Part-I|Part-II|Part-III|Part-VI|Part-V
226. The submission noticed above, was sought to be illustrated through the following instance. It was contended, that it would be genuine and legitimate, for the Parliament to enact by law, that a person would be considered “fit” for appointment as Chief Justice of India, only if he had a minimum left over tenure of two years. Such an enactment would have a devastating effect, even though it would appear to be innocuously legitimate. It was pointed out, that out of the 41 Chief Justices of India appointed till date, only 12 Chief Justices of India had a tenure of more than two years. If such action, as has been illustrated above, was to be taken at the hands of the Parliament, it was bound to cause discontent to those who had a legitimate expectation to hold the office of Chief Justice of India, under the seniority rule, which had been in place for all this while.
227. It was asserted, that the illustration portrayed in the foregoing paragraph, could be dimensionally altered, by prescribing different parameters, tailor-made for accommodating a favoured individual. It was submitted, that the Parliament should never be allowed the right to create uncertainty, in the matter of selection and appointment of the Chief Justice of India, as the office of the Chief Justice of India was pivotal, and shouldered extremely onerous responsibilities. The exercise of the above authority by the Parliament, it was pointed out, could/would seriously affect the “independence of the judiciary”.
228. In the above context, reference was also made, to the opinion expressed by renowned persons, having vast experience in judicial institutions, effectively bringing out the veracity of the contention advanced. Reference in this regard was made to the observations of M.C.
Chagla, in his book, “Roses in December – An Autobiography”, wherein he described the impact of supersession on Judges, who by virtue of the existing convention, were in line to be the Chief Justice of India, but were overlooked by preferring a junior. The position was expressed thus:
The effect of these supersessions was most deleterious on the judges of the Supreme Court who were in the line of succession to the Chief Justiceship.
Each eyed the other with suspicion and tried to outdo him in proclaiming his loyalty to the Government either in their judgments or even on public platforms. If a judge owes his promotion to the favour of Government and not to his own intrinsic merit, then the independence of the judiciary is inevitably lost.” H.R. Khanna, J., (in his book – “Neither Roses Nor Thorns”) expressed the position as under:
“A couple of days before the pronouncement of judgment the atmosphere of tension got aggravated because all kinds of rumours started circulating and the name of the successor of the Chief Justice was not being announced.
The announcement came on the radio after the judgment was pronounced and it resulted in the supersession of the three senior judges.
I felt extremely perturbed because in my opinion it was bound to generate fear complex or hopes of reward and thus undermine the independence of the judiciary. Immediately on hearing the news I went to the residence of Justice Hegde. I found him somewhat tense, as anyone in that situation would be, but he was otherwise calm. He told me that he, as well as Justice Shelat and Justice Grover who had been superseded, were tendering their resignations.
After the resignation of Shelat, Hegde and Grover, the court acquired a new complexion and I found perceptible change in the atmosphere. Many things happened which made one unhappy and I thought the best course was to get engrossed in the disposal of judicial work. The judicial work had always an appeal for me and I found the exclusive attention paid to it to be rewarding as well as absorbing.
One of the new trends was the change in the approach of the court with a view to give tilt in favour of upholding the orders of the government.
Under the cover of highsounding words like social justice the court passed orders, the effect of which was to unsettle settled principles and dilute or undo the dicta laid down in the earlier cases.” In this behalf, reference was also made to the observations of H.M. Seervai (in “Constitutional Law of India – A Critical Commentary”), which are as follows:
“In Sankalchand Sheth’s Case, Bhagwati J. after explaining why the Chief Justice of India had to be consulted before a judge could be transferred to the High Court of another State, said: “I think it was Mr. Justice Jackson who said ‘Judges are more often bribed by their ambition and loyalty rather than by money’… In my submission in quoting the above passage Bhagwati J.
failed to realize that his only loyalty was to himself for, as will appear later, he was disloyal, inter alia, to his Chief, Chandrachud C.J. in order to fulfil his own ambition to be the Chief Justice of India as soon as possible. That Bhagwati J. was bribed by that ambition will be clear when I deal with his treatment in the Judges’ Case of Chief Justice Chandrachud’s part in the case of Justice Kumar and Singh C.J. It will interest the reader to know that the word “ambition” is derived from “ambit, canvass for votes.”,… Whether Bhagwati J. canvassed the votes of one or more of his brother judges that they should disbelieve Chief Justice Chandrachud’s affidavit in reply to the affidavit of Singh C.J. is not known; but had he succeeded in persuading one or more of his brother judges to disbelieve that affidavit, Chandrachud C.J. would have resigned,and Justice Bhagwati’s ambition to be the next Chief Justice of India, would, in all probability, have been realised. However, his attempt to blacken the character and conduct of Chandrachud C.J. proved futile because 4 of his brother judges accepted and acted upon the Chief Justice’s affidavit and held that the transfer of Singh C.J. to Madras was valid.” 229. It was submitted, that leaving the issue of determination of fitness, with the Parliament, was liable to fan ambitions of Judges, and was likely to make the Judges loyal, to those who could satisfy their ambitions. It was therefore emphasized, that Section 5(1), which created an ambiguity, in the matter of appointment to the office of Chief Justice of India, had the trappings of being abused to imperil “independence of the judiciary”, and therefore, could not be permitted to remain on the statute-book, irrespective of the assurance of the Attorney General, that for the purpose in hand, the term “fit” meant “… mental and physical fitness…”.
230. It was also contended, that while recommending names for appointment of a Judge to the Supreme Court, the concerned Judges’ seniority in the cadre of Judges (of High Courts), was liable to be taken as the primary consideration, coupled with his ability and merit. It was submitted, that the instant mandate contained in the first proviso under Section 5(2) of the NJAC Act, clearly breached the convention of regional representation in the Supreme Court. Since the “federal character”, of distribution of powers, was also one of the recognized “basic structures”, it was submitted, that regional representation could not have been overlooked.
231. Besides the above, the Court’s attention was invited to the second proviso under Section 5(2), which forbids the NJAC from making a favourable recommendation, if any two Members thereof, opposed the nomination of a candidate. It was contended, that placing the power of veto, in the hands of two Members of the NJAC, would violate the recommendatory power expressed in Article 124B. In this behalf, it was contended, that the above position would entitle two “eminent persons”-lay persons (if the submission advanced by the learned Attorney General is to be accepted), to defeat a unanimous recommendation of the Chief Justice of India and the two senior most Judges of the Supreme Court. And would also, negate the primacy vested in the judiciary, in the matter of appointment of Judges, to the higher judiciary.
232. It was submitted, that the above power of veto exercisable by two lay persons, or alternatively one lay person, in conjunction with the Union Minister in charge of Law and Justice, would cause serious inroads into the “independence of the judiciary”. Most importantly, it was contended, that neither the impugned constitutional amendment, nor the provisions of the NJAC Act, provided for any quorum for holding meetings of the NJAC. And as such, quite contrary to the contentions advanced at the hands of the learned Attorney General, a meeting of the NJAC could not be held, without the presence of the all Members of the NJAC. In order to support his above contention, he illustratively placed reliance on the Constitution (122nd Amendment) Bill, 2014 (brought before the Parliament, by the same ruling political party, which had amended the Constitution, by tabling the Constitution (121st Amendment) Bill, 2014. The objective sought to be achieved under the above Bill was, to insert a new Article 279A. The new Article 279A created the Goods and Services Tax Council. Sub-Article (7) of Article 279A postulates, that “… One-half of the total number of Members of the Goods and Services Tax Council…” would constitute the quorum for its meetings. And furthermore, that “… Every decision of the Goods and Services Tax Council would be taken at a meeting, by a majority of not less than three-fourths of the weighted votes of the members present and voting …”. Having laid down the above parameters, in the Bill which followed the Bill, that led to the promulgation of the impugned Constitution (99th Amendment) Act, it was submitted, that the omission of a quorum for the functioning of the NJAC, and the omission of quantifying the strength required for valid decision making, vitiated the provision itself.
233. The contention advanced at the hands of the learned counsel for the petitioners, as has been noticed in the foregoing paragraph, does not require any detailed examination, as the existing declared legal position, is clear and unambiguous. In this behalf, it may be recorded, that in case a statutory provision vests a decision making authority in a body of persons without stipulating the minimum quorum, then a valid meeting can be held only if the majority of all the members of the body, deliberate in the process of decision making. On the same analogy therefore, a valid decision by such a body will necessitate a decision by a simple majority of all the members of the body. If the aforesaid principles are made applicable to the NJAC, the natural outcome would be, that a valid meeting of the NJAC must have at least four Members participating in a six-Member NJAC. Likewise, a valid decision of the NJAC can only be taken (in the absence of any prescribed prerequisite), by a simple majority, namely, by at least four Members of the NJAC (three Members on either side, would not make up the simple majority). We are satisfied, that the provisions of the NJAC Act which mandate, that the NJAC would not make a recommendation in favour of a person for appointment as a Judge of the High Court or of the Supreme Court, if any two Members thereof did not agree with such recommendation, cannot be considered to be in violation of the rule/principle expressed above. As a matter of fact, the NJAC Act expressly provides, that if any two Members thereof did not agree to any particular proposal, the NJAC would not make a recommendation. There is nothing in law, to consider or treat the aforesaid stipulations in the second proviso to Section 5(2) and Section 6(6) of the NJAC Act, as unacceptable. The instant submission advanced at the hands of the learned counsel for the petitioners is therefore liable to be rejected, and is accordingly rejected.
234. We have also given our thoughtful consideration to the other contentions advanced at the hands of the learned counsel for the petitioners, with reference to Section 5 of the NJAC Act. We are of the view, that it was not within the realm of Parliament, to subject the process of selection of Judges to the Supreme Court, as well as, to the position of Chief Justice of India, in uncertain and ambiguous terms. It was imperative to express, the clear parameters of the term “fit”, with reference to the senior most Judge of the Supreme Court under Section 5 of the NJAC Act. We are satisfied, that the term “fit” can be tailor-made, to choose a candidate far below in the seniority list. This has been adequately demonstrated by the learned counsel for the petitioners.
235. The clear stance adopted by the learned Attorney General, that the term “fit” expressed in Section 5(1) of the NJAC Act, had been accepted by the Government, to mean and include, only “…mental and physical fitness…”, to discharge the onerous responsibilities of the office of Chief Justice of India, and nothing more. Such a statement cannot, and does not, bind successor Governments or the posterity for all times to come. The present wisdom, cannot bind future generations. And, it was exactly for this reason, that the respondents could resile from the statement made by the then Attorney General, before the Bench hearing the Third Judges case, that the Union of India was not seeking a review or reconsideration of the judgment in the Second Judges case (that, it had accepted to treat as binding, the decision in the Second Judges case). And yet, during the course of hearing of the present case, the Union of India did seek a reconsideration of the Second Judges case.
236. Insofar as the challenge to Section 5(1) of the NJAC Act is concerned, we are satisfied to affirm and crystalise the position adopted by the Attorney General, namely, that the term “fit” used in Section 5(1) would be read to mean only “… mental and physical fitness …”. If that is done, it would be legal and constitutional. However, if the position adopted breached the “independence of the judiciary”, in the manner suggested by the learned counsel for the petitioners, the same would be assailable in law.
237. We will now endeavour, to address the second submission with reference to Section 5 of the NJAC Act. Undoubtedly, postulating “seniority” in the first proviso under Section 5(2) of the NJAC Act, is a laudable objective. And if seniority is to be supplemented and enmeshed with “ability and merit”, the most ideal approach, can be seen to have been adopted. But what appears on paper, may sometimes not be correct in practice. Experience shows, that Judges to every High Court are appointed in batches, each batch may have just two or three appointees, or may sometimes have even ten or more individuals. A group of Judges appointed to one High Court, will be separated from the lot of Judges appointed to another High Court, by just a few days, or by just a few weeks, and sometimes by just a few months. In the all India seniority of Judges, the complete batch appointed on the same day, to one High Court, will be placed in a running serial order (in seniority) above the other Judges appointed to another High Court, just after a few days or weeks or months. Judges appointed later, will have to be placed en masse below the earlier batch, in seniority. If appointment of Judges to the Supreme Court, is to be made on the basis of seniority (as a primary consideration), then the earlier batch would have priority in the matter of elevation to the Supreme Court.
And hypothetically, if the batch had ten Judges (appointed together to a particular High Court), and if all of them have proved themselves able and meritorious as High Court Judges, they will have to be appointed one after the other, when vacancies of Judges arise in the Supreme Court. In that view of the matter, Judges from the same High Court would be appointed to the Supreme Court, till the entire batch is exhausted. Judges from the same High Court, in the above situation where the batch comprised of ten Judges, will occupy a third of the total Judge positions in the Supreme Court.
That would be clearly unacceptable, for the reasons indicated by the learned counsel for the petitioners. We also find the position, unacceptable in law.
238. Therefore, insofar as Section 5(2) of the NJAC Act is concerned, there cannot be any doubt, that consideration of Judges on the basis of their seniority, by treating the same as a primary consideration, would adversely affect the present convention of ensuring representation from as many State High Courts, as is possible. The convention in vogue is, to maintain regional representation. For the reasons recorded above, the first proviso under Section 5(2) is liable to be struck down and set aside.
Section 6(1) applies to appointment of a Judge of a High Court as Chief Justice of a High Court. It has the same seniority connotation as has been expressed hereinabove, with reference to the first proviso under Section 5(2). For exactly the same reasons as have been noticed above, based on seniority (as a primary consideration), ten High Courts in different States could have Chief Justices drawn from one parent High Court. Section 6(1) of the NJAC Act was therefore liable to meet the same fate, as the first proviso under Section 5(2).
239. We are also of the considered view, that the power of veto vested in any two Members of the NJAC, would adversely impact primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary (as also their transfer). Details in this behalf have already been recorded in part VIII hereinabove. Section 6(6) of the NJAC Act, has the same connotation as the second proviso under Section 5(2), and Section 6(6) of the NJAC Act would therefore meet the same fate, as Section 5(2). For the reasons recorded hereinabove, we are satisfied, that Sections 5(2) and 6(6) of the NJAC Act also breach the “basic structure” of the Constitution, with reference to the “independence of the judiciary” and the “separation of powers”. Sections 5(2) and 6(6), in our considered view, are therefore, also liable to be declared as ultra vires the Constitution.
240. A challenge was also raised by the learned counsel for the petitioners to Section 7 of the NJAC Act. It was asserted, that on the recommendation made by the NJAC, the President was obliged to appoint the individual recommended as a Judge of the High Court under Article 217(1).
It was submitted, that the above position was identical to the position contemplated under Article 124(2), which also provides, that a candidate recommended by the NJAC would be appointed by the President, as a Judge of the Supreme Court. It was submitted, that neither Article 124(2) nor Article 217(1) postulate, that the President could require the NJAC to reconsider, the recommendation made by the NJAC, as has been provided for under the first proviso to Section 7 of the NJAC Act. It was accordingly the contention of the learned counsel for the petitioners, that the first proviso to Section 7 was ultra vires the provisions of Articles 124(2) and 217(1), by providing for reconsideration, and that, the same was beyond the pale and scope of the provisions referred to above.
241. Having considered the submission advanced by the learned counsel for the petitioners in the foregoing paragraph, it is not possible for us to accept that Section 7 of the NJAC Act, by providing that the President could require the NJAC to reconsider a recommendation made by it, would in any manner violate Articles 124(2) and 217(1) (which mandate, that Judges would be appointed by the President on the recommendation of the NJAC). It would be improper to infer, that the action of the President, requiring the NJAC to reconsider its proposal, amounted to rejecting the proposal made by the NJAC. For, if the NJAC was to reiterate the proposal made earlier, the President even in terms of Section 7, was bound to act in consonance therewith (as is apparent from the second proviso under Section 7 of the NJAC Act). In our considered view, the instant submission advanced at the hands of the petitioners deserves to be rejected, and is accordingly rejected.
242. Learned counsel for the petitioners had also assailed the validity of Section 8 of the NJAC Act, which provides for the Secretary to the Government of India, in the Department of Justice, to be the convener of the NJAC. It was contended, that the function of a convener, with reference to the NJAC, would entail the responsibility of inter alia preparing the agenda for the meetings of the NJAC, namely, to decide the names of the individuals to be taken up for consideration, in the next meeting. This would also include, the decision to ignore names from being taken up for consideration in the next meeting. He may include or exclude names from consideration, at the behest of his superior. It would also be the responsibility of the convener, to compile data made available from various quarters, as contemplated under the NJAC Act, and in addition thereto, as may be required by the Union Minister in charge of Law and Justice, and the Chief Justice of India. It was submitted, that such an onerous responsibility, could not be left to the executive alone, because material could be selectively placed by the convener before the NJAC, in deference to the desire of his superior – the Union Minister in charge of Law and Justice, by excluding favourable material, with reference to a candidate considered unsuitable by the executive, and by excluding unfavourable material, with reference to a candidate who carried favour with the executive.
243. It was additionally submitted, that it was imperative to exclude all executive participation in the proceedings of the NJAC for two reasons.
Firstly, the executive was the largest individual litigant, in matters pending before the higher judiciary, and therefore, cannot have any discretionary role in the process of selection and appointment of Judges to the higher judiciary (in the manner expressed in the preceding paragraph).
And secondly, the same would undermine the concepts of “separation of powers” and “independence of the judiciary”, whereunder the judiciary has to be shielded from any possible interference, either from the executive or the legislature.
244. We have given our thoughtful consideration to the above two submissions, dealt with in the preceding two paragraphs. We have already concluded earlier, that the participation of the Union Minister in charge of Law and Justice, as a Member of the NJAC, as contemplated under Article 124A(1), in the matter of appointment of Judges to the higher judiciary, would breach the concepts of “separation of powers” and the “independence of the judiciary”, which are both undisputedly components of the “basic structure” of the Constitution of India. For exactly the same reasons, we are of the view, that Section 8 of the NJAC Act which provides, that the Secretary to the Government of India, in the Department of Justice, would be the convener of the NJAC, is not sustainable in law. In a body like the NJAC, the administrative functioning cannot be under executive or legislative control. The only remaining alternative, is to vest the administrative control of such a body, with the judiciary. For the above reasons, Section 8 of the NJAC Act would likewise be unsustainable in law.
245. Examined from the legal perspective, it was unnecessary for us to examine the individual provisions of the NJAC Act. Once the constitutional validity of Article 124A(1) is held to be unsustainable, the impugned constitutional amendment, as well as, the NJAC Act, would be rendered a nullity. The necessity of dealing with some of the issues was prompted by the consideration, that broad parameters should be expressed.
V. THE EFFECT OF STRIKING DOWN THE IMPUGNED CONSTITUTIONAL AMENDMENT:
246. Would the amended provisions of the Constitution revive, if the impugned constitutional amendment was to be set aside, as being violative of the “basic structure” of the Constitution? It would be relevant to mention, that the instant issue was not adverted to by the learned counsel for the petitioners, possibly on the assumption, that if on a consideration of the present controversy, this Court would strike down the Constitution (99th Amendment) Act, then Articles 124, 127, 128, 217, 222, 224, 224A and 231, as they existed prior to the impugned amendment, would revive. And on such revival, the judgments rendered in the Second and Third Judges cases, would again regulate selections and appointments, as also, transfer of Judges of the higher judiciary.
247. A serious objection to the aforesaid assumption, was raised on behalf of the respondents by the Solicitor General, who contended, that the striking down of the impugned constitutional amendment, would not result in the revival of the provisions, which had been amended by the Parliament. In order to canvass the aforesaid proposition, reliance was placed on Article 367, which postulates, that the provisions of the General Clauses Act, 1897 had to be applied, for an interpretation of the Articles of the Constitution, in the same manner, as the provisions of the General Clauses Act, are applicable for an interpretation of ordinary legislation. Insofar as the instant submission is concerned, we have no hesitation in affirming, that unless the context requires otherwise, the provisions of the General Clauses Act, can be applied, for a rightful and effective understanding of the provisions of the Constitution.
248. Founded on the submission noticed in the foregoing paragraph, the Solicitor General placed reliance on Sections 6, 7 and 8 of the General Clauses Act, which are being extracted hereunder:
“6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not– (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
7. Revival of repealed enactments.-(1) In any Central Act or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.
(2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
8. Construction of references to repealed enactments.-(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.” 249. Relying on Section 6, it was submitted, that the setting aside of the impugned constitutional amendment, should be considered as setting aside of a repealing provision. And as such, the acceptance of the claim of the petitioners, would not lead to the automatic revival of the provisions as they existed prior to the amendment. Relying on Section 7 it was asserted, that if a repealed provision had to be revived, it was imperative for the legislature to express such intendment, and unless so expressly indicated, the enactment wholly or partly repealed, would not stand revived. Finally relying on Section 8 of the General Clauses Act, it was submitted, that when an existing provision was repealed and another provision was re- enacted as its replacement, no further reference could be made to the repealed enactment, and for all intents and purposes, reference must mandatorily be made, only to the re-enacted provision. Relying on the principles underlying Sections 6, 7 and 8, it was submitted, that even if the prayers made by the petitioners were to be accepted, and the impugned constitutional amendment was to be set aside, the same would not result in the revival of the unamended provisions.
250. Learned Solicitor General also referred to a number of judgments rendered by this Court, to support the inference drawn by him. We shall therefore, in the first instance, examine the judgments relied upon:
(i) Reliance in the first instance was placed on the Ameer-un-Nissa Begum case70. Our pointed attention was drawn to the observations recorded in paragraph 24 thereof, which is reproduced hereunder:
“24 The result will be the same even if we proceed on the footing that the various ‘Firmans’ issued by the Nizam were in the nature of legislative enactments determining private rights somewhat on the analogy of private Acts of Parliament. We may assume that the ‘Firman’ of 26-6-1947 was repealed by the ‘Firman’ of 24-2-1949, and the latter ‘Firman’ in its turn was repealed by that of 7-9-1949. Under the English Common Law when a repealing enactment was repealed by another statute, the repeal of the second Act revived the former Act ‘ab initio’. But this rule does not apply to repealing Acts passed since 1850 and now if an Act repealing a former Act is itself repealed, the last repeal does not revive the Act before repealed unless words are added reviving it: vide Maxwell’s Interpretation of Statutes, p. 402 (10th Edition).
It may indeed be said that the present rule is the result of the statutory provisions introduced by the Interpretation Act of 1889 and as we are not bound by the provisions of any English statute, we can still apply the English Common Law rule if it appears to us to be reasonable and proper.
But even according to the Common Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing enactment manifests an intention to the contrary….” Having given our thoughtful consideration to the conclusions recorded in the judgment relied upon, we are satisfied, that the same does not support the cause of the respondents, because in the judgment relied upon, it was clearly concluded, that under the English Common Law when a repealing enactment was repealed by another law, the repeal of the second enactment would revive the former “ab initio”. In the above view of the matter, based exclusively on the English Common Law, on the setting aside of the impugned constitutional amendment, the unamended provision, would stand revived. It also needs to be noticed, that the final position to the contrary, expressed in the judgment relied upon, emerged as a consequence of subsequent legislative enactment, made in England, which is inapplicable to India. Having taken the above subsequent amendments into consideration, it was concluded, that the repeal of the repealing enactment would not revive the original enactment, except “… if the second repealing enactment manifests an intention to the contrary. …” In other words, the implication would be, that the original Act would revive, but for an intention to the contrary expressed in the repealing enactment. It is however needs to be kept in mind, that the above judgment, did not deal with an exigency where the provision enacted by the legislation had been set aside by a Court order.
(ii) Reliance was then placed on the Firm A.T.B. Mehtab Majid & Co.
case71, and more particularly, the conclusions drawn in paragraph 20 thereof. A perusal of the above judgment would reveal, that this Court had recorded its conclusions, without relying on either the English Common Law, or the provisions of the General Clauses Act, which constituted the foundation of the contentions advanced at the hands of the respondents, before us. We are therefore satisfied, that the conclusions drawn in the instant judgment, would not be applicable, to arrive at a conclusion one way or the other, insofar as the present controversy is concerned.
(iii) Reference was thereafter made to the B.N. Tewari case72, and our attention was drawn to the following observations:
“6. We shall first consider the question whether the carry forward rule of 1952 still exists. It is true that in Devadasan’s case[1963] INSC 182; , AIR 1964 SC 179, the final order of this Court was in these terms:- “In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid.”
That however does not mean that this Court held that the 1952-rule must be deemed to exist because this Court said that the carry forward rule as modified in 1955 was declared invalid. The carry forward rule of 1952 was substituted by the carry forward rule of 1955. On this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955. Thus by promulgating the new carry forward rule in 1955, the Government of India itself cancelled the carry forward rule of 1952. When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive. We are therefore of opinion that after the judgment of this Court in Devadasan’s case [1963] INSC 182; AIR 1964 SC 179 there is no carry forward rule at all, for the carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955 in its place. But it must be made clear that the judgment of this Court in Devadasan’s case [1963] INSC 182; AIR 1964 SC 179, is only concerned with that part of the instructions of the Government of India which deal with the carry forward rule; it does not in any way touch the reservation for scheduled castes and scheduled tribes at 12-1/2% and 5%, respectively; nor does it touch the filling up of schedule tribes vacancies by scheduled caste candidates where sufficient number of scheduled tribes are not available in a particular year or vice versa. The effect of the judgment in Devadasan’s case, AIR 1964 SC 179, therefore is only to strike down the carry forward rule and it does not affect the year to year reservation for scheduled castes and scheduled tribes or filling up of scheduled tribe vacancies by a member of scheduled castes in a particular year if a sufficient number of scheduled tribe candidates are not available in that year of vice versa. This adjustment in the reservation between scheduled castes and tribes has nothing to do with the carry forward rule from year to year either of 1952 which had ceased to exist or of 1955 which was struck down by this Court.
In this view of the matter it is unnecessary to consider whether the carry forward rule of 1952 would be unconstitutional, for that rule no longer exists.” The non-revival of the carry-forward-rule of 1952, which was sought to be modified in 1955, determined in the instant judgment, was not on account of the submissions, that have been advanced before us in the present controversy. But, on account of the fact, that the Government of India had itself cancelled the carry-forward-rule of 1952. Moreover, the issue under consideration in the above judgment, was not akin to the controversy in hand. As such, we are satisfied that reliance on the B.N. Tewari case72 is clearly misplaced.
(iv) Relying on the Koteswar Vittal Kamath case73, learned Solicitor General placed reliance on the following observations recorded therein:
“8. On that analogy, it was argued that, if we hold that the Prohibition Order of 1950, was invalid, the previous Prohibition Order of 1119, cannot be held to be revived. This argument ignores the distinction between supersession of a rule, and substitution of a rule. In the case of Firm A.
T. B. Mehtab Majid & Co. (supra), the new Rule 16 was substituted for the old Rule 16. The process of substitution consists of two steps. First, the old rule it made to cease to exist and, next, the new rule is brought into existence in its place. Even if the new rule be invalid, the first step of the old rule ceasing to exist comes into effect, and it was for this reason that the court held that, on declaration of the new rule as invalid, the old rule could not be held to be revived. In the case before us, there was no substitution of the Prohibition Order of 1950, for the Prohibition Order of 1119. The Prohibition Order of 1950, was promulgated independently of the Prohibition Order of 1119 and because of the provisions of law it would have had the effect of making the Prohibition Order of 1119 inoperative if it had been a valid Order. If the Prohibition Order of 1950 is found to be void ab initio, it could never make the Prohibition Order of 1119 inoperative. Consequently, on the 30th March, 1950, either the Prohibition Order of 1119 or the Prohibition Order of 1950 must be held to have been in force in Travancore-Cochin, so that the provisions of Section 73(2) of Act 5 of 1950 would apply to that Order and would continue it in force. This further continuance after Act 5 of 1950, of course, depends on the validity of Section 3 of Act 5 of 1950, because Section 73(2) purported to continue the Order in force under that section, so that we proceed to examine the argument relating to the validity of Section 3 of Act 5 of 1950.” A perusal of the conclusion drawn hereinabove, apparently supports the contention advanced at the hands of the respondents, that if the amendment to an erstwhile legislative enactment, envisages the substitution of an existing provision, the process of substitution must be deemed to comprise of two steps. The first step would envisage, that the old rule would cease to exist, and the second step would envisage, that the new rule had taken the place of the old rule. And as such, even if the new rule was to be declared as invalid, the first step depicted above, namely, that the old rule has ceased to exist, would remain unaltered. Thereby, leading to the inference, that in the present controversy, even if the impugned constitutional amendment was to be set aside, the same would not lead to the revival of the unamended Articles 124, 127, 128, 217, 222, 224, 224A and 231. In our considered view, the observations made in the judgment leading to the submissions and inferences recorded above, are not applicable to the present case. The highlighted portion of the judgment extracted above, would apply to the present controversy. In the present case the impugned constitutional amendment was promulgated independently of the original provisions of the Constitution. In fact, the amended provisions introduce a new scheme of selection and appointment of Judges to the higher judiciary, directionally different from the prevailing position.
And therefore, the original provisions of the Constitution would have been made inoperative, only if the amended provisions were valid. Consequently, if reliance must be placed on the above judgment, the conclusion would be against the proposition canvassed. It would however be relevant to mention, that the instant judgment, as also, some of the other judgments relied upon by the learned counsel for the respondents, have been explained and distinguished in the State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd.76, which will be dealt with chronologically hereinafter.
(v) The learned Solicitor General then placed reliance on, the Mulchand Odhavji case74, and invited our attention to the observations recorded in paragraph 8 thereof. Reliance was even placed on, the Mohd. Shaukat Hussain Khan case75, and in particular, the observations recorded in paragraph 11 thereof. We are satisfied, that the instant two judgments are irrelevant for the determination of the pointed contention, advanced at the hands of the learned counsel for the respondents, as the subject matter of the controversy dealt with in the above cases, was totally different from the one in hand.
(vi) Reference was then made to the Central Provinces Manganese Ore Co.
Ltd. case76, and our attention was drawn to the following observations recorded therein:
“18. We do not think that the word substitution necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. Indeed, the natural meaning of the word “substitution” is to indicate that the process cannot be split up into two pieces like this. If the process described as substitution fails, it is totally ineffective so as to leave intact what was sought to be displaced. That seems to us to be the ordinary and natural meaning of the words “shall be substituted”. This part could not become effective without the assent of the Governor-General. The State Governor’s assent was insufficient. It could not be inferred that, what was intended was that, in case the substitution failed or proved ineffective, some repeal, not mentioned at all, was brought about and remained effective so as to create what may be described as a vacuum in the statutory law on the subject- matter. Primarily, the question is one of gathering, the intent from the use of words in the enacting provision seen in the light of the procedure gone through. Here, no intention to repeal, without a substitution, is deducible. In other words, there could be no repeal if substitution failed.
The two were a part and parcel of a single indivisible process and not bits of a disjointed operation.
19. Looking at the actual procedure which was gone through, we find that, even if the Governor had assented to the substitution, yet, the amendment would have been effective, as a piece of valid legislation, only when the assent of the Governor-General had also been accorded to it. It could not be said that what the Legislature intended or what the Governor had assented to consisted of a separate repeal and a fresh enactment. The two results were to follow from one and the same effective Legislative process.
The process had, therefore, to be so viewed and interpreted.
20. Some help was sought to be derived by the citation of B.N. Tewari v. Union of India [1965]2 SCR 421 and the case of Firm A. T. B. Mehtab Majid and Co. v. State of Madras. Tewari’s case related to the substitution of what was described as the “carry forward” rule contained in the departmental instruction which was sought to be substituted by a modified instruction declared invalid by the court. It was held that when the rule contained in the modified instruction of 1955 was struck down the rule contained in a displaced instruction did not survive. Indeed, one of the arguments there was that the original “carry forward” rule of 1952 was itself void for the very reason for which the “carry forward” rule, contained in the modified instructions of 1955, had been struck down. Even the analogy of a merger of an order into another which was meant to be its substitute could apply only where there is a valid substitution. Such a doctrine applies in a case where a judgment of a subordinate court merges in the judgment of the appellate court or an order reviewed merges in the order by which the review is granted. Its application to a legislative process may be possible only in cases of valid substitution. The legislative intent and its effect is gathered, inter alia, from the nature of the action of the authority which functions. It is easier to impute an intention to an executive rule-making authority to repeal altogether in any event what is sought to be displaced by another rule. The cases cited were of executive instructions. We do not think that they could serve as useful guides in interpreting a Legislative provision sought to be amended by a fresh enactment. The procedure for enactment is far more elaborate and formal. A repeal and a displacement of a Legislative provision by a fresh enactment can only take place after that elaborate procedure has been followed in toto. In the case of any rule contained in an executive instruction, on the other hand, the repeal as well as displacement are capable of being achieved and inferred from a bare issue of fresh instructions on the same subject.
21. In Mehtab Majid & Co.’s case a statutory role was held not to have revived after it was sought to be substituted by another held to be invalid. This was also a case in which no elaborate legislative procedure was prescribed for a repeal as it is in the case of statutory enactment of statutes by legislatures. In every case, it is a question of intention to be gathered from the language as well as the acts of the rule-making or legislating authority in the context in which these occur.
22. A principle of construction contained now in a statutory provision made in England since 1850 has been:
Where an Act passed after 1850 repeals wholly or partially any former enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into operation. (See: Halsbury’s Laws of England, Third Edn. Vol. 36, P.
474; Craies on “Statute Law”, 6th Edn. p.386).
Although, there is no corresponding provision in our General Clauses Acts, yet, it shows that the mere use of words denoting a substitution does not ipso facto or automatically repeal a provision until the provision, which is to take its place becomes legally effective. We have as explained above, reached the same conclusion by considering the ordinary and natural meaning of the term “substitution” when it occurs without anything else in the language used or in the context of it or in the surrounding facts and circumstances to lead to another inference. It means, ordinarily, that unless the substituted provision is there to take its place, in law and in effect, the pre-existing provision continues. There is no question of a “revival”.” It would be relevant to mention, that the learned Solicitor General conceded, that the position concluded in the instant judgment, would defeat the stance adopted by him. We endorse the above view. The position which is further detrimental to the contention advanced on behalf of the respondents is, that in recording the above conclusions, this Court in the above cited case, had taken into consideration, the judgments in the Firm A.T.B. Mehtab Majid case71, the B.N. Tewari case72, the Koteswar Vittal Kamath case73, and the Mulchand Odhavji case74. The earlier judgments relied upon by the learned counsel for the respondents would, therefore, be clearly inapplicable to the controversy in hand. In this view of the matter, there is hardly any substance in the pointed issue canvassed on behalf of the respondents.
(vii) The learned Solicitor General, then placed reliance on Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India[95], and invited our attention to the following observations recorded therein:
“107. In the cases before us we do not have rules made by two different authorities as in Mulchand case (1971) 3 SCC 53 and no intention on the part of the Central Government to keep alive the exemption in the event of the subsequent notification being struck down is also established. The decision of this Court in Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. [1968] INSC 312; (1969) 3 SCR 40) does not also support the Petitioners. In that case again the question was whether a subsequent legislation which was passed by a legislature without competence would have the effect of reviving an earlier rule which it professed to supersede. This case again belongs to the category of Mohd. Shaukat Hussain Khan case[1974] INSC 116; , AIR 1974 SC 1480. It may also be noticed that in Koteswar Vittal Kamath case[1968] INSC 312; , AIR 1969 SC 504, the ruling in the case of Firm A.T.B. Mehtab Majid and Co. [1962] INSC 330; AIR 1963 SC 928 has been distinguished. The case of State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd., [1976] INSC 270; AIR 1977 SC 879 is again distinguishable. In this case the whole legislative process termed substitution was abortive, because, it did not take effect for want of the assent of the Governor- General and the Court distinguished that case from Tiwari case, AIR 1965 SC 1430. We may also state that the legal effect on an earlier law when the later law enacted in its place is declared invalid does not depend merely upon the use of words like, ‘substitution’, or ‘supersession’. It depends upon the totality of circumstances and the context in which they are used.” What needs to be noticed from the extract reproduced above is, that this Court in the above judgment clearly concluded, that the legal effect on an earlier law, when the later law enacted in its place was declared invalid, did not depend merely upon the use of the words like ‘substitution’ or, ‘supersession’. And further, that it would depend on the totality of the circumstances, and the context, in which the provision was couched. If the contention advanced by the learned Solicitor General is accepted, it would lead to a constitutional breakdown. The tremors of such a situation are already being felt. The retiring Judges of the higher judiciary, are not being substituted by fresh appointments. The above judgment, in our considered view, does not support the submission being canvassed, because on consideration of the “…totality of circumstances and the context…” the instant contention is just not acceptable. We are therefore of the considered view, that even the instant judgment can be of no avail to the respondents, insofar as the present controversy is concerned.
(viii) Reliance was next placed on the judgment rendered by this Court in Bhagat Ram Sharma v. Union of India[96]. The instant judgment was relied upon only to show, that an enactment purported to be an amendment, has the same qualitative effect as a repeal of the existing statutory provision. The aforesaid inference was drawn by placing reliance on Southerland’s Statutory Construction, 3rd Edition, Volume I. Since there is no quarrel on the instant proposition, it is not necessary to record anything further. It however needs to be noticed, that we are not confronted with the effect of an amendment or a repeal. We are dealing with the effect of the striking down of a constitutional amendment and a legislative enactment, through a process of judicial review.
(ix) Reliance was then placed on State of Rajasthan v. Mangilal Pindwal[97], and particularly on the observations/conclusions recorded in paragraph 12 thereof. All that needs to be stated is, that the issue decided in the above judgment, does not arise for consideration in the present case, and accordingly, the conclusions drawn therein cannot be made applicable to the present case.
(x) Next in order, reliance was placed on the India Tobacco Co. Ltd.
case77, and our attention was invited to the following observations recorded therein:
“15. The general rule of construction is that the repeal of a repealing Act does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a “different intention”
in the repealing statute. Again, such intention may be explicit or implicit. The questions, therefore, that arise for determination are:
Whether in relation to cigarettes, the 1941 Act was repealed by the 1954 Act and the latter by the 1958 Act? Whether the 1954 Act and 1958 Act were repealing enactments? Whether there is anything in the 1954 Act and the 1958 Act indicating a revival of the 1941 Act in relation to cigarettes?
16. It is now well settled that “repeal” connotes abrogation or obliteration of one statute by another, from the statute book as completely “as if it had never been passed”; when an Act is repealed, “it must be considered (except as to transactions past and closed) as if it had never existed”. (Per Tindal, C.J. in Kay v. Goodwin [1830] EngR 605; (1830) 6 Bing 576, 582 and Lord Tenterdon in Surtees v. Ellison [1829] EngR 594; (1829) 9 B&C 750, 752 cited with approval in State of Orissa v. M.A. Tulloch & Co., [1963] INSC 170; AIR 1964 SC 1284).
17. Repeal is not a matter of mere from but one of substance, depending upon the intention of the Legislature. If the intention, indicated expressly or by necessary implication in the subsequent statute, was to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal – (see Craies on statute Law, 7th Edn. pp. 349, 353, 373, 374 and 375;
Maxwell’s Interpretation of Statutes, 11th Edn. pp. 164, 390 based on Mount v. Taylor (1868) L.R. 3 C.P. 645; Southerland’s Statutory Construction 3rd Edn. Vol. I, paragraphs 2014 and 2022, pp. 468 and 490). Broadly speaking, the principal object of a Repealing and Amending Act is to ‘excise dead matter, prune off superfluities and reject clearly inconsistent enactments’- see Mohinder Singh v. Mst. Harbhajan Kaur.” What needs to be kept in mind, as we have repeatedly expressed above is, that the issue canvassed in the judgments relied upon, was the effect of a voluntary decision of a legislature in amending or repealing an existing provision. That position would arise, if the Parliament had validly amended or repealed an existing constitutional provision. Herein, the impugned constitutional amendment has definetly the effct of substituting some of the existing provisions of the Constitution, and also, adding to it some new provisions. Naturally substitution connotes, that the earlier provision ceases to exist, and the amended provision takes its place. The present situation is one where, the impugned constitutional amendment by a process of judicial review, has been set aside. Such being the position, whatever be the cause and effect of the impugned constitutional amendment, the same will be deemed to be set aside, and the position preceding the amendment will be restored. It does not matter what are the stages or steps of the cause and effect of the amendment, all the stages and steps will stand negated, in the same fashion as they were introduced by the amendment, when the amended provisions are set aside.
(xi) In addition to the above judgment, reliance was also placed on the Kolhapur Canesugar Works Ltd. case78, West U.P. Sugar Mills Association v.
State of U.P.[98], Gammon India Ltd. v. Special Chief Secretary[99], the Hirendra Pal Singh case79, the Joint Action Committee of Air Line Pilots’ Associations of India case80, and the K. Shyam Sunder case81. The conclusions drawn in the above noted judgments were either based on the judgments already dealt with by us hereinabove, or on general principles.
It is not necessary to examine all the above judgments, by expressly taking note of the observations recorded in each of them.
251. Even though we have already recorded our determination with reference to the judgments cited by the learned Solicitor General, it is imperative for us to record, that it is evident from the conclusions returned in the Central Provinces Manganese Ore Co. Ltd. case76, that in the facts and circumstances of the present case, it would have to be kept in mind, that if the construction suggested by the learned Solicitor General was to be adopted, it would result in the creation of a void. We say so, because if neither the impugned constitutional provision, nor the amended provisions of the Constitution would survive, it would lead to a breakdown of the constitutional machinery, inasmuch as, there would be a lacuna or a hiatus, insofar as the manner of selection and appointment of Judges to the higher judiciary is concerned. Such a position, in our view, cannot be the result of any sound process of interpretation. Likewise, from the observations emerging out of the decision rendered in the Indian Express Newspapers (Bombay) Pvt. Ltd. case95, we are satisfied, that the clear intent of the Parliament, while enacting the Constitution (99th Amendment) Act, was to provide for a new process of selection and appointment of Judges to the higher judiciary by amending the existing provisions. Naturally therefore, when the amended provision postulating a different procedure is set aside, the original process of selection and appointment under the unamended provisions would revive. The above position also emerges from the legal position declared in the Koteswar Vittal Kamath case73.
252. It is not possible for us to accept the inferential contentions, advanced at the hands of the learned counsel for the respondents by placing reliance on Sections 6, 7 and 8 of the General Clauses Act. We say so, because the contention of the learned Solicitor General was based on the assumption, that a judicial verdict setting aside an amendment, has the same effect as a repeal of an enactment through a legislation. This is an unacceptable assumption. When a legislature amends or repeals an existing provision, its action is of its own free will, and is premised on well founded principles of interpretation, including the provisions of the General Causes Act. Not so when an amendment/repeal is set aside through a judicial process. It is not necessary to repeat the consideration recorded in paragraph 250(ix) above. When a judgment sets aside, an amendment or a repeal by the legislature, it is but natural that the status quo ante, would stand restored.
253. For the reasons recorded hereinabove, we are of the view, that in case of setting aside of the impugned Constitution (99th Amendment) Act, the provisions of the Constitution sought to be amended thereby, would automatically revive.
VI. CONCLUSIONS:
254. Article 124A constitutes the edifice of the Constitution (99th Amendment) Act, 2014. The striking down of Article 124A would automatically lead to the undoing of the amendments made to Articles 124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld. Article 124A(1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). Its perusal reveals, that it is composed of the following:
(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio;
(c) the Union Minister in charge of Law and Justice – Member, ex officio;
(d) two eminent persons, to be nominated – Members.
If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety.
While adjudicating upon the merits of the submissions advanced at the hands of the learned counsel for the rival parties, I have arrived at the conclusion, that clauses (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another). The same are accordingly, violative of the principle of “independence of the judiciary”. I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.
Clause (c) of Article 124A(1), in my view, impinges upon the principles of “independence of the judiciary”, as well as, “separation of powers”. It has also been concluded by me, that clause (d) of Article 124A(1) which provides for the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the “basic structure” of the Constitution. In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck down in its entirety, as being ultra vires the provisions of the Constitution.
255. The contention advanced at the hands of the respondents, to the effect, that the provisions of the Constitution which were sought to be amended by the impugned constitutional amendment, would not revive, even if the challenge raised by the petitioners was accepted (and the Constitution (99th Amendment) Act, 2014, was set aside), has been considered under a separate head, to the minutest detail, in terms of the submissions advanced. I have concluded, that with the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would automatically revive, and the status quo ante would stand restored.
256. The National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124C. It has no independent existence in the absence of the NJAC, constituted under Article 124A(1). Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 is also liable to be set aside, the same is accordingly hereby struck down. In view of the above, it was not essential for us, to have examined the constitutional vires of individual provisions of the NJAC Act. I have all the same, examined the challenge raised to Sections 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution.
VII. ACKNOWLEDGEMENT:
257. Before parting with the order, I would like to record my appreciation for the ablest assistance rendered to us, by the learned counsel who addressed us from both the sides. I would also like to extend my deepest sense of appreciation to all the assisting counsel, who had obviously whole heartedly devoted their time and energy in the preparation of the case, and in instructing the arguing counsel. I would be failing in my duty, if I do not express my gratitude to my colleagues on the Bench, as also, learned counsel who agreed to assist the Bench, during the summer vacation. I therefore, express my gratefulness and indebtedness to them, from the bottom of my heart.
…………………………………………………J.
(Jagdish Singh Khehar) Note: The emphases supplied in all the quotations in the instant judgment, are mine.
New Delhi;
October 16, 2015.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 13 OF 2015 Supreme Court Advocates-on-Record – Association and another … Petitioner(s) versus Union of India … Respondent(s) With |WRIT PETITION (C) NO. 14 OF 2015 WRIT PETITION (C) NO. 18 OF 2015 WRIT PETITION (C) NO. 23 OF 2015 WRIT PETITION (C) NO. 24 OF 2015 WRIT PETITION (C) NO. 70 OF 2015 WRIT PETITION (C) NO. 83 OF 2015 WRIT PETITION (C) NO. 108 OF 2015 WRIT PETITION (C) NO. 124 OF 2015 WRIT PETITION (C) NO. 209 OF 2015 WRIT PETITION (C) NO. 309 OF 2015 WRIT PETITION (C) NO. 310 OF 2015 WRIT PETITION (C) NO. 323 OF 2015 WRIT PETITION (C) NO. 341 OF 2015 TRANSFER PETITION(C) NO. 391 OF 2015| |TRANSFER PETITION(C) NO. 971 OF 2015 | ORDER OF THE COURT
1. The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases [(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively], is rejected.
2. The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void.
3. The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.
4. The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegium system”), is declared to be operative.
5. To consider introduction of appropriate measures, if any, for an improved working of the “collegium system”, list on 3.11.2015.
…………………………………………………J.
(Jagdish Singh Khehar) …………………………………………………J.
(J. Chelameswar) …………………………………………………J.
(Madan B. Lokur) …………………………………………………J.
(Kurian Joseph) …………………………………………………J.
(Adarsh Kumar Goel) New Delhi;
October 16, 2015.
Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.13 OF 2015 Supreme Court Advocates-on-Record Association & Another … Petitioners Versus Union of India … Respondent WITH
WRIT PETITION (CIVIL) NO.23 OF 2015 WRIT PETITION (CIVIL) NO.70 OF 2015 WRIT PETITION (CIVIL) NO.83 OF 2015 TRANSFER PETITION (CIVIL) NO.391 OF 2015 WRIT PETITION (CIVIL) NO.108 OF 2015 WRIT PETITION (CIVIL) NO.124 OF 2015 WRIT PETITION (CIVIL) NO.14 OF 2015 WRIT PETITION (CIVIL) NO.18 OF 2015 WRIT PETITION (CIVIL) NO.24 OF 2015 AND WRIT PETITION (CIVIL) NO.209 OF 2015 O R D E R Chelameswar, J.
1. Very important and far reaching questions fall for the consideration of this Court in this batch of matters. The constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 are under challenge.
2. When these matters were listed for preliminary hearing on 21.04.2015, an objection was raised by Shri Fali S. Nariman, learned senior counsel appearing for one of the petitioners, that it is inappropriate for Justice Jagdish Singh Khehar to participate in the proceedings as the Presiding Judge of this Bench. The objection is predicated on the facts : Being the third senior most Puisne Judge of this Court, Justice Khehar is a member of the collegium propounded under the Second Judges case[100] exercising “significant constitutional power” in the matter of selection of Judges, of this Court as well as High Courts of this country; by virtue of the impugned legislation, until he attains the position of being the third senior most Judge of this Court, Justice Khehar would cease to enjoy such power; and therefore, there is a possibility of him not being impartial.
3. When the objection was raised, various counsel appearing on behalf of either side expressed different viewpoints regarding the appropriateness of participation of Justice Khehar in these proceedings. We, therefore, called upon learned counsel appearing in this matter to precisely state their respective points of view on the question and assist the Court in identifying principles of law which are relevant to arrive at the right answer to the objection raised by Shri Fali S. Nariman.
4. The matter was listed again on 22.04.2015 on which date Shri Nariman filed a brief written statement[101] indicating reasons which according to him make it inappropriate for Justice Khehar to preside over the present Bench.
5. On the other hand, Shri Arvind P. Datar, learned senior counsel appearing for one of the petitioners made elaborate submissions explaining the legal principles which require a Judge to recuse himself from hearing a particular case and submitted that in the light of settled principles of law in this regard there is neither impropriety in Justice Khehar hearing these matters nor any need for him to do so.
6. Shri Mukul Rohatgi, learned Attorney General very vehemently opposed the suggestion of Shri Nariman and submitted that there is nothing in law which demands the recusal of Justice Khehar nor has the Union of India any objection to Justice Khehar hearing these batch of matters.
7. Shri Harish N. Salve and Shri K.K. Venugopal, learned senior counsel who proposed to appear on behalf of different States also supported the stand of the learned Attorney General and made independent submissions in support of the conclusion.
8. After an elaborate hearing of the matter, we came to the unanimous conclusion that there is no principle of law which warrants Justice Khehar’s recusal from the proceedings. We recorded the conclusion of the Bench in the proceedings dated 22.04.2015 and indicated that because of paucity of time, the reasons for the conclusion would follow later[102].
9. At the outset, we must record that each of the learned counsel who objected to the participation of Justice Khehar in these proceedings anchored this objection on distinct propositions of law. While Shri Nariman put it on the ground of inappropriateness, Shri Santosh Paul invoked the principle of bias, on the ground of him having conflicting interests – one in his capacity as member of the Collegium and the other in his capacity as a Judge to examine the constitutional validity of the provisions which seek to displace the Collegium system. In substance, some of the petitioners are of the opinion that Justice Khehar should recuse[103].
10. It is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge.
11. It all started with a latin maxim Nemo Judex in Re Sua which means literally – that no man shall be a judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of Nature. He said “If a man be trusted to judge between man and man, it is a precept of the law of Nature that he deal equally between them. For without that, the controversies of men cannot be determined but by war. He therefore, said that is partial in judgment doth what in him lies, to deter men from the use of judges and arbitrators; and consequently, against the fundamental law of Nature, is the cause of war.”
12. Grant Hammond, a former Judge of the Court of Appeal of New Zealand and an academician, in his book titled “Judicial Recusal”[104] traced out principles on the law of recusal as developed in England in the following words :- “The central feature of the early English common law on recusal was both simple and highly constrained: a judge could only be disqualified for a direct pecuniary interest. What would today be termed ‘bias’, which is easily the most controversial ground for disqualification, was entirely rejected as a ground for recusal of judges, although it was not completely dismissed in relation to jurors.
This was in marked contrast to the relatively sophisticated canon law, which provided for recusal if a judge was suspected of partiality because of consanguinity, affinity, friendship or enmity with a party, or because of his subordinate status towards a party or because he was or had been a party’s advocate.” He also pointed out that in contrast in the United States of America, the subject is covered by legislation.
13. Dimes v. Proprietors of Grand Junction Canal, [1852] EngR 789; (1852) 10 ER 301, is one of the earliest cases where the question of disqualification of a Judge was considered. The ground was that he had some pecuniary interest in the matter. We are not concerned with the details of the dispute between the parties to the case. Lord Chancellor Cottenham heard the appeal against an order of the Vice-Chancellor and confirmed the order. The order went in favour of the defendant company. A year later, Dimes discovered that Lord Chancellor Cottenham had shares in the defendant company. He petitioned the Queen for her intervention. The litigation had a long and chequered history, the details of which are not material for us. Eventually, the matter reached the House of Lords. The House dismissed the appeal of Dimes on the ground that setting aside of the order of the Lord Chancellor would still leave the order of the Vice-Chancellor intact as Lord Chancellor had merely affirmed the order of the Vice-Chancellor. However, the House of Lords held that participation of Lord Cottenham in the adjudicatory process was not justified. Though Lord Campbell observed:
“No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest …. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.”
14. Summing up the principle laid down by the abovementioned case, Hammond observed as follows:
“The ‘no-pecuniary interest’ principle as expressed in Dimes requires a judge to be automatically disqualified when there is neither actual bias nor even an apprehension of bias on the part of that judge. The fundamental philosophical underpinning of Dimes is therefore predicated on a conflict of interest approach.”
15. The next landmark case on the question of “bias” is Regina v. Gough, [1993] UKHL 1; (1993) AC 646. Gough was convicted for an offence of conspiracy to rob and was sentenced to imprisonment for fifteen years by the Trial Court. It was a trial by Jury. After the conviction was announced, it was brought to the notice of the Trial Court that one of the jurors was a neighbour of the convict. The convict appealed to the Court of Appeal unsuccessfully. One of the grounds on which the conviction was challenged was that, in view of the fact that one of the jurors being a neighbour of the convict presented a possibility of bias on her part and therefore the conviction is unsustainable. The Court of Appeal noticed that there are two lines of authority propounding two different tests for determining disqualification of a Judge on the ground of bias:
(1) “real danger” test; and (2) “reasonable suspicion” test.
The Court of Appeal confirmed the conviction by applying the “real danger” test.
16. The matter was carried further to the House of Lords.
17. Lord Goff noticed that there are a series of authorities which are “not only large in number but bewildering in their effect”. After analyzing the judgment in Dimes (supra), Lord Goff held:
“In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand.” In other words, where a Judge has a pecuniary interest, no further inquiry as to whether there was a “real danger” or “reasonable suspicion” of bias is required to be undertaken. But in other cases, such an inquiry is required and the relevant test is the “real danger” test.
“But in other cases, the inquiry is directed to the question whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand. Such a question may arise in a wide variety of circumstances. These include …. cases in which the member of the tribunal has an interest in the outcome of the proceedings, which falls short of a direct pecuniary interest. Such interests may vary widely in their nature, in their effect, and in their relevance to the subject matter of the proceedings; and there is no rule …. that the possession of such an interest automatically disqualifies the member of the tribunal from sitting. Each case falls to be considered on its own facts.
”
18. The learned Judge examined various important cases on the subject and finally concluded:
“Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias.
Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.” 19. Lord Woolf agreed with Lord Goff in his separate judgment. He held:
“There is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand Junction Canal, 3 H.L.
Case 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category. The real danger test is quite capable of producing the right answer and ensure that the purity of justice is maintained across the range of situations where bias may exist.”
20. In substance, the Court held that in cases where the Judge has a pecuniary interest in the outcome of the proceedings, his disqualification is automatic. No further enquiry whether such an interest lead to a “real danger” or gave rise to a “reasonable suspicion” is necessary. In cases of other interest, the test to determine whether the Judge is disqualified to hear the case is the “real danger” test.
21. The Pinochet[105] case added one more category to the cases of automatic disqualification for a judge. Pinochet, a former Chilean dictator, was sought to be arrested and extradited from England for his conduct during his incumbency in office. The issue was whether Pinochet was entitled to immunity from such arrest or extradition. Amnesty International, a charitable organisation, participated in the said proceedings with the leave of the Court. The House of Lords held that Pinochet did not enjoy any such immunity. Subsequently, it came to light that Lord Hoffman, one of the members of the Board which heard the Pinochet case, was a Director and Chairman of a company (known as A.I.C.L.) which was closely linked with Amnesty International. An application was made to the House of Lords to set aside the earlier judgment on the ground of bias on the part of Lord Hoffman.
22. The House of Lords examined the following questions;
Whether the connection of Lord Hoffman with Amnesty International required him to be automatic disqualified? Whether an enquiry into the question whether cause of Lord Hoffman’s connection with Amnesty International posed a real danger or caused a reasonable apprehension that his judgment is biased – is necessary? Did it make any difference that Lord Hoffman was only a member of a company associated with Amnesty International which was in fact interested in securing the extradition of Senator Pinochet?
23. Lord Wilkinson summarised the principles on which a Judge is disqualified to hear a case. As per Lord Wilkinson – “The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
In my judgment, this case falls within the first category of case, viz.
where the judge is disqualified because he is a judge in his own cause.
In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure.
And framed the question;
“….the question then arises whether, in non-financial litigation, anything other than a financial or proprietary interest in the outcome is sufficient automatically to disqualify a man from sitting as judge in the cause.” He opined that although the earlier cases have “all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification.”
24. Lord Wilkinson concluded that Amnesty International and its associate company known as A.I.C.L., had a non-pecuniary interest established that Senator Pinochet was not immune from the process of extradition. He concluded that, “….the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties”
25. After so concluding, dealing with the last question, whether the fact that Lord Hoffman was only a member of A.I.C.L. but not a member of Amnesty International made any difference to the principle, Lord Wilkinson opined that even though a judge may not have financial interest in the outcome of a case, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial and held that if the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions. This aspect of the matter was considered in P.D. Dinakaran case[106].
26. From the above decisions, in our opinion, the following principles emerge;
If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case.
In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension” of bias.
The Pinochet case added a new category i.e that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.
27. It is nobody’s case that, in the case at hand, Justice Khehar had any pecuniary interest or any other interest falling under the second of the above-mentioned categories. By the very nature of the case, no such interest can arise at all.
28. The question is whether the principle of law laid down in Pinochet case is attracted. In other words, whether Justice Khehar can be said to be sharing any interest which one of the parties is promoting. All the parties to these proceedings claim to be promoting the cause of ensuring the existence of an impartial and independent judiciary. The only difference of opinion between the parties is regarding the process by which such a result is to be achieved. Therefore, it cannot be said that Justice Khehar shares any interest which any one of the parties to the proceeding is seeking to promote.
29. The implication of Shri Nariman’s submission is that Justice Khehar would be pre-determined to hold the impugned legislation to be invalid. We fail to understand the stand of the petitioners. If such apprehension of the petitioners comes true, the beneficiaries would be the petitioners only. The grievance, if any, on this ground should be on the part of the respondents.
30. The learned Attorney General appearing for the Union of India made an emphatic statement that the Union of India has no objection for Justice Khehar hearing the matter as a presiding Judge of the Bench.
31. No precedent has been brought to our notice, where courts ruled at the instance of the beneficiary of bias on the part of the adjudicator, that a judgment or an administrative decision is either voidable or void on the ground of bias. On the other hand, it is a well established principle of law that an objection based on bias of the adjudicator can be waived.
Courts generally did not entertain such objection raised belatedly by the aggrieved party.
“The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory.[107] The court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisers know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged.”[108] In our opinion, the implication of the above principle is that only a party who has suffered or likely to suffer an adverse adjudication because of the possibility of bias on the part of the adjudicator can raise the objection.
32. The significant power as described by Shri Nariman does not inhere only to the members of the Collegium, but inheres in every Judge of this Court who might be called upon to express his opinion regarding the proposals of various appointments of the High Court Judges, Chief Justices or Judges of this Court, while the members of the Collegium are required to exercise such “significant power” with respect to each and every appointment of the above-mentioned categories, the other Judges of this Court are required to exercise such “significant power”, at least with respect to the appointments to or from the High Court with which they were earlier associated with either as judges or Chief Justices. The argument of Shri Nariman, if accepted would render all the Judges of this Court disqualified from hearing the present controversy. A result not legally permitted by the “doctrine of necessity”.
33. For the above-mentioned reasons, we reject the submission that Justice Khehar should recuse from the proceedings.
……………………………….J.
(J. Chelameswar) ……………………………….J.
(Adarsh Kumar Goel) New Delhi;
October 16, 2015.
Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 13 OF 2015 Supreme Court Advocates-on-Record Association & Anr. Petitioners Versus Union of India Respondent WITH
WRIT PETITION (CIVIL) NO.23 OF 2015 WRIT PETITION (CIVIL) NO.70 OF 2015 WRIT PETITION (CIVIL) NO.83 OF 2015 TRANSFER PETITION (CIVIL) NO.391 OF 2015 WRIT PETITION (CIVIL) NO.108 OF 2015 WRIT PETITION (CIVIL) NO.124 OF 2015 WRIT PETITION (CIVIL) NO.14 OF 2015 WRIT PETITION (CIVIL) NO.18 OF 2015 WRIT PETITION (CIVIL) NO.24 OF 2015 WRIT PETITION (CIVIL) NO.209 OF 2015 WRIT PETITION (CIVIL) NO.309 OF 2015 WRIT PETITION (CIVIL) NO.310 OF 2015 WRIT PETITION (CIVIL) NO.323 OF 2015 TRANSFER PETITION (CIVIL) NO.971 OF 2015 AND WRIT PETITION (CIVIL) NO.341 OF 2015
Chelameswar, J.
1. We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy? Are we nearing such ethical and constitutional disorder that frightened civil society runs back to Mother Nature or some other less wholesome authority to discipline us? Has all the independence acquired by the judicial branch since 6th October, 1993 been a myth – a euphemism for nepotism enabling inter alia promotion of mediocrity or even less occasionally – are questions at the heart of the debate in this batch of cases by which the petitioners question the validity of the Constitution (99th Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 (hereinafter referred to as the “AMENDMENT” and the
“ACT”, for the sake of convenience).
2. To understand the present controversy, a look at the relevant provisions of the Constitution of India, as they stood prior to and after the impugned AMENDMENT, is required.
Prior to the AMENDMENT Article 124. Establishment and constitution of Supreme Court (1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than thirty other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years:
Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:
xxxx xxxxx xxxxx xxxxx Article 217. Appointment and conditions of the office of a Judge of a High Court (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, ……………..
xxxx xxxxx xxxxx xxxxx
3. The pre AMENDMENT text stipulated that the President of India shall appoint Judges of this Court and High Courts of this country (hereinafter the CONSTITUTIONAL COURTS) in consultation with the Chief Justice of India (hereinafter CJI) and other constitutional functionaries indicated in Article 124 and 217. In practice, the appointment process for filling up vacancies was being initiated by the Chief Justice of the concerned High Court or the CJI, as the case may be. Such a procedure was stipulated by a memorandum of the Government of India[109].
After the AMENDMENT
4. Articles 124 and 217 insofar as they are relevant for our purpose read “Article 124 xxxxx xxxxx xxxx Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A and shall hold office until he attains the age of sixty-five years.
Article 217 . Appointment and conditions of the office of a Judge of a High Court – (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years.”
5. The AMENDMENT inserted Articles 124A, 124B and 124C. These provisions read:
“124A (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:- the Chief Justice of India, Chairperson, ex officio;
two other senior Judges of the Supreme Court next to the Chief Justice of India – Members, ex officio;
the Union Minister in charge of Law and Justice – Member, ex officio two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People – Members:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women;
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.
(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
124B. It shall be the duty of the National Judicial Appointments Commission to – (a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and (c) ensure that the person recommended is of ability and integrity.
124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.
Consequent amendments to other Articles are also made, details are not necessary.
6. The crux of the AMENDMENT is that the institutional mechanism by which selection and appointment process of the Judges of CONSTITUTIONAL COURTS was undertaken came to be substituted by a new body called the National Judicial Appointments Commission (hereinafter referred to as NJAC). It consists of six members. The CJI is its ex-officio Chairperson.
Two senior Judges of the Supreme Court next to the CJI and the Union Law Minister are also ex-officio members, apart from two eminent persons to be nominated by a Committee contemplated in Article 124A (1)(d).
7. Under Article 124B, the NJAC is charged with the duty of recommending persons of ability and integrity for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts and of recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
8. Article 124C authorizes Parliament to regulate by law, the procedure for the appointment of Chief Justice and other Judges of the Supreme Court etc. It also empowers the NJAC to make regulations laying down the procedure for the discharge of its functions.
9. Pursuant to the mandate of Article 124C, Parliament made the ACT.
For the present, suffice it to note that though the amended text of the
Constitution does not so provide, Section 6(6)[110] of the ACT provides
that the NJAC shall not recommend a person for appointment, if any two members of the Commission do not agree for such recommendation.
10. The AMENDMENT made far reaching changes in the scheme of the Constitution, insofar as it relates to the selection process of Judges of the CONSTITUTIONAL COURTS. The President is no more obliged for making appointments to CONSTITUTIONAL COURTS to consult the CJI, the Chief Justices of High Courts and Governors of the States but is obliged to consult the NJAC.
11. The challenge to the AMENDMENT is principally on the ground that such substitution undermines the independence of the judiciary. It is contended that independence of judiciary is a part of the basic structure of the Constitution and the AMENDMENT is subversive of such independence. Hence, it is beyond the competence of the Parliament in view of the law declared by this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC 225 (hereinafter referred to as Bharati case).
12. Fortunately there is no difference of opinion between the parties to this lis regarding the proposition that existence of an independent judiciary is an essential requisite of a democratic Republic.
Nor is there any difference of opinion regarding the proposition that an independent judiciary is one of the basic features of the Constitution of India.
13. The only issue is what is the permissible procedure or mechanism which would ensure establishment of an independent judiciary. The resolution of the issue requires examination of the following questions;
Whether the mechanism established by the Constituent Assembly for the appointment of Judges of the CONSTITUTIONAL COURTS is the only permissible mode for securing an independent judiciary or can there be alternatives? If there can be alternatives, whether the mechanism (NJAC) sought to be established by the AMENDMENT transgresses the boundaries of the constituent power?
14. In the last few weeks, after the conclusion of hearing in this batch of matters, I heard many a person – say that the whole country is awaiting the judgment. Some even said the whole world is awaiting. There is certainly an element of hyperbole in those statements. Even those who are really waiting, I am sure, have concerns which vary from person to person. Inquisitiveness regarding the jurisprudential and political correctness, impact on the future of the judiciary, assessment of political and personal fortunes etc. could be some of those concerns. I am only reminded of Justice Fazal Ali’s view in S.P.
Gupta v. Union of India & Ors.[111] AIR 1982 SC 149 (for short S.P. Gupta case) that the issue is irrelevant for the masses and litigants. They only want that their cases should be decided quickly by judges who generate confidence. The question is – what is the formula by which judges – who can decide cases quickly and also generate confidence in the masses and litigants – be produced. What are the qualities which make a Judge decide cases quickly and also generate confidence?
15. Deep learning in law, incisive and alert mind to quickly grasp the controversy, energy and commitment to resolve the problem are critical elements which make a Judge efficient and enable him to decide cases quickly. However, every Judge who has all the above-mentioned qualities need not automatically be a Judge who can generate confidence in the litigants unless the litigant believes that the Judge is absolutely fair and impartial.
16. Belief regarding the impartiality of a Judge depends upon the fact that Judge shares no relationship with either of the parties to the litigation. Relationship in the context could be personal, financial, political or even philosophical etc. When one of the parties to the litigation is either the State or one of its instrumentalities, necessarily there is a relationship. Because, it is the State which establishes the judiciary. Funds required to run the judicial system including the salaries and allowances of Judges necessarily flow from the State exchequer.
17. Democratic societies believe that the State not only has authority to govern but also certain legally enforceable obligations to its subjects.
The authority of judicial fora to command the State to discharge its obligations flows from the existence of such enforceable obligations. To generate confidence that the judicial fora decide controversies brought to their consideration impartially, they are required to be independent.
Notwithstanding the fact that they are established and organized by the State as a part of its larger obligation to govern.
18. Judiciary is the watchdog of the Constitution and its fundamental values. It is also said to be the lifeblood of constitutionalism in democratic societies. At least since Marbury v. Madison[112] the authority of courts functioning under a written democratic constitution takes within its sweep the power to declare unconstitutional even laws made by the legislature. It is a formidable authority necessarily implying an awesome responsibility. A wise exercise of such power requires an efficient and independent Judge (Judicial System). In the context, wisdom is to perceive with precision whether the legislative action struck the constitutionally demanded balance between the larger interests of society and liberties of subjects.
19. Independence of such fora rests on two integers – independence of the institution and of individuals who man the institution.
“(Judicial independence) connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.
* * * It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of Government.”[113]
20. It is not really necessary for me to trace the entire history of development of the concept independence of the judiciary in democratic societies. It can be said without any fear of contradiction that all modern democratic societies strive to establish an independent judiciary.
The following are among the most essential safeguards to ensure the independence of the judiciary – Certainty of tenure, protection from removal from office except by a stringent process in the cases of Judges found unfit to continue as members of the judiciary, protection of salaries and other privileges from interference by the executive and the legislature, immunity from scrutiny either by the Executive or the Legislature of the conduct of Judges with respect to the discharge of judicial functions except in cases of alleged misbehaviour, immunity from civil and criminal liability for acts committed in discharge of duties, protection against criticism to a great degree. Such safeguards are provided with a fond hope that so protected, a Judge would be absolutely independent and fearless in discharge of his duties.
21. Democratic societies by and large recognize the necessity of the abovementioned protections for the judiciary and its members. Such protections are either entrenched in the Constitution or provided by legislation. A brief survey of the constitutions of a few democratic Republics to demonstrate the point;
22. Prior to 1701, the British Crown had the power to dismiss the judges at will. The Act of Settlement, 1701[114] removed from the Crown the power to dismiss Judges of the Superior Courts at will. It enabled the Monarch to remove Judges from office upon address of both Houses of Parliament.
Interestingly till 1720 Judges ceased to hold office on the death of the Monarch who issued Commissions. A 1720 enactment provided that Judges should continue in office for six months after demise of the monarch. In 1761 a statute provided that commissions of the Judges shall remain in full force and effect during good behaviour notwithstanding the demise of His Majesty or of any of his heirs and successors – thus granting a life tenure. According to Blackstone, “(I) In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in any State unless the administration of common justice be in some degree separated both from the legislative and from the executive power.”[115]
23. Article III (1)[116] of the American Constitution stipulates that Judges of the Supreme Court and also the inferior Courts established by Congress shall hold their office during good behavior and they cannot be removed except through the process of impeachment[117]. It also stipulates that they shall receive a compensation for their services which shall not be diminished during their continuance in office.
24. Section 72[118] of the Constitution of Australia stipulates that Judges of the High Court and other Courts created by Parliament shall be appointed for a term expiring upon the Judge attaining the age of seventy years and shall not be removed except on an address from both Houses of the Parliament in the same session praying for removal of the Judge on the ground of proved misbehaviour or incapacity. It also stipulates that remuneration of Judges shall not be diminished during their continuance in office.
25. When India became a Sovereign Republic, we did not adopt the British Constitutional system in its entirety – though India had been a part of the British Empire Ever since, the British Crown started asserting sovereignty over the territory of India, the British Parliament made Acts which provided legal framework for the governance of India from time to time known as Government of India Acts. The last of which was of 1935.
Canada[119] and Australia[120] which were also part of the British Empire continue to be governed by Constitutions enacted by the British Parliament.
We framed a new Constitution through a Constituent Assembly.
26. Members of the Constituent Assembly in general and the Drafting Committee in particular were men and women of great political experience, deep insight into human nature, and a profound comprehension of the complex problems of Indian Society. They spearheaded the freedom movement. They were well versed in history, law, political sciences and democratic practices. They examined the various constitutional systems in vogue in different democratic societies inter alia American, Australian, British and Canadian and adopted different features from different constitutional systems after suitably modifying them to the needs of Indian society.
27. Framers of the Constitution had the advantage of an intimate knowledge of the functioning of the Federal Court, the High Courts and the Subordinate Courts of this country under the Government of India Act, 1935[121]. Though there several distinctions in the architecture of the judicial systems under each of the above-mentioned regimes, one feature common to all of them is that appointment of Judges is by the Executive.
Such constitutional design is essentially a legacy of the British constitutional system where the Executive had (till 2006) the absolute authority to appoint Judges.
28. Judges, in any country, are expected to maintain a higher degree of rectitude compared to the other public office holders. The expectation with respect to the Indian Judiciary is no different. The Constitution therefore provides extraordinary safeguards and privileges for Judges of CONSTITUTIONAL COURTS to insulate them substantially from the possibility of interference by the political-executive as well as elected majorities of the people’s representatives[122].
I. a Judge’s appointment and continuance in office is not subject to any election process;
II. the termination of judicial appointment (during subsistence of the tenure) is made virtually impossible.
The Constitution prescribes that a Judge of CONSTITUTIONAL COURT shall not be removed from office except by following an elaborate procedure of impeachment prescribed under Article 124(4)[123] which is applicable even for High Court Judges by virtue of Article 217(1)(b)[124].
III. The salaries, privileges, allowances and rights in respect of leave of absence and pension of Judges of the CONSTITUTIONAL COURTS may be determined by or under law made by Parliament. But, they cannot be varied to the disadvantage of the Judge[125] after the appointment.
IV. The salary, allowances and pension payable to Judges of CONSTITUTIONAL COURTS are charged on the Consolidated Fund of India or the Consolidated Fund of the concerned State[126]. Further under Articles 113(1)[127] and 203(1)[128], the expenditure charged upon the Consolidated Fund of India or the State as the case may be shall not be submitted to vote.
29. Unscrupulous litigants constantly keep searching for ways to influence judges. Attitude of the State or its instrumentalities (largest litigants in modern democracies) would be no different[129]. Such temptation coupled with the fact that the State has the legal authority to make laws including the laws that determine the process of selection of judges and their service conditions can pose the greatest threat to the independence of the judiciary if such law making authority is without any limitations. Therefore, extraordinary safeguards to protect the tenure and service conditions of the members of the judiciary are provided in the Constitution; with a fond hope that men and women, who hold judicial offices so protected will be able to discharge their functions with absolute independence and efficiency.
30. However, any amount of legal and institutional protection will not supply the necessary independence and efficiency to individuals if inherently they are lacking in them. Where every aspect of judge’s service is protected by the Constitution, the only way governments can think of gaining some control over the judiciary is by making an effort to appoint persons who are inherently pliable. There are various factors which make a Judge pliable. Some of the factors are – individual ambition, loyalty- based on political, religious or sectarian considerations, incompetence and lack of integrity. Any one of the above-mentioned factors is sufficient to make a Judge pliable. A combination of more than one of them makes a Judge more vulnerable. Combination of incompetence and ambition is the worst. The only way an ambitious incompetent person can ascend a high public office is by cringing before men in power. It is said that men in power promote the least of mankind with a fond hope that those who lack any accomplishment would be grateful to their benefactor. History is replete with examples – though proof of the expected loyalty is very scarce.
Usually such men are only loyal to power but not to the benefactor.
31. In order to ensure that at least in the matter of appointment of Judges, such aberrations are avoided, democracies all over the world have adopted different strategies for choosing the ‘right people’ as Judges.
The procedures adopted for making such a choice are widely different. To demonstrate the same, it is useful to examine the judicial systems of some of the English speaking countries.
32. The Constitution of the United States of America empowers the President to appoint Judges of the Supreme Court[130] with the advice and consent of the Senate[131]. Insofar as the appointment of the Judges of the highest court in United States is concerned, neither the Chief Justice of America nor the Supreme Court is assigned any role. The Head of the Executive is conferred with exclusive power to make the choice of the Judges of the highest court subject to the advice and consent of the Senate. A check on the possibility of arbitrary exercise of the power by the President.
33. The Canadian legal system depicts another interesting model. The Supreme Court of Canada is not established by the Constitution i.e. the Constitution Act of 1867. Chapter VII of the Act deals with the judicature. Section 101[132] only authorises the Parliament of Canada to provide for the constitution, maintenance and organisation of a general court of appeal of Canada and for the establishment of any additional courts for the better administration of the laws of Canada. It is in exercise of such power, the Parliament of Canada in 1875 by a statute, (the Supreme and Exchequer Courts Act, 1875[133]) established the Supreme Court of Canada. The Supreme Court of Canada’s existence, its composition and jurisdiction depend upon an ordinary federal statute and these underwent many changes over time. In theory, the Court could be abolished by unilateral action of the Federal Parliament. Judges of the Supreme Court are appointed by the Governor in Council (the federal cabinet) in exercise of the power conferred under Section 2 of the Supreme Court Act (supra).
There is no requirement in Canada that such appointments be ratified by the Senate or the House of Commons.
34. In Australia, the highest Federal Court is called the High Court of Australia established under Section 71[134] of the Australian Constitution.
It consists of a Chief Justice and other Judges not less than two as the Parliament prescribes. Judges of the High Court are appointed by the Governor General in Council.
35. Neither Canada nor Australia provide the Chief Justice or Judges of the highest court any role in the choice of Judges of the Constitutional Courts. In Australia, unlike the American model, there is no provision in the Constitution requiring consent of the federal legislature for such appointments.
36. England is unique in these matters. It has no written constitution as understood in India, US, Canada and Australia. Till 2006, appointments of Judges were made exclusively by the Lord Chancellor of the Exchequer who is a member of the Cabinet.
37. The makers of the Indian Constitution after a study of the various models mentioned above among others, provided that in making appointment of the Judges of the CONSTITUTIONAL COURTS, the CJI and the Chief Justices of the concerned High Court are required to be consulted by the President who is the appointing authority of Judges of these Courts. The text of the Constitution clearly excluded any role either for the Parliament or for the State Legislatures.
38. Dr. Ambedkar explained the scheme of the Constitution insofar as it pertains to appointment of Judges of the CONSTITUTIONAL COURTS and the competing concerns which weighed with the drafting committee for adopting such model:
“There can be no difference of opinion in the House that our
judiciary must both be independent of the executive and must also
be competent in itself. And the question is how these two
objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain the
appointments are made by the Crown, without any kind of
limitation whatsoever, which means by the executive of the day.
There is the opposite system in the United States where, for
instance, officers of the Supreme Court as well as other offices
of the State shall be made only with the concurrence of the Senate in the United States. It seems to me in the circumstances
in which we live today, where the sense of responsibility has
not grown to the same extent to which we find it in the United
States, it would be dangerous to leave the appointments to be
made by the President, without any kind of reservation or
limitation, that is to say, merely on the advice of the
executive of the day. Similarly, it seems to me that to make
every appointment which the executive wishes to make subject to
the concurrence of the Legislature is also not a very suitable
provision. Apart from its being cumbrous, it also involves the
possibility of the appointment being influenced by political
pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President
the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature.
The provision in the article is that there should be consultation
of persons who are ex hypothesi, well qualified to give proper
advice in matters of this sort, and my judgment is that this
sort of provision may be regarded as sufficient for the moment.
With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition
seem to rely implicitly both on the impartiality of the Chief
Justice and the soundness of his judgment. I personally feel no
doubt that the Chief Justice is a very eminent person. But after
all the Chief Justice is a man with all the failings, all the
sentiments and all the prejudices which we as common people have;
and I think, to allow the Chief Justice practically a veto upon
the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition[135].”
(emphasis supplied) The following are salient features of Dr. Ambedkar’s statement:
