to a lis, nor should he be favourably inclined towards any of them. Another component of the rule of bias is, that the adjudicator should not have a conflict of interest, with the controversy he is to settle. When the present set of cases came up for consideration, a plea of conflict of interest was raised even against one of the presiding Judges on the Bench, which resulted in the recusal of Anil R. Dave, J. on 15.4.2015. A similar prayer was again made against one of us (J.S. Khehar, J.), on 21.4.2015, on the ground of conflict of interest. What needs to be highlighted is, that bias, prejudice, favour and conflict of interest are issues which repeatedly emerge. Judges are careful to avoid adjudication in such matters. Judges are not on one or the other side of the adjudicatory process. The political- executive in contrast, in an overwhelming majority of cases, has a participatory role. In that sense, there would/could be an impact/effect, of a decision rendered one way or the other. A success or a defeat – a win or a loss. The plea of conflict of interest would be available against the executive, if it has a participatory role in the final selection and appointment of Judges, who are then to sit in judgment over matters, wherever the executive is an essential and mandatory party. The instant issue arose for consideration in the Madras Bar Association case35. In the above case a five-Judge Bench considered the legality of the participation of Secretaries of Departments of the Central Government in the selection and appointment of the Chairperson and Members of the National Tax Tribunal. On the above matter, this Court held, as under:

“131.Section 7 cannot even otherwise be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of NTT, Secretaries of Departments of the Central Government. In this behalf, it would also be pertinent to mention that the interests of the Central Government would be represented on one side in every litigation before NTT. It is not possible to accept a party to a litigation can participate in the selection process whereby the Chairperson and Members of the adjudicatory body are selected….” The position herein is no different. The Attorney General however attempted to distinguish the matter in hand, from the controversy decided in the cited case by asserting, that in cases adjudicated upon by the National Tax Tribunal the “…Central Government would be represented on one side in every litigation …” which is not the case before the higher judiciary. The rebuttal, clearly avoids the issue canvassed. One would assume from the response, that the position was conceded to the extent of matters, where the executive was a party to the lis. But that itself would exclude the selected Judges from hearing a large majority of cases. One would therefore reject the response of the Union of India.

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

VII.

169. The learned Attorney General had invited our attention to the manner in which judicial appointments were being made in fifteen countries. It was submitted, that in nine countries Judges were appointed either through a Judicial Appointments Commission, or through a Judicial Appointments Committee, or through a Judicial Appointments Council. It was highlighted, that in four countries, Judges were appointed directly by the executive, i.e., by the Governor General or the President. We were informed, that in one European country, Judges were nominated by the Minister of Justice and confirmed by the Parliamentary Committee. In the United States of America, Judges were appointed through a process of nomination by the President and confirmation by the Senate. It was highlighted, that in all the fifteen countries, the executive was the final determinative/appointing authority.

And further that, in all the countries, the executive had a role to play in the selection and appointment of Judges. The foresaid factual position was brought to our notice for the singular purpose of demonstrating, that executive participation in the process of selection and appointment of Judges had not made the judiciary in any of the fifteen countries, subservient to the political-executive. It was asserted, that the countries referred to by him were in different continents of the world, and there was no complaint with reference to the “independence of the judiciary”. The point sought to be driven home was, that the mere participation of the executive in the selection and appointment of Judges to the higher judiciary, did not impinge upon the “independence of the judiciary”.

170. The aforestated submission does not require an elaborate debate.

Insofar as the instant aspect of the matter is concerned, as the same was examined in the Second Judges case, wherein S. Ratnavel Pandian, J., one of the Judges who passed a separate concurring order, supporting the majority view. He had rejected the submission of the nature advanced by the learned Attorney General, with the following observations:

“194. Nevertheless, we have, firstly to find out the ails from which our judicial system suffers; secondly to diagnose the root cause of those ailments under legalistic biopsies, thirdly to ascertain the nature of affliction on the system and finally to evolve a new method and strategy to treat and cure those ailments by administering and injecting a ‘new invented medicine’ (meaning thereby a newly-developed method and strategy) manufactured in terms of the formula under Indian pharmacopoeia (meaning thereby according to national problems in a mixed culture etc.) but not according to American or British pharmacopoeia which are alien to our Indian system though the system adopted in other countries may throw some light for the development of our system. The outcry of some of the critics is when the power of appointment of Judges in all democratic countries, far and wide, rests only with the executive, there is no substance in insisting that the primacy should be given to the opinion of the CJI in selection and appointment of candidates for judgeship. This proposition that we must copy and adopt the foreign method is a dry legal logic, which has to be rejected even on the short ground that the Constitution of India itself requires mandatory consultation with the CJI by the President before making the appointments to the superior judiciary. It has not been brought to our notice by any of the counsel for the respondents that in other countries the executive alone makes the appointments notwithstanding the existence of any existing similar constitutional provisions in their Constitutions.” 171. Despite our having dealt with the submission canvassed at the hands of the learned Attorney General based on the system of appointment of Judges to the higher judiciary in fifteen countries, we consider it expedient to delve further on the subject. During the hearing of the present controversy, a paper written in November 2008, by Nuno Garoupa and Tom Ginsburg of the Law School, University of Chicago, came to hand. The paper bore the caption – “Guarding the Guardians: Judicial Councils and Judicial Independence”. The paper refers to comparative evidence, of the ongoing debate, about the selection and discipline of Judges. The article proclaims to aim at two objectives. Firstly, the theory of formation of Judicial Councils, and the dimensions on which they differ. And secondly, the extent to which different designs of Judicial Council, affect judicial quality. These two issues were considered as of extreme importance, as the same were determinative of the fact, whether Judges would be able to have an effective role in implementing social policy, as broadly conceived. It was observed, that Judicial Councils had come into existence to insulate the appointment, promotion and discipline of Judges from partisan political influence, and at the same time, to cater to some level of judicial accountability. It was the authors’ view, that the Judicial Councils lie somewhere in between the polar extremes of letting Judges manage their own affairs, and the alternative of complete political-executive control of appointments, promotions and discipline.

172. According to the paper, France established the first High Council of the Judiciary in 1946. Italy’s Judicial Council was created in 1958.

Italy was the first to fully insulate the entire judiciary from political control. It was asserted, that the Italian model was, thereupon, followed in other countries. The model established in Spain and Portugal comprised of a significant proportion of Members who were Judges. These models were established, after the fall of dictatorship in these countries. Councils created by these countries, are stated to be vested with, final decision making authority, in matters pertaining to judicial promotion, tenure and removal. According to the paper, the French model came into existence as a consequence of concerns about excessive politicization. Naturally, the process evolved into extensive independence of judicial power. Yet, judicial concern multiplied manifolds in the judiciary’s attempt to give effect to the European Convention of Human Rights. And the judiciary’s involvement in the process of judicial review, in the backdrop of surmounting political scandals. The paper describes the pattern in Italy to be similar. In Italy also, prominent scandals led to investigation of businessmen, politicians and bureaucrats (during the period from 1992 to 1997), which resulted in extensive judicial participation, in political activity. The composition of the Council in Italy, was accordingly altered in 2002, to increase the influence of the Parliament.

173. The paper noted, that the French-Italian models had been adopted in Latin America, and other developing countries. It was pointed out, that the World Bank and other similar multilateral donor agencies, insist upon Judicial Councils, to be associated with judicial reform, for enforcement of the rule of law. The Elements of European Statute on the Judiciary, was considered as a refinement of the Judicial Council model. The perceived Supreme Council of Magistracy, requires that at least half of the Members are Judges, even though, some of the Members of the Supreme Council are drawn from the Parliament. It was the belief of the authors of the paper, that the motivating concern for adoption of the Supreme Councils, in the French-Italian tradition, was aimed at ensuring “independence of the judiciary” after periods of undemocratic rule. Perhaps because of concerns over structural problems, it was pointed out, that external accountability had emerged as a second goal for these Supreme Councils. Referring to the Germany, Austria and Netherlands models, it was asserted, that their Councils were limited to playing a role in selection (rather than promotion and discipline) of Judges. Referring to Dutch model, it was pointed out, that recent reforms were introduced to ensure more transparency and accountability.

174. It was also brought out, that Judicial Councils in civil law jurisdictions, had a nexus to the Supreme Court of the country. Referring to Costa Rica and Austria, it was brought out, that the Judicial Councils in these countries were a subordinate organ of the Supreme Court. In some countries like Brazil, Judicial Councils were independent bodies with constitutional status, while in others Judicial Councils governed the entire judiciary. And in some others, like Guatemala and Argentina, they only governed lower courts.

175. Referring to recruitment to the judiciary in common law countries, it was pointed out, that in the United Kingdom, the Constitutional Reform Act, 2005 created a Judicial Appointments Commission, which was responsible for appointments solely based on merit, had no executive participation. It was pointed out, that New Zealand and Australia were debating whether to follow the same. The above legislation, it was argued, postulated a statutory duty on Government Members, not to influence judicial decisions. And also, excluded the participation of the Lord Chancellor in all such activities, by transferring his functions to the President of the Courts of England and Wales, (formerly designated as Lord Chief Justice of England and Wales).

176. Referring to the American experience, it was noted, that concern over traditional methods of judicial selection (either by politicians or by election) had given way to “Merit Commissions” so as to base selection of Judges on merit. Merit Commissions, it was felt, were analogous to Judicial Councils. The system contemplated therein, was non-partisan. The Judicial Selection Commission comprised of judges, lawyers and political appointees.

177. Referring to the works of renowned jurists on the subject, it was sought to be concluded, that in today’s world, there was a strong consensus, that of all the procedures, the merit plan insulated the judiciary from political pressure. In their remarks, emerging from the survey carried out by them, it was concluded, that it was impossible to eliminate political pressure on the judiciary. Judicial Commissions/ Councils created in different countries were, in their view, measures to enhance judicial independence, and to minimize political influence. It was their view that once given independence, Judges were more useful for resolving a wider range of more important disputes, which were considered essential, given the fact that more and more tasks were now being assigned to the judiciary.

178. In analyzing the conclusions drawn in the article, one is constrained to conclude, that in the process of evolution of societies across the globe, the trend is to free the judiciary from executive and political control, and to incorporate a system of selection and appointment of Judges, based purely on merit. For it is only then, that the process of judicial review will effectively support nation building. In the subject matter, which falls for our consideration, it would be imperative for us, to keep in mind, the progression of the concepts of “independence of the judiciary” and “judicial review” were now being recognized the world over.

The diminishing role of executive and political participation, on the matter of appointments to the higher judiciary, is an obvious reality. In recognition of the above trend, there cannot be any greater and further participation of the executive, than that which existed hitherto before.

And in the Indian scenario, as is presently conceived, through the judgments rendered in the Second and Third Judges cases. It is therefore imperative to conclude, that the participation of the Union Minister in charge of Law and Justice in the final determinative process vested in the NJAC, as also, the participation of the Prime Minister and the Leader of the Opposition in the Lok Sabha (and in case of there being none – the Leader of the single largest Opposition Party in the House of the People), in the selection of “eminent persons”, would be a retrograde step, and cannot be accepted.

VIII.

179. The only component of the NJAC, which remains to be dealt with, is with reference to the two “eminent persons” required to be nominated to the NJAC. It is not necessary to detail the rival submissions on the instant aspect, as they have already been noticed extensively, hereinbefore.

180. We may proceed by accepting the undisputed position, that neither the impugned constitutional amendment, nor the NJAC Act postulate any positive qualification to be possessed by the two “eminent persons” to be nominated to the NJAC. These constitutional and legislative enactments do not even stipulate any negative disqualifications. It is therefore apparent, that the choice of the two “eminent persons” would depend on the free will of the nominating authorities. The question that arises for consideration is, whether it is just and appropriate to leave the issue, to the free will and choice, of the nominating authorities? 181. The response of the learned Attorney General was emphatic. Who could know better than the Prime Minister, the Chief Justice of India, or the Leader of Opposition in the Lok Sabha (and when there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in the Lok Sabha)? And he answered the same by himself, that if such high ranking constitutional authorities can be considered as being unaware, then no one in this country could be trusted, to be competent, to take a decision on the matter – neither the legislature, nor the executive, and not even the judiciary. The Attorney General then quipped – surely this Court would not set aside the impugned constitutional amendment, or the NJAC Act, on such a trivial issue. He also suggested, that we should await the outcome of the nominating authorities, and if this Court felt that a particular individual nominated to discharge the responsibility entrusted to him as an “eminent person” on the NJAC, was inappropriate or unacceptable or had no nexus with the responsibility required to be shouldered, then his appointment could be set aside.

182. Having given our thoughtful consideration to the matter, we are of the view, that the issue in hand is certainly not as trivial, as is sought to be made out. The two “eminent persons” comprise of 1/3rd strength of the NJAC, and double that of the political-executive component. We could understand the import of the submission, only after hearing learned counsel. The view emphatically expressed by the Attorney General was that the “eminent persons” had to be “lay persons” having no connection with the judiciary, or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualification. Mr. T.R.

Andhyarujina, learned senior counsel who represented the State of Maharashtra, which had ratified the impugned constitutional amendment, had appeared to support the impugned constitutional amendment, as well as, the NJAC Act, expressed a diametrically opposite view. In his view, the “eminent persons” with reference to the NJAC, could only be picked out of, eminent lawyers, eminent jurists, and even retired Judges, or the like, having an insight to the working and functioning of the judicial system.

It is therefore clear, that in the view of the learned senior counsel, the nominated “eminent persons” would have to be individuals, with a legal background, and certainly not lay persons, as was suggested by the learned Attorney General. We have recorded the submissions advanced by Mr.

Dushyant A. Dave, learned senior counsel – the President of the Supreme Court Bar Association, who had addressed the Bench in his usual animated manner, with no holds barred. We solicited his view, whether it would be proper to consider the inclusion of the President of the Supreme Court Bar Association and/or the Chairman of the Bar Council of India, as ex officio Members of the NJAC in place of the two “eminent persons”. His response was spontaneous “Please don’t do that !!” and then after a short pause, “…that would be disastrous !!”. Having examined the issue with the assistance of the most learned and eminent counsel, it is imperative to conclude, that the issue of description of the qualifications (- perhaps , also the disqualifications) of “eminent persons” is of utmost importance, and cannot be left to the free will and choice of the nominating authorities, irrespective of the high constitutional positions held by them. Specially so, because the two “eminent persons” comprise of 1/3rd strength of the NJAC, and double that of the political-executive component, and as such, will have a supremely important role in the decision making process of the NJAC. We are therefore persuaded to accept, that Article 124A(1)(d) is liable to be set aside and struck down, for having not laid down the qualifications of eligibility for being nominated as “eminent persons”, and for having left the same vague and undefined.

183. It is even otherwise difficult to appreciate the logic of including two “eminent persons”, in the six-Member NJAC. If one was to go by the view expressed by the learned Attorney General, “eminent persons” had been included in the NJAC, to infuse inputs which were hitherto not available with the prevailing selection process, for appointment of Judges to the higher judiciary. Really a submission with all loose ends, and no clear meaning. He had canvassed, that they would be “lay persons” having no connection with the judiciary, or even with the profession of advocacy, perhaps individuals who did not even have any law related academic qualification. It is difficult to appreciate what inputs the “eminent persons”, satisfying the qualification depicted by the learned Attorney General, would render in the matter of selection and appointment of Judges to the higher judiciary. The absurdity of including two “eminent persons” on the NJAC, can perhaps be appreciated if one were to visualize the participation of such “lay persons”, in the selection of the Comptroller and Auditor-General, the Chairman and Members of the Finance Commission, the Chairman and Members of the Union Public Service Commission, the Chief Election Commissioner and the Election Commissioners and the like. The position would be disastrous. In our considered view, it is imprudent to ape a system prevalent in an advanced country, with an evolved civil society.

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

185. It is also difficult to appreciate the wisdom of the Parliament, to introduce two lay persons, in the process of selection and appointment of Judges to the higher judiciary, and to simultaneously vest with them a power of veto. The second proviso under Section 5(2), and Section 6(6) of the NJAC Act, clearly mandate, that a person nominated to be considered for appointment as a Judge of the Supreme Court, and persons being considered for appointment as Chief Justices and Judges of High Courts, cannot be appointed, if any two Members of the NJAC do not agree to the proposal. In the scheme of the selection process of Judges to the higher judiciary, contemplated under the impugned constitutional amendment read with the NJAC Act, the two “eminent persons” are sufficiently empowered to reject all recommendations, just by themselves. Not just that, the two “eminent persons” would also have the absolute authority to reject all names unanimously approved by the remaining four Members of the NJAC. That would obviously include the power to reject, the unanimous recommendation of the entire judicial component of the NJAC. In our considered view, the vesting of such authority in the “eminent persons”, is clearly unsustainable, in the scheme of “independence of the judiciary”. Vesting of such authority on persons who have no nexus to the system of administration of justice is clearly arbitrary, and we hold it to be so. The inclusion of “eminent persons”, as already concluded above (refer to paragraph 156), would adversely impact primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary (as also their transfer). For the reasons recorded hereinabove, it is apparent, that Article 124A(1)(d) is liable to be set aside and struck down as being violative of the “basic structure” of the Constitution.

IX.

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

187. If our memory serves us right, the learned Attorney General had made a reference to the improper appointment of three Judges to the Supreme Court. One would have felt, without going into the merits of the charge, that finding fault with just three Judges, despite the appointment of over a hundred Judges to the Supreme Court, since the implementation of the judgment rendered in the Second Judges case (pronounced on 6.10.1993) – M.K. Mukherjee, J., being the first Judge appointed under the “collegium system” on 14.12.1993, and B.N. Kirpal, CJ., the first Chief Justice thereunder, having been appointed as Judge of the Supreme Court on 11.9.1995, under the “collegium system”, should be considered as no mean achievement.

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

189. Just as it was impossible to overlook a submission advanced by the Attorney General, so also, it would be improper to leave out submissions advanced on a similar note, by none other than the President of the Supreme Court Bar Association. Insofar as Mr. Dushyant A. Dave, Senior Advocate, is concerned, his pointed assertion of wrongful appointments included a reference to a Judge of this Court, who had allegedly taken on his board a case, which was not assigned to his roster. It was alleged, that he had disposed of the case wrongfully. Before, we dwell on the above contention, it is necessary to notice, that the charge leveled, does not relate to an allegedly improper selection and appointment. The accusation is limited to a wrongful determination of “one” case. Insofar as the instant aspect of the matter is concerned, it is necessary for us to notice, that a review petition came to be filed against the alleged improper order, passed by the said Judge. The same was dismissed. After the Judge demitted office, a curative petition was filed, wherein the alleged improper order passed by the concerned Judge, was assailed. The same was also dismissed. Even thereafter, a petition was filed against the concerned Judge, by impleading him as a party-respondent. The said petition was also dismissed. We need to say no more, than what has been observed hereinabove, with reference to the particular case, allegedly wrongly decided by the concerned Judge.

190. It is imperative for us, while taking into consideration the submissions advanced by the learned Attorney General, to highlight, that the role of appointment of Judges in consonance with the judgment rendered in the Second Judges case, envisages the dual participation of the members of the judiciary, as also, the members of the executive. Details in this behalf have been recorded by us in the “Reference Order”. And therefore, in case of any failure, it is not only the judicial component, but also the executive component, which are jointly and equally responsible. Therefore, to single out the judiciary for criticism, may not be a rightful reflection of the matter.

191. It is not within our realm to express our agreement or disagreement with the contentions advanced at the hands of the learned Attorney General.

He may well be right in his own perception, but the misgivings pointed out by him may not be of much significance in the perception of others, specially those who fully appreciate the working of the judicial system.

The misgivings pointed out by the learned Attorney General, need to be viewed in the background of the following considerations:

Firstly, the allegations levelled against the Judges in question, do not depict any lack of ability in the discharge of judicial responsibility.

Surely, that is the main consideration to be taken into account, at the time of selection and appointment of an individual, as a Judge at the level of the higher judiciary.

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

Thirdly, not in a single of the instances referred to above, the political- executive had objected to the elevation of the Judges referred to. We say so, because on our asking, we were furnished with the details of those who had been elevated, despite objections at the hands of the Union-executive.

None of the Judges referred to, figured in that list.

Fourthly, no allegation whatsoever was made by the Attorney General, with reference to Judges, against whom objections were raised by the political- executive, and yet, they were appointed at the insistence of the Chief Justice, under the “collegium system”.

Fifthly, that the political-executive disposition, despite the allegations levelled by the learned Attorney General, chose to grant post-retirement assignments, to three of the four instances referred to, during the course of hearing. A post-retirement assignment was also allowed by the political- executive, to the Judge referred to by Mr. Dushyant A. Dave. In the above factual scenario, either the learned Attorney General had got it all wrong.

And if he is right, the political-executive got it all wrong, because it faltered despite being aware of the factual position highlighted.

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

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

193. It is necessary to emphasise, that under every system of law, there are two sides to every litigation. Only one of which succeeds. The question of how a matter has been decided would always be an issue of debate. The party, who succeeds, would feel justice had been done. While the party that loses, would complain that justice had been denied. In the judicial process, there are a set of remedies, that are available to the parties concerned. The process contemplates, culmination of proceedings at the level of the Supreme Court. Once the process has run the full circle, it is indeed futile to allege any wrong doing, except on the basis of adequate material to show otherwise. Not that, the Supreme Court is right, but that, there has to be a closure. Most of the instances, illustratively mentioned by the President of the Supreme Court Bar Association, pertained to criminal prosecutions. The adjudication of such controversies is dependent on the adequacy of evidence produced by the prosecution. The nature of the allegations (truthful, or otherwise), have an important bearing, on the interim relief(s) sought, by the parties. The blame for passing (or, not passing) the desired orders, does not therefore per se, rest on the will of the adjudicating Judge, but the quality and authenticity of the evidence produced, and the nature of the allegations.

Once all remedies available stand exhausted, it does not lie in the mouth of either the litigant, or the concerned counsel to imply motives, without placing on record any further material. It also needs to be recorded, that while making the insinuations, learned senior counsel, did not make a pointed reference to any High Court Judge by name, nor was it possible for us to identify any such Judge, merely on the basis of the submissions advanced, unlike the instances with reference to Judges of the Supreme Court. In the above view of the matter, it is not possible for us to infer, that there are serious infirmities in the matter of selection and appointment of Judges to the higher judiciary, under the prevailing “collegium system”, on the basis of the submissions advanced before us.

194. It is apparent that learned counsel had their say, without any limitations. That was essential, to appreciate the misgivings in the prevailing procedure of selection and appointment of Judges to the higher judiciary. We have also recorded all the submissions (hopefully) in terms of the contentions advanced, even in the absence of supporting pleadings.

We will be failing in discharging our responsibility, if we do not refer to the parting words of Mr. Dushyant A. Dave – the President of the Supreme Court Bar Association, who having regained his breath after his outburst, did finally concede, that still a majority of the Judges appointed to the High Courts and the Supreme Court, were/are outstanding, and a miniscule minority were “bad Judges”. All in all, a substantial emotional variation, from how he had commenced. One can only conclude by observing, that individual failings of men who are involved in the actual functioning of the executive, the legislature and the judiciary, do not necessarily lead to the inference, that the system which selects them, and assigns to them their role, is defective.

X.

195. It must remain in our minds, that the Indian Constitution is an organic document of governance, which needs to change with the evolution of civil society. We have already concluded, that for far more reasons than the ones, recorded in the Second Judges case, the term “consultation”, referred to selection of Judges to the higher judiciary, really meant, even in the wisdom of the framers of the Constitution, that primacy in the matter, must remain with the Chief Justice of India (arrived at, in consultation with a plurality of Judges). Undoubtedly, it is open to the Parliament, while exercising its power under Article 368, to provide for some other alternative procedure for the selection and appointment of Judges to the higher judiciary, so long as, the attributes of “separation of powers” and “independence of the judiciary”, which are “core” components of the “basic structure” of the Constitution, are maintained.

196. That, however, will depend upon the standards of the moral fiber of the Indian polity. It cannot be overlooked, that the learned Attorney General had conceded, that there were certain political upheavals, which had undermined the “independence of the judiciary”, including an executive overreach, at the time of appointment of the Chief Justice of India in 1973, followed by the mass transfer of Judges of the higher judiciary during the emergency in 1976, and thereafter a second supersession, at the time of appointment of another Chief Justice of India in 1977. And further, the interference by the executive, in the matter of appointment of Judges to the higher judiciary during the 1980’s.

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

198. Lest one is accused of having recorded any sweeping inferences, it will be necessary to record the reasons, for the above conclusion. The Indian Express, on 18.6.2015, published an interview with L.K. Advani, a veteran BJP Member of Parliament in the Lok Sabha, under the caption “Ahead of the 40th anniversary of the imposition of the Emergency on 25.6.1975”.

His views were dreadfully revealing. In his opinion, forces that could crush democracy, were now stronger than ever before. He asserted, “I do not think anything has been done that gives me the assurance that civil liberties will not be suspended or destroyed again. Not at all”!! It was also his position, that the emergency could happen again. While acknowledging, that the media today was more alert and independent, as compared to what it was, when emergency was declared by the then Prime Minister Indira Gandhi, forty years ago. In his perception, the media did not have any real commitment to democracy and civil liberties. With reference to the civil society, he pointed out, that hopes were raised during the Anna Hazare mobilization against corruption, which according to him, ended in a disappointment, even with reference to the subject of corruption. This when the poor and downtrodden majority of this country, can ill afford corruption. Of the various institutions, that could be held responsible, for the well functioning of democracy in this country, he expressed, that the judiciary was more responsible than the other institutions.

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

200. The stance of L.K. Advani was affirmed by Sitaram Yechury, a veteran CPI (Marxist) Member of Parliament in the Rajya Sabha, who was arrested, like L.K. Advani, during the emergency in 1975.

201. The present N.D.A. Government was sworn in, on 26.5.2014. One believes, that thereafter thirteen Governors of different States and one Lieutenant Governor of a Union Territory tendered their resignations in no time. Some of the Governors demitted their office shortly after they were appointed, by the previous U.P.A. – dispensation. That is despite the fact, that a Governor under the Constitutional mandate of Article 156(3) has a term of five years, from the date he enters upon his office. A Governor is chosen out of persons having professional excellence and/or personal acclaim. Each one of them, would be eligible to be nominated as an “eminent person” under Article 124A(1)(d). One wonders, whether all these resignations were voluntary. The above depiction is not to cast any aspersion. As a matter of fact, its predecessor – the U.P.A. Government, had done just that in 2004.

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

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

204. From the above, is one to understand, that all these individuals were rank favorites, approved by the predecessor political-executive establishment? Or, were the best not chosen to fill the slot by the previous dispensation? Could it be, that those who get to hold the reins of Government, introduce their favourites? Or, whether the existing incumbents, deserved just that? Could it be, that just like its predecessor, the present political establishment has now appointed its rank favourites? What emerges is, trappings of the spoils system, and nothing else. None of the above parameters, can be adopted in the matter of appointment of Judges to the higher judiciary. For the judiciary, the best out of those available have to be chosen. Considerations cannot be varied, with a change in Government. Demonstrably, that is exactly what has happened (repeatedly?), in the matter of non-judicial appointments. It would be of utmost importance therefore, to shield judicial appointments, from any political-executive interference, to preserve the “independence of the judiciary”, from the regime of the spoils system. Preserving primacy in the judiciary, in the matter of selection and appointment of Judges to the, higher judiciary would be a safe way to do so.

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

XI.

206. It may be noticed, that one of the contentions advanced on behalf of the petitioners was, that after the 121st Constitution Amendment Bill was passed by the Lok Sabha and the Rajya Sabha, it was sent to the State Legislatures for ratification. Consequent upon the ratification by the State Legislatures, in compliance of the mandate contained in Article 368, the President granted his assent to the same on 31.12.2014, whereupon it came to be enacted as the Constitution (99th Amendment) Act. Section 1(2) thereof provides, that the provisions of the amendment, would come into force from such date as may be notified by the Central Government, in the Official Gazette. And consequent upon the issuance of the above notification, the amendment was brought into force, through a notification, with effect from 13.4.2015. It was the submission of the petitioners, that the jurisdiction to enact the NJAC Act, was acquired by the Parliament on 13.4.2015, for the simple reason, that the same could not have been enacted whilst the prevailing Articles 124(2) and 217(1) were in force, as the same, did not provide for appointments to be made by a body such as the NJAC. It was submitted, that the NJAC Act was promulgated, to delineate the procedure to be followed by the NJAC while recommending appointments of Judges and Chief Justices, to the higher judiciary. It was contended, that procedure to be followed by the NJAC could not have been legislated upon by the Parliament, till the Constitution was amended, and the NJAC was created, as a constitutional entity for the selection and appointment (as also, transfer) of Judges at the level of the higher judiciary. The NJAC, it was asserted, must be deemed to have been created, only when the Constitution (99th Amendment) Act, was brought into force, with effect from 13.4.2015. It was submitted, that the NJAC Act received the assent of the President on 31.12.2014 i.e., on a date when the NJAC had not yet come into existence. For this, learned counsel had placed reliance on the A.K. Roy case49, to contend, that the constitutional amendment in the instant case would not come into force on 13.12.2014, but on 13.4.2015.

207. A complementary additional submission was advanced on behalf of the petitioners, by relying upon the same sequence of facts. It was contended, that the power of veto vested in two Members of the NJAC, through the second proviso under Section 5(2) of the NJAC Act (in the matter of appointment of the Chief Justice and Judges of the Supreme Court), and Section 6(6) of the NJAC Act (in the matter of appointment of Chief Justices and Judges of High Courts) could not be described as laying down any procedure. It was submitted, that the above provisions clearly enacted substantive law. Likewise, it was contended, that the amendment of the words “after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose”, on being substituted by the words “on the recommendation of the National Judicial Appointments Commission referred to in Article 124A”, as also, the deletion of the first proviso under Article 124(2) which mandated consultation with the Chief Justice of India, and the substitution of the same with the words, “on the recommendation of the National Judicial Appointments Commission referred to under Article 124A”, would result in the introduction of an absolutely new regimen. It was submitted, that such substitution would also amount to an amendment of the existing provisions of the Constitution, and as such, the same would also require the postulated ratification provided in respect of a constitutional amendment, under the proviso to Article 368(2). And since the NJAC Act, had been enacted as an ordinary legislation, the same was liable to be held as non est on account of the fact, that the procedure contemplated under Article 368, postulated for an amendment to the Constitution, had not been followed.

208. Since it was not disputed, that the Parliament had indeed enacted Rules of Procedure and the Conduct of Business of Lok Sabha under Article 118, which contained Rule 66 postulating, that a Bill which was dependent wholly or partly on another Bill could be “introduced” in anticipation of the passing of the Bill, on which it was dependent. Leading to the inference, that the 121st Constitution Amendment Bill, on which the NJAC Bill was dependent, could be taken up for consideration (by introducing the same in the Parliament), but could not have been passed till after the passing of the Constitution (99th Amendment) Act, on which it was dependent.

209. Whilst there can be no doubt, that viewed in the above perspective, we may have unhesitatingly accepted the above submission, and in fact the same was conceded by the Attorney General to the effect, that the dependent Bill can “… be taken up for consideration and passing in the House, only after the first Bill has been passed by the House…”. But our attention was invited by the Attorney General to Rule 388, which authorises the Speaker to allow the suspension, of a particular rule (which would include Rule 66). If Rule 66 could be suspended, then Rule 66 would not have the impact, which the petitioners seek through the instant submission. It is not a matter of dispute, that the then Union Minister in charge of Law and Justice had sought (under Rule 388 of the Rules of Procedure and Conduct of Business of the Lok Sabha) the suspension of the proviso to Rule 66. And on due consideration, the Lok Sabha had suspended the proviso to Rule 66, and had taken up the NJAC Bill for consideration. Since the validity of Rule 388 is not subject matter of challenge before us, it is apparent, that it was well within the competence of the Parliament, to have taken up for consideration the NJAC Act, whilst the Constitution (121st Amendment) Bill, on which the NJAC Act was fully dependent, had still not been passed, in anticipation of the passing of the Constitution (121st Amendment) Bill.

210. The principle contained in Rule 66, even if the said rule had not been provided for, would always be deemed to have been impliedly there. In the absence of a foundation, no superstructure can be raised. The instant illustration is relateable to Rule 66, wherein the pending Bill would constitute the foundation, and the Bill being introduced in anticipation of the passing of the pending Bill, would constitute the superstructure.

Therefore, in the absence of the foundational Bill (-in the instant case, the 121st Constitution Amendment Bill), there could be no question of raising the infrastructure (-in the instant case, the NJAC Act). In our considered view, it was possible in terms of Rule 388, to introduce and pass a Bill in the Parliament, in anticipation of the passing of the dependent Bill – the Constitution (121st Amendment) Bill. But, it is still not possible to contemplate, that a Bill which is dependent wholly (or, in part) upon another Bill, can be passed and brought into operation, till the dependent Bill is passed and brought into effect.

211. It is however necessary to record, that even though the position postulated in the preceding paragraphs, as canvassed by the Attorney General, was permissible, the passing of the dependent enactment i.e., the NJAC Bill, could not have been given effect to, till the foundational enactment had become operational. In the instant case, the NJAC Act, would have failed the test, if it was given effect to, from a date prior to the date on which, the provisions of the enactment on which it was dependent – the Constitution (99th Amendment) Act, became functional. In other words, the NJAC Act, would be stillborn, if the dependent provisions, introduced by way of a constitutional amendment, were yet to come into force. Stated differently, the contravention of the principle contemplated in Rule 66, could not have been overlooked, despite the suspension of the said rule, and the dependent enactment could not come into force, before the depending/controlling provision became operational. The sequence of facts narrated hereinabove reveals, that the dependent and depending provisions, were brought into force simultaneously on the same date, i.e., on 13.4.2015. It is therefore apparent, that the foundation – the Constitution (99th Amendment) Act, was in place, when the superstructure – the NJAC Act, was raised. Thus viewed, we are satisfied, that the procedure adopted by the Parliament at the time of putting to vote the NJAC Bill, or the date on which the NJAC Act received the assent of the President, cannot invalidate the enactment of the NJAC Act, as suggested by the learned counsel for the petitioners.

212. One is also persuaded to accept the contention advanced by the learned Attorney General, that the validity of any proceeding, in Parliament, cannot be assailed on the ground of irregularity of procedure, in view of the protection contemplated through Article 122. Whilst accepting the instant contention, of the learned Attorney General, it is necessary for us to record, that in our considered view, the aforestated irregularity pointed out by the learned counsel, would be completely beyond the purview of challenge, specially because it was not the case of the petitioners, that the Parliament did not have the legislative competence to enact the NJAC Act. For the reasons recorded hereinabove, it is not possible for us to accept, that the NJAC Act was stillborn, or that it was liable to be set aside, for the reasons canvassed by the learned counsel for the petitioners.

213. It is also not possible for us to accept, that while enacting the NJAC Act, it was imperative for the Parliament to follow the procedure contemplated under Article 368. Insofar as the instant aspect of the matter is concerned, the Constitution (99th Amendment) Act, amended Articles 124 and 217 (as also, Articles 127, 128, 222, 224, 224A and 231), and Articles 124A to 124C were inserted in the Constitution. While engineering the above amendments, the procedural requirements contained in Article 368 were admittedly complied with. It is therefore apparent, that no procedural lapse was committed while enacting the Constitution (99th Amendment) Act. Article 124C, authorized the Parliament to enact a legislation in the nature of the NJAC Act. This could validly be done, by following the procedure contemplated for an ordinary legislation. It is not disputed, that such procedure, as was contemplated for enacting an ordinary legislation, had indeed been followed by the Parliament, after the NJAC Bill was tabled in the Parliament, inasmuch as, both Houses of Parliament approved the NJAC Bill by the postulated majority, and thereupon, the same received the assent of the President on 31.12.2014. For the above reasons, the instant additional submission advanced by the petitioners, cannot also be acceded to, and is accordingly declined.

XII.

214. Mr. Mukul Rohatgi, learned Attorney General for India, repulsed the contentions advanced at the hands of the petitioners, that vires of the provisions of the NJAC Act, could be challenged, on the ground of being violative of the “basic structure” of the Constitution.

215. The first and foremost contention advanced, at the hands of the learned Attorney General was, that the constitutional validity of an amendment to the Constitution, could only be assailed on the basis of being violative of the “basic structure” of the Constitution. Additionally it was submitted, that an ordinary legislative enactment (like the NJAC Act), could only be assailed on the grounds of lack of legislative competence and/or the violation of Article 13 of the Constitution. Inasmuch as, the State cannot enact laws, which take away or abridge rights conferred in Part III of the Constitution, or are in violation of any other constitutional provision. It was acknowledged, that law made in contravention of the provisions contained in Part III of the Constitution, or of any other constitutional provision, to the extent of such contravention, would be void. Insofar as the instant aspect of the matter is concerned, the learned Attorney General, placed reliance on the Indira Nehru Gandhi case56, State of Karnataka v. Union of India[88], and particularly to the following observations:

“238. Mr Sinha also contended that an ordinary law cannot go against the basic scheme or the fundamental backbone of the Centre-State relationship as enshrined in the Constitution. He put his argument in this respect in a very ingenious way because he felt difficulty in placing it in a direct manner by saying that an ordinary law cannot violate the basic structure of the Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj Narain such an argument was expressedly rejected by this Court. We may rest content by referring to a passage from the judgment of our learned brother Chandrachud, J., … which runs thus:

“The constitutional amendments may, on the ratio of the Fundamental Rights case be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the Legislature as defined and specified in Chapter I, Part 11 of the Constitution and (2) it must not offend against the provisions of Articles 13(1) and (2) of the Constitution. ‘Basic structure’, by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. ‘The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features’— this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.” The Court’s attention was also drawn to Kuldip Nayar v. Union of India[89], wherein it was recorded:

“107. The basic structure theory imposes limitation on the power of Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by Parliament on the ground of violation of the basic structure of the Constitution is thus not available to the petitioners.” Last of all, learned Attorney General placed reliance on Ashoka Kumar Thakur v. Union of India[90], and referred to the following observations:

“116. For determining whether a particular feature of the Constitution is part of the basic structure or not, it has to be examined in each individual case keeping in mind the scheme of the Constitution, its objects and purpose and the integrity of the Constitution as a fundamental instrument for the country’s governance. It may be noticed that it is not open to challenge the ordinary legislations on the basis of the basic structure principle. State legislation can be challenged on the question whether it is violative of the provisions of the Constitution. But as regards constitutional amendments, if any challenge is made on the basis of basic structure, it has to be examined based on the basic features of the Constitution.” Based on the afore-quoted judgments, it was the assertion of the learned Attorney General, that the validity of a legislative enactment, i.e., an ordinary statute, could not be assailed on the ground, that the same was violative of the “basic structure” of the Constitution. It was therefore asserted, that reliance placed at the hands of the learned counsel, appearing for the petitioners, on the Madras Bar Association case35, was not acceptable in law.

216. The above contention, advanced by the learned Attorney General, has been repulsed. For this, in the first instance, reliance was placed on Public Services Tribunal Bar Association v. State of U.P.[91] In the instant judgment, it is seen from the observations recorded in paragraph 26, that this Court concluded, that the constitutional validity of an ordinary legislation could be challenged on only two grounds, namely, for reasons of lack of legislative competence, and on account of violation of any fundamental rights guaranteed in Part III of the Constitution, or of any other constitutional provision. The above determination supports the contention advanced by the learned Attorney General, who seeks to imply from the above conclusion, that an ordinary legislation cannot be assailed on the ground of it being violative of the “basic structure” of the Constitution. Despite having held as above, in its final conclusion recorded in paragraph 44, it was observed as under:

“44. For the reasons stated above, we find that the State Legislature was competent to enact the impugned provisions. Further, that the provisions enacted are not arbitrary and therefore not violative of Articles 14, 16 or any other provisions of the Constitution. They are not against the basic structure of the Constitution of India either. Accordingly, we do not find any merit in these appeals and the same are dismissed with no order as to costs.” It was pointed out, that it was apparent, that even while determining the validity of an ordinary legislation, namely, the U.P. Public Services (Tribunals) Act, 1976, this Court in the aforestated judgment had examined, whether the provisions of the assailed legislation, were against the “basic structure” of the Constitution, and having done so, it had rejected the contention. Thereby implying, that it was open for an aggrieved party to assail, even the provisions of an ordinary legislation, based on the concept of “basic structure”. In addition to the above, reliance was placed on the Kuldip Nayar case89 (also relied upon by the learned Attorney General), and whilst acknowledging the position recorded in the above judgment, that an ordinary legislation could not be challenged on the ground of violation of the “basic structure” of the Constitution, the Court, in paragraph 108, had observed thus:

“108. As stated above, “residence” is not the constitutional requirement and, therefore, the question of violation of basic structure does not arise.” It was submitted, that in the instant judgment also, this Court had independently examined, whether the legislative enactment in question, namely, the Representation of the People (Amendment) Act 40 of 2003, indeed violated the “basic structure” of the Constitution. And in so determining, concluded that the question of residence was not a constitutional requirement, and therefore, the question of violation of the “basic structure” did not arise. Learned counsel then placed reliance on the M.

Nagaraj case36, wherein it was concluded as under:

“124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.

125. We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate Bench in accordance with law laid down by us in the present case.” 217. It was submitted by Dr. Rajeev Dhavan, learned senior counsel, that this Court in the M. Nagaraj case36, while upholding the constitutional validity of the impugned constitutional amendment, by testing the same by applying the “width test”, extended the aforesaid concept to State legislations. It was accordingly sought to be inferred, that State legislations could be assailed, not only on the basis of the letter and text of constitutional provisions, but also, on the basis of the “width test”, which was akin to a challenge raised to a legislative enactment based on the “basic structure” of the Constitution.

218. Reliance was then placed on Uttar Pradesh Power Corporation Limited v. Rajesh Kumar[92], wherein the issue under reference had been raised, as is apparent from the discussion in paragraph 61, which is extracted below:

“61. Dr. Rajeev Dhavan, learned senior Counsel, supporting the decision of the Division Bench which has declared the Rule as ultra vires, has submitted that if M. Nagaraj is properly read, it does clearly convey that social justice is an overreaching principle of the Constitution like secularism, democracy, reasonableness, social justice, etc. and it emphasises on the equality code and the parameters fixed by the Constitution Bench as the basic purpose is to bring in a state of balance but the said balance is destroyed by Section 3(7) of the 1994 Act and Rule 8-A inasmuch as no exercise has been undertaken during the post M. Nagaraj period. In M. Nagraj, there has been emphasis on interpretation and implementation, width and identity, essence of a right, the equality code and avoidance of reverse discrimination, the nuanced distinction between the adequacy and proportionality, backward class and backwardness, the concept of contest specificity as regards equal justice and efficiency, permissive nature of the provisions and conceptual essence of guided power, the implementation in concrete terms which would not cause violence to the constitutional mandate; and the effect of accelerated seniority and the conditions prevalent for satisfaction of the conditions precedent to invoke the settled principles.”

The matter was adjudicated upon as under:

“86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.” In addition to the above judgment, reliance was also placed on State of Bihar v. Bal Mukund Sah[93], wherein a Constitution Bench of this Court, while examining the power of the State legislature, to legislate on the subject of recruitment of District Judges and other judicial officers, placed reliance on the judgment rendered by this Court in the Kesavananda Bharati case10, which took into consideration five of the declared “basic features” of the Constitution, and examined the subject matter in question, by applying the concept of “separation of powers” between the legislature, the executive and the judiciary, which was accepted as an essential feature of the “basic structure” of the Constitution. Finally, reliance was placed on Nawal Kishore Mishra v. High Court of Judicature of Allahabad[94], wherefrom reliance was placed on conclusion no. 20.11, which is extracted below:

“20.11 Any such attempt by the legislature would be forbidden by the constitutional scheme as that was found on the concept relating to separation of powers between the legislature, the executive and the judiciary as well as the fundamental concept of an independent judiciary as both the concepts having been elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme.” It was therefore the contention of the learned senior counsel, that it was not justified for the respondents to raise the contention, that the validity of the provisions of the NJAC Act could not be tested on the touchstone of the concept of the “basic structure” of the Constitution.

219. It needs to be highlighted, that the issue under reference arose on account of the fact, that learned counsel for the petitioners had placed reliance on the judgment of this Court, in the Madras Bar Association case35, wherein this Court had examined the provisions of the National Tax Tribunal Act, 2005, and whilst doing so, had held the provisions of the above legislative enactment as ultra vires the provisions of the Constitution, on account of their being violative of the “basic structure” of the Constitution. It is therefore quite obvious, that the instant contention was raised, to prevent the learned counsel for the petitioners, from placing reliance on the conclusions recorded in the Madras Bar Association case35.

220. We have given our thoughtful consideration to the above contentions.

The “basic structure” of the Constitution, presently inter alia includes the supremacy of the Constitution, the republican and democratic form of Government, the “federal character” of distribution of powers, secularism, “separation of powers” between the legislature, the executive, and the judiciary, and “independence of the judiciary”. This Court, while carving out each of the above “basic features”, placed reliance on one or more Articles of the Constitution (some times, in conjunction with the preamble of the Constitution). It goes without saying, that for carving out each of the “core” or “basic features/basic structure” of the Constitution, only the provisions of the Constitution are relied upon. It is therefore apparent, that the determination of the “basic features” or the “basic structure”, is made exclusively from the provisions of the Constitution.

Illustratively, we may advert to “independence of the judiciary” which has been chosen because of its having been discussed and debated during the present course of consideration. The deduction of the concept of “independence of the judiciary” emerged from a collective reading of Articles 12, 36 and 50. It is sometimes not possible, to deduce the concerned “basic structure” from a plain reading of the provisions of the Constitution. And at times, such a deduction is made, from the all- important silences hidden within those Articles, for instance, the “primacy of the judiciary” explained in the Samsher Singh case11 the Sankalchand Himatlal Sheth case5 and the Second Judges case, wherein this Court while interpreting Article 74 along with Articles 124, 217 and 222, in conjunction with the intent of the framers of the Constitution gathered from the Constituent Assembly debates, and the conventions adhered to by the political-executive authority in the matter of appointment and transfer of Judges of the higher judiciary, arrived at the conclusion, that “primacy of the judiciary” was a constituent of the “independence of the judiciary” which was a “basic feature” of the Constitution. Therefore, when a plea is advanced raising a challenge on the basis of the violation of the “basic structure” with reference to the “independence of the judiciary”, its rightful understanding is, and has to be, that Articles 12, 36 and 50 on the one hand, and Articles 124, 217 and 222 on the other, (read collectively and harmoniously) constitute the basis thereof. Clearly, the “basic structure” is truly a set of fundamental foundational principles, drawn from the provisions of the Constitution itself. These are not fanciful principles carved out by the judiciary, at its own. Therefore, if the conclusion drawn is, that the “independence of the judiciary” has been transgressed, it is to be understood, that rule/principle collectively emerging from the above provisions, had been breached, or that the above Articles read together, had been transgressed.

221. So far as the issue of examining the constitutional validity of an ordinary legislative enactment is concerned, all the constitutional provisions, on the basis whereof the concerned “basic feature” arises, are available. Breach of a single provision of the Constitution, would be sufficient to render the legislation, ultra vires the Constitution. In such view of the matter, it would be proper to accept a challenge based on constitutional validity, to refer to the particular Article(s), singularly or collectively, which the legislative enactment violates. And in cases where the cumulative effect of a number of Articles of the Constitution is stated to have been violated, reference should be made to all the concerned Articles, including the preamble, if necessary. The issue is purely technical. Yet, if a challenge is raised to an ordinary legislative enactment based on the doctrine of “basic structure”, the same cannot be treated to suffer from a legal infirmity. That would only be a technical flaw. That is how, it will be possible to explain the observations made by this Court, in the judgments relied upon by the learned counsel for the petitioners. Therefore, when a challenge is raised to a legislative enactment based on the cumulative effect of a number of Articles of the Constitution, it is not always necessary to refer to each of the concerned Articles, when a cumulative effect of the said Articles has already been determined, as constituting one of the “basic features” of the Constitution. Reference to the “basic structure”, while dealing with an ordinary legislation, would obviate the necessity of recording the same conclusion, which has already been scripted while interpreting the Article(s) under reference, harmoniously. We would therefore reiterate, that the “basic structure” of the Constitution is inviolable, and as such, the Constitution cannot be amended so as to negate any “basic features” thereof, and so also, if a challenge is raised to an ordinary legislation based on one of the “basic features” of the Constitution, it would be valid to do so. If such a challenge is accepted, on the ground of violation of the “basic structure”, it would mean that the bunch of Articles of the Constitution (including the preamble thereof, wherever relevant), which constitute the particular “basic feature”, had been violated. We must however credit the contention of the learned Attorney General by accepting, that it would be technically sound to refer to the Articles which are violated, when an ordinary legislation is sought to be struck down, as being ultra vires the provisions of the Constitution. But that would not lead to the inference, that to strike down an ordinary legislative enactment, as being violative of the “basic structure”, would be wrong. We therefore find no merit in the contention advanced by the learned Attorney General, but for the technical aspect referred to hereinabove.

XIII.

222. Various challenges were raised to the different provisions of the NJAC Act. First and foremost, a challenge was raised to the manner of selection and appointment of the Chief Justice of India. Section 5(1) of the NJAC Act, it was submitted, provides that the NJAC would recommend the senior most Judge of the Supreme Court, for being appointed as Chief Justice of India, subject to the condition, that he is considered “fit” to hold the office. It was contended, that the Parliament had been authorized by law to regulate the procedure for the appointment of the Chief Justice of India, under Article 124C. It was submitted, that the NJAC should have been allowed to frame regulations, with reference to the manner of selection and appointment of Judges to the higher judiciary including the Chief Justice of India.

223. It was submitted, that the term “fit”, expressed in Section 5(1) of the NJAC Act, had not been elaborately described. And as such, fitness would be determined on the subjective satisfaction of the Members of the NJAC. It was acknowledged, that even though the learned Attorney General had expressed, during the course of hearing, that fitness only meant “…mental and physical fitness…”, a successor Attorney General may view the matter differently, just as the incumbent Attorney General has differed with the concession recorded on behalf of his predecessor (in the Third Judges case), even though they both represent the same ruling political party. And, it was always open to the Parliament to purposefully define the term “fit”, in a manner which could sub-serve the will of the executive. It was pointed out, that even an ordinance could be issued without the necessity, of following the procedure of enacting law, to bring in a person of the choice of the political-executive. It was contended, that the criterion of fitness could be defined or redefined, as per the sweet will of the non-judicial authorities.

224. It was pointed out, that there was a constitutional convention, whereunder the senior most Judge of the Supreme Court, has always been appointed as Chief Justice of India. And that, the aforesaid convention had remained unbroken, even though in some cases the tenure of the appointee had been extremely short, and may not have enured to the advantage of the judiciary, as an institution. Experience had shown, according to learned counsel, that adhering to the practice of appointing the senior most Judge as the Chief Justice of India, had resulted in institutional harmony and collegiality amongst Judges, which was extremely important for the health of the judiciary, and also, for the independence 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.

225. It was suggested, that various ways and means could be devised to supersede senior Judges, to bring in favourites. Past experience had shown, that the executive had abused its authority, when it departed from the above seniority rule in April 1973, by superseding J.M. Shelat, the senior most Judge, and even the next two Judges in the order of seniority after him, namely, K.S. Hegde and A.N. Grover, while appointing 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, according to learned counsel, would cause immense inroads in the decision making process. And could result in, Judges trying to placate and appease the political-executive segment, aimed at personal gains and rewards.