SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]

                                                                  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| |                                    |

                               J U D G M E N T
Jagdish Singh Khehar, J.

                                    Index
|Sl.No.|Contents                                  |Paragraphs|Pages     |
|1.    |The Recusal Order                         |   1 -  18|    1 -   |
|      |                                          |          |15        |
|      |                                          |          |          |
|2.    |The Reference Order                       |   1 - 101|  16 - 169|
|I     |The Challenge                             |   1  -   |  16 -    |
|      |                                          |9         |19        |
|II.   |The Background to the Challenge           | 10  -  19|  19 -    |
|      |                                          |          |61        |
|III.  |Motion by the respondents, for the review | 20  -  53|  61 – 115|
|      |of the Second and Third Judges cases.     |          |          |
|IV.   |Objection by the petitioners, to the      |  54 -  59|115 – 124 |
|      |Motion for review                         |          |          |
|V.    |The Consideration                         |  60 - 100|124 – 168 |
|VI.   |Conclusion                                |101       |168 - 169 |
|      |                                          |          |          |
|3.    |The Order on Merits                       |    1 -   |170 – 439 |
|      |                                          |258       |          |
|I.    |Preface                                   |    1 -   |170 - 171 |
|      |                                          |4         |          |
|II.   |Petitioners’ Contentions, on Merits       |    5 -   |171 - 252 |
|      |                                          |66        |          |
|III.  |Respondents’ Response on Merits.          |  67 - 132|253 - 325 |
|IV.   |The Debate and the Deliberation           |133 - 245 |326 - 419 |
|V.    |The effect of striking down the impugned  |246 - 253 |419 - 436 |
|      |constitutional amendment                  |          |          |
|VI.   |Conclusions                               |254 - 256 |436 - 438 |
|VII.  |Acknowledgment                            |257       |438 - 439 |


                              THE RECUSAL ORDER
1.    In this Court one gets used to writing common orders, for  orders  are
written either on behalf of the Bench, or on behalf of  the  Court.  Mostly,
dissents are written in the first person.   Even  though,  this  is  not  an
order in the nature of a dissent, yet it needs to be written  in  the  first
person. While  endorsing  the  opinion  expressed  by  J.  Chelameswar,  J.,
adjudicating upon the prayer for my recusal, from  hearing  the  matters  in
hand, reasons for my continuation on the Bench, also need  to  be  expressed
by me.  Not for advocating  any  principle  of  law,  but  for  laying  down
certain principles of conduct.
2.    This order is in the nature  of  a  prelude  –  a  precursor,  to  the
determination of  the  main  controversy.  It  has  been  necessitated,  for
deciding an objection, about  the  present  composition  of  the  Bench.  As
already noted above, J. Chelameswar, J. has rendered  the  decision  on  the
objection. The events which followed the order of J.  Chelameswar,  J.,  are
also of some significance. In my  considered  view,  they  too  need  to  be
narrated, for only then, the entire matter can be considered  to  have  been
fully expressed, as it ought to be. I also need to record  reasons,  why  my
continuation on the reconstituted Bench, was the only  course  open  to  me.
And therefore, my side of its understanding, dealing  with  the  perception,
of the other side of the Bench.
3(i)  A three-Judge Bench  was  originally  constituted  for  hearing  these
matters.  The Bench comprised of Anil R. Dave, J. Chelameswar and  Madan  B.
Lokur, JJ..  At that juncture, Anil R. Dave,  J.  was  a  part  of  the  1+2
collegium, as also, the 1+4 collegium.   The  above  combination  heard  the
matter, on its first listing on 11.3.2015. Notice returnable  for  17.3.2015
was issued on the first date  of  hearing.  Simultaneously,  hearing  in  Y.
Krishnan v. Union of India and others, Writ Petition  (MD)  No.69  of  2015,
pending before the High Court of Madras (at its Madurai Bench), wherein  the
same issues were being considered as the ones raised in the bunch  of  cases
in hand, was stayed till further orders.
(ii)  On the following date, i.e., 17.3.2015 Mr.  Fali  S.  Nariman,  Senior
Advocate, in Supreme  Court  Advocates-on-Record  Association  v.  Union  of
India  (Writ Petition  (C)  No.13  of  2015),  Mr.  Anil  B.  Divan,  Senior
Advocate, in Bar Association of India v. Union of India (Writ  Petition  (C)
No.108 of 2015), Mr.  Prashant  Bhushan,  Advocate,  in  Centre  for  Public
Interest Litigation v. Union of India  (Writ Petition  (C)  No.83  of  2015)
and Mr. Santosh Paul, Advocate, in Change  India v.  Union  of  India  (Writ
Petition (C) No.70 of 2015), representing the petitioners  were  heard.  Mr.
Mukul  Rohatgi,  Attorney  General  for  India,  advanced   submissions   in
response.  The matter was  shown  as  part-heard,  and  posted  for  further
hearing on 18.3.2015.
(iii) The proceedings recorded by this Court on 18.3.2015 reveal,  that  Mr.
Santosh Paul, (in Writ Petition (C)  No.70  of  2015)  was  heard  again  on
18.3.2015, whereupon, Mr. Mukul Rohatgi  and  Mr.  Ranjit  Kumar,  Solicitor
General of India, also made their submissions.  Thereafter, Mr. Dushyant  A.
Dave, Senior Advocate – and the President of Supreme Court Bar  Association,
addressed the Bench, as an intervener.  Whereafter, the Court rose  for  the
day.  On 18.3.2015, the matter was adjourned for hearing  to  the  following
day, i.e., for 19.3.2015.
(iv)  The order passed on 19.3.2015 reveals, that submissions were  advanced
on that date, by  Mr.  Dushyant  A.  Dave,   Mr.  Mukul  Rohatgi,  Mr.  T.R.
Andhyarujina, Senior Advocate, and Mr. Mathews J. Nedumpara.  When Mr.  Fali
S. Nariman was still addressing the Bench, the Court rose for  the  day,  by
recording inter alia, “The matters remained  Part-heard.”   Further  hearing
in the cases, was deferred to 24.3.2015.
(v)   On 24.3.2015, Mr. Fali S. Nariman and Mr. Anil B.  Divan,  were  again
heard. Additionally, Mr. Mukul Rohatgi concluded  his  submissions.  On  the
conclusion of hearing, judgment was  reserved.   On  24.3.2015,  a  separate
order was also passed in Writ  Petition  (C)  No.124  of  2015  (Mathews  J.
Nedumpara v. Supreme Court of India, through Secretary General and  others).
 It read as under:
“The application filed by Mr.  Mathews  J.  Nedumpara  to  argue  in  person
before the Court is rejected.  The name of Mr. Robin Mazumdar, AOR, who  was
earlier appearing for him, be shown in the Cause List.”

(vi)  On 7.4.2015, the following order came to be passed by the  three-Judge
Bench presided by Anil R. Dave, J.:
“1. In this group of petitions, validity of the  Constitution  (Ninety-Ninth
Amendment) Act, 2014 and the National Judicial Appointment  Commission  Act,
2014 (hereinafter referred  to  as  `the  Act’)  has  been  challenged.  The
challenge is on the ground that by virtue of the aforestated  amendment  and
enactment of the Act, basic structure of the Constitution of India has  been
altered and therefore, they should be set aside.
2. We have heard the learned counsel  appearing  for  the  parties  and  the
parties appearing in-person at length.
3. It  has  been  mainly  submitted  for  the  petitioners  that  all  these
petitions should  be  referred  to  a  Bench  of  Five  Judges  as  per  the
provisions of Article 145(3) of the Constitution of  India  for  the  reason
that substantial questions of law  with  regard  to  interpretation  of  the
Constitution of India are involved in these petitions. It has  been  further
submitted that till all these petitions are finally disposed of, by  way  of
an interim relief it should be directed that the Act should not  be  brought
into force and the present system  with  regard  to  appointment  of  Judges
should be continued.
4. Sum and  substance  of  the  submissions  of  the  counsel  opposing  the
petition is that all these petitions are premature for the reason  that  the
Act has not come into force till today and till the Act  comes  into  force,
cause of action can not be  said  to  have  arisen.  In  the  circumstances,
according to the learned counsel, the petitions should be rejected.
5. The learned counsel  as  well  as  parties  in-person  have  relied  upon
several judgments to substantiate their cases.
6. Looking at the facts  of  the  case,  we  are  of  the  view  that  these
petitions involve substantial questions of law as to the  interpretation  of
the Constitution of India and therefore, we direct  the  Registry  to  place
all the matters of this group before Hon’ble the Chief Justice of  India  so
that they can be placed before a larger Bench for its consideration.
7. As we are  not  deciding  the  cases  on  merits,  we  do  not  think  it
appropriate to discuss the submissions made by the learned counsel  and  the
parties in-person.
8. It would be open to the petitioners to make a prayer for  interim  relief
before the larger bench as we do not  think  it  appropriate  to  grant  any
interim relief at this stage.”

4.    During the hearing of the cases, Anil R. Dave, J. did not  participate
in any collegium proceedings.
5.    Based on the order  passed  by  the  three-Judge  Bench  on  7.4.2015,
Hon’ble  the  Chief  Justice  of  India,  constituted  a  five-Judge  Bench,
comprising of Anil R. Dave, Chelameswar, Madan B. Lokur, Kurian  Joseph  and
Adarsh Kumar Goel, JJ.
6.    On 13.4.2015 the Constitution (Ninety-ninth Amendment) Act, 2014,  and
the National Judicial Appointments Commission Act, 2014,  were  notified  in
the Gazette of India  (Extraordinary).   Both  the  above  enactments,  were
brought into force with effect from 13.4.2015.   Accordingly,  on  13.4.2015
Anil R. Dave, J. became an  ex  officio  Member  of  the  National  Judicial
Appointments Commission, on account of being the second  senior  most  Judge
after the Chief Justice of India, under the mandate of Article 124A  (1)(b).

7.    When the matter came up for hearing for the  first  time,  before  the
five-Judge Bench on 15.4.2015, it passed the following order:
“List the matters before a Bench of which one of us (Anil R.  Dave,  J.)  is
not a member.”

It is, therefore, that Hon’ble the Chief  Justice  of  India,  reconstituted
the Bench with myself, J. Chelameswar, Madan B.  Lokur,  Kurian  Joseph  and
Adarsh Kumar Goel, JJ., to hear this group of cases.
8.    When the reconstituted Bench commenced hearing on 21.4.2015, Mr.  Fali
S. Nariman made a prayer for my recusal from the Bench, which  was  seconded
by Mr. Mathews J.  Nedumpara  (petitioner-in-person  in  Writ  Petition  (C)
No.124 of 2015), the latter advanced submissions, even though  he  had  been
barred from doing  so,  by  an  earlier  order  dated  24.3.2015  (extracted
above).  For me, to preside over the Bench  seemed  to  be  imprudent,  when
some of the stakeholders  desired  otherwise.   Strong  views  were  however
expressed by quite a few learned counsel, who opposed the  prayer.   It  was
submitted, that a prayer for recusal had earlier been made,  with  reference
to Anil R. Dave, J.  It was pointed out, that the above prayer had  resulted
in his having exercised the option to step aside  (–  on  15.4.2015).   Some
learned counsel went to the extent of asserting, that the  recusal  of  Anil
R. Dave, J. was not only  unfair,  but  was  also  motivated.  It  was  also
suggested, that the Bench should be reconstituted,  by  requesting  Anil  R.
Dave, J. to preside over the Bench.  The above sequence  of  facts  reveals,
that the recusal by Anil R. Dave, J. was not at his own,  but  in  deference
to a similar prayer made to him.  Logically, if he  had  heard  these  cases
when he was the presiding Judge of the  three-Judge  Bench,  he  would  have
heard it, when the Bench strength was increased, wherein, he was  still  the
presiding Judge.
9(i)  Mr. Fali S. Nariman strongly  refuted  the  impression  sought  to  be
created, that he had ever required Anil R. Dave, J. to recuse. In  order  to
support his assertion, he pointed  out,  that  he  had  made  the  following
request in writing on 15.4.2015:
“The provisions of the Constitution (Ninety-Ninth Amendment) Act,  2014  and
of the  National  Judicial  Appointments  Commission  Act,  2014  have  been
brought into force from April 13, 2015.  As  a  consequence,  the  Presiding
Judge on this Bench, the Hon’ble Mr. Justice Anil R. Dave,  has  now  become
(not out of choice but by force of Statute)  a  member  ex  officio  of  the
National Judicial Appointments  Commission,  whose  constitutional  validity
has been challenged.
It is respectfully submitted that it would be appropriate if it is  declared
at the outset – by an order of this  Hon’ble  Court  –  that  the  Presiding
Judge on this Bench will take no part whatever in  the  proceedings  of  the
National Judicial Appointments Commission.”

Learned senior counsel pointed out, that he had merely  requested  the  then
presiding Judge (Anil R. Dave, J.) not to take any part in  the  proceedings
of the National Judicial Appointments  Commission,  during  the  hearing  of
these matters.  He asserted, that he had never asked Anil R.  Dave,  J.  not
to hear the matters pending before the Bench.
(ii)  The submission made in writing by Mr. Mathews  J.  Nedumpara  for  the
recusal of Anil R. Dave, J. was in the following words:
“….. VI. Though Hon’ble Shri Justice Anil R.  Dave,  who  heads  the  Three-
Judge Bench in the instant case, is a Judge revered  and  respected  by  the
legal fraternity and the public at large, a Judge of the highest  integrity,
ability and impartiality, still the doctrine of nemo iudex in sua  causa  or
nemo debet esse judex in propria causa – no one can  be  judge  in  his  own
cause – would require His Lordship to recuse  himself  even  at  this  stage
since in the eye of the 120 billion ordinary citizens of this  country,  the
instant  case  is  all  about  a  law  whereunder  the  exclusive  power  of
appointment invested in the Judges case is taken away  and  is  invested  in
the fair body which could lead to displeasure of the Judges and,  therefore,
the Supreme Court itself deciding a case involving the power of  appointment
of Judges of the Supreme Court will  not  evince  public  credibility.   The
question then arises is  as  to  who  could  decide  it.   The  doctrine  of
necessity leaves no other option then the Supreme Court itself deciding  the
question.  But in that case, it could be by Judges who are not part  of  the
collegium as of today or, if an NJAC is to be constituted today, could be  a
member thereof.  With utmost respect, Hon’ble Shri Justice Dave is a  member
of the collegium; His Lordship will be  a  member  of  the  NJAC  if  it  is
constituted today.  Therefore, there is a manifest conflict of interest.
VII.  Referendum.  In Australia, a Constitutional Amendment was brought  in,
limiting the retirement age of Judges to 70 years.  Instead  of  the  Judges
deciding  the  correctness  of  the  said  decision,  the  validity  of  the
amendment was left to be decided by a referendum, and 80% of the  population
supported the amendment.  Therefore, the only body who could decide  whether
the NJAC as envisaged is acceptable or not is the  people  of  this  country
upon a referendum.
VIII.  The  judgment  in  Judges-2,  which  made  the   rewriting   of   the
Constitution, is void ab initio.  The said case was decided  without  notice
to the pubic at large.  Only the views of the government  and  Advocates  on
record and a few others were heard.  In the  instant  case,  the  public  at
large ought to be afforded an opportunity to be heard; at  least  the  major
political parties, and the case should be referred to Constitutional  Bench.
 The constitutionality of the Acts ought to be decided, brushing  aside  the
feeble, nay, apologetical plea of the  learned  Attorney  General  that  the
Acts have been brought into force and their validity cannot  be  challenged,
and failing to come forward and state in candid terms that the Acts are  the
will of the people, spoken through their elected  representatives  and  that
too without any division, unanimous.  The plea of the  Advocates  on  Record
Association that the notification bringing  into  force  the  said  Acts  be
stayed be rejected forthwith; so too its demand that the  collegium  system,
which has ceased to  be  in  existence,  be  allowed  to  be  continued  and
appointments to the august office of  Judges  of  High  Courts  and  Supreme
Court on its recommendation, for to do so would  mean  that  Judges  of  the
High Courts who are currently Chief Justices because they were appointed  at
a young age in preference over others will be appointed  as  Judges  of  the
Supreme Court and if that is allowed to happen, it may lead to  a  situation
where the Supreme Court tomorrow will literally  be  packed  with  sons  and
sons-in-law of former Judges.  There are at least three  Chief  Justices  of
High Courts who are sons  of  former  Judges  of  the  Supreme  Court.   The
Petitioner is no privy to any confidential information,  not  even  gossips.
Still he believes that if the implementation of the NJAC  is  stayed,  three
sons of former Judges of the Supreme Court could be appointed as  Judges  of
the Supreme Court.  The Petitioner has absolutely nothing  personal  against
any of those Judges; the issue is not at  all  about  any  individual.   The
Petitioner readily concedes, and it is a pleasure to  do  so,  that  few  of
them are highly competent and richly deserving to be appointed.
IX.   Equality before law and equal protection  of  law  in  the  matter  of
public employment.  The office of the Judge of the High  Court  and  Supreme
Court, though high constitutional office, is still in the  realm  of  public
employment, to which every person eligible ought to be given an  opportunity
to occupy, he being selected on a transparent, just, fair and  non-arbitrary
system.  The Petitioner reiterates that he could be least  deserving  to  be
appointed when considered along with others of more  meritorious  than  him,
but the fact that since he satisfies  all  the  basic  eligibility  criteria
prescribed under Articles 124A, as amended, and 217, he is entitled to  seek
a declaration at the hands of this Hon’ble Court that an open  selection  be
made by advertisement of vacancies or such other appropriate mechanism.
X.    Judicial review versus democracy.  Judicial review is only to  prevent
unjust laws to be enacted and the rights of the minorities, whatever  colour
they could be in terms of religion, race, views they hold, by a  legislation
which enjoys brutal majority and an of the executive  which  is  tyrannical.
It is no way intended to substitute the voice of the people by the voice  of
the high judiciary.
XI.   Article 124A, as amended, is  deficient  only  in  one  respect.   The
collegium contemplated thereunder is still fully loaded  in  favour  of  the
high judiciary.  Three out of the six members are Judges.  In that sense  it
is failing to meet to be just and democratic.  But  the  Parliament  has  in
its wisdom enacted so and if there is a complaint, the forum is to  generate
public opinion and seek greater democracy.  The Petitioner is currently  not
interested in that; he is happy with the Acts as enacted and  the  principal
relief which he seeks in the instant petition is the immediate  coming  into
force of the said Acts by appropriate notification and a  mandamus  to  that
effect at the hands of this Hon’ble Court.”

10.   When my recusal from the reconstituted Bench was sought on  21.4.2015,
I had expressed unequivocally, that I had no desire  to  hear  the  matters.
Yet, keeping in view the  reasons  expressed  in  writing  by  Mr.  Fali  S.
Nariman, with reference to Anil R. Dave, J. I had disclosed in  open  Court,
that I had already sent a communication to  Hon’ble  the  Chief  Justice  of
India, that I would not participate in the proceedings of the 1+4  collegium
(of which I was, a member), till the disposal of  these  matters.  Yet,  the
objection was pressed. It needs to be recorded that Anil R. Dave, J.  was  a
member of the 1+2 collegium, as well as, the 1+4 collegium from the day  the
hearing in these matters commenced.   Surprisingly,  on  that  account,  his
recusal was never sought, and he had continued to hear the matters, when  he
was so placed (from 11.3.2015 to 7.4.2015).  But for my being  a  member  of
the 1+4 collegium, a prayer had been made for my recusal.
11.   It was, and still is, my personal view, which I do not wish to  thrust
either on Mr. Fali S. Nariman, or on Mr. Mathews J. Nedumpara, that Anil  R.
Dave, J. was amongst the most suited,  to  preside  over  the  reconstituted
Bench. As noticed above, he was a part of the 1+2 collegium,  as  also,  the
1+4 collegium, under the ‘collegium system’; he would continue to  discharge
the same responsibilities, as an ex officio Member of the National  Judicial
Appointments   Commission,   in   the   ‘Commission   system’,   under   the
constitutional amendment enforced with effect  from  13.4.2015.   Therefore,
irrespective of the system which would  survive  the  adjudicatory  process,
Anil R. Dave,  J.  would  participate  in  the  selection,  appointment  and
transfer of Judges of the higher judiciary.  He  would,  therefore,  not  be
affected by the determination of the present controversy,  one  way  or  the
other.
12.  The prayer for my recusal from the Bench was pressed  by  Mr.  Fali  S.
Nariman, Senior Advocate, in writing, as under:
“8. In the present case the Presiding Judge, (the Hon’ble Mr.  Justice  J.S.
Khehar) by reason of judgments reported in the Second  Judges  case  Supreme
Court Advocates-on-Record Assn.  v.  Union  of  India,  (1993)  4  SCC  441,
(reaffirmed by unanimously by a Bench of 9 Judges in the Third  Judges  case
Special Reference No.1 of 1998, Re. (1998  7  SCC  739),  is  at  present  a
member of the Collegium of five Hon’ble  Judges  which  recommends  judicial
appointments to the Higher Judiciary, which will now come  under  the  ambit
of the National Judicial Appointments Commission set up under the  aegis  of
the Constitution (Ninety-ninth  Amendment)  Act,  2014  read  with  National
Judicial Appointments Commission Act No.40 of  2014  –  if  valid;  but  the
constitutional validity of these enactments has been directly challenged  in
these proceedings.
The position of the Presiding Judge on this Bench  hearing  these  cases  of
constitutional challenge is not consistent with  (and  apparently  conflicts
with) his position as a member of the ‘collegium’; and is likely to be  seen
as such; always bearing in mind that if the Constitution Amendment  and  the
statute pertaining thereto are held constitutionally valid and  are  upheld,
the present presiding Judge would no longer be part of the Collegium  –  the
Collegium it  must  be  acknowledged  exercises  significant  constitutional
power.
9.    In other words would it be inappropriate  for  the  Hon’ble  Presiding
Judge to continue to sit on a Bench that adjudicates whether  the  Collegium
system, (as it is in place for the past two decades and is  stated  (in  the
writ petitions) to be a part of the basic structure  of  the  Constitution),
should continue or not continue.  The impression in peoples  mind  would  be
that it is inappropriate if not unfair if a sitting member  of  a  Collegium
sits in judgment over a scheme that seeks to replace it. This is apart  from
a consideration as to whether or not the judgment is (or is not)  ultimately
declared invalid or void: whether in the first instance or by Review  or  in
a Curative Petition.”

The above prayer for my recusal was supported by Mr. Mathews  J.  Nedumpara,
petitioner-in-person, in writing, as under:
“…..Hon’ble Shri Justice J.S. Khehar, the presiding Judge, a Judge whom  the
Petitioner holds  in  high  esteem  and  respect,  a  Judge  known  for  his
uprightness, impartiality and erudition, the Petitioner is  afraid  to  say,
ought  not  to  preside   over   the   Constitution   Bench   deciding   the
constitutional validity  or  otherwise  of  the  Constitution  (Ninety-ninth
Amendment) Act, 2014 and the National Judicial Appointments Commission  Act,
2014 (“the said Acts”, for short).  His Lordship will be  a  member  of  the
collegium if this Hon’ble  Court  were  to  hold  that  the  said  Acts  are
unconstitutional or to stay the operation of the  said  Acts,  for,  if  the
operation of the Acts is stayed, it is  likely  to  be  construed  that  the
collegium system continues to be in force by  virtue  of  such  stay  order.
Though Hon’ble Shri Justice J.S. Khehar is not  a  member  of  the  National
Judicial Appointments Commission, for, if the  NJAC  is  to  be  constituted
today, it will be consisting of the Hon’ble Chief Justice of India  and  two
seniormost Judges of this Hon’ble Court.  With  the  retirement  of  Hon’ble
Shri H.L. Dattu, Chief Justice of India, His Lordship Hon’ble  Shri  Justice
J.S. Khehar will become a member of the collegium.  Therefore,  an  ordinary
man, nay, an informed onlooker, an expression found acceptance at the  hands
of this Hon’ble Court on the question of  judicial  recusal,  will  consider
that justice would not have been done if  a  Bench  of  this  Hon’ble  Court
headed by Hon’ble Shri Justice J.S. Khehar were  to  hear  the  above  case.
For a not so informed onlooker, the layman,  the  aam  aadmi,  this  Hon’ble
Court hearing the Writ Petitions challenging the aforesaid Acts  is  nothing
but a fox being on the jury at a goose’s  trial.   The  Petitioner  believes
that the Noble heart of his Lordships Justice Khehar  could  unwittingly  be
influenced  by  the  nonconscious,  subconscious,  unconscious   bias,   his
Lordships having been placed himself in a position of conflict of interest.
3.    This Hon’ble Court itself hearing the  case  involving  the  power  of
appointment of Judges between the collegium and  the  Government,  nay,  the
executive, will not evince any  public  confidence,  except  the  designated
senior lawyers  who  seem  to  be  supporting  the  collegium  system.   The
collegium system does not have any confidence in the  ordinary  lawyers  who
are  often  unfairly  treated  nor  the  ordinary  litigants,  the   Daridra
Narayanas, to borrow an expression from legendary Justice Krishna Iyer,  who
considered that the higher judiciary, and the Supreme Court  in  particular,
is beyond the reach of the  ordinary  man.   An  ordinary  lawyer  finds  it
difficult to get even an entry into the Supreme  Court  premises.   This  is
the stark  reality,  though  many  prefer  to  pretend  not  to  notice  it.
Therefore, the Petitioner with utmost respect, while  literally  worshipping
the majesty of this Hon’ble Court, so too the  Hon’ble  presiding  Judge  of
this Hon’ble Court, in all humility, with an apology, if the Petitioner  has
erred in making this plea,  seeks  recusal  by  Hon’ble  Shri  Justice  J.S.
Khehar from hearing the above case.”

13.   As a Judge presiding over the reconstituted Bench, I found  myself  in
an awkward predicament.  I had no personal  desire  to  participate  in  the
hearing of these matters.  I  was  a  part  of  the  Bench,  because  of  my
nomination to it, by Hon’ble the Chief Justice of India.   My  recusal  from
the Bench at the asking of Mr.  Fali  S.  Nariman,  whom  I  hold  in  great
esteem, did not need a second thought.  It is not as if the prayer  made  by
Mr. Mathews J. Nedumpara, was inconsequential.
14.   But then, this was the second occasion when proceedings  in  a  matter
would have been deferred, just because, Hon’ble the Chief Justice of  India,
in the first instance, had nominated Anil R. Dave,  J.  on  the  Bench,  and
thereafter, had substituted him by nominating  me  to  the  Bench.   It  was
therefore felt, that reasons ought to be  recorded,  after  hearing  learned
counsel, at least for the guidance of Hon’ble the Chief  Justice  of  India,
so that His Lordship may not make another nomination  to  the  Bench,  which
may be similarly objected to. This, coupled with  the  submissions  advanced
by Mr. Mukul Rohatgi, Mr. Harish N.  Salve  and  Mr.  K.K.  Venugopal,  that
parameters should be laid down, led to a hearing, on the issue of recusal.
15.   On the basis of the submissions advanced by the learned  counsel,  the
Bench examined the prayer, whether I  should  remain  on  the  reconstituted
Bench, despite  my  being  a  member  of  the  1+4  collegium.   The  Bench,
unanimously concluded, that there was no conflict of interest, and no  other
justifiable reason in law, for me  to  recuse  from  the  hearing  of  these
matters.  On 22.4.2015, the Bench passed the following  short  order,  which
was pronounced by J. Chelameswar, J.:
“A preliminary  objection,  whether  Justice  Jagdish  Singh  Khehar  should
preside over this Bench, by virtue of  his  being  the  fourth  senior  most
Judge of this Court, also happens to be  a  member  of  the  collegium,  was
raised by the petitioners. Elaborate submissions were made  by  the  learned
counsel for the petitioners and  the  respondents.  After  hearing  all  the
learned counsel, we are of the unanimous opinion that  we  do  not  see  any
reason in law requiring Justice Jagdish Singh Khehar to recuse himself  from
hearing the matter. Reasons will follow.”

16.   After the order was pronounced, I disclosed to my  colleagues  on  the
Bench, that I was still undecided whether I should remain on the Bench,  for
I was toying with the idea of recusal, because a prayer to that effect,  had
been made in the face of the Court.  My colleagues on the Bench, would  have
nothing of it.  They were unequivocal in their protestation.
17.   Despite the factual position noticed above, I wish to record, that  it
is not their persuasion or exhortation, which made me take a final  call  on
the matter. The decision to remain a member of the reconstituted  Bench  was
mine, and mine alone.  The choice that I made, was not  of  the  heart,  but
that of the head.  The choice was made by posing two  questions  to  myself.
Firstly, whether a Judge hearing a matter should  recuse,  even  though  the
prayer for recusal is found to be unjustified  and  unwarranted?   Secondly,
whether I would stand true to the oath of  my  office,  if  I  recused  from
hearing the matters?
18.   The reason that was pointed out against me,  for  seeking  my  recusal
was, that I was a part of the 1+4 collegium.  But that, should have  been  a
disqualification for Anil R. Dave, J. as well.  When  he  commenced  hearing
of  the  matters,  and  till  7.4.2015,  he  suffered   the   same   alleged
disqualification. Yet, the objection  raised  against  me,  was  not  raised
against him. When confronted, Mr. Fali S.  Nariman  vociferously  contested,
that he had not sought the recusal of Anil R. Dave,  J..  He  supported  his
assertion with proof.  One wonders, why did he not seek the recusal of  Anil
R. Dave, J.?  There is no doubt about the fact, that I have  been  a  member
of the 1+4 collegium, and it is likely that I would also  shortly  become  a
Member of the NJAC, if the present challenge raised by the  petitioners  was
not to succeed. I would therefore remain a part of the selection  procedure,
irrespective of the process which prevails. That  however  is  the  position
with reference to four of us (on the instant five-Judge Bench). Besides  me,
my colleagues on the Bench – J.  Chelameswar,  Madan  B.  Lokur  and  Kurian
Joseph, JJ. would in due course be a part of the  collegium  (if  the  writ-
petitioners before this Court were to succeed), or alternatively,  would  be
a part of the  NJAC  (if  the  writ-petitioners  were  to  fail).   In  such
eventuality, the averment of  conflict  of  interest,  ought  to  have  been
raised not only against me, but also  against  my  three  colleagues.   But,
that was not the manner in which  the  issue  has  been  canvassed.   In  my
considered view, the prayer for my recusal is not well founded.  If  I  were
to accede to the prayer for my  recusal,  I  would  be  initiating  a  wrong
practice, and laying down a wrong precedent.  A  Judge  may  recuse  at  his
own, from a case entrusted to him by the Chief Justice.   That  would  be  a
matter of his own choosing.  But recusal  at  the  asking  of  a  litigating
party, unless justified, must never to be acceded to.  For that  would  give
the impression, of the Judge had been scared out of the case,  just  by  the
force of the objection. A Judge before he assumes his office, takes an  oath
to discharge his duties without fear or favour.  He would  breach  his  oath
of office, if he accepts a prayer for recusal, unless justified.  It  is  my
duty  to  discharge  my  responsibility  with   absolute   earnestness   and
sincerity.  It is my duty to abide by my  oath  of  office,  to  uphold  the
Constitution and the laws.  My decision to continue to  be  a  part  of  the
Bench, flows from the oath which I took, at the  time  of  my  elevation  to
this Court.

                                                              …………………………….J.
                                                      (Jagdish Singh Khehar)
New Delhi;
October 16, 2015.

                             THE REFERENCE ORDER

I.    THE CHALLENGE:
1.    The question which has arisen for consideration, in  the  present  set
of cases, pertains  to  the  constitutional  validity  of  the  Constitution
(Ninety-ninth  Amendment)  Act,  2014  (hereinafter  referred  to  as,   the
Constitution (99th Amendment) Act), as also, that of the  National  Judicial
Appointments Commission Act, 2014 (hereinafter  referred  to  as,  the  NJAC
Act).
2.    During the course of hearing on the merits of the  controversy,  which
pertains to the selection and appointment of Judges to the higher  judiciary
(i.e., Chief Justices and Judges of the High Courts and the Supreme  Court),
and the transfer of Chief Justices and Judges of one High Court to  another,
it emerged that  learned  counsel  for  the  respondents,  were  inter  alia
relying on the judgment  rendered  in  S.P.  Gupta  v.  Union  of  India[1],
(hereinafter referred to as, the First Judges case);  whereas,  the  learned
counsel for the petitioners were inter  alia  relying  on  the  judgment  in
Supreme  Court  Advocates-on-Record  Association  v.   Union   of   India[2]
(hereinafter referred to as, the Second Judges case), and  the  judgment  in
Re: Special Reference No.1 of 1998[3],  (hereinafter  referred  to  as,  the
Third Judges case).
3.    Per se, the stance adopted by learned counsel for the  respondents  in
placing reliance on the judgment in the First Judges case, was not  open  to
them.  This, for the simple reason, that the judgment rendered in the  First
Judges case, had been overruled by a larger  Bench,  in  the  Second  Judges
case.  And furthermore, the exposition of law declared in the Second  Judges
case, was reaffirmed by the Third Judges case.
4.    Visualizing, that the position adopted by  the  respondents,  was  not
legally permissible, the Attorney General, the Solicitor General, and  other
learned counsel representing the respondents, adopted the only  course  open
to them, namely, to seek reconsideration of the decisions rendered  by  this
Court in the Second and Third Judges cases. For the above objective  it  was
asserted, that various vital aspects of the matter, had not been brought  to
the notice of this Court, when the controversy raised in the  Second  Judges
case was canvassed.  It was contended that, had the  controversy  raised  in
the Second Judges case, been examined in the right perspective,  this  Court
would not have recorded the conclusions expressed therein, by the  majority.
It was submitted, that till the respondents were not permitted to air  their
submissions,  with  reference  to  the  unacceptability  of  the   judgments
rendered in the Second and Third Judges  cases,  it  would  not  be  in  the
fitness of matters, for this Court to dispose of  the  present  controversy,
by placing reliance on the said judgments.
5.    Keeping in mind the importance and the sensitivity of the  controversy
being  debated,  as  also,  the  vehemence  with   which   learned   counsel
representing the respondents, pressed for a re-examination of the  judgments
rendered by this Court, in the Second and Third Judges cases,  we  permitted
them, to detail the basis of their assertions.
6.    Before embarking on the issue, namely, whether the judgments  rendered
by this Court in the Second and Third Judges cases, needed to be  revisited,
we propose first of all, to determine whether or not it would  be  justified
for us, in the peculiar facts and circumstances of  this  case,  keeping  in
view the technical parameters laid down by  this  Court,  to  undertake  the
task.  In case, we conclude negatively, and hold that the prayer  seeking  a
review of the two judgments was not justified, that would render  a  quietus
to the matter.  However, even if the proposition canvassed at the behest  of
the respondents is not accepted, we  would  still  examine  the  submissions
canvassed at their behest, as in a matter of  such  extreme  importance  and
sensitivity, it may not be proper to reject a prayer for review, on  a  mere
technicality.   We  shall  then  endeavour   to   determine,   whether   the
submissions canvassed at the hands of  the  respondents,  demonstrate  clear
and compelling reasons, for a review of  the  conclusions  recorded  in  the
Second and Third Judges cases.  We shall also venture  to  examine,  whether
the respondents have been  able  to  prima  facie  show,  that  the  earlier
judgments could be seen  as  manifestly  incorrect.   For  such  preliminary
adjudication, we are satisfied, that the  present  bench-strength  satisfies
the postulated requirement, expressed in the proviso under  Article  145(3).

7.    Consequent upon the above examination, if the  judgments  rendered  in
the Second and Third Judges cases, are shown to prima facie  require  a  re-
look, we would then delve on the merits of  the  main  controversy,  without
permitting the petitioners to place reliance on either of the aforesaid  two
judgments.
8.    In case, we do not accept the submissions advanced  at  the  hands  of
the petitioners on merits, with reference to the main controversy, that  too
in a sense would conclude the matter, as the earlier regime governed by  the
Second and Third Judges cases, would  become  a  historical  event,  of  the
past, as the new scheme contemplated under the impugned  Constitution  (99th
Amendment)  Act,  along  with  the  NJAC  Act,  would  replace  the  earlier
dispensation.  In the above eventuality, the question of  re-examination  of
the Second and Third Judges cases would  be  only  academic,  and  therefore
uncalled for.
9.    However, if we accept the submissions advanced at  the  hands  of  the
learned counsel for  the  petitioners,  resulting  in  the  revival  of  the
earlier process, and simultaneously conclude in favour of  the  respondents,
that the Second and Third Judges cases need a re-look, we would  be  obliged
to refer this matter to a nine-Judge Bench (or even,  to  a  larger  Bench),
for re-examining the judgments rendered  in  the  Second  and  Third  Judges
cases.
II.   THE BACKGROUND TO THE CHALLENGE:

10.   Judges to the Supreme Court of India and High Courts  of  States,  are
appointed under Articles 124 and 217  respectively.  Additional  Judges  and
acting Judges for High Courts are appointed under  Articles  224  and  224A.
The transfer of High Court Judges and Chief Justices, of one High  Court  to
another, is made under Article 222.  For the  controversy  in  hand,  it  is
essential to extract the original Articles 124 and 217, hereunder:
“124. Establishment and constitution of Supreme Court. (1) There shall be  a
Supreme Court of India consisting of a Chief Justice  of  India  and,  until
Parliament by law prescribes a larger number, of not more than  seven  other
Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President  by
warrant under his hand and seal after consultation with such of  the  Judges
of the Supreme Court and of the High Courts in the States as  the  President
may deem necessary for the purpose and shall hold office  until  he  attains
the age of sixty-five years:
Provided that in the case of appointment of a Judge  other  than  the  Chief
Justice, the Chief Justice of India shall always be consulted:
Provided further that—
(a) a Judge may, by writing under  his  hand  addressed  to  the  President,
resign his office;
(b) a Judge may be removed from his office in the manner provided in  clause
(4).
(2A) The age of a Judge of the Supreme Court shall  be  determined  by  such
authority and in such manner as Parliament may by law provide.
(3) A person shall not be qualified  for  appointment  as  a  Judge  of  the
Supreme Court unless he is a citizen of India and—
(a) has been for at least five years a Judge of a High Court or  of  two  or
more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court  or  of  two
or more such courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation  I.—In  this  clause  "High  Court” means  a  High  Court  which
exercises,  or  which  at  any  time  before  the   commencement   of   this
Constitution exercised, jurisdiction in any part of the territory of India.
Explanation II.—In computing for the  purpose  of  this  clause  the  period
during which a person has been  an  advocate,  any  period  during  which  a
person has held judicial office not inferior to that  of  a  district  Judge
after he became an advocate shall be included.
(4) A Judge of the Supreme Court  shall  not  be  removed  from  his  office
except by an order of the President passed after an address  by  each  House
of Parliament supported by a majority of the total membership of that  House
and by a majority of not less than two-thirds of the members  of  the  House
present and voting has been presented to the President in the  same  session
for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of  an
address  and  for  the  investigation  and  proof  of  the  misbehaviour  or
incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme Court shall,  before
he enters upon his office, make and subscribe before the President, or  some
person appointed in that behalf by him, an oath or affirmation according  to
the form set out for the purpose in the Third Schedule.
(7) No person who has held office as a Judge  of  the  Supreme  Court  shall
plead or act in any court or before any authority within  the  territory  of
India.”

“217. Appointment and conditions of the office of a Judge of a High  Court.—
(1) Every Judge of a High Court shall  be  appointed  by  the  President  by
warrant under his hand and seal after consultation with  the  Chief  Justice
of India, the Governor of the State, and, in the case of  appointment  of  a
Judge other than the Chief Justice, the Chief Justice  of  the  High  Court,
and shall hold office, in the case of an  additional  or  acting  Judge,  as
provided in article 224, and in any other case, until he attains the age  of
sixty-two years:
Provided that—
(a) a Judge may, by writing under  his  hand  addressed  to  the  President,
resign his office;
(b) a Judge may be removed from his office by the President  in  the  manner
provided in clause (4) of article 124 for the removal  of  a  Judge  of  the
Supreme Court;
(c) the office of a Judge shall be vacated by his  being  appointed  by  the
President to be a Judge of the Supreme Court or by his being transferred  by
the President to any other High Court within the territory of India.
(2) A person shall not be qualified for appointment as a  Judge  of  a  High
Court unless he is a citizen of India and—
(a) has for at least ten years held a judicial office in  the  territory  of
India; or
(b) has for at least ten years been an advocate of a High Court  or  of  two
or more such courts in succession;
Explanation.— For the purposes of this clause —
(a) in computing the period during which a person has held  judicial  office
in the territory of India, there shall be included any period, after he  has
held any judicial office, during which the person has been an advocate of  a
High Court or has held the office of a member of a  tribunal  or  any  post,
under the Union or a State, requiring special knowledge of law;
(aa) in computing the period during which a person has been an  advocate  of
a High Court, there shall be included any period  during  which  the  person
has held judicial office or the office of a member  of  a  tribunal  or  any
post, under the Union or a State, requiring special knowledge of  law  after
he became an advocate;
(b) in computing the period during which a person has held  judicial  office
in the territory of India or been an advocate of High Court, there shall  be
included any period before the  commencement  of  this  Constitution  during
which he has held judicial office in any area  which  was  comprised  before
the  fifteenth  day  of  August,  1947,  within  India  as  defined  by  the
Government of India Act, 1935, or has been an advocate of any High Court  in
any such area, as the case may be.
(3) If any question arises as to the age of a Judge of  a  High  Court,  the
question shall be decided by  the  President  after  consultation  with  the
Chief Justice of India and the decision of the President shall be final.”

11.   The true effect and intent of the provisions of the Constitution,  and
all other legislative enactments made  by  the  Parliament,  and  the  State
legislatures,  are  understood  in  the  manner  they  are  interpreted  and
declared by the Supreme Court, under  Article  141.   The  manner  in  which
Articles 124 and 217 were interpreted by  this  Court,  emerges  principally
from three-Constitution Bench judgments of this Court, which are  now  under
pointed consideration. The first judgment was  rendered,  by  a  seven-Judge
Bench, by a majority of 4:3, in the First Judges case  on  30.12.1981.   The
correctness of the First Judges case was doubted by a three-Judge  Bench  in
Subhash Sharma v. Union of India[4], which opined that  the  majority  view,
in the First Judges case, should be considered by a larger Bench. The  Chief
Justice of India constituted a nine-Judge Bench, to examine  two  questions.
Firstly, whether the opinion of the Chief Justice of India in regard to  the
appointment of Judges to the Supreme Court and to the High Courts,  as  well
as, transfer of Chief Justices and Judges of High Courts,  was  entitled  to
primacy? And secondly, whether the fixation of the  judge-strength  in  High
Courts, was justiciable? By a majority of 7:2, a nine-Judge  Bench  of  this
Court, in the Second Judges  case,  overruled  the  judgment  in  the  First
Judges case. The instant judgment  was  rendered  on  6.10.1993.  Consequent
upon doubts having arisen with the Union of India, about the  interpretation
of the Second Judges case, the President of India, in exercise of his  power
under Article 143, referred nine questions to the  Supreme  Court,  for  its
opinion.  A  nine-Judge  Bench  answered  the  reference   unanimously,   on
28.10.1998.
12.   After the judgment of  this  Court  in  the  Second  Judges  case  was
rendered in 1993, and the advisory opinion of this  Court  was  tendered  to
the President of India in 1998, the term “consultation” in  Articles  124(2)
and 217(1), relating to appointment (as well as, transfer) of Judges of  the
higher judiciary, commenced to be interpreted  as  vesting  primacy  in  the
matter, with the judiciary. This according to the respondents, had  resulted
in the term “consultation” being understood  as  “concurrence”  (in  matters
governed by Articles 124, 217 and 222).  The Union of India, then  framed  a
Memorandum of Procedure on 30.6.1999, for  the  appointment  of  Judges  and
Chief Justices to the High Courts and the Supreme Court, in consonance  with
the above two judgments.  And appointments came to be  made  thereafter,  in
consonance with the Memorandum of Procedure.
13.   As per the  position  expressed  before  us,  a  feeling  came  to  be
entertained, that a Commission for selection and appointment,  as  also  for
transfer, of Judges of the higher judiciary  should  be  constituted,  which
would replace the prevailing procedure, for appointment of Judges and  Chief
Justices of the High Courts and the Supreme  Court  of  India,  contemplated
under  Articles  124(2)  and  217(1).   It  was  felt,  that  the   proposed
Commission should be broad based.  In that, the Commission  should  comprise
of members of the judiciary, the  executive  and  eminent/important  persons
from public life.  In  the  above  manner,  it  was  proposed  to  introduce
transparency in the selection process.
14.   To achieve the purported objective, Articles 124 and  217  were  inter
alia amended, and  Articles  124A,  124B  and  124C  were  inserted  in  the
Constitution, through the Constitution (99th Amendment)  Act,  by  following
the procedure contemplated under  Article  368(2),  more  particularly,  the
proviso thereunder. The amendment, received the assent of the  President  on
31.12.2014.  It was however given effect  to,  with  effect  from  13.4.2015
(consequent upon its notification in the Gazette  of  India  (Extraordinary)
Part II, Section 1). Simultaneously therewith, the  Parliament  enacted  the
NJAC Act, which also received the assent of  the  President  on  31.12.2014.
The same was also brought into force, with effect  from  13.4.2015  (by  its
notification in the Gazette of India (Extraordinary) Part  II,  Section  1).
The above  constitutional  amendment  and  the  legislative  enactment,  are
subject matter  of  challenge  through  a  bunch  of  petitions,  which  are
collectively being heard by us.  In  order  to  effectively  understand  the
true purport of the challenge raised by the petitioners, and the nuances  of
the legal and constitutional issues involved, it is  imperative  to  have  a
bird’s eye view of the First Judges  case,  upon  which  reliance  has  been
placed by the learned counsel for the respondents, in their attempt to  seek
a review of the Second and Third Judges cases.
The First Judges case - 1981 Supp SCC 87.
15.   The Union Law Minister addressed  a  letter  dated  18.3.1981  to  the
Governor of Punjab  and  to  Chief  Ministers  of  all  other  States.   The
addressees were inter alia informed, that “…one third of the Judges of  High
Court, should as far as possible be from outside  the  State  in  which  the
High Court is situated…”.  Through the above  letter,  the  addressees  were
requested to “…(a) obtain from all additional Judges  working  in  the  High
Courts… their consent to be appointed as permanent Judges in any other  High
Court in the country…”  The above noted letter required, that the  concerned
appointees “…be required to name three High Courts, in order of  preference,
to which they would prefer to be appointed  as  permanent  Judges;  and  (b)
obtain from persons who have already been or may in the future  be  proposed
by you for initial appointment their consent to be appointed  to  any  other
High Court in the country along with a similar  preference  for  three  High
Courts…”. The Union Law  Minister,  in  the  above  letter  clarified,  that
furnishing of their consent or indication of  their  preference,  would  not
imply any commitment, at the behest of the Government, to  accommodate  them
in accordance with their preferences.  In response, quite a  few  additional
Judges, gave their consent to be appointed outside their parent State.
(i)   Iqbal Chagla (and the other petitioners) felt, that the  letter  dated
18.3.1981 was a direct attack on the “independence of  the  judiciary”,  and
an uninhibited assault on a vital/basic  feature  of  the  Constitution.   A
series of Advocates’ Associations in Bombay passed  resolutions,  condemning
the letter dated 18.3.1981, as being subversive of “judicial  independence”.
 They demanded the withdrawal of the letter.  Since that  was  not  done,  a
writ petition was filed by the above Associations in the Bombay High  Court,
challenging the letter dated 18.3.1981.  An interim order was passed by  the
High Court, restraining the Union  Law  Minister  and  the  Government  from
implementing the letter dated 18.3.1981.  A Letters Patent Appeal  preferred
against the above interim order, came to be dismissed by  a  Division  Bench
of the High Court.  The  above  interim  order,  was  assailed  before  this
Court.  While the matter was  pending  before  this  Court,  the  Union  Law
Minister and the Government  of  India,  filed  a  transfer  petition  under
Article 139A.  The transfer petition was  allowed,  and  the  writ  petition
filed in the Bombay High Court, was transferred to the Supreme Court.
(ii)  A second petition was filed by V.M. Tarkunde, in  the  High  Court  of
Delhi.  It raised a challenge to the constitutional validity of  the  letter
dated 18.3.1981.  One additional ground was raised  with  reference  to  the
three additional Judges of the Delhi High Court, namely,  O.N.  Vohra,  S.N.
Kumar and S.B. Wad, JJ., whose term was expiring on 6.3.1981.   Rather  than
being appointed for a further term  of  two  years,  their  appointment  was
extended for three months, from 7.3.1981.   These  short  term  appointments
were assailed,  as  being  unjustified  under  Article  224,  besides  being
subversive of the “independence of the judiciary”.  This writ  petition  was
also transferred for hearing to the Supreme Court.  So far as  the  circular
letter dated 18.3.1981 is concerned, the Supreme Court, on  an  oral  prayer
made by the petitioner, directed that any additional Judge who did not  wish
to respond to the circular letter may not do so, and that, he would  neither
be refused extension nor permanent appointment, on the ground  that  he  had
not  sent  a  reply  to  the  letter  dated  18.3.1981.    Thereafter,   the
appointment of S.B. Wad, J., was continued, as an  additional  Judge  for  a
period of one year from 7.6.1981, but O.N. Vohra and S.N. Kumar,  JJ.,  were
not continued beyond 7.6.1981.
(iii & iv). A third writ petition, was filed by J.L. Kalra and  others,  who
were practicing Advocates, in the Delhi  High  Court.   And  a  fourth  writ
petition was filed by S.P. Gupta, a practicing Advocate,  of  the  Allahabad
High Court.  The third and fourth writ petitions were for substantially  the
same reliefs, as the earlier two petitions.
(v)   A fifth writ petition, was filed by  Lily  Thomas.  She  challenged  a
transfer order dated 19.1.1981, whereby the Chief Justice of the High  Court
of Madras was transferred as the Chief Justice of the High Court of  Kerala.
 The above order had been passed by the  President,  under  Article  222(1),
after consultation with the Chief Justice of India.  Likewise, the  transfer
of the Chief Justice of the High Court of Patna to  the  Madras  High  Court
was challenged by asserting,  that  the  power  of  transfer  under  Article
222(1) was limited to Judges of the High  Courts,  and  did  not  extend  to
Chief Justices.  Alternatively, it was contended, that transfers could  only
be made with the  consent  of  the  concerned  Judge,  and  only  in  public
interest, and after full and effective consultation with the  Chief  Justice
of India.
(vi & vii)  A sixth writ petition  was  filed  by  A.  Rajappa,  principally
challenging the order dated 19.1.1981, whereby some Chief Justices had  been
transferred.   One  additional  submission  was  raised  in  this  petition,
namely, that the transfer of the Chief Justices had been  made  without  the
prior consultation of the Governors of the concerned  States,  and  further,
that the  said  transfers  were  not  in  public  interest,  and  therefore,
violated the procedural  requirements  contained  in  Article  217(1).   The
seventh writ petition was filed by P. Subramanian, on the same  grounds,  as
the petition filed by A. Rajappa.
(viii)      An eighth writ petition was filed  by  D.N.  Pandey  and  Thakur
Ramapati Sinha, practicing Advocates, of the  Patna  High  Court.   In  this
petition, Justice K.B.N. Singh, the Chief Justice of the  Patna  High  Court
was impleaded as respondent no.3.  On a prayer made by respondent  no.3,  he
was transposed as petitioner  no.3.   As  petitioner  no.3,  Justice  K.B.N.
Singh filed a detailed affidavit asserting, that his transfer had been  made
as a matter of punishment, and further, that it had been made on  irrelevant
and on insufficient grounds, and not in public interest. And  further  that,
it was not preceded by a full and  effective  consultation  with  the  Chief
Justice of India.
It is therefore apparent, that the above mentioned petitions related to  two
different sets of cases.  Firstly,  the  issue  pertaining  to  the  initial
appointment of Judges, and the extension  of  the  term  of  appointment  of
additional Judges, on the expiry of their original term.  And secondly,  the
transfer of Judges and Chief Justices from one High Court to another.
16.   The opinions recorded in the First Judges case, insofar  as  they  are
relevant to the present controversy, are being summarized herein:
P.N. Bhagwati, J. (as he then was):
(i)   On the subject of independence of the judiciary, it was  opined,  that
“…The concept  of  independence  of  judiciary  is  a  noble  concept  which
inspires the constitutional scheme and constitutes the foundation  on  which
rests the edifice of our democratic  polity.   If  there  is  one  principle
which runs through the entire fabric of the entire Constitution, it  is  the
principle of the  rule  of  law  and  under  the  Constitution,  it  is  the
judiciary which is entrusted with the task of keeping  every  organ  of  the
State within the limits of the law  and  thereby  making  the  rule  of  law
meaningful and effective…The judiciary stands between the  citizen  and  the
State as a bulwark against executive excesses and misuse or abuse  of  power
by the executive,  and  therefore,  it  is  absolutely  essential  that  the
judiciary must be free from executive pressure or  influence  and  this  has
been secured by the Constitution makers by making  elaborate  provisions  in
the Constitution.  “…It was felt, that the concept of “independence  of  the
judiciary” was not limited only to the independence from executive  pressure
or influence, but it was a much wider concept, which took within its  sweep,
independence  from  many  other  pressures  and  prejudices.  It  had   many
dimensions,  namely,  fearlessness  of  other  power  centers,  economic  or
political, and freedom from prejudices acquired and nourished by  the  class
to  which  the  Judges  belong.   It  was  held,  that  the   principle   of
“independence of the judiciary” had to be kept in mind,  while  interpreting
the provisions of the Constitution (paragraph 27).
(ii). On the subject of appointment of High Court  Judges,  it  was  opined,
that just like Supreme Court Judges, who are appointed under Article 124  by
the President (which in effect and substance meant the Central  Government),
likewise, the power of appointment of High Court Judges under  Article  217,
was to be exercised by the Central Government. Such power, it was held,  was
exercisable only “…after consultation with the Chief Justice of  India,  the
Governor of the State, and, the Chief Justice of the High  Court…”   It  was
concluded, that it was clear on a plain reading of the above  two  Articles,
that the Chief Justice of India, the Chief Justice of the  High  Court,  and
such other Judges of the High  Court  and  of  the  Supreme  Court  (as  the
Central Government may  deem  necessary  to  consult),  were  constitutional
functionaries, having a consultative role, and  the  power  of  appointments
rested solely and exclusively in the decision  of  the  Central  Government.
It was pointed out, that the above power was not  an  unfettered  power,  in
the sense, that the Central Government could not  act  arbitrarily,  without
consulting the constitutional functionaries specified in the  two  Articles.
The Central Government was to act, only after consulting the  constitutional
functionaries, and that, the consultation  had  to  be  full  and  effective
(paragraph 29).
(iii).      On the question  of  the  meaning  of  the  term  “consultation”
expressed in Article 124(2) and Article  217(1),  it  was  held,  that  this
question was no longer res integra, as the  issue  stood  concluded  by  the
decision of the Supreme Court in Union  of  India  v.  Sankalchand  Himatlal
Sheth[5], wherein its meaning  was  determined  with  reference  to  Article
222(1).  But, since it was the common ground between the parties,  that  the
term “consultation” used in Article 222(1) had the same  meaning,  which  it
had in Articles 124(2)  and  217(1),  it  was  held  that,  “…therefore,  it
follows that the President must communicate to the  Chief  Justice  all  the
material he has and the course he proposes.  The  Chief  Justice,  in  turn,
must  collect  necessary  information  through   responsible   channels   or
directly, acquaint himself  with  the  requisite  data,  deliberate  on  the
information he possesses and proceed in the interests of the  administration
of justice to give the President such counsel of action as  he  thinks  will
further the public interest, especially the cause of the  justice  system…" 
It was further concluded, that the  above  observation  in  the  Sankalchand
Himatlal Sheth case5 would apply with equal force  to  determine  the  scope
and meaning of the  term  “consultation”  within  the  meaning  of  Articles
124(2) and 217(1). Each of the constitutional functionaries, required to  be
consulted under these two Articles, must have for  his  consideration,  full
and identical facts bearing  upon  appointment  or  non-appointment  of  the
person concerned, and the  opinion  of  each  of  them  taken  on  identical
material, must be considered by the Central Government, before  it  takes  a
decision, whether or not to appoint the person concerned  as  a  Judge.   It
was open to the Central Government to take its own decision,  in  regard  to
the appointment or non-appointment of  a  Judge  to  a  High  Court  or  the
Supreme Court, after taking into account  and  giving  due  weight  to,  the
opinions expressed. It was also observed, that  the  only  ground  on  which
such a decision could be assailed was, that the action  was  based  on  mala
fides or irrelevant considerations. In  case  of  a  difference  of  opinion
amongst the constitutional functionaries, who were to be consulted,  it  was
felt, that it was for  the  Central  Government  to  decide,  whose  opinion
should be accepted. The contention raised  on  behalf  of  the  petitioners,
that in the consultative process,  primacy  should  be  that  of  the  Chief
Justice of India, since he was the head of the Indian  judiciary  and  pater
familias of the judicial fraternity, was rejected for the reason, that  each
of the constitutional functionaries was entitled to  equal  weightage.  With
reference to appointment of Judges of the Supreme Court, it was  held,  that
the Chief Justice of India was required to be  consulted,  but  the  Central
Government was not bound to act in accordance with the opinion of the  Chief
Justice of India, even though, his opinion was entitled to great weight.  It
was therefore  held,  that  the  ultimate  power  of  appointment,    rested
with   the   Central    Government (paragraph 30).
(iv). On the issue of appointment of Judges of the  Supreme  Court,  it  was
concluded,  that  consultation  with  the  Chief  Justice  of  India  was  a
mandatory requirement. But while making an appointment,  consultation  could
extend to such other Judges of the Supreme Court, and of  the  High  Courts,
as  the  Central  Government  may  deem  necessary.   In  response  to   the
submission, where only the Chief Justice of India was consulted (i.e.,  when
consultation did not extend to other Judges of the Supreme Court, or of  the
High Courts), whether the opinion tendered by the  Chief  Justice  of  India
should be treated as binding, it was opined, that  there  was  bound  to  be
consultation, with one or more of the Judges of the  Supreme  Court  and  of
the High Courts, before exercising the power of appointment conferred  under
Article 124(2).  It was felt, that consultation with the  Chief  Justice  of
India alone, with reference to the appointment  of  Judges  to  the  Supreme
Court, was not a very satisfactory mode of appointment, because  wisdom  and
experience demanded, that no  power  should  rest  in  a  single  individual
howsoever high and great he may be, and howsoever honest  and  well-meaning.
It was suggested, that it would be more appropriate  if  a  collegium  would
make the recommendations to the President, with regard  to  appointments  to
the higher judiciary, and the recommending authority should  be  more  broad
based. If the collegium was  comprised  of  persons  who  had  knowledge  of
persons, who may be fit for appointment to  the  Bench,  and  possessed  the
qualities required for such appointment, it would  go  a  long  way  towards
securing  the  right  kind  of  Judges,  who  would  be  truly   independent
(paragraph 31).
(v)   It was held, that the appointment of  an  additional  Judge,  must  be
made by following the procedure postulated in Article 217(1).   Accordingly,
when the term of an additional Judge expired, and he ceased to be  a  Judge,
his reappointment could only be made by once again  adopting  the  procedure
set out in Article 217(1).  The contention, that an  additional  Judge  must
automatically and without any  further  consideration  be  appointed  as  an
additional Judge for a further term, or, as a permanent Judge, was  rejected
(paragraphs 38 to 44).
(vi)  On the question of validity of the letter of the  Union  Law  Minister
dated 18.3.1981, it was opined, that the same did not violate any  legal  or
constitutional provision.  It was felt, that the advance consent  sought  to
be obtained through the letter dated 18.3.1981, from  additional  Judges  or
Judges prior to their permanent appointment, would have no meaning,  so  far
as the Chief Justice of India was concerned,  because  irrespective  of  the
fact, whether the additional Judge had given his consent or not,  the  Chief
Justice of India would have to consider,  whether  it  would  be  in  public
interest to allow the additional Judge to be appointed as a permanent  Judge
in another High Court (paragraph 54).
(vii) After having determined the merits of the individual claim  raised  by
S.N. Kumar, J., (who was discontinued by the Central  Government,  while  he
was holding the position of additional Judge), it  was  concluded,  that  it
would be proper if the Union of India could find a way, to place the  letter
dated 7.5.1981 addressed by the Chief Justice of Delhi  High  Court  to  the
Law Minister, before the Chief Justice of  India,  and  elicit  his  opinion
with reference to that letter.  And thereupon consider, whether S.N.  Kumar,
J., should be reappointed as additional Judge.
(viii)      With reference to K.B.N. Singh, CJ., it was  opined  that  there
was a clear abdication by  the  Central  Government  of  its  constitutional
functions, and therefore, his transfer from the  Patna  High  Court  to  the
Madras High Court was held as unconstitutional and void.
A.C. Gupta, J.:
(i).  On the subject of the “independence of the judiciary”, it was  opined,
that the same did not mean freedom of Judges to act  arbitrarily.   It  only
meant,  that  Judges  must  be  free,  while  discharging   their   judicial
functions.  In order to maintain “independence of  the  judiciary”,  it  was
felt, that Judges had  to  be  protected  against  interference,  direct  or
indirect.  It was concluded, that the constitutional provisions  should  not
be construed in a manner, that  would  tend  to  undermine  the  concept  of
“independence of the judiciary” (paragraph 119).
(ii)  On the question, whether, on the expiry of the term of  office  of  an
additional Judge of a High Court, it was permissible  to  drop  him  by  not
giving him another term, though the volume of  work,  pending  in  the  High
Court, required the services of another Judge?   It  was  opined,  that  the
tenure of an additional Judge, was only dependent on the  arrears  of  work,
or the temporary increase in the business of a High  Court.   And  since  an
additional Judge  was  not  on  probation,  his  performance  could  not  be
considered to determine, whether he was fit for appointment as  a  permanent
Judge.  Therefore, it was concluded, that if the volume of work  pending  in
the High Court justified the  appointment  of  an  additional  Judge,  there
could be no reason,  why  the  concerned  additional  Judge  should  not  be
appointed for another term.  The  submission  that  the  two  years’  period
mentioned in Article 224, depicted the upper limit of the tenure,  and  that
the President was competent to appoint an additional Judge, for any  shorter
period, was rejected.  Since the fitness of a Judge, had been considered  at
the time of his initial appointment, therefore,  while  determining  whether
he should be reappointed, under Article 217(1),  it  was  opined,  that  the
scope of inquiry was limited, to whether the volume of work pending  in  the
High Court, necessitated his continuation.
(iii).      Referring to the opinion expressed by the Chief Justice  of  the
High Court, in connection with S.N. Kumar, J.,  it  was  opined,  that  when
allegations were levelled against a Judge with respect to the  discharge  of
his duties, the only reasonable course open, which would not  undermine  the
“independence of the judiciary” was, to proceed with  an  inquiry  into  the
allegations and remove the Judge, if the allegations were found to  be  true
(in accordance with the procedure laid down under  Article  124(4)  and  (5)
read with Article 218).  It was felt that, dropping an additional Judge,  at
the end of his initial term  of  office,  on  the  ground  that  there  were
allegations against him, without properly  ascertaining  the  truth  of  the
allegations,  was  destructive  of  the  “independence  of  the   judiciary”
(paragraph 123).
(iv).  With  reference  to  the  non-continuation  of  S.N.  Kumar,  J.,  an
additional Judge of the Delhi High Court, it was observed, that  the  letter
of the Chief Justice of the Delhi High Court dated  7.5.1981,  addressed  to
the Law Minister, was not disclosed to the Chief Justice of India.   As  the
relevant material was withheld from the  Chief  Justice  of  India,  it  was
concluded,  that  there  was  no  full  and  effective  “consultation”,   as
contemplated by Article 217(1).  And therefore, the decision not  to  extend
the term of office of S.N. Kumar, J., as additional Judge of the Delhi  High
Court, though the volume of pending work in  the  High  Court  required  the
services of an additional Judge, was invalid.
(v).  On the question, whether the opinion of the  Chief  Justice  of  India
would have primacy, in case of a difference of  opinion  between  the  Chief
Justice of a High Court and the Chief Justice of India, the  view  expressed
was, that the President should accept the opinion of the  Chief  Justice  of
India, unless such opinion suffered from any obvious infirmity.   And  that,
the President could not act  as  an  umpire,  and  choose  between  the  two
opinions (paragraph 134).
(vi). Referring to the judgment in the  Sankalchand  Himatlal  Sheth  case5,
wherein it was concluded, that mass transfers were  not  contemplated  under
Article 222(1), it was opined, that the President  could  transfer  a  Judge
from one High Court to another,  only  after  consultation  with  the  Chief
Justice of India.  And that, the Chief Justice of  India  must  consider  in
each case, whether the proposed transfer was in public  interest  (paragraph
138).
(vii).      With reference to the transfer of K.B.N. Singh,  CJ.,  from  the
Patna High Court to the Madras High Court, it was opined, that even  if  the
above transfer had been made  for  administrative  reasons,  and  in  public
interest, it was likely to cause some  injury  to  the  transferee,  and  it
would only be fair to consider the possibility of  transferring  him,  where
he would face least difficulties,  namely,  where  the  language  difficulty
would not be acute.
S. Murtaza Fazal Ali, J.:
(i)   On the issue, whether  the  transfer  of  a  High  Court  Judge  under
Article 222 required the consent of the Judge proposed  to  be  transferred,
it  was  opined,  that  a  non-consensual  transfer,  would  not  amount  to
punishment, nor would it involve any stigma. It was  accordingly  concluded,
that a transfer made after complying with Article  222,  would  not  mar  or
erode the “independence of the judiciary” (paragraph 345).
(ii). With reference to  appointing  Chief  Justices  of  High  Courts  from
outside the State, and for having 1/3rd Judges  in  every  High  Court  from
outside the State, it was expressed, that Article 222 conferred  an  express
power with the  President,  to  transfer  a  Judge  (which  includes,  Chief
Justice) from one State to another. In determining as to how this power  had
to be exercised, it was felt, that the President  undoubtedly  possessed  an
implied power to lay down the norms, the principles, the conditions and  the
circumstances,  under  which  the  said  power  was  to  be   exercised.   A
declaration by the President regarding the nature and terms  of  the  policy
(which virtually meant a declaration by the Council of Ministers) was  quite
sufficient, and absolutely legal and constitutional (paragraph 410).
(iii).      On the subject of validity  of  the  letter  of  the  Union  Law
Minister dated 18.3.1981, it was held, that the same  did  not  in  any  way
tarnish the image of Judges, or mar  the  “independence  of  the  judiciary”
(paragraph 433).
(iv).  On  the  question  of  appointment  of  additional  Judges,  and  the
interpretation of Article 217, the opinion expressed by  P.N.  Bhagwati  and
E.S. Venkataramiah, JJ. were adopted  (paragraph 434).
(v).  Insofar as the  interpretation  of  Article  224  was  concerned,  the
opinion of P.N. Bhagwati and  D.A.  Desai,  JJ.  were  accepted,  (paragraph
537). And accordingly, their  conclusion  about  the  continuation  of  S.N.
Kumar, J., as  an  additional  Judge,  after  the  expiry  of  his  term  of
appointment, was endorsed.
(vi). On analyzing the decision rendered in the Sankalchand  Himatlal  Sheth
case5, inter alia, the following  necessary  concomitants  of  an  effective
consultation between the President and  the  Chief  Justice  of  India  were
drawn.  That the consultation, must be full and effective, and must  precede
the actual transfer of the Judge. If consultation with the Chief Justice  of
India had not taken place, before transferring a Judge, it  was  held,  that
the transfer would be unconstitutional.  All  relevant  data  and  necessary
facts, must be provided to the Chief Justice of India,  so  that,  he  could
arrive at a proper conclusion.  Only  after  the  above  process  was  fully
complied with, the consultation would be considered full and  effective.  It
was felt, that the  Chief  Justice  of  India  owed  a  duty,  both  to  the
President and to the Judge proposed to be  transferred,  to  consider  every
relevant fact, before tendering his opinion to the President. Before  giving
his opinion the Chief Justice of India, could informally ascertain from  the
Judge, if there was any personal difficulty, or any humanitarian ground,  on
which his transfer should not be made. And only after having  done  so,  the
Chief Justice  of  India,  could  forward  his  opinion  to  the  President.
Applying the above facets of the consultation process, with respect  to  the
validity of the order dated 19.1.1981,  by  which  K.B.N.  Singh,  CJ.,  was
transferred, it was held, that the consultation process  contemplated  under
Article 222, had been breached, rendering the order passed by the  President
invalid (paragraph 589).
V.D. Tulzapurkar, J.:
(i).  Insofar  as  the  question  of  “independence  of  the  judiciary”  is
concerned, it was asserted that all the  Judges,  who  had  expressed  their
opinions  in  the  matter,  had  emphasized,  that  the   framers   of   the
Constitution had taken the utmost pains, to secure the “independence of  the
Judges” of the higher judiciary.  To support the above  contention,  several
provisions of the Constitution were referred to.  It was also  pointed  out,
that the Attorney General representing the Union of India, had  not  dispute
the above proposition (paragraph 639).
(ii). With reference to additional Judges recruited  under  Article  224(1),
from the fraternity of practicing Advocates, it was  pointed  out,  that  an
undertaking was taken from them at the time of  their  initial  appointment,
that if and when a permanent judgeship of that Court was  offered  to  them,
they would not decline the same.  And additionally,  the  Chief  Justice  of
the Bombay High Court would require them to furnish a  further  undertaking,
that if they decline to accept such permanent  judgeship  (though  offered),
or if they resigned from the office of the additional judgeship, they  would
not practice before  the  Bombay  High  Court,  or  any  court  or  tribunal
subordinate to it.  Based on  the  aforesaid  undertakings,  the  contention
advanced was, that a legitimate expectancy,  and  an  enforceable  right  to
continue in office, came to be conferred on the additional Judges  recruited
from the Bar.  It was felt, that  it  was  impossible  to  construe  Article
224(1), as conferring upon the appointing authority, any absolute  power  or
discretion in the matter of appointment  of  additional  Judges  to  a  High
Court (paragraphs 622 and 624).
(iii) All submissions made on  behalf  of  the  respondents,  that  granting
extension to an additional Judge, or making him a permanent Judge  was  akin
to a fresh appointment, were rejected.  It was concluded, that extension  to
an  additional  Judge,  or  making  him  permanent,  did  not  require   re-
determination of his suitability under Article 217(1) (paragraph 628).
(iv). While dealing with the  question  of  continuation  of  an  additional
Judge,  in  situations  where  there   were   facts   disclosing   suspected
misbehaviour and/or reported lack of  integrity,  the  view  expressed  was,
that while considering the question of continuation of a sitting  additional
Judge,  on  the  expiry  of  his  initial  term,  the  test  of  suitability
contemplated within the consultative process  under  Article  217(1)  should
not be evoked — at least till a proper mechanism, having a  legal  sanction,
was provided for holding an  inquiry,  against  the  Judge  concerned,  with
reference to any suspected misbehavior and/or lack of  integrity  (paragraph
628).
(v)    On  the  scope  of  consideration,  for  continuation  as  a  sitting
additional Judge (on the expiry of a Judge’s initial term), it  was  opined,
that the consultative process should be confined only to  see,  whether  the
preconditions mentioned in  Article  224(1)  existed  or  not,  or  whether,
pendency of work justified continuation or not.  It was held, that the  test
of suitability contemplated within the consultative  process  under  Article
217(1), could not and should not, be resorted to (paragraph 629).
(vi). On the question of  primacy  of  the  Chief  Justice  of  India,  with
reference to Article  217(1),  the  view  expressed  was,  that  the  scheme
envisaged therein, by implication and intent, clearly gave  primacy  to  the
advice tendered by the Chief Justice of India.  It was however sought to  be
clarified, that giving primacy to the advice of the Chief Justice of  India,
in the matter of appointment of Judges of the  High  Court,  should  not  be
construed as a power to veto any proposal.  And that, if the advice  of  the
Chief  Justice  of  India,  had  proceeded  on  extraneous  or  non  germane
considerations, the same would be subject to judicial review,  just  as  the
President’s final decision, if he were to disregard the advice of the  Chief
Justice of India,  but  for  justified  and  cogent  reasons.   Interpreting
Article 217(1) in the above manner, it was felt, would  go  a  long  way  in
preserving the “independence of the judiciary” (paragraph 632).
(vii) With  regard  to  the  scope  of  ‘consultation’,  contemplated  under
Article 222(1), the  conclusion(s)  drawn  by  the  majority  view,  in  the
Sankalchand Himatlal Sheth case5, were endorsed.
(viii).     Insofar as, the issue of taking the  consent  of  the  concerned
Judge, prior to his transfer is concerned, based on  the  decision  rendered
in the Sankalchand Himatlal Sheth case5, it was felt, that  transfers  could
be  made  without  obtaining  the  consent  of  the  concerned  Judge.   And
accordingly it was held, that  non-consensual  transfers,  were  within  the
purview of Article 222(1) (paragraphs 645 and 646).
(ix)  With reference to the letter written by the Union Law  Minister  dated
18.3.1981, it was asserted, that even a policy transfer, without fixing  the
requisite mechanism or modality of  procedure,  would  not  ensure  complete
insulation against executive interference. Conversely it was  felt,  that  a
selective transfer in an appropriate case, for strictly  objective  reasons,
and  in  public  interest,  could  be  non-punitive.    It   was   therefore
concluded, that each case of transfer,  whether  based  on  policy,  or  for
individual reasons, would have to be judged on the facts  and  circumstances
of its own, for deciding, whether it was punitive (paragraph 649).
(x)   It was concluded, that by requiring a  sitting  additional  Judge,  to
give his consent for  being  appointed  to  another  High  Court,  virtually
amounted to seeking his consent for his transfer from his own High Court  to
another High Court, falling within the ambit of Article  222(1).   Referring
to the judgment rendered in the Sankalchand Himatlal  Sheth  case5,  it  was
felt, that the circular letter dated 18.3.1981 was an attempt to  circumvent
the safeguards and the stringent conditions expressed in the above  judgment
(paragraph 652).  And further, that the circular letter  clearly  exuded  an
odour of executive  dominance  and  arrogance,  intended  to  have  coercive
effects on the minds of sitting additional Judges, by implying a  threat  to
them, that if they did not furnish their consent to  be  shifted  elsewhere,
they would neither be continued nor made permanent.  The above  letter,  was
held to be amounting to, executive interference with  the  “independence  of
the judiciary”, and thus illegal, unconstitutional and  void.   Any  consent
obtained thereunder, was also held to be void (paragraph 654).
(xi)  It was also concluded that, the advice of the Chief Justice of  India,
would be robbed of its real efficacy,  in  the  face  of  such  pre-obtained
consent, and it would have to be regarded as  having  been  issued  malafide
and for a collateral purpose,  namely,  to  bypass  Article  222(1)  and  to
confront the Chief Justice of India, with a fait accompli, and as such,  the
same was liable to be declared as illegal  and  unconstitutional  (paragraph
655).
(xii) The above circular  letter  dated  18.3.1981,  was  also  held  to  be
violative of Article 14, since invidious discrimination was  writ  large  on
the face of the circular letter.  For this additional reason, the letter  of
the Union Law Minister dated 18.3.1981,  it  was  felt,  was  liable  to  be
struck down (paragraphs 659 and 660).
(xiii)      On the subject of non-continuation of S.N.  Kumar,  J.,  it  was
held, that it was abundantly clear  from  the  correspondence  and  notings,
that further details and  concrete  facts  and  materials  relating  to  his
integrity, though specifically asked for by  the  Chief  Justice  of  India,
were not furnished, and the letter  dated  7.5.1981,  which  contained  such
details and concrete facts and materials, were kept away from  him,  leading
to the inference, that facts which were  taken  into  consideration  by  the
Union Law Minister  and  the  Chief  Justice  of  Delhi  High  Court  (which
provided  the  basis  to  the  appointing  authority,  not  to  extend   the
appointment of S.N. Kumar, J.), were not placed before the Chief Justice  of
India, and therefore, there was neither  full  nor  effective  consultation,
between the President and  the  Chief  Justice  of  India,  as  required  by
Article 217(1).  It was accordingly concluded,  that  the  decision  against
S.N. Kumar, J., stood vitiated by legal mala fides, and as such, was  liable
to be held void and non est, and his  case  had  to  be  sent  back  to  the
President, for reconsideration and passing  appropriate  orders,  after  the
requisite consultation was undertaken afresh  (paragraphs  664  and  666  to
668).
(xiv) With respect to the validity of the transfer of K.B.N. Singh, CJ.,  it
was felt, that in the absence of any  connivance  or  complicity,  since  no
unfair play was involved in the procedure followed by the Chief  Justice  of
India, it was liable to be concluded, that the impugned  transfer  had  been
made in public interest, and not by way of punishment.  The  above  transfer
was accordingly held to be valid (paragraph 680).
D.A. Desai, J.:
(i)   After noticing, that the President  under  Article  74,  acts  on  the
advice of the Council of Ministers, and that,  while  acting  under  Article
217(3), the President performs functions of grave importance. It  was  felt,
that it could not be said that while exercising the power of appointment  of
Judges  to  the  higher  judiciary,  the  President  was  performing  either
judicial or quasi judicial functions. The function of appointment of  Judges
was declared as an executive function,  and  as  such,  it  was  held,  that
Article 74 would come into operation.  And  therefore  concluded,  that  the
President would have to act, on the advice of the Council of  Ministers,  in
the matter of appointment of Judges under Article 217 (paragraph  715).  And
therefore it came to be held, that the ultimate power of  appointment  under
Article 217, “unquestionably” rested with the President.
(ii)  It was pointed out, that before exercising the  power  of  appointment
of a Judge (other than the Chief Justice of a  High  Court),  the  President
was under a constitutional obligation, to consult the  three  constitutional
functionaries, mentioned in Article 217 (paragraphs 718 and 719).  And  that
the aforementioned three constitutional functionaries were at par  with  one
another.  They were coordinate authorities, without any relative  hierarchy,
and as such, the opinion of the Chief Justice of India could  not  be  given
primacy on the issue of appointment of Judges  of  High  Courts  (paragraphs
724, 726 and 728).
(iii) It was also concluded, that on the expiry  of  the  original  term  of
appointment of an additional Judge under Article 224,  the  continuation  of
the concerned  Judge,  would  envisage  the  re-adoption  of  the  procedure
contained in Article 217 (paragraphs 736 and 745).
(iv)  It was felt, that there was no gainsaying, that a practice  which  had
been followed for over 25  years,  namely,  that  an  additional  Judge  was
always considered for a fresh tenure, if there  was  no  permanent  vacancy,
and if there was such a vacancy, he was  considered  for  appointment  as  a
permanent Judge.  It was held, that the contention of the Attorney  General,
that such additional Judge had no priority, preference, weightage  or  right
to be considered, and that, he was on par with any other person,  who  could
be brought from the market, would amount to disregarding the  constitutional
scheme, and must be rejected (paragraph 759).  It  was  held,  that  when  a
Judge was appointed for a term of two years, as an additional Judge, it  was
sufficient to contemplate, that his  appointment  was  not  as  a  permanent
Judge. And therefore, if a permanent vacancy  arose,  the  additional  Judge
could not enforce his appointment against the permanent  vacancy  (paragraph
762).
(v)   It was also concluded, that the term of an additional Judge could  not
be  extended  for  three  months  or  six  months,  since  such  short  term
appointments, were wholly inconsistent and contrary to the clear  intendment
of Article 224, and also, unbecoming of the dignity of a  High  Court  Judge
(paragraphs 763 and 764).
(vi)  On the subject of extension of the term of  an  additional  Judge,  it
was felt, that it was not open to the constitutional functionaries,  to  sit
tight over a proposal, without expressing their opinion  on  the  merits  of
the  proposal,  and  by  sheer  inaction,  to  kill  a  proposal.   It   was
accordingly opined, that when the term of an additional Judge was  about  to
expire, it was obligatory on  the  Chief  Justice  of  the  High  Court,  to
initiate the proposal for completing the  process  of  consultation,  before
the period of initial appointment expired (paragraph 772).
(vii) With reference to the non-extension of the tenure of S.N.  Kumar,  J.,
it was felt, that when two high constitutional  functionaries,  namely,  the
Chief Justice of the Delhi High Court and the Chief Justice  of  India,  had
met with a specific reference to his doubtful  integrity,  the  act  of  not
showing the letter dated 7.5.1981 to the Chief Justice of India,  would  not
detract from the fullness of the consultation, as required by  Article  217.
Accordingly, it was held, that there was a full and effective  consultation,
on all relevant  points,  including  those  set  out  in  the  letter  dated
7.5.1981.  And the claim  of  the  concerned  Judge  for  continuation,  was
liable to be rejected.  It was however suggested,  that  the  Government  of
India could even now, show the letter dated 7.5.1981 to  the  Chief  Justice
of India, and request  him  to  give  his  comments.   After  receiving  his
comments, the Government of India could decide afresh, whether  S.N.  Kumar,
J., should be re-appointed as an additional Judge of the Delhi  High  Court.
It was however clarified, that the proposed reconsideration, should  not  be
treated as a direction, but a mere suggestion.
(viii)      On the question, whether the  consent  of  the  concerned  Judge
should be obtained prior to  his  transfer  under  Article  222(1),  it  was
concluded,  that  the  requirement  of  seeking  a  prior  consent,   as   a
prerequisite for exercising the power  of  transfer  under  Article  222(1),
deserved to be rejected (paragraph 813).  It was however observed, that  the
above power of transfer under Article 222(1) could not be exercised  in  the
absence of public interest, merely on the basis of whim,  caprice  or  fancy
of the executive, or its desire to bend a Judge to its own way of  thinking.
 Three safeguards, namely, full and effective consultation  with  the  Chief
Justice of India, the exercise of power only aimed at public  interest,  and
judicial review — in case the power was exercised contrary  to  the  mandate
of law, were suggested to insulate  the  “independence  of  the  judiciary”,
against an attempt by the executive to control it (paragraphs 813  to  815).

(ix)  It was also concluded, that the transfer of an individual  Judge,  for
something improper in his behavior, or conduct, would certainly cast a  slur
or attach a stigma, and would leave an  indelible  mark  on  his  character.
Even the High Court to which he was transferred  would  shun  him,  and  the
consumers of  justice  would  have  little  or  no  faith  in  his  judicial
integrity. Accordingly it was concluded, that a transfer on account  of  any
complaint or  grievance  against  a  Judge,  referable  to  his  conduct  or
behaviour, was impermissible under Article 222(1).
(x)   On the question of transfer of K.B.N. Singh, CJ., it  was  felt,  that
his order of transfer was vitiated for want of effective  consultation,  and
his selective transfer would cast a slur or stigma on  him.   It  was  felt,
that the transfer did not appear to be in public  interest.   The  order  of
transfer dated 20.12.1980 was accordingly, considered to  be  vitiated,  and
as such, was declared void.
R.S. Pathak, J. (as he then was):
(i)   With reference to the issue of “independence  of  the  judiciary”,  it
was observed, that while  the  administration  of  justice  drew  its  legal
sanction from the Constitution, its credibility rested in the faith  of  the
people.  Indispensable  to  such  faith,  was  the  “independence   of   the
judiciary”. An independent and  impartial  judiciary,  it  was  felt,  gives
character and content to the constitutional milieu (paragraph 874).
(ii)  On the subject of  appointment  of  Judges  to  High  Courts,  it  was
essential for the President, to consult  the  Governor  of  the  State,  the
Chief Justice of India and the Chief Justice of the  concerned  High  Court.
It was pointed out, that three distinct  constitutional  functionaries  were
involved in the consultative process, and each had a distinct role  to  play
(paragraph 887).  In a case where the Chief Justice of the  High  Court  and
the Chief Justice of India, were agreed on a recommendation, it  was  within
reason  to  hold,  that  the   President   would   ordinarily   accept   the
recommendation, unless there were strong and cogent reasons, for  not  doing
so (paragraph 889).  It was however pointed out, that the President was  not
always obliged to agree, with a recommendation, wherein  the  Chief  Justice
of the High Court and the Chief Justice of India, had  concurred.   In  this
behalf, it was observed, that even though, during the  Constituent  Assembly
debates, a proposal was  made,  that  the  appointment  of  a  Judge  should
require the “concurrence” of the Chief  Justice  of  India,  and  the  above
proposal was endorsed by the Law Commission of India, yet the  proposal  had
fallen through, and as  such,  the  Constitution  as  it  presently  exists,
contemplated “consultation” and not “concurrence” (paragraph 890).
(iii) On the question,  as  to  whether  the  Chief  Justice  of  India  had
primacy, over the recommendation made by  the  Chief  Justice  of  the  High
Court, it was felt,  that  the  Chief  Justice  of  India  did  not  sit  in
appellate judgment, over the advice tendered by the  Chief  Justice  of  the
High Court.  It was pointed out, that  the  advice  tendered  by  the  Chief
Justice of India, emerged after taking into account, not  only  the  primary
material before him, but also, the assessment made by the Chief  Justice  of
the High Court.  And therefore, when he rendered his advice, the  assessment
of the Chief Justice of  the  High  Court,  must  be  deemed  to  have  been
considered by him. It was pointed out, that from the constitutional  scheme,
it appeared, that in matters concerning the High Courts, there was  a  close
consultative relationship, between the President and the  Chief  Justice  of
India. In that capacity,  the  Chief  Justice  of  India  functioned,  as  a
constitutional check, on the  exercise  of  arbitrary  power,  and  was  the
protector of the “independence of the judiciary” (paragraph 891).
(iv)  On the subject of appointment of Judges to the  High  Courts,  it  was
concluded,  that  the  appointment  of  an  additional   Judge,   like   the
appointment of a permanent Judge, must be made in the manner  prescribed  in
Article 217(1).  Accordingly, it was felt,  that  there  was  no  reason  to
suspect, that a person found fit for appointment  as  an  additional  Judge,
and had already gained proficiency and experience, would  not  be  appointed
as a Judge for a further period, in order that the work may be  disposed  of
(paragraph 893).
(v)   It was also opined, that the judiciary by judicial verdict, could  not
decide, how many permanent Judges were required for a High Court.  And if  a
Court was not competent to do that, it could not issue a  direction  to  the
Government, that additional Judges should be appointed as  permanent  Judges
(paragraph  895).   Accordingly  it  was  felt,  that  there  was  no  doubt
whatever, that the provision of Article 217(1) would come  into  play,  when
an additional Judge was to be  considered  for  further  appointment  as  an
additional Judge, or was to be considered for  appointment  as  a  permanent
Judge (paragraph 897).
(vi)  With reference to the non-continuation  of  S.N.  Kumar,  J.,  it  was
pointed out, that the allegations contained in  the  letter  dated  7.5.1981
strongly influenced the decision of the  Government.   Since  the  aforesaid
letter was not brought to the notice of the Chief Justice of India,  it  was
inevitable to conclude, that the process  of  consultation  with  the  Chief
Justice of India  was  not  full  and  effective,  and  the  withholding  of
important and relevant material from the Chief Justice  of  India,  vitiated
the process.  It was accordingly held,  that  the  non-continuation  of  the
term of S.N. Kumar, J., was in violation  of  the  mandatory  constitutional
requirements contained in Article  217(1).  It  was  felt,  that  the  issue
pertaining  to  the  continuation  of  S.N.  Kumar,   J.,   needed   to   be
reconsidered, and a decision  needed  to  be  taken,  only  after  full  and
effective consultation (paragraph 904).
(vii) On the issue of transfer  of  Judges  under  Article  222(1),  it  was
concluded, that the consent of the  concerned  Judge  was  not  one  of  the
mandated requirements  (paragraph  913).   It  was  pointed  out,  that  the
transfer of a Judge, could be made only in  public  interest,  and  that  no
Judge could be transferred, on the ground  of  misbehaviour  or  incapacity.
The question of invoking Article 222(1), for purposes of punishing a  Judge,
was clearly ruled out (paragraphs 917 and 918).  It was clarified, that  the
Judge proposed to be transferred, did not have  a  right  of  hearing.   And
that, the scope and degree of inquiry by the Chief Justice  of  India,  fell
within his exclusive discretion.  All  that  was  necessary  was,  that  the
Judge should know why his transfer was proposed, so that he  would  be  able
to  acquaint  the  Chief  Justice  of  India,  why  he  should  not  be   so
transferred. It was further clarified,  that  the  process  of  consultation
envisaged  under  Article  222(1)  required,  that  all  the   material   in
possession of the President must be  placed  before  the  Chief  Justice  of
India (paragraph 919).
(viii)      It was held that, it was open to the Judge,  who  was  subjected
to transfer, to seek judicial review, by  contesting  his  transfer  on  the
ground that it violated Article 222(1) (paragraph 920).
(ix)  It was also felt, that the power to transfer a  Judge  from  one  High
Court to another, could constitute a threat, to the  sense  of  independence
and impartiality of the Judge, and accordingly, it was held, that  the  said
power should be exercised  sparingly,  and  only  for  very  strong  reasons
(paragraph 921).
(x)   On the  validity  of  the  transfer  of  K.B.N.  Singh,  CJ.,  it  was
concluded, that the considerations on which  the  transfer  had  been  made,
could be regarded as falling within the expression  “public  interest”,  and
therefore, the order of transfer did not violate Article 222(1).
(xi)  Insofar as the validity of the letter of the Union Law Minister  dated
18.3.1981 is concerned, it was observed, that neither the proposal  nor  the
consent given thereto, had any legal status.  In  the  above  view,  it  was
held, that the circular letter could not be  acted  upon,  and  any  consent
given pursuant thereto, was not binding.
E.S. Venkataramiah, J. (as he then was):
(i)   With reference to the “independence of the judiciary”, it was  opined,
that the same was one of the central values on which  the  Constitution  was
based.  It was pointed out, that in all countries, where  the  rule  of  law
prevailed, and the power to adjudicate upon disputes between  a  man  and  a
man, and a man and the State, and a State and another  State,  and  a  State
and the Centre, was entrusted to a judicial body, it was natural  that  such
body should  be  assigned  a  status,  free  from  capricious  or  whimsical
interference from outside, so  that  it  could  act,  without  fear  and  in
consonance with judicial conscience (paragraph 1068).
(ii)  Referring to Article 217(1) it was asserted, that each  of  the  three
functionaries mentioned therein, had to be consulted before  a  Judge  of  a
High Court could be  appointed.  It  was  pointed  out,  that  each  of  the
consultees, had a distinct and separate role to play.   Given  the  distinct
roles assigned to them, which may to some extent be  overlapping,  it  could
not be said, that  the  Chief  Justice  of  India  occupied  a  position  of
primacy, amongst the three consultees (paragraph 1019).
(iii) The power of appointment of a Judge of a High Court was considered  to
be an executive  power  (paragraph  1023).   Accordingly,  while  making  an
appointment of a High Court Judge, the President was bound to  act,  on  the
advice of his Council of Ministers, and at the same time, giving due  regard
to the opinions expressed by those who were required to be  consulted  under
Article 217(1).  Despite the above, it was felt, that  there  was  no  scope
for holding, that either the Council  of  Ministers  could  not  advise  the
President, or the opinion of the Chief Justice of India was binding  on  the
President.  Although, it was felt, that such opinion  should  be  given  due
respect and regard (paragraph 1032).  It was held,  that  the  above  method
was intrinsic in the matter of  appointment  of  Judges,  as  in  that  way,
Judges may be called people’s Judges.  If the appointments  of  Judges  were
to be made on the basis of the recommendations of  Judges  only,  then  they
will be Judges’ Judges, and such appointments may not fit  into  the  scheme
of popular democracy (paragraph 1042).
(iv)  It was held, that the Constitution did not prescribe  different  modes
of appointment for permanent Judges, additional Judges,  or  acting  Judges.
All of them were required to be appointed by the same  process,  namely,  in
the  manner  contemplated  under  Article  217(1)  (paragraph  1061).    The
appointment of almost all High Court Judges initially as  additional  Judges
under Article 224(1),  and  later  on  as  permanent  Judges  under  Article
217(1), was not  conducive  to  the  independence  of  judiciary  (paragraph
1067).  It was held, that the Constitution did not confer any right upon  an
additional Judge, to claim as of right, that he should be  appointed  again,
either as a permanent Judge, or as an  additional  Judge.   Accordingly,  it
was held, that there was no such enforceable right (paragraph 1074).
(v)   Despite the above, it was observed, that  in  the  absence  of  cogent
reasons for not appointing an additional Judge, the appointment of  somebody
else in his place, would be an unreasonable and a perverse act, which  would
entitle the additional Judge, to move a Court  for  appropriate  relief,  in
the peculiar circumstances (paragraph  1086).   It  was  held,  that  having
regard to the high office, to  which  the  appointment  was  made,  and  the
association of high dignitaries, who had to be  consulted  before  any  such
appointment was made, the application of principles of natural  justice,  as
of right, was ruled out (paragraph 1087).
(vi)  With reference to Article 222, it was opined, that the consent of  the
Judge being transferred, was not a prerequisite before passing an  order  of
transfer (paragraphs 1097 and 1099).  It was held, that the  transfer  of  a
Judge of a High Court to another High Court, could not  be  construed  as  a
fresh appointment, in the High Court to which  the  Judge  was  transferred.
An order of transfer made under Article 222, it was held, was liable  to  be
struck down by a Court, if it could be shown, that it had been made  for  an
extraneous reason, i.e., on a ground falling outside the  scope  of  Article
222.  Under Article 222, a Judge could be  transferred,  when  the  transfer
served public interest.  It was held, that the President  had  no  power  to
transfer a High Court Judge, for reasons not bearing on public interest,  or
arising out of whim, caprice or fancy of the executive, or  because  of  the
executive desire to bend a Judge to its  own  way  of  thinking  (paragraphs
1097, 1099 and 1132).
(vii) It was held, that Article 222 cannot be resorted to on the  ground  of
alleged misbehaviour or incapacity of a Judge (paragraph 1139).
(viii)      Based on the opinion expressed by several expert bodies, it  was
opined, that any transfer of a Judge of a High Court under Article  222,  in
order to implement the policy of appointing  Chief  Justice  of  every  High
Court from outside the concerned State, and of  having  at  least  1/3rd  of
Judges  of  every  High  Court  from  outside  the  State,  would   not   be
unconstitutional (paragraph 1164).
(ix)  The letter of the Union Minister of Law dated 18.3.1981, was found  to
be valid. All contentions raised against the validity thereof were  rejected
(paragraph 1239).
(x)   The  decision  of  the  President  not  to  issue  a  fresh  order  of
appointment to S.N. Kumar, J., on the expiry of his term  as  an  additional
Judge of the Delhi High Court, was held to be justified (paragraph 1128).
(xi)  The transfer of  K.B.N.  Singh,  CJ.,  was  held  to  have  been  made
strictly in consonance with  the  procedure  indicated  in  the  Sankalchand
Himatlal Sheth case5.  It was  accordingly  concluded,  that  there  was  no
ground to hold, that the above transfer was  not  considered  by  the  Chief
Justice  of  India,  in  a  fair  and  reasonable  way.  On  the  facts  and
circumstances of the case, it was concluded that  it  was  not  possible  to
hold that the above transfer was either illegal  or  void  (paragraphs  1252
and 1257).
The Second Judges Case - (1993) 4 SCC 441:
17.   For the purpose of adjudication of the present issue, namely,  whether
the judgment rendered by this Court in the Second Judges case  needs  to  be
re-examined, it is not necessary to delineate the  views  expressed  by  the
individual Judges, as the conclusions drawn by them are per se  not  subject
matter of challenge.  The limited challenge being,  that  vital  aspects  of
the matter, which needed to have been considered  were  not  canvassed,  and
therefore, could not be taken into consideration in the process of  decision
making.  In the above  perspective,  we  consider  it  just  and  proper  to
extract hereunder, only the conclusions drawn by the majority view:
“(1) The process of appointment of Judges to the Supreme Court and the  High
Courts is an integrated ‘participatory consultative process’  for  selecting
the best and most suitable persons available for appointment;  and  all  the
constitutional functionaries must perform  this  duty  collectively  with  a
view primarily to reach an agreed decision,  subserving  the  constitutional
purpose, so that the occasion of primacy does not arise.
(2) Initiation of the proposal for appointment in the case  of  the  Supreme
Court must be by the Chief Justice of India, and in the case of a  [pic]High
Court by the Chief Justice of  that  High  Court;  and  for  transfer  of  a
Judge/Chief Justice of a High Court, the proposal has  to  be  initiated  by
the Chief Justice of India. This  is  the  manner  in  which  proposals  for
appointments to the Supreme Court and the High Courts as  well  as  for  the
transfers of Judges/Chief Justices of the High  Courts  must  invariably  be
made.
(3)  In  the  event  of   conflicting   opinions   by   the   constitutional
functionaries, the opinion of the judiciary ‘symbolised by the view  of  the
Chief Justice of India’, and formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any High  Court  can
be made, unless it is in conformity with the opinion of  the  Chief  Justice
of India.
(5) In exceptional cases alone, for stated strong cogent reasons,  disclosed
to the Chief Justice of  India,  indicating  that  the  recommendee  is  not
suitable for appointment, that appointment recommended by the Chief  Justice
of India may not be made. However, if the stated reasons  are  not  accepted
by the Chief Justice of India and the other Judges of the Supreme Court  who
have been consulted in the matter, on reiteration of the  recommendation  by
the Chief Justice of India, the appointment should  be  made  as  a  healthy
convention.
(6) Appointment to the office of the Chief Justice of  India  should  be  of
the seniormost Judge of  the  Supreme  Court  considered  fit  to  hold  the
office.
(7) The opinion of the Chief Justice of India has not mere primacy,  but  is
determinative  in  the  matter  of  transfers  of  High  Court  judges/Chief
Justices.
(8) Consent of the transferred  Judge/Chief  Justice  is  not  required  for
either the first of any subsequent transfer from one High Court to  another.

(9) Any transfer made on the recommendation of the Chief  Justice  of  India
is not to be deemed to be punitive, and such transfer is not justiciable  on
any ground.
(10) In making all appointments and transfers, the norms indicated  must  be
followed. However, the same do not confer any justiciable right in any  one.

(11) Only limited judicial  review  on  the  grounds  specified  earlier  is
available in matters of appointments and transfers.
(12) The initial appointment of Judge can be made  to  a  High  Court  other
than that for which the proposal was initiated.
(13) Fixation of Judge-strength in the High Courts is justiciable, but  only
to the extent and in the manner indicated.
(14) The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR  365:
AIR 1982 SC 149, in so far  as  it  takes  the  contrary  view  relating  to
primacy  of  the  role  of  the  Chief  Justice  of  India  in  matters   of
appointments and transfers, and the justiciability of these matters as  well
as in relation to Judge-strength, does not commend itself  to  us  as  being
the correct view. The relevant provisions  of  the  Constitution,  including
the constitutional scheme must now be construed, understood and  implemented
in the manner indicated herein by us.”

The Third Judges case - (1998) 7 SCC 739:
18.   For exactly the same reasons as have been noticed  with  reference  to
the Second Judges case, it is not necessary  to  dwell  into  the  unanimous
view expressed in the Third Judges case.  The  concession  of  the  Attorney
General for India, as was expressly recorded in paragraph 11  of  the  Third
Judges case, needs to be extracted to highlight  the  fact,  that  the  then
Attorney General had conceded, that the opinion recorded by the majority  in
the Second Judges case, had been accepted by the  Union  of  India  and,  as
such, would be binding  on  it.   Paragraph  11  is  accordingly  reproduced
hereunder:
“11. We record at the outset the statements of  the  Attorney  General  that
(1) the Union of India is not seeking a review  or  reconsideration  of  the
judgment in the Second Judges case (1993) 4 SCC 441 and that (2)  the  Union
of India shall accept and treat as binding the answers of this Court to  the
questions set out in the Reference.”

19.   It is likewise necessary to extract herein, only the final summary  of
conclusions expressed in the Third Judges case, which are placed below:
“1.   The expression "consultation with  the  Chief  justice  of  India"  in
Articles 217(1) of the Constitution of India requires  consultation  with  a
plurality of Judges in the formation of the opinion of the Chief Justice  of
India. The sole, individual opinion of the Chief Justice of Indian does  not
constitute "consultation" within the meaning of the said Articles.
2.    The transfer of puisne Judges is judicially reviewable  only  to  this
extent: that the recommendation that has been made by the Chief  Justice  of
India in this behalf has  not  been  made  in  consultation  with  the  four
seniormost puisne Judges of the Supreme Court and/or that the views  of  the
Chief Justice of the High Court from which the transfer is  to  be  effected
and of the Chief Justice of the High Court to which the transfer  is  to  be
effected have not been obtained.
3.    The Chief Justice of India must make a  recommendation  to  appoint  a
Judge of the Supreme Court and to transfer a Chief Justice or  puisne  Judge
of a High Court in consultation with the four seniormost  puisne  Judges  of
the  Supreme  Court.  Insofar  as  an  appointment  to  the  High  Court  is
concerned,  the  recommendation  must  be  made  in  consultation  with  two
seniormost puisne Judges of the Supreme Court.
4.    The Chief Justice of India is  not  entitled  to  act  solely  in  his
individual capacity, without consultation with other Judges of  the  Supreme
Court, in respect of materials and information conveyed  by  the  Government
of India for non-appointment of a judge recommended for appointment.
5.    The requirement of consultation by the Chief  Justice  of  India  with
his colleagues who are likely to be  conversant  with  the  affairs  of  the
concerned High Court does not refer only to those Judges who have that  High
Court as a parent High Court. It does not exclude Judges who  have  occupied
the office of a Judge or Chief Justice of that High Court on transfer.
6.    "Strong cogent reasons" do not have to be  recorded  as  justification
for a departure from the order of  seniority,  in  respect  of  each  senior
Judge who has been passed over. What has to  be  recorded  is  the  positive
reason for the recommendation.
7.    The views of the Judges consulted should be in writing and  should  be
conveyed to the Government of India by the  Chief  Justice  of  India  along
with his views to the extent set out in the body of this opinion.
8.    The Chief Justice of India is obliged to comply  with  the  norms  and
the requirement of the consultation process, as aforestated, in  making  his
recommendations to the Government of India.
9.    Recommendations made by the Chief Justice of India  without  complying
with  the  norms  and  requirements  of   the   consultation   process,   as
aforestated, are not binding upon the Government of India.”

III.  MOTION BY THE RESPONDENTS, FOR THE REVIEW  OF  THE  SECOND  AND  THIRD
JUDGES CASES:

20.   It was the contention of the learned Attorney  General,  that  in  the
submissions advanced at the hands of the learned  counsel  representing  the
petitioners, for adjudication of the merits  of  the  controversy,  emphatic
reliance had been placed on the judgments rendered  by  this  Court  in  the
Second and Third Judges  cases.   It  was  the  contention  of  the  learned
Attorney General, that the conclusions drawn in the above judgments,  needed
a reconsideration by way of a fresh  scrutiny,  to  determine,  whether  the
conclusions recorded therein, could withstand  the  original  provisions  of
the  Constitution,  viewed  in  the  background  of  the  debates   in   the
Constituent Assembly.
21.   In order to record the facts truthfully, it was emphasized,  that  the
submissions advanced by him, could not be canvassed on behalf of  the  Union
of India as in the Third Judges case, the Union had consciously accepted  as
binding the judgment rendered in the Second Judges case.
Despite the above, the Attorney General was  emphatic,  that  the  Union  of
India could not be debarred from seeking  reconsideration  of  the  judgment
rendered by this Court in the Second Judges case.  In order to dissuade  the
learned Attorney General from the course  he  insisted  to  pursue,  it  was
suggested, that the determination by this Court in the  Second  Judges  case
would not prejudice the claim of the Union of  India,  if  the  Union  could
establish, that the “basic  structure”  of  the  Constitution,  namely,  the
“independence  of  the  judiciary”  would  not  stand  compromised  by   the
Constitution (99th Amendment) Act.   Despite  the  instant  suggestion,  the
Attorney General  pleaded,  that  he  be  allowed  to  establish,  that  the
determination rendered by the nine-Judge Bench in the  Second  Judges  case,
was not sustainable in law.  At his insistence, we allowed  him  to  advance
his submissions.  Needless to mention, that  if  the  Attorney  General  was
successful in persuading us, that the said judgment did not prima facie  lay
down the correct legal/constitutional position, the matter would have to  be
examined by a Constitution Bench, with a strength of nine or more Judges  of
this Court, only if, we would  additionally  uphold  the  challenge  to  the
impugned constitutional amendment, and strike down the same,  failing  which
the new regime would replace the erstwhile system.
22.   First and foremost, our attention was drawn  to  Article  124  of  the
Constitution, as  it  existed,  prior  to  the  present  amendment.  It  was
submitted that Article  124  contemplated,  that  the  Supreme  Court  would
comprise of the Chief Justice of  India,  and  not  more  than  seven  other
Judges (unless, the Parliament by law, prescribed a larger number).  It  was
submitted, that clause (2) of Article 124 vested the  power  of  appointment
of Judges of the Supreme Court,  with  the  President.   The  proviso  under
Article 124(2) postulated a mandatory “consultation” with the Chief  Justice
of India.  Appointments contemplated under Article 124, also required a non-
mandatory “consultation” with such other Judges of  the  Supreme  Court  and
High Courts, as the  President  may  deem  necessary.   It  was  accordingly
submitted, that the consultation contemplated under Article 124(2),  at  the
hands of the President was wide enough to include, not  only  the  collegium
of Judges, in terms of the judgment rendered by this  Court  in  the  Second
Judges case, but each and every single Judge on the strength of the  Supreme
Court, and also the Judges  of  the  High  Courts  of  the  States,  as  the
President may choose to consult.  It was  submitted,  that  only  a  limited
role assigned to the Chief  Justice  of  India,  had  been  altered  by  the
judgment in the Second Judges case, into an all pervasive decision taken  by
the Chief Justice of India, in consultation with a collegium of  Judges.  It
was pointed out, that the term “consultation” expressed in Article 124  with
reference to the Chief Justice  of  India,  had  been  interpreted  to  mean
“concurrence”.   And accordingly, the President has been held to  be  bound,
by the recommendation made to him, by the Chief Justice  of  India  and  his
collegium of Judges.  It was contended, that the  above  determination,  was
wholly extraneous to the plain reading of the language  engaged  in  Article
124 (in its original format).  It was asserted, that  there  was  never  any
question   of   “concurrence”,   as   Article   124   merely    contemplated
“consultation”. It was contended, that the  above  “consultation”  had  been
made mandatory and binding, on the President even in a situation where,  the
opinion expressed by the Chief Justice and the collegium of Judges, was  not
acceptable  to  the  President.   It  was  asserted,   that   it   was   not
understandable, how this addition came to be made to the  plain  and  simple
language engaged in framing  Article  124.   It  was  submitted,  that  once
primacy is given to the Chief Justice of India (i.e., to  the  collegium  of
Judges, contemplated under the Second and Third Judges  cases),  then  there
was an implied exclusion of “consultation”, with  the other  Judges  of  the
Supreme Court, and also, with the Judges of the High  Courts,  even  though,
there was an express provision, empowering the  President  to  make  up  his
mind, after consulting the other Judges of the Supreme Court and the  Judges
of the High Courts, as he may choose.
23.   The  Attorney  General  further  contended,  that  the  interpretation
placed on  Article  124  in  the  Second  Judges  case,  was  an  absolutely
unsustainable interpretation, specially when  examined,  with  reference  to
the following illustration.  That even if all  the  Judges  of  the  Supreme
Court, recommend a name, to which the Chief Justice of India alone, was  not
agreeable, the said recommendee could not be  appointed  as  a  Judge.  This
illustration, it was submitted, placed absolute power in the  hands  of  one
person – the Chief Justice of India.
24.   The learned Attorney General, then invited the  Court’s  attention  to
Article 125, so as to contend, that the salary payable to the Judges of  the
Supreme Court has to be determined by the Parliament by law, and until  such
determination was made, the emoluments payable to a Judge would be such,  as
were  specified  in  the  Second  Schedule.   It  was  submitted,  that  the
Parliament was given an  express  role  to  determine  even  the  salary  of
Judges, which is a condition of service of the Judges of the Supreme  Court.
 He also pointed to Article 126, which contemplates, the appointment of  one
of the Judges of the Supreme Court, to  discharge  the  functions  of  Chief
Justice of India, on account of his absence or otherwise, or when the  Chief
Justice of India, was unable to  perform  the  duties  of  his  office.  The
Court’s attention was also drawn to Article 127, to point  out,  that  in  a
situation where the  available  Judges  of  the  Supreme  Court,  could  not
satisfy the quorum of the Bench, required to adjudicate upon a  controversy,
the Chief Justice of India could continue the proceedings of  the  case,  by
including  therein,  a  Judge  of  a  High  Court  (who  was  qualified  for
appointment as a Judge of the Supreme  Court),  in  order  to  make  up  the
quorum, with the  previous  consent  of  the  President  of  India.  It  was
submitted, that the role of the President of  India  was  manifestly  inter-
twined with administration of justice, by allowing the President to  appoint
a Judge of the High Court, as a Judge of  the  Supreme  Court  on  ‘ad  hoc’
basis.  Reference was then made to Article 128, whereby  the  Chief  Justice
of India, with the previous approval  of  the  President,  could  require  a
retired Judge of the Supreme Court, or a person who has  held  office  as  a
Judge of a High Court, and was duly qualified for appointment as a Judge  of
the Supreme Court, to sit and act as a Judge of the Supreme Court.   It  was
pointed out, that this was  yet  another  instance,  where  the  President’s
noticeable  role  in  the  functioning  of   the   higher   judiciary,   was
contemplated by the Constitution itself.  The  Court’s  attention  was  then
drawn to Article 130, whereunder, even though the seat of the Supreme  Court
was to be at Delhi, it could be moved to any other place  in  India,  if  so
desired by the Chief Justice of India, with the approval of  the  President.
Yet again, depicting the active role  assigned  to  the  President,  in  the
functioning of the higher judiciary.  Likewise, the  Court’s  attention  was
invited to Articles 133 and 134, providing for an appellate remedy in  civil
and criminal matters respectively, to the Supreme Court, leaving it open  to
the Parliament to vary the scope  of  the  Courts’  appellate  jurisdiction.
Insofar as Article 137 is concerned, it was pointed out, that the  power  of
review of the judgments or orders passed by the Supreme Court,  was  subject
to the provisions of any law made by the Parliament, or any rules  that  may
be  made  under  Article  145.   With  reference  to  Article  138,  it  was
contended, that the jurisdiction of the Supreme Court, could be extended  to
matters falling in the Union List, as the Parliament may choose  to  confer.
Similar reference was made to clause (2) of  Article  138,  wherein  further
jurisdiction could be entrusted to the Supreme Court,  when  agreed  to,  by
the Government of India and by any State Government, if  the  Parliament  by
law so provides.  Based on the above, it was  contended,  that  Article  138
was yet another provision, which  indicated  a  participatory  role  of  the
Parliament, in the activities of the Supreme Court.  Likewise, this  Court’s
attention was drawn to Article 139, whereby the Parliament could confer,  by
law, the power to issue directions, orders or  writs,  in  addition  to  the
framework demarcated through Article 32(2).  This, according to the  learned
Attorney General, indicated another participatory role of the Parliament  in
the activities of the Supreme  Court.   Pointing  to  Article  140,  it  was
submitted, that the Parliament could by law confer upon  the  Supreme  Court
supplemental powers, in addition  to  the  powers  vested  with  it  by  the
Constitution, as may appear to the Parliament to be necessary or  desirable,
to enable the Supreme Court to exercise its jurisdiction  more  effectively.
It was submitted, that one Article after the other, including  Article  140,
indicated a collective and participatory  role  of  the  President  and  the
Parliament, in the  activities  of  the  Supreme  Court.   Having  read  out
Article 142(2), it was asserted, that even on the subject of  securing   the
attendance of any person, and the discovery or production of any  documents,
or  the  investigation  or  punishment  of  any  contempt  of  itself,   the
jurisdiction of the Supreme Court  was  subject  to  the  law  made  by  the
Parliament.  The learned Attorney General, also  referred  to  Article  145,
whereunder, it was open to  the  Parliament  to  enact  law  framed  by  the
Parliament, for regulating generally  the  practice  and  procedure  of  the
Supreme Court.  In the absence of any such law, the Supreme  Court  had  the
liberty to make rules for regulating  the  practice  and  procedure  of  the
Court, with the approval of the President.  It was submitted, that  even  on
elementary issues like procedure, the Parliament and/or the  President  were
assigned a role by the Constitution, in activities strictly in the  judicial
domain.  With reference to the activities of the Supreme Court, the  Court’s
attention was also drawn to Article 146, which envisages  that  appointments
of officers and servants of the Supreme Court, were to be made by the  Chief
Justice of India.  It was pointed out, that the  authority  conferred  under
Article 146, was subservient to the right of the President, to  frame  rules
requiring future appointments to any office connected to the Supreme  Court,
to be made, only in consultation with the Union  Pubic  Service  Commission.
The aforesaid right of appointing  officers  and  servants  to  the  Supreme
Court, is also clearly subservient to the right of the Parliament,  to  make
provisions by enacting law on the  above  subject.   In  the  absence  of  a
legislation, at the hands of the Parliament, the conditions  of  service  of
officers and servants of  the  Supreme  Court  would  be  such,  as  may  be
prescribed by rules framed, by  the  Chief  Justice  of  India.   The  rules
framed by the Chief Justice, are subject to the approval by  the  President,
with reference to salaries, allowances, leave and pension.
25.   With reference to the  appointments  made  to  the  High  Courts,  the
Court’s attention was invited to Article 217, whereunder, the  authority  of
appointing a Judge to a High Court  was  vested  with  the  President.   The
President  alone,  was  authorized  to   make   such   appointments,   after
“consultation” with the Chief Justice of India, the Governor of  the  State,
and the Chief Justice of the concerned High Court.   The  Court’s  attention
was also drawn to Article  221,  whereunder,  the  power  to  determine  the
salary payable to a Judge, was to be determined by law to be enacted by  the
Parliament.  Till any such law was framed  by  the  Parliament,  High  Court
Judges would be entitled to such salaries, as were specified in  the  Second
Schedule.  The allowances payable to Judges of the High Court, as also,  the
right in respect of leave of absence and pension,  were  also  left  to  the
wisdom  of  Parliament,  to  be  determined  by   law.    And   until   such
determination, Judges of the High Courts were  entitled  to  allowances  and
rights, as were indicated in the Second  Schedule.   The  Court’s  attention
was also drawn to Article 222, wherein, the President was authorized,  after
“consulting” the Chief Justice of India, to transfer a Judge from  one  High
Court  to  another.   Inviting  the  Court’s  attention  to  the  provisions
referred to in the foregoing two paragraphs contained in Part V, Chapter  IV
– The Union Judiciary, and Part VI, Chapter V  –  The  High  Courts  in  the
States, it was asserted, that the role of the President, and also,  that  of
the Parliament was  thoughtfully  interwoven  in  various  salient  aspects,
pertaining to the higher judiciary.  Exclusion  of  the  executive  and  the
legislature, in the manner expressed through the Second Judges case, in  the
matter of appointment of Judges to the higher judiciary, as  also,  transfer
of Judges and Chief Justices of one  High  Court  to  another,  was  clearly
against the spirit of the Constitution.
26.   It was submitted, that the method of  appointment  of  Judges  to  the
higher  judiciary,  was  not  the  “be  all”  or  the  “end  all”,  of   the
independence  of  the  judiciary.   The  question  of  independence  of  the
judiciary  would  arise,  with  reference  to  a  Judge,  only   after   his
appointment as a Judge of the higher judiciary. It was submitted, that  this
Court had repeatedly placed reliance  on  the  debates  in  the  Constituent
Assembly,  so  as  to  bring  out  the  intention  of  the  framers  of  the
Constitution, with reference to constitutional provisions.  In this  behalf,
he placed reliance on T.M.A. Pai Foundation v. State  of  Karnataka[6],  Re:
Special Reference No.1 of 2002[7], and also on S.R. Chaudhuri  v.  State  of
Punjab[8].  The following observations  in  the  last  cited  judgment  were
highlighted:
“33.  Constitutional  provisions  are  required   to   be   understood   and
interpreted with an object-oriented approach. A  Constitution  must  not  be
construed in a narrow and pedantic sense. The words used may be  general  in
terms but, their full  import  and  true  meaning,  has  to  be  appreciated
considering the true context in which the same  are  used  and  the  purpose
which they seek to achieve. Debates in the Constituent Assembly referred  to
in an earlier part of this judgment clearly  indicate  that  a  non-member’s
inclusion in the Cabinet was considered to be  a  “privilege”  that  extends
only for six months, during  which  period  the  member  must  get  elected,
otherwise he would cease to be a Minister. It is  a  settled  position  that
debates in the Constituent  Assembly  may  be  relied  upon  as  an  aid  to
interpret a constitutional provision because  it  is  the  function  of  the
court to find out the intention of the framers of the Constitution. We  must
remember that a Constitution is not just a document in solemn  form,  but  a
living framework for the Government of the people  exhibiting  a  sufficient
degree of cohesion and its successful working depends  upon  the  democratic
spirit underlying it being respected in letter and in  spirit.  The  debates
clearly indicate the “privilege” to extend “only” for six months.”

For the same purpose, he referred to Indra Sawhney  v.  Union  of  India[9],
and drew the Court’s attention to the opinion expressed therein:
“217. Further,  it  is  clear  for  the  afore-mentioned  reasons  that  the
executive while making the division or sub-classification has  not  properly
applied its mind to various factors, indicated above  which  may  ultimately
defeat the very purpose of  the  division  or  sub-classification.  In  that
view, para 2(i) not only becomes constitutionally invalid but  also  suffers
from the vice of non-application of mind and arbitrariness.
            xxx              xxx             xxx
772. We may now  turn  to  Constituent  Assembly  debates  with  a  view  to
ascertain the original intent underlying the use of  words  “backward  class
of citizens”. At the outset we must clarify that we  are  not  taking  these
debates or even the speeches of Dr Ambedkar as conclusive on the meaning  of
the expression “backward classes”. We are  referring  to  these  debates  as
furnishing the context in which and the  objective  to  achieve  which  this
phrase was put in clause (4). We are aware that what is  said  during  these
debates is not conclusive or binding upon the Court because several  members
may have expressed several views, all of which may not be reflected  in  the
provision finally enacted.  The  speech  of  Dr  Ambedkar  on  this  aspect,
however, stands on a different footing. He was not only the Chairman of  the
Drafting  Committee  which  inserted  the  expression  “backward”  in  draft
Article 10(3) [it was not there in the original  draft  Article  10(3)],  he
was virtually piloting the draft Article. In his  speech,  he  explains  the
reason behind draft clause (3) as also the reason  for  which  the  Drafting
Committee added the expression “backward” in the clause. In this  situation,
we fail to understand how can anyone  ignore  his  speech  while  trying  to
ascertain  the  meaning  of  the  said  expression.  That  the  debates   in
Constituent Assembly can be relied upon as an aid  to  interpretation  of  a
constitutional provision is borne out by  a  series  of  decisions  of  this
Court. [See Madhu Limaye, in re, AIR 1969 SC 1014, Golak Nath  v.  State  of
Punjab, AIR 1967 SC 1643 (Subba Rao, CJ); opinion of Sikri, CJ, in Union  of
India v. H.S.  Dhillon  (1971)  2  SCC  779  and  the  several  opinions  in
Kesavananda Bharati (1973) 4 SCC 225, where the relevance of  these  debates
is pointed out, emphasing at the same time, the  extent  to  which  and  the
purpose for which they can be referred to.] Since the expression  “backward”
or “backward  class  of  citizens”  is  not  defined  in  the  Constitution,
reference to such debates is permissible to  ascertain,  at  any  rate,  the
context, background and  objective  behind  them.  Particularly,  where  the
Court wants to  ascertain  the  ‘original  intent’  such  reference  may  be
unavoidable.”

Reliance was also placed on Kesavananda  Bharati  v.  State  of  Kerala[10],
and this Court’s attention was invited to the following:
“1088. Before I refer to the proceedings  of  the  Constituent  Assembly,  I
must first consider the question whether the  Constituent  Assembly  Debates
can be looked into  by  the  Court  for  construing  these  provisions.  The
Advocate-General of Maharashtra says until the decision  of  this  Court  in
H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia  Bahadur  and  others  v.
Union of India, (1971) 1 SCC 85 - commonly known  as  Privy  Purses  case  -
debates and proceedings were held not to be admissible. Nonetheless  counsel
on either  side  made  copious  reference  to  them.  In  dealing  with  the
interpretation of ordinary legislation, the widely held view is  that  while
it is not permissible to refer to the debates as  an  aid  to  construction,
the various stages through which the draft passed, the  amendments  proposed
to it either to add or delete any part of it,  the  purpose  for  which  the
attempt was made and the reason for its rejection may  throw  light  on  the
intention of the framers or draftsmen. The speeches in the legislatures  are
said to afford no guide because members who speak in  favour  or  against  a
particular provision or amendment only indicate [pic]their understanding  of
the provision which would not be admissible as an  aid  for  construing  the
provision. The members  speak  and  express  views  which  differ  from  one
another, and there is no way of ascertaining what views are  held  by  those
who do not speak. It is, therefore, difficult to  get  a  resultant  of  the
views in  a  debate  except  for  the  ultimate  result  that  a  particular
provision or its amendment has been adopted or rejected,  and  in  any  case
none of these can be looked into as an aid to construction except  that  the
legislative history of the provision can be referred to for finding out  the
mischief sought to be remedied or the purpose for which it  is  enacted,  if
they are relevant. But in Travancore Cochin and  others  v.  Bombay  Company
Ltd., AIR 1952 SC 366, the Golaknath case (supra),  the  Privy  Purses  case
(supra), and Union of India v. H.S. Dhillon, (1971) 2  SCC  779,  there  are
dicta against referring to the speeches in the Constituent Assembly  and  in
the last mentioned case they were referred to as supporting  the  conclusion
already arrived at. In Golaknath case (supra), as well as Privy Purses  case
(supra),  the  speeches  were  referred  to  though  it  was  said  not  for
interpreting  a  provision  but  for  either  examining  the  transcendental
character of Fundamental Rights or for the circumstances which  necessitated
the giving of guarantees to the rulers. For  whatever  purpose  speeches  in
the Constituent Assembly were looked at though it was  always  claimed  that
these are not admissible except when the meaning was ambiguous or where  the
meaning was clear for further support  of  the  conclusion  arrived  at.  In
either case they were looked into. Speaking for myself, why  should  we  not
look into them boldly  for  ascertaining  what  was  the  intention  of  our
framers and how they translated that intention? What is  the  rationale  for
treating  them  as  forbidden  or  forbidding  material.  The  Court  in   a
constitutional matter, where the intent of the framers of  the  Constitution
as embodied in the written document is to be ascertained, should  look  into
the proceedings, the relevant data including  any  speech  which  may  throw
light on ascertaining it. It can reject them as unhelpful, if they throw  no
light or throw only dim light in which nothing can be  discerned.  Unlike  a
statute, a Constitution  is  a  working  instrument  of  Government,  it  is
drafted by people who wanted it to be  a  national  instrument  to  subserve
successive generations. The Assembly constituted Committees of able  men  of
high calibre, learning and wide experience, and  it  had  an  able  adviser,
Shri B.N. Rau to assist it. A memorandum  was  prepared  by  Shri  B.N.  Rau
which  was  circulated  to  the  public  of  every  shade  of  opinion,   to
professional bodies, to legislators, to public bodies and a host  of  others
and  was  given  the  widest  publicity.  When   criticism,   comments   and
suggestions were received, a draft was prepared in the light of these  which
was submitted to the Constituent Assembly, and introduced with a  speech  by
the  sponsor  Dr  Ambedkar.  The  assembly   thereupon   constituted   three
Committees: (1) Union Powers Committee;  (2)  Provincial  Powers  Committee;
and (3) Committee on the Fundamental Rights and  Minorities  Committee.  The
deliberations and the recommendations of these Committees,  the  proceedings
of the Drafting Committee, and the speech of  Dr  Ambedkar  introducing  the
draft so prepared  along  with  the  report  of  these  Committees  are  all
valuable material. The objectives of the Assembly, the manner in which  they
met any criticism,  the  resultant  decisions  taken  thereupon,  amendments
proposed, speeches in favour or against them and their ultimate adoption  or
rejection will be helpful in throwing light  on  the  particular  matter  in
issue. In proceedings of a legislature on an ordinary draft bill, as I  said
earlier, there may be a partisan and heated debate, which  often  times  may
not throw any light on the issues  which  come  before  the  Court  but  the
proceedings in a [pic]Constituent Assembly have  no  such  partisan  nuances
and their only concern is to give the national  a  working  instrument  with
its basic structure  and  human  values  sufficiently  balanced  and  stable
enough to allow an interplay of forces which  will  subserve  the  needs  of
future generations. The highest Court created under it and charged with  the
duty of understanding and expounding it, should not, if it has to catch  the
objectives  of  the  framers,  deny  itself  the  benefit  of  the  guidance
derivable from the records of the proceedings and the deliberations  of  the
Assembly. Be that as it may, all I intend  to  do  for  the  present  is  to
examine the stages through which the  draft  passed  and  whether  and  what
attempts were made to introduce words or  expressions  or  delete  any  that
were already there and for what purpose. If these proceedings  are  examined
from this point of view, do they throw any light  on  or  support  the  view
taken by me?”

For the same proposition, reliance was  also  placed  on  Samsher  Singh  v.
State of Punjab[11], and on Manoj Narula v. Union of India[12].
27.    Having  emphasized,  that  Constituent  Assembly  debates,  had  been
adopted as a  means  to  understand  the  true  intent  and  import  of  the
provisions of the  Constitution,  reference  was  made  in  extenso  to  the
Constituent  Assembly  debates,  with  reference  to  the  provisions  (more
particularly, to Article 124)  which  are  subject  matter  of  the  present
consideration. It was pointed  out,  that  after  the  constitution  of  the
Constituent Assembly, the issue of judicial appointments  and  salaries  was
taken up by an ad  hoc  committee  on  the  Supreme  Court.   The  committee
comprised of S. Varadachariar (a former Judge of the  Federal  Court),  B.L.
Mitter (a former Advocate General of the  Federal  Court),  in  addition  to
some noted jurists – Alladi Krishnaswamy Ayyar, K.M.  Munshi  and  B.N.  Rau
(Constitutional Adviser to the Constituent Assembly of India).  The  ad  hoc
committee presented its report to the  Constituent  Assembly  on  21.5.1947.
With reference  to  judicial  independence,  it  modified  the  consultative
proposal suggested in the Sapru Committee report, by  recommending  a  panel
of 11 persons, nominated by the President, in consultation  with  the  Chief
Justice of India.  Alternatively, it was suggested,  that  the  panel  would
recommend three candidates, and  the  President  in  consultation  with  the
Chief Justice of India, would choose one of the three.   It  was  suggested,
that the panel would take its decision(s)  by  2/3rd  majority.   To  ensure
independence, it was recommended, that the panel should  have  a  tenure  of
ten years.  Based on the above report, it was submitted, that  the  proposal
suggested a wider participation of a collegium of  Judges,  politicians  and
law officers, in addition to the President and the Chief Justice  of  India,
in the matter of appointment of Judges to  the  higher  judiciary.   Learned
Attorney General went on to inform the Court,  that  on  the  basis  of  the
above report, B.N. Rau prepared a memorandum  dated  30.5.1947,  wherein  he
made his own suggestions. The above suggestions related  to  Judges  of  the
Supreme Court, as also, of High Courts.  The Court was also  informed,  that
the Union Constitution Committee presented its  report  to  the  Constituent
Assembly  on  4.7.1947,  also  pertaining  to  appointments  to  the  higher
judiciary. Yet another memorandum, on the Principles of a  Model  Provincial
Constitution was  prepared  by  the  Constitutional  Adviser  on  13.5.1947,
relating to appointments to the higher judiciary, which was adopted  by  the
Provincial Constitution Committee.  Reliance  was  placed  by  the  Attorney
General, on the speech delivered by Sardar Vallabhbhai Patel  on  15.7.1947,
wherein he expressed the following views:
“The committee have given special attention to the appointment of judges  of
the High Court.  This is considered to be very important  by  the  committee
and as the judiciary should be above suspicion and  should  be  above  party
influences, it was agreed that the appointment of High Court  judges  should
be made by the President  of  the  Union  in  consultation  with  the  Chief
Justice of the Supreme Court, the  Chief  Justice  of  the  Provincial  High
Court and the Governor with the advice  of  the  Ministry  of  the  Province
concerned. So there are many checks provided to ensure fair appointments  to
the High Court.”

The Court was informed,  that  the  first  draft  of  the  new  constitution
prepared by B.N. Rau was presented to the Constituent  Assembly  in  October
1947, wherein, it was expressed that Judges of the Supreme Court,  would  be
appointed by the President, in consultation with the sitting Judges  of  the
Supreme Court, and Judges of High Courts  in  consultation  with  the  Chief
Justice of India, except in the matter of appointment of the  Chief  Justice
of India himself.  It was suggested, that this was the  immediate  precursor
to Article 124(2) of the Constitution, as it was originally framed.
28.   It was  pointed  out,  that  in  the  above  report  prepared  by  the
Constitutional Adviser, the following passage related to the judiciary:
“Regarding the removal of judges, he (Justice  Frankfurter,  Judge,  Supreme
Court of the United States of America) drew attention to a  provision  which
had just been proposed in New York State –  the  provision  has  since  been
approved and which had the support of most of  the  judges  and  lawyers  in
this country.  The provision is reproduced below:
9-a (1)  A judge of the court of appeals, a justice of the supreme court,  a
judge of the court of claims… (types of judges) may be  removed  or  retired
also by a court on the judiciary.  The court shall be composed of the  chief
judge of the court of appeals, the senior associate judges of the  court  of
appeals and one  justice  of  the  appellate  division  in  each  department
designated by concurrence of a majority of the justices  of  such  appellate
division…
(2)  No judicial officer shall be removed by virtue of this  section  except
for cause or be retired except for mental or physical disability  preventing
the proper performance of his judicial duties,  nor  unless  he  shall  have
been served with a statement of the charges alleged for his removal  or  the
grounds for his retirement, and shall have had an opportunity to be heard…
(3)  The trial of charges for the removal of a judicial officer  or  of  the
grounds for his retirement shall be held before a court on the judiciary…
(4)  The chief judge of the court of appeals may convene the  court  on  the
judiciary upon his own motion and  shall  convene  the  court  upon  written
request by the governor  or  by  the  presiding  justice  of  any  appellate
division…”

It was submitted,  that  the  above  suggestion  of  vesting  the  power  of
impeachment, in-house by the judiciary itself,  as  recommended  by  Justice
Frankfurter, was rejected.  It was pointed out, that  the  second  draft  of
the Constitution was placed before the Constituent  Assembly  on  21.2.1948.
Articles 103 and 193 of  the  above  draft,  pertained  to  appointments  of
Judges to the Supreme  Court  and  High  Courts.   It  was  submitted,  that
several public comments were received, with reference to the  second  draft.
In this behalf, a memorandum was also  received,  from  the  Judges  of  the
Federal Court and the Chief Justices of the High Courts which,  inter  alia,
expressed as under:
“It seems desirable to insert a provision in these articles (Draft  Articles
103(2) and 193(2) to the effect that no person should be appointed  a  judge
of the Supreme Court or of a High Court who has at  any  time  accepted  the
post of a Minister in the Union of India or in any State.  This is  intended
to prevent a person who has accepted office of a  Minister  from  exercising
his influence in order to become a judge at any time.  It is  the  unanimous
view of the judges that a member of the Indian Civil Service should  not  be
a permanent Chief Justice of any High Court. Suitable  provision  should  be
made in the article for this.”

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

It was asserted, that in the memorandum  submitted  by  the  Judges  of  the
Federal Court and the Chief Justices  of  the  High  Courts,  the  following
suggestions were made:
“It is therefore  suggested  that  Article  193(1)  may  be  worded  in  the
following or other suitable manner:
Every Judge of the High Court shall be  appointed  by  the  President  by  a
warrant under his hand and seal on the recommendation of the  Chief  Justice
of the High Court after consultation with the  Governor  of  the  State  and
with the concurrence of the Chief Justice of India…
We do not think it is necessary to make any provision  in  the  Constitution
for the possibility of the Chief Justice of India refusing to concur  in  an
appointment proposed by the President.  Both are  officers  of  the  highest
responsibility and so far no case of such  refusal  has  arisen  although  a
convention now exists that such appointments should be made after  referring
the matter to the Chief Justice of India and obtaining his concurrence.   If
per chance such a situation were ever to arise it could of course be met  by
the President making a different proposal, and no  express  provision  need,
it seems to us, be made in that behalf.
The foregoing applies mutatis mutandis to the appointment of the  Judges  of
the Supreme Court, and article 103(2) may also  be  suitably  modified.   In
this connection it  is  not  appreciated  why  a  constitutional  obligation
should be cast on the President to  consult  any  Judge  or  Judges  of  the
Supreme Court or of the High Court in the States before appointing  a  Judge
of the Supreme Court.  There  is  nothing  to  prevent  the  President  from
consulting them whenever he deems it necessary to do so.”

It was pointed  out,  that  none  of  the  above  proposals  were  accepted.
Reference was also made to the Editor of  the  Indian  Law  Review  and  the
Members  of  the  Calcutta  Bar  Association,   who   made   the   following
suggestions:
“That in clause (4)  of  Article  103  the  words  “and  voting”  should  be
deleted,  as  they  consider  that  in  an  important  issue  as   the   one
contemplated in this clause, opportunity should  be  as  much  minimized  as
practicable for the legislators for remaining neutral.”

to which, the response of B.N. Rau was as under:

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

With reference to the suggestions regarding  non-reduction  of  salaries  of
Judges, the Constitutional Adviser made the following comments:
“The constitutional safeguard against the reduction of salary of  the  Chief
Justice and  the  judges  of  a  High  Court  below  the  minimum  has  been
prescribed in article 197 so as to prevent the Legislatures  of  the  States
from  reducing  the  salaries  below  a  reasonable  figure.  It  is  hardly
necessary to put such a  check  on  the  power  of  Parliament  to  fix  the
salaries of the judges of the Supreme Court.”

The suggestions made by Pittabhi Sitaramayya and others, with  reference  to
officers, and servants and the expenses of  the  Supreme  Court,  were  also
highlighted.  They are extracted hereunder:
“That in article  122,  for  the  words  “the  Chief  Justice  of  India  in
consultation with the President” the words “the  President  in  consultation
with the Chief Justice of India” be substituted.”

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

29.   It was pointed out, that the second draft  of  the  Constitution,  was
introduced in the Constituent Assembly on 4.11.1948. The  Court’s  attention
was drawn to the discussions, with reference to appointments to  the  higher
judiciary, including the suggestion of B.  Pocker  Sahib,  who  proposed  an
alternative to Article 103(2). Reference was also made to the proposal  made
by Mahboob Ali Baig Sahib, guarding against party influences,  that  may  be
brought to the fore, with  reference  to  appointment  of  Judges.   It  was
submitted, that the above suggestion was rejected by  the  Chairman  of  the
Drafting Committee, who felt that it would be dangerous to enable the  Chief
Justice to veto the appointment of a Judge to  the  higher  judiciary.   The
opinion of T.T. Krishnamachari was also to the following effect:
“[T]he independence of the Judiciary  should  be  maintained  and  that  the
Judiciary should not  feel  that  they  are  subject  to  favours  that  the
Executive might grant to them from time to time and  which  would  naturally
influence their  decision  in  any  matter  they  have  to  take  where  the
interests of the Executive of the time being happens to  be  concerned.   At
the same time, Sir, I think it should be made  clear  that  it  is  not  the
intention of this House or of the framers of  this  Constitution  that  they
want to crate specially favoured  bodies  which  in  themselves  becomes  an
Imperium in  Imperio,  completely  independent  of  the  Executive  and  the
legislature and operating as a sort of superior body  to  the  general  body
politic”.

30.   The proposals and the decision taken  thereon,  were  brought  to  our
notice, specially the observations made by K.T. Shah, K.M.  Munshi,  Tajamul
Husain, Alladi Krishnaswami Aayar, Ananthasayanam Ayyangar, and finally  Dr.
B.R. Ambedkar.  Dr. B.R. Ambedkar had stated thus:
“Finally, BR Ambedkar said:
Mr. President, Sir, I would just like to make a few  observations  in  order
to clear the position. Sir, there is no doubt that  the  House  in  general,
has agreed that the independence of the Judiciary from the Executive  should
be made as clear and definite as we could make it by law. At the same  time,
there is the fear that in the name of the independence of the Judiciary,  we
might be creating, what my Friend Mr. T.T. Krishnamachari very aptly  called
an "Imperium in    Imperio".    We     do     not     want     to     create
an Imperium in Imperio, and at the same time we want to give  the  Judiciary
ample independence so  that  it  can  act  without  fear  or  favour of  the
Executive. My friends, if they will carefully examine the provisions of  the
new amendment which I have proposed in place of the  original  article  122,
will find that the new  article  proposes  to  steer  a  middle  course.  It
refuses  to  create  an Imperium in Imperio, and  I  think  it   gives   the
Judiciary  as  much  independence  as  is  necessary  for  the  purpose   of
administering justice without fear or favour.”

31.   Having extensively brought to our notice, the nature  of  the  debates
before the Constituent  Assembly,  and  the  decisions  taken  thereon,  the
learned Attorney General ventured to demonstrate, that the participation  of
the  executive  in  the  matter  of  appointment  of   high   constitutional
functionaries, “could not – and did not”, impinge upon  their  independence,
in the discharge of their duties.  Illustratively, reliance  was  placed  on
Part IV Chapter V of the Constitution,  comprising  of  4  Articles  of  the
Constitution (Articles  148  to  151),  dealing  with  the  Comptroller  and
Auditor-General of India.  It was submitted, that duties and powers  of  the
Comptroller  and  Auditor-General  of  India,  delineated  in  Article  149,
revealed, that the  position  of  the  Comptroller  and  Auditor-General  of
India, was no  less  in  importance  vis-a-vis  the  Judges  of  the  higher
judiciary. Pointing out to Article 148, it  was  his  contention,  that  the
appointment of the Comptroller and Auditor-General of India is made  by  the
President.  His removal under clause (1) of Article 148 could only,  in  the
like manner, be made on the like grounds as a Judge of the Supreme Court  of
India.  Just like a Judge  of  the  Supreme  Court,  his  salary  and  other
conditions of service were to be determined by Parliament by law, and  until
they were so determined,  they  were  to  be  as  expressed  in  the  Second
Schedule.  Further more, just like a Judge of  the  Supreme  Court,  neither
the salary of  the  Comptroller  and  Auditor-General,  nor  his  rights  in
respect of leave of absence, pension or age of retirement, could  be  varied
to his disadvantage, after his appointment.  In a  similar  fashion,  as  in
the case of the Supreme Court, persons  serving  in  the  Indian  Audit  and
Accounts Department, were to be subject to such conditions  of  service,  as
were determined by  law  made  by  Parliament,  and  till  such  legislative
enactment was made, their conditions of service  were  determinable  by  the
President, by framing  rules,  in  consultation  with  the  Comptroller  and
Auditor-General of India.  Based on the above, it was contended,  that  even
though the appointment of the Comptroller and Auditor-General of India,  was
exclusively vested with the executive,  there  had  never  been  an  adverse
murmur with reference  to  his  being  influenced  by  the  executive.   The
inference sought to be drawn  was,  that  the  manner  of  “appointment”  is
irrelevant, to the question of independence. Independence of  an  authority,
according to the learned Attorney General, emerged from  the  protection  of
the conditions of the incumbent’s service, after the  appointment  had  been
made.
32.   In the like manner,  our  attention  was  drawn  to  Part  XV  of  the
Constitution, pertaining to elections.  It was submitted, that  Article  324
vested the superintendence,  direction  and  control  of  elections  to  the
Parliament, and the  Legislatures  of  every  State,  and  election  to  the
offices of President and Vice-President, with the Election  Commission.  The
Election Commission in terms of Article 324(2) was comprised  of  the  Chief
Election Commissioner, and such number of other  Election  Commissioners  as
the President may from time  to  time  fix.   It  was  submitted,  that  the
appointment of the Chief  Election  Commissioner,  and  the  other  Election
Commissioners, was to be made by the  President,  and  was  subject  to  the
provisions of law made by Parliament.  It  was  further  pointed  out,  that
under Article 324(5), the conditions  of  service  and  the  tenure  of  the
office of the Election Commissioners (and  the  Regional  Commissioners)  is
regulated in the manner, as  the  President  may  by  rules  determine.   Of
course, subject to, enactment  of  law  by  Parliament.   So  as  to  depict
similarity with the matter under consideration, it was contended,  that  the
proviso under Article 324(5) was explicit to  the  effect,  that  the  Chief
Election Commissioner could not be removed from his office, except  in  like
manner, and on like grounds, as a Judge of the Supreme Court.   And  further
more, that the conditions of service of  the  Chief  Election  Commissioner,
could not be varied to his disadvantage,  after  his  appointment.   It  was
contended, that the Indian experience had  been,  that  the  Chief  Election
Commissioner, and the other  Election  Commissioners,  had  functioned  with
absolute independence, and  that,  their  functioning  remained  unaffected,
despite the fact that their appointment had been made, by the executive.  It
was submitted, that impartiality/independence emerged  from  the  protection
of the conditions of service of the incumbent  after  his  appointment,  and
not by the method or manner of his appointment.
33.   It was also the contention  of  the  learned  Attorney  General,  that
implicit in the scheme of the Constitution,  was  a  system  of  checks  and
balances, wherein the different constitutional functionaries participate  in
various processes of selection, appointment, etc., so  as  to  ensure,  that
the     constitutional     functionaries     did     not     exceed,     the
functions/responsibilities assigned  to  them.  To  substantiate  the  above
contention, reliance was placed on the Kesavananda Bharati  case10,  wherein
this Court observed as under:
“577. We are unable to see how  the  power  of  judicial  review  makes  the
judiciary supreme in any sense of the  word.  This  power  is  of  paramount
importance in a federal Constitution. Indeed  it  has  been  said  that  the
heart and core of a democracy lies in the judicial process; (per  Bose,  J.,
in Bidi Supply Co. v. Union of India, AIR 1956 SC 479). The observations  of
Patanjali Sastri, C.J., in State of Madras v. V.G. Row,  AIR  1952  SC  196,
which  have  become  locus  classicus  need  alone  be  repeated   in   this
connection. Judicial review is undertaken by the  courts  “not  out  of  any
desire to tilt at legislative authority  in  a  crusader’s  spirit,  but  in
discharge of a duty plainly laid down upon them by  the  Constitution”.  The
respondents have also contended that to let the court have  judicial  review
over constitutional amendments would mean involving the court  in  political
questions. To this the answer may be given in the words of  Lord  Porter  in
Commonwealth of Australia v. Bank of New South Wales 1950 AC 235 at 310:
“The problem to be solved will often be not  so  much  legal  as  political,
social or economic, yet it must be solved by a court of law. For  where  the
dispute is, as here, not only between Commonwealth and citizen  but  between
Commonwealth and intervening States on the one hand and citizens and  States
on the other, it is only the Court that can decide the issue, it is vain  to
invoke the voice of Parliament.”
There is ample evidence in the  Constitution  itself  to  indicate  that  it
creates a system of checks and balances by reason of  which  powers  are  so
distributed that none of the three organs it sets  up  can  become  so  pre-
dominant as to disable the others from  exercising  and  discharging  powers
and functions entrusted to them. Though the Constitution does not  lay  down
the principle of separation of powers in all its rigidity as is the case  in
the United States Constitution but it  envisages  such  a  separation  to  a
degree as was found in  Ranasinghe’s  case.  The  judicial  review  provided
expressly in our Constitution by means of Articles 226 and 32 is one of  the
features upon which hinges the system of checks  and  balances.  Apart  from
that, as  already  stated,  the  necessity  for  judicial  decision  on  the
competence or otherwise of an Act arises from the very federal nature  of  a
Constitution (per Haldane, L.C. in Attorney-General for the Commonwealth  of
Australia v. Colonial Sugar Refining Co. 1914 AC 237 and Ex  Parte  Walsh  &
Johnson;  In  re  Yates,  (1925)  37  CLR  36  at  p.58.  The  function   of
interpretation of a Constitution being thus assigned to the  judicial  power
of the State, the question whether the subject of a law is within the  ambit
of one or more powers of  the  Legislature  conferred  by  the  Constitution
would always be a question of interpretation of the Constitution. It may  be
added that at no stage the respondents have contested the  proposition  that
the validity of a constitutional amendment can be the subject of  review  by
this Court. The Advocate-General of Maharashtra has  characterised  judicial
review as undemocratic. That cannot, however,  be  so  in  our  Constitution
because of the  provisions  relating  to  the  appointment  of  judges,  the
specific restriction to which the fundamental rights are made  subject,  the
deliberate exclusion of the  due  process  clause  in  Article  21  and  the
affirmation in Article 141 that judges declare but not  make  law.  To  this
may be added the none too [pic]rigid  amendatory  process  which  authorises
amendment by means  of  2/3  majority  and  the  additional  requirement  of
ratification.”

The Court’s attention was also invited to the observations recorded in  Bhim
Singh v. Union of India[13]:
“77. Another contention  raised  by  the  petitioners  is  that  the  Scheme
violates the principle of separation of powers under the  Constitution.  The
concept of separation of powers, even though not  found  in  any  particular
constitutional provision, is inherent in the  polity  the  Constitution  has
adopted. The aim of separation of powers is to achieve  the  maximum  extent
of accountability of each branch of the Government.
78. While understanding this concept, two aspects must  be  borne  in  mind.
One, that separation of powers is an essential feature of the  Constitution.
Two, that in modern governance, a strict  separation  is  neither  possible,
nor desirable.  Nevertheless,  till  this  principle  of  accountability  is
preserved, there is no violation of separation of powers. We arrive  at  the
same conclusion when we assess the position within the constitutional  text.
The Constitution does  not  prohibit  overlap  of  functions,  but  in  fact
provides for  some  overlap  as  a  parliamentary  democracy.  But  what  it
prohibits is such exercise of function of the other branch which results  in
wresting away of the regime of constitutional accountability.
79. In Ram Jawaya Kapur v. State of Punjab, AIR  1955  SC  549,  this  Court
held that: (AIR p. 556, para 12)
“12. …The Indian Constitution has not  indeed  recognised  the  doctrine  of
separation of powers in its absolute  rigidity  but  the  functions  of  the
different parts  or  branches  of  the  Government  have  been  sufficiently
differentiated  and  consequently  it  can  very  well  be  said  that   our
Constitution does not contemplate assumption, by one organ or  part  of  the
State, of functions  that  essentially  belong  to  another.  The  executive
indeed can exercise the powers of departmental  or  subordinate  legislation
when such powers are delegated to it by the legislature.
It can also, when so empowered, exercise judicial  functions  in  a  limited
way. The executive Government, however, can never go against the  provisions
of the Constitution or of any law.”
80. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC  225,  and  later
in Indira Nehru Gandhi v. Raj Narain (1976) 3 SCC 321, this  Court  declared
separation  of  powers  to  be  a  part  of  the  basic  structure  of   the
Constitution. In Kesavananda Bharati case Shelat and  Grover,  JJs.  in  SCC
para 577 observed the precise nature of the  concept  as  follows:  (SCC  p.
452)
“577. … There is ample evidence in the Constitution itself to indicate  that
it creates a system of checks and balances by reason of which powers are  so
distributed that none  of  the  three  organs  it  sets  up  can  become  so
predominant as to disable the others from exercising and discharging  powers
and functions entrusted to them. Though the Constitution does not  lay  down
the principle of separation of powers in [pic]all its  rigidity  as  is  the
case in the United States Constitution yet it envisages  such  a  separation
to a degree as was found in Ranasinghe case. The  judicial  review  provided
expressly in our Constitution by means of Articles 226 and 32 is one of  the
features upon which hinges the system of checks and balances.”

and conclusion no.5, which is reproduced as under:

“…..
(5) Indian Constitution does not recognise strict separation of powers.  The
constitutional principle of separation of powers will only  be  violated  if
an essential function of  one  branch  is  taken  over  by  another  branch,
leading to a removal of checks and balances.”

Last of all, the learned Attorney General placed reliance on State  of  U.P.
v. Jeet S. Bisht[14], wherein this Court held:
“78. Separation of powers in one sense is a limit on active jurisdiction  of
each organ. But it has another deeper and more relevant purpose: to  act  as
check and balance over the activities of other organs.  Thereby  the  active
[pic]jurisdiction of the organ is not  challenged;  nevertheless  there  are
methods of prodding to communicate  the  institution  of  its  excesses  and
shortfall  in  duty.  Constitutional  mandate  sets  the  dynamics  of  this
communication between the organs of polity. Therefore, it  is  suggested  to
not understand separation of powers as operating in  vacuum.  Separation  of
powers doctrine has been reinvented in modern times.”

34.   The learned  Attorney  General  emphasized,  that  there  was  a  very
serious and sharp cleavage  of  opinion  on  the  subject,  which  is  being
canvassed before this Court.  Relying on the judgment  rendered  by  in  the
Sankalchand Himatlal Sheth case5, he pointed  out,  that  in  the  aforesaid
judgment,  this  Court  had  arrived  at  the  conclusion,  that  the   term
“consultation” could not be deemed to be “concurrence”,  with  reference  to
Article 222.  In conjunction with the above, he  invited  our  attention  to
the judgment in the Samsher  Singh  case11,  wherein  a  seven-Judge  Bench,
which was dealing with a  controversy  relating  to  Judges  of  subordinate
courts, and the impact of Article 311, had  examined  the  question  whether
the President was to act in  his  individual  capacity,  i.e.,  at  his  own
discretion; or he was liable to act on the aid and advice of the Council  of
Ministers, as mandated  under  Article  74.   Reliance  was  placed  on  the
following observations from the aforesaid judgment:
“149. In the light of  the  scheme  of  the  Constitution  we  have  already
referred to, it is  doubtful  whether  such  an  interpretation  as  to  the
personal satisfaction of the President is correct. We are of the  view  that
the President means,  for  all  practical  purposes,  the  Minister  or  the
Council of Ministers as the case may be, and his  opinion,  satisfaction  or
decision is constitutionally secured  when  his  Ministers  arrive  at  such
opinion satisfaction or decision. The independence of the  Judiciary,  which
is a cardinal principle of the  Constitution  and  has  been  relied  on  to
justify  the  deviation,  is  guarded  by  the   relevant   article   making
consultation with the Chief Justice of India obligatory. In all  conceivable
cases consultation with that highest dignitary of Indian  justice  will  and
should be accepted by the Government of India and the  Court  will  have  an
opportunity to examine if any other extraneous  circumstances  have  entered
into the verdict of the Minister, if he departs from the  counsel  given  by
the Chief Justice of India. In practice the last word in  such  a  sensitive
subject must belong to the Chief Justice of  India,  the  rejection  of  his
advice being ordinarily  regarded  as  prompted  by  oblique  considerations
vitiating the order. In this view it is immaterial whether the President  or
the Prime Minister or the Minister for Justice formally decides the issue.”

35.   It was submitted, that the aforesaid observations as were recorded  in
the Samsher Singh case11, were relied upon in the Second Judges case.   This
Court, it was pointed out, had clarified that the observations  recorded  in
paragraph 149 in the Samsher Singh case11, were merely in the nature  of  an
obiter.  It was submitted, that the aforesaid observations  in  the  Samsher
Singh case11, were also noticed in paragraph 383 (at page 665),  wherein  it
was sought to be concluded, that the President, for all practical  purposes,
should be construed, as the concerned Minister or the Council of  Ministers.
Having noticed the constitutional provisions regarding  “consultation”  with
the judiciary, this Court had expressed, that the Government  was  bound  by
such counsel.  Reference was then made to the judgment of this Court in  the
First Judges case, wherein it was held, that “consultation” did not  include
“concurrence”, and further, that the power of appointment  of  Judges  under
Article 124, was vested with the President, and  also,  that  the  President
could override the views of the consultees.  Last of  all,  to  substantiate
his submission(s) pertaining  to  the  cleavage  of  opinion,  reliance  was
placed on the Kesavananda Bharati case10, wherein a thirteen-Judge Bench  of
this Court, had held,  with  reference  to  the  power  of  amendment  under
Article 368, that the concept of “basic structure”,  was  a  limitation,  to
the otherwise plenary power of amendment of the Constitution.
36.   In his effort to persuade us, to refer the instant matter, to a  nine-
Judge Bench (or, to a still larger  Bench),  the  learned  Attorney  General
placed reliance on Suraz India Trust v. Union of India[15], and invited  our
attention to the following:
“3. Shri A.K. Ganguli, learned  Senior  Advocate,  has  submitted  that  the
method of appointment of a Supreme  Court  Judge  is  mentioned  in  Article
124(2) of the Constitution of India which states:
“124. (2) Every Judge of  the  Supreme  Court  shall  be  appointed  by  the
President by warrant under his hand and seal after  consultation  with  such
of the Judges of the Supreme Court and of the High Courts in the  States  as
the President may deem necessary for  the  purpose  and  shall  hold  office
until he attains the age of sixty-five years.
Provided that in the case of appointment of a Judge  other  than  the  Chief
Justice, the Chief Justice of India shall always be consulted.”
It may be noted that there is no mention:
(i) Of any Collegium in Article 124(2).
(ii)  The  word  used  in  Article  124(2)  is   “consultation”,   and   not
“concurrence”.
(iii) The President of India while appointing  a  Supreme  Court  Judge  can
consult any Judge of the Supreme Court or even the High Court  as  he  deems
necessary for the purpose, and  is  not  bound  to  consult  only  the  five
seniormost Judges of the Supreme Court.
4. That by the judicial verdicts in the aforesaid two cases, Article  124(2)
has been practically amended, although amendment  to  the  Constitution  can
only be done by Parliament in accordance with the  procedure  laid  down  in
Article 368 of the Constitution of India.
5. That under Article 124(2) while appointing a  Supreme  Court  Judge,  the
President of India has to consult the Chief Justice of  India,  but  he  may
also consult  any  other  Supreme  Court  Judge  and  not  merely  the  four
[pic]seniormost Judges. Also, the President of  India  can  even  consult  a
High Court Judge, whereas, according to  the  aforesaid  two  decisions  the
President of India cannot consult any Supreme Court  Judge  other  than  the
four seniormost Judges of the Supreme Court, and he cannot consult any  High
Court Judge at all.
6. Shri Ganguli submits that the matter is required to be  considered  by  a
larger Bench as the petition raises the following issues  of  constitutional
importance:
(1) Whether the aforesaid two verdicts viz. the seven-Judge Bench and  nine-
Judge Bench decisions of this Court  referred  to  above  really  amount  to
amending Article 124(2) of the Constitution?
(2) Whether there is any  “Collegium”  system  for  appointing  the  Supreme
Court or High Court Judges in the Constitution?
(3) Whether the Constitution can be amended by a judicial verdict or can  it
only be amended by Parliament in accordance with Article 368?
(4) Whether the constitutional scheme was that the Supreme  Court  and  High
Court Judges can be appointed by mutual  discussions  and  mutual  consensus
between the judiciary and the executive; or whether the judiciary can  alone
appoint Judges of the Supreme Court and High Courts?
(5) Whether the word “consultation” in Article 224 means “concurrence”?
(6) Whether by judicial interpretation words  in  the  Constitution  can  be
made redundant, as appears to have been done in the aforesaid two  decisions
which have made consultation with the  High  Court  Judges  redundant  while
appointing a Supreme Court Judge despite the fact that it is permissible  on
the clear language of Article 124(2)?
(7) Whether the clear language of Article 124(2) can be altered by  judicial
verdicts and instead of allowing the President  of  India  to  consult  such
Judges of the Supreme Court as he deems  necessary  (including  even  junior
Judges) only the Chief Justice of India and four seniormost  Judges  of  the
Supreme Court can alone  be  consulted  while  appointing  a  Supreme  Court
Judge?
(8) Whether there was any convention that the  President  is  bound  by  the
advice of the Chief Justice  of  India,  and  whether  any  such  convention
(assuming there was one) can prevail over  the  clear  language  of  Article
124(2)?
(9) Whether the opinion of the Chief Justice of India  has  any  primacy  in
the aforesaid appointments?
(10) Whether the aforesaid two decisions should be  overruled  by  a  larger
Bench?
7. Mr G.E. Vahanvati, learned  Attorney  General  for  India,  supports  the
petitioner contending that the aforesaid judgments require  reconsideration.
However, he also submits:
(a) A writ petition under Article 32 is not maintainable at the behest of  a
trust as the trust cannot claim violation of any of its fundamental rights;
(b) The petitioner has no locus standi to seek review of  the  judgments  of
this Court. In fact, a petition under Article 32 of  the  Constitution  does
not lie to challenge the correctness of a judicial order; and
(c) A Bench of two Judges cannot examine the correctness of the judgment  of
a nine-Judge Bench.
(d) A Bench of two Judges cannot refer the matter to  the  larger  Bench  of
nine Judges or more, directly.
xxxx             xxxx                   xxxx
11. However, Mr Ganguli dealing with the issue of locus standi of the  Trust
has submitted that the petition may not be maintainable  but  it  should  be
entertained because it raises a large number  of  substantial  questions  of
law. In order to fortify his submission he places  reliance  upon  a  recent
Constitution Bench judgment of this Court in B.P. Singhal v. Union of  India
(2010) 6 SCC 331  wherein  while  dealing  with  the  issue  of  removal  of
Governors, this Court held as under: (SCC p. 346, para 15)
[pic]“15. The petitioner has no locus to maintain the petition in regard  to
the prayers claiming relief for the benefit of the individual Governors.  At
all events, such prayers no longer survive on account of  passage  of  time.
However, with regard to the general question of public  importance  referred
to the Constitution Bench, touching upon the scope  of  Article  156(1)  and
the limitations upon the  doctrine  of  pleasure,  the  petitioner  has  the
necessary locus.”
Thus, Mr  Ganguli  submits  that  considering  the  gravity  of  the  issues
involved herein, the matter should be entertained.
12. While dealing with the issue  of  reference  to  the  larger  Bench,  Mr
Ganguli has placed a very heavy reliance on the recent order of  this  Court
dated 30-3-2011 in Mineral Area Development Authority v. SAIL (2011)  4  SCC
450, wherein considering the issue of interpretation of  the  constitutional
provisions and validity of the Act involved  therein,  a  three-Judge  Bench
presided over by the Hon’ble Chief Justice has  referred  the  matter  to  a
nine-Judge Bench.
13. At this juncture, Mr Ganguli as well  as  Mr  Vahanvati  have  submitted
that even  at  the  stage  of  preliminary  hearing  for  admission  of  the
petition, the matter requires to be heard by a larger Bench as  this  matter
has earlier been dealt  with  by  a  three-Judge  Bench  and  involves  very
complicated legal issues.
14. In view of the above, we place the matter before the Hon’ble  the  Chief
Justice for appropriate directions.”

It was pointed out, that when the above matter was placed  before  a  three-
Judge Bench of this Court, the same was dismissed on  the  ground  of  locus
standi.  Yet, since the above  order  was  passed  in  the  absence  of  the
petitioner trust, an application had been moved  for  recall  of  the  above
order.  It was his assertion, that whether or not a recall order was  passed
with reference to the questions raised, it was apparent,  that  a  Bench  of
this Court has already expressed the view, that  the  conclusions  drawn  in
the Second and Third Judges cases, need a relook.
37.   Finally, to support the above suggestions, the Court’s  attention  was
drawn to the observations recorded by H.M. Seervai in  the  4th  edition  of
his book “Constitutional Law  of  India”  wherein,  with  reference  to  the
Second Judges case, very strong  and  adverse  views  were  expressed.   The
aforesaid views are contained in paragraphs 25.448 to 25.497.   For  reasons
of brevity, it is not possible for us to extract the same  herein.   Suffice
it to state, that the submissions advanced by the learned Attorney  General,
as have been detailed in the foregoing paragraphs, were  more  or  less,  in
accord with the views expressed by H.M. Seervai.
38.   In order to contend, that it  was  open  to  this  Court,  to  make  a
reference for reconsideration of the matters already adjudicated  upon,  the
learned Attorney General, invited our attention to Jindal Stainless  Limited
v. State of Haryana[16].
“6. In Keshav Mills Co. Ltd. v. CIT AIR 1965 SC 1636…(AIR  pp.1643-44,  para
23) a Constitution Bench of this Court enacted the circumstances in which  a
reference to the larger Bench would lie. It was held that in revisiting  and
revising its earlier decision, this Court should ask itself whether  in  the
interest of the public good or for any other valid and  compulsive  reasons,
it is necessary that the earlier decision should be revised? Whether on  the
earlier occasion, did some patent aspects of the question remain  unnoticed,
or was the attention of the Court not drawn to  any  relevant  and  material
statutory provision, or was any previous decision bearing on the  point  not
noticed? What was the impact of  the  error  in  the  previous  decision  on
public good? Has the earlier decision been followed on subsequent  occasions
either by this Court or by the High Courts? And, would the reversal  of  the
earlier decision lead to public inconvenience, hardship or mischief?
7. According to the judgment in Keshav Mills case these and  other  relevant
considerations must be born in mind whenever this Court is  called  upon  to
exercise its jurisdiction to review and revisit its  earlier  decisions.  Of
course, in Keshav Mills case a  caution  was  sounded  to  the  effect  that
frequent exercise of  this  Court  of  its  power  to  revisit  its  earlier
decisions may incidentally tend to make  the  law  uncertain  and  introduce
confusion which must be avoided. But, that is  not  to  say  that  if  on  a
subsequent occasion, the Court is satisfied that its  earlier  decision  was
clearly erroneous, it should hesitate to correct the error.
8. In conclusion, in Keshav Mills case, this Court observed that it  is  not
possible to lay down any principles which should govern the approach of  the
Court in dealing with the question of revisiting its  earlier  decision.  It
would ultimately depend upon several relevant considerations.
9. In Central Board of Dawoodi  Bohra  Community  v.  State  of  Maharashtra
(2005) 2 SCC 673…, a Constitution Bench  of  this  Court  observed  that, in
case of doubt, a smaller Bench can invite attention  of  Chief  Justice  and
request for the matter being placed for hearing before a Bench  larger  than
the one whose decision is being doubted.”

39.   With the above noted submissions, learned Attorney General  for  India
concluded his address, for the review of the judgments  in  the  Second  and
Third Judges cases.
40.   Mr. K.K. Venugopal, learned senior counsel, commenced his  submissions
by highlighting the main  features  of  the  Constitution  (67th  Amendment)
Bill, 1990.  He  invited  our  attention,  to  the  proposed  amendments  of
Articles 124, 217, 222 and 231, and more particularly, to the inserstion  of
Part XIIIA  in  the  Constitution,  under  the  heading  “National  Judicial
Commission”. Article 307A was proposed  as  the  singular  Article  in  Part
XIIIA.  Based on the constitution of the National  Judicial  Commission,  it
was asserted, that the above  Bill,  had  been  introduced,  to  negate  the
effect of the judgment of this Court  in  the  First  Judges  case.  It  was
submitted, that when the aforesaid Bill was introduced  in  the  Parliament,
the Supreme Court Bar Association, of which Mr. Venugopal  himself  was  the
then President,  organized  a  seminar  on  1.9.1990,  for  the  purpose  of
debating the pros and cons of the Constitution (67th Amendment) Bill,  1990.
 It was submitted, that a large number of speakers had  taken  part  in  the
debate and had made important suggestions.  The above  suggestions,  drafted
as a resolution of the seminar, were  placed  before  the  House,  and  were
passed  either  unanimously  or  with  an  overwhelming  majority.   It  was
submitted, that the  aforesaid  resolutions  were  forwarded  to  the  Chief
Justice of India,  through  a  covering  letter  dated  5.10.1990.   It  was
pointed out, that resolutions were also passed, at  the  conclusion  of  the
Chief Justices’ Conference, held between  31.8.1990  and  2.9.1990,  wherein
also, the provisions of the Constitution (67th Amendment) Bill,  1990,  were
deliberated upon. It was submitted, that he had made a  compilation  of  the
resolutions passed at the Chief Justices  Conference,  and  the  conclusions
drawn in the Second Judges case, which would give a bird’s eye view, of  the
views  expressed.  The  compilation  to  which  learned  counsel  drew   our
attention, is being extracted hereunder:
“…(1) The process of appointment of Judges to  the  Supreme  Court  and  the
High Courts  is  an  integrated  ‘participatory  consultative  process’  for
selecting the best and most suitable persons available for appointment;  and
all the constitutional functionaries must  perform  this  duty  collectively
with  a  view  primarily  to  reach  an  agreed  decision,  subserving   the
constitutional purpose, so that the occasion of primacy does not arise.
(2) Initiation of the proposal for appointment in the case  of  the  Supreme
Court must be by the Chief Justice of India, and in the case of a  [pic]High
Court by the Chief Justice of  that  High  Court;  and  for  transfer  of  a
Judge/Chief Justice of a High Court, the proposal has  to  be  initiated  by
the Chief Justice of India. This  is  the  manner  in  which  proposals  for
appointments to the Supreme Court and the High Courts as  well  as  for  the
transfers of Judges/Chief Justices of the High  Courts  must  invariably  be
made.
(3)  In  the  event  of   conflicting   opinions   by   the   constitutional
functionaries, the opinion of the judiciary ‘symbolised by the view  of  the
Chief Justice of India’, and formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any High  Court  can
be made, unless it is in conformity with the opinion of  the  Chief  Justice
of India.
(5) In exceptional cases alone, for stated strong cogent reasons,  disclosed
to the Chief Justice of  India,  indicating  that  the  recommendee  is  not
suitable for appointment, that appointment recommended by the Chief  Justice
of India may not be made. However, if the stated reasons  are  not  accepted
by the Chief Justice of India and the other Judges of the Supreme Court  who
have been consulted in the matter, on reiteration of the  recommendation  by
the Chief Justice of India, the appointment should  be  made  as  a  healthy
convention. …”

Based on the aforesaid compilation, it  was  contended,  that  the  judgment
rendered in the Second Judges case,  completely  obliterated  three  salient
features of Article 124.  Firstly, under the original Article 124, the  main
voice was that of the President.  It was submitted, that the  voice  of  the
President was totally choked in the Second Judges  case.  Secondly,  Article
124, as it was originally framed, vested  the  executive  with  primacy,  in
respect of the appointments to the higher judiciary,  whereas  the  position
was reversed by  the  Second  Judges  case,  by  vesting  primacy  with  the
judiciary. Thirdly, the role of  the  Chief  Justice  of  India,  which  was
originally, that of a mere consultee, was “turned over  its  head”,  by  the
decision in the Second Judges case.  Now, the collegium  of  Judges,  headed
by the Chief Justice of India, has been vested with the final  determinative
authority  for  making  appointments  to  the  higher  judiciary.   And  the
President is liable to “concur”, with the recommendations  made.   Based  on
the above assertions, it was the submission of the learned counsel, that  by
wholly misconstruing Article 124, the Supreme Court had assumed  the  entire
power of appointment. And the voice of the  executive  had  been  completely
stifled. It was submitted, that the judiciary had  performed  a  legislative
function, while interpreting Article 124. It was asserted,  that  originally
the  founding  fathers  had  the  power  to  frame  the  provisions  of  the
Constitution, and thereafter, the Parliament had  the  power  to  amend  the
Constitution in terms of Article  368.  It  was  submitted,  that  the  role
assigned to the Constituent Assembly, as also to the  Parliament,  has  been
performed by this Court in the Second Judges case. It  was  submitted,  that
all this had been done in the name of “judicial  independence”.   The  above
logic was sought to be  seriously  contested  by  asserting,  that  judicial
independence could not stand by itself, there was  something  like  judicial
accountability also, which had to be kept in mind.
41.   It was also contended, that the judiciary had taken upon  itself,  the
exclusive role of making  appointments  to  the  higher  judiciary,  without
taking into consideration any of the stakeholders.  It  is  submitted,  that
the judiciary is meant for the  litigating  community,  and  therefore,  the
litigating community was liable to be vested with some role  in  the  matter
of appointments to the higher judiciary. Likewise, it was pointed out,  that
there were about ten lakhs lawyers in this country.  They also had not  been
given any say in the matter.  Even the  Bar  Associations,  which  have  the
ability to represent the lawyers’ fraternity, had  been  excluded  from  any
role in the process of appointments.  It was  highlighted,  that  under  the
old  system,  all  the  above  stakeholders,  had  an  opportunity  to  make
representations to the executive, in  the  matter  of  appointments  to  the
higher judiciary. But, that role has  now  been  totally  excluded,  by  the
interpretation placed on  Article  124,  by  the  Second  Judges  case.  The
Court’s attention was drawn to conclusion no.14  drawn  in  the  summary  of
conclusions (recorded in paragraph 486, in the Second Judges case) that  the
majority opinion in the First Judges  case,  insofar  as,  it  had  taken  a
contrary view, relating to primacy of the  role  of  the  Chief  Justice  of
India, in matters of appointments and transfers, and the  justiciability  of
these matters, as well as, in relation to judge-strength,  did  not  commend
itself as being the correct view.  Accordingly it was  concluded,  that  the
relevant provisions of the Constitution including the constitutional  scheme
must now be construed, understood and implemented, in the  manner  indicated
in  the  conclusions  drawn  in  the  Second   Judges   case.    The   above
determination, according to learned counsel,  was  absolutely  misconceived,
as the same totally negated the effect of Article  74,  which  required  the
President to act only on the aid and advice of  the  Council  of  Ministers.
According to learned counsel, the President would now have  to  act  as  per
the dictate of the Chief Justice of India and the collegium of  Judges.   It
was submitted, that it was impermissible in law,  for  a  party  to  make  a
decision in its own favour.  This, according to learned counsel, is  exactly
what the Supreme  Court  had  done  in  the  Second  Judges  case.   It  was
contented, that the impugned constitutional amendment was an effort  at  the
behest of the  Parliament,  to  correct  the  above  historical  aberration.
Learned counsel concluded, by asserting,  that  there  were  two  Houses  of
Parliament under the Constitution, but  the  Supreme  Court  in  the  Second
Judges case, had acted as a third House of Parliament, namely, as the  House
of corrections.  In the background of the  aforesaid  factual  position,  it
was submitted, that when the Union of India and the  States  which  ratified
the Constitution (99th Amendment) Act, seek reconsideration  of  the  Second
Judges case, was it too much, that the Union  and  the  States  were  asking
for?
42.   Following  the  submissions  noticed  hereinabove,  we  heard  Mr.  K.
Parasaran, Senior Advocate, who  also  supported  the  prayer  made  by  the
learned Attorney General. It was submitted, that the appointment  of  Judges
had nothing to do  with  “independence  of  the  Judge”  concerned,  or  the
judicial institution as a whole.   It  was  submitted,  that  subsequent  to
their appointment to the higher judiciary,  the  conditions  of  service  of
Judges of the High Court and the  Supreme  Court  were  securely  protected.
Thereafter, the independence  of  the  Judges  depended  on  their  judicial
conscience, and the executive has no role to play therein.
43.   It was asserted, that the Judges who expressed the majority  view,  in
the Second Judges case, entertained a preconceived notion about  the  “basic
structure”, even before hearing commenced, in the  Second  Judges  case.  In
this behalf, he placed reliance on the resolutions passed at the  conclusion
of the Chief Justices’ Conference, held between 31.8.1990 and 2.9.1990.   It
was asserted, that the controversy had not been adjudicated on the basis  of
an independent  assessment,  of  the  views  expressed  in  the  Constituent
Assembly debates (with reference  to  the  text  of  Article  124).  It  was
submitted, that  the  interpretation  rendered  on  Article  124,  expressly
ignored,  not  only  the  simple  language  indicating  the  procedure   for
appointment of Judges, but also the surrounding  constitutional  provisions.
According to learned senior counsel, the judiciary had encroached  into  the
executive power of appointment of Judges. This amounted to encroaching  into
a constitutional power, reserved for the executive, by the Constitution.  It
was asserted, that the power of amendment of  the  Constitution,  vested  in
the  Parliament  under  Article  368,  was  only  aimed   at   keeping   the
Constitution in constant repair.   It  was  submitted,  that  the  aforesaid
power vested with the Parliament, could  not  have  been  exercised  by  the
Supreme Court, by substituting the procedure of appointment  of  Judges,  in
the manner the Supreme Court felt.  It was submitted,  that  in  the  Second
Judges case, as also, the Third Judges case, the Supreme Court had  violated
the  “basic  structure”,  by  impinging  upon  legislative  power.  It   was
contended, that it was imperative for this Court to have a  re-look  at  the
two judgments, so as to determine, whether there had been a trespass by  the
judiciary, into the legislative domain.  And, if this Court arrives  at  the
conclusion, that such was the  case,  it  should  strike  down  its  earlier
determination.   It  was  further  submitted,  that  the  majesty   of   the
Constitution, must be maintained and  preserved  at  all  costs,  and  there
should be no hesitation  in  revisiting  any  earlier  judgment,  so  as  to
correct an erroneous decision.  With  the  aforesaid  observations,  learned
counsel commended the Bench, to  accept  the  prayer  made  by  the  learned
Attorney General, and  to  make  a  reference  for  reconsideration  of  the
judgments rendered by this Court, in the Second and Third Judges  cases,  to
a Bench with an appropriate strength.
44.      Mr.  Ravindra  Srivastava,  Senior  Advocate,  also  supported  the
submissions for reference to a larger Bench.  It  was  submitted,  that  the
conclusions drawn by this Court in the Second Judges  case,  and  the  Third
Judges case, were liable to  be  described  as  doubtful,  because  a  large
number of salient facts, had not been taken  into  consideration,  when  the
same were decided.  It was the contention of the learned counsel,  that  the
submissions advanced on behalf of the petitioners, on merits, could  not  be
supported by the text  of  the  constitutional  provisions,  and  that,  the
petitioners’ reliance squarely based on the majority judgment in the  Second
Judges case, as  was  further  explained  in  the  Third  Judges  case,  was
seriously flawed.  It was submitted, that  the  thrust  of  the  submissions
advanced on behalf of the petitioners on merits had been, not only that  the
consultation with the Chief Justice of India was mandatory, but the  opinion
of the collegium of Judges was binding on the executive.  It  was  asserted,
that neither of the above requirements emerged from  the  plain  reading  of
Article 124.  It was  asserted,  that  the  basis  of  the  learned  counsel
representing  the  petitioners,  to  assail  the   impugned   constitutional
amendment, as also  the  NJAC  Act,  was  squarely  premised  on  the  above
determination.  It was asserted, that  the  conclusion  of  primacy  of  the
judiciary, in the matter of appointment of Judges in the  higher  judiciary,
could  not  be  supported  by  any  text  of  the  original   constitutional
provisions.  It  was,  accordingly  suggested,  that   it   was   absolutely
imperative to correct the majority  view  expressed  in  the  Second  Judges
case.
45.   According to the learned counsel, the  primary  objection  raised,  at
the behest of the petitioners, opposing the reconsideration of the  decision
rendered in the Second Judges case, was based on the  observations  recorded
in paragraph 10 of the Third Judges case, wherein the statement of the  then
Attorney General for India, had been recorded, that the Union of  India  was
not seeking a review or  reconsideration  of  the  judgment  in  the  Second
Judges case. It was submitted, that the aforesaid statement, could  not  bar
the plea of  reconsideration,  for  all  times  to  come.   It  was  further
submitted, that the above statement would not bind the Parliament.   It  was
contended, that the statement to the effect, that the Union  of  India,  was
not seeking a review or reconsideration of the Second  Judges  case,  should
not be understood to mean, that it was impliedly conceded, that  the  Second
Judges case had been correctly  decided.   It  was  pointed  out,  that  the
advisory jurisdiction under Article 143,  which  had  been  invoked  by  the
Presidential Reference made on 23.7.1998, requiring  this  Court  to  render
the Third Judges case, was neither appellate nor revisionary in  nature.  In
this behalf, learned counsel placed reliance on Re: Cauvery  Water  Disputes
Tribunal[17], wherein it was held, that  an  order  passed  by  the  Supreme
Court, could be reviewed  only  when  its  jurisdiction  was  invoked  under
Article 137 of the Constitution (read  with  Rule  1  of  Order  40  of  the
Supreme Court Rules, 1946). And that, a review of the judgment  rendered  by
the Supreme Court, in the Second Judges case, could not be sought through  a
Presidential Reference made under Article 143.  In fact, this Court  in  the
above judgment, had gone on to conclude, that if the power of review was  to
be read in Article 143, it would be a serious inroad into the  “independence
of the judiciary”. It was therefore submitted, that  the  statement  of  the
then Attorney General, during the course of  hearing  of  the  Third  Judges
case, could not be treated as binding, for all  times  to  come,  so  as  to
deprive the executive and the legislature from even seeking a review of  the
judgments rendered. It was therefore contended, that it was  implicit  while
discharging its duty, that this Court was obliged to correct the  errors  of
law, which may have been committed in the past.  Learned counsel  contended,
that a perusal of the judgment of this Court in the  Subhash  Sharma  case4,
clearly brought out, that no formal request  was  made  to  this  Court  for
reconsideration of the legal position declared by this Court  in  the  First
Judges case.  Yet, this Court, on its own motion, examined  the  correctness
of the First Judges case, and suo motu, made a reference of the  matter,  to
a nine-Judge Bench, to reconsider the  law  declared  in  the  First  Judges
case.
46.   While pointing to the reasons for  reconsideration  of  the  law  laid
down by this Court in the Second Judges case (read  with  the  Third  Judges
case), learned senior counsel, asserted, that the essence  of  Article  124,
had been completely ignored by the majority view.  Learned  senior  counsel,
accordingly, invited our attention to  the  scheme  of  Article  124(2)  and
canvassed and summarized the following salient features emerging therefrom:
“i.   The authority to appoint Judges of the higher judiciary was vested  in
the President.
ii.   The above power of appointment by the President, was subject  to  only
one condition, namely, ‘consultation’.
iii.  The above consultation was a two-fold – one which in  the  opinion  of
the President may be deemed necessary, and the other which was mandatory.
iv.   The mandatory consultation was with the Chief Justice of  India.   The
consultation which the President may  have  ‘if  deemed  necessary  for  the
purpose, was with judges of the Supreme Court and also of  the  High  Courts
in the states, as may be felt appropriate.
v.    There was  no  limitation  on  the  power,  scope  and  ambit  of  the
President to engage in consultation, he may not only with the judges of  the
Supreme Court, but may also consult judges of High Courts  as  he  may  deem
necessary, for this purpose.
vi.    There  was  also  no  limitation  on   the   President’s   power   of
consultation.  He could consult as many judges  of  the  Supreme  Court  and
High Courts which he deemed necessary for the purpose.
vii.  Having regard to the object and purpose of the appointment of a  judge
of the Supreme  Court,  and  that,  such  appointment  was  to  the  highest
judicial office in the Republic, was clearly  intended  to  be  broad-based,
interactive, informative and meaningful, so that, the appointment  was  made
of the most suitable candidate.
viii. This aspect of the power of consultation  of  the  President,  as  had
been provided had been  completely  ignored  in  the  majority  judgment  in
Second  Judges’  case.   And  the  focus  has  been  confined  only  to  the
consultation, with the Chief Justice of India.
ix.   The interpretation of the  consultative  process,  and  the  procedure
laid down, in the majority judgement in the Second  Judges  case,  that  the
President’s   power   of   consultation,   was   all-pervasive   had    been
‘circumscribed’, having been so held expressly in paragraph 458 (by  Justice
J.S. Verma) in the Second Judges’ case.
x.     The  majority  judgment  has  focused  only  on  the  requirement  of
consultation by the President with the  Chief  Justice  of  India  which  is
requirement of proviso, ignoring the substantive part.
xi.   The collegium system had  been  evolved,  for  consultation  with  the
Chief  Justice  of  India  on  the  interpretation,  that  for  purposes  of
consultation  with  the  Chief  Justice  of  India,  the  CJI  alone  as  an
individual  would  not  matter,  but  would  mean  in  plurality  i.e.   his
collegium.  But this is an interpretation only of the  proviso  and  not  of
the substantive part of Article 124(2).
xii   The collegium system was evolved for consultation  with  the  CJI  and
his colleagues  in  particular  in  fixed  numbers  as  laid  down  in   the
judgment.
xiii. The whole provision for consultation by the President  of  India  with
the judges  of  the  Supreme  Court  and  the  High  Court,  had  thus  been
stultified, in ignorance of the substantive part of Article 124(2),  and  as
such, one was constrained to question the majority judgment  as  being  ‘per
incuriam’.”

47.   According to learned senior counsel, a perusal of the judgment in  the
Subhash Sharma case4 would reveal, that reconsideration of the judgments  in
the First Judges case, was only on two  issues.   Firstly,  the  status  and
importance of consultation, and the primacy of the  position  of  the  Chief
Justice of India.  And secondly, the  justiceability  of  fixation,  of  the
judge-strength of a  Court.  It  was  asserted,  that  no  other  issue  was
referred for reconsideration.  This assertion was  sought  to  be  supported
with the following observations, noticed in the Subhash Sharma case4:
“49.  …..Similarly, the writ application filed by  Subhash  Sharma  for  the
reasons indicated above may also be disposed of without further  directions.
 As and when necessary the matter can be brought before the  court.   As  in
our opinion the correctness of the majority view in S.P. Gupta case  [(1981)
Supp. SCC 87] should be considered by a larger bench we  direct  the  papers
of W.P. No.1303 of 1987 to be placed before the learned  Chief  Justice  for
constituting a bench of nine Judges to examine the  two  questions  we  have
referred to above, namely, the position of the Chief Justice of  India  with
reference to primacy and, secondly,  justiciability  of  fixation  of  Judge
strength.”

It was asserted, that there was no scope or occasion for the  Bench  hearing
the Second Judges case, to rewrite  the  Constitution,  on  the  subject  of
appointment of Judges to the higher judiciary.  It was submitted,  that  the
observations recorded in the Second Judges case, in addition  to  the  above
mentioned two issues, were liable to be regarded as obiter  dicta.   In  the
Second Judges case, the ratio decidendi, according to learned  counsel,  was
limited to the declaration of the legal position, only on  the  two  issues,
referred to the  larger  Bench  for  consideration.   Thus  viewed,  it  was
asserted, that all other conclusions recorded in the Second Judges case,  on
issues other than the two questions  referred  for  reconsideration,  cannot
legitimately be described as binding law under Article 141. To  support  the
above  contention,  reliance  was  placed  on  Kerala  State   Science   and
Technology Museum v. Rambal Co.[18], wherein this Court held as under:
“8. It is fairly well settled that when reference  is  made  on  a  specific
issue either by a learned Single Judge or Division Bench to a  larger  Bench
i.e. Division Bench or Full Bench or Constitution Bench,  as  the  case  may
be, the larger Bench cannot adjudicate  upon  an  issue  which  is  not  the
question referred to. (See Kesho Nath Khurana  v.  Union  of  India  [(1981)
Supp. SCC  38],  Samaresh  Chandra  Bose  v.  District  Magistrate,  Burdwan
[(1972) 2 SCC 476] and K.C.P. Ltd. v. State Trading Corpn. of India  [(1995)
Supp. (3) SCC 466].”

48.   Learned senior counsel submitted, that  in  the  Second  Judges  case,
this Court assigned an innovative meaning to the  words  “Chief  Justice  of
India”, by holding that the term “Chief Justice of India”  in  Article  124,
included a plurality of Judges, and not  the  individual  Chief  Justice  of
India.  This, according to learned counsel, was against  the  plain  meaning
and text of Article 124.  Learned counsel, went on to add, that  this  Court
in the Second Judges case, had laid down an inviolable  rule  of  seniority,
for appointment of Chief Justice of India. It also laid down, the rules  and
the norms, for transfer of Judges and Chief Justices, from  one  High  Court
to another.  It also concluded, that  any  transfer  of  a  Judge  or  Chief
Justice of a High Court, made on the recommendation of the Chief Justice  of
India, would be deemed to be non-punitive.  In sum  and  substance,  learned
counsel contended, that the Second Judges case, laid down a  new  structure,
in substitution to the role assigned to the Chief  Justice  of  India.   The
conclusions recorded  in  the  Second  Judges  case,  according  to  learned
counsel, could not be described as a mere judicial  interpretation.  It  was
asserted, that  the  same  was  nothing  short  of  judicial  activism  (or,
judicial legislation).
49.   Learned senior counsel then invited  the  Court’s  attention,  to  the
principles laid down for reconsideration, or review of a previous  judgment.
 For this he pointedly invited the Court’s attention to Bengal Immunity  Co.
Ltd. v. State of  Bihar[19],  Maganlal  Chhaganlal  (P)  Ltd.  v.  Municipal
Corpn. of Greater Bombay[20], and Union  of  India  v.  Raghubir  Singh[21].
Learned counsel also referred to Pradeep Kumar Biswas  v.  Indian  Institute
of Chemical Biology[22], wherein it was observed:
“61. Should Sabhajit Tewary (1975) 1 SCC 485 … still stand as  an  authority
even on the facts merely because it has stood for 25 years?  We  think  not.
Parallels  may  be  drawn  even  on  the  facts  leading  to  an   untenable
interpretation of Article 12 and a consequential denial of the  benefits  of
fundamental rights to individuals who would otherwise be  entitled  to  them
and
"[t]here is nothing in our Constitution which  prevents  us  from  departing
from a previous decision if we are convinced of its error  and  its  baneful
effect on the general interests of the public." [Bengal  Immunity  Co.  Ltd.
v. State of Bihar, AIR 1955 SC 661, 672] (AIR p. 672, para 15)
Since on a re-examination of the question we have  come  to  the  conclusion
that the decision was plainly erroneous, it is our duty to say  so  and  not
perpetuate our mistake.”

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

It was submitted, that Kuldip Singh, J., in  the  Second  Judges  case,  had
recorded as follows:
“320. It is no doubt correct that the rule of  stare  decisis  brings  about
consistency and uniformity but at  the  same  time  it  is  not  inflexible.
Whether it is to be followed in a given case or not is a  question  entirely
within the discretion of this Court. On a number  of  occasions  this  Court
has been called upon to reconsider a question  already  decided.  The  Court
has in appropriate cases overruled its earlier  decisions.  The  process  of
trial and error, lessons of experience and force of  better  reasoning  make
this Court wiser in its  judicial  functioning.  In  cases  involving  vital
constitutional issues this Court  must  feel  to  bring  its  opinions  into
agreement with experience  and  with  the  facts  newly  ascertained.  Stare
decisis  has  less  relevance  in  constitutional  cases  where,  save   for
constitutional amendments, this Court is the only body able to  make  needed
changes. Re-examination and reconsideration are among the  normal  processes
of intelligent living. We have  not  refrained  from  reconsideration  of  a
prior  construction  of  the  Constitution  that  has  proved  "unsound   in
principle and unworkable in practice."

Based on the above, learned counsel summarized his  assertions  as  follows.
Firstly, the real constitutional question, requiring re-examination, was  in
the context of appointment of  Judges  to  the  higher  judiciary,  was  the
interpretation of Article 74. Because the Second Judges  case,  had  made  a
serious inroad into the power  of  the  President  which  was  bound  to  be
exercised in  consonance  with  Article  74.  It  was  contended,  that  the
functioning of the President, in the absence of the aid and  advice  of  the
Council of Ministers, could not just be imagined under  the  scheme  of  the
Constitution.  And therefore, the substitution of the participatory role  of
the Council of Ministers (or, the Minister  concerned),  with  that  of  the
Chief  Justice  of  India  in  conjunction  with  his  collegium,  was  just
unthinkable.  And  secondly,  that  the  First  Judges  case,  was   wrongly
overruled, and the correct law for  appointment  of  Judges,  vis-à-vis  the
role of the executive, was correctly laid down in the First Judges case,  by
duly preserving the “independence of  the  judiciary”.   It  was  submitted,
that reference to a larger Bench was inevitable, because it was not open  to
the respondents, to  canvass  the  above  submission,  before  a  five-Judge
Bench.”
50.   Mr.  Harish  N.  Salve  and  Mr.  T.R.  Andhyarujina,  learned  senior
counsel, addressed the Court separately.   Their  submissions  were  however
similar.  It was their contention,  that  a  Constitutional  Court  revisits
constitutional issues, from  time  to  time.   This,  according  to  learned
counsel, has to be done because the Constitution is a living  document,  and
needed to be reinvented, to keep pace with the  change  of  times.   It  was
submitted, that this may not be true for  other  branches  of  law,  wherein
judgments are not revisited, because the Courts  were  expected  to  clearly
and unambiguously follow the principle of stare decisis, with  reference  to
laws dealing with private rights.  Insofar as the  controversy  in  hand  is
concerned, it was submitted, that the conclusions recorded by this Court  in
the Second and Third Judges cases, indicated doubtful  conclusions,  because
a large number of salient facts (as have been recorded above), had not  been
taken  into  consideration.   It  was  submitted,  that  expediency   in   a
controversy like the one in hand, should be in favour of the growth of  law.
It was submitted, that in their view this was one  such  case,  wherein  the
issue determined by this Court in the Second and Third Judges cases,  needed
to be re-examined by making a reference to a larger Bench.  Learned  counsel
pointed out, that the submissions made  in  the  different  petitions  filed
before this Court, were not supported by  the  text  of  any  constitutional
provision, but only relied on the legal position declared by this Court,  in
the above two cases. In such an important controversy, according to  learned
counsel, this Court  should  not  be  hesitant  in  revisiting  its  earlier
judgments. Mr. Andhyarujina  posed  a  query,  namely,  can  we  decide  the
controversy raised in the present case, without the reconsideration  of  the
judgments in the Second and  Third  Judges  cases?   He  answered  the  same
through another query, how can appointments of Judges  be  by  Judges?   The
above position was again posed  differently,  by  putting  forth  a  further
query, can primacy rest with the Chief Justice of India  in  the  matter  of
appointment of Judges to the higher judiciary?
51.   Mr. Ajit Kumar Sinha, learned  Senior  Advocate,  in  support  of  his
contention, that the matter needed to be heard by  a  larger  Bench,  placed
reliance on  Mineral  Area  Development  Authority  v.  Steel  Authority  of
India[23], and invited our attention to question no.5 of the reference  made
by this Court:
“5. Whether the majority decision in State of  W.B.  v.  Kesoram  Industries
Ltd. [(2004) 10 SCC 201] could be read as departing from the law  laid  down
in the seven-Judge Bench decision in India Cement  Ltd.  v.  State  of  T.N.
[(1990) 1 SCC 12)?”

It was pointed out, that the above question came to  be  framed  because  in
State of West Bengal  v.  Kesoram  Industries  Ltd.[24],  this  Court  by  a
majority of 4:1 had clarified the judgment rendered by a  seven-Judge  Bench
of this Court in India Cement Ltd. v. State of Tamil Nadu[25].   This  Court
had to frame the above question,  and  refer  the  matter  to  a  nine-Judge
Bench.  Learned counsel, then placed reliance on Sub-Committee  of  Judicial
Accountability v. Union of India[26], wherein this  Court  had  observed  as
under:
 “5.  Even  if  the  prayer  is  examined  as  if  it  were  an  independent
substantive proceeding, the tests apposite to such a  situation  would  also
not render  the  grant  of  this  relief  permissible.   The  considerations
against grant of this prayer are obvious and  compelling.   Indeed,  no  co-
ordinate bench of this Court  can  even  comment  upon,  let  alone  sit  in
judgment over, the discretion exercised or judgment rendered in a  cause  or
matter before another co-ordinate bench……”

In view of the above, it was contended, that this Court while examining  the
merits of the controversy in hand, was bound to rely  on  the  judgments  in
the Second and Third Judges cases, to record its conclusions.  Referring  to
the factual position narrated above,  it  was  submitted,  that  this  Court
would not  be  in  a  position  to  effectively  adjudicate  on  the  issues
canvassed, till the matter was referred to a nine-Judge Bench  (or  even,  a
still larger Bench).
52.   Mr. Ranjit Kumar, learned Solicitor General of India  submitted,  that
he would support the claim for reference to a larger Bench, by relying  upon
two judgments, and say no more. First and foremost, he  placed  reliance  on
the Bengal  Immunity  Co.  Ltd.  case19,  which  it  was  pointed  out,  had
considered the  judgment  in  State  of  Bombay  v.  United  Motors  (India)
Ltd.[27].  The matter, it was submitted, came to be  referred  to  a  seven-
Judge Bench, to decide whether  the  judgment  needed  to  be  reconsidered.
This process, according to learned Solicitor General, need to be adopted  in
the present controversy as well, so as to take a fresh call on the  previous
judgments. Learned Solicitor General then placed reliance  on  Keshav  Mills
Co. Ltd. v. Commissioner of Income-tax, Bombay North[28], wherein  a  seven-
Judge Bench held as under:
“In dealing with the question as to whether the earlier  decisions  of  this
Court in the New Jehangir Mills case, (1960) 1 SCR 249 and  the  Petlad  Co.
Ltd. case, (1963) Supp. SCR 871, should be reconsidered and revised  by  us,
we ought to be clear as to the approach which  should  be  adopted  in  such
cases. Mr. Palkhivala has not disputed the fact  that,  in  a  proper  case,
this Court has inherent jurisdiction to reconsider and  revise  its  earlier
decisions, and so, the abstract question as to whether such  a  power  vests
in this Court or not need not detain us. In exercising this inherent  power,
however, this would naturally like to impose certain reasonable  limitations
and would be reluctant  to  entertain  pleas  for  the  reconsideration  and
revision of its earlier decisions, unless it is  satisfied  that  there  are
compelling and  substantial  reasons  to  do  so.  It  is  general  judicial
experience that  in  matters  of  law  involving  question  of  constructing
statutory or constitutional  provisions,  two  views  are  often  reasonably
possible and when judicial approach has to make a  choice  between  the  two
reasonably possible views, the process  of  decision-making  is  often  very
difficult and delicate. When this Court hears appeals against  decisions  of
the High Courts and is required to consider the propriety or correctness  of
the view taken by the High Courts on any point of law, it would be  open  to
this Court to hold  that  though  the  view  taken  by  the  High  Court  is
reasonably possible, the alternative view which is also reasonably  possible
is better and should be preferred. In such a case,  the  choice  is  between
the view taken by the High Court whose judgment is  under  appeal,  and  the
alternative view which appears to this Court to be more reasonable;  and  in
accepting its own view in preference to that of the High Court,  this  Court
would  be  discharging  its  duty  as  a  Court  of  Appeal.  But  different
considerations must inevitably arise  where  a  previous  decision  of  this
Court has taken a particular view as to  the  construction  of  a  statutory
provision as, for instance, s. 66(4) of the Act. When it is urged  that  the
view already taken by this Court should be reviewed and revised, it may  not
necessarily be an adequate reason for such review and revision to hold  that
though the earlier view is a reasonably possible view, the alternative  view
which  is  pressed  on  the  subsequent  occasion  is  more  reasonable.  In
reviewing and revising its earlier decision, this Court  should  ask  itself
whether in interests  of  the  public  good  or  for  any  other  valid  and
compulsive reasons, it is necessary that  the  earlier  decision  should  be
revised. When this Court decides questions of law, its decisions are,  under
Art. 141, binding on all courts within the territory of India,  and  so,  it
must be the constant endeavour and concern of this Court  to  introduce  and
maintain an element of certainty and continuity  in  the  interpretation  of
law in the country. Frequent exercise by this Court of its power  to  review
its earlier decisions on the ground that the view pressed  before  it  later
appears to the Court to be more reasonable, may incidentally  tend  to  make
law uncertain and introduce confusion which must  be  consistently  avoided.
That is not to say that if on a subsequent occasion, the Court is  satisfied
that its earlier decision was  clearly  erroneous,  it  should  hesitate  to
correct the error; but before  a  previous  decision  is  pronounced  to  be
plainly erroneous, the Court  must  be  satisfied  with  a  fair  amount  of
unanimity amongst its members that a revision of  the  said  view  is  fully
justified. It is not possible or desirable, and in  any  case  it  would  be
inexpedient to lay down any principles which should govern the  approach  of
the Court in dealing  with  the  question  of  reviewing  and  revising  its
earlier  decisions.  It  would   always   depend   upon   several   relevant
considerations: — What is the nature of the infirmity or error  on  which  a
plea for a review and revision of the earlier view is based? On the  earlier
occasion, did some patent aspects of the question remain unnoticed,  or  was
the attention of the Court not drawn to any relevant and material  statutory
provision, or was any previous decision of this Court bearing on  the  point
not noticed? Is the Court hearing such plea fairly unanimous that  there  is
such an error in the earlier view? What would be the impact of the error  on
the general administration of  law  or  on  public  good?  Has  the  earlier
decision been followed on subsequent occasions either by this  Court  or  by
the High Courts? And, would the reversal of the  earlier  decision  lead  to
public  inconvenience,  hardship  or  mischief?  These  and  other  relevant
considerations must be carefully  borne  in  mind  whenever  this  Court  is
called upon to exercise its jurisdiction to review  and  review  and  revise
its earlier decisions. These considerations become  still  more  significant
when the earlier decision happens to be a unanimous decision of a  Bench  of
five learned Judges of this Court.
….. The principle of  stare  decisis,  no  doubt,  cannot  be  pressed  into
service in cases where the jurisdiction of  this  Court  to  reconsider  and
revise its earlier  decisions  is  invoked;  but  nevertheless,  the  normal
principle that judgments pronounced by this Court would be final, cannot  be
ignored,  and  unless  considerations  of  a  substantial   and   compelling
character make it necessary to  do  so,  this  Court  should  and  would  be
reluctant to review and revise its earlier decisions. That, broadly  stated,
is the approach which we propose to adopt in dealing with the point made  by
the learned Attorney-General that the earlier decisions  of  this  Court  in
the New Jehangir Mills case, (1960) 1 SCR 249 and the Petlad Co. Ltd.  case,
(1963) Supp. 1 SCR 871, should be reconsidered and revised.
Let us then consider the question of construing s. 66(4) of the Act.  Before
we do so, it is necessary to read sub-section (1), (2) and  (4)  of  s.  66.
Section 66(1) reads thus: —
"Within sixty days of the date upon which he is served  with  notice  of  an
order under sub-section (4) of section 33, the assessee or the  Commissioner
may, by application in the prescribed form,  accompanied  where  application
is made by the assessee  by  a  fee  of  one  hundred  rupees,  require  the
appellate Tribunal to refer to the High Court any question  of  law  arising
out of such order, and the Appellate Tribunal shall within  ninety  days  of
the receipt of such application draw up a statement of the  case  and  refer
it to the High Court." …..”

Based on the above, it was asserted, on the basis of the factual  and  legal
position projected by  the  learned  Attorney  General,  that  the  position
declared by this Court in the Second Judges case,  as  also,  in  the  Third
Judges case, was clearly erroneous. It was  submitted,  that  the  procedure
evolved by this Court for appointment of  Judges  to  the  higher  judiciary
having miserably failed, not because of any defect in  the  independence  of
the procedure prescribed,  but  because  of  the  “intra-dependence  of  the
Judges”, who took part in discharging the  responsibilities  vested  in  the
collegium of Judges, certainly required a re-examination.
53.   It is apparent from the submissions  advanced  at  the  hands  of  the
learned counsel representing the Union of  India  and  the  different  State
Governments, that rather than choosing to respond  to  the  assertions  made
with reference to the constitutional  validity  of  the  Constitution  (99th
Amendment) Act, 2014 and the NJAC Act, had collectively canvassed, that  the
present  five-Judge  Bench  should  refer  the   present   controversy   for
adjudication to a Bench of nine or  more  Judges,  which  could  effectively
revisit, if necessary, the judgments rendered by this Court  in  the  Second
and Third Judges cases. In view of the aforesaid consideration,  we  are  of
the view, that the observations recorded by this Court, in the  Suraz  India
Trust case15, as also, the fact that the same is pending before this  Court,
is immaterial.  Consequent upon the instant determination by us,  the  above
matter will be liable to be disposed of, in terms of the instant judgment.
IV.   OBJECTION BY THE PETITIONERS, TO THE MOTION FOR REVIEW:

54.    Mr.  Fali  S.  Nariman,  disagreed  with  the  suggestion  that   the
controversy in hand, needed to be decided by a larger  Bench.   It  was  his
pointed submission, that the issue canvassed had  been  improperly  pressed,
by overlooking certain salient features, which had necessarily to  be  taken
into consideration, before a prayer for reference to a  larger  Bench  could
be agitated. It was submitted, that all  the  learned  counsel  representing
the respondents had overlooked the fact, that the interpretation of  Article
124 of the Constitution, was rendered in the first  instance,  by  a  seven-
Judge Bench in the First Judges case.  It was  pointed  out,  that  the  law
declared by this Court in the First Judges case, having  been  doubted,  the
matter was referred for reconsideration, before the nine-Judge Bench,  which
delivered the judgment in the Second Judges case. It was pointed  out,  that
the prayer for revisitation, which is  being  made  at  the  behest  of  the
learned  counsel  representing  the  Union  of  India  and   the   different
participating States, was clearly unacceptable, because the  legal  position
declared by this Court in the First Judges case had already  been  revisited
in the Second Judges case by a larger Constitution Bench.   Not  only  that,
it was asserted, that when certain doubts arose about the implementation  of
the judgment in the Second Judges case, a Presidential  Reference  was  made
under Article 143, resulting in the re-examination of  the  matter,  at  the
hands of yet another nine-Judge Bench, where  the  Union  of  India  clearly
expressed its stand in paragraph 11 as under:
“11. We record at the outset the statements of  the  Attorney  General  that
(1) the Union of India is not seeking a review  or  reconsideration  of  the
judgment in the Second Judges case and that (2) the  Union  of  India  shall
accept and treat as binding the answers of this Court to the  questions  set
out in the Reference.”

It was submitted, that thereupon, the matter  was  again  examined  and  the
declared legal position in  the  Second  Judges  case,  was  reiterated  and
confirmed, by the judgment rendered in the Third Judges case.   Premised  on
the aforesaid factual position, learned counsel raised a poser, namely,  how
many times, can this Court revisit the  same  question?   It  was  asserted,
that just because such a prayer seems to be the  only  way  out,  for  those
representing the respondents, the same need not be accepted.
55.   Learned senior counsel pointed  out,  that  the  legal  position  with
reference to appointments to the higher judiciary came to  be  examined  and
declared, for the first time, in the First Judges case,  in  1981.   It  was
submitted, that the aforesaid determination would not  have  been  rendered,
had this Court’s attention been drawn to the Samsher  Singh  case11,  during
the course of hearing, in the First Judges case.   It  was  submitted,  that
the position declared by this Court in the First Judges case  needed  to  be
revisited, was realized during the  hearing  of  the  case  in  the  Subhash
Sharma case4.  While examining the justification of  the  conclusions  drawn
by this Court,  in  the  First  Judges  case,  the  matter  was  placed  for
consideration, before a nine-Judge Bench.  It was submitted,  that  all  the
issues, which have now been raised at the hands of  learned  senior  counsel
representing the respondents, were canvassed before the  Bench  hearing  the
Second Judges case.  This Court, in the Second Judges case, clearly  arrived
at the conclusion, that the earlier judgment rendered in  the  First  Judges
case, did not lay down the correct law. It was  submitted,  that  the  legal
position had been declared in the Second Judges case, by a majority of  7:2.

56.   It was submitted, that the minority view, in the Second  Judges  case,
was expressed by A.M. Ahmadi and M.M. Punchhi, JJ.,  (as  they  then  were).
Learned senior counsel, referred to the observations recorded in the  Second
Judges case by M.M. Punchhi, J.:
“500. Thus S.P. Gupta case, as I view it, in so far as  it  goes  to  permit
the  Executive  trudging  the  express  views   of   disapproval   or   non-
recommendation made by the Chief Justice of India, and for that matter  when
appointing a High Court Judge the views of the Chief  Justice  of  the  High
Court, is an act of impermissible deprival,  violating  the  spirit  of  the
Constitution,  which  cannot  he  approved,  as  it  gives  an  unjust   and
unwarranted additional power to the Executive, not originally conceived  of.
Resting of such power with the Executive would be wholly  inappropriate  and
in the nature of arbitrary power. The constitutional  provisions  conceives,
as it does, plurality and mutuality, but  only  amongst  the  constitutional
functionaries  and  not  at  all  in  the   extra-constitutional   ones   in
replacement of the legitimate ones. The two functionaries can be likened  to
the children of the cradle, intimately connected to their  common  mother  —
the Constitution. They recognise each other through that  connection.  There
is thus more an obligation towards the tree  which  bore  the  fruit  rather
than to the fruit directly. Watering the fruit alone is  pointless  ignoring
the roots of the tree.  The  view  that  the  two  functionaries  must  keep
distances from each other is counter-productive.  The  relationship  between
the two needs to be maintained with more consideration.
xxx              xxx              xxx
503. A centuries old Baconian example given to  describe  the  plight  of  a
litigant coming to a court of law comes to my mind. It  was  described  that
when the sheep ran for shelter to the bush to  save  itself  from  rain  and
hail, it found itself deprived of its fleece when coming out. Same fate  for
the institution of the Chief Justice of India. Here it  results  simply  and
purely in change of dominance. In the post - S.P. Gupta period, the  Central
Government i.e. the Law Minister and the Prime Minister were found to be  in
a dominant position and could even appoint a Judge in the  higher  judiciary
despite his being disapproved or not recommended by  the  Chief  Justice  of
India and likewise by the Chief Justice of a  State  High  Court.  Exception
perhaps could be made only when the Chief Justice was not  emphatic  of  his
disapproval and was non-committed. His stance could in certain  circumstance
be then treated, as implied consent. These would of course  be  rare  cases.
Now in  place  of  the  aforesaid  two  executive  heads  come  in  dominant
position, the first and the second puisne, even when  disagreeing  with  the
Chief Justice of India. A similar position would emerge  when  appointing  a
Chief Justice or a Judge of the High Court. Thus in my considered  view  the
position of the institution of the Chief Justice being singular  and  unique
in character under the Constitution is not capable of  being  disturbed.  It
escaped S.P. Gupta case, though in a truncated form, and not to have  become
totally extinct, as is being done  now.  Correction  was  required  in  that
regard in S.P. Gupta, but not effacement.”

Pointing to the opinion extracted above, it was asserted,  that  the  action
of the executive to put off the recommendation made by the Chief Justice  of
India (disapproving the appointment of a person, as  a  Judge  of  the  High
Court) would amount to an act of  deprival,  “violating  the  sprit  of  the
Constitution”.  Inasmuch as, the above demeanour/expression, would  give  an
unjust and unwarranted power to the executive, which  was  not  intended  by
the framers of the Constitution.  The  Court  went  on  to  hold,  that  the
vesting of such power with the executive,  would  be  wholly  inappropriate,
and in the nature of arbitrary power.  It was also noted,  that  after  this
Court rendered its decision in the First Judges case, the Law  Minister  and
the Prime Minister were found to be in such a dominant position,  that  they
could  appoint  a  Judge  to  the  higher  judiciary,  despite   his   being
disapproved (or, even when he was not  recommended  at  all)  by  the  Chief
Justice of India (and likewise, by the Chief Justice  of  the  High  Court).
Thus, in the view of M.M. Punchhi, J., these details had escaped the  notice
of the authors of the First Judges case, and corrections were  required,  in
that regard, in the said judgment. Accordingly, it  was  the  contention  of
the learned senior counsel,  that  one  of  the  minority  Judges  had  also
expressed the same sentiments as had been recorded by the majority,  on  the
subject of primacy of the judiciary  in  matters  regulated  under  Articles
124, 217 and 222.
57.   It was submitted, that the issue in hand was  examined  threadbare  by
revisiting the judgment rendered in the First Judges case, when  this  Court
reviewed the matter through the Second Judges case. It was  submitted,  that
during the determination  of  the  Third  Judges  case,  the  then  Attorney
General for India had made a statement to  the  Bench,  that  the  Union  of
India, was not seeking a review or reconsideration of the  judgment  in  the
Second Judges case.  Even  though,  the  opinion  tendered  by  this  Court,
consequent upon a reference made to the Supreme Court by  the  President  of
India under Article 143, is  not  binding,  yet  a  statement  was  made  by
Attorney General for  India,  that  the  Union  of  India  had  accepted  as
binding, the answers  of  this  Court  to  the  questions  set  out  in  the
reference.  All this, according  to  learned  counsel,  stands  recorded  in
paragraph 11 of the judgment rendered in the Third Judges  case.   According
to learned senior counsel, it was clearly beyond the purview  of  the  Union
of India, to seek a revisit of the Second and Third Judges cases.
58.   Besides the position  expressed  in  the  foregoing  paragraphs,  even
according to the legal position declared by this Court, it was not  open  to
the Union of India and the State  Governments,  to  require  this  Court  to
examine the correctness of the judgments rendered in the  Second  and  Third
Judges cases.  It was submitted, that such a course could only  be  adopted,
when it was established beyond  all  reasonable  doubt,  that  the  previous
judgments were erroneous. Insofar as the instant aspect  of  the  matter  is
concerned, learned counsel placed reliance on  Lt.  Col.  Khajoor  Singh  v.
Union  of  India[29]  (Bench  of  7  Judges),   wherefrom  learned   counsel
highlighted the following:
“We have given our earnest consideration to the language  of  Art.  226  and
the two decisions of this Court referred to above.  We are of  opinion  that
unless there are clear and compelling reasons, which cannot  be  denied,  we
should not depart from the interpretation  given  in  these  two  cases  and
indeed from any interpretation given in an earlier judgment of  this  Court,
unless there is a fair amount of unanimity that the  earlier  decisions  are
manifestly wrong.  This Court should not, except  when  it  is  demonstrated
beyond all reasonable doubt  that  its  previous  ruling,  given  after  due
deliberation and full hearing, was erroneous,  go  back  upon  its  previous
ruling, particularly on a constitutional issue.”

Reference was also made to the Keshav  Mills  Co.  Ltd.  case28,  wherein  a
seven-Judge Bench of this Court held as under:
“It must be conceded that the view for which  the  learned  Attorney-General
contends is a reasonably possible view, though we must hasten  to  add  that
the view which has been taken by this Court  in  its  earlier  decisions  is
also reasonably possible. The said earlier view has been  followed  by  this
Court on several occasions and has  regulated  the  procedure  in  reference
proceedings in the High Courts in this country ever since  the  decision  of
this Court in the New Jehangir Mills, (1960) 1 SCR 249,  was  pronounced  on
May 12, 1959. Besides, it is somewhat remarkable that no  reported  decision
has been cited before us  where  the  question  about  the  construction  of
s. 66(4) was considered and decided  in  favour  of  the  Attorney-General's
contention. Having carefully weighed the pros and cons  of  the  controversy
which have been pressed before us  on  the  present  occasion,  we  are  not
satisfied that a case has been made out to review and revise  our  decisions
in the case of the New Jehangir Mills and the case of the  Petlad  Co.  Ltd.
(1963) Supp. 1 SCR 871. That is why we think that the contention  raised  by
Mr. Palkhivala must be upheld. In the result, the order passed by  the  High
Court is set aside and the matter is sent back to  the  High  Court  with  a
direction that the High Court should deal with it in the light  of  the  two
relevant decisions in the New Jehangir Mills and the Petlad Co. Ltd.”

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

Learned counsel while relying upon Gannon Dunkerley  and  Co.  v.  State  of
Rajasthan[31] (Bench of 5 Judges), referred to the following:
“28.  …..We  are  not  inclined   to   agree.   The   principles   governing
reconsideration of an earlier decision are settled by the various  decisions
of this Court. It has been laid down: “This Court should  not,  accept  when
it is demonstrated beyond all reasonable doubt  that  its  previous  ruling,
given after due deliberation and full hearing, was erroneous, go  back  upon
its previous ruling, particularly on  a  constitutional  issue.”  (See:  Lt.
Col. Khajoor Singh vs. The Union of India, (1961)  2  SCR  828).  In  Keshav
Mills Co. Ltd. vs. CIT, (1965) 2 SCR 908, it has  been  observed:  (SCR  pp.
921-22)
“…..but before a previous decision is pronounced to  be  plainly  erroneous,
the Court must be satisfied with a fair  amount  of  unanimity  amongst  its
members that a revision of the said view is fully justified.”
            xxx              xxx             xxx
30. Having regard to the observations referred to above  and  the  stand  of
the parties during the course of arguments before us, we do not consider  it
appropriate to reopen the issues  which  are  covered  by  the  decision  in
Builders' Association case….”

Having referred to the above  judgments,  it  was  submitted,  that  it  was
clearly misconceived for the learned counsel for the respondents, to seek  a
reference of the controversy, to a larger Bench for  the  re-examination  of
the decisions rendered by this Court in the Second and Third Judges cases.
59.   Yet another basis for asserting, that the prayer made  at  the  behest
of the learned counsel  representing  the  respondents  for  revisiting  the
judgments rendered by this Court in the Second and Third Judges  cases,  was
canvassed on the ground that the observations recorded by this Court in  the
Samsher Singh case11 (in paragraph  149)  could  neither  be  understood  as
stray observations, nor be treated as obiter dicta.  The  reasons  expressed
by the learned senior counsel on the above issue were as follows:
“(i) In the other case relating to the independence  of  the  judiciary  (re
transfer of High Court Judges) – UOI vs. Sankal Chand  Seth,  (1977)  4  SCC
193 (5J) – as to whether a Judge of a  High  Court  can  be  transferred  to
another High Court without his consent, it was decided by majority  that  he
could be: the majority consisted of  Justice  Chandrachud,  Justice  Krishna
Iyer and Justice Murtaza Fazal Ali.
(ii) The judgment of Justice Krishna Iyer (on behalf of himself and  Justice
Murtaza Fazal Ali in Sankal Chand Seth – [with which Bhagwati,  J.  said  he
was “entirely in agreement”] reads as follows (paras 115-116):
“115. The next point for consideration in this appeal is as to  the  nature,
ambit and scope of  consultation,  as  appearing  in  Article 222(1) of  the
Constitution, with the Chief Justice of India. The  consultation,  in  order
to fulfil  its  normative  function  in  Article 222(1),  must  be  a  real,
substantial and effective consultation based on full  and  proper  materials
placed before the  Chief  Justice  by  the  Government.  Before  giving  his
opinion the Chief Justice of India would naturally take  into  consideration
all relevant factors and may informally ascertain from the  Judge  concerned
if he has any real personal difficulty or any humanitarian ground  on  which
his transfer may not be directed. Such  grounds  may  be  of  a  wide  range
including his health or extreme family factors. It is not necessary for  the
Chief Justice to issue formal notice  to  the  Judge  concerned  but  it  is
sufficient — although it is not obligatory — if he  ascertains  these  facts
either from the Chief Justice of the High Court or from his  own  colleagues
or through any other means which the Chief Justice  thinks  safe,  fair  and
reasonable. Where a proposal of transfer of a Judge is made  the  Government
must forward every possible material to the Chief Justice so that he  is  in
a position to give an effective opinion. Secondly, although the  opinion  of
the Chief Justice of India may not  be  binding  on  the  Government  it  is
entitled to great weight and is normally to be accepted  by  the  Government
because the power under  Article  222 cannot  be  exercised  whimsically  or
arbitrarily. In the case of Chandramouleshwar Prasad  v. Patna  High  Court,
(1969) 3 SCC 36, while interpreting the word "consultation" as appearing  in
Article 233 of the Constitution this Court observed as follows:
“Consultation  with  the  High  Court  under  Article 233 is  not  an  empty
formality. So far as promotion of officers to the cadre of  District  Judges
is concerned the High Court is best fitted to adjudge the claims and  merits
of  persons  to  be  considered  for  promotion....We  cannot  accept  this.
Consultation or  deliberation  is  not  complete  or  effective  before  the
parties thereto make their respective points of view known to the  other  or
others and discuss and examine the relative merits of their  views.  If  one
party makes a proposal to the other who has a counter proposal in  his  mind
which is not communicated to the prosper the direction  to  give  effect  to
the counter proposal without anything more, cannot  be  said  to  have  been
issued after consultation.
In Samsher Singh's case, AIR 1974 SC 2192, one of us  has  struck  the  same
chord. It must also be borne in mind that if  the  Government  departs  from
the opinion of the Chief Justice of India it has to justify  its  action  by
giving cogent and convincing reasons for the same  and,  if  challenged,  to
prove to the satisfaction of the Court that a case  was  made  out  for  not
accepting the advice of the Chief Justice of India. It seems to us that  the
word,  'consultation'  has  been  used  in  Article 222 as   a   matter   of
constitutional courtesy in view of the fact that two very  high  dignitaries
are concerned in the matter, namely, the President and the Chief Justice  of
India. Of course, the Chief Justice has no power of veto,  as  Dr.  Ambedkar
explained in the Constituent Assembly.”
(iii) Justice Chandrachud (in the course of  his  judgment)  agreeing  –  in
paragraph 41 of Sankalchand Seth followed Shamsher Singh (para 149).”

Based on the aforesaid, it was the assertion of the learned  senior  counsel
that even if the contention advanced by the counsel for the respondents  was
to be accepted, namely, that the decisions rendered by  this  Court  in  the
above two cases were required to be re-examined, by a reference to a  larger
Bench, still the observations recorded  in  paragraph  149  in  the  Samsher
Singh case11 would continue to hold the field, as the  review  of  the  same
had not been sought.
V.    THE CONSIDERATION:
                                     I.

60.   In the scheme of the Constitution, the Union judiciary has been  dealt
in Chapter IV of Part V, and the High Courts in the States, as well as,  the
Subordinate-courts have been dealt with in Chapters V and  VI  respectively,
of Part VI. The provisions of Parts V  and  VI  of  the  Constitution,  with
reference to the Union and the  States  judiciaries  including  Subordinate-
courts, have arisen for  interpretative  determination  by  this  Court,  on
several occasions. We may chronologically notice the determination  rendered
by this Court, with reference to the above Parts, especially  those  dealing
with the executive participation, in  the  matters  relating  to  the  Union
judiciary, the High  Courts  in  the  States,  and  the  Subordinate-courts.
During the course of hearing, our attention was invited to the following:
(i) Samsher Singh v. State of Punjab, (1974) 2 SCC 831 – rendered by a five-
Judge Bench,

(ii) Union of India v.  Sankalchand  Himatlal  Sheth  (1977)  4  SCC  193  -
rendered by a five-Judge Bench,

(iii) S.P. Gupta v. Union of India, 1981 Supp SCC 87 – rendered by a  seven-
Judge Bench,

(iv) Supreme  Court  Advocates-on-Record  Association  v.  Union  of  India,
(1993) 4 SCC 441 – rendered by a nine-Judge Bench, and

(v) Re: Special Reference No.1 of 1998, (1998) 7 SCC 739  –  rendered  by  a
nine-Judge Bench.

This Court on no less than five  occasions,  has  examined  the  controversy
which we are presently dealing with, through Constitution Benches.   In  the
Samsher Singh case11, it was  concluded,  that  in  all  conceivable  cases,
consultation with the highest dignitary in the Indian judiciary – the  Chief
Justice of India, will and should be accepted by the  Government  of  India,
in matters relatable to the Chapters and Parts of the Constitution  referred
to above.  In case, it  was  not  so  accepted,  the  Court  would  have  an
opportunity to examine,  whether  any  other  extraneous  circumstances  had
entered into the verdict  of  the  concerned  Minister  or  the  Council  of
Ministers (headed by the Prime  Minister),  whose  views  had  prevailed  in
ignoring the counsel given by  the  Chief  Justice  of  India.   This  Court
accordingly concluded, that in practice, the last word must  belong  to  the
Chief Justice of India.  The above  position  was  also  further  clarified,
that rejection of the advice tendered by the Chief Justice of  India,  would
ordinarily be regarded as prompted by oblique considerations, vitiating  the
order.  In a sense  of  understanding,  this  Court  in  the  Samsher  Singh
case11, is seen to have read the term “consultation” expressed  in  Articles
124 and 217 as conferring primacy to  the  opinion  tendered  by  the  Chief
Justice. When the matter came to be examined  in  the  Sankalchand  Himatlal
Sheth case5, with reference to Article 222, another  Constitution  Bench  of
this Court, reiterated the conclusion drawn in the Samsher Singh case11,  by
holding, that in  all  conceivable  cases,  “consultation”  with  the  Chief
Justice of India, should be accepted,  by  the  Government  of  India.   And
further, that in the event of any departure, it would be open to a court  to
examine whether, any other circumstances had entered  into  the  verdict  of
the executive. More importantly, this Court  expressly  recorded  an  ardent
hope, that the exposition recorded in the Samsher Singh  case11,  would  not
fall on deaf ears.  No doubt can be entertained, that yet again, this  Court
read the term “consultation” as an  expression,  conveying  primacy  in  the
matter under consideration, to the view expressed by the Chief Justice.  The
solitary departure from the  above  interpretation,  was  recorded  by  this
Court in the First Judges case, wherein it came to be  concluded,  that  the
meaning  of  the  term   “consultation”   could   not   be   understood   as
“concurrence”. In other words, it was held, that  the  opinion  tendered  by
the Chief Justice of India, would not  be  binding  on  the  executive.  The
function of appointment of Judges to the higher judiciary, was described  as
an executive function, and it was held by the majority,  that  the  ultimate
power of appointment, unquestionably rested with the President. The  opinion
expressed by this Court in  the  First  Judges  case,  was  doubted  in  the
Subhash Sharma case4, which led to  the  matter  being  re-examined  in  the
Second Judges case, at the hands of a nine-Judge Bench, which while  setting
aside the judgment rendered in the First Judges case, expressed its  opinion
in consonance with the judgments rendered in the Samsher  Singh  case11  and
the Sankalchand Himatlal Sheth case5. This  Court  expressly  concluded,  in
the Second Judges case, that the term “consultation” expressed  in  Articles
124, 217 and 222 had  to  be  read  as  vesting  primacy  with  the  opinion
expressed  by  the  Chief  Justice  of  India,  based  on  a   participatory
consultative process. In other words, in  matters  involving  Articles  124,
217 and 222, primacy with reference to the  ultimate  power  of  appointment
(or transfer) was held,  to  be  vesting  with  the  judiciary.   The  above
position came to be reconsidered in the Third Judges case, by  a  nine-Judge
Bench,  wherein  the  then  learned  Attorney  General  for  India,  made  a
statement,  that  the  Union  of  India  was  not  seeking  a   review,   or
reconsideration of the judgment in the  Second  Judges  case,  and  further,
that the Union of India had accepted the said judgment, and would treat  the
decision of this Court  in  the  Second  Judges  case  as  binding.   It  is
therefore apparent,  that  the  judiciary  would  have  primacy  in  matters
regulated by Articles 124, 217 and  222,  was  conceded,  by  the  Union  of
India, in the Third Judges case.
61.   We have also delineated hereinabove, the views of the Judges  recorded
in the First Judges case, which was rendered by  a  majority  of  4:3.   Not
only, that the margin was extremely narrow, but also,  the  views  expressed
by the Judges were at substantial variance,  on  all  the  issues  canvassed
before the Court. The primary reason for recording the view of each  of  the
Judges  in  the  First  Judges  case  hereinbefore,   was   to   demonstrate
differences in the deductions,  inferences  and  the  eventual  outcome.  As
against the above, on a reconsideration of the matters by a larger Bench  in
the Second Judges case, the decision was rendered  by  a  majority  of  7:2.
Not only was the position clearly expressed, there was hardly any  variance,
on the issues canvassed.  So was the position with the  Third  Judges  case,
which was a unanimous and unambiguous exposition  of  the  controversy.  We,
therefore, find ourselves not inclined to accept the prayer for a review  of
the Second and Third Judges cases.
62.   Having given pointed and thoughtful consideration to  the  proposition
canvassed at the hands of the learned counsel for the  respondents,  we  are
constrained to conclude, that the issue of primacy of the judiciary, in  the
matter of appointment and  transfer  of  Judges  of  the  higher  judiciary,
having been repeatedly examined, the prayer  for  a  re-look/reconsideration
of the same, is just not made out. This  Court  having  already  devoted  so
much time to the same issue, should ordinarily not agree to  re-examine  the
matter yet again, and spend more time for an issue,  already  well  thrashed
out. But time has not been the constraint, while hearing the present  cases,
for we have allowed a free debate, and have taken upon  ourselves  the  task
of examining the issues canvassed. Yet, the remedy of review must have  some
limitations. Mr. Fali S. Nariman, learned senior counsel, is right,  in  his
submission, that the power of review was exercised and stood  expended  when
the First Judges case was reviewed by a larger Bench in  the  Second  Judges
case.  And for sure, it was wholly  unjustified  for  the  Union  of  India,
which had conceded during the course of hearing of the  Third  Judges  case,
that it had accepted as binding, the decision rendered in the Second  Judges
case, to try and reagitate the matter all  over  again.  The  matter  having
been revisited, and the position  having  been  conceded  by  the  Union  of
India, it does not lie  in  the  mouth  of  the  Union  of  India,  to  seek
reconsideration of the judicial declaration, in the Second and Third  Judges
cases.  Therefore, as a proposition of law, we are not  inclined  to  accept
the prayer of the Union of India and the other respondents,  for  a  re-look
or review of the judgments rendered in the Second and  Third  Judges  cases.
All the same, as we have indicated at the beginning of this  order,  because
the matter is of extreme importance and sensitivity, we will  still  examine
the merits of the submissions advanced by learned counsel.
                                     II.
63.    The  most  forceful  submission  advanced  by  the  learned  Attorney
General, was premised on the Constituent Assembly debates.  In this  behalf,
our attention was invited to the views expressed by K.T. Shah, K.M.  Munshi,
Tajamul Husain, Alladi Krishnaswami Aayar, Ananthasayanam Ayyangar  and  Dr.
B.R. Ambedkar.  It was pointed out by the  learned  Attorney  General,  that
the Members  of  the  Constituent  Assembly  feared,  that  the  process  of
selection and appointment of Judges to the higher judiciary  should  not  be
exclusively vested with the judiciary. The process of appointment of  Judges
by Judges, it was contended, was described as Imperium  in  Imperio,  during
the Constituent Assembly debates. In responding to the  above  observations,
Dr. B.R. Ambedkar while referring to the contents of Article 122 (which  was
renumbered as Article 124 in the Constitution), had assured the  Members  of
the Constituent Assembly, that the drafted Article had  adopted  the  middle
course, while refusing to create an Imperium in Imperio, in such  a  manner,
that the “independence of the  judiciary”  would  be  fully  preserved.  The
exact text of the response of Dr.  B.R.  Ambedkar,  has  been  extracted  in
paragraph 30 above.
64.   It was the contention of the learned Attorney  General,  that  despite
the clear intent expressed during the Constituent Assembly debates,  not  to
create an Imperium in Imperio, the Second and Third Judges  cases  had  done
just  that.  It  was  submitted,  that  in  the  process  of  selection  and
appointment of Judges to the higher judiciary, being  followed  since  1993,
Judges alone had been appointing Judges.  It was also  contended,  that  the
Constitution contemplates a  system  of  checks  and  balances,  where  each
pillar of governance is controlled by checks and balances, exercised by  the
other two pillars. It was repeatedly emphasized, that in the present  system
of selection  and  appointment  of  Judges  to  the  higher  judiciary,  the
executive has no role whatsoever. It was accordingly the contention  of  the
respondents, that the manner in which Articles 124, 217  and  222  had  been
interpreted in the Second and Third Judges cases, fell foul  of  the  intent
of the Constituent Assembly.  This, according to  the  learned  counsel  for
the respondents, was  reason  enough,  to  revisit  and  correct,  the  view
expressed in the Second and Third Judges cases.
65.   It is not possible for us to accept the  contention  advanced  at  the
hands of the learned counsel  for  the  respondents.   Consequent  upon  the
pronouncement of the judgments in the  Second  and  Third  Judges  cases,  a
Memorandum of Procedure for Appointment of Judges and Chief Justices to  the
Higher Judiciary was drawn by the  Ministry  of  Law,  Justice  and  Company
Affairs on  30.6.1999.   The  Memorandum  of  Procedure  aforementioned,  is
available on the website of the above  Ministry.  The  above  Memorandum  of
Procedure has been examined by us.  In our considered view,  the  Memorandum
of Procedure provides for a participatory role, to the judiciary as well  as
the political-executive.  Each of the above components are  responsible  for
contributing  information,  material  and  data,  with  reference   to   the
individual  under  consideration.   While  the  judicial   contribution   is
responsible  for  evaluating  the  individual’s  professional  ability,  the
political-executive is tasked with the obligation to provide  details  about
the individual’s character and antecedents.  Our analysis of the  Memorandum
of Procedure reveals, that the same contemplates inter  alia  the  following
steps for selection of High Court Judges:
Step  1:      The  Chief  Justice  of  the  concerned  High  Court  has  the
responsibility  of  communicating,  to  the  Chief  Minister  of  the  State
concerned, names of persons to be selected  for  appointment.   Details  are
furnished to the Chief Minister, in terms of  the  format  appended  to  the
memorandum.  Additionally,  if  the  Chief  Minister  desires  to  recommend
name(s) of person(s) for such appointment, he must forward the same  to  the
Chief Justice for his consideration.
Step 2:     Before forwarding his recommendations  to  the  Chief  Minister,
the Chief Justice must consult his senior colleagues comprised in  the  High
Court collegium, regarding the  suitability  of  the  names  proposed.   The
entire consultation must be in writing, and these opinions must be  sent  to
the Chief Minister along with the Chief Justice’s recommendation.
Step 3:     Copies of recommendations made by the Chief Justice of the  High
Court, to  the  Chief  Minister  of  the  concerned  State,  require  to  be
endorsed, to the Union Minister of Law and Justice, to the Governor  of  the
concerned State, and to the Chief Justice of India.
Step 4:     Consequent upon the consideration of the names proposed  by  the
Chief Justice, the Governor of the concerned State, as advised by the  Chief
Minister, would forward his recommendation along  with  the  entire  set  of
papers, to the Union Minister for Law and Justice.
Step 5:     The Union Minister for  Law  and  Justice  would,  at  his  own,
consider the  recommendations  placed  before  him,  in  the  light  of  the
reports, as may be available to the Government,  in  respect  of  the  names
under consideration. The proposed names, would be  subject  to  scrutiny  at
the hands of the Intelligence Bureau, through the  Union  Ministry  of  Home
Affairs.  The Intelligence Bureau  would  opine  on  the  integrity  of  the
individuals under consideration.
Step 6:     The entire material, as is available  with  the  Union  Minister
for Law and Justice, would then be forwarded to the Chief Justice  of  India
for his advice.  The Chief Justice of India would, in consultation with  his
senior colleagues  comprised  in  the  Supreme  Court  collegium,  form  his
opinion with regard to the persons recommended for appointment.
Step 7:     Based on the  material  made  available,  and  additionally  the
views of Judges of the Supreme Court (who were conversant with  the  affairs
of the concerned High Court), the Chief Justice  of  India  in  consultation
with his collegium of Judges,  would  forward  his  recommendation,  to  the
Union Minister for Law and Justice.  The above noted views of Judges of  the
Supreme Court, conversant with the affairs of the High  Court,  were  to  be
obtained in writing, and are to be part  of  the  compilation  incorporating
the recommendation.
Step 8:     The Union Minister for Law and Justice would  then  put  up  the
recommendation made by the Chief Justice of India, to  the  Prime  Minister,
who would examine the entire matter in consultation with the Union  Minister
for Law and Justice,  and  advise  the  President,  in  the  matter  of  the
proposed appointments.
66.   We shall venture to delineate the actual consideration  at  the  hands
of the executive, in the process of selection and appointment of High  Court
Judges, in terms of the Memorandum of Procedure,  as  well  as,  the  actual
prevailing practice.
67.   Steps 1 to 3 of the Memorandum of  Procedure  reveal,  that  names  of
persons to be selected for appointment are forwarded to the  Chief  Minister
and the Governor of the concerned State.   On  receipt  of  the  names,  the
Chief Minister  discharges  the  onerous  responsibility  to  determine  the
suitability of the recommended candidate(s).  Specially the  suitability  of
the candidate(s),  pertaining  to  integrity,  social  behaviour,  political
involvement and the like.  Needless to mention, that the Chief  Minister  of
the concerned State, has adequate machinery for providing such  inputs.   It
would also be relevant to mention, that the consideration at  the  hands  of
the Governor of the concerned State, is also not an  empty  formality.   For
it is the Governor, through whom the file processed by the  Chief  Minister,
is forwarded to the Union Minister for Law and  Justice.   There  have  been
occasions, when Governors of the concerned State, have  recorded  their  own
impressions  on  the  suitability  of  a  recommended  candidate,  in  sharp
contrast with the opinion expressed by the Chief Minister.  Whether  or  not
the Governors participate  in  the  above  exercise,  is  quite  a  separate
matter.  All that needs to be recorded is, that there  are  instances  where
Governors have actively participated in the process of selection  of  Judges
to High Courts, by providing necessary inputs.  Record also bears  testimony
to the fact, that  the  opinion  expressed  by  the  Governor,  had  finally
prevailed on a few occasions.
68.    The  participation  of  the  executive,   with   reference   to   the
consideration of a candidate  recommended  by  the  Chief  Justice  of  High
Court, continues further at the  level  of  the  Government  of  India.  The
matter of suitability of a candidate, is also independently examined at  the
hands of the Union of Minister for Law and Justice.   The  Ministry  of  Law
and Justice has a standard procedure of seeking  inputs  through  the  Union
Ministry of Home Affairs.  Such inputs  are  made  available  by  the  Union
Ministry for Home  Affairs,  by  having  the  integrity,  social  behaviour,
political involvement  and  the  like,  examined  through  the  Intelligence
Bureau. After the receipt  of  such  inputs,  and  the  examination  of  the
proposal at the hands of the Union Minister for Law and  Justice,  the  file
proceeds to the Chief Justice of India,  along  with  the  details  received
from the quarters referred to above.
69.   After the Chief Justice of India, in consultation with  his  collegium
of Judges recommends the concerned  candidate  for  elevation  to  the  High
Court, the file is processed for a third time, by the  executive.   On  this
occasion, at the level of the Prime Minister of India.   During  the  course
of the instant consideration also, the participation  of  the  executive  is
not an empty formality.    Based  on  the  inputs  available  to  the  Prime
Minister, it is open to the executive, to yet again return the file  to  the
Chief Justice of India, for a reconsideration of the proposal, by  enclosing
material which may have escaped the notice of the  Chief  Justice  of  India
and his collegium of Judges.  There  have  been  occasions,  when  the  file
returned to the Chief Justice of India for reconsideration, has resulted  in
a revision of the view earlier taken, by the Chief Justice of India and  his
collegium of Judges.  It is  therefore  clear,  that  there  is  a  complete
comity of purpose between the judiciary and the political-executive  in  the
matter of selection and appointment  of  High  Court  Judges.   And  between
them, there is clear transparency also. As views are exchanged  in  writing,
views and counter-views, are in black and white. Nothing  happens  secretly,
without the knowledge of the participating constitutional functionaries.
70.   It is not necessary for us  to  delineate  the  participation  of  the
judiciary in the process of selection and appointment of Judges to the  High
Courts.  The same is apparent from the steps contemplated in the  Memorandum
of Procedure, as have been recorded above.  Suffice it  to  state,  that  it
does not lie in the mouth of the respondents to contend, that  there  is  no
executive participation in the  process  of  selection  and  appointment  of
Judges to High Courts.
71.   The Memorandum of Procedure, for selection of  Supreme  Court  Judges,
provides  for  a  similar  participatory  role  to  the  judiciary  and  the
political-executive.  The same is not being analysed herein, for reasons  of
brevity.  Suffice it to state, that the same is also a joint exercise,  with
a similar approach.
72.   For the reasons recorded by us hereinabove, it is not possible for  us
to accept, that in the procedure contemplated under  the  Second  and  Third
Judges cases, Judges at their own select Judges to the higher judiciary,  or
that, the system of Imperium in Imperio has been created for appointment  of
Judges to the higher judiciary.  It is also not possible for us  to  accept,
that the judgment in  the  Second  Judges  case,  has  interfered  with  the
process of selection and appointment of Judges to the higher  judiciary,  by
curtailing the participatory role of the executive,  in  the  constitutional
scheme of checks and balances, in view of the role of  the  executive  fully
described above. We find no merit in the instant contention advanced at  the
hands of the respondents.
                                    III.
73.    The  learned  Attorney  General  placed  emphatic  reliance  on   the
Constituent Assembly debates.  It was sought to be  asserted,  that  for  an
apposite understanding  of  the  provisions  of  the  Constitution,  it  was
imperative to refer to the Constituent Assembly debates, which  had  led  to
formulating  and  composing  of  the  concerned  Article(s).  Reliance   was
accordingly placed on the debates, which had led to the drafting of  Article
124. It was submitted, that the conclusions drawn  by  this  Court,  in  the
Second Judges case, overlooked  the  fact,  that  what  had  been  expressly
canvassed and raised by various Members of  the  Constituent  Assembly,  and
rejected on due consideration, had been  adopted  by  the  judgment  in  the
Second Judges case.  It  was,  therefore,  the  contention  of  the  learned
Attorney General, that the  judgments  rendered  in  the  Second  and  Third
Judges cases recorded a view, diagonally opposite the intent and resolve  of
the Constituent Assembly.
74.   For reasons of brevity, it is not essential for us to  extract  herein
the amendments sought by some of the  eminent  Members  of  the  Constituent
Assembly in the draft provision (to which  our  attention  was  drawn).   At
this stage, we need only  to  refer  to  paragraph  772  (already  extracted
above), from the Indra Sawhney case9, in order to record,  that  it  is  not
essential to refer to individual views of the Members, and  that,  the  view
expressed at  the  end  of  the  debate  by  Dr.  B.R.  Ambedkar,  would  be
sufficient to understand what had prevailed, and why. Suffice it  to  state,
that  during  the  course  of  the  Constituent  Assembly  debates,  it  was
expressly proposed that the term “consultation” engaged in Articles 124  and
217, be substituted by the word “concurrence”. The  proposed  amendment  was
however rejected by Dr. B.R. Ambedkar. Despite the above, this Court in  the
Second and Third Judges cases had interpreted  the  word  “consultation”  in
clause (2) of Article 124,  and  clause  (1)  of  Article  217,  as  vesting
primacy in the judiciary, something that was expressly rejected, during  the
Constituent Assembly debate.  And  therefore,  the  contention  advanced  on
behalf of the respondents was, that this Court  had  interpreted  the  above
provisions, by turning the Constituent Assembly’s  intent  and  resolve,  on
its head. It was submitted, that the erroneous  interpretation  recorded  in
the Second Judges case, was writ large, even on  a  cursory  examination  of
the debates.
75.   We are of the view, that it would suffice,  for  examining  the  above
contention, to extract herein a relevant part of the response  of  Dr.  B.R.
Ambedkar, to the above noted amendments, in the provisions noted above:
“Now, Sir, with regard to the numerous amendments that have been  moved,  to
this article, there are really three  issues  that  have  been  raised.  The
first is, how are the Judges of the Supreme  Court  to  be  appointed?  Now,
grouping the different amendments  which  are  related  to  this  particular
matter, I find three different proposals. The first  proposal  is  that  the
Judges of the Supreme Court should be appointed with the concurrence of  the
Chief Justice. That is one view. The other view  is  that  the  appointments
made by the President should be subject to the  confirmation  of  two-thirds
vote by Parliament;  and  the  third  suggestion  is  that  they  should  be
appointed in consultation with the Council of States.
With regard to this matter, I quite agree that the point raised  is  of  the
greatest importance. There can be no difference  of  opinion  in  the  House
that our judiciary must both be independent of the executive and  must  also
be competent in itself. And the question is how these two objects  could  be
secured. There are two different ways in which this matter  is  governed  in
other countries. In Great Britain the appointments are made  by  the  Crown,
without any kind of limitation whatsoever, which means by the  executive  of
the day. There is the opposite  system  in  the  United  States  where,  for
instance, offices of the Supreme Court as  well  as  other  offices  of  the
State shall be made only with the concurrence of the Senate  in  the  United
States. It seems to me, in the circumstances in which we live  today,  where
the sense of responsibility has not grown to the same  extent  to  which  we
find  it  in  the  United  States,  it  would  be  dangerous  to  leave  the
appointments to be made by the President, without any  kind  of  reservation
or limitation, that is to say, merely on the advice of the executive of  the
day. Similarly, it seems to me that to  make  every  appointment  which  the
executive wishes to make subject to the concurrence of  the  Legislature  is
also not a very suitable provision. Apart from its being cumbrous,  it  also
involves the possibility of the appointment being  influenced  by  political
pressure and political considerations. The draft article, therefore,  steers
a middle course. It  does  not  make  the  President  the  supreme  and  the
absolute authority in the matter of making appointments. It  does  not  also
import the influence of the Legislature. The provision  in  the  article  is
that there should be consultation of persons  who  are  ex  hypothesi,  well
qualified to give proper advice in matters of this sort, and my judgment  is
that this sort of provision may be regarded as sufficient for the moment.
With regard to the question of the concurrence  of  the  Chief  Justice,  it
seems  to  me  that  those  who  advocate  that  proposition  seem  to  rely
implicitly both on the impartiality of the Chief Justice and  the  soundness
of his judgment. I personally feel no doubt that  the  Chief  Justice  is  a
very eminent, person. But after all the Chief Justice is a man with all  the
failings, all the sentiments and all  the  prejudices  which  we  as  common
people have; and I think, to allow the  Chief  Justice  practically  a  veto
upon the appointment of judges is really to transfer the  authority  to  the
Chief Justice which we are not prepared to vest  in  the  President  or  the
Government of the day. I therefore, think that  that  is  also  a  dangerous
proposition.”

The first paragraph extracted hereinabove reveals,  that  there  were  three
proposals on the issue of appointment of Judges to the Supreme  Court.   The
first proposal was, that the Judges of  the  Supreme  Court  should  not  be
appointed by the President in  “consultation”  with  the  Chief  Justice  of
India, but should be appointed with the “concurrence” of the  Chief  Justice
of India.  The  second  proposal  was,  that  like  in  the  United  States,
appointments of  Judges  to  the  Supreme  Court,  should  be  made  by  the
President, subject to confirmation by the Parliament, through  a  two-thirds
majority.  The third proposal was, that Judges of the Supreme Court,  should
be appointed by the President in “consultation” with the Rajya Sabha.
76.   The response of Dr. B.R. Ambedkar to all the suggestions needs a  very
close examination, inasmuch as, even though rightfully pointed  out  by  the
Attorney General, and the learned counsel representing the respondents,  all
the issues which arise for consideration in the  present  controversy,  were
touched upon in the above response. Before dwelling upon  the  issue,  which
strictly  pertained  to  the  appointment  of  Judges,  Dr.  B.R.   Ambedkar
expressed  in  unequivocal  terms,  that  the  unanimous  opinion   of   the
Constituent Assembly was, that “our judiciary must  be  independent  of  the
executive”.  The same sentiment was expressed by  Dr.  B.R.  Ambedkar  while
responding to K.T. Shah, K.M. Munshi, Tajamul  Husain,  Alladi  Krishnaswami
Aayar and Anathasayanam Ayyangar (extracted in paragraph 30  above)  wherein
he emphasized, that “…there is no doubt  that  the  House  in  general,  has
agreed that the independence of the Judiciary, from the Executive should  be
made as clear and  definite  as  we  could  make  it  by  law…”   The  above
assertion made while debating the issue of  appointment  of  Judges  to  the
Supreme Court, effectively acknowledges, that the appointment of  Judges  to
the higher judiciary, has a direct nexus to the issue  of  “independence  of
the  judiciary”.    It  therefore,  does  not  lie  in  the  mouth  of   the
respondents to assert, that the subject  of  “appointment”  would  not  fall
within the domain/realm of “independence of the judiciary”.
77.   While responding to the second and third proposals referred to  above,
Dr. B.R. Ambedkar, cited the  manner  of  appointment  of  Judges  in  Great
Britain, and pointed out, that in the United Kingdom appointments were  made
by the Crown, without any kind of limitation, and as such, fell  within  the
exclusive domain of the executive.  Referring to the system adopted  in  the
United States, he noted, that Judges of the  Supreme  Court  in  the  United
States, could only be  appointed  with  the  “concurrence”  of  the  Senate.
Suffice it to  state,  that  the  latter  reference  was  to  a  process  of
appointment which fell within the domain of  the  legislature  (because  the
Senate is a legislative chamber in the bicameral legislature of  the  United
States, which together with the U.S. House of Representatives, make  up  the
U.S. Congress).  It is important  to  notice,  that  he  rejected  both  the
systems, where appointments  to  the  higher  judiciary  were  made  by  the
executive, as well as, by the legislature.   Dr.  B.R.  Ambedkar  therefore,
very clearly concluded the issue by expressing, that it  would  be  improper
to leave the appointments of Judges to the Supreme Court, to be made by  the
President – the executive (i.e., on the aid and advice  of  the  Council  of
Ministers, headed by  the  Prime  Minister).   In  the  words  of  Dr.  B.R.
Ambedkar, it would be dangerous to leave such appointments in the  hands  of
the executive of the day, without any kind of  reservation  and  limitation.
We are therefore  satisfied,  that  the  word  “consultation”  expressed  in
Articles 124 and 217, was  contemplated  by  the  Constituent  Assembly,  to
curtail the free will of the executive.  If that was the  true  intent,  the
word  “consultation”  could  never  be  assigned  its  ordinary   dictionary
meaning.  And Article 124 (or Article 217) could never be meant to  be  read
with Article 74. It is therefore not possible for us  to  accept,  that  the
main voice in the matter of selection  and  appointment  of  Judges  to  the
higher judiciary  was  that  of  the  President  (expressed  in  the  manner
contemplated under Article 74).  Nor is it possible to accept  that  primacy
in the instant matter rested with the executive.  Nor  that,  the  judiciary
has been assigned a role in the matter, which was not  contemplated  by  the
provisions of the Constitution. It is misconceived for  the  respondents  to
assert, that the determination of this Court in the Second and Third  Judges
cases was not interpretative in nature, but was factually  legislative.  Dr.
B.R. Ambedkar, therefore rejected, for the same reasons, the  proposal  that
appointments  of  Judges  to  the  Supreme  Court  should  be  made  by  the
legislature. But the reason he  expressed  in  this  behalf  was  most  apt,
namely, the procedure of appointing Judges, by seeking a  vote  of  approval
by one or the other (or both) House(s) of Parliament  would  be  cumbersome.
More importantly, Dr. B.R. Ambedkar was suspicious and  distrustful  of  the
possibility of the appointments being directed and  impacted  by  “political
pressure” and “political consideration”, if the  legislature  was  involved.
We are therefore satisfied, that when  the  Constituent  Assembly  used  the
term “consultation”, in the above provisions, its intent was  to  limit  the
participatory role of the political-executive in the matter of  appointments
of Judges to the higher judiciary.
78.   It was the view of Dr. B.R.  Ambedkar,  that  the  draft  article  had
adopted a middle course, by not making the President –  the  executive  “the
supreme and absolute authority in the  matter  of  making  appointments”  of
Judges.  And  also,  by  keeping  out  the  legislators  for  their  obvious
political  inclinations  and  biases,  which  render  them  unsuitable   for
shouldering the responsibility.  We are therefore  of  the  view,  that  the
judgments in the Second and Third Judges cases cannot  be  blamed,  for  not
assigning a dictionary meaning to the  term  “consultation”.   If  the  real
purpose sought to be achieved by the term “consultation” was to  shield  the
selection and appointment of Judges to the higher judiciary, from  executive
and political involvement, certainly the term “consultation”  was  meant  to
be understood as something more than a mere “consultation”.
79.   It is clear from the observations  of  Dr.  B.R.  Ambedkar,  that  the
President – the executive was  required  by  the  provisions  of  the  draft
article, to consult “…persons, who were  ex  hypothesi,  well  qualified  to
give proper advice on the matter of appointment of  Judges  to  the  Supreme
Court.”   The  response  of  Dr.  B.R.  Ambedkar  in  a  singular  paragraph
(extracted above), leaves no room for any doubt that  Article  124,  in  the
manner it was debated, was clearly meant to propound,  that  the  matter  of
“appointments of Judges was an integral part of  the  “independence  of  the
judiciary”. The  process  contemplated  for  appointment  of  Judges,  would
therefore have to be understood, to be such, as  would  be  guarded/shielded
from political pressure and political considerations.
80.   The paragraph following the one, that  has  been  interpreted  in  the
foregoing  paragraphs,  also  leaves  no  room  for  any  doubt,  that   the
Constituent Assembly did not desire to confer the Chief  Justice  of  India,
with a veto power to make appointments of Judges.  It is  therefore  that  a
consultative  process  was  contemplated  under  Article  124,  as  it   was
originally drafted.  The same mandated consultation not only with the  Chief
Justice of India, but with other Judges of the Supreme Court  and  the  High
Courts.  Viewed closely, the  judgments  in  the  Second  and  Third  Judges
cases, were rendered in a manner  as  would  give  complete  effect  to  the
observations made by Dr. B.R. Ambedkar with reference  to  Article  124  (as
originally incorporated). It is clearly erroneous  for  the  respondents  to
contend, that the consultative  process  postulated  between  the  President
with the other Judges of the  Supreme  Court  or  the  High  Courts  in  the
States, at the discretion of the President, had been done away with  by  the
Second and Third Judges cases. Nothing of the sort.  It  has  been,  and  is
still open to the President, in his unfettered wisdom, to  the  consultation
indicated in Article 124.  Additionally, it is open  to  the  President,  to
rely on the same, during the course of  the  mandatory  “consultation”  with
the Chief Justice of India. The above, further  demonstrates  the  executive
role in the selection of Judges to the higher judiciary, quite  contrary  to
the submission advanced on behalf of  the  respondents.  We  are  satisfied,
that the entire discussion and logic expressed during  the  debates  of  the
Constituent Assembly,  could  be  given  effect  to,  by  reading  the  term
“consultation” as vesting primacy with the judiciary, on  the  matter  being
debated.  We are also of the  view,  that  the  above  debates  support  the
conclusions drawn in the judgments of which review is being sought. For  the
reasons recorded hereinabove, we find no merit in the  submissions  advanced
by the  learned  counsel  for  the  respondents  based  on  the  Constituent
Assembly debates.
                                     IV.
81.   The consideration in hand, also has a historic perspective.  We  would
venture  to  examine  the  same,  from   experiences   gained,   after   the
Constitution became operational i.e., after the people of this country  came
to  govern  themselves,  in  terms   of   the   defined   lines,   and   the
distinctiveness of functioning, set forth by the arrangement and  allocation
of responsibilities, expressed in the  Constitution.   In  this  behalf,  it
would  be  relevant  to  highlight  the  discussion  which  took  place   in
Parliament, when the Fourteenth Report of the  Law  Commission  on  Judicial
Reform (1958)  was  tabled  for  discussion,  in  the  Rajya  Sabha  on  24-
25.11.1959. Replying to the debate on 24.11.1959, Govind Ballabh  Pant,  the
then Union Home Minister's  remarks,  as  stand  officially  recorded,  were
inter alia as under:
“Sir, so far as appointments to the Supreme Court go, since  1950  when  the
Constitution was brought into force, nineteen  Judges  have  been  appointed
and everyone of them was so appointed on the  recommendation  of  the  Chief
Justice of the Supreme Court.  I do not know if any  other  alternative  can
be devised for this purpose.  The Chief Justice of the Supreme Court  is,  I
think, rightly deemed and believed to be familiar with  the  merits  of  his
own colleagues and also  of  the  Judges  and  advocates  who  hold  leading
positions in different States.  So we have followed the advice of  the  most
competent, dependable and eminent person who could guide us in this matter.
Similarly, Sir, so far  as  High  Courts  are  concerned,  since  1950,  211
appointments have been made and out of these except one, i.e.,  210  out  of
211 were made on the advice, with the consent and concurrence of  the  Chief
Justice of India.  And out of the 211, 196 proposals which were accepted  by
Government had the support of all  persons  who  were  connected  with  this
matter.  As Hon. Members are aware, under, I think, article 217,  the  Chief
Justice of the High Court; the Chief Minister of  the  State  concerned  and
the Governor first deal with these matters.  Then  they  come  to  the  Home
Ministry and are referred by the Ministry to the Chief Justice of India  and
whatever suggestions or comments he makes are taken into  consideration  and
if necessary, a reference is again made to the Chief Minister and  the  High
Court.  But as I said, these 196 appointments were made in  accordance  with
the unanimous advice of the Chief Justice  of  the  High  Court,  the  Chief
Minister of the State, the Governor and the Chief Justice of India…”

The remarks made by Ashoke  Kumar  Sen,  the  then  Union  Law  Minister  on
25.11.1959,  during  the  course  of  the  debate  pertaining  to  the   Law
Commission Report, also need a reference:
“.....it is my duty to point out to the honourable House again, as I did  in
the Lok Sabha when the Law Commission first sent an interim  report  –  call
it an interim report or some report before the  final  one  –  pointing  out
that Judges have been appointed on extraneous considerations, we  gave  them
the facts and figures concerning all the appointments made since  1950.   We
drew their pointed attention to the fact that, as the Home Minister  pointed
out yesterday, except in the case of one Judge out of  the  176  odd  Judges
appointed since 1950,  all  were  appointed  on  the  advice  of  the  Chief
Justice.  With regard to the one there was  difference  of  opinion  between
the local Chief Justice and the Chief Justice of India  and  the  Government
accepted the advice of  the  local  Chief  Justice  rather  than  the  Chief
Justice of India.  But it was not their nominee.  We  should  have  expected
the Law Commission, in all fairness, to have dealt  with  the  communication
from the Government giving facts of all the appointments  not  only  of  the
High Courts but of the Supreme Court.   I  am  not  saying  that  they  were
obliged to do so, but it is only a fair thing to do, namely, when you  bring
certain accusation in a solemn document like the  Law  Commission's  Report,
you should deal with all the arguments for  and  against.   We  should  have
expected in all fairness that these facts ought to  have  been  dealt  with.
Unfortunately, no facts are set out so that it is impossible to  deal  with.
If it was said that this had been the case with A, this had  been  the  case
with B or C, it would have been easy for us to deal with  them.   Especially
when we had given all the facts  concerning  the  appointment  of  each  and
every Judge since 1950.”

82.   If one were to draw an inference, from the factual  numbers  indicated
in the statements of the  Home  Minister  and  the  Law  Minister,  and  the
inferences  drawn  therefrom,  it  is   more   than   apparent,   that   the
understanding  of  those  in-charge  of  working  the  provisions   of   the
Constitution,  relating  to  the  appointment  of  Judges  to   the   higher
judiciary, was that, the advice of the Chief Justice of  India  was  to  be,
and was actually  invariably  accepted,  by  the  President  (or  whosoever,
exercised the power of appointment).
83.   Historically again, from the  perspective  of  judicial  declarations,
the practice adopted on the issue in hand, came to be so understood, in  the
Samsher Singh case11, wherein this Court through a  seven-Judge  Bench  held
as under:
“In the light of the scheme of the Constitution  we  have  already  referred
to, it is doubtful  whether  such  an  interpretation  as  to  the  personal
satisfaction of the President is correct.  We  are  of  the  view  that  the
President means, for all practical purposes, the Minister or the Council  of
Ministers as the case may be, and his opinion, satisfaction or  decision  is
constitutionally  secured  when  his  Ministers  arrive  at   such   opinion
satisfaction or decision. The independence of  the  Judiciary,  which  is  a
cardinal principle of the Constitution and has been  relied  on  to  justify
the deviation, is guarded by the relevant article making  consultation  with
the  Chief  Justice  of  India  obligatory.   In   all   conceivable   cases
consultation with that highest dignitary of Indian justice will  and  should
be accepted  by  the  Government  of  India  and  the  Court  will  have  an
opportunity to examine if any other extraneous  circumstances  have  entered
into the verdict of the Minister, if he departs from the  counsel  given  by
the Chief Justice of India. In practice the last word in  such  a  sensitive
subject must belong to the Chief Justice of  India,  the  rejection  of  his
advice being ordinarily  regarded  as  prompted  by  oblique  considerations
vitiating the order. In this view it is immaterial whether the President  or
the Prime Minister or the Minister for Justice formally decides the issue.”

84.   Ever since 1974, when the  above  judgment  was  rendered,  the  above
declaration, has held the field, as the  above  judgment  has  neither  been
reviewed nor set aside.  It cannot  be  overlooked,  that  the  observations
extracted from the Samsher Singh case11, were reaffirmed  by  another  five-
Judge Bench, in the Sankalchand Himatlal Sheth case5, as under:
“This then, in my judgment, is the true meaning and content of  consultation
as envisaged by Article  222(1) of  the  Constitution.  After  an  effective
consultation with the Chief Justice of India, it is open  to  the  President
to arrive at a proper decision of the question whether  a  Judge  should  be
transferred to another High Court because, what  the  Constitution  requires
is consultation with  the  Chief  Justice,  not  his  concurrence  with  the
proposed transfer. But it  is  necessary  to  reiterate  what  Bhagwati  and
Krishna Iyer, JJ., said in Shamsher Singh (supra) that  in  all  conceivable
cases, consultation with the Chief Justice of India should  be  accepted  by
the Government of India and that the  Court  will  have  an  opportunity  to
examine if any other extraneous circumstances have entered into the  verdict
of the executive if it departs from the counsel given by the  Chief  Justice
of India: "In practice the last  word  in  such  a  sensitive  subject  must
belong to the Chief Justice of India, the  rejection  of  his  advice  being
ordinarily regarded as prompted  by  oblique  considerations  vitiating  the
order." (page 873). It is hoped that these words will not fall on deaf  ears
and since normalcy has now been restored, the differences, if  any,  between
the executive and the judiciary will be  resolved  by  mutual  deliberation,
each party treating the views of the other with respect and consideration.”

85.   Even in the First Judges case, P.N. Bhagwati, J.,  corrected  his  own
order through a corrigendum, whereby his  order,  inter  alia,  came  to  be
recorded, as under:
“Even  if  the  opinion  given  by  all  the  constitutional   functionaries
consulted by it is identical, the Central Government is not bound to act  in
accordance with such opinion, though being a unanimous opinion of all  three
constitutional  functionaries,  it  would  have  great  weight  and  if   an
appointment is made by the Central Government in defiance of such  unanimous
opinion, it may prima facie be vulnerable to attack on the  ground  that  it
is mala fide or based  on  irrelevant  grounds.   The  same  position  would
obtain if an appointment is made by the Central Government contrary  to  the
unanimous opinion of the Chief Justice of  the  High  Court  and  the  Chief
Justice of India.”

From the above extract, it is apparent, that the  observations  recorded  by
this Court in paragraph 149 in the Samsher Singh case11,  were  endorsed  in
the Sankalchand Himatlal Sheth case5, and were also  adopted  in  the  First
Judges case.  The position came to be expressed emphatically in  the  Second
and Third Judges cases,  by  reading  the  term  “consultation”  as  vesting
primacy with the judiciary, in the matter of appointments of Judges  to  the
higher judiciary.  This time around, at the hands  of  two  different  nine-
Judge Benches, which reiterated the position expressed in the Samsher  Singh
case11.
86.   The above sequence reveals, that the executive while giving effect  to
the procedure, for appointment of Judges to the higher judiciary (and  also,
in the matter of transfer of Chief Justices and Judges from one High  Court,
to  another),  while  acknowledging   the   participation   of   the   other
constitutional functionaries (referred to in Articles  124,  217  and  222),
adopted a procedure, wherein primacy in the  decision  making  process,  was
consciously entrusted with the judiciary.  This position was followed,  from
the very beginning, after the  promulgation  of  the  Constitution,  by  the
executive, at its own.  Insofar as  the  legislature  is  concerned,  it  is
apparent, that the issue came up for  discussion,  in  a  responsive  manner
when the Fourteenth  Report  of  the  Law  Commission  on  Judicial  Reforms
(1958), was discussed by the Parliament, as far back as in 1959, just a  few
years after the country came to be governed  by  the  Constitution.   It  is
apparent, that when the two Houses of the Parliament, reflected  inter  alia
on Articles 124, 217 and 222, in the matter of appointment of Judges to  the
higher judiciary, the  unanimous  feeling  which  emerged  was,  that  “…the
advice of the most competent dependent and  eminent  person…”  –  the  Chief
Justice of  India,  had  been  followed  rightfully.   Two  aspects  of  the
parliamentary discussion, which  were  kept  in  mind  when  the  issue  was
deliberated, need to be highlighted.  First, that the President  meant  (for
all  practical  purposes),  the  concerned  Minister,  or  the  Council   of
Ministers headed by the Prime Minister.  And second, that the provisions  in
question envisaged only a participatory role, of  the  other  constitutional
authorities. Therefore,  the  above  affirmation,  to  the  primacy  of  the
judiciary, in the matter of appointment of Judges to the  higher  judiciary,
was consciously recorded, after having appreciated the gamut  of  the  other
participating  constitutional  authorities.  In  the  matter   of   judicial
determination, the issue  was  examined  by  a  Constitution  Bench  of  the
Supreme Court as far back, as in 1974 in the Samsher Singh  case11,  wherein
keeping  in  mind  the  cardinal  principle  –  the  “independence  of   the
judiciary”, it was concluded, that consultation with the  highest  dignitary
in the judiciary – the Chief Justice of India, in practice meant,  that  the
last word must belong to the Chief Justice of India  i.e.,  the  primacy  in
the matter of appointment of Judges to the higher judiciary, must rest  with
the judiciary.   The  above  position  was  maintained  in  the  Sankalchand
Himatlal Sheth case5 in 1977, by a five-Judge Bench, only to be  altered  in
the First Judges case, by a seven-Judge Bench in 1981, wherein it was  held,
that the term “consultation”  could  not  be  read  as  “concurrence”.   The
position expounded even in this case by P.N. Bhagwati, J. (as he then  was),
extracted above,  must  necessarily  also  be  kept  in  mind.  The  earlier
position was restored in 1993 by a nine-Judge Bench  in  the  Second  Judges
case (which overruled  the  First  Judges  case).  The  position  was  again
reaffirmed  by  a  nine-Judge  Bench,  through  the   Third   Judges   case.
Historically,  therefore,  all  the  three   wings   of   governance,   have
uniformally maintained, that while making  appointments  of  Judges  to  the
higher judiciary,  “independence  of  the  judiciary”  was  accepted  as  an
integral component of the spirit of the Constitution, and thereby, the  term
“consultation” used  in  the  provisions  under  consideration,  had  to  be
understood as vesting primacy with the  judiciary,  with  reference  to  the
subjects contemplated under Articles 124, 217  and  222.   In  view  of  the
above historical exposition, there is really no legitimate  reason  for  the
respondents to seek a review of  the  judgments  in  the  Second  and  Third
Judges cases.
                                     V.
87.   Whilst dwelling on the subject  of  the  intention  expressed  by  the
Members of the Constituent Assembly, it is considered  just  and  expedient,
also to take into consideration  the  views  expressed  in  respect  of  the
adoption of “separation of powers” in  the  Constitution.   When  the  draft
prepared by the Constituent Assembly came up for debate, Dr.  B.R.  Ambedkar
proposed an amendment of Article 39A.  It  would  be  relevant  to  mention,
that the aforesaid amendment, on being adopted, was incorporated as  Article
50 in the Constitution (as originally enacted).  It  is  also  necessary  to
notice,  that  the  Government  had  already  commenced  to  function,  with
Jawaharlal Nehru as the Prime Minister, when the draft of  the  Constitution
was being debated before the Constituent  Assembly.   His  participation  in
the debates of the Constituent Assembly, therefore,  was  not  only  in  his
capacity  as  a  Member  of  the  Constituent  Assembly,  but  also,  as   a
representative of the Government of  India.   It  is  necessary  to  extract
hereunder, the views expressed by Jawaharlal Nehru,  Bakshi  Tek  Chand  and
Loknath Misra, in the above debates, relating  to  “separation  of  powers”.
Relevant extracts are being reproduced hereunder:
“The Honourable Pandit Jawaharlal Nehru (United Provinces: General):
…..Coming to this particular matter, the honourable speaker, Pandit  Kunzru,
who has just spoken and opposed the amendment of Dr. Ambedkar seems  to  me;
if I may say so with all  respect  to  him,  to  have  gone  off  the  track
completely, and to suspect a sinister  motive  on  the  part  of  Government
about  this  business.  Government  as  such  is  not  concerned  with  this
business, but it is true that some members  of  Government  do  feel  rather
strongly  about  it  and  would  like  this  House  fully  to  consider  the
particular view point that Dr. Ambedkar has placed before the  House  today.
I may say straight off that so far as the Government  is  concerned,  it  is
entirely in favour of the separation of  judicial  and  executive  functions
(Cheers). I may further say that the sooner it is brought about  the  better
(Hear, hear) and I am told that  some  of  our  Provincial  Governments  are
actually taking steps to that  end  now.  If  anyone  asked  me,  if  anyone
suggested the period of three years or some other period, my first  reaction
would have been that this period is too long. Why should  we  wait  so  long
for this? It might be brought about, if not all over India, in a large  part
of India, much sooner than that. At the same time, it is obvious that  India
at the present moment, specially during the transitional period, is  a  very
mixed country politically, judicially, economically and in  many  ways,  and
any fixed rule of thumb to be applied to every area may  be  disadvantageous
and difficult in regard to certain areas. On the one hand,  that  rule  will
really prevent progress in one area, and on the other  hand,  it  may  upset
the apple-cart in some other  area.  Therefore,  a  certain  flexibility  is
desirable. Generally speaking, I would have said that in any such  directive
of policy,  it  may  not  be  legal,  but  any  directive  of  policy  in  a
Constitution must have a powerful  effect.  In  any  such  directive,  there
should not be any detail or time-limit etc. It is a directive  of  what  the
State wants, and your putting in any kind  of  time-limit  therefore  rather
lowers it from that high status of a State policy and brings it down to  the
level of a legislative measure, which it is not in that sense. I would  have
preferred no time-limit to be there,  but  speaking  more  practically,  any
time-limit in this, as Dr. Ambedkar pointed out, is apt on the one  hand  to
delay this very process in large parts of the country, probably the  greater
part of the country; on the other hand,  in  some  parts  where  practically
speaking it may be very difficult to bring about, it  may  produce  enormous
confusion. I think, therefore,  that  Dr.  Ambedkar's  amendment,  far  from
lessening the significance  or  the  importance  of  this  highly  desirable
change that we wish to bring about, places it on a  high  level  before  the
country. And I do not see myself how any Provincial or other Government  can
forget this Directive or delay it much. After all, whatever is going  to  be
done in the future will largely depend upon the sentiment of the people  and
the future Assemblies and Parliaments that will meet. But  so  far  as  this
Constitution is concerned, it gives a  strong  opinion  in  favour  of  this
change and it gives it in a way so as to make it possible to bring it  about
in areas where it can be brought about - the provinces, etc. - and  in  case
of difficulty in any particular State, etc., it does not bind them  down.  I
submit, therefore, that this amendment of Dr. Ambedkar should  be  accepted.
(Cheers).”
“Dr. Bakshi Tek Chand (East Punjab: General):  Mr.  Vice-President,  Sir,  I
rise to lend my whole hearted support to the amendment which has been  moved
by Dr. Ambedkar today. The question  of  the  separation  of  executive  and
judicial functions is not only as old as the Congress itself, but indeed  it
is much older. It was in the year 1852 when public opinion in  Bengal  began
to express itself in an organised form that the  matter  was  first  mooted.
That was more than thirty years before the  Congress  came  into  existence.
After the Mutiny, the movement gained momentum and in the  early  seventies,
in Bengal, under the leadership of Kisto Das Pal and Ram  Gopal  Ghosh,  who
were the leaders of public opinion in those days,  definite  proposals  with
regard to the separation  of  judicial  and  executive  functions  were  put
forward. Subsequently, the late Man Mohan Ghosh took up this matter  and  he
and Babu Surendranath Bannerji year in and year out raised this question  in
all public meetings.
When the Congress first met in the session in Bombay in  1885,  this  reform
in the administration was put in the forefront of its programme.  Later  on,
not only politicians of all schools of thought, but  even  retired  officers
who had actually spent their  lives  in  the  administration,  took  up  the
matter and lent their support to  it.  I  very  well  remember  the  Lucknow
Congress of 1899 when Romesh Chunder Dutt, who had  just  retired  from  the
Indian Civil Service, presided. He devoted a large part of his  presidential
address to this subject and created a good deal of enthusiasm  for  it.  Not
only that: even retired High Court Judges and  Englishmen  like  Sir  Arthur
Hobhouse and Sir Arthur Wilson, both of whom subsequently became members  of
the Judicial Committee of the Privy Council, lent their support to this  and
they jointly with many eminent Indians submitted  a  representation  to  the
Secretary of State for India to give immediate effect to this reform.
In the year 1912, when the Public  Service  Commission  was  appointed,  Mr.
Abdur Rahim, who was a Judge of the Madras  High  Court  and  was  for  many
years the President of the Central Legislature, appended a  long  Minute  of
Dissent and therein he devoted several pages to this question.
Therefore, Sir, the matter has been before the country for nearly a  century
and it is  time  that  it  is  given  effect  to  immediately.  One  of  the
Honourable Members who spoke yesterday, observed that  this  matter  was  of
great importance when we had a foreign Government but now the  position  has
changed, and it may not  be  necessary  to  give  effect  to  it.  Well,  an
effective reply to this has been given by the Honourable the Prime  Minister
today. He has expressly stated that it is the policy of the Government,  and
it is their intention to see that this reform is given immediate effect to.
      xxxx             xxxx             xxxx
I am glad to hear that he confirms it. This gives the quietus to  these  two
objections  which  have  been  raised,   that   because   of   the   changed
circumstances, because we have attained freedom, it is no  longer  necessary
and that the  financial  burden  will  be  so  heavy  that  it  might  crush
provincial Governments.  Both these objections are hollow.
One word more I have to say in this connection and that is,  that  with  the
advent of democracy and freedom, the necessity of  this  reform  has  become
all the greater. Formerly it was only the  district  magistrate  and  a  few
members of the bureaucratic  Government  from  whom  interference  with  the
judiciary was apprehended, but now, I am very sorry to  say  that  even  the
Ministers in some provinces and members of political parties have  begun  to
interfere with the free administration of justice. Those of you, who may  be
reading news paper reports of judicial  decisions  lately,  must  have  been
struck with this type of interference which has been  under  review  in  the
various High Courts lately. In one province we found that in a case  pending
in a Criminal Court, the Ministry sent for the record and  passed  an  order
directing the trying Magistrate to stay proceedings in the  case.  This  was
something absolutely unheard of. The matter eventually went up to  the  High
Court and the learned Chief Justice and  another  Judge  had  to  pass  very
strong remarks against such executive interference with  the  administration
of justice.
In another province  a  case  was  being  tried  against  a  member  of  the
Legislative Assembly and a directive went from the  District  Magistrate  to
the Magistrate trying the case  not  to  proceed  with  it  further  and  to
release the man. The Magistrate who was a member  of  the  Judicial  Service
and was officiating as a Magistrate had the strength to resist this  demand.
He had all those letters put on the record and eventually  the  matter  went
up to the High Court and the Chief Justice of the Calcutta High  Court  made
very strong remarks about this matter.
Again in the Punjab, a case has recently occurred in which a  Judge  of  the
High Court, Mr. Justice  Achu  Ram,  heard  a  habeas  corpus  petition  and
delivered a judgment of 164 pages at the conclusion  of  which  he  observed
that the action taken by the District Magistrate and the  Superintendent  of
Police against a member of the Congress Party was  mala  fide  and  was  the
result of a personal vendetta. These were his remarks.
In these circumstances, I submit that with the change of  circumstances  and
with the advent of freedom and the introduction of democracy, it has  become
all the more necessary to bring about the separation of the  judiciary  from
the executive at the earliest possible opportunity.”

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

89.   Based on the  consideration  recorded  in  the  immediately  preceding
paragraphs also, it seems to us, that the necessity  of  making  a  detailed
reference to the Constituent Assembly debates in  the  Second  Judges  case,
may well have been regarded, as of no serious consequence,  whether  it  was
on the subject of appointment of  Judges  to  the  higher  judiciary,  as  a
component of  “independence  of  the  judiciary”,  or,  on  the  subject  of
“separation of powers”, whereby  the judiciary was sought to be kept  apart,
and separate, from the executive. This  Court  having  concluded,  that  the
principle  of  “separation  of  powers”  was  expressly  ingrained  in   the
Constitution, which removes the executive from any role  in  the  judiciary,
the right of the executive to have the final  word  in  the  appointment  of
Judges to the higher judiciary, was clearly ruled out.  And therefore,  this
Court on a harmonious construction of the provisions  of  the  Constitution,
in the Second and Third Judges cases, rightfully held, that primacy  in  the
above matter, vested with the judiciary, leading to the inference, that  the
term “consultation” in the provisions under reference, should be  understood
as giving primacy to the view expressed by the judiciary, through the  Chief
Justice of India.
                                     VI.
90.   It is imperative to deal with another  important  submission  advanced
by the learned Attorney General, namely, that the issue of “independence  of
the judiciary” has nothing to  do  with  the  process  of  “appointment”  of
Judges to the higher judiciary.  It was  submitted,  that  the  question  of
independence of a Judge arises, only after a Judge has  been  appointed  (to
the higher judiciary), for it is only then, that he is to be  shielded  from
the executive/political pressures and  influences.   It  was  sought  to  be
elaborated, that Judges of the higher  judiciary,  immediately  after  their
appointment were so well shielded, that there could be no  occasion  of  the
“independence of the judiciary” being compromised, in any manner, either  at
the hands of the executive, or of the legislature.
91.   Whilst advancing the instant contention, it was the pointed  assertion
of the learned Attorney General, that neither of the judgments  rendered  in
the Second and  Third  Judges  cases  had  held,  that  the  “selection  and
appointment” of Judges, to the  higher  judiciary,  would  fall  within  the
purview  of  “independence  of  the  judiciary”.  It   was   therefore   his
contention, that it was wrongful to assume, on the basis of  the  above  two
judgments, that the question  of  “appointment”  of  Judges  to  the  higher
judiciary would constitute a component  of  the  “basic  structure”  of  the
Constitution.  It was the contention of the learned Attorney  General,  that
the Parliament, in its wisdom, had now amended the Constitution,  admittedly
altering the process of “selection and appointment” of Judges to the  higher
judiciary (including their transfer). It was  further  contended,  that  the
process contemplated through the Constitution (99th Amendment) Act,  coupled
with the  NJAC  Act,  was  such,  that  it  cannot  be  considered  to  have
interfered with, or impinged upon, the “independence of the judiciary”,  and
thus viewed, it would  not  be  rightful  to  conclude,  that  the  impugned
constitutional amendment, as also the NJAC Act, were  per  se  violative  of
the “basic structure”.
92.   We may preface our consideration by noticing,  that  every  two  years
since 1985, a conference of Supreme  Court  Chief  Justices  from  the  Asia
Pacific  region,  has  been  held  by  the  Judicial  Section  of  the   Law
Association for Asia and the Pacific.  Since its inception,  the  conference
has served as a useful forum for sharing information and  discussing  issues
of  mutual  concern  among  Chief  Justices  of  the  region.   At  its  6th
Conference held in Beijing in  1997,  20  Chief  Justices  adopted  a  joint
Statement of  Principles  of  the  “Independence  of  the  Judiciary”.  This
statement was further refined during the 7th Conference  of  Chief  Justices
held in Manila, wherein it was signed by 32 Chief  Justices  from  the  Asia
Pacific region. The Beijing Statement of Principles of the “Independence  of
the Judiciary” separately deals with appointment of  Judges.   The  position
expressed in the above statement with reference to “appointment”  of  Judges
is extracted hereunder:
“Appointment of Judges
11. To enable the judiciary  to  achieve  its  objectives  and  perform  its
functions, it is essential that judges be chosen  on  the  basis  of  proven
competence, integrity and independence.
12.The mode of appointment of  judges  must  be  such  as  will  ensure  the
appointment of persons who are best qualified for judicial office.  It  must
provide safeguards against improper influences being taken into  account  so
that only persons of competence, integrity and independence are appointed.
13. In the selection of  judges  there  must  no  discrimination  against  a
person on the basis of race, colour, gender, religion,  political  or  other
opinion, national or social  origin,  marital  status,  sexual  orientation,
property, birth or status, expect that a requirement that  a  candidate  for
judicial office must be a national of the country  concerned  shall  not  be
considered discriminatory.
14. The structure of the  legal  profession,  and  the  sources  from  which
judges  are  drawn  within  the  legal  profession,  differ   in   different
societies. In some societies, the judiciary is a career service; in  others,
judges are chosen from the practising profession. Therefore, it is  accepted
that in different societies, difference procedures  and  safeguards  may  be
adopted to ensure the proper appointment of judges.
15. In some societies, the appointment of judges, by, with the  consent  of,
or after consultation with a Judicial Services Commission has been  seen  as
a means of ensuring  that  those  chosen  judges  are  appropriate  for  the
purpose. Where a Judicial Services Commission is adopted, it should  include
representatives the higher Judiciary and the  independent  legal  profession
as a means of ensuring that judicial competence, integrity and  independence
are maintained.
16. In the absence of a Judicial Services  Commission,  the  procedures  for
appointment  of  judges  should  be  clearly  defined  and  formalised   and
information about them should be available to the public.
17. Promotion of judges must be based on an objective assessment of  factors
such as competence, integrity, independence and experience.”

Therefore to contend, that the subject of  “appointment”  is  irrelevant  to
the question of the “independence of the judiciary”, must be  considered  as
a misunderstanding of a well recognized position.
93.   Whilst dealing with the instant contention, we will  also  examine  if
this Court in the Second and Third Judges cases,  had  actually  dealt  with
the issue, whether “appointment” of Judges  to  the  higher  judiciary,  was
(or, was not) an essential component of the principle  of  “independence  of
the judiciary”?  Insofar as the instant aspect of the matter  is  concerned,
reference in the first instance, may be made  to  the  Second  Judges  case,
wherein S. Ratnavel Pandian, J., while  recording  his  concurring  opinion,
supporting the majority view, observed as under:
“47.   The  above  arguments,  that  the  independence   of   judiciary   is
satisfactorily secured by the constitutional safeguard of the office that  a
judge holds and guarantees of the service conditions alone  and  not  beyond
that, are in our considered opinion, untenable.  In fact we are unable  even
to conceive such an argument for the reason to be presently stated.”

In addition to the above extract, it is necessary to refer to the  following
observations of Kuldip Singh, J.:
“335. Then the question which comes up for consideration is,  can  there  be
an independent judiciary when the power of appointment of  judges  vests  in
the executive? To say yes, would be illogical....”

From the above it  is  clear,  that  the  issue  canvassed  by  the  learned
Attorney General, was  finally  answered  by  the  nine-Judge  Bench,  which
disposed of the Second  Judges  case  by  holding,  that  if  the  power  of
“appointment” of Judges, was left to the executive, the  same  would  breach
the principle of the “independence of the judiciary”. And  also  conversely,
that providing safeguards after the appointment of a  Judge  to  the  higher
judiciary,  would  not  be  sufficient  to  secure  “independence   of   the
judiciary”.  In the above view of the matter, it is necessary  to  conclude,
that the “manner of selection and  appointment”  of  Judges  to  the  higher
judiciary, is an integral component of “independence of the judiciary”.  The
contentions advanced on  behalf  of  the  Union  of  India,  indicating  the
participation of the President and the Parliament, in  the  affairs  of  the
judiciary,  would  have  no  bearing  on  the  controversy  in  hand,  which
primarily relates to the issue of “appointment”  of  Judges  to  the  higher
judiciary. And, extends to transfer of Chief Justices and  Judges  from  one
High Court, to another. The fact that there were sufficient  safeguards,  to
secure the independence of  Judges  of  the  higher  judiciary  after  their
“appointment”, and therefore, there was no need to  postulate, that  in  the
matter of “appointment” also, primacy need  not  be  in  the  hands  of  the
judiciary, is also not acceptable. It is quite another matter,  whether  the
manner of selection  and  appointment  of  Judges,  introduced  through  the
Constitution (99th Amendment) Act coupled with the NJAC Act, can  indeed  be
considered to be violative of “independence of the judiciary”. This  aspect,
shall be examined and determined independently, while examining  the  merits
of the challenge raised by the petitioners.
                                    VII.
94.   A perusal of the provisions  of  the  Constitution  reveals,  that  in
addition to the appointment of the Chief Justice of India and Judges of  the
Supreme Court, under Article 124, the President has also  been  vested  with
the authority to appoint Judges and Chief  Justices  of  High  Courts  under
Article 217. In both the above provisions, the mandate  for  the  President,
inter alia is, that the Chief Justice of India “shall always be  consulted”,
(the first proviso, under Article 124(2), as originally enacted),  and  with
reference to Judges of the High Court, the language engaged in  Article  217
was,  that  the  President  would  appoint  Judges  of  High  Courts  “after
consultation with the Chief  Justice  of  India”  (per  sub-Article  (1)  of
Article 217).
95.   To understand the term “consultation”  engaged  in  Articles  124  and
217, it is essential to  contrast  the  above  two  provisions,  with  other
Articles of the Constitution, whereunder also, the President is mandated  to
appoint different constitutional authorities.  Reference in this behalf  may
be made to the appointment of the Comptroller and Auditor-General of  India,
under Article 148.  The said provision vests  the  authority  of  the  above
appointment with the  President,  without  any  consultative  process.   The
position is exactly similar with reference to appointment  of  Governors  of
States,  under  Article  155.   The   said   provision   also   contemplates
appointments, without any  consultative  process.   The  President  is  also
vested with the authority, to appoint the Chairman and four Members  of  the
Finance  Commission,  under  Article  280.   Herein  also,  the   power   is
exclusively vested with the President,  without  any  consultative  process.
The power of appointment of Chairman and other Members of the  Union  Public
Service Commission, is also vested with the  President  under  Article  316.
The aforesaid appointment also does not contemplate any  deliberation,  with
any other authority. Under Article 324, the power of  appointment  of  Chief
Election  Commissioner  and  Election  Commissioners  is  vested  with   the
President exclusively. Likewise, is the case of appointment of  Chairperson,
Vice-Chairperson and  Members  of  the  National  Commission  for  Scheduled
Castes under  Article  338,  and  Chairperson,  Vice-Chairperson  and  other
Members of the National Commission for Scheduled Tribes under Article  338A.
 Under  the  above  stated  provisions,  the  President  has  the  exclusive
authority to make appointments, without  any  deliberation  with  any  other
authority. Under  Article  344,  the  President  is  also  vested  with  the
authority to appoint  Chairman  and  other  Members  to  the  Commission  of
Parliament on Official Languages.   The  instant  provision  also  does  not
provide for any consultative process  before  such  appointment.   The  same
position emerges from Article 350B, whereunder the President is  to  appoint
a Special Officer for  Linguistic  Minorities.   Herein  too,  there  is  no
contemplation of any prior consultation.
96.   It is apparent that the Council of Ministers, with the Prime  Minister
as its head, is to “aid and advise” the President in  the  exercise  of  his
functions.  This  position  is  not  disputed   by   the   learned   counsel
representing the respondents. Interpreted in the above manner, according  to
the learned Attorney  General,  in  exercising  his  responsibilities  under
Articles 124, 217, 148, 155, 280, 316, 324, 338, 338A,  344  and  350B,  the
President is only a figurative authority, whereas truthfully, the  authority
actually vests in the Council of Ministers headed  by  the  Prime  Minister.
And as such, for all intents and  purposes,  the  authority  vested  in  the
President for appointing different constitutional authorities,  truly  means
that the power of such appointment is vested in the executive.
97.   If one were to  understand  the  words,  as  they  were  expressed  in
Article 74, in our considered view, it would be difficult to conclude,  that
“aid and advice” can be treated synonymous with a  binding  “direction”,  an
irrevocable “command” or a conclusive “mandate”. Surely, the term  “aid  and
advice” cannot individually be construed as  an  imperative  dictate,  which
had to be obeyed under all circumstances.  In common parlance, a process  of
“consultation” is  really  the  process  of  “aid  and  advice”.   The  only
distinction  being,  that  “consultation”  is  obtained,  whereas  “aid  and
advice” may be tendered.  On a plain readingtherefore, neither  of  the  two
(“aid and advice” and “consultation”) can  be  understood  to  convey,  that
they can be of a binding nature.   We  are  of  the  view,  that  the  above
expressions were used, keeping  in  mind  the  exalted  position  which  the
President occupies (as the first citizen, of the  country).   As  the  first
citizen, it would  have  been  discourteous  to  provide,  that  he  was  to
discharge his functions in  consonance  with  the  directions,  command,  or
mandate of the executive. Since, both the expressions (“aid and advice”  and
“consultation”), deserve the same interpretation, if  any  one  of  them  is
considered to be mandatory and binding, the same import  with  reference  to
the other must follow.  Through the  Constitution  (Forty-second  Amendment)
Act, 1976, Article 74 came to be amended, and  with  the  insertion  of  the
words “shall … act in accordance with such advice”, the  President  came  to
be bound, to exercise  his  functions,  in  consonance  with  the  “aid  and
advice” tendered to him, by the Council of Ministers  headed  by  the  Prime
Minister.  The instant amendment, in our  view,  has  to  be  considered  as
clarificatory in character, merely  reiterating  the  manner  in  which  the
original provision ought to have been understood.
98.   If “aid and advice” can be binding and  mandatory,  surely  also,  the
term “consultation”, referred to in Articles 124 and 217, could lead to  the
same exposition.  The President of India, being the  first  citizen  of  the
country,  is  entitled  to  respectability.  Articles  124  and  217,   were
undoubtedly couched in  polite  language,  as  a  matter  of  constitutional
courtesy, extended to the first citizen of the country. It is  important  to
notice, that the first proviso under Article 124(2) clearly  mandates,  that
the Chief Justice of India “shall always” be consulted.  It  was  a  reverse
obligation, distinguishable from Article  74.   Herein,  the  President  was
obliged  to  consult  the  Chief  Justice  of  India,  in  all  matters   of
appointment of Judges to the Supreme Court. The  process  of  “consultation”
contemplated therein, has to be meaningfully understood.  If it was  not  to
be so, the above  provision  could  have  been  similarly  worded  as  those
relating to the  appointment  of  the  Comptroller  and  Auditor-General  of
India, Governors of States, Chairman and Members of the Finance  Commission,
Chairman and Members of the Union Public Service Commission, Chief  Election
Commissioner and Election Commissioners, Chairperson  and  Vice  Chairperson
and Members of the National Commission for Scheduled Castes, as also,  those
of the National Commission  for  Scheduled  Tribes.  This  contrast  between
Articles  124  and  217  on  the  one  hand,  and   the   absence   of   any
“consultation”,  with  reference  to  the  appointments  contemplated  under
Articles 148, 155, 280, 316, 324, 338, 338A, 344 and 350B,  leaves  no  room
for  any  doubt,  that  the  above  “consultation”  was  not  a  simplicitor
“consultation”.  And  since,  the  highest  functionary  in   the   judicial
hierarchy was obliged to be consulted, a similar  respectability  needed  to
be  bestowed  on  him.  What  would  be   the   worth   of   the   mandatory
“consultation”, with the Chief Justice of India,  if  his  advice  could  be
rejected, without any justification?  It was therefore,  concluded  by  this
Court,  that  in  all  conceivable  cases,  consultation  with  the  highest
dignitary in the judiciary – the Chief Justice of India, will and should  be
accepted.  And, in case it was not so acceptd, it would  be  permissible  to
examine  whether  such  non  acceptance  was   prompted   by   any   oblique
consideration.  Rightfully  therefore,  the  term  “consultation”  used   in
Articles 124 and 217, as they were originally enacted  meant,  that  primacy
had to be given to the opinion tendered by the Chief Justice  of  India,  on
the issues for which the President was obliged to seek such  “consultation”.
The submission advanced on behalf of the respondents,  cannot  be  accepted,
also for the reason, that the interpretation placed  by  them  on  the  term
“consultation”, would result in an interpretation of Articles 124  and  217,
as at par with Articles 148, 155, 280, 316, 324, 338, 338A,  344  and  350B,
wherein the term “consultation” had not been used. Such  an  interpretation,
would be clearly unacceptable. Since the manner of appointment of Judges  to
the higher judiciary,  is  in  contrast  with  that  of  the  constitutional
authorities referred to by the  learned  Attorney  General,  the  submission
advanced  on  behalf  of  the  respondents  with  reference  to  the   other
constitutional  authorities  cannot  have   a   bearing   on   the   present
controversy.
99.   We would unhesitatingly accept and acknowledge the submission made  by
the learned Attorney General, as has  been  noticed  hereinabove,  but  only
limited to situations of appointment contemplated under various Articles  of
the Constitution, where the power of appointment is exclusively vested  with
the President.  As such, there is no room for any doubt that the  provisions
of the Constitution, with reference to the  appointment  of  Judges  to  the
higher  judiciary,  contemplated  that  the  “aid   and   advice”   (–   the
“consultation”) tendered by the Chief Justice  of  India,  was  entitled  to
primacy, on matters regulated under Articles 124 and  217  (as  also,  under
Article 222).


                                    VIII.
100.  In continuation with the conclusions drawn in the foregoing  analysis,
the matter can be examined from  another  perspective  as  well.   The  term
“consultation” (in connection with, appointments of  Judges  to  the  higher
judiciary)  has  also  been  adopted  in  Article  233  on  the  subject  of
appointment of District Judges. Under Article 233, the power of  appointment
is vested with the Governor of the concerned  State,  who  is  empowered  to
make appointments (including promotions) of  District  Judges.  This  Court,
through a five-Judge Bench, in Registrar  (Admn.),  High  Court  of  Orissa,
Cuttack v. Sisir Kanta Satapathy[32], has held,  that  recommendations  made
by the High Court in the consultative process envisaged under  Article  233,
is binding  on  the  Governor.  In  the  face  of  the  aforestated  binding
precedent, on a controversy, which is startlingly  similar  to  the  one  in
hand, and has never been questioned, it is quite  ununderstandable  how  the
Union of India, desires to persuade this Court,  to  now  examine  the  term
“consultation” differently with reference to Articles 124 and  217,  without
assailing the meaning given to the  aforesaid  term,  with  reference  to  a
matter also governing the judiciary.
VI.   CONCLUSION:
101.  Based on the conclusions  drawn  hereinabove,  while  considering  the
submissions advanced by the learned counsel for the rival parties,  as  have
been recorded in “V – The Consideration”, we  are  of  the  view,  that  the
prayer made at the hands of the learned counsel  for  the  respondents,  for
revisiting or reviewing the judgments rendered by this Court, in the  Second
and Third Judges cases, cannot be acceded to.  The prayer  is,  accordingly,
hereby declined.

                                                              …………………………….J.
                                                      (Jagdish Singh Khehar)
New Delhi;
October 16, 2015.
                             THE ORDER ON MERITS
I.    PREFACE:
1.    It is essential to begin the instant  order  by  a  foreword,  in  the
nature of an explanation.  For, it would reduce  the  bulk  of  the  instant
order, and obviate the  necessity  to  deal  with  issues  which  have  been
considered and dealt with, while hearing the present set of cases.
2.    The question which arises for consideration  in  the  present  set  of
cases pertains to the constitutional validity of the  Constitution  (Ninety-
ninth Amendment) Act, 2014 [hereinafter  referred  to  as  the  Constitution
(99th Amendment) Act], as also, that of the National  Judicial  Appointments
Commission Act, 2014 (hereinafter referred to as, the NJAC Act).   The  core
issue that arises for consideration, relates to the validity of the  process
of selection and appointment of Judges to the higher judiciary (i.e.,  Chief
Justices and Judges of the High Courts and the Supreme Court), and  transfer
of Chief Justices and Judges of one High Court, to another.
3.    This is the third order in the series of orders passed  by  us,  while
adjudicating upon the present controversy.  The first order, dealt with  the
prayer made at the Bar, for the “recusal” of one of  us  (J.S.  Khehar,  J.)
from hearing the present set of cases.  As and when a reference is  made  to
the above first order, it would be adverted to as the “Recusal Order”.   The
second order, considered the prayer made by  the  learned  Attorney  General
and  some  learned  counsel  representing   the   respondents,   seeking   a
“reference” of the present controversy, to a nine-Judge Bench (or  even,  to
a further larger Bench) for re-examining the judgment  rendered  in  Supreme
Court  Advocates-on-Record  Association  v.  Union  of  India2  (hereinafter
referred to as, the Second Judges case), and the  advisory  opinion  in  Re:
Special Reference No.1 of 19983  (hereinafter  referred  to,  as  the  Third
Judges case), for the alleged object of restoring and  re-establishing,  the
declaration of the legal position, expounded by this Court in S.P. Gupta  v.
Union of India1 (hereinafter referred to as, the  First  Judges  case).   As
and when a reference is  made  to  the  above  second  order,  it  would  be
mentioned as the “Reference Order”.
4.    We would, therefore, not examine the issues dealt with in the  Recusal
Order and/or in  the  Reference  Order,  even  though  they  may  arise  for
consideration  yet  again,  in  the  process  of  disposal  of  the  present
controversy on merits.  As and when a  reference  is  made  to  the  instant
third order,  examining  the  “merits”  of  the  controversy,  it  would  be
adverted to as the “Order on Merits”.
II.   PETITIONERS’ CONTENTIONS, ON MERITS:
5.    On the subject of amending the Constitution  based  on  the  procedure
provided for in Article 368, it  was  submitted  by  Mr.  Fali  S.  Nariman,
Senior Advocate, that the power of amendment of the Constitution  is  not  a
plenary power.  It was pointed  out,  that  the  above  power  was  limited,
inasmuch as, the power of amendment did not include the  power  of  amending
the “core” or the “basic structure” of the Constitution.   In  this  behalf,
learned  counsel  placed  reliance   on  Minerva  Mills  Ltd.  v.  Union  of
India[33], wherein majority view was  expressed  through  Y.V.  Chandrachud,
CJ., as under:
“17. Since the Constitution had conferred a limited amending  power  on  the
Parliament, the Parliament cannot under the exercise of that  limited  power
enlarge that very power into an absolute power. Indeed, a  limited  amending
power is one of the basic features of our Constitution  and  therefore,  the
limitations on that power cannot be destroyed. In  other  words,  Parliament
cannot, under Article 368, expand its amending power so as  to  acquire  for
itself the right to repeal or abrogate the Constitution or  to  destroy  its
basic and essential features. The donee of a limited  power  cannot  by  the
exercise of that power convert the limited power into an unlimited one.”

In the above judgment, the minority view was recorded by P.N. Bhagwati,  J.,
(as he then was), as under:
“88. That takes us to clause (5) of Article 368. This clause opens with  the
words "for the removal of doubts" and proceeds to declare that  there  shall
be no limitation whatever on the amending power of Parliament under  Article
368. It is difficult to appreciate the meaning of  the  opening  words  "for
the removal of doubts" because the majority decision in Kesavananda  Bharati
case : AIR 1973 SC 1461 clearly laid down and left no doubt that  the  basic
structure of the Constitution was outside the competence of  the  amendatory
power of Parliament and in Indira Gandhi case : [1976] 2 SCR  341,  all  the
judges unanimously accepted theory of the basic structure  as  a  theory  by
which  the  validity  of  the  amendment  impugned  before   them,   namely,
Article 329-A(4) was  to  be  judged.  Therefore,  after  the  decisions  in
Kesavananda Bharati case and Indira Gandhi case, there was no doubt  at  all
that the  amendatory  power  of  Parliament  was  limited  and  it  was  not
competent to Parliament to alter the basic  structure  of  the  Constitution
and clause (5) could not remove the doubt which did not exist.  What  clause
(5), really sought to do was to remove the limitation on the amending  power
of Parliament and convert it from a limited power  into  an  unlimited  one.
This  was  clearly  and  indubitably  a  futile  exercise  on  the  part  of
Parliament. I fail to see how Parliament which has only a limited  power  of
amendment and which cannot alter the basic  structure  of  the  Constitution
can expand its power of amendment so as to confer upon itself the  power  of
repeal or abrogate the Constitution  or  to  damage  or  destroy  its  basic
structure. That would clearly be in excess of  the  limited  amending  power
possessed by Parliament. The  Constitution  has  conferred  only  a  limited
amending power on Parliament so that it cannot damage or destroy  the  basic
structure of the Constitution and Parliament  cannot  by  exercise  of  that
limited amending  power  convert  that  very  power  into  an  absolute  and
unlimited power. If  it  were  permissible  to  Parliament  to  enlarge  the
limited  amending  power  conferred  upon  it  into  an  absolute  power  of
amendment, then it was meaningless to place a  limitation  on  the  original
power of amendment. It is difficult to appreciate how  Parliament  having  a
limited power of amendment can get rid of the limitation by exercising  that
very  power  and  convert  it  into  an  absolute  power.  Clause   (5)   of
Article 368 which sought to remove the limitation on the amending  power  of
Parliament by making it absolute must therefore be held to  be  outside  the
amending power of Parliament. There is also  another  ground  on  which  the
validity of this clause can be successfully assailed. This clause  seeks  to
convert a controlled Constitution into an uncontrolled one by  removing  the
limitation on the amending power of Parliament which, as pointed out  above,
is itself an essential feature of  the  Constitution  and  it  is  therefore
violative of the basic structure. I would in the circumstances  hold  clause
(5) of Article 368, to be unconstitutional and void.”

With reference to the same proposition, learned counsel placed  reliance  on
Kihoto Hollohan v. Zachillhu[34].  It was submitted, that the acceptance  of
the  principle  of  “basic  structure”  of  the  Constitution,  resulted  in
limiting the amending power postulated in Article 368.
6.     According  to  the  learned  counsel,  it  is  now   accepted,   that
“independence of the  judiciary”,  “rule  of  law”,  “judicial  review”  and
“separation of powers” are  components  of  the  “basic  structure”  of  the
Constitution.  In the above view  of  the  matter,  provisions  relating  to
appointment of Judges to the higher judiciary, would have to be  such,  that
the above principles would remain unscathed and intact.  It  was  submitted,
that any action which would have the result of  making  appointment  of  the
Judges to the Supreme Court, and to  the  High  Courts,  subservient  to  an
agency other than the judiciary itself, namely, by  allowing  the  executive
or the legislature to participate in their selection and appointment,  would
render the judiciary subservient to such authority, and thereby, impinge  on
the “independence of the judiciary”.
7.     Learned  counsel  invited  the  Court’s  attention  to  the  1st  Law
Commission Report on “Reform of Judicial  Administration”  (14th  Report  of
the Law Commission of India, chaired  by  M.C.  Setalvad),  wherein  it  was
debated, that  by  enacting  Articles  124  and  217,  the  framers  of  the
Constitution had endeavoured to put the Judges of the Supreme  Court  “above
executive control”. Paragraph 4  of  the  said  Report  is  being  extracted
hereunder:
“(Appointment and removal of Judges)
4.    Realizing the importance  of  safeguarding  the  independence  of  the
judiciary, the Constitution has provided that a Judge of the  Supreme  Court
shall be appointed by the President in consultation with the  Chief  Justice
of India and after consultation  with  such  of  the  other  Judges  of  the
Supreme Court and the High Courts  as  he  may  deem  necessary.   He  holds
office till he attains the age of 65 years and is irremovable except on  the
presentation of  an  address  by  each  House  of  Parliament  passed  by  a
specified majority on the  ground  of  proved  misbehaviour  or  incapacity.
Thus has the Constitution endeavoured to put Judges  of  the  Supreme  Court
above executive control.”

8.    It was submitted, that “independence of the judiciary” had  been  held
to mean and include, insulation of the higher judiciary from  executive  and
legislative control.  In this behalf, reference was made to Union  of  India
v. Sankalchand Himatlal Sheth5, wherein this Court had observed:
“50. Now the independence of the  judiciary  is  a  fighting  faith  of  our
Constitution.  Fearless  justice  is  a  cardinal  creed  of  our   founding
document. It is indeed a part of our ancient tradition  which  has  produced
great Judges in the past. In England too, from where we have  inherited  our
present system of administration of  justice  in  its  broad  and  essential
features, judicial independence is prized as a basic value  and  so  natural
[pic]and inevitable it has come to be  regarded  and  so  ingrained  it  has
become in the life and thought of the people that it  is  now  almost  taken
for granted and it would be regarded an act  of  insanity  for  any  one  to
think  otherwise.  But  this  has  been  accomplished  after  a  long  fight
culminating in the Act of Settlement, 1688. Prior to the enactment  of  that
Act, a Judge in England held tenure at the pleasure of  the  Crown  and  the
Sovereign could dismiss a Judge at his discretion,  if  the  Judge  did  not
deliver judgments to his liking. No less illustrious a Judge than Lord  Coke
was dismissed by Charles I for his glorious and courageous refusal  to  obey
the King’s writ de non procedendo rege inconsulto commanding him to step  or
to delay proceedings in his Court. The Act of Settlement, 1688  put  it  out
of  the  power  of  the  Sovereign  to  dismiss  a  Judge  at  pleasure   by
substituting ‘tenure during good behaviour’ for ‘tenure  at  pleasure’.  The
Judge could then say, as did Lord Bowen so eloquently:
These are not days in which any English Judge will fail to assert his  right
to rise in the proud consciousness  that  justice  is  administered  in  the
realms of Her Majesty the Queen,  immaculate,  unspotted,  and  unsuspected.
There is no human being whose smile or frown, there is no  Government,  Tory
or Liberal, whose favour or disfavour can start  the  pulse  of  an  English
Judge upon the Bench, or move by one hair’s breadth the  even  equipoise  of
the scales of justice.
The  framers  of  our  Constitution  were  aware  of  these   constitutional
developments in England and they were conscious of our  great  tradition  of
judicial independence and impartiality and they realised that the  need  for
securing the independence of  the  judiciary  was  even  greater  under  our
Constitution than it was in England, because ours is  a  federal  or  quasi-
federal  Constitution  which  confers  fundamental  rights,   enacts   other
constitutional limitations and arms the Supreme Court and  the  High  Courts
with the power of judicial review and consequently the Union  of  India  and
the States would become the largest  single  litigants  before  the  Supreme
Court and the High  Courts.  Justice,  as  pointed  out  by  this  Court  in
Shamsher Singh v. State of Punjab, (1974) 2 SCC 831,  can  become  “fearless
and free only if institutional immunity and autonomy  are  guaranteed”.  The
Constitution-makers,  therefore,  enacted  several  provisions  designed  to
secure the independence of the superior  judiciary  by  insulating  it  from
executive or legislative control. I shall briefly refer to these  provisions
to show how great was the anxiety of the constitution-makers to  ensure  the
independence of the superior judiciary and with what  meticulous  care  they
made provisions to that end.”

In continuation of the instant submission, learned counsel  placed  reliance
on the  Second  Judges  case,  and  drew  our  attention  to  the  following
observations recorded by S. Ratnavel Pandian, J.:
“54. Having regard to the importance of this  concept  the  Framers  of  our
Constitution having before them the views of the Federal Court  and  of  the
High Court have said in a memorandum:
“We have assumed that it is recognised on all hands  that  the  independence
and integrity of the judiciary in a democratic system of [pic]government  is
of the highest importance and interest not only to the  judges  but  to  the
citizens at large who may have to seek redress in the last resort in  courts
of law against any illegal acts or the high-handed exercise of power by  the
executive  …  in  making  the  following  proposals  and  suggestions,   the
paramount importance of securing the fearless functioning of an  independent
and efficient judiciary has been steadily kept in view. (vide B. Shiva  Rao:
The Framing of India’s Constitution, Volume I-B, p. 196)
55. In this context, we may make it clear by borrowing the inimitable  words
of Justice Krishna Iyer, “Independence of the judiciary is not  genuflexion,
nor is it opposition of Government”. Vide Mainstream  –  November  22,  1980
and at one point of time Justice Krishna Iyer characterised this concept  as
a “Constitutional Religion”.
56. Indisputably,  this  concept  of  independence  of  judiciary  which  is
inextricably linked and connected with the  constitutional  process  related
to the functioning of judiciary is  a  “fixed-star”  in  our  constitutional
consultation  and  its  voice  centres  around   the   philosophy   of   the
Constitution. The basic  postulate  of  this  concept  is  to  have  a  more
effective judicial system with its full vigour and vitality so as to  secure
and  strengthen  the  imperative   confidence   of   the   people   in   the
administration of justice. It  is  only  with  the  object  of  successfully
achieving this principle and salvaging much of the problems  concerning  the
present judicial system, it is inter alia, contended that in the  matter  of
appointment of Judges to the High Courts and Supreme Court ‘primacy’ to  the
opinion of the CJI which  is  only  a  facet  of  this  concept,  should  be
accorded so that  the  independence  of  judiciary  is  firmly  secured  and
protected and the hyperbolic executive intrusion to impose its own  selectee
on the superior judiciary is effectively controlled and curbed.”

And  from  the  same  judgment,  reference  was  made   to   the   following
observations of Kuldip Singh, J.:
“335. Then the question which comes up for consideration is,  can  there  be
an independent judiciary when the power of appointment of  judges  vests  in
the  executive?  To  say  yes,  would  be  illogical.  The  independence  of
judiciary is inextricably  linked  and  connected  with  the  constitutional
process of appointment of judges of the higher judiciary.  ‘Independence  of
Judiciary’ is the basic feature of our Constitution and if it means what  we
have discussed above, then the Framers of the Constitution could have  never
intended  to  give  this  power  to  the  executive.  Even   otherwise   the
Governments - Central or the State - are parties before the Courts in  large
number of cases.  The  Union  Executive  have  vital  interests  in  various
important matters which come for adjudication before  the  Apex  Court.  The
executive – in one form or the  other  -  is  the  largest  single  litigant
before the courts. In this view  of  the  matter  the  judiciary  being  the
mediator - between the people  and  the  executive  -  the  Framers  of  the
Constitution could not have left the final authority to appoint  the  Judges
of the Supreme Court and of the High Courts in the hands of  the  executive.
This Court in S.P. Gupta v. Union of India, 1981 Supp SCC  87  proceeded  on
the assumption that the independence of judiciary is the  basic  feature  of
the Constitution but failed to appreciate that the interpretation, it  gave,
was  not  in  conformity  with  broader  facets  of  the  two   concepts   -
‘independence of judiciary’ and ‘judicial review’ - which are interlinked.”

Based on the above conclusions, it was submitted, that “independence of  the
judiciary” could be maintained,  only  if  appointments  of  Judges  to  the
higher judiciary, were made by according  primacy  to  the  opinion  of  the
Chief Justice, based on the decision of a collegium of Judges.   Only  then,
the executive and legislative intrusion,  could  be  effectively  controlled
and curbed.
9.    Learned counsel, then ventured to make a reference to  the  frequently
quoted  speech  of  Dr.  B.R.  Ambedkar  (in  the  Constituent  Assembly  on
24.5.1949).  It was submitted, that the above speech was duly considered  in
the Second Judges case, wherein this Court concluded as under:
“389. Having held that the primacy in the matter of  appointment  of  Judges
to the superior courts vests with the judiciary, the crucial question  which
arises for consideration is whether the Chief Justice of  India,  under  the
Constitution, acts as a “persona designata” or as  the  leader  -  spokesman
for the judiciary.
390. The constitutional scheme does not  give  primacy  to  any  individual.
Article 124(2) provides  consultation  with  the  Chief  Justice  of  India,
Judges of the Supreme Court and Judges of the High Courts. Likewise  Article
217(1) talks of Chief Justice of India and the Chief  Justice  of  the  High
Court. Plurality of consultations has been clearly indicated by the  Framers
of the Constitution. On first reading one gets  the  impression  as  if  the
Judges of the Supreme Court and High Courts have not been  included  in  the
process of consultation under Article 217(1) but on  a  closer  scrutiny  of
the constitutional scheme one finds that this was not the intention  of  the
Framers of the Constitution. There  is  no  justification,  whatsoever,  for
excluding the puisne Judges of the Supreme Court and of the High Court  from
the “consultee zone” under Article 217(1) of the Constitution.
391. According to Mr Nariman it would not  be  a  strained  construction  to
construe the expressions “Chief Justice of India” and “Chief Justice of  the
High Courts” in the sense of the collectivity of Judges, the  Supreme  Court
as represented by the Chief Justice of India and all  the  High  Courts  (of
the States concerned) as represented  by  the  Chief  Justice  of  the  High
Court. A bare reading of Articles 124(2) and 217(1) makes it clear that  the
Framers of the Constitution did not intend to leave the final word,  in  the
matter of appointment of Judges to the superior Courts, in the hands of  any
individual howsoever high he is  placed  in  the  constitutional  hierarchy.
Collective  wisdom  of  the  consultees  is  the  sine  qua  non  for   such
appointments. Dr B.R. Ambedkar in his speech  dated  May  24,  1949  in  the
Constituent Assembly explaining the scope of the draft  articles  pertaining
to the appointment of Judges to the Supreme Court …
            xxx              xxx             xxx
392. Dr Ambedkar did not see any difficulty in the smooth operation  of  the
constitutional provisions  concerning  the  appointment  of  Judges  to  the
superior  Courts.  Having  entrusted  the  work   to   high   constitutional
functionaries the  Framers  of  the  Constitution  felt  assured  that  such
appointments would always be made by consensus. It  is  the  functioning  of
the Constitution during the past more than four decades  which  has  brought
the necessity of considering the question of primacy in the matter  of  such
appointments. Once we hold that the primacy lies with  the  judiciary,  then
it is the judiciary as collectivity which has the primal  say  and  not  any
individual, not even the  Chief  Justice  of  India.  If  we  interpret  the
expression “the Chief Justice of India” as a  “persona  designata”  then  it
would  amount  “to  allow  the  Chief  Justice  practically  veto  upon  the
appointment of Judges” which the Framers of the Constitution  in  the  words
of Dr Ambedkar never intended to do. We are, therefore,  of  the  view  that
the expressions “the Chief Justice of India” and the “Chief Justice  of  the
High Court” in Articles 124(2) and 217(1) of the Constitution mean the  said
judicial functionaries as representatives of their respective courts.”

In conjunction with the  observations  extracted  hereinabove,  the  Court’s
attention was also invited to the following further conclusions:
“466. It has to be borne in mind that  the  principle  of  non-arbitrariness
which is an essential  attribute  of  the  rule  of  law  is  all  pervasive
throughout the Constitution;  and  an  adjunct  of  this  principle  is  the
absence of absolute power in one individual in any sphere of  constitutional
activity. The possibility of intrusion of arbitrariness has to  be  kept  in
view, and eschewed, in constitutional  interpretation  and,  therefore,  the
meaning of the opinion of the Chief Justice of  India,  in  the  context  of
primacy, must be ascertained. A homogenous mixture, which accords  with  the
constitutional purpose and its ethos, indicates that it is  the  opinion  of
the judiciary ‘symbolised by the view of the Chief Justice of  India’  which
is given greater significance or primacy in the matter of  appointments.  In
other words, the view of the Chief Justice of India is to  be  expressed  in
[pic]the consultative process as truly reflective  of  the  opinion  of  the
judiciary, which  means  that  it  must  necessarily  have  the  element  of
plurality in its formation. In  actual  practice,  this  is  how  the  Chief
Justice of India does, and  is  expected  to  function  so  that  the  final
opinion expressed by him is not  merely  his  individual  opinion,  but  the
collective opinion formed after taking into account the views of some  other
Judges who are traditionally associated with this function.
467. In view of the primacy of  judiciary  in  this  process,  the  question
next, is of the modality for achieving this purpose. The indication  in  the
constitutional provisions is found from the reference to the office  of  the
Chief Justice of India, which has been named for achieving this object in  a
pragmatic manner. The opinion of the judiciary ‘symbolised by  the  view  of
the Chief Justice of India’, is to be  obtained  by  consultation  with  the
Chief Justice of India; and it is this opinion which has primacy.
468. The rule of law envisages the area of discretion  to  be  the  minimum,
requiring only the application of known principles or guidelines  to  ensure
non-arbitrariness, but to that limited extent,  discretion  is  a  pragmatic
need. Conferring discretion upon high functionaries and, whenever  feasible,
introducing the element of plurality by  requiring  a  collective  decision,
are  further  checks  against  arbitrariness.  This  is  how  idealism   and
pragmatism are reconciled and integrated, to make the system workable  in  a
satisfactory manner. Entrustment of the  task  of  appointment  of  superior
judges to  high  constitutional  functionaries;  the  greatest  significance
attached to the view of the Chief Justice of India, who is best equipped  to
assess the true worth of the candidates  for  adjudging  their  suitability;
the opinion of the Chief Justice  of  India  being  the  collective  opinion
formed after taking into account the views of some of  his  colleagues;  and
the executive being permitted to prevent an  appointment  considered  to  be
unsuitable, for strong reasons disclosed to  the  Chief  Justice  of  India,
provide the best method,  in  the  constitutional  scheme,  to  achieve  the
constitutional purpose without conferring absolute discretion or  veto  upon
either the judiciary or the executive, much less in any  individual,  be  he
the Chief Justice of India or the Prime Minister.”

10.   It was the emphatic  contention  of  the  learned  counsel,  that  the
conclusions recorded by this Court in  the  Second  Judges  case,  had  been
accepted by the executive and the legislature.  It  was  acknowledged,  that
in the matter of appointment of Judges  to  the  higher  judiciary,  primacy
would vest with  the  judiciary,  and  further  that,  the  opinion  of  the
judiciary would have an element of plurality.  This assertion was sought  to
be further established, by placing reliance on the Third  Judges  case.   It
was submitted, that the conclusions of the majority judgment, in the  Second
Judges case, were reproduced in paragraph 9 of the Third  Judges  case,  and
thereupon, this Court recorded the statement of the then  Attorney  General,
that through  the  Presidential  Reference,  the  Union  of  India  was  not
seeking, a review or reconsideration, of the judgment in the  Second  Judges
case. And  that,  the  Union  of  India  had  accepted  the  above  majority
judgment, as binding. In this context, paragraphs 10  to  12  of  the  Third
Judges case, which were relied upon, are being reproduced below:
“10. We have heard the learned Attorney General,  learned  counsel  for  the
interveners and some of the High Courts and the Advocates  General  of  some
States.
11. We record at the outset the statements of the Attorney General that  (1)
the Union of India is  not  seeking  a  review  or  reconsideration  of  the
judgment in the Second Judges case (1993) 4 SCC 441 and that (2)  the  Union
of India shall accept and treat as binding the answers of this Court to  the
questions set out in the Reference.
12. The majority view in the Second Judges case (1993) 4 SCC 441 is that  in
the matter of appointments to the Supreme Court and  the  High  Courts,  the
opinion of the Chief Justice of India has primacy. The opinion of the  Chief
Justice of India is “reflective of  the  opinion  of  the  judiciary,  which
means that it  must  necessarily  have  the  element  of  plurality  in  its
formation”. It is to be formed “after taking into account the view  of  some
other Judges who are  traditionally  associated  with  this  function”.  The
opinion of the Chief Justice of India “so given has primacy  in  the  matter
of all appointments”. For an appointment to  be  made,  it  has  to  be  “in
conformity with the final opinion of the Chief Justice of  India  formed  in
the manner indicated”. It must follow that an opinion formed  by  the  Chief
Justice of India in any manner other than that indicated has no  primacy  in
the matter of appointments to the Supreme Court and the High Courts and  the
Government is not obliged to act thereon.”
[pic]
11.    Learned  counsel  invited  the  Court’s  attention,  to   the   third
conclusion drawn in Madras Bar Association v. Union of India[35],  which  is
placed below:
“136.(iii) The “basic structure” of the Constitution will stand violated  if
while  enacting  legislation  pertaining  to  transfer  of  judicial  power,
Parliament does not ensure that the newly  created  court/tribunal  conforms
with the salient characteristics and standards of the  court  sought  to  be
substituted.”

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

12.   According to learned counsel, it needed to be determined, whether  the
NJAC now set up, had the same or similar characteristics, in the  matter  of
appointments/transfers,  which  would  preserve  the  “independence  of  the
judiciary”? Answering the query, learned  counsel  was  emphatic,  that  the
primacy of the judiciary, had  been  totally  eroded  through  the  impugned
constitutional  amendment.  For  the  above,  learned  counsel  invited  our
attention to Article 124A inserted  by  the  Constitution  (99th  Amendment)
Act.  It was submitted, that the NJAC contemplated under Article 124A  would
comprise of six Members, namely, the Chief  Justice  of  India,  two  senior
Judges of the Supreme Court (next to the Chief Justice), the Union  Minister
in charge of Law and Justice, and two “eminent persons”.  It was  submitted,
that the judges component, which  had  the  primacy  (and  in  a  manner  of
understanding – unanimity), under the  erstwhile  procedure,  had  now  been
reduced to half-strength, in the selecting body – the NJAC.  It was  pointed
out, that the Chief Justice of India, would now have  an  equivalent  voting
right, as the other Members of  the  NJAC.   It  was  submitted,  that  even
though the Chief Justice of India would be the Chairman of the NJAC, he  has
no casting vote, in the event of a tie.  It was submitted,  that  under  the
substituted procedure, even if the Chief  Justice  of  India,  and  the  two
other senior Judges of the Supreme Court  (next  to  the  Chief  Justice  of
India), supported the appointment/transfer of an individual, the same  could
be negatived, by any two Members of the NJAC.   Even  by  the  two  “eminent
persons” who may have no direct  or  indirect  nexus  with  the  process  of
administration of justice.  It was therefore  submitted,  that  the  primacy
vested with the Chief  Justice  of  India  had  been  fully  and  completely
eroded.
13.   With reference to the subject of primacy  of  the  judiciary,  it  was
asserted, that under the system sought to be substituted, the  proposal  for
appointment of Judges to the Supreme Court, could only have  been  initiated
by the Chief Justice of India.  And likewise, the proposal for  transfer  of
a Judge or the  Chief  Justice  of  a  High  Court,  could  only  have  been
initiated by the Chief Justice of India.  And  likewise,  the  proposal  for
appointment of a Judge to a High Court, could only have  been  initiated  by
the Chief Justice of the concerned High Court.  In order to demonstrate  the
changed  position,  learned  counsel  placed  reliance   on   Article   124B
introduced  by  the  Constitution  (99th  Amendment)  Act,  whereunder,  the
authority to initiate the process,  had  now  been  vested  with  the  NJAC.
Under the new dispensation, the  NJAC  alone  would  recommend  persons  for
appointment as Judges to  the  higher  judiciary.   It  was  also  apparent,
according to learned counsel, that the NJAC has now been bestowed  with  the
exclusive responsibility  to  recommend  transfers  of  Chief  Justices  and
Judges of High Courts.  Having  described  the  aforesaid  alteration  as  a
total subversion of the prevailing procedure, which had stood  the  test  of
time, and had secured the independence of the  process  of  appointment  and
transfer of Judges of the higher judiciary, it was  pointed  out,  that  the
Parliament had not disclosed the reasons,  why  the  primacy  of  the  Chief
Justice of India and the other senior Judges, had to be dispensed with.   Or
for that matter, why the prevailing procedure needed to be altered.  It  was
further the contention  of  learned  counsel,  that  the  non-disclosure  of
reasons, must inevitably lead to the inference,  that  there  were  no  such
reasons.
14.   Dr. Rajeev Dhavan, learned senior counsel, also advanced  submissions,
with reference to the “basic structure”,  and  the  scope  of  amending  the
provisions of the Constitution.  Dwelling upon the power  of  Parliament  to
amend the Constitution, it was submitted, that  this  Court  in  Kesavananda
Bharati v. State of Kerala10, had declared, that the  “basic  structure”  of
the Constitution, was not susceptible or amenable  to  amendment.   Inviting
our attention to Article 368, it was submitted, that the power  vested  with
the Parliament to amend the Constitution, contemplated the extension of  the
constituent power, which was exercised by the  Constituent  Assembly,  while
framing the Constitution.  It was pointed  out,  that  in  exercise  of  the
above power, the Parliament had been permitted to discharge  the  same  role
as the Constituent Assembly.  The provisions of  the  Constitution,  it  was
asserted, could be amended, to keep pace  with  developments  in  the  civil
society, so long as the  amendment  was  not  in  violation  of  the  “basic
structure” of the Constitution.  It was submitted, that it was  not  enough,
in the facts and  circumstances  of  the  present  case,  to  determine  the
validity of the  constitutional  amendment  in  question,  by  limiting  the
examination to a determination, whether or  not  the  “independence  of  the
judiciary” stood breached, on a plain reading of the  provisions  sought  to
be  amended.  It  was  asserted,  that  it  was  imperative  to  take   into
consideration, judgments rendered by this Court, on  the  subject.   It  was
asserted, that this Court was liable to examine  the  declared  position  of
law, in the First, Second and Third Judges cases,  insofar  as  the  present
controversy was concerned. According to learned counsel, if  the  enactments
under challenge, were found to be in breach of the “basic structure” of  the
Constitution,  as  declared   in   the   above   judgments,   the   impugned
constitutional amendment, as also, the legislation  under  reference,  would
undoubtedly be constitutionally invalid.
15.    In  the  above  context,  learned  counsel  pointed  out,  that  with
reference to an amendment to the fundamental  right(s),  enshrined  in  Part
III of the Constitution, guidelines were laid  down  by  this  Court  in  M.
Nagaraj v. Union of India[36], as also, in the Kihoto Hollohan  case34.   It
was submitted, that  the  change  through  the  impugned  amendment  to  the
Constitution, (and by the NJAC Act) was not a peripheral change, but  was  a
substantial one, which  was  also  seemingly  irreversible.  And  therefore,
according to learned counsel, its validity would have to be  determined,  on
the basis of the width and the identity tests. It was  submitted,  that  the
width and the identity tests were different from the  tests  applicable  for
determining  the  validity  of  ordinary  parliamentary  legislation,  or  a
constitutional amendment relating to  fundamental  rights.   The  manner  of
working out the width and the identity tests, it  was  submitted,  had  been
laid down in the M. Nagaraj case36, wherein this Court held:
“9.   On behalf of the respondents, the following arguments  were  advanced.
The power of amendment under Article 368 is a “constituent” power and not  a
“constituted power”; that, that there are  no  implied  limitations  on  the
constituent power under Article 368; that, the power under Article  368  has
to keep the Constitution in repair as and  when  it  becomes  necessary  and
thereby protect and  preserve  the  basic  structure.  In  such  process  of
amendment, if it  destroys  the  basic  feature  of  the  Constitution,  the
amendment will be  unconstitutional.  The  Constitution,  according  to  the
respondents, is not merely what it says. It is what the last  interpretation
of the relevant provision of the Constitution given  by  the  Supreme  Court
which prevails as a law. The interpretation placed on  the  Constitution  by
the Court becomes part of the Constitution and, therefore,  it  is  open  to
amendment under Article 368. An interpretation placed by the  Court  on  any
provision of the Constitution gets inbuilt in  the  provisions  interpreted.
Such articles are capable of amendment under Article  368.  Such  change  of
the law so declared by the Supreme Court will not  merely  for  that  reason
alone  violate  the  basic  structure  of  the  Constitution  or  amount  to
usurpation of judicial power. This is how the Constitution becomes  dynamic.
Law has to change. It requires amendments to the Constitution  according  to
the needs of time and  needs  of  society.  It  is  an  ongoing  process  of
judicial and constituent powers, both contributing to  change  of  law  with
the final say in the judiciary to pronounce on the validity of  such  change
of  law  effected  by  the  constituent  power  by  examining  whether  such
amendments violate  the  basic  structure  of  the  Constitution.  On  every
occasion when a constitutional matter comes before the  Court,  the  meaning
of the provisions of the Constitution  will  call  for  interpretation,  but
every interpretation of the article does not become a basic feature  of  the
Constitution. That, there  are  no  implied  limitations  on  the  power  of
Parliament under Article 368  when  it  seeks  to  amend  the  Constitution.
However, an amendment will be invalid, if it interferes with  or  undermines
the basic structure. The validity of the amendment is not to be  decided  on
the touchstone of Article 13 but only on  the  basis  of  violation  of  the
basic features of the Constitution.”

16.   It was submitted, that whilst the Parliament had the  power  to  amend
the Constitution; the legislature (– or the  executive),  had  no  power  to
either interpret the Constitution,  or  to  determine  the  validity  of  an
amendment to the provisions of the Constitution. The power to determine  the
validity of  a  constitutional  amendment,  according  to  learned  counsel,
exclusively rests with the higher judiciary.   Every  amendment  had  to  be
tested on  the  touchstone  of  "basic  structure”  –  as  declared  by  the
judiciary. It was submitted,  that  the  aforesaid  power  vested  with  the
judiciary, could not be withdrawn or revoked.  This,  according  to  learned
counsel, constituted  the  fundamental  judicial  power,  and  was  no  less
significant/weighty  than  the  legislative   power   of   Parliament.   The
importance of the power of judicial review vested with the higher  judiciary
(to examine the validity of executive  and  legislative  actions),  bestowed
superiority to the judiciary over  the  other  two  pillars  of  governance.
This position, it was  pointed  out,  was  critical  to  balance  the  power
surrendered by the civil  society,  in  favour  of  the  political  and  the
executive sovereignty.
17.   In order to determine the validity  of  the  submissions  advanced  on
behalf of the petitioners, we were informed, that the interpretation  placed
by the Supreme Court on Articles 124 and 217 (as they existed, prior to  the
impugned amendment), would have to be kept in mind.  It was submitted,  that
the term “consultation” with reference to Article 124, had  been  understood
as conferring primacy with the judiciary.  Therefore,  while  examining  the
impugned constitutional amendment to Article  124,  it  was  imperative  for
this Court, to understand the term “consultation” in  Article  124,  and  to
read it as, conferring primacy in the matter of appointment of Judges,  with
the  judiciary.  Under  Article  124,  according  to  learned  counsel,  the
President was not required to merely “consult” the Chief Justice  of  India,
but the executive was to accede to the view expressed by the  Chief  Justice
of India.  Insofar as the term “Chief Justice of  India”  is  concerned,  it
was submitted, that the same had also  been  understood  to  mean,  not  the
individual opinion of the Chief Justice of India, but  the  opinion  of  the
judiciary symbolized through the Chief Justice  of  India.  Accordingly,  it
was emphasized, that the individual  opinion  of  the  Chief  Justice  (with
reference to Articles 124 and  217)  was  understood  as  the  institutional
opinion of  the  judiciary.   Accordingly,  whilst  examining  the  impugned
constitutional amendment, under the width  and  the  identity  test(s),  the
above declared legal position, had to be kept  in  mind  while  determining,
whether or not the  impugned  constitutional  amendment,  and  the  impugned
legislative  enactment,  had  breached  the   “basic   structure”   of   the
Constitution.
18.   It was contended, that the judgment in the Second Judges case,  should
be accepted as the  touchstone,  by  which  the  validity  of  the  impugned
constitutional amendment (and the NJAC  Act),  must  be  examined.   It  was
submitted, that the power exercised by the Parliament under Article 368,  in
giving effect to the impugned constitutional amendment (and by enacting  the
NJAC Act), will have to be tested in a manner, that will  allow  an  organic
adaptation to the changing times, and at the  same  time  ensure,  that  the
“basic structure” of the Constitution was not violated.  Relying on  the  M.
Nagaraj  case36,  the  Court’s  attention  was  drawn   to   the   following
observations:
“18. The key issue, which arises for determination in this  case  is–whether
by  virtue  of  the  impugned  constitutional  amendments,  the   power   of
Parliament  is  so  enlarged  so  as  to  obliterate  any  or  all  of   the
constitutional limitations and requirements?

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

Learned  senior  counsel,  also  drew  the  Court’s  attention  to   similar
observations recorded in the Second Judges case.
19.    Learned  counsel  was  emphatic,  that  the  impugned  constitutional
amendment (and the provisions of the NJAC Act), if  approved,  would  remain
in place for ten…, twenty…, thirty or even forty years, and therefore,  need
to be viewed closely and  objectively.   The  provisions  will  have  to  be
interpreted in a manner, that the “independence of the judiciary” would  not
be compromised.  It was submitted, that if the impugned provisions  were  to
be declared as constitutionally valid, there would be  no  means  hereafter,
to restore the “independence of the judiciary”.
20.   According to learned counsel, the question was of the  purity  of  the
justice  delivery  system.   The  question  was  about  the  maintenance  of
judicial standards.  All these  questions  emerged  from  the  fountainhead,
namely, the manner of appointment of Judges to  the  higher  judiciary.  The
provisions of Article 124, it was pointed out, as it existed  prior  to  the
impugned amendment, had  provided  for  a  system  of  trusteeship,  wherein
institutional predominance of  the  judiciary  was  the  hallmark.   It  was
submitted, that the aforesaid trusteeship should  not  be  permitted  to  be
shared by those, whose rival claims arose for  consideration  before  Courts
of law. The judicial responsibility in the matter of appointment of  Judges,
according to learned counsel, being the most  important  trusteeship,  could
not  be  permitted  to  be  shared,  with  either  the  executive   or   the
legislature.
21.   Referring to the amendment  itself,  it  was  contended,  that  merely
changing the basis of the legislation, would not  be  the  correct  test  to
evaluate the actions of the Parliament, in the present controversy.  It  was
likewise submitted, that reasonableness and proportionality  were  also  not
the correct test(s) to be applied.  According to learned counsel,  in  order
to determine the validity of the impugned constitutional amendment (and  the
NJAC Act), the Union of India and the ratifying States  will  have  to  bear
the onus of satisfactorily establishing, that the amended provisions,  could
under  no  circumstances,  be  used  (actually  misused)  to   subvert   the
“independence of the judiciary”. Placing reliance on the M. Nagaraj  case36,
the Court’s attention was invited to the following observations:
“22. The question which arises before us is  regarding  the  nature  of  the
standards of judicial review required to be applied in judging the  validity
of the constitutional amendments in the context of  the  doctrine  of  basic
structure. The concept of a basic structure giving coherence and  durability
to  a  Constitution  has  a  certain  intrinsic  force.  This  doctrine  has
essentially developed from the German Constitution. This development is  the
emergence of the constitutional principles in their own  right.  It  is  not
based on literal wordings.
23. …..In S.R. Bommai (1994) 3 SCC 1 the Court clearly based its  conclusion
not so much on violation of  particular  constitutional  provisions  but  on
this generalised ground i.e.  evidence  of  a  pattern  of  action  directed
against the principle of secularism. Therefore,  it  is  important  to  note
that the [pic]recognition of a basic structure in the context  of  amendment
provides  an  insight  that  there  are,  beyond  the  words  of  particular
provisions, systematic principles underlying and connecting  the  provisions
of the Constitution. These principles give  coherence  to  the  Constitution
and make it an organic whole. These principles are  part  of  constitutional
law even if they are not expressly stated in the form of rules. An  instance
is the principle of reasonableness which connects Articles 14,  19  and  21.
Some of these principles may be so important and fundamental, as to  qualify
as  “essential  features”  or  part  of  the  “basic   structure”   of   the
Constitution, that is to say, they are not open to  amendment.  However,  it
is only by linking provisions to such overarching principles that one  would
be able to  distinguish  essential  from  less  essential  features  of  the
Constitution.
            xxx              xxx             xxx
25. For a constitutional principle to qualify as an  essential  feature,  it
must be established that the said principle is a part of the  constitutional
law binding on the legislature. Only thereafter, is the second  step  to  be
taken, namely, whether the principle is so fundamental as to bind  even  the
amending power of Parliament i.e. to form a part  of  the  basic  structure.
The basic  structure  concept  accordingly  limits  the  amending  power  of
Parliament. To sum up: in order  to  qualify  as  an  essential  feature,  a
principle is to be first established as part of the constitutional  law  and
as such binding on the legislature. Only then, can it  be  examined  whether
it is so fundamental as to bind even the amending power of  Parliament  i.e.
to form part of the  basic  structure  of  the  Constitution.  This  is  the
standard of judicial review of constitutional amendments in the  context  of
the doctrine of basic structure.
            xxx              xxx             xxx
30. Constitutional adjudication is like no other decision-making.  There  is
a moral dimension to every major constitutional case; the  language  of  the
text is  not  necessarily  a  controlling  factor.  Our  Constitution  works
because of its generalities, and because of the good  sense  of  the  judges
when interpreting it. It is that informed freedom of action  of  the  judges
that helps to preserve and protect our basic document of governance.
xxx              xxx              xxx
35. The theory of basic structure is based on the principle  that  a  change
in a thing does not involve its destruction and destruction of a thing is  a
matter of substance and not of form. Therefore, one has to  apply  the  test
of overarching principle to be gathered from the scheme  and  the  placement
and the structure of an  article  in  the  Constitution.  For  example,  the
placement of Article 14 in the equality code; the placement  of  Article  19
in the freedom code; the placement of Article 32 in the code  giving  access
to the Supreme Court. Therefore, the theory of basic structure is  the  only
theory by which the validity of impugned amendments to the  Constitution  is
to be judged.”

22.   Referring to the position expressed by  this  Court,  learned  counsel
submitted, that the overarching principle for this Court, was to first  keep
in its mind, the exact nature of  the  amendment  contemplated  through  the
Constitution (99th Amendment) Act.  And the second step  was,  to  determine
how fundamental the amended provision was.  For  this,  reliance  was  again
placed on the M.  Nagaraj  case36,  and  our  attention  was  drawn  to  the
following conclusions:
“102. In the matter of application of  the  principle  of  basic  structure,
twin tests have to be satisfied, namely, the “width test” and  the  test  of
“identity”. As stated hereinabove, the concept of the  “catch-up”  rule  and
“consequential seniority” are not constitutional requirements. They are  not
implicit in clauses (1) and (4) of Article 16. They are  not  constitutional
limitations. They are concepts derived from service jurisprudence. They  are
not  constitutional  principles.  They  are  not  axioms  like,  secularism,
federalism, etc. Obliteration  of  these  concepts  or  insertion  of  these
concepts does not change the equality code indicated by Articles 14, 15  and
16 of the Constitution. Clause (1) of Article 16 cannot  prevent  the  State
from taking cognizance of the compelling interests of  Backward  Classes  in
the society. Clauses (1) and (4) of  Article  16  are  restatements  of  the
principle of equality under Article 14. Clause (4) of Article 16  refers  to
affirmative action  by  way  of  reservation.  Clause  (4)  of  Article  16,
however, states that the appropriate  Government  is  free  to  provide  for
reservation in cases where it is satisfied  on  the  basis  of  quantifiable
data that Backward  Class  is  inadequately  represented  in  the  services.
Therefore, in every case where the State decides to provide for  reservation
there must exist two circumstances, namely, “backwardness”  and  “inadequacy
of representation”. As stated above,  equity,  justice  and  efficiency  are
variable factors. These factors are  context-specific.  There  is  no  fixed
yardstick to identify and measure these three factors,  it  will  depend  on
the facts and circumstances of each case. These are the limitations  on  the
mode of the exercise of power by the State. None of these  limitations  have
been removed by the impugned amendments. If the  State  concerned  fails  to
identify and measure backwardness,  inadequacy  and  overall  administrative
efficiency then in  that  event  the  provision  for  reservation  would  be
invalid. These amendments do not alter the structure of Articles 14, 15  and
16 (equity code). The parameters mentioned in Article  16(4)  are  retained.
Clause (4-A) is derived from clause (4)  of  Article  16.  Clause  (4-A)  is
confined to SCs and STs alone. Therefore, the present case does  not  change
the identity of the Constitution. The word “amendment” connotes change.  The
question  is—whether  the   impugned   amendments   discard   the   original
Constitution. It was vehemently urged on behalf of the petitioners that  the
Statement of Objects and Reasons  indicates  that  the  impugned  amendments
have been promulgated by  Parliament  to  overrule  the  decisions  of  this
Court. We do not find any merit in this argument. Under Article 141  of  the
Constitution the pronouncement of this Court is the law  of  the  land.  The
judgments of this [pic]Court in Union of  India  v.  Virpal  Singh  Chauhan,
(1995) 6 SCC 684…, Ajit Singh Januja v. State of Punjab, (1996) 2 SCC  715…,
Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209… and Indra  Sawhney  v.
Union of India, 1992 Supp (3) SCC 217…  were  judgments  delivered  by  this
Court which enunciated the law of the land. It is that law which  is  sought
to be changed  by  the  impugned  constitutional  amendments.  The  impugned
constitutional amendments are enabling in  nature.  They  leave  it  to  the
States to provide for reservation. It is well settled that Parliament  while
enacting a law does not provide content  to  the  “right”.  The  content  is
provided  by  the  judgments  of  the  Supreme  Court.  If  the  appropriate
Government enacts a law providing for reservation without  keeping  in  mind
the parameters in Article  16(4)  and  Article  335  then  this  Court  will
certainly set aside and strike down such legislation.  Applying  the  “width
test”,  we  do  not  find  obliteration  of  any   of   the   constitutional
limitations. Applying the test of “identity”, we do not find any  alteration
in the existing structure of the equality code. As  stated  above,  none  of
the  axioms  like  secularism,  federalism,  etc.  which   are   overarching
principles have been violated by  the  impugned  constitutional  amendments.
Equality has two facets—  “formal  equality”  and  “proportional  equality”.
Proportional equality is equality  “in  fact”  whereas  formal  equality  is
equality “in law”. Formal equality exists in the rule of law.  In  the  case
of proportional equality the State is expected to take affirmative steps  in
favour of disadvantaged sections of the  society  within  the  framework  of
liberal democracy. Egalitarian equality is proportional equality.”

Yet again referring to the width and the  identity  tests,  learned  counsel
emphasized, that it  was  imperative  for  this  Court,  in  the  facts  and
circumstances  of  the  present  case,  to  examine  whether  the  power  of
amendment exercised by the Parliament, was so wide as to make it  excessive.
For the above, reference was made to  the  Madras  Bar  Association  case35,
wherein this Court recorded the following conclusions:
“134.(i)  Parliament  has  the  power  to  enact  legislation  and  to  vest
adjudicatory functions earlier vested in the High Court with an  alternative
court/tribunal. Exercise of such  power  by  Parliament  would  not  per  se
violate the “basic structure” of the Constitution.
135.(ii)   Recognised   constitutional   conventions   pertaining   to   the
Westminster model do not  debar  the  legislating  authority  from  enacting
legislation to vest adjudicatory functions  earlier  vested  in  a  superior
court  with  an  alternative  court/tribunal.  Exercise  of  such  power  by
Parliament would per se not violate any constitutional convention.
136.(iii) The “basic structure” of the Constitution will stand  violated  if
while  enacting  legislation  pertaining  to  transfer  of  judicial  power,
Parliament does not ensure that the newly  created  court/tribunal  conforms
with the salient characteristics and standards of the  court  sought  to  be
substituted.
137.(iv) Constitutional conventions pertaining to the  Constitutions  styled
on the Westminster  model  will  also  stand  breached,  if  while  enacting
legislation, pertaining to  transfer  of  judicial  power,  conventions  and
salient  characteristics  of  the  court  sought  to  be  replaced  are  not
incorporated in the court/tribunal sought to be created.
138.(v) The prayer made in Writ Petition (C) No. 621 of  2007  is  declined.
Company Secretaries are held ineligible  for  representing  a  party  to  an
appeal before NTT.
139.(vi)  Examined  on  the  touchstone  of  Conclusions  (iii)   and   (iv)
(contained in paras 136 and 137, above) Sections 5, 6, 7, 8 and  13  of  the
NTT  Act  (to  the  extent  indicated   hereinabove),   are   held   to   be
unconstitutional. Since the aforesaid provisions constitute the  edifice  of
the NTT Act, and without  these  provisions  the  remaining  provisions  are
rendered ineffective and inconsequential, the entire enactment  is  declared
unconstitutional.”

Based on the above, it was asserted, that this Court had  now  clearly  laid
down, that on issues pertaining to  the  transfer  of  judicial  power,  the
salient characteristics, standards and conventions of judicial power,  could
not be breached.  It was also submitted, that  evaluated  by  the  aforesaid
standards,  it  would  clearly  emerge,  that  the  “independence   of   the
judiciary”  had   been   seriously   compromised,   through   the   impugned
constitutional amendment (and the NJAC Act).
23.   It was the submission of Mr. Ram Jethmalani, learned Senior  Advocate,
that the defect in the judgment rendered by this Court in the  First  Judges
case, was that, Article 50 of the Constitution had  not  been  appropriately
highlighted,  for  consideration.  It  was  submitted,  that  importance  of
Article 50 read with Articles 12 and 36, came to be examined in  the  Second
Judges case, wherein the majority view, was as follows:
“80. From the above deliberation, it is clear that Article 50  was  referred
to  in  various  decisions  by  the  eminent  Judges  of  this  Court  while
discussing the principle of independence  of  the  judiciary.  We  may  cite
Article 36 which falls under Part IV (Directive Principles of State  Policy)
and which reads thus:
[pic]“36. In this Part, unless the context otherwise requires,  ‘the  State’
has the same meaning as in Part III.”
81. According to this article, the definition of the expression “the  State”
in Article 12 shall apply throughout Part IV, wherever that  word  is  used.
Therefore, it follows that the expression “the State”  used  in  Article  50
has to be construed in the distributive sense as  including  the  Government
and Parliament of India and the  Government  and  the  legislature  of  each
State and all local or other authorities within the territory  of  India  or
under  the  control  of  the  Government  of  India.  When  the  concept  of
separation of the judiciary from the executive is assayed and assessed  that
concept cannot be  confined  only  to  the  subordinate  judiciary,  totally
discarding  the  higher  judiciary.  If  such  a  narrow  and  pedantic   or
syllogistic approach is made and a constricted  construction  is  given,  it
would  lead  to  an  anomalous  position  that  the  Constitution  does  not
emphasise the separation of higher judiciary  from  the  executive.  Indeed,
the distinguished Judges of this Court, as pointed out earlier,  in  various
decisions have referred to  Article  50  while  discussing  the  concept  of
independence of higher or superior judiciary  and  thereby  highlighted  and
laid stress on the basic principle  and  values  underlying  Article  50  in
safeguarding the independence of the judiciary.
              xxx                    xxx                   xxx
85.  Regrettably,  there  are  some  intractable  problems  concerned   with
judicial administration starting from the  initial  stage  of  selection  of
candidates to man the Supreme Court and  the  High  Courts  leading  to  the
present malaise. Therefore, it has become inevitable  that  effective  steps
have to be taken to improve or retrieve the situation. After taking note  of
these problems and realising the devastating  consequences  that  may  flow,
one cannot be a silent spectator or  an  old  inveterate  optimist,  looking
upon the other constitutional functionaries, particularly the executive,  in
the fond  hope  of  getting  invigorative  solutions  to  make  the  justice
delivery system more effective and resilient to meet the contemporary  needs
of  the  society,  which  hopes,  as  experience  shows,  have  never   been
successful. Therefore, faced with such a piquant situation,  it  has  become
imperative for us to solve these problems within the  constitutional  fabric
by interpreting the various provisions of the Constitution relating  to  the
functioning of the judiciary in the light of the letter and  spirit  of  the
Constitution.
              xxx                    xxx                   xxx
141. Mr Ram Jethmalani, learned senior counsel expressed his grievance  that
the principles laid down in Chandra Mohan case (1967) 1  SCR  77,  83…  were
not appreciated by the learned Judges while dealing with  Samsher  Singh  v.
State of Punjab, (1974) 2 SCC 831 who in his submission,  have  ignored  the
principle of harmonious construction which was articulated in K.M.  Nanavati
v. State of Bombay (1961) 1 SCR 497…  According  to  him,  the  judgment  in
Gupta case 1981 Supp SCC 87 may be regarded as per incuriam. He  articulates
that the expression ‘consultation’ is  itself  flexible  and  in  a  certain
context capable of bearing the meaning of ‘consent’ or ‘concurrence’.
              xxx                    xxx                   xxx
154. The controversy that arises for scrutiny from the  arguments  addressed
boils down with regard to the construction of the word ‘consultation’.
              xxx                    xxx                   xxx
170. Thus, it is seen that the consensus of  opinion  is  that  consultation
with the CJI is a mandatory condition precedent to  the  order  of  transfer
made by the President so that non-consultation with  the  CJI  shall  render
the order unconstitutional i.e. void.

171. The above view  of  the  mandatory  character  of  the  requirement  of
consultation taken in Sankalchand has been followed and reiterated  by  some
of the Judges in Gupta case. Fazal Ali, J. has held in Gupta case:  (SCC  p.
483, para 569)
“(3) If the consultation with the CJI has not been done before  transferring
a Judge, the transfer becomes unconstitutional.”
Venkataramiah, J. in Gupta case has also expressed the same view.
172. In the light  of  the  above  view  expressed  in  Union  of  India  v.
Sankalchand Himatlal Sheth, (1977) SCC 4 193… and  some  of  the  Judges  in
Gupta case 1981 Supp SCC 87… it can be simply held  that  consultation  with
the CJI under the first proviso to Article 124(2) as well as  under  Article
217 is a mandatory condition, the violation of which would  be  contrary  to
the constitutional mandate.
              xxx                    xxx                   xxx
181. It cannot be gainsaid that  the  CJI  being  the  head  of  the  Indian
Judiciary and paterfamilias  of  the  judicial  fraternity  has  to  keep  a
vigilant watch in protecting the integrity and guarding the independence  of
the judiciary and he in that capacity evaluates the merit of  the  candidate
with regard to his/her professional  attainments,  legal  ability  etc.  and
offers  his  opinion.  Therefore,  there  cannot  be  any  justification  in
scanning that opinion of the CJI by applying a  superimposition  test  under
the guise of overguarding the judiciary.
            xxx              xxx             xxx
183. One should not lose sight of the important  fact  that  appointment  to
the judicial office cannot be equated with the appointment to the  executive
or other services. In a recent judgment in All India Judges’ Association  v.
Union of India (1993) 4 SCC 288... rendered by a three-Judge Bench  presided
over by M.N. Venkatachaliah, C.J. and consisting of  A.M.  Ahmadi  and  P.B.
Sawant, JJ., the following observations are made: (SCC pp. 295  e-h,  296  a
and c-d, 297 b, paras 7 and 9)
“The judicial service is not service  in  the  sense  of  ‘employment’.  The
judges are not employees. As members of the  judiciary,  they  exercise  the
sovereign judicial power of the State. They are holders  of  public  offices
in the same way as the members of the Council of Ministers and  the  members
of the legislature. When it is said that in a democracy such  as  ours,  the
executive, the legislature and the judiciary constitute  the  three  pillars
of the State, what is intended to be conveyed is that  the  three  essential
functions of the State are entrusted to the three organs of  the  State  and
each one of them in turn represents the authority  of  the  State.  However,
those who exercise the State power are the ministers,  the  legislators  and
the judges, and not the members of the their staff who implement  or  assist
in implementing their decisions. The Council of Ministers or  the  political
executive is different from the  secretarial  staff  or  the  administrative
executive which carries  out  the  decisions  of  the  political  executive.
Similarly, [pic]the legislators are different from  the  legislative  staff.
So also the judges from the  judicial  staff.  The  parity  is  between  the
political executive, the legislators and the  judges  and  not  between  the
judges and the administrative executive. In some democracies like  the  USA,
members of some State judiciaries are elected as much as the members of  the
legislature and the heads of the State. The judges, at whatever  level  they
may be, represent the State and  its  authority  unlike  the  administrative
executive or the members  of  other  services.  The  members  of  the  other
services, therefore, cannot be placed on a  par  with  the  members  of  the
judiciary, either constitutionally or functionally.”

Whereupon, this Court recorded its  conclusions.  The  relevant  conclusions
are extracted hereunder:
“(1) The ‘consultation’ with the CJI by the President is  relatable  to  the
judiciary and not to any other service.
(2) In the process of various  constitutional  appointments,  ‘consultation’
is required only to the judicial office  in  contrast  to  the  other  high-
ranking constitutional offices. The prior ‘consultation’  envisaged  in  the
first proviso to Article 124(2) and Article 217(1) in  respect  of  judicial
offices is a reservation or limitation on the  power  of  the  President  to
appoint the Judges to the superior courts.
            xxx              xxx             xxx
(4) The context in which the expression “shall always be consulted” used  in
the first proviso of Article 124(2) and the expression “shall  be  appointed
… after consultation”  deployed  in  Article  217(1)  denote  the  mandatory
character of ‘consultation’, which has to be and is of a binding character.
(5) Articles 124 and 217 do  not  speak  in  specific  terms  requiring  the
President to consult the executive as such, but  the  executive  comes  into
play in the process of appointment of  Judges  to  the  higher  echelons  of
judicial  service  by  the  operation  of  Articles  74  and  163   of   the
Constitution. In other words, in the case  of  appointment  of  Judges,  the
President is not obliged to consult the executive as there  is  no  specific
provision for such consultation.
(6) The President is constitutionally obliged to consult the  CJI  alone  in
the case of appointment of a Judge to the  Supreme  Court  as  [pic]per  the
mandatory proviso to Article 124(2) and in the  case  of  appointment  of  a
Judge to the High Court, the President is obliged to  consult  the  CJI  and
the Governor of the State and in addition the  Chief  Justice  of  the  High
Court concerned, in case the appointment relates to a Judge other  than  the
Chief Justice of that High Court. Therefore, to place  the  opinion  of  the
CJI on  a  par  with  the  other  constitutional  functionaries  is  not  in
consonance with the spirit of the Constitution, but against the very  nature
of the subject-matter concerning the judiciary  and  in  opposition  to  the
context in which  ‘consultation’  is  required.  After  the  observation  of
Bhagwati, J. in  Gupta  case  that  the  ‘consultation’  must  be  full  and
effective there is no conceivable reason to hold  that  such  ‘consultation’
need not be given primary consideration.
            xxx              xxx             xxx
196. In the background of the above factual and legal position, the  meaning
of the word ‘consultation’  cannot  be  confined  to  its  ordinary  lexical
definition. Its contents greatly vary according  to  the  circumstances  and
context in which the word is used as in our Constitution.
            xxx              xxx             xxx
207. No one can deny that the State in the present day has become the  major
litigant and the  superior  courts  particularly  the  Supreme  Court,  have
become centres for turbulent controversies, some of which with a flavour  of
political repercussions and the  Courts  have  to  face  tempest  and  storm
because their vitality is a  national  imperative.  In  such  circumstances,
therefore, can the Government, namely, the major litigant  be  justified  in
enjoying absolute authority in nominating and  appointing  its  arbitrators.
The answer would be in the  negative.  If  such  a  process  is  allowed  to
continue, the independence of judiciary in the long run  will  sink  without
any trace. By going through various  Law  Commission  Reports  (particularly
Fourteenth, Eightieth and One Hundred  and  Twenty-first),  Reports  of  the
Seminars and articles of eminent jurists etc., we understand that a  radical
change in the method of appointment of Judges to the superior  judiciary  by
curbing the executive’s power has been accentuated but  the  desired  result
has not been  achieved  even  though  by  now  nearly  46  years  since  the
attainment of independence and more than 42 years since the  advent  of  the
formation of our constitutional system have elapsed. However, it is a  proud
privilege  that  the  celebrated  birth  of   our   judicial   system,   its
independence, mode of dispensation of justice by Judges of eminence  holding
nationalistic views stronger than other Judges in  any  other  nations,  and
the resultant triumph of the Indian judiciary are  highly  commendable.  But
it does not mean that the present system should continue for  ever,  and  by
allowing the executive to enjoy  the  absolute  primacy  in  the  matter  of
appointment of Judges as its ‘royal privilege’.
208. The polemics of the  learned  Attorney-General  and  Mr  Parasaran  for
sustaining the view expressed in Gupta case 1981  Supp  SCC  87…  though  so
distinguished for the strength of their ratiocination, is found  to  be  not
acceptable and falls through for all the reasons aforementioned  because  of
the inherent weakness of the doctrine which they have attempted to defend.”

Insofar as the minority judgment authored by A.M. Ahmadi, J.,  (as  he  then
was) is concerned, it is only relevant to  highlight  the  first  conclusion
recorded in paragraph 313, which is reproduced hereunder:
“313. We conclude:
(i) The  concept  of  judicial  independence  is  deeply  ingrained  in  our
constitutional  scheme  and  Article  50  illuminates  it.  The  degree   of
independence is near total after a person is appointed and inducted  in  the
judicial family. …..”

24.   Insofar as the instant aspect of  the  matter  is  concerned,  learned
counsel invited our attention to the preamble of  the  NJAC  Act,  which  is
reproduced below:
“An Act to regulate the procedure to be followed by  the  National  Judicial
Appointments Commission for recommending  persons  for  appointment  as  the
Chief Justice of India and other Judges  of  the  Supreme  Court  and  Chief
Justices and other Judges of High Courts and for  their  transfers  and  for
matters connected therewith or incidental thereto.”

The statement of objects and reasons is also being extracted hereunder:
                      “Statement of Objects and Reasons
xxx         xxx        xxx
2. The Supreme Court in the matter of the Supreme Court  Advocates-on-Record
Association Vs. Union of India  in  the  year  1993,  and  in  its  Advisory
Opinion in the year 1998 in the Third Judges case,  had  interpreted  clause
(2) of article 124 and clause (1) of article 217 of  the  Constitution  with
respect to the meaning of “consultation” as “concurrence”.  Consequently,  a
Memorandum of Procedure for appointment of Judges to the Supreme  Court  and
High Courts was formulated, and is being followed for appointment.
3.  After  review   of   the   relevant   constitutional   provisions,   the
pronouncements of the Supreme Court and consultations with eminent  Jurists,
it is felt that a broad  based  National  Judicial  Appointments  Commission
should be established for making recommendations for appointment  of  Judges
of the Supreme Court and High Courts. The said Commission  would  provide  a
meaningful role to the judiciary,  the  executive  and  eminent  persons  to
present their view points and make the participants accountable, while  also
introducing transparency in the selection process.
4. The Constitution (One Hundred and Twenty-first Amendment) Bill,  2014  is
an enabling constitutional amendment for  amending  relevant  provisions  of
the Constitution  and  for  setting  up  a  National  Judicial  Appointments
Commission. The proposed Bill seeks to insert new articles  124A,  124B  and
124C after article 124 of the Constitution. The said Bill also provides  for
the  composition  and  the  functions  of  the  proposed  National  Judicial
Appointments Commission. Further, it provides that Parliament may,  by  law,
regulate the procedure for appointment of Judges and  empower  the  National
Judicial Appointments Commission to lay down  procedure  by  regulation  for
the  discharge  of  its  functions,  manner  of  selection  of  persons  for
appointment and such other matters as may be considered necessary.
5. The proposed Bill seeks to  broad  base  the  method  of  appointment  of
Judges in the Supreme  Court  and  High  Courts,  enables  participation  of
judiciary, executive and eminent persons and ensures  greater  transparency,
accountability and objectivity in the  appointment  of  the  Judges  in  the
Supreme Court and High Courts.
6. The Bill seeks to achieve the above objectives.
New Delhi;                              Ravi Shankar Prasad
The 8th August, 2014.”

Based on the non-disclosure of  reasons,  why  the  existing  procedure  was
perceived as unsuitable, it was contended, that the only  object  sought  to
be achieved was, to dilute  the  primacy,  earlier  vested  with  the  Chief
Justice of India (based on a decision of a collegium  of  Judges),  provided
for under Articles 124 and 217, as originally enacted. This  had  been  done
away, it was pointed out, by substituting the Chief Justice of  India,  with
the NJAC.
25.   The primary submission advanced at the hands of Mr. Fali  S.  Nariman,
Senior  Advocate,  was  with  reference  to  the  violation  of  the  “basic
structure”, not only through the  Constitution  (99th  Amendment)  Act,  but
also, by enacting the  NJAC  Act.   It  was  pointed  out,  that  since  the
commencement of the  Constitution,  whenever  changes  were  recommended  in
respect of the appointment of Judges, the issue which remained the focus  of
attention was, the primacy of the Chief Justice of India.  Primacy,  it  was
contended, had been recognized as  the  decisive  voice  of  the  judiciary,
based on a collective decision of a collegium of  Judges,  representing  its
collegiate wisdom.  It was submitted, that the Chief Justice  of  India,  as
an individual, as well as, Chief Justices of High  Courts,  as  individuals,
could not be considered as persona designate.   It  was  pointed  out,  that
the judgment rendered in the Second Judges case, had not become  irrelevant.
 This Court, in the above judgment, provided for  the  preservation  of  the
“independence of the judiciary”.   The  aforesaid  judgment,  as  also,  the
later judgment in the Third  Judges  case,  re-established  and  reaffirmed,
that the Chief Justice of India, represented through a body of  Judges,  had
primacy.  According to learned counsel,  the  individual  Chief  Justice  of
India, could not and did  not,  represent  the  collective  opinion  of  the
Judges.  It was asserted, that the Constitution (99th  Amendment)  Act,  and
the NJAC Act, had done away with, the responsibility vested with  the  Chief
Justice of India, represented through a collegium of Judges (under  Articles
124 and 217 – as originally enacted).  Accordingly, it was  submitted,  that
till  the  system  adopted  for  selection  and   appointment   of   Judges,
established and  affirmed,  the  unimpeachable  primacy  of  the  judiciary,
“independence of the judiciary” could not be deemed to have been  preserved.

26.   Insofar as the  issue  in  hand  is  concerned,  it  was  the  pointed
contention of the learned counsel, that the decision rendered by this  Court
in Sardari Lal v. Union of India[37], came to be overruled  in  the  Samsher
Singh case11.  Referring to the judgment in the  Samsher  Singh  case11,  he
invited this  Court’s  attention  to  the  following  observations  recorded
therein:
“147. In J.P. Mitter v. Chief Justice, Calcutta AIR 1965 SC 961  this  Court
had to consider the decision of the Government of India  on  the  age  of  a
Judge of the Calcutta High Court and, in that context, had to ascertain  the
true scope and effect of Article 217(3) which  clothes  the  President  with
exclusive jurisdiction to determine the age of  a  Judge  finally.  In  that
case the Ministry of Home Affairs went through the  exercise  prescribed  in
Article 217(3). “The then Home Minister wrote to the  Chief  Minister,  West
Bengal, that he had consulted the Chief Justice  of  India,  and  he  agreed
with the advice given to him by the Chief Justice, and  so  he  had  decided
that the date of birth of the appellant was....It  is  this  decision  which
was, in due course communicated to the appellant”. When  the  said  decision
was attacked as one reached by  the  Home  Minister  only  and  not  by  the
President personally, the Court observed:
“The alternative stand which the appellant took was that the  Executive  was
not entitled to determine his age, and  it  must  be  remembered  that  this
stand was taken before Article 217(3) was inserted in the Constitution;  the
appellant was undoubtedly justified in contending  that  the  Executive  was
not competent to determine the question about his  age  because  that  is  a
matter which would have  to  be  tried  normally,  in  judicial  proceedings
instituted  before  High  Courts  of  competent   jurisdiction.   There   is
considerable force in the plea which  the  appellant  took  at  the  initial
stages of this controversy that if the Executive  is  allowed  to  determine
the age of a sitting Judge of a High Court, that would seriously affect  the
independence of the Judiciary itself.”
Based on this reasoning, the Court quashed the order, the ratio of the  case
being that the President  himself  should  decide  the  age  of  the  Judge,
uninfluenced by the Executive,  i.e.  by  the  Minister  in  charge  of  the
portfolio dealing with justice.
148. This decision was reiterated in Union of India v. Jyoti Prakash  Mitter
(1971) 1 SCC 396. Although an argument  was  made  that  the  President  was
guided in that case by the  Minister  of  Home  Affairs  and  by  the  Prime
Minister, it was repelled by the  Court  which,  on  the  facts,  found  the
decision to be that of the President himself and not of the  Prime  Minister
or the Home Minister.
149. In the light  of  the  scheme  of  the  Constitution  we  have  already
referred to, it is  doubtful  whether  such  an  interpretation  as  to  the
personal satisfaction of the President is correct. We are of the  view  that
the President means,  for  all  practical  purposes,  the  Minister  or  the
Council of Ministers as the case may be, and his  opinion,  satisfaction  or
decision is constitutionally secured  when  his  Ministers  arrive  at  such
opinion satisfaction or decision. The independence of the  Judiciary,  which
is a cardinal principle of the  Constitution  and  has  been  relied  on  to
justify  the  deviation,  is  guarded   by   the   relevant   article-making
consultation with the Chief Justice of India obligatory. In all  conceivable
cases consultation with that highest dignitary of Indian  justice  will  and
should be accepted by the Government of India and the  Court  will  have  an
opportunity to examine if any other extraneous  circumstances  have  entered
into the verdict of the Minister, if he departs from the  counsel  given  by
the Chief Justice of India. In practice the last word in  such  a  sensitive
subject must belong to the Chief Justice of  India,  the  rejection  of  his
advice being ordinarily  regarded  as  prompted  by  oblique  considerations
vitiating the order. In this view it is immaterial whether the President  or
the Prime Minister or the Minister for Justice formally decides the issue.”

27.   It was pointed out, that the decision in  the  Samsher  Singh  case11,
came to be rendered well before the  decision  in  the  First  Judges  case,
wherein  this  Court  felt,  that  Judges  could  be   fearless   only   if,
institutional  immunity  was  assured,  and   institutional   autonomy   was
guaranteed. The view expressed in the Samsher  Singh  case11  in  1974  was,
that the final authority in the matter  of  appointment  of  Judges  to  the
higher judiciary, rested with the Chief Justice of India.   It  was  pointed
out, that the above  position  had  held  the  field,  ever  since.  It  was
submitted, that  “independence  of  the  judiciary”  has  always  meant  and
included independence in the matter of appointment of Judges to  the  higher
judiciary.
28.   Mr. Arvind P. Datar, learned Senior Advocate contended, that the  NJAC
had been created by an amendment to the Constitution.  It  therefore  was  a
creature of the Constitution.  Power had been vested with the NJAC  to  make
recommendations  of  persons  for  appointment  as  Judges  to  the   higher
judiciary, including the power to transfer  Chief  Justices  and  Judges  of
High Courts, from one High  Court  to  another.   The  above  constitutional
authority, it was submitted, must be regulated by a  constitutional  scheme,
which must flow from the provisions of the Constitution  itself.  Therefore,
it was asserted, that  the  manner  of  functioning  of  the  NJAC  must  be
contained in the Constitution itself.  It was submitted, that the method  of
functioning of the NJAC,  could  not  be  left  to  the  Parliament,  to  be
regulated by ordinary law. In order to support his  aforestated  contention,
reliance was placed on entries 77 and 78, contained in  the  Union  List  of
the  Seventh  Schedule.   It  was  submitted,  that  the  power   to   frame
legislation, with reference to entries 77 and 78 was not absolute,  inasmuch
as, Article 245 authorized the Parliament, to legislate on subjects  falling
within its realm, subject to the substantive  provisions  contained  in  the
Constitution. For the above reason, it was asserted, that the activities  of
the NJAC could not be made subject to, or subservient to, the  power  vested
in the Parliament, under entries 77 and 78.
29.   It was contended by Mr. Ram Jethmalani, learned Senior Advocate,  that
there was  sufficient  circumstantial  evidence  to  demonstrate,  that  the
present political establishment felt, that the  judiciary  was  an  obstacle
for the implementation of its policies.  It was contended, that  the  entire
effort, was to  subdue  the  judiciary,  by  inducting  into  the  selection
process, those who could be politically influenced.  In  order  to  project,
the concerted effort  of  the  political  dispensation,  in  subverting  the
“independence of the judiciary”, learned counsel,  in  the  first  instance,
pointed  out,  that  the  first  Bill  to  constitute  a  National  Judicial
Commission [the Constitution (67th Amendment) Bill, 1990] was introduced  in
the Lok Sabha on 18.5.1990.  The statement of  its  “Objects  and  Reasons”,
which was relied upon, is extracted below:
“The Government of India have in the recent past announced  their  intention
to set up a high level  judicial  commission,  to  be  called  the  National
Judicial Commission for the appointment of Judges of the Supreme  Court  and
of the High Courts and the transfer of Judges of the High Courts  so  as  to
obviate the criticisms of arbitrariness on the  part  of  the  Executive  in
such appointments and transfers and also to make such  appointments  without
any delay.  The Law Commission of India in their  One  Hundred  and  Twenty-
first Report also emphasised the need for a change in the system.
2. The National Judicial Commission to make recommendations with respect  to
the appointment of Judges of the Supreme Court will  consist  of  the  Chief
Justice of India  and  two  other  Judges  of  the  Supreme  Court  next  in
seniority  to  the  Chief  Justice  of  India.   The  Commission   to   make
recommendations with respect to the appointment of the Judges  of  the  High
Courts will consist of the Chief Justice of India, one senior-most Judge  of
the Supreme Court, the Chief Minister of the State concerned, Chief  Justice
of the concerned High Court and one senior-most Judge of that High Court.
3. The Bill seeks to achieve the above object.
NEW DELHI;
The 11th May, 1990;”

The proposed National Judicial Commission in the above Bill, was to be  made
a component of Part XIIIA of the Constitution, by including therein  Article
307A.  The Chief Justice of India, and the next two senior  most  Judges  of
the  Supreme  Court,  were  proposed  to  comprise   of   the   contemplated
Commission, for making appointments of Judges to the  Supreme  Court,  Chief
Justices and Judges to High Courts, and for transfer of  High  Court  Judges
from one High Court to another. The above Commission, omitted any  executive
and legislative participation. The proposed composition of  the  Commission,
for appointing High Court Judges, included the Chief Justice of  India,  the
Chief Minister or the Governor of  the  concerned  State,  the  senior  most
Judge of the Supreme Court, the Chief Justice of the concerned  High  Court,
and the senior most Judge of that Court. The above Bill also  provided  for,
an  independent  and  separate  secretarial  staff  for   the   contemplated
Commission. It was submitted, that the above amendment to the  Constitution,
was on account  of  the  disillusionment  and  incredulity  with  the  legal
position, expounded  by  this  Court  in  the  First  Judges  case.  It  was
submitted, that the necessity to give effect to  the  proposed  Constitution
(67th Amendment) Bill, 1990, stood obviated when  this  Court  rendered  its
judgment in the Second Judges case. All this, according to  learned  counsel
for the petitioners, has been forgotten and ignored.
30.    Historically,  the  next  stage,  was  when  the  Constitution  (98th
Amendment)  Bill,  2003  was  placed   before   the   Parliament   for   its
consideration. In  the  above  Bill,  the  executive  participation  in  the
process of selection and appointment of Judges to the higher judiciary,  was
introduced by making the Union Minister of Law and Justice,  an  ex  officio
Member of the Commission. Two eminent citizens (either eminent  jurists,  or
eminent lawyers, or  legal  academicians  of  high  repute)  would  also  be
Members of the Commission. One of them was to be appointed by the  President
in consultation  with  the  Chief  Justice  of  India,  and  the  other,  in
consultation with the Prime Minister. Yet another effort was  made  (by  the
previous  U.P.A.  Government),  in   the   same   direction,   through   the
Constitution (120th Amendment) Bill, 2013, on  similar  lines  as  the  2003
Bill. It was sought to be pointed out, that there was  a  consensus  amongst
all the parties, that the aforesaid  Bill  should  be  approved.  And  that,
learned counsel personally, as a Member of the  Rajya  Sabha,  had  strongly
contested the above move. Learned counsel invited this Court’s attention  to
the objections raised by him, during the course of  the  debate  before  the
Rajya Sabha. He emphasized, that he had submitted to  the  Parliament,  that
the Constitution Amendment  Bill,  needed  to  be  referred  to  the  Select
Committee  of  the  Parliament,   as   the   same   in   his   opinion   was
unconstitutional. An extract of the debate was also brought  to  our  notice
(by  substituting  the   vernacular   part   thereof,   with   its   English
translation), it is being reproduced hereunder:
“My suggestion is: Let the Judicial Appointments Commission Bill go  to  the
Standing Committee.  The rest of the business we should pass  today.   Thank
you.
Shri Ram Jethmalali: Madam, thank you; better late than never.
Sir, I wish to make two preliminary suggestions.  If there is  an  assurance
that the Constitution (Amendment) Bill as well as the subsidiary  Bill  will
both be referred to a Select Committee of Parliament, I do  not  propose  to
address this House at all.  But, I do not consider  it  suitable  or  proper
that only the second Bill should be referred to a  Select  Committee.   Both
should be sent.  And, I will give my reasons.
Sir,  the  second  suggestion  that  I  have  to  make  is  this.   My  main
contention, which I am going to make, is that the  Constitution  (Amendment)
Bill is wholly unconstitutional and, if passed, it will undoubtedly  be  set
aside by the Supreme Court, because it interferes with the basic feature  of
the Constitution.  Such amendments  of  the  Constitution  are  outside  the
jurisdiction of  this  House.   The  amendment  process  prescribed  by  the
Constitution requires 2/3rd majority and so on and so forth.   That  applies
only to those amendments of the Constitution which do  not  touch  what  are
called  the  basic  features  of  the  Constitution  as  understood  in  the
Kesavananda  Bharati  case.   This  Constitutional   amendment,   certainly,
interferes with a basic feature of the Indian Constitution and it  will  not
be sustained ever.  But, if it is said that even if you  pass  it,  it  will
not be brought into force until a Reference is made  to  the  Supreme  Court
and the  Supreme  Court  answers  the  question  of  the  validity  of  this
Constitution amendment in the affirmative.  If that is done, I, again,  need
not  speak.   But,  Sir,  since  I  don’t  expect  both   these   reasonable
suggestions to be accepted, I intend to speak and speak my mind.
            xxx              xxx             xxx
Kapil is my great friend and is one  of  the  Ministers  in  the  Government
whose work as the Law Minister I keep supervising and I am happy the  manner
in which he conducts his Ministry.  But, Sir, I must declare today  that  my
conscience, understanding and my duty towards the people  of  this  country,
which I regard as my paramount obligation, do not permit  me  to  submit  to
this kind of legislation.   Both the Bills, according to me are  evil.   The
evil, first of all, consists in the  misleading  Statement  of  Objects-and-
Reasons.  You ought to have said with complete honesty  that  what  you  are
trying to demolish is the Collegium System, which seems to  be  the  object,
and which is apparent to anyone. Some of the persons who  have  spoken  have
spoken on the assumption that that is the purpose of this  particular  piece
of legislation.
Sir, the first point that I propose to make is that  the  1993  judgment  of
Nine Judges is a judgment based upon the discovery of the basic  feature  of
the Constitution, and upon devising a system to sustain that basic  feature.
Madam, I have myself appeared in that litigation and I claim that  I  had  a
tremendous contribution to make to  the  success  of  that  judgment.  In  a
sense, I claim to be the founder of the Collegium System. But that does  not
mean that I am an unmixed admirer of the  Collegium  System.  The  Collegium
System has, doubtless, some faults.  But  the  Collegium  System  came  into
existence on the basis of one main argument. That one main argument that  we
advance, and advance with great vigour and  force,  is  that  there  is  one
article of the Constitution, article 50 of the Constitution,  which  is  the
shortest article in the Constitution, consisting of only one sentence.  That
article says  that  the  Government  shall  strive  to  keep  the  Judiciary
separate from the Executive.
Sir, we argued before the Supreme Court that  this  article  does  not  mean
that Judges and Ministers should not socially meet. This does not mean  that
they should live in separate towns, or that they should  not  live  even  in
adjoining bungalows. The purpose of this article is to ensure  that  in  the
appointment of Judges, the  Executive  has  no  role  to  play,  except  the
advisory role. In other words, the doctrine of primacy of the  Executive  in
the appointment process was irksome to us because the whole nation of  India
has been the victim of the Judges appointed in the earlier  system.  I  have
been a refugee from my own country during the Emergency. Why was it? It  was
because four Supreme Court Judges – I  am  not  talking  of  the  fifth  who
earned the New York Times praise that the Indian nation will have  to  build
a monument to his memory; I am talking of the other  four  who  –  disgraced
the  Judiciary,  disgraced  the  Supreme  Court  and  were  parties  to  the
destruction of Indian democracy and the demolition  and  the  debasement  of
the whole Constitution  of  India.  Sir,  of  which  system  were  they  the
product?  They  were  the  product  of  that  system  which,  in  1981,  was
ultimately supported by the Gupta Judgment but, after some time, there  were
people, intellectuals, who spoke up that this system  would  not  work;  the
system requires change. Sir, the Indian democracy  has  been  saved  not  by
intellectuals; Indian democracy at its most crucial hour has been  saved  by
the poor illiterates of this country.
In times of crises, it is only the  brave  hearted  who  matter.   On  those
which one had pride remained tongue tied (Two sentences translated).
That is the tragedy of our country. Sir, the intellectuals of  this  country
have continuously failed, and I regret to say that  they  are  failing  even
today. Collegium may be the creation of the Judiciary, it  is  the  creation
of judicial interpretation, again, of the Constitution, but whatever be  the
faults of the Collegium, the Collegium today represents  some  system  which
is consistent with the basic  features  of  the  Constitution,  namely,  the
supremacy of the Judiciary  and  its  freedom  from  any  influence  of  the
Executive in the appointment process.
            xxx              xxx             xxx
Sir, I am speaking for those who are not  irrevocably  committed  to  voting
for this amendment. There are some people who must  have  kept  their  minds
still open. I am  appealing  to  those  minds  today  only.  Those  who  are
irrevocably committed are committed to the destruction of Indian democracy.
Sir, the key passage in the judgment of the Supreme Court  of  1993  is  the
passage which I wish to share with the House. The  question  of  primacy  to
the opinion of the Chief Justice of India in the matters of appointment  and
transfer and their justifiability should be considered  in  the  context  of
the independence of the Judiciary as a part of the basic  structure  of  the
Constitution to secure the rule of law essential  for  preservation  of  the
democratic system. The broad scheme of separation of powers adopted  in  the
Constitution together with the Directive Principles  of  separation  of  the
Judiciary from the Executive, even  at  the  lowest  strata,  provides  some
insight to the true meaning of the relevant provisions of  the  Constitution
relating to the composition of the  Judiciary.  The  construction  of  these
provisions  must   accord   with   these   fundamental   concepts   in   the
Constitutional scheme to preserve the vitality and  promote  the  growth  of
the essential of retaining the Constitution as a vibrant organism”.
Sir,  the  Constitution  cannot  survive,  human  freedom  cannot   survive,
citizens’ human  rights  cannot  survive,  no  development  can  take  place
unless, of course, the judges are independent first of the  Executive  power
because don’t forget that every citizen has a grievance against the  corrupt
members of the Executive, or, errant bureaucracy, public  officers  misusing
power, indulging  in  corruption,  making  wrong  and  illegal  orders.  The
citizen goes to the court, knocks the door of the court  and  says,  “Please
give me a mandamus against  this  corrupt  official,  against  this  corrupt
Minister”. And, Sir, the judges are supposed to decide upon  the  claims  of
the poorest who go to the Supreme Court... ...(Interruptions)...  ...and  to
the judges. It may be, and  I  am  conscious...  ...(Interruptions)...  Sir,
this is not a laughing matter. Please listen, and then decide for  yourself.
...
            xxx              xxx             xxx
Sir, first of all, let me say this now that  the  whole  judgement  of  nine
Judges is based upon this principle that in  the  appointment  process,  the
Executive can never have primacy. This is principle number one. It  has  now
become the  basic  feature  of  India's  Constitution.  My  grievance  today
against this Constitution (Amendment) Bill is that you  are  slowly,  slowly
now creating a new method by which ultimately you will revert to the  system
which existed prior to 1993. In other words, the same system  would  produce
those four Judges who destroyed  the  Indian  democracy,  human  rights  and
freedom. Sir,  kindly  see,  why.  The  Constitution  Amendment  looks  very
innocent. All that it says is that we shall have a  new  article  124(a)  in
the Constitution and article 124(a)  merely  says  that  there  shall  be  a
Judicial  Appointments  Commission.  It  lays   down   that   the   Judicial
Appointments Commission will have these functions. It leaves at  that.  But,
kindly see that  after  the  first  sentence,  every  thing  is  left  to  a
Parliamentary will. After saying that there will be a Judicial  Appointments
Commission, every thing will be  left,  according  to  the  second  part  of
124(a), to a parliamentary legislation which is capable of being removed  if
the ruling party has one Member majority in both Houses of  Parliament.  Not
only that, I understand that Parliament is not likely to do it, but  it  can
do it and by a majority of one in both Houses, you can  demolish  the  whole
thing and substitute it with a Judicial Commission  which  will  consist  of
only the Law Minister.
            xxx              xxx             xxx
So, Sir, my first objection is that this Bill is a Bill  which  is  intended
to deal with the basic structure of the Constitution  and,  therefore,  this
Bill is void. (Time-bell) Second, if a Constitutional Amendment is not  good
enough for this purpose, surely, an ordinary piece of legislation cannot  do
it, which ordinary piece of legislation can be removed only  by  a  majority
of one in each House. It can be removed like the  30th  July  Food  Security
Ordinance and you can pass an Ordinance on that day and say that  the  whole
Act is repealed and now the system will be that  Judges  will  be  appointed
for the next six months by only the Law Minister of India. If there was  Mr.
Kapil Sibal, ...(Interruptions)...  If  Mr.  Kapil  Sibal  becomes  the  Law
Minister for ever, Sir, I will allow this Bill to go. (Time-bell) But  I  am
not   prepared   to   accept   it   for   the    future    Law    Ministers.
...(Interruptions)... Sir, let me take two more minutes and tell  all  those
Members that this Bill is not intended to  ensure  the  judicial  character.
This Bill has nothing to do with the improvement of the judicial  character.
So long as the Judges are also human, there will be some Judges who will  go
wrong, who may go wrong. But a great Bar can control them. ….”
            xxx              xxx             xxx
Sir, I hope, people will avoid this kind of a tragedy in the  life  of  this
country. You are today digging the grave of the Constitution  of  India  and
the freedom of this country. ...(Interruptions)... That's all  I  wished  to
say. ...(Interruptions)...”

It  was  submitted,  that  in  the  Rajya  Sabha  131  votes  were  cast  in
affirmation of the proposed Bill,  as  against  the  solitary  vote  of  the
learned counsel, against the same on 5.9.2013.  It was however pointed  out,
that  the  effort  did  not  bear  fruit,  on  account  of  the  intervening
declaration for elections to the Parliament.
31.   Learned counsel thereafter, invited our attention to the statement  of
“Objects and Reasons”  for  the  promulgation  of  the  Constitution  (121st
Amendment) Bill, 2014. The Bill which eventually gave rise to  the  impugned
Constitution (99th Amendment) Act, was taken up  for  consideration  by  the
Lok Sabha on  13.8.2014,  and  was  passed  without  much  debate.   It  was
submitted, that on the following day i.e., 14.8.2014, the  same  was  placed
before the Rajya Sabha, and was again passed, without much  discussion.   It
was pointed out, that an issue, as serious as the one in hand,  which  could
have serious repercussions on  the  “independence  of  the  judiciary”,  was
sought to be rushed through.
32.   It was submitted, that the “Objects and Reasons” of  the  Constitution
(99th Amendment) Act were painfully lacking, in the expression  of  details,
which had necessitated the proposed/impugned  constitutional  amendment.  It
was submitted, that it was imperative to have brought to the notice  of  the
Parliament, that the Supreme Court had declared, that  the  “rule  of  law”,
the “separation of powers” and the “independence  of  the  judiciary”,  were
“salient and basic features” of the Constitution. And that, the  same  could
not be abrogated, through a constitutional amendment. And further that,  the
Supreme Court had expressly provided for the primacy of  the  Chief  Justice
of India, based on a decision of a collegium of Judges,  with  reference  to
the appointments and transfers of Judges of the higher judiciary.
33.    It  was  submitted  by  Mr.  Ram  Jethmalani,   that   the   impugned
constitutional amendment, so as to  introduce  Article  124A,  ought  to  be
described as a fraud on the Constitution itself.  It was pointed  out,  that
the first effort of introducing  Article  124A  was  made  by  the  previous
Government, through the Constitution (120th Amendment) Bill, 2013.   In  the
above Bill, Article 124A alone (as against Articles 124A to 124C,  presently
enacted) was introduced.  It was submitted, that the Rajya Sabha passed  the
above Bill on 5.9.2013, when 131 Members of the Rajya  Sabha  supported  the
Bill (with only one Member opposing it).  Learned  counsel  submitted,  that
he alone had opposed the Bill.  It was asserted, that the  above  fraud  was
sought to be perpetuated, through the passing  of  the  Constitution  (121st
Amendment) Bill, 2014, by the Lok Sabha  on  13.8.2014,  and  by  the  Rajya
Sabha  on  14.8.2014.   It  was  pointed  out,  that  Parliamentarians  from
different political parties had joined hands.  It was submitted, that  as  a
Parliamentarian, he was in  a  position  to  assert,  that  the  merits  and
demerits of the impugned amendment to the Constitution,  were  not  debated,
when the Bill was passed, because of the universal bias entertained  by  the
legislature, against the judiciary.  It was submitted,  that  prejudice  and
intolerance had arisen,  because  of  the  fact  that  the  judiciary  often
interfered  with,  and  often  effaced  legislative  action(s),   as   also,
executive decision(s).
34.   Learned senior counsel also  asserted,  that  the  Constitution  (99th
Amendment) Act, was wholly  ultra  vires,  as  it  seriously  infringed  the
“basic structure/feature” of the Constitution  i.e.,  the  “independence  of
the  judiciary”.  It  was  submitted,  that  the  veracity  of   the   above
constitutional amendment, had to be examined in the  light  of  Article  50.
According  to  learned  counsel,  the  politicization  of  the  process   of
selection and appointment of Judges to the higher judiciary, would  lead  to
a dilution of the “independence of the judiciary”.  It was  submitted,  that
the inclusion of the Union Minister in charge of Law and Justice, as  an  ex
officio Member of the NJAC, had the effect of politicization of the  process
of appointment of Judges to the higher judiciary.  It was pointed out,  that
the inclusion of the Union Minister in charge of Law and Justice within  the
framework of the NJAC, meant the introduction of the Government of the  day,
into the selection process. It  was  asserted,  that  the  Union  Minister’s
inclusion, meant surrendering one-sixth of the power of appointment, to  the
Government. It was submitted, that in order to understand  the  true  effect
of the inclusion of the Union Minister, into the process  of  selection  and
appointment of Judges to the higher judiciary, one had to keep in  mind  the
tremendous amount of  patronage,  which  the  Union  Minister  for  Law  and
Justice carries, and as such, it would be within the inference of the  Union
Minister in charge of Law and Justice, to  make  the  process  fallible,  by
extending his power of patronage to support or oppose  candidates,  who  may
be suitable or unsuitable, to the Government of the  day.  Even  though  the
Union Minister had been assigned only one vote, it was  submitted,  that  he
could  paralyse  the  whole  system,  on  the  basis  of  the  authority  he
exercised. To drive home his contention, learned counsel  made  a  reference
to the introduction of the book “Choosing Hammurabi –  Debates  on  Judicial
Appointments”, edited by Santosh Paul.  In the  introduction  to  the  book,
the thoughts of H.L. Mencken are expressed in the following words:
“But when politicians  talk  thus,  or  act  thus  without  talking,  it  is
precisely the time to watch them most carefully.  Their  usual  plan  is  to
invade the constitution stealthily, and then wait to see what  happens.   If
nothing happens they go on more boldly; if there is  a  protest  they  reply
hotly that the constitution is worn out and absurd,  and  that  progress  is
impossible under the dead hand.  This is the time to watch them  especially.
 They are up to no good to anyone  save  themselves.   They  are  trying  to
whittle away the common rights of the  rest  of  us.   Their  one  and  only
object, now and always, is to get more power in to their hands that  it  may
be used freely for their advantage, and to  the  damage  of  everyone  else.
Beware of all politicians at all times, but  beware  of  them  most  sharply
when they talk of reforming and improving the constitution.”

35.   Learned Senior Advocate also contended,  that  the  inclusion  of  two
“eminent persons” in the six-Member NJAC, as  provided  for,  under  Article
124A(1)  of  the  Constitution  (99th  Amendment)  Act,  was  also   clearly
unconstitutional.  It was contended, that there necessarily had  to  be,  an
indication of the positive qualifications required to be  possessed  by  the
two “eminent persons”, to be nominated to the NJAC.   Additionally,  it  was
necessary to stipulate disqualifications.  Illustratively,  it  was  pointed
out,  that  an  individual  having  a  conflict  of  interest,   should   be
disqualified.  And such conflict would be apparent, when the individual  had
a political role.  A politician has to serve his  constituency,  he  has  to
nourish and sustain his vote bank, and above all, he  has  to  conform  with
the  agenda  of  his  political  party.  Likewise,  a  person  with  ongoing
litigation, irrespective of the nature  of  such  litigation,  would  render
himself ineligible for serving as an “eminent person” within  the  framework
of the NJAC, because of his conflict of interest.
36.   With reference to the inclusion of two “eminent persons” in the  NJAC,
Mr. Arvind P. Datar, learned  Senior  Advocate,  invited  our  attention  to
Article 124A,  whereunder,  the  above  two  “eminent  persons”  are  to  be
nominated by a  committee  comprising  of  the  Prime  Minister,  the  Chief
Justice of India and the Leader of Opposition in the House  of  People,  or,
where there is no such Leader of Opposition,  then,  leader  of  the  single
largest opposition party in  the  House  of  the  People.   Learned  counsel
submitted, that neither Article 124A, nor any other provision, and not  even
the provisions of the NJAC Act, indicate  the  qualifications,  of  the  two
“eminent persons”, who have been included amongst the six-Member  NJAC.   It
was sought to be asserted, that in approximately 70 Statutes and Rules,  the
expression “eminent person” has been employed.  Out of the 70  Statutes,  in
67, the field in which such  persons  must  be  eminent,  has  been  clearly
expressed.  Only in three statutes,  the  term  “eminent  person”  was  used
without any further qualification. It was asserted, that the  term  “eminent
person” had been  left  vague  and  undefined,  in  Article  124A.   It  was
submitted, that the vagueness of the term “eminent person” was itself,  good
enough to justify the striking down of the  provision.  It  was  emphasized,
that the determinative role assigned to the two “eminent persons”,  included
amongst the six-Member NJAC, was so important, that the same  could  not  be
left to the imagination of the  nominating  committee,  which  comprised  of
just men “…with all the failings, all  the  sentiments  and  all  prejudices
which we as  common  people  have…”  (relying  on  the  words  of  Dr.  B.R.
Ambedkar).
37.   Referring to the second  proviso  under  Section  5(2),  as  well  as,
Section 6(6) of the NJAC Act, it was submitted, that  a  recommendation  for
appointment of a Judge, could not  be  carried  out,  if  the  two  “eminent
persons” did not accede to the same. In case they choose  to  disagree  with
the other Members of the NJAC, the  proposed  recommendation  could  not  be
given effect to, even though the other four Members of  the  NJAC  including
all the three representatives of the Supreme Court  approved  of  the  same.
It was pointed out, that the two “eminent persons”, therefore would  have  a
decisive  say.  It  was  further  submitted,  that   the   impact   of   the
determination of the two “eminent persons”, would be such, as  would  negate
the primacy hitherto before vested in the Chief Justice of  India.   It  was
pointed out, that a positive recommendation by the Chief Justice  of  India,
supported by two other senior Judges of  the  Supreme  Court  (next  to  the
Chief Justice of India), could be frustrated by an opposition at  the  hands
of the two “eminent persons”.  The above implied veto  power,  according  to
the learned counsel, could lead to structured bargaining, so as to  persuade
the other Members of the  NJAC,  to  accede  to  the  names  of  undesirable
nominees (just to avoid a stalemate of sorts). It was submitted,  that  such
a composition had been adversely commented upon by this Court  in  Union  of
India v. R. Gandhi[38].  In the judgment, the provision, which  was  subject
matter of consideration, was Section 10-FX. Under the above  provision,  the
Selection Committee for  appointing  the  Chairperson  and  Members  of  the
Appellate Tribunal, and the President and Members of the Tribunal was to  be
comprised of the Chief Justice of  India  (or  his  nominee),  besides  four
Secretaries from different Ministries of the Union Government.   This  Court
recorded its conclusions  with  reference  to  the  aforesaid  provision  in
paragraph 120(viii), which is being extracted hereunder:
“120(viii) Instead of a  five-member  Selection  Committee  with  the  Chief
Justice of India (or his nominee) as Chairperson and  two  Secretaries  from
the Ministry of Finance  and  Company  Affairs  and  the  Secretary  in  the
Ministry of Labour and the Secretary in the Ministry of Law and  Justice  as
members mentioned in Section 10-FX, the Selection Committee  should  broadly
be on the following lines:
(a) Chief Justice of India or his nominee  –  Chairperson  (with  a  casting
vote);
(b) A Senior Judge of the Supreme Court or Chief Justice  of  High  Court  –
Member;
(c) Secretary in the Ministry of Finance and Company Affairs –Member; and
(d) Secretary in the Ministry of Law and Justice – Member.”

It  was  submitted,  that  the  purpose  sought  to  be  achieved,  was  not
exclusivity, but primacy.  It is further  submitted,  that  if  primacy  was
considered to be important for selection of Members to  be  appointed  to  a
tribunal, primacy assumed a far greater significance, when the  issue  under
consideration  was  appointment  and  transfer  of  Judges  of  the   higher
judiciary.  It was accordingly contended,  that  the  manner  in  which  the
composition of the NJAC had been worked out in Article 124A, and the  manner
in which the NJAC is to function with reference to  the  provisions  of  the
NJAC Act, left no room for any doubt, that the same was in  clear  violation
of the law laid down by this Court, and therefore, liable to be set aside.
38.    Learned  counsel  on  the  above  facts,  contested  not   only   the
constitutional validity of clauses (c) and (d) of Article 124A(1), but  also
emphatically assailed the first  proviso  under  Article  124A(1)(d),  which
postulates,  that  one  of  the  “eminent  persons”  should  belong  to  the
Scheduled Castes, Scheduled Tribes, Other Backward  Classes,  Minorities  or
Women.  It was submitted, that these sort of populistic measures, ought  not
to be thought of, while examining  a  matter  as  important  as  the  higher
judiciary.  It was submitted, that  it  was  not  understandable,  what  the
choice of including a person from one of the aforesaid categories was  aimed
at.  In the opinion of learned counsel, the above proviso was farcical,  and
therefore, totally unacceptable. While members  of  a  particular  community
may be relevant for protecting the  interest  of  their  community,  yet  it
could not be conceived, why such a measure should be adopted,  for  such  an
important constitutional responsibility.  In  the  opinion  of  the  learned
counsel, the inclusion of such a Member in the NJAC, was bound  to  lead  to
compromises.
39.   It was also the contention of Mr. Arvind P. Datar, that  Article  124C
introduced  by  the  Constitution   (99th   Amendment)   Act,   was   wholly
unnecessary.  It was pointed out, that in the absence of Article  124C,  the
NJAC would have had the inherent power to regulate its own functioning.   It
was submitted, that Article 124C was a  serious  intrusion  into  the  above
inherent power.  Now that, the Parliament had been  authorized  to  regulate
the procedure for appointments by framing laws, it would also result in  the
transfer of control over the appointment process (–of Judges to  the  higher
judiciary), to the Parliament.  It was submitted, that there  could  not  be
any legislative control, with reference to  appointment  of  Judges  to  the
higher judiciary. Such legislative control, according  to  learned  counsel,
would breach “independence of the judiciary”. It  was  submitted,  that  the
Parliament having exercised its authority in that  behalf,  by  framing  the
NJAC Act, and  having  provided  therein,  the  ultimate  control  with  the
Parliament, must be deemed to have crossed the line, and  transgressed  into
forbidden  territory,  exclusively  reserved  for  the  judiciary.   Learned
counsel  contended,  that  the  duties  and  responsibilities  vested  in  a
constitutional authority, could only be circumscribed by  the  Constitution,
and not by the Parliament through legislation.  It was submitted,  that  the
NJAC was a creature of the Constitution, as the NJAC flows  out  of  Article
124A. Likewise, the Parliament, was also a  creature  of  the  Constitution.
It  was  submitted,  that  one  entity  which  was  the  creation   of   the
Constitution, could not regulate the  other,  owing  its  existence  to  the
Constitution.
40.   It was pointed out by Mr. Ram  Jethmalani,  learned  Senior  Advocate,
that the statement of “Objects and  Reasons”,  as  were  projected  for  the
instant legislation, indicated inter alia, that the NJAC  would  provide  “a
meaningful role to the judiciary”. It was submitted, that what was meant  by
the aforesaid affirmation, was not comprehendible to  him.  It  was  further
highlighted, that it also asserted in the “Objects and Reasons”,  that  “the
executive and the eminent persons to present their viewpoints and  make  the
participants accountable”,  was  likewise  unintelligible  to  him.  It  was
submitted, that a perusal of  the  Constitution  (99th  Amendment)  Act  (as
also, the NJAC Act) would not reveal, how the Members of the  NJAC  were  to
be made responsible.  It  was  further  submitted,  that  the  statement  of
“Objects and Reasons” also indicate,  that  the  manner  of  appointment  of
Judges  to  the  higher  judiciary,  would  introduce  transparency  in  the
selection process.  It was contended, that the enactments  under  reference,
amounted to commission of a fraud  by  Parliament,  on  the  people  of  the
country. As it was not possible to understand, how and who was  to  be  made
accountable – the executive,  –  the  “eminent  persons”,  –  the  judiciary
itself. It was accordingly  sought  to  be  asserted,  that  the  Parliament
seemed to be asserting  one  thing,  while  it  was  doing  something  else.
Learned  counsel  also  placed  reliance  on  Shreya  Singhal  v.  Union  of
India[39], wherefrom the following observations were brought to our notice:
“50. Counsel for the Petitioners argued that the language  used  in  Section
66A is so vague that neither would an accused person be put on notice as  to
what exactly  is  the  offence  which  has  been  committed  nor  would  the
authorities administering the Section be clear as to  on  which  side  of  a
clearly drawn line a particular communication will fall.”

Based on the above submissions, it  was  asserted,  that  the  statement  of
“Objects and Reasons”, could  not  have  been  more  vague,  ambiguous,  and
fanciful than the ones in the matter at hand.
41.    Mr.  Anil  B.  Divan,  Senior  Advocate,  while  appearing  for   the
petitioner in the petition filed by  the  Bar  Association  of  India  (Writ
Petition (C) No.108 of 2015), first and foremost pointed out, that  the  Bar
Association of India represents the  High  Court  Bar  Association,  Kolkata
(West Bengal),  The Awadh Bar  Association,  Lucknow  (Uttar  Pradesh),  the
Madras  Bar  Association,  Chennai  (Tamil  Nadu),  the  Supreme  Court  Bar
Association, New Delhi,  the  Gujarat  High  Court  Advocates’  Association,
Gandhinagar (Gujarat), the Advocates’  Association,  Chennai  (Tamil  Nadu),
the Andhra Pradesh High  Court  Advocates’  Association,  Hyderabad  (Andhra
Pradesh),  the  Delhi  High  Court  Bar  Association,  New  Delhi,  the  Bar
Association Mumbai (Maharashtra), the Gauhati High  Court  Bar  Association,
Guwahati  (Assam),  the  Punjab  &  Haryana  High  Court  Bar   Association,
Chandigarh (Punjab & Haryana), the Bombay Incorporated Law  Society,  Mumbai
(Maharashtra), the Madhya  Pradesh  High  Court  Bar  Association,  Jabalpur
(Madhya Pradesh), the  Advocates’  Association  Bangalore  (Karnataka),  the
Central Excise, Customs (Gold)  Control  Bar  Association,  New  Delhi,  the
Advocates’ Association, Allahabad (Uttar Pradesh), the Karnataka  Advocates’
Federation, Bangalore (Karnataka), the Allahabad High Court Bar  Association
(Uttar Pradesh), the Goa High  Court  Bar  Association,  Panaji  (Goa),  the
Society of India Law of Firms, New Delhi, the Chhattisgarh  High  Court  Bar
Association,  Bilaspur   (Chhattisgarh),   the   Nagpur   High   Court   Bar
Association, Nagpur (Maharashtra), the Madurai Bench of  Madras  High  Court
Bar  Association,  Madurai  (Tamil  Nadu),  the  Jharkhand  High  Court  Bar
Association, Ranchi (Jharkhand), the Bar  Association  of  National  Capital
Region, New Delhi, and the Gulbarga High  Court  Bar  Association,  Gulbarga
(Karnataka). It was submitted, that all the aforementioned Bar  Associations
were unanimous in their challenge,  to  the  Constitution  (99th  Amendment)
Act, and the NJAC Act. It was submitted, that the challenge  to  the  former
was based on the  fact  that  it  violated  the  “basic  structure”  of  the
Constitution, and the challenge to the latter, was based on its being  ultra
vires the provisions of the Constitution.
42.   Learned counsel had adopted a stance, which  was  different  from  the
one adopted by others.  The  submissions  advanced  by  the  learned  senior
counsel, were premised on the fact, that under the constitutional  power  of
judicial review, the higher judiciary not only enforced fundamental  rights,
but also restricted the legislature and the executive, within  the  confines
of their jurisdiction(s).  It was  pointed  out,  that  it  was  the   above
power, which  was the source of tension and friction between  the  judiciary
on the one  hand,  and  the  two  other  pillars  of  governance  i.e.,  the
legislature and the executive, on the other.  This friction, it was  pointed
out, was  caused  on  account  of  the  fact,  that  while  discharging  its
responsibility  of  judicial  review,  executive  backed  actions   of   the
legislature, were sometimes invalidated, resulting in the belief,  that  the
judiciary  was  influencing  and  dominating  the  other  two   pillars   of
governance.  Illustratively, it was pointed out, that in  the  beginning  of
independent governance of the country, judicial review led  to  the  setting
aside of legislations, pertaining to land reforms and  zamindari  abolition.
This had led  to  the  adoption  of  inserting  legislations  in  the  Ninth
Schedule of the Constitution, so as to exclude  them  from  the  purview  of
judicial review.
43.   It was submitted, that the  first  manifestation  of  a  confrontation
between the judiciary and the other two wings of governance, were  indicated
in the observations recorded in State of Madras v.  V.G.  Row[40],  wherein,
as far back as in 1952, the Supreme Court  observed,  that  its  conclusions
were recorded, not out of any desire to a tilt at the legislative  authority
in a crusader’s spirit, but in discharge of the duty plainly laid  upon  the
Courts, by the Constitution.
44.   It was submitted, that the legislations placed in the  Ninth  Schedule
of the Constitution, from the original 13 items (relating  to  land  reforms
and  zamindari  abolition),  multiplied  at  a  brisk  rate,  and  currently
numbered about 284.  And many of them, had hardly anything to do  with  land
reforms.  It was contended, that the decision  rendered  by  this  Court  in
I.C. Golak Nath v. State of Punjab[41],  was  a  judicial  reaction  to  the
uninhibited  insertions  in  the  Ninth  Schedule,  leading  to   completely
eclipsing fundamental rights.  It therefore came to  be  held  in  the  I.C.
Golak Nath case41, that Parliament by  way  of  constitutional  amendment(s)
could not take away or abridge fundamental rights.
45.   To project his contention, pertaining to tension and friction  between
the judiciary and the other two wings of governance, it was submitted,  that
from 1950 to  1973,  there  was  virtually  no  attempt  by  the  political-
executive, to undermine or influence or dominate  over  the  judiciary.   It
was pointed out, that during the aforesaid  period,  when  Jawaharlal  Nehru
(upto 27th May, 1964), Gulzari Lal Nanda (upto 9th June, 1964), Lal  Bahadur
Shastri (upto 11th January,1966), Gulzari  Lal  Nanda  (upto  24th  January,
1966)  and  Indira  Gandhi  (upto  1972)  were  running  the  executive  and
political governance in India, in their capacity as Prime Minister, had  not
taken any steps to dominate  over  the  judiciary.   Thereafter,  two  facts
could not be digested by the  political-executive  leadership.   The  first,
the  abolition  of  the  Privy  Purses  by  an  executive  fiat,  which  was
invalidated by the Supreme Court in Madhavrao Scindia Bahadur  v.  Union  of
India[42].  And  the  second,  the  fundamental  rights  case,  namely,  the
Kesavananda Bharati case10, wherein the Supreme Court by a majority of  7:6,
had propounded the doctrine of “basic structure” of the Constitution,  which
limited the amending power of the  Parliament,  under  Article  368.   As  a
sequel to the above judgments, the executive  attempted  to  intimidate  the
judiciary, by the first supersession in  the  Supreme  Court  on  25.4.1973.
Thereafter, internal emergency was declared on 25.06.1975,  which  continued
till 21.03.1977. It was submitted, that during  the  emergency,  by  way  of
constitutional amendment(s), the power of  judicial  review  vested  in  the
higher judiciary, was sought to be undermined.  It was submitted,  that  the
intrusion during the emergency came to be remedied  when  the  Janata  Party
came to power on  22.03.1977,  through  the  43rd  and  44th  Constitutional
Amendments,  which  restored  judicial  review,  to  the  original  position
provided for by the Constituent Assembly.
46.   It was submitted, that in the recent past also, the  exercise  of  the
power of judicial review had been inconvenient for the  political-executive,
as it resulted in exposing a series of scams.   In  this  behalf,  reference
was made to two judgments rendered by this Court, i.e.,  Centre  for  Public
Interest Litigation v.  Union  of  India[43],  and  Manohar  Lal  Sharma  v.
Principal Secretary[44].  It was  submitted,  that  the  executive  and  the
legislature can never appreciate that the power of judicial review has  been
exercised by the higher judiciary, as  a  matter  of  public  trust.   As  a
sequel to the above two judgments, it was pointed out,  that  an  amount  of
approximately Rupees two lakh crores (Rs. 20,00,00,00,00,000/-)  was  gained
by the public exchequer, for just a few coal block  allocations  (for  which
reliance was placed on an article which had appeared in the  Indian  Express
dated 10.3.2015). And an additional amount of Rupees one lakh  ten  thousand
crores (Rs.11,00,00,00,00,000/-) was gained by  the  public  exchequer  from
the spectrum auction (for which reliance was placed on  an  article  in  the
Financial  Express  dated  25.03.2015).   It   was   submitted,   that   the
embarrassment faced  by  the  political-executive,  has  over  shadowed  the
monumental gains to the nation. It  was  contended,  that  the  Constitution
(99th Amendment) Act,  and  the  NJAC  Act,  were  truthfully  a  political-
executive device, to rein in the power of judicial  review,  to  avoid  such
discomfiture.
47.   It was also  contended,  that  while  adjudicating  upon  the  present
controversy, it was imperative for this Court, to  take  into  consideration
the existing socio-political conditions, the ground realities pertaining  to
the  awareness  of  the  civil  society,  and   the   relevant   surrounding
circumstances.  These  components,  according  to  learned   counsel,   were
described as relevant considerations, for a meaningful judicial  verdict  in
the V.G. Row case40.  Referring  to  Shashikant  Laxman  Kale  v.  Union  of
India[45], it was contended, that for determining the purpose or the  object
of the legislation, it  was  permissible  for  a  Court  to  look  into  the
circumstances which had prevailed at the time when the law was  passed,  and
events which had necessitated the passing of the legislation.  Referring  to
the judgment rendered by  this  Court,  in  Re:  the  Special  Courts  Bill,
1978[46], learned counsel placed emphatic reliance on the following:
“106. The greatest trauma of our times, for a developing country  of  urgent
yet tantalising imperatives, is the dismal, yet  die-hard,  poverty  of  the
masses and the democratic, yet graft-riven, way of life  of  power-wielders.
Together  they  blend  to   produce   gross   abuse   geared   to   personal
aggrandizement, suppression of exposure and a host of other horrendous,  yet
hidden, crimes  by  the  summit  executives,  pro  tem,  the  para-political
manipulators and the abetting bureaucrats. And the rule of  law  hangs  limp
or barks but never bites.  An  anonymous  poet  sardonically  projected  the
social dimension of this systemic deficiency:
                     The law locks up both man and woman
                  Who steals the goose from off the common,
                      But lets the greater felon loose
                    Who steals the common from the goose.
107. The impact of 'summit' crimes  in  the  Third  World  setting  is  more
terrible than the Watergate syndrome as perceptive  social  scientists  have
unmasked.  Corruption  and  repression-cousins  in  such   situations-hijack
developmental processes. And, in the long  run,  lagging  national  progress
means ebbing people's confidence in constitutional means to social  justice.
And  so,  to  track  down  and  give  short  shrift  to  these  heavy-weight
criminaloids who often mislead the people  by  public  moral  weight-lifting
and multipoint  manifestoes  is  an  urgent  legislative  mission  partially
undertaken by the Bill under discussion. To punish such  super-offenders  in
top positions, sealing off legalistic escape routes and dilatory  strategies
and bringing them to justice with  high  speed  and  early  finality,  is  a
desideratum voiced in vain by Commissions and Committees in the past and  is
a dimension of the dynamics of the Rule of Law.  This  Bill,  hopefully  but
partially, breaks new ground contrary to  people's  resigned  cynicism  that
all  high-powered  investigations,  reports  and  recommendations   end   in
legislative and judicative futility, that all these  valiant  exercises  are
but sound and fury signifying nothing,  that  'business  as  usual'  is  the
signature tune of public business, heretofore, here and hereafter.  So  this
social justice measure has  my  broad  assent  in  moral  principle  and  in
constitutional classification,  subject  to  the  serious  infirmities  from
which it suffers as the learned Chief Justice has tersely sketched.  Whether
this remedy will effectively cure the malady of  criminal  summitry  is  for
the future to tell.
108. All this serves as a backdrop. Let me unfold  in  fuller  argumentation
my thesis that the Bill, good so far as it goes, is bad so far  as  it  does
not go-saved though by a  pragmatic  exception  I  will  presently  explain.
Where the proposed law excludes the pre-and  post-emergency  crime-doers  in
the higher brackets and picks out only  'Emergency'  offenders,  its  benign
purpose perhaps becomes a crypto cover  up  of  like  criminals  before  and
after. An 'ephemeral' measure to  meet  a  perennial  menace  is  neither  a
logical  step  nor  national  fulfilment.  The  classification,  if  I   may
anticipate my conclusion, is on the brink of  constitutional  break-down  at
that point and becomes almost vulnerable to the attack of Article 14.
xxx              xxx              xxx
114.  The  crucial  test  is  'All  power  is  a  trust',  its  holders  are
'accountable for its exercise', for 'from the people, and  for  the  people,
all springs, and all must exist'. By this high and only  standard  the  Bill
must fail morally if it exempts non-Emergency  criminals  about  whom  prior
Commission Reports, now asleep in official pigeon holes,  bear  witness  and
future Commission Reports (who  knows?)  may,  in  time,  testify.  In  this
larger perspective, Emergency is not a substantial differentia and the  Bill
nearly recognises this by ante-dating the operation  to  February  27,  1975
when there was no 'Emergency'. Why ante-date  if  the  'emergency'  was  the
critical criterion?
xxx              xxx              xxx
117.  Let us take a close look at the 'Emergency', the  vices  it  bred  and
the nexus they have to speedier justice, substantial enough to  qualify  for
reasonable sub-classification. Information flowing from the proceedings  and
reports of a bunch of high-powered judicial commissions  shows  that  during
that hushed spell, many suffered shocking treatment. In  the  words  of  the
Preamble, civil liberties  were  withdrawn  to  a  great  extent,  important
fundamental rights of the people were suspended, strict  censorship  on  the
press was placed and judicial powers were curtailed to a large extent.
xxx              xxx              xxx
128.  Let us view the problem slightly differently. Even if liberty had  not
been curtailed,  press  not  gagged  or  writ  jurisdiction  not  cut  down,
criminal trials and  appeals  and  revisions  would  have  taken  their  own
interminable delays. It is the forensic delay that has to be axed  and  that
has little to do with the vices of the Emergency. Such crimes  were  exposed
by judicial  commissions  before,  involving  Chief  Ministers  and  Cabinet
Ministers at both levels and no criminal  action  followed  except  now  and
that of a select group. It was  lack  of  will-not  Emergency-that  was  the
villain of the  piece  in  non-prosecution  of  cases  revealed  by  several
Commissions like the Commission of Enquiry appointed by  the  Government  of
Orissa in 1967 (Mr. Justice Khanna), the Commission of Enquiry appointed  by
the Government of  J&K  in  1965  (Mr.  Justice  Rajagopala  Ayyangar),  the
Mudholkar Commission against 14 ex-United Front Ministers appointed  by  the
Government of Bihar in 1968 and the T.L.  Venkatarama  Aiyar  Commission  of
Inquiry appointed by the Government of Bihar, 1970-to mention but  some.  We
need  hardly  say  that  there  is  no  law  of  limitation   for   criminal
prosecutions. Somehow, a few manage to be above the law and the many  remain
below the law. How? – I hesitate to state.”

Last of  all,  reliance  was  placed  on  the  decision  of  this  Court  in
Subramanian Swamy v. Director, Central Bureau of Investigation[47],  wherein
this Court extensively  referred  to  the  conditions  regarding  corruption
which prevailed in the  country.   For  the  above  purpose,  it  took  into
consideration the  view  expressed  by  the  N.N.  Vohra  Committee  Report,
bringing out the nexus between the criminal syndicates and mafia.
48.   Reliance was, then placed on the efforts made by the executive on  the
death of the first Chief Justice of India  (after the  promulgation  of  the
Constitution), when Patanjali Sastri, J., who was  the  senior  most  Judge,
was sought to be overlooked.  Relying on recorded texts in this  behalf,  by
Granville Austin, George H. Gadbois Jr. and M.C. Chagla, it  was  submitted,
that all the six Judges, at that time, had  threatened  to  resign,  if  the
senior most Judge was overlooked for appointment as Chief Justice of India.
49.   Referring to the first occasion, when the convention  was  broken,  by
appointing A.N. Ray, J., as the Chief Justice of India,  it  was  submitted,
that the supersession led to public protest, including  speeches  by  former
Judges, former Attorneys General, legal luminaries and members of  the  Bar,
throughout  the  country.   M.  Hidayatullah,  CJ.,  in  a  public   speech,
complimented the three Judges, who  were  superseded,  for  having  resigned
from their office, immediately on the appointment  of  A.N.  Ray,  as  Chief
Justice of India. In the speech delivered by M. Hidayatullah, CJ.,  he  made
a reference about rumors being afloat, that  the  senior  most  Judge  after
him, namely, J.C. Shah, J., would not succeed him as the  Chief  Justice  of
India. And that, an outsider was being brought to the Supreme Court, as  its
Chief Justice. His speech highlighted the fact, that all except one  sitting
Judge  of  the  Supreme  Court  had  agreed  to  resign  in  the  event   of
supersession of J.C. Shah, J..  He had also  pointed  out,  in  his  speech,
that if the decision was taken by the  executive,  even  a  day  before  his
retirement, he too would join his colleagues in resigning from his  position
as the Chief Justice of India.   It  was  accordingly  submitted,  that  the
constitutional convention, that the senior most Judge of the  Supreme  Court
would be appointed as the Chief Justice of India, was truly  and  faithfully
recognized  as  an  impregnable  convention.   To  support   the   aforesaid
contention, it was also pointed out, that even  in  situations  wherein  the
senior most puisne Judge would have a very short tenure, the convention  had
remained unbroken, despite the inefficacy of making such  appointments.   In
this behalf, the Court’s attention was drawn to the  fact  that  J.C.  Shah,
CJ. (had a tenure of 35 days), K.N. Singh, CJ. (had a  tenure  of  18  days)
and S. Rajendra Babu, CJ. (had a tenure of 29 days).
50.   It was also the contention of the learned  senior  counsel,  that  the
executive is  an  important  litigant  and  stakeholder  before  the  higher
judiciary, and as such, the executive ought to have no role, whatsoever,  in
the matter of appointments/transfers of Judges to the higher judiciary.   In
this behalf, learned counsel  placed  reliance  on  a  number  of  judgments
rendered by this Court, wherein the participation of the  executive  in  the
higher judiciary, had been held to be unconstitutional,  in  the  matter  of
appointments of Judges and other Members of  tribunals,  vested  with  quasi
judicial functions.  It was submitted,  that  the  inclusion  of  the  Union
Minister in charge of Law and Justice in the NJAC, was  a  clear  breach  of
the judgments rendered by this Court.  Additionally,  it  was  pointed  out,
that two “eminent persons”, who were  to  be  essential  components  of  the
NJAC, were to be selected by a Committee, wherein the dominating  voice  was
that of the political leadership.  It was pointed out, that  in  the  three-
Member Committee authorised  to  nominate  “eminent  persons”  included  the
Prime Minister and the Leader of the Opposition in the  Lok  Sabha,  besides
the Chief Justice of India.  It was therefore submitted, that  in  the  six-
Member NJAC, three Members  would  have  political-executive  lineage.  This
aspect of the matter,  according  to  the  learned  counsel,  would  have  a
devastating affect. It would negate primacy of  the  higher  judiciary,  and
the same would result in undermining the “independence  of  the  judiciary”.
Based on the above foundation, learned senior counsel  raised  a  number  of
contentions.   Firstly,  it  was  submitted,  that  through   the   impugned
constitutional amendment and the NJAC Act, the constitutional convention  in
this country, that the senior most Judge  of  the  Supreme  Court  would  be
appointed as  the  Chief  Justice  of  India,  had  been  breached.  It  was
submitted,  that  the  above  convention  had  achieved  the  status  of   a
constitutional axiom –  a  constitutional  principle.  To  substantiate  the
above contention, it was submitted, that right from 26.01.1950,  the  senior
most puisne Judge of the Supreme Court has  always  been  appointed  as  the
Chief  Justice  of  India  except  on  two  occasions.  Firstly,  the  above
convention was breached, when A.N. Ray, J., was appointed as  Chief  Justice
of India on 25.4.1973, by superseding three  senior  most  Judges.   It  was
submitted, that the aforesaid supersession was made  on  the  day  following
the Supreme Court delivered the judgment in the Kesavananda Bharati  case10.
Secondly,  the  supersession  took  place  during  the  internal   emergency
declared by Prime Minister, Indira Gandhi.  At that juncture, M.H. Beg,  J.,
was appointed as Chief Justice of India on  29.1.1977,  by  superseding  his
senior H.R. Khanna, J..  It was contended, that the aforesaid two  instances
should be  considered  as  aberrations,  in  the  convention  pertaining  to
appointment of Chief Justice of India.
51.   Mr. Arvind P. Datar  also  assailed  the  constitutional  validity  of
Article 124C, introduced by the Constitution (99th Amendment) Act.   It  was
submitted,  that  the  Parliament  was  delegated  with  the  authority   to
“regulate the procedure for the appointment of the Chief  Justice  of  India
and other Judges of the Supreme Court, and  the  Chief  Justices  and  other
Judges of the High Courts”.  And the NJAC was  empowered  to  lay  down,  by
regulation, “the procedure of discharging its own functions, the  manner  of
selection of persons for appointment, and such  other  matters,  as  may  be
considered necessary by it”. It was the contention of the  learned  counsel,
that the delegation of power contemplated under Article  124C,  amounted  to
vesting the NJAC, with what was earlier vested with  the  Chief  Justice  of
India. In this behalf, reference was also made to Sections 11, 12 and 13  of
the NJAC Act.  The power to make rules, has been  vested  with  the  Central
Government under Section 11, and the power  to  make  regulations  has  been
entrusted to the NJAC  under  Section  12.   The  aforementioned  rules  and
regulations, as drawn by the Central Government/NJAC,  are  required  to  be
placed before the Parliament under Section  13,  and  only  thereafter,  the
rules and regulations were to be effective (or not to have  any  effect,  or
to have effect as modified).  It was submitted, that the entrustment of  the
procedure of appointment of Judges to the higher judiciary,  and  also,  the
action of assigning the  manner  in  which  the  NJAC  would  discharge  its
functions (of selecting Judges to the higher  judiciary),  with  either  the
executive or the legislature,  was  unthinkable,  if  “independence  of  the
judiciary” was to be maintained.   It  was  pointed  out,  that  the  intent
behind Article 124C, in  the  manner  it  had  been  framed,  stood  clearly
exposed, by the aforesaid provisions of the NJAC Act.
52.   Reference was also made to Section 12 of the NJAC Act,  to  highlight,
that the NJAC had  been  authorized  to  notify  in  the  Official  Gazette,
regulations  framed  by  it,  with  the  overriding  condition,   that   the
regulations so framed by the NJAC were to be consistent with the  provisions
of the NJAC Act, as also, the rules made thereunder (i.e., under Section  11
of the NJAC Act). Having so empowered the NJAC (under  Sections  11  and  12
referred to above), and  having  delineated  in  Section  12(2),  the  broad
outlines with reference to which the regulations could  be  framed,  it  was
submitted, that the power to delegate the  authority  to  frame  regulations
clearly stood  exhausted.  In  that,  the  Parliament  had  no  jurisdiction
thereafter, to interfere in the matter  of  framing  regulations.  In  fact,
according to the learned counsel, consequent upon  the  empowerment  of  the
NJAC to frame regulations, the Parliament was rendered functus  officio,  on
the issue of framing regulations. According to learned  counsel,  the  above
also established, the inference drawn in the foregoing paragraph.
53.   It was also the contention of  the  learned  counsel,  that  the  NJAC
constituted, by way of the  Constitution  (99th  Amendment)  Act,  would  be
sustainable, so long as it did not violate  the  “basic  structure”  of  the
Constitution.  It was emphasized, that one of  the  recognized  features  of
the “basic structure” of the Constitution  was,  the  “independence  of  the
judiciary”.  The procedure which the NJAC could adopt  for  discharging  its
functions, and the procedure it was  liable  to  follow  while  holding  its
meetings, and the ambit and scope with  reference  to  which  the  NJAC  was
authorized to frame its  regulations,  had  to  be  left  to  the  exclusive
independent  will  of  an  independent  NJAC.  That,  according  to  learned
counsel,  would  have  ensured  the  “independence  of  the  NJAC”.  It  was
accordingly contended, that Article 124C breached the “independence  of  the
judiciary”, and also, undermined the independence of the NJAC.
54.   The next contention advanced at the hands of the learned counsel,  was
with reference to clause (2) of Article 124A, whereby  judicial  review  was
barred, with reference to actions or proceedings of the NJAC, on the  ground
of the existence of a vacancy or defect in the  constitution  of  the  NJAC.
Learned counsel then invited this Court’s attention to the exclusion of  the
power  of  judicial  review,  contemplated  under  Articles  323A(2)(d)  and
323B(3)(d), wherein the power of judicial review was similarly excluded.  It
was submitted, that this Court  struck  down  a  similar  provision  in  the
aforesaid Articles, holding that the  same  were  violative  of  the  “basic
structure” of the Constitution.  In  this  behalf,  learned  counsel  placed
reliance on the decision of this Court in the Kihoto  Hollohan  case34,  and
referred to the following observations recorded therein:
“129. The unanimous opinion  according  to  the  majority  as  well  as  the
minority is that Paragraph 7 of the Tenth Schedule enacts  a  provision  for
complete exclusion of judicial review  including  the  jurisdiction  of  the
Supreme Court under Article 136 and of the High Courts  under  Articles  226
and 227 of the Constitution and, therefore, it makes in terms and in  effect
a change in Articles 136, 226 and 227 of  the  Constitution  which  attracts
the proviso  to  clause  (2)  of  Article  368  of  the  Constitution;  and,
therefore, ratification  by  the  specified  number  of  State  legislatures
before  the  Bill  was  presented  to  the  President  for  his  assent  was
necessary, in accordance  therewith.  The  majority  view  is  that  in  the
absence of such ratification by the State legislatures, it  is  Paragraph  7
alone of  the  Tenth  Schedule  which  is  unconstitutional;  and  it  being
severable from the remaining part of the Tenth Schedule, Paragraph  7  alone
is  liable  to  be  struck  down  rendering  the  Speakers’  decision  under
Paragraph 6 that [pic]of a judicial tribunal amenable to judicial review  by
the Supreme Court and the High Courts under Articles 136, 226 and  227.  The
minority opinion is that the effect of invalidity  of  Paragraph  7  of  the
Tenth Schedule  is  to  invalidate  the  entire  Constitution  (Fifty-second
Amendment)  Act,  1985  which  inserted  the  Tenth   Schedule   since   the
President’s assent to the Bill  without  prior  ratification  by  the  State
legislatures is non est. The minority view also is that Paragraph 7  is  not
severable from the remaining part of the Tenth Schedule and the Speaker  not
being  an  independent  adjudicatory   authority   for   this   purpose   as
contemplated by a basic feature of democracy,  the  remaining  part  of  the
Tenth Schedule is in excess of the amending  powers  being  violative  of  a
basic feature of the Constitution. In the minority  opinion,  we  have  held
that  the  entire  Constitution  (Fifty-second  Amendment)  Act,   1985   is
unconstitutional  and  an  abortive  attempt  to  make  the   constitutional
amendment indicated therein.”

Reliance was also placed on  the  following  conclusions  recorded  by  this
Court in Dr. Kashinath G. Jalmi v. The Speaker[48].
“43.  In Kihoto Hollohan there was no difference between  the  majority  and
minority opinions on the nature  of  finality  attaching  to  the  Speaker's
order of disqualification made under para 6 of the Tenth Schedule, and  also
that para 7 therein was unconstitutional in view of  the  non-compliance  of
the proviso to clause 2  of  Article  368  of  the  Constitution,  by  which
judicial review was sought to be excluded. The main difference  in  the  two
opinions was, that according to the majority opinion  this  defect  resulted
in the constitution standing amended from the inception  with  insertion  of
the Tenth Schedule minus para 7 therein, while  according  to  the  minority
the entire exercise of constitutional amendment was futile and  an  abortive
attempt  to  amend  the  constitution,  since  Para  7  was  not  severable.
According to the minority  view,  all  decisions  rendered  by  the  several
Speakers under the Tenth Schedule were, therefore, nullity and liable to  be
ignored. According to the majority view, para 7 of the Tenth Schedule  being
unconstitutional and severable, the Tenth Schedule minus para 7 was  validly
enacted and, therefore, the orders made  by  the  Speaker  under  the  Tenth
Schedule were not nullity but subject to judicial review. On  the  basis  of
the majority opinion, this Court has exercised the power of judicial  review
over the orders of disqualification made  by  the  speakers  from  the  very
inception of the Tenth Schedule, and the exercise  of  judicial  review  has
not been confined merely to the orders of disqualification made  after  12th
November, 1991 when the judgment in Kihoto Hollohan (1992 (1) SCC 309…)  was
rendered. Venkatachaliah, J. (as he then was)  wrote  the  majority  opinion
and, thereafter, on this premise, exercised the  power  of  judicial  review
over orders of disqualification made prior to 12.11.1991. The basic  fallacy
in the submission made on behalf of the respondents  that  para  7  must  be
treated as existing till 12th November, 1991 is  that  on  that  view  there
would be no power of judicial review against an  order  of  disqualification
made by the Speaker prior to 12th November, 1991 since  para  7  in  express
terms totally excludes judicial review.”

It was, therefore, the vehement contention  of  the  learned  counsel,  that
clause (2) of Article 124A should be struck down, as being violative of  the
“basic structure” of the Constitution.
55.   Mr. Fali S. Nariman, learned senior  counsel,  also  raised  a  purely
technical plea. It was his contention,  that  121st  Constitution  Amendment
Bill, now the Constitution (99th Amendment) Act, was introduced in  the  Lok
Sabha on 11th of August, 2014 and was passed by the Lok  Sabha  on  13th  of
August,  2014.  It  was  further  submitted,  that  the  121st  Constitution
Amendment Bill was  discussed  and  passed  by  Rajya  Sabha  on  14.8.2014.
Thereupon,  the  said  Amendment  Bill,  which  envisaged  a  constitutional
amendment, was sent to the State Legislatures for ratification.   Consequent
upon its having been ratified  by  16  State  Legislatures,  it  was  placed
before the  President  for  his  assent.   It  was  pointed  out,  that  the
President accorded his  assent  on  31.12.2014,  whereupon,  it  became  the
Constitution  (99th  Amendment)  Act.   Learned  counsel  then  invited  our
attention to Section 1 of  the  Constitution  (99th  Amendment)  Act,  which
reads as under:
“1(1) This Act may be called the Constitution (Ninety-ninth Amendment)  Act,
2014.
(2) It shall come into force on such date as the Central Government may,  by
notification in the Official Gazette, appoint.”

Based on the aforesaid provision, it was contended, that in spite of  having
received the assent of the President on 31.12.2014, the  Constitution  (99th
Amendment) Act, would not come into  force  automatically.   And  that,  the
same would come into force in terms of  the  mandate  contained  in  Section
1(2), - “… on such date as the Central Government may,  by  notification  in
the  Official  Gazette,  appoint.”   It  was  submitted,  that  the  Central
Government notified the Constitution (99th Amendment) Act,  in  the  Gazette
of India  Extraordinary  on  13.4.2015.   Based  on  the  aforesaid  factual
position, the Constitution  (99th  Amendment)  Act,  came  into  force  with
effect from 13.4.2015.
56.   In conjunction with the factual  position  noticed  in  the  foregoing
paragraph, learned counsel  pointed  out,  that  the  NJAC  Bill,  was  also
introduced in the Lok Sabha on 11.8.2014.  The Lok Sabha passed the Bill  on
13.8.2014, whereupon, it  was  passed  by  the  Rajya  Sabha  on  14.8.2014.
Thereafter,  the  NJAC  Bill  received  the  assent  of  the  President   on
31.12.2014, and became the NJAC Act.  It was contended, that  the  enactment
of the NJAC Act was based/founded on the Constitution (99th Amendment)  Act.
 It was submitted, that since the Constitution  (99th  Amendment)  Act,  was
brought into force on 13.4.2015, the consideration of the NJAC Bill and  the
passing of the NJAC Act prior to the coming into force of  the  Constitution
(99th Amendment) Act, would render it stillborn and therefore nugatory.  The
Court’s attention was also invited to the fact,  that  the  aforesaid  legal
infirmity, was noticed and raised during the  course  of  the  parliamentary
debate pertaining to  the  NJAC  Bill,  before  the  Rajya  Sabha.   Learned
counsel invited this  Court’s  attention  to  the  following  questions  and
answers, which are recorded on pages  442  to  533  with  reference  to  the
debates in the Rajya Sabha  on  13.8.2014,  and  at  pages  229  to  375  on
14.8.2014 (Volume 232 No.26 and 27), as under:
“that Mr. Sitaram Yechury, Member of  Parliament,  (Rajya  Sabha)  raised  a
constitutional objection (on August 13, 2014) to the NJAC Bill saying:
“…….till the Constitution Amendment (121st  Bill)  comes  into  effect,  the
Legislature, I would like to humbly submit,  does  not  have  the  right  to
enact a Bill for the creation of a Judicial  Commission  for  appointments.”
(page 488)
“……..I am only asking you to seriously consider we are creating a  situation
where this proposal for creation of a Judicial Appointments Commission  will
become ultra vires of the Indian Constitution because  our  right  to  bring
about a Bill to enact such a provision comes  only  after  the  Constitution
Amendment Bill becomes effective.” (page 489)
“……..Therefore, you please consider what I am saying  with  seriousness.   I
want also the law Minister to consider it.  Let it not be struck down  later
as ultra vires.  So, let us give it a proper consideration.” (Page-490)
- The Leader of the Opposition (Shri Ghulam Nabi Azad) then said:
“The leader of the opposition (Shri Ghulam Nabi Azad): Sir, I just  want  to
say that Mr. Yechury has given a totally different dimension to  the  entire
thing.  It is quite an eye opener for all of us that the entire  legislation
will become ultr vires.  So, my suggestion is that before my colleague,  Mr.
Anand Sharma, speaks, I would request one thing.  Of course, we  have  great
lawyers from all sides here but I think one of  the  oldest   luminaries  in
the legal profession is Mr. Parasaran.  Before we all  decide  what  to  do,
can we request him to throw light on what Mr. Yechury has said? (Page-490)
- Mr. K. Parasaran (Nominated Member) then gave his views saying:
Shri K. Parasarn (contd.)...Before ratification, if you  take  up  the  Bill
and pass the Bill, today, it  will  be  unconstitutional  and  ultra  vires.
Because the power to make enactment, as we see, is  only  in  the  Articles.
The Article 368 gives the power to ….
            xxx              xxx             xxx
Mr. Deputy Chairman: What I want to know is this.  You have  mentioned  that
there are two provisions.  Number one, if it  is  amended  in  a  particular
way, it can directly  go  to  the  President.   If  the  amendment  involves
Chapter IV, part 5, or Chapter V, etc., etc., it has to be ratified by  half
in the Assemblies.  Okay.  I accept both of  them.   But  do  any  of  these
objections object us from considering this Bill now?  That is my question.
Shri K. Parasaran: No.  We don’t have  the  legislative  competence.  (Page-
492)
- The Minister of Law and Justice then said:
“…..This Bill will become effective  after  ratification  but  the  separate
Bill is for guidance to the Legislatures as to how the entire structure  has
come into existence.  Therefore, it is not unconstitutional.   We  have  got
summary power under Article 246 read with Entries 77 and 78, which is not  a
limited power.  It is a plenary power, exhaustive  power.   This  Parliament
can pass any law with regard to composition and organization of the  Supreme
Court;  this  Parliament  can  pass  any  law  with  regard  to  High  Court
composition.  That is not a limited power. ……..” (Page-495)
Mr. Deputy Chairman: Yes, I will come ….(interruptions)….
Now, Mr. Minister, the point is that you yourself admit that only  after  50
per cent of the Assemblies have endorsed it by a Resolution  can  your  Bill
come into force, and after the President has given assent.   And  then,  you
are saying that the Bill was passed along with this only as a guideline,  so
that Members of the Assemblies know what you are going to do.
Shri Ravi Shankar Prasad: But it would become effective after assent.   That
is all.
Mr. Deputy Chairman: That’s what I am  saying.   It  will  become  effective
after six months.
Now, I would like to know  one  thing  from  Mr.  Parasaran.   Article  246,
according to him, (the Minister) gives  absolute  powers  to  Parliament  to
pass a legislation. Is  there  any  provision  in  the  Constitution,  which
prevents passing of such a  Bill  before  the  Constitutional  Amendment  is
endorsed by the President?  Is there any such provision?  …(interruptions)….
 I will come to you.  Yes, Mr. Parasaran. (Page-495)
- In response Mr. K. Parasaran then said:
“Shri K. Parasaran: Sir, I would explain this.  Now, we are  concerned  with
Article 124 and a legislation under  Article  246  read  with  the  relevant
entries in the Seventh Schedule, pointed out by  the  Hon.  Minister.   Now,
the Supreme Court has interpreted  Article  124.   We  cannot  pass  an  Act
contrary to that judgment and, therefore, the  need  for  amendment  to  the
constitution.  If  the  Constitution  is  not  amended,  then  we  lack  the
legislative competence.  There is no  good  of  going  to  Article  246  and
reading the entries.  Had we the legislative competence, under  Article  246
read with the entries…. (Emphasis supplied) page 495.
Mr. Deputy Chairman:  Then, how do you explain Article 246?
Shri K. Parasaran:  Suppose the Constitutional  Amendment  is  passed,  then
can this Bill be introduced and discussed  as  it  is?   As  a  hypothetical
case, if this Amendment Bill is not passed, can we introduce this  Bill  and
pass it?  We will not be able to do it.” (Emphasis supplied) (Page-496).”

57.   In other words, it was the contention of  the  learned  counsel,  that
the NJAC Bill was passed by both Houses of Parliament, when  Parliament  had
no power, authority or jurisdiction to consider such a Bill,  in  the  teeth
of Articles 124(2) and 217(1), as enacted in the original Constitution.   It
was  submitted,  that  the  passing  of  the  said  Bill,  was   in   itself
unconstitutional, ultra vires  and  void,  because  the  amended  provisions
contained in the Constitution (99th Amendment) Act, had not come into  play.
 It was submitted, that the passing by the Lok Sabha, as also, by the  Rajya
Sabha of the 121st Constitution Amendment  Bill  on  13/14.8.2014,  and  the
ratification thereof by 16 State Legislatures, as  also,  the  assent  given
thereto by the President on 31.12.2014, would not  bestow  validity  on  the
NJAC Act.   This,  for  the  simple  reason,  that  the  Constitution  (99th
Amendment) Act, was brought into force only  on  13.4.2015.   In  the  above
view of the matter,  according  to  the  learned  counsel,  till  13.4.2015,
Articles 124(2) and 217(1) of the Constitution of India were  liable  to  be
read, as they were originally enacted.  In the  aforesaid  context,  it  was
submitted, that the NJAC Act could not have been passed, till the  unamended
provisions of the Constitution were in force.  And that, the mere assent  of
the President to the NJAC Act  on  31.12.2014,  could  not  infuse  validity
thereon.
58.   In order to substantiate the  aforesaid  contention,  learned  counsel
placed reliance  on  A.K.  Roy  v.  Union  of  India[49],  and  invited  our
attention to the following:
“45   The argument arising out of the provisions  of  Article 368(2) may  be
considered first. It provides that when a Bill whereby the  Constitution  is
amended is passed by the requisite majority, it shall be  presented  to  the
President who shall  give  his  assent  to  the  Bill,  "and  thereupon  the
Constitution shall stand amended in accordance with the terms of the  Bill."
This provision shows that a constitutional amendment cannot have any  effect
unless the President gives his assent to it and secondly, that nothing  more
than the President's assent to an amendment duly passed  by  the  Parliament
is required,  in  order  that  the  Constitution  should  stand  amended  in
accordance with the terms of the Bill. It must follow  from  this  that  the
Constitution stood  amended  in  accordance  with  the  terms  of  the  44th
Amendment Act when the President gave his assent to that Act  on  April  30,
1979. We must then turn to that Act for seeing how and in  what  manner  the
Constitution stood thus amended. The 44th Amendment  Act  itself  prescribes
by Section 1(2) a pre-condition which must be satisfied before  any  of  its
provisions can come into force. That pre-condition is the  issuance  by  the
Central Government of a notification in  the  official  gazette,  appointing
the date from which the Act or any particular provision  thereof  will  come
into force, with power to appoint different dates for different  provisions.
Thus, according to the very  terms  of  the  44th  Amendment,  none  of  its
provisions can come into force  unless  and  until  the  Central  Government
issues a notification as contemplated by Section 1(2).
46.    There  is  no  internal  contradiction  between  the  provisions   of
Article 368(2) and  those  of  Section 1(2) of  the  44th   Amendment   Act.
Article 368(2) lays down a rule of general application as to the  date  from
which the Constitution would stand  amended  in  accordance  with  the  Bill
assented to by the President. Section 1(2) of the  Amendment  Act  specifies
the manner in which that Act or any of its provisions may  be  brought  into
force. The distinction is  between  the  Constitution  standing  amended  in
accordance with the terms of the Bill assented to by the President  and  the
date of the coming into force of the  Amendment  thus  introduced  into  the
Constitution.  For  determining  the  date  with  effect  from   which   the
Constitution stands amended in accordance with the terms of  the  Bill,  one
has to turn to the date on which the  President  gave,  or  was  obliged  to
give, his assent to the Amendment. For  determining  the  date  with  effect
from which the Constitution, as amended, came or will come into  force,  one
has to turn to the notification, if any, issued by  the  Central  Government
under Section 1(2) of the Amendment Act.
47.   The Amendment Act may provide that  the  amendment  introduced  by  it
shall come into force immediately upon the President giving  his  assent  to
the Bill or it may provide that the amendment shall come  into  force  on  a
future date. Indeed, no objection can  be  taken  to  the  constituent  body
itself appointing  a  specific  future  date  with  effect  from  which  the
Amendment Act will come into force; and if that be so, different  dates  can
be appointed by it for bringing  into  force  different  provisions  of  the
Amendment Act. The point of the matter is  that  the  Constitution  standing
amended in accordance with the terms of the  Bill  and  the  amendment  thus
introduced into the Constitution coming into force are two distinct  things.
Just as a law duly passed by the legislature can have no  effect  unless  it
comes or is brought into force, similarly, an amendment of the  Constitution
can have no effect unless it comes or is brought into force. The  fact  that
the constituent body may itself specify a future date or dates  with  effect
from which the Amendment Act or any of its provisions will come  into  force
shows  that  there  is   no   antithesis   between   Article 368(2) of   the
Constitution and Section 1(2) of the 44th Amendment Act. The  expression  of
legislative or constituent will as regards the date of  enforcement  of  the
law or Constitution  is  an  integral  part  thereof.  That  is  why  it  is
difficult to accept the submission that, contrary to the expression  of  the
constituent will, the amendments introduced by the 44th Amendment  Act  came
into force on April 30, 1979 when the President  gave  his  assent  to  that
Act. The true position  is  that  the  amendments  introduced  by  the  44th
Amendment Act did not become a part of the Constitution on April  30,  1979.
They will acquire that status only when the Central Government  brings  them
into force by issuing a notification  under  Section 1(2) of  the  Amendment
Act.”

59.   It was also the contention of Mr. Fali S.  Nariman,  that  just  as  a
constitutional amendment was liable to be declared as  ultra  vires,  if  it
violated and/or abrogated, the  “core”  or  the  “basic  structure”  of  the
Constitution; even  a  simple  legislative  enactment,  which  violated  the
“basic structure”  of  the  Constitution,  was  liable  to  be  declared  as
unconstitutional.  For the instant proposition, learned counsel referred  to
the Madras Bar Association case35, and  placed  reliance  on  the  following
observations recorded therein:
“109. Even though we have declined to  accept  the  contention  advanced  on
behalf of the Petitioners, premised on  the  "basic  structure"  theory,  we
feel it is still essential for us, to deal with the submission  advanced  on
behalf of the respondents in response. We may first  record  the  contention
advanced on behalf of the respondents. It was contended, that a  legislation
(not being an amendment to the Constitution), enacted in consonance  of  the
provisions of the Constitution,  on  a  subject  within  the  realm  of  the
legislature concerned, cannot be assailed on the  ground  that  it  violates
the "basic structure" of the Constitution. For the present controversy,  the
respondents   had   placed   reliance   on    Articles 245 and 246 of    the
Constitution, as also, on entries 77 to 79, 82 to  84,  95  and  97  of  the
Union List of the Seventh Schedule, and  on  entries  11-A  and  46  of  the
Concurrent List of the Seventh Schedule.  Based  thereon  it  was  asserted,
that Parliament was competent to  enact  the  NTT  Act.  For  examining  the
instant contention, let us presume it is so. Having accepted the above,  our
consideration is as  follows.  The  Constitution  regulates  the  manner  of
governance  in  substantially  minute  detail.  It   is   the   fountainhead
distributing power, for such governance. The Constitution  vests  the  power
of legislation at the Centre, with the Lok Sabha and the  Rajya  Sabha,  and
in the States with the State Legislative Assemblies  (and  in  some  States,
the State Legislative Councils, as well). The instant legislative  power  is
regulated by "Part XI" of the Constitution. The submission advanced  at  the
hands of the learned counsel for the respondents,  insofar  as  the  instant
aspect of the matter is concerned, is premised on  the  assertion  that  the
NTT Act has been enacted strictly in consonance with the procedure  depicted
in "Part XI" of the Constitution. It is also the contention of  the  learned
counsel for  the  respondents,  that  the  said  power  has  been  exercised
strictly  in  consonance  with  the  subject  on  which  the  Parliament  is
authorized  to  legislate.  Whilst  dealing  with  the  instant   submission
advanced at the hands of the learned counsel for the respondents,  all  that
needs to be stated is, that the legislative power conferred under "Part  XI"
of the Constitution has one overall exception, which  undoubtedly  is,  that
the "basic structure" of the Constitution, cannot be  infringed,  no  matter
what.  On  the  instant  aspect  some   relevant   judgments   rendered   by
Constitutional Benches of this Court, have been cited hereinabove. It  seems
to us, that there is a fine difference in what the petitioners contend,  and
what the respondents seek to project. The submission advanced at  the  hands
of the learned counsel for the petitioners  does  not  pertain  to  lack  of
jurisdiction or  inappropriate  exercise  of  jurisdiction.  The  submission
advanced at the hands of the learned counsel for the  petitioners  pointedly
is, that it is impermissible to legislate in a manner as would  violate  the
"basic structure" of the Constitution. This Court has repeatedly  held  that
an amendment to the provisions of the Constitution would not be  sustainable
if it violated the "basic structure" of the Constitution,  even  though  the
amendment had been carried  out  by  following  the  procedure  contemplated
under "Part XI" of the Constitution. This leads to  the  determination  that
the "basic structure" is inviolable. In our view, the same  would  apply  to
all other legislations (other than amendments to the Constitution) as  well,
even though the legislation had been enacted  by  following  the  prescribed
procedure, and was within  the  domain  of  the  enacting  legislature,  any
infringement  to  the  "basic  structure"  would   be   unacceptable.   Such
submissions  advanced  at  the  hands  of  the  learned  counsel   for   the
respondents are, therefore, liable to be  disallowed,  and  are  accordingly
declined.”

60.    Mr.  Arvind  P.  Datar,  learned   senior   counsel,   assailed   the
constitutional validity of various provisions of the NJAC Act, by  advancing
the same submissions, as  were  relied  upon  by  him  while  assailing  the
constitutional validity of Articles 124A, 124B and  124C.   For  reasons  of
brevity, the aforestated submissions noticed with  reference  to  individual
provisions of the NJAC Act are not being repeated again.
61.   A challenge was also raised, to the different provisions of  the  NJAC
Act.  First and foremost, a challenge was raised to the manner of  selection
of the Chief Justice of India.   Section  5(1)  of  the  NJAC  Act,  it  was
submitted, provides that the NJAC would recommend the senior most  Judge  of
the Supreme Court, for being appointed as Chief Justice  of  India,  subject
to the condition, that he was considered “fit” to hold the office.   It  was
contended, that the procedure to  regulate  the  appointment  of  the  Chief
Justice of India, was to be determined by Parliament, by law  under  Article
124C.  It was contended, that the term “fit”, expressed in Section 5 of  the
NJAC Act, had not been elaborately described.  And as  such,  fitness  would
have to be determined on the subjective satisfaction of the Members  of  the
NJAC.  It was submitted, that even though the learned Attorney  General  had
expressed, during the course of hearing, that  fitness  meant  “…mental  and
physical  fitness  alone…”,  it  was  always  open  to  the  Parliament   to
purposefully define fitness, in a manner as would sub-serve the will of  the
executive. It was submitted, that even an ordinance could be issued  without
the necessity,  of  following  the  procedure,  of  enacting  law.   It  was
asserted, that the criterion of fitness could be defined and redefined.   It
was submitted, that it was a  constitutional  convention,  that  the  senior
most Judge of the Supreme Court would always be appointed as  Chief  Justice
of India.  And that, the aforesaid convention had  remained  unbroken,  even
though in some cases the tenure of the appointee, had  been  short,  and  as
such, may not have enured to the advantage, of the judicial organization  as
a whole.  Experience had shown, according to learned counsel, that  adhering
to the practice of appointing the senior most Judge as the Chief Justice  of
India, had resulted in  institutional  harmony  amongst  Judges,  which  was
extremely important for the health of  the  judiciary,  and  also,  for  the
“independence of the judiciary”.  It was submitted, that it  would  be  just
and appropriate, at the present juncture, to understand  the  width  of  the
power, so as to prevent any likelihood of its  misuse  in  future.   It  was
submitted, that various  ways  and  means  could  be  devised  to  supersede
Judges, and also, to bring in favourites. Past experience  had  shown,  that
the executive had abused its authority, when  it  departed  from  the  above
rule in April 1973, by superseding J.M. Shelat, J., the  senior  most  Judge
and even the next two Judges in the order of seniority  after  him,  namely,
K.S. Hegde and A.N. Grover, and appointed the fourth senior most  Judge  A.N
Ray, as  the  Chief  Justice  of  India.   Again  in  January  1977  on  the
retirement of A.N.  Ray,  CJ.,  the  senior  most  Judge  H.R.  Khanna,  was
ignored, and the next senior most Judge, M.H.  Beg,  was  appointed  as  the
Chief Justice of India.  Such control in the hands of  the  executive  would
cause immense inroads, in the decision making  process.   And  could  result
in, Judges trying to placate and appease the executive, for  personal  gains
and rewards.
62.   The submission noticed above was sought to be illustrated through  the
following instance.  It was pointed  out,  that  it  would  be  genuine  and
legitimate for the Parliament to enact, that a person  would  be  considered
fit for appointment as Chief Justice of India, only  if  he  had  a  minimum
remaining tenure of at least two years.  Such  an  enactment  would  have  a
devastating  effect,  even  though  it  would  appear  to   be   innocuously
legitimate.  It was contended, that out of the 41 Chief  Justices  of  India
appointed till date, only 12 Chief Justices of India, had a tenure  of  more
than two years.  Such action, at the hands of the Parliament, was  bound  to
cause discontentment to those, who had a legitimate expectation to hold  the
office of Chief Justice of India. It was submitted, that  similar  instances
can be multiplied with  dimensional  alterations  by  prescribing  different
parameters. It was submitted, that the Parliament should  never  be  allowed
the right to create uncertainty, in the matter of selection and  appointment
of the Chief Justice of India, because the office of the  Chief  Justice  of
India  was  pivotal,  as  it  shouldered  extremely  serious   and   onerous
responsibilities.  The exercise of the above authority, it was pointed  out,
could/would seriously affect the “independence of the  judiciary”.   In  the
above context,  reference  was  also  made,  to  the  opinion  expressed  by
renowned persons,  having  vast  experience  in  the  judicial  institution,
effectively bringing out the veracity of the contention advanced.  Reference
in this regard was made to the observations of M.C.  Chagla,  in  his  book,
“Roses in December – An Autobiography”, wherein he examined  the  impact  of
supersession on Judges, who by virtue of the existing  convention,  were  in
line to be the Chief Justice of India, but were overlooked by  preferring  a
junior.  Reference was also made to the opinion expressed  by  H.R.  Khanna,
J., (in his book –  “Neither  Roses  Nor  Thorns”).   Finally,  the  Court’s
attention  was  drawn  to  the  view   expressed   by   H.M.   Seervai   (in
“Constitutional Law of India – A Critical Commentary’).  It  was  submitted,
that leaving the issue of determination of fitness with the Parliament,  was
liable to fan the ambitions of Judges, and would make them  loyal  to  those
who could satisfy their ambitions.  It was therefore the contention  of  the
learned counsel, that Section 5, which created an ambiguity  in  the  matter
of appointment of the Chief  Justice  of  India,  and  could  be  abused  to
imperil “independence of the  judiciary”,  was  liable  to  be  declared  as
unconstitutional.
63.    It  was  also  the  contention  of  the  learned  counsel   for   the
petitioners, that on the issue of selection and  appointment  of  Judges  to
the higher judiciary,  the  NJAC  was  liable  to  take  into  consideration
ability, merit and suitability (as may be  specified  by  regulations).   It
was  submitted,  that  the  above  criteria  could   be   provided   through
regulations framed under Section 12(2)(a), (b) and (c). It was pointed  out,
that the regulations framed for  determining  the  suitability  of  a  Judge
(with reference  to  ability  and  merit),  would  be  synonymous  with  the
conditions of eligibility.  Inasmuch as, a candidate  who  did  not  satisfy
the standards expressed in the regulations,  would  also  not  satisfy,  the
prescribed conditions of appointment. It was asserted, that it  would  be  a
misnomer to treat the same to be a matter of mere  procedure.  Thus  viewed,
it was contended, that the provisions of the NJAC Act, which laid  down  (or
provided for the laying down) substantive conditions  for  appointment,  was
clearly beyond the purview of Article 124C, inasmuch  as,  under  the  above
provision, Parliament alone had been authorised  by  law,  to  regulate  the
procedure for appointment of Judges of the Supreme Court, or to empower  the
NJAC to lay  the  same  down  by  regulations,  inter  alia  the  manner  of
selection of persons for appointment, as Judges of the  Supreme  Court.   It
was submitted, that the NJAC Act, especially in terms of Section  5(2),  had
travelled  far  beyond  the  jurisdictional  parameters  contemplated  under
Article 124C.
64.   It was also contended, that while recommending names  for  appointment
of a Judge to the Supreme Court, seniority  in  the  cadre  of  Judges,  was
liable to be taken into consideration, in addition to ability and merit.  It
was submitted, that the instant  mandate  contained  in  the  first  proviso
under  Section  5(2)  of  the  NJAC  Act,  clearly  breached  the   “federal
structure”   of   governance,   which    undoubtedly    required    regional
representation  in  the  Supreme  Court.  Since  the   “federal   structure”
contemplated in the Constitution was also  one  of  the  “basic  structures”
envisioned by the framers of the Constitution, the same could not have  been
overlooked.
65.   Besides the above, the Court's attention was  invited  to  the  second
proviso, under Section 5(2) of the NJAC Act, which mandates  that  the  NJAC
would not make a favourable recommendation,  if  any  two  Members  thereof,
opposed the candidature of an individual.  It was  contended,  that  placing
the power of veto, in the hands of  any  two  Members  of  the  NJAC,  would
violate the  recommendatory  power  expressed  in  Article  124B.   In  this
behalf, it was contended, that the second proviso under Section 5(2),  would
enable two eminent persons (– lay persons, if  the  submission  advanced  by
the learned Attorney General is to  be  accepted)  to  defeat   a  unanimous
opinion of the Chief Justice of India and the two senior most Judges of  the
Supreme Court.  And thereby negate the primacy vested in the  judiciary,  in
the matter of appointment of Judges to the higher judiciary.
66.   It was submitted, that the above power of veto exercisable by two  lay
persons, or alternatively one lay person,  in  conjunction  with  the  Union
Minister in charge of Law and Justice, would cause a serious breach  in  the
“independence of the judiciary”.  Most importantly, it was  contended,  that
neither the impugned constitutional amendment, nor  the  provisions  of  the
NJAC Act, provide for any quorum for holding the meetings of the NJAC.   And
as such (quite contrary to the contentions advanced  at  the  hands  of  the
learned Attorney General), it was contended, that  a  meeting  of  the  NJAC
could not be held, without the presence of the all Members of the NJAC.   In
order to support his above contention, he illustratively placed reliance  on
the  Constitution  (122nd  Amendment)  Bill,  2014   [brought   before   the
Parliament, by the same  ruling  political  party,  which  had  successfully
amended the Constitution  by  tabling  the  Constitution  (121st  Amendment)
Bill, 2014]. The objective sought to be achieved  through  the  Constitution
(122nd Amendment) Bill, 2014, was to  insert  Article  279A.   The  proposed
Article 279A intended to create the Goods and Services  Tax  Council.   Sub-
Article (7) of Article 279A  postulated,  that  “…  One-half  of  the  total
number of Members of the Goods and Services Tax Council…”  would  constitute
the quorum for its meetings.  And furthermore, that  “…  Every  decision  of
the Goods and Services Tax Council  shall  be  taken  at  a  meeting,  by  a
majority of not less  than  three-fourths  of  the  weighted  votes  of  the
members present and voting …”.  Having laid down the  above  parameters,  in
the Bill which followed the  Bill  that  led  to  the  promulgation  of  the
Constitution (99th Amendment) Act, it was submitted, that  the  omission  of
providing for a quorum for the functioning of the NJAC, and the omission  to
quantify the strength required for valid decision making, was not  innocent.
And that, it vitiated the provision itself.


III.  RESPONDENTS’ RESPONSE, ON MERITS:
67.   The learned Attorney General  commenced  his  response  on  merits  by
asserting, that there was no provision in the Constitution of India,  either
when  it  was  originally  drafted,  or  at  any  stage  thereafter,   which
contemplated, that Judges would appoint Judges to the higher judiciary.   It
was accordingly asserted, that the  appointment  of  Judges  by  Judges  was
foreign to the provisions of the Constitution.  It  was  pointed  out,  that
there  were  certain  political  upheavals,   which   had   undermined   the
“independence of the  judiciary”,  including  executive  overreach,  in  the
matter of appointment and  transfer  of  Judges  of  the  higher  judiciary,
starting with supersession of senior Judges of the Supreme  Court  in  1973,
followed by, the mass transfer of Judges of the higher judiciary during  the
emergency in 1976, and thereafter,  the  second  supersession  of  a  senior
Judge of the Supreme Court in 1977.  It was  acknowledged,  that  there  was
continuous interference by the executive, in the matter  of  appointment  of
Judges to the higher judiciary during the 1980’s.  Despite  thereof,  whilst
adjudicating upon the controversy in  the  First  Judges  case  rendered  in
1981, this  Court,  it  was  pointed  out,  had  remained  unimpressed,  and
reiterated the primacy of the executive, in the  matter  of  appointment  of
Judges to the higher judiciary.
68.   It was  pointed  out,  that  the  issue  for  reconsideration  of  the
decision rendered in the First Judges case arose in Subhash Sharma v.  Union
of India4, wherein the questions considered were,  whether  the  opinion  of
the Chief Justice of India, in regard to the appointment of  Judges  to  the
Supreme Court and High Courts, as well as, transfer of  High  Court  Judges,
was entitled to primacy, and also, whether the matter  of  fixation  of  the
judge-strength in High Courts, was justiciable?  It was asserted,  that  the
aforesaid two questions were placed  for  determination  by  a  Constitution
Bench of nine Judges (keeping in view the fact that the First  Judges  case,
was decided by a seven-Judge Bench).  It was  asserted,  that  the  decision
rendered by this Court in the Second  Judges  case,  was  on  the  suo  motu
exercise of jurisdiction by this Court, wherein this Court examined  matters
far beyond the scope of the reference order.  It  was  contended,  that  the
Second Judges case was  rendered,  without  the  participation  of  all  the
stakeholders, inasmuch as, the controversy  was  raised  at  the  behest  of
practicing advocates and associations of lawyers, and  there  was  no  other
stakeholder involved during its hearing.
69.   It was asserted, that the judiciary had no jurisdiction to  assume  to
itself, the role of appointment of Judges to the higher judiciary.   It  was
pointed  out,  that  it  is  the  Parliament  alone,  which  represents  the
citizenry  and  the  people  of  this  country,  and   has   the   exclusive
jurisdiction to legislate on matters.  Accordingly, it  was  asserted,  that
the decisions in the Second and  Third  Judges  cases,  must  be  viewed  as
legislation without any jurisdictional authority.
70.   It was pointed out, that the issue relating to the  amendment  of  the
Constitution, pertaining to the subject of  appointment  of  Judges  to  the
higher  judiciary,  through  a  Judicial  Commission  commenced   with   the
Constitution (67th Amendment) Bill, 1990.  The Bill however lapsed.  On  the
same subject, the Constitution (82nd Amendment) Bill, 1997  was  introduced.
The 1997 Bill, however, could not be  passed.   This  was  followed  by  the
Constitution (98th Amendment) Bill,  2003  which  was  introduced  when  the
present Government was in power.  In 2003 itself, a National Commission  was
set up to review the working of the Constitution,  followed  by  the  Second
Administrative Reforms Commission in 2007.  Interspersed with the  aforesaid
events, were a number of Law Commission’s  Reports.  The  intention  of  the
Parliament, since the introduction of the Bill in 1990,  it  was  submitted,
was aimed at setting up a National Judicial Commission, for appointment  and
transfer of Judges of the higher judiciary. It  was  pointed  out,  that  no
positive achievement was made in the above  direction,  for  well  over  two
decades.   Mr.  Justice  M.N.  Venkatachaliah,  who  headed   the   National
Commission to review the working of the Constitution, had  also  recommended
a five-Member National Judicial Commission,  whereby,  a  wide  consultative
process was sought to be introduced, in the  selection  and  appointment  of
Judges.  It was submitted, that all along recommendations were made,  for  a
participatory involvement of the executive, as well  as  the  judiciary,  in
the matter of appointment of Judges to the higher judiciary.   It  was  also
pointed out, that the Constitution (98th Amendment) Bill,  2003  proposed  a
seven-Member National Judicial Commission.  Thereafter,  the  Administrative
Reforms Commission, proposed a eight-Member  National  Judicial  Commission,
to be headed by the Vice-President, and comprising of  the  Prime  Minister,
the Speaker, the Chief Justice of India, the Law Minister  and  two  leaders
of the Opposition. The aforesaid recommendation, was made  by  a  Commission
headed  by  Veerappa  Moily,  the  then  Union  Law  Minister.  The  present
Constitution (99th Amendment)  Act,  2014,  whereby  Article  124  has  been
amended and Articles 124A to 124C have been inserted  in  the  Constitution,
contemplates a six-Member National Judicial Commission.  It  was  submitted,
that  there  was  no  justification  in  finding  anything  wrong,  in   the
composition of the NJAC. To  point  out  the  safeguards  against  entry  of
undesirable persons into the higher judiciary, it was emphasized, that  only
if five of the six Members of the NJAC recommended a candidate, he could  be
appointed to the higher judiciary.  It was submitted, that  the  aforestated
safeguards, postulated in the amended  provisions,  would  not  only  ensure
transparency, but would also render a broad based consideration.
71.    As  a  counter,  to  the  submissions  advanced  on  behalf  of   the
petitioners, it was asserted, that  the  Parliament’s  power  to  amend  the
Constitution was plenary, subject to only one restriction, namely, that  the
Parliament could not alter the “basic structure” of the  Constitution.   And
as such, a constitutional amendment must be presumed to be  constitutionally
valid (unless shown otherwise). For the instant  proposition,  reliance  was
placed on Charanjit Lal Chowdhury v. Union of India[50], Ram Krishna  Dalmia
v.   Justice   S.R.   Tendolkar[51],   the   Kesavananda   Bharati   case10,
(specifically the view expressed by K.S. Hegde and A.K. Mukherjea, JJ.),  B.
Banerjee v. Anita Pan[52], and Government of  Andhra  Pradesh  v.  P.  Laxmi
Devi[53].
72.   It was asserted, that the Parliament was best equipped to  assess  the
needs of the people, and  to  deal  with  the  changing  times.   For  this,
reliance was placed on Mohd. Hanif Quareshi v. State of Bihar[54], State  of
West Bengal v. Anwar Ali Sarkar[55].  It was contended, that while  enacting
the Constitution (99th Amendment) Act, and the NJAC Act, the Parliament  had
discharged a responsibility, which it owed to the citizens of this  country,
by providing for a meaningful process for the selection and  appointment  of
Judges to the higher judiciary.
73.   Referring to the decisions rendered by this Court in  the  Second  and
Third Judges cases, it was asserted, that the way he saw it, there was  only
one  decipherable  difference  introduced  in  the  process   of   selection
contemplated through the NJAC. Under the system  introduced,  the  judiciary
could not “insist” on the appointment of an individual.  But  the  judiciary
continued  to  retain  the  veto  power,  to  stop  the  appointment  of  an
individual  considered  unworthy  of  appointment.  According  to  him,  the
nomination of a candidate, for appointment to the  higher  judiciary,  under
the above judgments, could also not fructify, if  any  two  members  of  the
collegium, expressed an opinion against the  nominated  candidate.   It  was
pointed out, that the above position  had  been  retained  in  the  impugned
provisions. According to the learned Attorney General, the  only  difference
in the impugned provisions was, that the right of the judiciary to  “insist”
on the appointment of a nominee, was no longer available to  the  judiciary.
Under the collegium system, a recommendation made  for  appointment  to  the
higher judiciary, could be returned by the  executive  for  reconsideration.
However, if the recommendation was reiterated, the executive had no  choice,
but to appoint the recommended  nominee.   It  was  pointed  out,  that  the
instant right to “insist” on the  appointment  of  a  Judge,  had  now  been
vested in the NJAC.   It  was  vehemently  contended,  that  the  denial  to
“insist”, on the appointment of  a  particular  nominee,  would  surely  not
undermine the “independence of the judiciary”.   The  “independence  of  the
judiciary”, according  to  the  learned  Attorney  General,  would  be  well
preserved, if the right  to  “reject”  a  nominee  was  preserved  with  the
judiciary, which had been done.
74.   Based on the aforesaid submission, it was asserted, that  the  process
initiated by the Parliament in 1990 (for the introduction of  a  Commission,
for appointment of Judges to the higher judiciary),  had  taken  twenty-four
years to fructify.  The composition  of  the  NJAC  introduced  through  the
Constitution  (99th  Amendment)  Act,  according  to  him,  meets  with  all
constitutional requirements, as the same is neither in breach  of  the  rule
of “separation of powers”, nor that of “the independence of the  judiciary”.
 It  was  contended,  that  the  impugned  provisions  preserve  the  “basic
structure” of the Constitution.
75.   It was submitted, that the assailed  provisions  had  only  introduced
rightful checks and balances, which are inherent components of an  effective
constitutional arrangement.  The learned  Attorney  General  also  cautioned
this Court, by asserting, that it was  neither  within  the  domain  of  the
petitioners, nor of this Court, to suggest  an  alternative  combination  of
Members for the NJAC, or an alternative procedure, which would regulate  its
functioning  more  effectively.  Insofar  as  the  present   petitions   are
concerned, it was asserted, that the challenge raised  therein,  could  only
be accepted, if it was shown,  that  the  Parliament  while  exercising  its
plenary power to amend the Constitution, had violated the “basic  structure”
of the Constitution.
76.   It was submitted, that it was not the case of any of  the  petitioners
before this Court, either that the Parliament was  not  competent  to  amend
Article 124, or that the procedure prescribed  therefor  under  Article  368
had not been followed. In the above view of the matter,  it  was  submitted,
that  the  only  scope  for  examination  with  reference  to  the   present
constitutional  amendment  was,  whether  while   making   the   aforestated
constitutional amendment, the Parliament had breached,  any  of  the  “basic
features” of the Constitution.
77(i).      For demonstrating the validity of  the  impugned  constitutional
amendment, reliance in the first instance  was  placed  on  the  Kesavananda
Bharati case10. Reference was made to the observations of S.M.  Sikri,  CJ.,
to contend, that the extent of the amending  power  under  Article  368  was
duly adverted to. Reading the preamble to the Constitution, it  was  pointed
out, that the fundamental importance expressed therein was, the  freedom  of
the individual, and the inalienability of  economic,  social  and  political
justice, as also, the importance  of  the  Directive  Principles  (paragraph
282).  In  this  behalf,  it  was  also  submitted,  that  the  “fundamental
features” of the Constitution, as for instance,  secularism,  democracy  and
the freedom of the individual  would  always  subsist  in  a  welfare  State
(paragraph 283). Leading to the conclusion,  that  even  fundamental  rights
could be amended in public interest, subject to  the  overriding  condition,
that the same could not be completely abrogated (paragraph  287).   In  this
behalf, it was also pointed out, that the wisdom of the Parliament to  amend
the Constitution  could  not  be  the  subject  matter  of  judicial  review
(paragraph 288), leading to the overall conclusion, that by the  process  of
amendment, it was open to the Parliament to adjust  fundamental  rights,  in
order to secure  the  accomplishment  of  the  Directive  Principles,  while
maintaining the freedom and dignity of every citizen (paragraph 289).   Thus
viewed, it was felt, that the rightful legal exposition would be, that  even
though  every  provision  of  the  Constitution  could   be   amended,   the
contemplated  amendment  should  ensure,  that  the  “basic  foundation  and
structure”  of  the  Constitution  remained  intact.   In  this  behalf,  an
illustrative reference was made  to  the  features,  which  constituted  the
“basic structure” of the Constitution.  According to  the  learned  Attorney
General, they included, the supremacy of the  Constitution,  the  republican
and  democratic  form  of  Government,  the   secular   character   of   the
Constitution, the  “separation  of  powers”  between  the  legislature,  the
executive and the judiciary, and the federal character of  the  Constitution
(paragraph 292).  In addition to the above,  it  was  asserted,  that  India
having signed the Universal  Declaration  of  Human  Rights,  had  committed
itself to retaining such of the fundamental rights, as were incorporated  in
the above declaration (paragraph 299). In the above view, according  to  the
Attorney General, the expression  “amendment  of  this  Constitution”  would
restrain the Parliament, from abrogating the fundamental rights  absolutely,
or from completely changing the “fundamental features” of the  Constitution,
so as to destroy its identity.  And that, within the above  limitation,  the
Parliament could amend every Article of the  Constitution  (paragraph  475).
It was insisted, that the impugned provisions had not breached  any  of  the
above limitations.
(ii)  Reference was then made  to  the  common  opinion  expressed  by  J.M.
Shelat and A.N. Grover, JJ., (in the Kesavananda Bharati case10) to  assert,
that one  of  the  limitations  with  reference  to  the  amendment  to  the
Constitution was, that it could not be amended to such an extent,  as  would
denude the Constitution of its identity (paragraph 537).  It was  submitted,
that the power  to  amend,  could  not  result  in  the  abrogation  of  the
Constitution, or lead to the framing of a new Constitution, or to  alter  or
change the essential elements of  the  constitutional  structure  (paragraph
539).  It was pointed out, that it was not proper, to give a narrow  meaning
to the power vested in the Parliament to amend the Constitution, and at  the
same time, to give it such a wide meaning, so  as  to  enable  the  amending
body, to change the structure and identity of  the  Constitution  (paragraph
546).  With reference to the power of judicial  review,  it  was  contended,
that there was ample evidence in the Constitution itself, to  indicate  that
a system of “checks and balances” was provided for,  so  that  none  of  the
pillars of governance  would  become  so  predominant,  as  to  disable  the
others, from exercising and discharging the  functions  entrusted  to  them.
It was submitted, that judicial review, provided expressly through  Articles
32 and 226, was  an  incident  of  the  aforestated  system  of  checks  and
balances  (paragraph  577).   Based  on  the  historical   background,   the
preamble,  the  entire  scheme  of  the  Constitution,  and  other  relevant
provisions thereof, including Article 368, it was submitted  that  it  could
be inferred, that the supremacy of  the  Constitution,  the  republican  and
democratic form of Government, sovereignty of the country, the  secular  and
federal character of the Constitution, the  demarcation  of  powers  between
the legislature, the  executive  and  the  judiciary,  the  dignity  of  the
individual secured through the fundamental rights, and the mandate to  build
a welfare State (contained in Parts III and  IV),  and  the  unity  and  the
integrity of the nation, could be regarded as the “basic  elements”  of  the
constitutional structure (paragraph 582).  It was also asserted, that  as  a
society grows, its requirements change, and  accordingly,  the  Constitution
and the  laws  have  to  be  changed,  to  suit  the  emerging  needs.   And
accordingly, the necessity to  amend  the  Constitution,  to  adapt  to  the
changing needs, arises.  Likewise,  in  order  to  implement  the  Directive
Principles, it could be necessary to abridge some of the fundamental  rights
vested in the citizens.  The power to achieve the above objective needed,  a
broad and liberal interpretation of Article 368.  Having  so  held,  it  was
concluded, that even the fundamental  rights  could  be  amended  (paragraph
634).  Reference was made to  the  fact,  that  the  founding  fathers  were
aware, that in a changing world,  there  would  be  nothing  permanent,  and
therefore, they vested the power of  amendment  in  the  Parliament  through
Article 368, so as to keep the  Constitution  in  tune  with,  the  changing
concepts of politics, economics and social ideas,  and  to  so  reshape  the
Constitution, as would meet the requirements of the  time  (paragraph  637).
With reference to the above, it was contended, that the Parliament  did  not
have  the  power  to  abrogate  or  emasculate  the  “basic   elements”   or
“fundamental features” of the  Constitution,  such  as  the  sovereignty  of
India, the democratic character of our polity, the  unity  of  the  country,
and the essential  elements  of  the  individual  freedoms  secured  to  the
citizens. Despite the above  limitations,  it  was  pointed  out,  that  the
amending power under Article 368 was wide enough, to amend every Article  of
the  Constitution,  so  as  to  reshape  the  Constitution  to  fulfill  the
obligations imposed on the State (paragraph 666). And  accordingly,  it  was
pointed out, that while recording  conclusions,  this  Court  had  observed,
that the power to amend the Constitution under Article 368  was  very  wide,
yet did  not  include  the  power  to  destroy,  or  emasculate  the  “basic
elements” or the  “fundamental  features”  of  the  Constitution  (paragraph
744).
(iii).      Reference was then made to the observations of H.R.  Khanna,  J.
(in the Kesavananda Bharati case10).  It was pointed out, that from 1950  to
1967 till this Court rendered the judgment in the I.C.  Golak  Nath  case41,
the accepted position was, that the Parliament had the power to  amend  Part
III of the Constitution, so as to  take  away  or  abridge  the  fundamental
rights.   Having  noticed  the  fact,  that  no  attempt  was  made  by  the
Parliament to take away or abridge the fundamental rights, relating  to  the
liberty of a person, and the freedom of expression, it  was  recorded,  that
even in future it  could  not  be  done.   Accordingly,  with  reference  to
Article 368, it was sought to be concluded,  that  the  Parliament  had  the
power to amend  Part  III  of  the  Constitution,  as  long  as  the  “basic
structure” of the  Constitution  was  retained  (paragraph  1421).   If  the
“basic structure” of the original Constitution  was  retained,  inasmuch  as
had the original Constitution continued to subsist, even though some of  its
provisions were changed, the power of amendment would be considered to  have
been legitimately  exercised  (paragraph  1430).  And  therefore,  the  true
effect of Article 368 would be, that the Constitution did not vest with  the
Parliament, the power or authority for drafting a new and radically  changed
Constitution, with a different structure  and  framework  (paragraph  1433).
Accordingly, subject to the retention of the “basic structure or  framework”
of the Constitution, the power vested  with  the  Parliament  to  amend  the
Constitution was treated as plenary, and would include  the  power  to  add,
alter or repeal different Articles  of  the  Constitution,  including  those
relating to fundamental rights.  All the above  measures  were  included  in
the Parliament’s power of amendment, and the denial  of  such  a  broad  and
comprehensive power, would introduce rigidity in the Constitution, as  would
break the Constitution itself (paragraph 1434). As such, it was  held,  that
the amending power conferred by Article 368,  would  include  the  power  to
amend the fundamental rights, contained in  Part  III  of  the  Constitution
(paragraph 1435).  In this behalf, it was asserted, that the issue,  whether
the amendment introduced would (or would not) be  an  improvement  over  the
prevailing position, was not justiciable.   It  was  asserted,  whether  the
amendment would be an improvement or not, was for the  Parliament  alone  to
determine.  And Courts, could not substitute the wisdom of the  legislature,
by their own foresight, prudence and understanding (paragraph 1436). It  was
asserted, that the amending power of the Parliament must contain  the  right
to enact  legislative  provisions,  for  experiment  and  trial,  so  as  to
eventually achieve the  best  results  (paragraph  1437).  In  the  ultimate
analysis, it was held, that the amendment of the  Constitution  had  a  wide
and broad connotation, and would embrace within itself, the total repeal  of
some of the Articles, or their substitution by new Articles, which  may  not
be consistent, or in conformity with other  Articles.   And  a  Court  while
judging the validity of an amendment, could only  concern  itself  with  the
question, as to whether  the  constitutional  requirements  for  making  the
amendment had been  satisfied?   And  accordingly,  an  amendment,  made  in
consonance with the procedure prescribed, could not be struck down,  on  the
ground that it was a change for the worst (paragraph 1442). While  examining
the question, whether the right to property could be included in the  “basic
structure or framework” of the Constitution, the answer rendered was in  the
negative.  It was held, that in exercising the  power  of  judicial  review,
Courts could not be oblivious of the  practical  needs  of  the  Government.
And that, the power of amendment could  be  exercised  even  for  trial  and
error, inasmuch as opportunity had to be allowed for vindicating  reasonable
belief  by  experience  (paragraph  1535).   It  was  contended,   that   no
generation had a monopoly to wisdom, nor  the  right  to  place  fetters  on
future generations, nor to mould the machinery  of  Government,  keeping  in
mind eternal good.  The possibility, that the  power  of  amendment  may  be
abused, furnished no ground for denial of its existence.  According  to  the
Attorney General, it was therefore  not  correct  to  assume,  that  if  the
Parliament was held entitled to amend  Part  III  of  the  Constitution,  it
would automatically and necessarily result in abrogation of the  fundamental
rights.  Whilst concluding, that the right to property did  not  pertain  to
the “basic structure or framework” of the Constitution, it  was  held,  that
power of amendment under Article 368 did not include the power  to  abrogate
the Constitution, or to alter the “basic  structure  or  framework”  of  the
Constitution. Despite having so concluded, it was held, that no part of  the
fundamental rights  could  claim  immunity,  from  the  power  of  amendment
(paragraph 1537).
78.   Reference was then made to the judgments rendered  by  this  Court  in
Indira Nehru Gandhi v. Raj Narain[56], Waman Rao v. Union of India[57],  and
the M. Nagaraj case36,  to  contend,  that  the  “basic  structure”  of  the
Constitution was to be determined,  on  the  basis  of  the  features  which
existed in the text of the original enactment of the  Constitution,  on  the
date of its coming into force.  It  was  therefore  pointed  out,  that  the
subsequent  amendments  to  the  Constitution,  could  not  be  taken   into
consideration, to determine the “basic features” of the Constitution.
79.   Having laid down the  aforestated  foundation,  the  learned  Attorney
General submitted, that that reference could only be made  to  Articles  124
and 217, as they originally existed, when the Constitution was  promulgated.
If the original provisions were to be taken  into  consideration,  according
to the learned Attorney  General,  it  would  be  apparent  that  the  above
Articles, expressed that the right to make appointments  of  Judges  to  the
higher judiciary, being limited only to a  “consultative”  participation  of
the judiciary, was in the determinative domain  of  the  executive.  It  was
pointed out, that on the subject of appointment  of  Judges  to  the  higher
judiciary, the primacy of the Chief Justice of India, through the  collegium
process, was an innovation of the judiciary itself  (in  the  Second  Judges
case).  The above primacy, was alien to the provisions of the  Constitution,
as originally enacted.  And as such, the amendment to Article 124,  and  the
insertion of Articles 124A to 124C therein, could not  be  examined  on  the
touchstone of material, which was in stark contrast with the  plain  reading
of Articles  124  and  217  (as  they  were  originally  enacted).   It  was
accordingly asserted, that the present challenge to the  Constitution  (99th
Amendment) Act, would not fall within the defined parameters of  the  “basic
structure” concept, elaborated extensively by him (as has been  recorded  by
us, above).  The prayers made by the petitioners on the instant ground  were
therefore,  according  to  the  learned  Attorney  General,  liable  to   be
rejected.
80.   Having traveled thus far, it was pointed out, that  it  was  important
to understand the true purport and effect of the term “independence  of  the
judiciary”.  In this behalf, in the first instance,  the  Court’s  attention
was invited to, the First Judges case, wherein reference  was  made  to  the
opinion expressed by E.S. Venkataramiah, J. (as he then was), who had  taken
the view, that it was difficult to hold, that merely because  the  power  of
appointment was with the executive,  the  “independence  of  the  judiciary”
would be compromised.  In stating so,  it  was  emphasized,  that  the  true
principle was, that after such appointment, the  executive  should  have  no
scope, to interfere with the  work  of  a  Judge  (paragraph  1033).   Based
thereon, it was asserted, that the independence of a Judge would  not  stand
compromised, if after his appointment, the role of the  executive,  to  deal
with him, is totally excluded.  Reference  was  then  made  to  the  opinion
expressed by P.N. Bhagwati, J. (as he then was) (in the same  judgment),  to
the effect, that the concept of “independence of  the  judiciary”,  was  not
limited only to independence  from  executive  pressure/influence,  but  was
relatable to many other pressures and prejudices.  And in so  recording,  it
was held, that “independence of the judiciary” included fearlessness of  the
other power centres, economic or  political,  and  freedom  from  prejudices
acquired and nourished by the class to which the Judges belonged  (paragraph
1037).   Based  thereon,  it  was  asserted,  that  “independence   of   the
judiciary”, included independence from the  influence  of  other  Judges  as
well.  And as such, it was concluded, that the composition of the  NJAC  was
such, as would ensure the  independence  of  the  Judges  appointed  to  the
higher judiciary, as contemplated in the First Judges case.
81.   In conjunction with the issue  of  “independence  of  the  judiciary”,
which flows out of the concept of “separation of  powers”,  it  was  pointed
out, that the scheme of the Constitution envisaged a system  of  checks  and
balances. Inasmuch as, each organ of  governance  while  being  allowed  the
freedom to discharge the duties assigned to it, was subjected  to  controls,
at the hands of one of the other  organs,  or  both  of  the  other  organs.
Illustratively,  it  was  sought  to  be  contended,  that   all   executive
authority, is subject to scrutiny through judicial review (at the  hands  of
the judiciary).  Likewise, legislation enacted by  the  Parliament,  or  the
State legislatures, is also subject to judicial review,  (at  the  hands  of
the judiciary).  Even though, the executive and  the  legislature  have  the
freedom  to  function  and  discharge  their  individual   responsibilities,
without interference by the other organ(s) of governance, yet the  judiciary
has been vested with the responsibility to  ensure,  that  the  exercise  of
executive and legislative functions, is in consonance with  law.   Likewise,
it was submitted, that in the matter of appointment of Judges, Articles  124
and 217 provided for executive control,  under  the  scheme  of  checks  and
balances.   It  was  submitted,  that  the  instant  scheme  of  checks  and
balances, was done away with, by the Second and Third Judges cases,  in  the
matter of appointment of Judges to the higher judiciary.  It  was  asserted,
that  the  position  of  checks  and  balances  has  been  restored  by  the
Constitution (99th Amendment) Act, by reducing the role  of  the  executive,
from the position which existed at the  commencement  of  the  Constitution.
Referring to the decisions in the Kesavananada Bharati  case10,  the  Indira
Nehru Gandhi case56, the Sankalchand Himatlal Sheth case5,  Asif  Hameed  v.
State  of  Jammu  and  Kashmir[58],  State  of  Bihar  v.  Bihar  Distillery
Limited[59], and Bhim Singh v. Union of  India13,  it  was  submitted,  that
this Court had recognized, that the concept  of  checks  and  balances,  was
inherent in the scheme of the  Constitution.   And  that,  even  though  the
legislature, the executive and  the  judiciary  were  required  to  function
within their own  spheres  demarcated  through  different  Articles  of  the
Constitution, yet their attributes could never be in absolute terms. It  was
submitted, that each wing of governance had to be accountable, and till  the
principle of accountability was preserved, the principle of  “separation  of
powers” would not be  achievable.  It  was  therefore  contended,  that  the
concept of “independence of the  judiciary”,  could  not  be  gauged  as  an
absolute end, overlooking the checks  and  balances,  provided  for  in  the
scheme of the Constitution.
82.    Having  so  asserted,  it  was  contended,  that  in  the  matter  of
appointment of Judges to  the  higher  judiciary,  the  most  important  and
significant feature was, that no unworthy or doubtful appointment should  go
through,  even  though  at  times,  the  candidature  of  a  seemingly  good
candidate, may not  be  accepted.   It  was  asserted,  that  the  NJAC  had
provided for a complete protection, in the  sense  noticed  hereinabove,  by
providing in the procedure of appointment, that a  negative  view  expressed
by any of the two Members of the NJAC, would result in the rejection of  the
concerned candidate.  Therefore, merely two Members of the  NJAC,  would  be
sufficient to veto a proposal  for  appointment.   It  was  submitted,  that
since three Members of the NJAC were Judges  of  the  Supreme  Court,  their
participation  in  the  NJAC  would  ensure,  that  “independence   of   the
judiciary” remained completely safeguarded and secured.   It  was  therefore
contended, that not only the Constitution (99th  Amendment)  Act,  but  also
the NJAC Act fully satisfied the independence  criterion,  postulated  as  a
“basic structure” of the Constitution.
83.   In order to reiterate  the  above  position,  it  was  asserted,  that
primacy in the matter of appointment of Judges to the higher judiciary,  was
not contemplated  in  the  Constitution,  as  originally  framed.   In  this
behalf, reference was made to Articles 124  and  217.   And  in  conjunction
therewith, adverting to the debates  on  the  subject,  by  Members  of  the
Constituent Assembly.   Thereupon,  it  was  asserted,  that  the  issue  of
primacy of the Chief Justice, based on a decision by a collegium of  Judges,
was a judicial innovation, which  required  reconsideration.   Moreover,  it
was submitted, that the Second and Third Judges cases, were founded  on  the
interpretation of  Articles  of  the  Constitution,  which  had  since  been
amended, and as such, the very basis of the Second and Third  Judges  cases,
no longer existed. Therefore, the  legal  position  declared  in  the  above
judgments, could not constitute the basis, of the  contentions  advanced  at
the hands of the petitioners.  Furthermore, even if the  ratio  recorded  by
this Court in the Second and Third Judges cases, was still to be taken  into
consideration, conclusions (5), (6) and (7) recorded by J.S. Verma, J.  (who
had transcripted the majority view), show that the primacy of the  judiciary
was to ensure, that no appointment could be made to  the  higher  judiciary,
unless it had the approval of the collegium.  It  was  submitted,  that  the
instant  aspect,  which  constituted  the  functional  basis  for   ensuring
“independence  of  the  judiciary”,  had  been  preserved  in  the  impugned
constitutional amendment, and the NJAC Act. It  was  accordingly  contended,
that if the right to insist on the appointment of a  candidate  proposed  by
the judiciary, was taken away, from the Chief Justice of India (based  on  a
decision of a collegium of Judges),  the  same  would  not  result,  in  the
emasculation of the “basic structure” of the Constitution.  In other  words,
the same would not violate the “essential and fundamental features”  of  the
Constitution, nor in the least, the “independence of the judiciary”.
84.   Based on the above submissions, the learned Attorney  General  invited
the  Court’s  attention  to  the  primary   contention   advanced   by   the
petitioners, namely, that even if all the three Judges of the Supreme  Court
who are now ex officio Members  of  the  NJAC,  collectively  recommended  a
nominee, such recommendation could be annulled, by the non-Judge Members  of
the NJAC. Learned Attorney General submitted, that the above contention  was
limited to the right to “insist” on an appointment.  And that, the right  to
“insist” did not flow from the conclusions recorded in the Second and  Third
Judges cases. And further, that the same cannot, by itself, be taken  as  an
incident to establish a breach of the “independence of the judiciary”.
85.   Insofar as the Second and Third Judges cases  are  concerned,  it  was
submitted, that the same may have been the need of the hour, on  account  of
the fact that in 1976,  sixteen  Judges  were  transferred  (from  the  High
Courts in which they were  functioning),  to  other  High  Courts.   In  the
Sankalchand Himatlal Sheth case5, one of the transferred  Judges  challenged
his transfer, inter alia, on the ground, that  his  non-consensual  transfer
was outside the purview of Article 222, as the same would  adversely  affect
the “independence of the  judiciary”.   Irrespective  of  the  determination
rendered, on the challenge raised in the Sankalchand Himatlal  Sheth  case5,
it was pointed out, the very same question came to  be  re-agitated  in  the
First Judges case.  It was held by the majority, while interpreting  Article
222, that the consent of the Judge being transferred, need not be  obtained.
  It  was  also  pointed  out,  that  ever  since  the  inception   of   the
Constitution, the office of the Chief Justice of India, was occupied by  the
senior most Judge of the Supreme Court.  The above  principle  was  departed
from in April 1973, as the next senior most Judge –  J.M.  Shelat,  was  not
elevated to the office of the Chief Justice of India.   Even  the  next  two
senior most Judges, after him -  K.S.  Hegde  and  A.N.  Grover,  were  also
ignored.  The instant supersession by  appointing  the  fourth  senior  most
Judge – A.N. Ray, as the Chief Justice of India, was seen  as  a  threat  to
the  “independence  of  the  judiciary”.  Again  in  January  1977,  on  the
retirement of A.N. Ray, CJ., the senior most Judge immediately next  to  him
– H.R. Khanna, was ignored and the second senior most Judge – M.H. Beg,  was
appointed, as the Chief Justice of India.   In  the  above  background,  the
action of the executive, came  to  be  portrayed  as  a  subversion  of  the
“independence of the judiciary”.  It was in the above background, that  this
Court rendered the Second and Third Judges cases, but the implementation  of
the manner of appointment of Judges to the higher judiciary,  in  consonance
therewith, had been subject  to,  overwhelming  and  all  around  criticism,
including being adversely commented upon by J.S. Verma, CJ., the  author  of
the majority view in the Second Judges case, after his retirement.  In  this
behalf, the Court’s attention was invited  to  his  observations,  extracted
hereunder:
“My 1993 Judgment, which holds the field, was very  much  misunderstood  and
misused.  It was in this context, that  I  said  that  the  working  of  the
judgment, now, for some time, is raising serious questions, which cannot  be
called unreasonable.  Therefore, some kind  of  re-think  is  required.   My
Judgment says the appointment  process  of  High  Court  and  Supreme  Court
Judges  is  basically  a  joint  or  participatory  exercise,  between   the
Executive and the Judiciary, both taking part in it.”

It was therefore contended, that in the changed scenario, this  Court  ought
to have, at its own, introduced measures to negate the  accusations  leveled
against the prevailing system,  of  appointment  of  Judges  to  the  higher
judiciary.  Since no such remedial measures were adopted  by  the  judiciary
of its own,  the  legislature  had  brought  about  the  Constitution  (99th
Amendment) Act, supplemented by the NJAC Act, to broad base the  process  of
selection and appointment, of Judges to the higher  judiciary,  to  make  it
transparent, and to render the participants accountable.
86.   Having dealt  with  the  constitutional  aspect  of  the  matter,  the
learned Attorney General invited the Court’s attention,  to  the  manner  in
which judicial appointments were being made in fifteen  countries.   It  was
submitted, that in nine countries Judges were  appointed  either  through  a
Judicial Appointment Commission (Kenya, Pakistan, South  Africa  and  U.K.),
or Committee (Israel), or Councils (France, Italy, Nigeria and  Sri  Lanka).
In four countries, Judges were appointed directly by  the  Governor  General
(Australia, Canada and New Zealand), or the President (Bangladesh).  It  was
submitted, that  in  Germany  appointment  of  Judges  was  made  through  a
multistage  process  of  nomination  by  the  Minister   of   Justice,   and
confirmation by Parliamentary Committees,  whereupon,  the  final  order  of
appointment of the concerned individual, is issued by the President. In  the
United States of  America,  Judges  were  appointed  through  a  process  of
nomination by the  President,  and  confirmation  by  the  Senate.   It  was
submitted, that  in  all  the  fifteen  countries  referred  to  above,  the
executive was the final determinative/appointing authority.  Insofar as  the
appointments       made       by       the       Judicial       Appointments
Commissions/Committees/Councils (referred to above) were concerned,  out  of
nine countries with Commissions, in two  countries  (South  Africa  and  Sri
Lanka) the executive had overwhelming majority, in four  countries  (France,
Israel, Kenya and U.K.) there was a balanced representation of  stakeholders
including the executive, in three countries (Italy,  Nigeria  and  Pakistan)
the number of Judges was in a  majority.   In  the  five  countries  without
Commissions/  Committees/  Councils   (Canada,   Australia,   New   Zealand,
Bangladesh and the United States of America), the decision was taken by  the
executive, without any formal process of consultation  with  the  judiciary.
It was pointed out, that in Germany, the appointment process  was  conducted
by the Parliament, and later confirmed by  the  President.  It  was  pointed
out, that the judiciary in all the countries referred to above, was  totally
independent.  Based on the above submissions, it  was  contended,  that  the
manner of selection and appointment of Judges, could not be  linked  to  the
concept of “independence of the judiciary”.   It  was  submitted,  that  the
judicial functioning  in  the  countries  referred  to  above,  having  been
accepted as more than satisfactory, there is no reason, that the  system  of
appointment introduced in India, would be adversely impacted by  a  singular
representative of the executive in the NJAC.   It  was  therefore  asserted,
that the submissions advanced at the hands  of  the  petitioners,  were  not
acceptable, even with  reference  to  the  experience  of  other  countries,
governed  through  a  constitutional  framework  (some  of  them,   of   the
Westminster Model).
87.   It was further asserted, that the absence of the absolute majority  of
Judges in the NJAC, could not lead to  the  inference,  that  the  same  was
violative of the “basic structure” of the Constitution, so as  to  conclude,
that it would impinge upon the  “independence  of  the  judiciary”.  It  was
asserted, that the representation of the judiciary in the NJAC,  was  larger
than that of the other two organs of the governance, namely,  the  executive
and  the  legislature.   In  any  case,  given  the  representation  of  the
judiciary in the NJAC, it was fully competent, to stall the  appointment  of
a candidate to the higher judiciary, who  was  considered  by  the  judicial
representatives, as unsuitable.  Any two, of the  three  representatives  of
the judiciary, were sufficient to veto any appointment supported by  others.

88.   It  was  further  submitted,  that  the  NJAC  was  broad  based  with
representatives from the judiciary,  the  executive  and  the  “two  eminent
persons”,  would  not  fall  in  the  category  of  jurists,  eminent  legal
academicians, or eminent lawyers.  It was contended, that the  intention  to
include “eminent persons”, who had no legal background was to introduce,  in
the process of selection and appointment of Judges, lay persons in the  same
manner, as has been provided for in the  Judicial  Appointments  Commission,
in the United Kingdom.
89.   It was also the contention of the learned Attorney General, that  this
would  not  be  the  first  occasion,  when  such  an  exercise   has   been
contemplated by parliamentary legislation.  The Court’s attention was  drawn
to the Consumer Protection  Act,  1986,  wherein  the  highest  adjudicatory
authority is, the National Consumer Disputes Redressal Commission.   It  was
pointed out, that the above  Redressal  Commission,  comprised  of  Members,
with and without a judicial  background.   The  President  of  the  National
Consumer Disputes Redressal Commission has to be a person, who  has  been  a
Judge of the Supreme Court.   Illustratively,  it  was  contended,  where  a
matter is being adjudicated  upon  by  a  three-Member  Bench,  two  of  the
Members may not be having any judicial background.  These  two  non-judicial
Members, could overrule the view expressed by  a  person,  who  had  been  a
former Judge in the higher judiciary. It was submitted, that  situations  of
the above nature, do sometimes take  place.  Yet,  such  a  composition  for
adjudicatory functioning, where the Members with a judicial  background  are
in  a  minority,  is  legally  and  constitutionally  valid.   If   judicial
independence cannot be held to be compromised in  the  above  situation,  it
was asserted, that it was difficult to understand  how  the  same  could  be
considered to be compromised in a situation, wherein the NJAC has three  out
of its six Members, belonging to the judicial fraternity.
90.   It was sought to be suggested, that the primacy of the  judiciary,  in
the matter of appointment of Judges to the higher judiciary,  could  not  be
treated  as  a  part  of  the  “basic  structure”   of   the   Constitution.
Furthermore, the lack of absolute majority of  Judges  in  the  NJAC,  would
also  not  tantamount  to  the  constitutional  amendment   being   rendered
violative of the “basic structure”.  In the above view  of  the  matter,  it
was asserted, that the submissions advanced at  the  hands  of  the  learned
counsel representing the petitioners, on the  aspect  of  violation  of  the
“basic structure” of the Constitution, by undermining the  “independence  of
the judiciary”, were liable to be rejected.
91.   With reference to the inclusion of two “eminent persons”, in the  six-
Member NJAC,  it  was  submitted,  that  the  general  public  was  the  key
stakeholder,  in  the  adjudicatory  process.  And   accordingly,   it   was
imperative to ensure their participation  in  the  selection/appointment  of
Judges to the higher judiciary.   Their  participation,  it  was  submitted,
would ensure sufficient diversity, essential for rightful  decision  making.
It was submitted, that in the model of  the  commission  suggested  by  M.N.
Venkatachaliah, CJ., the participation of one eminent person  was  provided.
He was to be nominated by the President,  in  consultation  with  the  Chief
Justice  of  India.   In  the  2003  Bill,  which  was  placed  before   the
Parliament, the proposed Judicial Commission  was  to  include  one  eminent
person, to be nominated by the executive.  The 2013 Bill, which was  drafted
by  the  previous  political  dispensation  –  the  U.P.A.  Government,  the
Judicial Commission proposed,  was  to  have  two  eminent  persons,  to  be
selected by the Prime Minister, the Chief Justice of India  and  the  Leader
of the Opposition in the Lok Sabha. The 2014 Bill, which was drafted by  the
present  political  dispensation  –  the  N.D.A.  Government,  included  two
eminent persons, to be selected  in  just  about  the  same  manner  as  was
contemplated under the 2013 Bill. The  variation  being,  that  one  of  the
eminent persons was required to belong  to  the  Scheduled  Castes,  or  the
Scheduled Tribes, or  Other  Backward  Classes,  or  Minorities,  or  Women,
thereby fulfilling the obvious social obligation.  It  was  submitted,  that
their participation in the deliberations, for selection  of  Judges  to  the
higher judiciary, could not be described  as  adversarial  to  the  judicial
community.  Their participation would make the process of appointment,  more
broad based.
92.   While responding to the submissions, advanced  at  the  hands  of  the
learned counsel for the petitioners, to the  effect  that  the  Constitution
(99th Amendment) Act, did not provide any guidelines,  reflecting  upon  the
eligibility of the “eminent persons”, to be nominated to the  NJAC,  and  as
such, was liable to  be  struck  down,  it  was  submitted,  that  the  term
“eminent person” was in no way vague.  It meant – a person who had  achieved
distinction in the field of his expertise. Reference was also  made  to  the
debates  of  the  Constituent  Assembly,  while  dealing   with   the   term
“distinguished jurist”, contained in Article 124(3),  it  was  pointed  out,
that  the  term  “distinguished  person”  was  not  vague.  In  the  present
situation, it was submitted, that since  the  selection  and  nomination  of
“eminent  persons”,  was  to  be  in  the  hands  of   high   constitutional
functionaries (no less than the Prime Minister, the Chief Justice  of  India
and the Leader of the Opposition in  the  Lok  Sabha),  it  was  natural  to
assume, that the person(s) nominated, would be chosen, keeping in  mind  the
obligation and the responsibility,  that  was  required  to  be  discharged.
Reliance in this behalf, was  placed  on  the  Centre  for  Public  Interest
Litigation case43, to assert, that it was sufficient to assume, that such  a
high profile committee, as the one in question, would  exercise  its  powers
objectively, and in a fair and reasonable manner.  Based on  the  above,  it
was contended, that it was  well  settled,  that  mere  conferment  of  wide
discretionary powers, would not vitiate the provision itself.
93.   Referring to the required qualities  of  a  Judge  recognized  in  the
Indian context, as were enumerated in the “Bangalore Principles of  Judicial
Conduct”, and thereupon accepted the world over, as  revised  at  the  Round
Table Meeting of Chief Justices held at The Hague, in November 2002, it  was
submitted, that the two “eminent persons” would be most  suited,  to  assess
such matters, with reference to the  nominees  under  consideration.  Whilst
the primary responsibility of  the  Members  from  the  judiciary  would  be
principally  relatable  to,  ascertaining  the  judicial   acumen   of   the
candidates concerned, the responsibility  of  the  executive  would  be,  to
determine the character and integrity of  the  candidate,  and  the  inputs,
whether the candidate possessed the values,  expected  of  a  Judge  of  the
higher judiciary, would be that of “eminent persons” in  the  NJAC.  It  was
therefore asserted, that the two “eminent persons” would  be  “lay  persons”
having no connection with the  judiciary,  or  even  to  the  profession  of
advocacy, perhaps individuals who may not  have  any  law  related  academic
qualifications. It was submitted, that the instant broad  based  composition
of the NJAC, was bound to be more suitable, than the  prevailing  system  of
appointment  of  Judges.   Relying  upon  the  R.  Gandhi  case38,  it   was
submitted, that it would not be proper to make appointments, by vesting  the
process of selection, with an  isolated  group,  or  a  selection  committee
dominated by representatives of a singular group  –  the  judiciary.   In  a
matter of judicial appointments, it was submitted, the object ought  to  be,
to pick up the best  legally  trained  minds,  coupled  with  a  qualitative
personality.  For this, according to  the  Attorney  General,  a  collective
consultative process, would be the most suitable.  It was pointed out,  that
“eminent persons”, having no nexus to judicial activities,  would  introduce
an element of detachment, and would help to bring in independent  expertise,
to evaluate non-legal competencies, from an ordinary citizen’s  perspective,
and thereby, represent all the stakeholders of the justice delivery  system.
It was contended, that the presence of “eminent persons” was  necessary,  to
ensure the representative  participation  of  the  general  public,  in  the
selection and appointment of Judges to the higher judiciary. Their  presence
would  also  ensure,  that  the  selection  process  was  broad  based,  and
reflected sufficient diversity and accountability,  and  in  sync  with  the
evolving process of selection and appointment of Judges, the world over.
94.   The learned Attorney General, then addressed the  issue  of  inclusion
of the Union Minister in charge of Law and Justice, as an ex officio  Member
in the NJAC.  Reference was first made to Articles  124  and  217,  as  they
were originally  enacted  in  the  Constitution.   It  was  submitted,  that
originally, the power of appointment of Judges to the higher judiciary,  was
exclusively vested with the President. In this behalf  reliance  was  placed
on Article 74, whereunder the President was obliged to act on  the  aid  and
advice of the Council of Ministers, headed by the  Prime  Minister.  It  was
pointed out, that the above position, was so declared, by the  First  Judges
case. And as such, from the date of commencement of  the  Constitution,  the
executive had the exclusive  role,  in  the  selection  and  appointment  of
Judges to the higher judiciary. It  was  asserted,  that  the  position  was
changed, for the first time, in 1993 by the Second Judges case, wherein  the
term “consultation”, with reference to  the  Chief  Justice  of  India,  was
interpreted as “concurrence”.  Having been so interpreted,  primacy  in  the
matter of appointment  of  Judges  to  the  higher  judiciary,  came  to  be
transferred from the executive, to the Chief Justice of India  (based  on  a
collective decision, by a collegium of  Judges).   Despite  the  above,  the
Union Minister in charge of Law and Justice, being a representative  of  the
executive, continued to have a role in the  selection  process,  though  his
involvement  was  substantially  limited,  as  against  the   responsibility
assigned to  the  executive  under  Articles  124  and  217,  as  originally
enacted.  It was pointed out,  that  by  including  the  Union  Minister  in
charge of Law and Justice, as a Member of the NJAC, the  participatory  role
of the executive, in the matter of selection and appointment  of  Judges  to
the higher judiciary, had actually been diminished, as against the  original
position.  Inasmuch as, the executive role in the NJAC, had been reduced  to
one out of the six Members of the Commission.  In  the  above  view  of  the
matter, it was asserted, that it was unreasonable  for  the  petitioners  to
grudge, the presence of the Union Minister in charge of Law and Justice,  as
a Member of the NJAC.
95.   Insofar as the  inclusion  of  the  Union  Minister  in  the  NJAC  is
concerned, it was submitted, that there could be no escape  from  the  fact,
that the Minister in question, would be the connect  between  the  judiciary
and the Parliament.  His functions  would  include,  the  responsibility  to
inform the Parliament, about the affairs of the judicial establishment.   It
was submitted, that his exclusion  from  the  participatory  process,  would
result in a lack of  coordination  between  the  two  important  pillars  of
governance. Furthermore, it was submitted that the Minister in question,  as
a member of the executive, will  have  access  to,  and  will  be  able  to,
provide the NJAC with all the relevant information,  about  the  antecedents
of a particular candidate, which the  remaining  Members  of  the  NJAC  are
unlikely to have  access  to.   This,  according  to  the  learned  Attorney
General,  would  ensure,  that  the  persons  best  suited  to  the   higher
judiciary,  would  be  selected.   Moreover,  it  was  submitted,  that  the
executive was a key stakeholder in  the  justice  delivery  system,  and  as
such, it was imperative for him to have, a role in the process of  selection
and appointment of Judges, to the higher judiciary.
96.   The learned Attorney General allayed all fears, with reference to  the
presence of Union Minister, in the NJAC, by asserting that he would  not  be
in a position to politicize the appointments, as he was just one of the six-
Members of the NJAC.  And  that,  the  other  Members  would  constitute  an
adequate check, even if the  Minister  in  question,  desired  to  favour  a
particular candidate, on political considerations. This submission was  made
by the learned Attorney General, keeping in mind  the  assumed  fear,  which
the petitioners had expressed, on account of the political leanings  of  the
Union  Minister,  with  the  governing  political  establishment.   It   was
accordingly asserted, that the presence of one member of the  executive,  in
a commission of six Members, would  not  impact  the  “independence  of  the
judiciary”, leading to  the  clear  and  unambiguous  conclusion,  that  the
presence of the Union Minister in charge of Law and  Justice  in  the  NJAC,
would not violate the “basic structure” of the Constitution.
97.   Referring to the judgment rendered by this Court, in  the  Madras  Bar
Association case35, it was submitted that, for  the  tribunal  in  question,
the participation of the executive in the  selection  of  its  Members,  had
been held to be unsustainable, because the executive was  a  stakeholder  in
each matter, that was to be adjudicated by the tribunal. It  was  submitted,
that the above position did not prevail insofar as the higher judiciary  was
concerned, since the stakeholders before the higher judiciary were  diverse.
 It was, therefore, submitted, that the validity of the NJAC  could  not  be
assailed, merely on the ground of presence of the Union Minister, as  an  ex
officio Member of the NJAC.
98.   The manner of appointment of Judges to the higher  judiciary,  through
the NJAC, it was asserted,  would  have  two  major  advantages.   It  would
introduce transparency in the  process  of  selection  and  appointments  of
Judges, which had hitherto before, been extremely secretive, with the  civil
society left wondering about, the standards and the  criterion  adopted,  in
determining  the  suitability  of  candidates.  Secondly,  the  NJAC   would
diversify the selection process, which would further lead to  accountability
in the  matter  of  appointments.  It  was  submitted,  that  not  only  the
litigating public, or the practicing advocates, but also the civil  society,
had the right to know.  It was pointed out, that insofar as the  legislative
process was concerned, debates in the  Parliament  are  now  in  the  public
domain.   The  rights  of  individuals,  determined  at  the  hands  of  the
executive, have been transparent under the Right to Information  Act,  2005.
It was submitted that likewise, the selection and appointment of  Judges  to
the higher judiciary,  must  be  known  to  the  civil  society,  so  as  to
introduce not only fairness, but also a degree of assurance, that  the  best
out of those willing, were being appointed as Judges.
99.   Referring to Article 124A(2) inserted through the  Constitution  (99th
Amendment) Act, it was asserted, that a constitutional process could not  be
held up, due to the unavailability (and/or the disability) of  one  or  more
Members of the NJAC. So that a defect in the constitution of  the  NJAC,  or
any  vacancy  therein,  would  not  impact  the  process  of  selection  and
appointment of Judges to the higher  judiciary.  Article  124A(2)  provided,
that the proceedings of the NJAC would not be questioned or  invalidated  on
account of a vacancy or a defect in the composition of  the  NJAC.   It  was
contended, that it was wrongful for the  petitioners  to  frown  on  Article
124A(2), as there  were  a  number  of  statutory  enactments  with  similar
provisions. In this behalf, the Court’s attention was inter  alia  drawn  to
Section 4(2), of the Central Vigilance Commission Act  2003,  Section  4(2),
of  the  Lokpal  and  Lokayuktas  Act  2013,  Section  7,  of  the  National
Commission for Backward Classes Act  1993,  Section  29A,  of  the  Consumer
Protection Act 1986, Section 7, of the Advocates Welfare Act  2001,  Section
8, of  the  University  Grants  Commission  Act  1956,  Section  9,  of  the
Protection of Human Rights Act 1993, Section 7, of the  National  Commission
for Minorities Act 1993, Section 8, of the National Commission for  Minority
Educational  Institutions  Act  2004,  Section  24,  of  the  Persons   with
Disabilities  (Equal  Opportunities,   Protection   of   Rights   and   Full
Participation) Act 1995, and a host of other legislative enactments  of  the
same nature.  Relying on the judgments  in  Bangalore  Woollen,  Cotton  and
Silk Mills Co. Ltd. v. Corporation of  the  City  of  Bangalore[60],  Khadim
Hussain v. State of U.P.[61], B.K. Srinivasan  v.  State  of  Karnataka[62],
and People’s Union for  Civil  Liberties  v.  Union  of  India[63],  it  was
asserted, that on an examination  of  provisions  of  similar  nature,  this
Court had repeatedly held, that modern legislative enactments ensured,  that
the defects of procedure, which do not lead to  any  substantial  prejudice,
are statutorily placed beyond the purview of challenge.  It was  accordingly
asserted, that invalidity on account  of  a  technical  irregularity,  being
excluded from judicial review, the submissions advanced  on  behalf  of  the
petitioners, on the constitutional validity of clause (2) of  Article  124A,
deserved an outright rejection.
100.  It was the contention of the learned Attorney General, that  the  NJAC
did not suffer from the vice of excessive delegation.  It was sought  to  be
reiterated, that the power of nomination of “eminent persons”  was  securely
and rightfully left to the wisdom of the Prime Minister of India, the  Chief
Justice of India and the Leader of the Opposition  in  the  Parliament.   It
was submitted, that the parameters expressed in Sections  5  and  6  of  the
NJAC  Act,  delineating  the  criterion  for  selection,   by   specifically
providing, that ability, merit and suitability would  expressly  engage  the
attention of the NJAC, while selecting Judges for appointment to the  higher
judiciary,  clearly  laid  out  the  parameters  for  this   selection   and
appointment process.  It was submitted, that  the  modalities  to  determine
ability, merit and suitability would be further detailed through  rules  and
regulations.  And that, factors such as, the  minimum  number  of  years  of
practice at the Bar,  the  number  and  nature  of  cases  argued,  academic
publications in reputed journals, the  minimum  and  maximum  age,  and  the
like,  would  be  similarly  provided  for.  All   these   clearly   defined
parameters, it was contended,  would  make  the  process  of  selection  and
appointment of Judges to the higher judiciary transparent,  and  would  also
ensure, that the candidates to be considered, were possessed of the  minimum
desired standards.  It was submitted, that the Memorandum of  Procedure  for
Appointment and Transfer of Chief Justices and Judges of  the  High  Courts,
as also, for elevation of Judges to the Supreme Court, were  bereft  of  any
such particulars, and the absence of any prescribed criterion, had  resulted
in the appointment of Judges, even to the Supreme Court, which  should  have
ordinarily been avoided.  The learned Attorney General made a  reference  to
three instances, which according to him, were universally condemned, by  one
and all.  One of the Judges appointed to this Court, according to  him,  was
a non-performer as he had authored just a few judgments as a  Judge  of  the
High Courts of Delhi and Kerala, and  far  lesser  judgments  as  the  Chief
Justice of the Uttarakhand and Karnataka High  Courts,  and  less  than  ten
judgments during his entire tenure as a Judge of  the  Supreme  Court.   The
second Judge, according to him, was notoriously  late  in  commencing  Court
proceeding, a habit which had persisted with the said Judge even as a  Judge
of the Patna and  Rajasthan  High  Courts,  and  thereafter,  as  the  Chief
Justice of the Jharkhand High Court, and also as  a  Judge  of  the  Supreme
Court.  The third Judge, according to  the  learned  Attorney  General,  was
notoriously described as a tweeting Judge, because of his habit of  tweeting
his views, after he had  retired.   Learned  counsel  for  the  respondents,
acknowledged having understood the identity of the Judges from  their  above
description by the learned Attorney General, and also affirmed  the  factual
position asserted in respect of the Judges mentioned.  The learned  Attorney
General also handed over to us a  compilation  (in  a  sealed  cover)  about
appointments of Judges made to different High Courts, despite the  executive
having expressed an adverse  opinion.  The  compilation  made  reference  to
elevation of five Judges to High Courts (–  two  Judges  to  the  Jammu  and
Kashmir High Court, one Judge to the Punjab  and  Haryana  High  Court,  one
Judge to the Patna High Court, and one Judge to  the  Calcutta  High  Court)
and three Judges to  the  Supreme  Court.  It  may  be  clarified  that  the
objection with reference to the Supreme Court  Judges  was  not  related  to
their  suitability,  but  for  the  reason  that  some  High   Courts   were
unrepresented in the Supreme Court. We would therefore understand the  above
position as covering the period from 1993 till date.  But  it  was  not  his
contention, that these elevations had proved to be  wrongful.  We  may  only
notice, that two of the three Supreme Court Judges referred to, were in  due
course elevated to the high office of Chief Justice of India.
101.  The learned Attorney General vehemently contested the  assertion  made
by the learned counsel representing  the  petitioners,  that  the  power  to
frame rules and regulations for the functioning of the  NJAC  was  unguided,
inasmuch as,  neither  the  constitutional  amendment  nor  the  legislative
enactment,  provided  for  any  parameters  for  framing   the   rules   and
regulations, pertaining to the criterion of suitability.   In  this  behalf,
it  was  submitted,  that  sufficient  guidelines  were  ascertainable  from
Articles 124B and 124C.  Besides the aforesaid, the  Court’s  attention  was
drawn to Sections  5(2),  6(1)  and  6(3)  of  the  NJAC  Act,  wherein  the
parameters of suitability for appointment of Judges had been laid down.   In
this behalf, it was also asserted, that Article 124, as originally  enacted,
had laid down only basic eligibility conditions, for appointment  of  Judges
to the higher judiciary, but no suitability criteria had been expressed.  It
was also asserted, that the procedure  and  conditions  for  appointment  of
Judges, were also not prescribed.  As against  the  above,  it  was  pointed
out, that Articles 124B and 124C and Sections 5(2), 6(1)  and  6(3)  of  the
NJAC Act, clearly laid down conditions and guidelines  for  determining  the
suitability of a candidate for appointment as a Judge. On the basis  of  the
aforementioned analysis, it was submitted, that neither  the  constitutional
amendment was violative of the “basic structure”,  nor  the  NJAC  Act,  was
constitutionally invalid.  For the above reasons, it was asserted, that  the
challenge raised by the petitioners was liable to be rejected.
102.  In response to the  technical  submission  advanced  by  Mr.  Fali  S.
Nariman, namely, that since  the  Constitution  (99th  Amendment)  Act,  was
brought into force, consequent upon the notification issued by  the  Central
Government in the Official Gazette on 13.4.2015, the  consideration  of  the
NJAC Bill and the passing of the NJAC Act, prior to the  coming  into  force
of the Constitution (99th Amendment) Act, would render  it  null  and  void,
the learned Attorney General invited our attention  to  Article  118,  which
authorizes, each House of Parliament, to make  rules  for  regulating  their
procedure, in the matter of conducting their business. It was  pointed  out,
that Rules of Procedure and the Conduct of Business of the  Lok  Sabha,  had
been duly enacted by the Lok Sabha. A  relevant  extract  of  the  aforesaid
rules  was  handed  over  to  us.   Rule  66  thereof,  is  being  extracted
hereunder:
“66.  A Bill, which is dependent wholly or partly upon another Bill  pending
before the House, may be introduced in the  House  in  anticipation  of  the
passing of the Bill on which it is dependent:
      Provided that the second Bill shall be taken up for consideration  and
passing in the House only after the  first  Bill  has  been  passed  by  the
Houses and assented to by the President.”

Referring to the proviso under Rule 66, it was acknowledged  that  the  rule
read independently, fully justified the submissions of Mr. Fali S.  Nariman.
 It was however pointed out, that it was open to the Parliament  to  seek  a
suspension of the above rule under Rule 388.  Rule  388  is  also  extracted
hereunder:
“388.  Any member may, with the consent of the Speaker, move that  any  rule
may be suspended in its application to a particular motion before the  House
and if the motion is carried the rule in question  shall  be  suspended  for
the time being.”

The learned Attorney General then handed over to us, the proceedings of  the
Lok Sabha dated 12.8.2014, inter alia,  including  the  Constitution  (121st
Amendment) Bill, and the NJAC Bill.  He invited our attention to  the  fact,
that while moving the motion, the then Union Minister in charge of  Law  and
Justice had sought, and was accorded approval, for  the  suspension  of  the
proviso to Rule 66 of the Rules of Procedure and Conduct of Business of  the
Lok Sabha.  Relevant extract of the Motion depicting the suspension of  Rule
388 is being reproduced hereunder:
                            “Motion under Rule 388
Shri Ravi Shankar Prasad moved the following motion:-
      “That this House do suspend the proviso to rule 66  of  the  Rules  of
Procedure and Conduct of Business in Lok Sabha in  its  application  to  the
motions for taking into consideration  and  passing  the  National  Judicial
Appointments Commission Bill, 2014 in as much as it is  dependent  upon  the
Constitution (One Hundred and Twenty-First Amendment) Bill, 2014.”
      The motion was adopted.
      The motions for consideration of the Bills viz. (i)  The  Constitution
(One Hundred and  Twenty-First  Amendment)  Bill,  2014  (Insertion  of  new
Articles 124A, 124B and 124C); and (ii) The National  Judicial  Appointments
Commission Bill, 2014 were moved by Shri Ravi Shankar Prasad.”

Premised on the strength of the Rules  framed  under  Article  118,  learned
Attorney General, also placed  reliance  on  Article  122,  which  is  being
reproduced below:
“122. Courts not  to  inquire  into  proceedings  of  Parliament.—  (1)  The
validity of any proceedings in Parliament shall not be  called  in  question
on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in  whom  powers  are  vested  by  or
under  this  Constitution  for  regulating  procedure  or  the  conduct   of
business, or for maintaining order, in Parliament shall be  subject  to  the
jurisdiction of any court in  respect  of  the  exercise  by  him  of  those
powers.”

Based on Article  122,  it  was  submitted,  that  the  Constitution  itself
contemplated, that the validity of the proceedings in the Parliament,  could
not be called  in  question,  on  the  ground  of  alleged  irregularity  in
procedure.   While  reiterating,  that  the  procedure  laid  down  by   the
Parliament  under  Article  118,  had  been  duly  complied  with,  it   was
submitted, that even if that had not been done, as  long  as  the  power  of
Parliament to legislate was not questioned, no challenge could  be  premised
on the procedural  defects  in  enacting  the  NJAC  Act.  In  this  behalf,
reference was also  made  to  Article  246,  so  as  to  contend,  that  the
competence of  the  Parliament  to  enact  the  NJAC  Act  was  clearly  and
unambiguously  vested  with  the  Parliament.   In  support  of  the   above
contention, reliance was placed on in re: Hindu Women’s Rights  to  Property
Act, 1937[64], rendered by the Federal Court, wherein  it  had  observed  as
under:
“One of the provisions included in Sch. 9  is  that  a  bill  shall  not  be
deemed to have been passed by the Indian  Legislature  unless  it  has  been
agreed to by both Chambers either without amendment or with such  amendments
only as may be agreed to by both Chambers. It  is  common  ground  that  the
Hindu Women's Rights to Property Bill was agreed  to  without  amendment  by
both Chambers of the Indian Legislature, and as  soon  as  it  received  the
Governor-General's assent, it became an Act (Sch.  9,  para.  68  (2)).  Not
until then had this or any other Court jurisdiction to determine whether  it
was a valid piece of legislation or not. It may sometimes  become  necessary
for a Court to inquire into  the  proceedings  of  a  Legislature,  for  the
purpose of determining whether an Act was or was  not  validly  passed;  for
example, whether it was in fact  passed,  as  in  the  case  of  the  Indian
Legislature the law requires, by both Chambers of the Legislature before  it
received the Governor. General's assent. But  it  does  not  appear  to  the
Court that the form, content or subject-matter of a bill at the time of  its
introduction into,  or  of  its  consideration  by  either  Chamber  of  the
Legislature is a matter  with  which  a  Court  of  law  is  concerned.  The
question whether either Chamber has the right to discuss a bill laid  before
it is  a  domestic  matter  regulated  by  the  rules  of  the  Chamber,  as
interpreted by its speaker, and is not a  matter  with  which  a  Court  can
interfere, or indeed on which it is entitled to express any opinion.  It  is
not to  be  supposed  that  a  legislative  body  will  waste  its  time  by
discussing a bill which, even if it receives the Governor-General's  assent,
would obviously be beyond the competence of the Legislature  to  enact;  but
if it chooses to do so, that is its own affair, and the only function  of  a
Court is to pronounce upon the bill after it  has  become  an  Act.  In  the
opinion of this Court, therefore, it is immaterial that the  powers  of  the
Legislature changed during the passage of  the  bill  from  the  Legislative
Assembly to the Council of State. The only date  with  which  the  Court  is
concerned is 14th April 1937, the  date  on  which  the  Governor  General's
assent was given; and the question whether the Act was  or  was  not  within
the competence of the Legislature must be determined with reference to  that
date and to none other.”

Reliance was also placed on  Pandit  M.S.M.  Sharma  v.  Dr.  Shree  Krishna
Sinha[65], wherefrom the following observations were brought to our notice:
“It now remains to consider the other subsidiary questions raised on  behalf
of the petitioner. It was contended that the procedure  adopted  inside  the
House of the Legislature was not regular  and  not  strictly  in  accordance
with law. There are two answers to this contention, firstly, that  according
to the  previous  decision  of  this  Court,  the  petitioner  has  not  the
fundamental right claimed by him. He is, therefore, out of Court.  Secondly,
the validity of the proceedings inside the Legislature of a State cannot  be
called in question on the allegation that the procedure  laid  down  by  the
law had not been strictly followed. Article 212 of  the  Constitution  is  a
complete answer to this part of the  contention  raised  on  behalf  of  the
petitioner. No Court can go  into  those  questions  which  are  within  the
special jurisdiction of the Legislature  itself,  which  has  the  power  to
conduct its own business. Possibly, a third  answer  to  this  part  of  the
contention raised on behalf of the petitioner is that it  is  yet  premature
to consider the question of procedure as the Committee is  yet  to  conclude
its proceedings. It must also be observed that once it has  been  held  that
the Legislature has the jurisdiction  to  control  the  publication  of  its
proceedings and to go into the question whether there has  been  any  breach
of its privileges, the Legislature is vested with complete  jurisdiction  to
carry on its proceedings in accordance with  its  rules  of  business.  Even
though it may not have  strictly  complied  with  the  requirements  of  the
procedural law laid down for conducting  its  business,  that  cannot  be  a
ground for interference by this Court  under  Art. 32 of  the  Constitution.
Courts have always recognised the basic difference between complete want  of
jurisdiction and improper or irregular exercise of jurisdiction.  Mere  non-
compliance with rules of procedure cannot be a ground  for  issuing  a  writ
under Art. 32 of the  Constitution  vide  Janardan  Reddy  v. The  State  of
Hyderabad, (1951) SCR 344.”

Based on the aforesaid submissions, it was the vehement  contention  of  the
learned  Attorney  General,  that  there  was  no  merit  in  the  technical
objections raised by the petitioners while assailing the provisions  of  the
NJAC Act.
103.  Mr. K.K. Venugopal, learned Senior  Advocate,  entered  appearance  on
behalf of the State of Madhya Pradesh.   While  reiterating  a  few  of  the
legal submissions canvassed by the learned Attorney General, he  emphasized,
that the judgments rendered by this Court, in the Second  and  Third  Judges
cases, turned the legal position, contemplated under the  original  Articles
124 and 217, on its head.  It  was  submitted,  that  this  Court  has  been
required to entertain a public  interest  litigation,  in  an  unprecedented
exercise of judicial review, wherein it is sought to be asserted,  that  the
“independence of the judiciary”,  had  been  encroached  by  the  other  two
organs of governance. It was contended by learned counsel, that the  instant
assertion was based  on  a  misconception,  as  primacy  in  the  matter  of
appointment of Judges to the higher judiciary, was  never  vested  with  the
judiciary.  It was pointed out, that primacy in the  matter  of  appointment
of Judges to the higher judiciary,  was  vested  with  the  executive  under
Articles 124 and  217,  as  originally  enacted.   Furthermore,  this  Court
through its judgments culminating in the First Judges case, while  correctly
interpreting the aforesaid  provisions  of  the  Constitution,  had  rightly
concluded, that the interaction between the executive and the Chief  Justice
of India (as well as, the other Judges of the higher judiciary)  was  merely
“consultative”,  and  that,  the  executive  was  entirely  responsible  for
discharging the responsibility of  appointment  of  Judges  including  Chief
Justices, to the higher judiciary. It was submitted, that the Second  Judges
case, by means of a judicial interpretation, vested primacy, in  the  matter
of appointment of Judges to the higher judiciary, with the Chief Justice  of
India, and his collegium of Judges. It  was  pointed  out,  that  after  the
rendering of the Second Judges case, appointments of Judges commenced to  be
made, in the manner expressed by  the  above  Constitution  Bench.   It  was
asserted, that there had been,  an  all  around  severe  criticism,  of  the
process of appointment of Judges to the higher  judiciary,  as  contemplated
by the Second and Third Judges cases.  It was contended, that the  selection
process was now limited to Judges selecting  Judges,  without  any  external
participation.  It was also asserted, that the exclusion  of  the  executive
from the role of selection and appointment of Judges was so extensive,  that
the executive has got no right to initiate any candidature, for  appointment
of Judges/Chief Justices to the higher judiciary. Such an interpretation  of
the provisions of the  Constitution,  it  was  pointed  out,  had  not  only
resulted in reading the term “consultation”  in  Articles  124  and  217  as
“concurrence”, but has gone far beyond.  It was sought to be asserted,  that
in the impugned amendment to the Constitution, the intent contained  in  the
original Articles 124 and 217, has been retained.  The  amended  provisions,
it was pointed out, have been tilted in favour of  the  judiciary,  and  the
participatory role, earlier vested  in  the  executive,  has  been  severely
diluted.  It was submitted, that even though no element of primacy had  been
conferred on the judiciary by Article 124, as  originally  enacted,  primacy
has now been vested in the judiciary, inasmuch as, the NJAC has the  largest
number of membership from the  judicial  fraternity.   It  was  highlighted,
that the Union Minister in charge of Law and Justice, is the sole  executive
representative, in the selection process,  contemplated  under  the  amended
provisions.  It was therefore asserted, that it was a far  cry,  for  anyone
to advocate, that the role of the judiciary in the manner of appointment  of
Judges to the higher judiciary having been  diluted,  had  impinged  on  its
independence.
104.  It was contended, that the author of the majority view in  the  Second
Judges case (J.S. Verma, J., as he then was), had himself found  fault  with
the manner of implementation of  the  judgments  in  the  Second  and  Third
Judges cases. It was submitted that  Parliament,  being  the  voice  of  the
people, had taken into consideration, the criticism levelled by J.S.  Verma,
J. (besides  others),  to  revise  the  process  of  appointment  of  Judges
contemplated under the Second and Third Judges cases.  Having so  contended,
learned  counsel  asserted,  that  if  this  Court  felt  that  any  of  the
provisions, with reference to selection and appointment  of  Judges  to  the
higher judiciary, would not meet the standards and norms, which  this  Court
felt sacrosanct, it was open to this Court  to  read  down  the  appropriate
provisions, in a manner as to round off  the  offending  provisions,  rather
than quashing the impugned  constitutional  and  legislative  provisions  in
their entirety.
105.  Mr. Ranjit Kumar, learned Solicitor General of India  submitted,  that
the entire Constitution had to be read as a whole.  In this behalf,  it  was
contended, that each provision was an integral  part  of  the  Constitution,
and as such, its interpretation had to be rendered  holistically.   For  the
instant proposition, reliance was placed  on  the  Kihoto  Hollohan  case34,
T.M.A. Pai Foundation v. State of  Karnataka6,  R.C.  Poudyal  v.  Union  of
India[66], the M.  Nagaraj  case36,  and  the  Kesavananda  Bharati  case10.
Based on the above judgments, it was asserted, that  the  term  “President”,
as it existed in Articles 124 and 217, if  interpreted  holistically,  would
lead to the clear and  unambiguous  conclusion,  that  the  President  while
discharging  his   responsibility   with   reference   to   appointment   of
Judges/Chief Justices to the higher judiciary, was  bound  by  the  aid  and
advice of the Council of Ministers, as contemplated under  Article  74.   It
was contended,  that  the  aforesaid  import  was  rightfully  examined  and
interpreted with reference to Article 124, in the First  Judges  case.   But
had been erroneously overlooked, in the subsequent  judgments.  Accordingly,
it was asserted, that there could be no doubt  whatsoever,  while  examining
the impugned constitutional amendment, as  also,  the  impugned  legislative
enactment, that Parliament had not breached  any  component  of  the  “basic
structure” of the Constitution.
106.  It was also contended, that  in  case  the  challenge  raised  to  the
impugned constitutional amendment, was to be accepted  by  this  Court,  and
the legal position declared by this Court, was to be given  effect  to,  the
repealed  provisions  would  not   stand   revived,   merely   because   the
amendment/legislation  which  were  being  assailed,   were   held   to   be
unconstitutional. Insofar as the instant aspect of the matter is  concerned,
learned Solicitor General raised two independent contentions.
107.  Firstly, that  the  issue  whether  a  constitutional  amendment  once
struck down, would revive the original/substituted  Article,  was  a  matter
which had already been referred to a nine-Judge  Constitutional  Bench.   In
order to support the aforesaid contention, and to  project  the  picture  in
its entirety, reliance was placed on, Property Owners’ Association v.  State
of   Maharashtra[67],   Property   Owners’   Association   v.    State    of
Maharashtra[68],   and   Property   Owners’   Association   v.   State    of
Maharashtra[69].  It was submitted, that the order  passed  by  this  Court,
wherein the reference to a nine-Judge Constitution Bench had been made,  was
a case relating to the constitutionality of Article  31C.   It  was  pointed
out   that   Article   31C,   as   originally   enacted    provided,    that
“…notwithstanding anything contained in Article 13, no law giving effect  to
the policy of the  State,  towards  securing  the  principles  specified  in
clause (b) or clause (c) of Article 39 shall be deemed to  be  void  on  the
ground that it was inconsistent with, the rights conferred  by  Articles  14
and 19”.  It was submitted, that the  latter  part  of  Article  31C,  which
provided “…and no law containing a declaration that it is for giving  effect
to such policy shall be called in question in any court on the  ground  that
it does not give effect to such policy…” had been struck down by this  Court
in the Kesavananda Bharati case10.  It was contended, that when  the  matter
pertaining  to  the  effect  of  the  striking  down  of  a   constitutional
amendment, had been referred to a nine-Judge Bench,  it  would  be  improper
for this Court,  sitting  in  its  present  composition,  to  determine  the
aforesaid issue.
108.  The second contention advanced at the hands of the  learned  Solicitor
General, was based on Sections 6, 7 and 8 of the General  Clauses  Act.   It
was contended, that  an  amendment  which  had  deleted  some  part  of  the
erstwhile Article 124 of the Constitution,  and  substituted  in  its  place
something different, as in the case of  Article  124,  by  the  Constitution
(99th Amendment) Act, would not  result  in  the  revival  of  the  original
Article which was in place, prior to the constitutional amendment,  even  if
the amendment itself was to be struck down.  It was  submitted,  that  if  a
substituted provision was declared as unconstitutional, for whatever  ground
or reason(s), the same would not automatically result in the revival of  the
repealed provision.  In order to support the aforesaid contention,  reliance
was placed on Ameer-un-Nissa Begum v. Mahboob Begum[70], Firm A.T.B.  Mehtab
Majid & Co. v. State of Madras[71],  B.N.  Tewari  v.  Union  of  India[72],
Koteswar Vittal Kamath v. K. Rangappa Baliga & Co.[73], Mulchand Odhavji  v.
Rajkot Borough Municipality[74], Mohd. Shaukat  Hussain  Khan  v.  State  of
Andhra Pradesh[75], State of Maharashtra  v.  Central   Provinces  Manganese
Ore Co.  Ltd.[76],  India  Tobacco  Co.  Ltd.  v.  Commercial  Tax  Officer,
Bhavanipore[77], and Kolhapur Canesugar Works Ltd. v.  Union  of  India[78].
It was submitted, that the general rule of construction was, that  a  repeal
through a repealing enactment, would not revive anything  repealed  thereby.
Reliance was also placed on, State of U.P. v. Hirendra Pal Singh[79],  Joint
Action Committee of Air  Line  Pilots’  Association  of  India  v.  Director
General of  Civil  Aviation[80],  and  State  of  Tamil  Nadu  v.  K.  Shyam
Sunder[81], to contend, that the settled legal proposition was, whenever  an
Act was repealed, it must be considered as if it had never existed.  It  was
pointed out,  that  consequent  upon  the  instant  repeal  of  the  earlier
provisions,  the  earlier  provisions  must   be   deemed   to   have   been
obliterated/abrogated/wiped  out,  wholly  and  completely.    The   instant
contention was sought to be summarized by asserting, that if  a  substituted
provision was to be struck down, the question of  revival  of  the  original
provision (which had been substituted, by the struck down  provision)  would
not arise, as the provision which had  been  substituted,  stood  abrogated,
and therefore had ceased to exist in the statute itself.  It  was  therefore
submitted, that even if the challenge raised to the impugned  constitutional
amendment  was  to  be  accepted  by  this  Court,  the  originally  enacted
provisions of Articles 124 and 217 would not revive.
109.   The  learned  Solicitor  General  additionally  contended,  that  the
present  challenge  at  the  hands  of  the  petitioners   should   not   be
entertained, as it has been raised prematurely.  It was submitted, that  the
challenge  raised  by  the  petitioners  was  based   on   assumptions   and
presumptions,  without  allowing  the  crystallization   of   the   impugned
amendment to the Constitution.  It was asserted,  that  the  position  would
crystalise only after rules and regulations were framed under the NJAC  Act.
It was submitted, that the question  of  “independence  of  the  judiciary”,
with reference to the amendments made, could be determined  only  after  the
NJAC  Act  was  made  operational,  by  laying  down  the  manner   of   its
functioning.  Since the pendency of the present litigation had  delayed  the
implementation of the provisions of the amendment to  the  Constitution,  as
also to the NJAC Act, it would be improper for this Court, to  accede  to  a
challenge based on conjectures and surmises.
110.  Mr. K. Parasaran, Senior Advocate, entered  appearance  on  behalf  of
the State of Rajasthan.  He submitted,  that  he  would  be  supporting  the
validity of the impugned constitutional amendment, as also,  the  NJAC  Act,
and that, he endorsed all the submissions advanced on behalf  of  the  Union
of India.  It was his contention, that Judges of the higher  judiciary  were
already burdened with their judicial work, and as such, they should  not  be
seriously worried about the task of appointment  of  Judges,  which  by  the
impugned amendment, had been  entrusted  to  the  NJAC.  In  his  view,  the
executive and the Parliament were accountable to the people, and  therefore,
they should  be  permitted  to  discharge  the  onerous  responsibility,  of
appointing Judges to  the  higher  judiciary.  It  was  asserted,  that  the
executive and the legislature would then be answerable,  to  the  people  of
this country, for the appointments they would make.
111.  On the issue of inclusion of two “eminent persons” in  the  six-Member
NJAC, it was asserted, that the nomination of the “eminent persons”  was  to
be made by the Prime Minister, the Chief Justice of India,  and  the  Leader
of the Opposition in the Lok Sabha.   All  these  three  individuals,  being
high ranking constitutional functionaries, should be trusted,  to  discharge
the responsibility bestowed on them, in the interest  of  the  “independence
of the judiciary”. It was submitted, that if  constitutional  functionaries,
and the “eminent persons”, could not be  trusted,  then  the  constitutional
machinery itself would fail.  It  was  pointed  out,  that  this  Court  had
repeatedly described, that the Constitution was organic  in  character,  and
it had an inbuilt mechanism for evolving, with the changing times.   It  was
asserted, that the power vested with the Parliament, under  Article  368  to
amend the  provisions  of  the  Constitution,  was  a  “constituent  power”,
authorizing the Parliament to reshape the Constitution, to  adapt  with  the
changing environment.  It was contended, that the above power vested in  the
Parliament could be exercised with  the  sole  exception,  that  “the  basic
structure/features” of the Constitution, as enunciated by the Supreme  Court
in the Kesavananda Bharati case10, could not be altered/changed.   According
to the learned senior counsel, the Constitution (99th Amendment) Act was  an
exercise of the aforestated constituent power, and that,  the  amendment  to
the Constitution introduced thereby, did not in  any  manner,  impinge  upon
the “independence of the judiciary”.
112.  Referring to Article 124A, it was asserted, that the NJAC was  a  six-
Member Commission for identifying, selecting and appointing  Judges  to  the
higher judiciary.  It could under no circumstances, be found  wanting,  with
reference to the assertions made by the petitioners.  It  was  pointed  out,
that the only executive representative thereon being the Union  Minister  in
charge of Law and Justice, it could not  be  inferred,  that  the  executive
would exert such influence through him, as would undermine the  independence
of the five other Members of the Commission.  It  was  submitted,  that  the
largest representation of the Commission, was that of Judges of the  Supreme
Court, inasmuch as, the Chief Justice of India,  and  the  two  senior  most
Judges of the Supreme Court were ex officio Members of the NJAC.
113.  With reference to the two “eminent persons” on the NJAC,  it  was  his
contention, that they could not be identified either with the  executive  or
the legislature.  For the nomination  of  the  two  “eminent  persons”,  the
Selection Committee comprises of one member of the executive, one member  of
the legislature, and one member of the judiciary.  In the above view of  the
matter, it  was  asserted,  that  the  contention,  that  the  two  “eminent
persons” in the Commission would support the executive/the legislature,  was
preposterous.  It  was  therefore  the  submission  of  the  learned  senior
counsel, that the “independence of the judiciary” could  not  be  considered
to have been undermined, keeping in mind the composition of the NJAC.
114.  It was also contended, that the proceedings before the NJAC  would  be
more transparent and broad based, and  accordingly,  more  result  oriented,
and  would  ensure,  that  the  best  candidates  would  be   selected   for
appointment as Judges to the higher judiciary.
115.  It was asserted, that the NJAC provided  for  a  consultative  process
with persons who were ex-hypothesi, well qualified to give proper advice  in
the matter of  appointment  of  Judges  to  the  higher  judiciary.  It  was
accordingly  the  assertion  of  learned  counsel,  that  the  determination
rendered by this Court, in the Second and Third Judges  cases,  was  not  in
consonance with the intent, with which Articles 124 and 217 were  originally
enacted.  It was therefore submitted, that the subject of  “independence  of
the judiciary”, with reference to  the  impugned  constitutional  amendment,
should not be determined by relying on the Second and  Third  Judges  cases,
but only on the basis of the plain reading  of  Articles  124  and  217,  in
conjunction  with,  the  observations  expressed  by  the  Members  of   the
Constituent Assembly  while  debating  on  the  above  provisions.   It  was
submitted, that whilst the Union Minister in  charge  of  Law  and  Justice,
would be  in  an  effective  position  to  provide  necessary  inputs,  with
reference to the character and antecedents  of  the  candidate(s)  concerned
(in view of the governmental machinery available  at his command),  the  two
“eminent persons” would be in a position to  participate  in  the  selection
process, by representing the general  public,  and  thereby,  the  selection
process would be infused with all around logical  inputs,  for  a  wholesome
consideration.
116.  It was submitted, that  since  any  two  Members  of  the  NJAC,  were
competent to veto the candidature of a  nominee,  three  representatives  of
the Supreme Court of India, would be clearly in  a  position  to  stall  the
appointment of unsuitable candidates. It was therefore contended,  that  the
legislations enacted by the Parliament, duly ratified in  terms  of  Article
368, should be permitted to become functional, with the constitution of  the
NJAC, and should further be permitted to  discharge  the  responsibility  of
appointing Judges to the higher judiciary.  It was submitted, that  in  case
of any deficiency in the discharge of the said  responsibility,  this  Court
could suo motu negate the selection process, or exclude one or both  of  the
“eminent persons” from the selection process,  if  they  were  found  to  be
unsuitable or unworthy of discharging  their  responsibility.   Or  even  if
they could not establish their  usefulness.  It  was  submitted,  that  this
Court  should  not  throttle  the  contemplated  process  of  selection  and
appointment of Judges to the higher judiciary,  through  the  NJAC,  without
it’s even having been tested.
117.  Mr. T.R. Andhyarujina, Senior Advocate, entered appearance  on  behalf
of the State of Maharashtra. It was  his  contention,  while  endorsing  the
submissions advanced on behalf of the Union  of  India,  that  the  impugned
Constitution (99th Amendment) Act,  was  a  rare  event,  inasmuch  as,  the
Parliament unanimously passed the same,  with  all  parties  supporting  the
amendment. He asserted, that  there  was  not  a  single  vote  against  the
amendment, even though it  was  conceded,  that  there  was  one  Member  of
Parliament, who had abstained  from  voting.   Besides  the  above,  it  was
asserted,  that  even  the   State   legislatures   ratified   the   instant
constitutional amendment, wherein the ruling party, as also, the parties  in
opposition, supported the amendment.  Based on the above, it was  contended,
that  the  instant  constitutional  amendment,  should  be  treated  as  the
unanimous will of the people, belonging to all sections of the society,  and
therefore the same could well  be  treated,  as  the  will  of  the  nation,
exercised by all stakeholders.
118.  It was submitted, that the amendment under  reference  should  not  be
viewed with suspicion.  It was  pointed  out,  that  Articles  124  and  217
contemplated a dominating role for the executive.  It  was  contended,  that
the judgment in the Second Judges case, vested  primacy  in  the  matter  of
appointment of Judges to the higher judiciary, with  the  Chief  Justice  of
India and his collegium of Judges. This manner of selection and  appointment
of Judges to  the  higher  judiciary,  according  to  learned  counsel,  was
unknown to the rest of the world, as in no other  country,  the  appointment
of Judges is made by Judges  themselves.   Indicating  the  defects  of  the
collegium system, it was asserted, that the same  lacked  transparency,  and
was not broad based enough.  Whilst acknowledging,  the  view  expressed  by
J.S. Verma, CJ., that the manner of appointment of  Judges  contemplated  by
the Second and Third Judges cases was very  good,  it  was  submitted,  that
J.S. Verma, CJ., himself was disillusioned with their implementation, as  he
felt, that there had been an utter failure on that  front.   Learned  senior
counsel submitted, that the questions  that  needed  to  be  answered  were,
whether  there  was  any  fundamental  illegality  in   the   constitutional
amendment? Or, whether the appointment of Judges  contemplated  through  the
NJAC violated the “basic structure” of the Constitution?  And,  whether  the
“independence  of  the  judiciary”   stood   subverted   by   the   impugned
constitutional amendment?  It was asserted, that it  was  wrong  to  assume,
that  the  manner  of  appointment  of  Judges,  had  any  impact   on   the
“independence of the judiciary”.  In this behalf, it was pointed  out,  that
the independence of Judges, did not depend on who  appointed  them.  It  was
also  pointed  out,  that  independence  of  Judges  depended   upon   their
individual character.  Learned counsel reiterated the position expounded  by
Dr. B.R. Ambedkar, during the Constituent Assembly  debates.  He  submitted,
that  the  concept  of  “independence  of  the  judiciary”  should  not   be
determined with reference to the opinion expressed  by  this  Court  in  the
Second and Third Judges cases, but should be determined  with  reference  to
the debates in the Constituent Assembly, which led  to  the  crystallization
of Articles 124 and 217, as originally enacted.
119.  Learned counsel placed reliance on  Lord  Cooke  of  Thorndon  in  his
article titled “Making the Angels Weep”, wherein  he  scathingly  criticized
the Second Judges case.  Reference was  also  made  to  his  article  “Where
Angels Fear to Tread”, with reference to the Third Judges case. The  Court’s
attention was also drawn to the criticism of the  Second  and  Third  Judges
cases, at the hands of H.M. Seervai, Fali S. Nariman and others,  especially
the criticism at the hands of Krishna Iyer and  Ruma  Pal,  JJ.,  and  later
even the author of the majority judgment in the Second Judges  case  –  J.S.
Verma, CJ..  It was, accordingly,  the  contention  of  the  learned  senior
counsel,  that  whilst  determining  the  issue  of  “independence  of   the
judiciary”, reference should  not  be  made  to  either  of  the  above  two
judgments, but should be made to the plain  language  of  Articles  124  and
217. Viewed in the above manner, it was asserted, that  there  would  be  no
question of arriving at the conclusion,  that  the  impugned  constitutional
amendment, violated  the  basic  concepts  of  “separation  of  powers”  and
“independence of the judiciary”.
120.  Even though, there were no guidelines,  for  appointment  of  the  two
“eminent persons”, emerging from  the  Constitution  (99th  Amendment)  Act,
and/or the NJAC Act, yet it was submitted, that it  was  obvious,  that  the
“eminent persons” to be chosen, would be persons who  were  well  versed  in
the working of courts.   On  the  Court’s  asking,  learned  senior  counsel
suggested, that “eminent persons” for the purpose could only be  picked  out
of eminent lawyers, eminent jurists, and even retired Judges, or  the  like.
Insofar as the instant aspect of the matter  is  concerned,  it  is  obvious
that learned senior counsel had adopted a position,  diametrically  opposite
to the one canvassed by the learned Attorney General.   Another  aspect,  on
which  we  found  a  little  divergence  in  the  submission  of  Mr.   T.R.
Andhyarujina was, that in many countries the executive participation in  the
matter of appointment of Judges to the higher judiciary, was  being  brought
down.  And in  some  countries  it  was  no  longer  in  the  hands  of  the
executive.  In this behalf, the clear contention  advanced  by  the  learned
senior counsel was, that the world  over,  the  process  of  appointment  of
Judges to the  higher  judiciary  was  evolving,  so  as  to  be  vested  in
Commissions of the  nature  of  the  NJAC.   And  as  such,  it  was  wholly
unjustified to fault the  same,  on  the  ground  of  “independence  of  the
judiciary”, when  the  world  over  Commissions  were  found  to  have  been
discharging the responsibility satisfactorily.
121.  Mr. Tushar Mehta,  Additional  Solicitor  General  of  India,  entered
appearance on behalf of the State of Gujarat.  He  adopted  the  submissions
advanced by the learned Attorney General, as also,  Mr.  Ranjit  Kumar,  the
learned  Solicitor  General.   It  was  his  submission,  that  the   system
innovated by this Court for appointment of Judges to the  higher  judiciary,
comprising of the Chief Justice and his collegium of Judges, was a  judicial
innovation.  It was pointed out, that since 1993 when the above system  came
into existence, it had been  followed  for  appointment  of  Judges  to  the
higher judiciary, till  the  impugned  constitutional  amendment  came  into
force.  It was asserted that, in the interregnum,  some  conspicuous  events
had taken place, depicting the requirement of a change  in  the  method  and
manner of appointment of Judges to the higher  judiciary.   Learned  counsel
invited our attention to the various Bills  which  were  introduced  in  the
Parliament for the purpose of setting up a Commission  for  appointments  of
Judges to the higher judiciary, as have already been narrated  hereinbefore.
 It was pointed out, that  several  representations  were  received  by  the
Government  of  the  day,  advocating  the  replacement  of  the  “collegium
system”, with a broad based National Judicial Commission, to  cater  to  the
long standing aspiration of the citizens  of  the  country.   The  resultant
effect was, the passing of the Constitution (99th Amendment)  Act,  and  the
NJAC Act, by the Parliament. It was submitted, that  the  same  came  to  be
passed almost unanimously, with only one Member of Rajya  Sabha  abstaining.
It was asserted, that this was a rare historical event  after  independence,
when all political parties, having divergent political ideologies, voted  in
favour of the impugned constitutional amendment. In addition to  the  above,
it was submitted, that as of now 28 State Assemblies had ratified the  Bill.
It was asserted,  that  the  constitutional  mechanism  for  appointment  of
Judges to the higher judiciary, had operated  for  a  sufficient  length  of
time, and learning from the experience emerging out of  such  operation,  it
was felt, that a broad  based  Commission  should  be  constituted.  It  was
contended, that the impugned constitutional  amendment,  satisfied  all  the
parameters  for  testing  the  constitutional  validity  of  an   amendment.
Learned Additional Solicitor  General  similarly  opposed,  the  submissions
advanced at the hands of the petitioners challenging the  inclusion  of  the
Union Minister in charge of Law and Justice, as a Member of  the  NJAC.   He
also found merit in the inclusion of two “eminent  persons”,  in  the  NJAC.
It was contended,  that  the  term  “eminent  persons”,  with  reference  to
appointment of Judges to the higher  judiciary,  was  by  itself  clear  and
unambiguous, and as and when, a nomination would be made,  its  authenticity
would be understood.  He distanced himself from the submission  advanced  by
Mr. T.R. Andhyarujina, who  represented  the  State  of  Maharashtra,  while
advancing submission about the identity of those who could be  nominated  as
“eminent persons” to the NJAC.  It was submitted,  by  placing  reliance  on
Municipal Committee, Amritsar v. State of Punjab[82], K.A.  Abbas  v.  Union
of India[83], and the A.K. Roy case49,  that  similar  submissions  advanced
before this Court, with reference to vagueness and uncertainty of law,  were
consistently rejected by this Court.  According  to  learned  counsel,  with
reference to the alleged vagueness in the term “eminent  persons”,  in  case
the  nomination  of  an  individual  was  assailed,  a  court  of  competent
jurisdiction would construe it, as far as may be,  in  accordance  with  the
intention of the legislature.   It  was  asserted,  that  it  could  not  be
assumed, that there was a political danger, that if two wrong  persons  were
nominated as “eminent persons” to the NJAC, they would be able to  tilt  the
balance against the judicial component of the NJAC.  It was submitted,  that
the appointment of the two “eminent persons” was in the safe hands,  of  the
Prime Minister, the Chief Justice of India and the Leader of  Opposition  in
the Lok Sabha.  In the above view of  the  matter,  the  learned  Additional
Solicitor General, concluded with the prayer, that the submissions  advanced
at the hands of the learned counsel  for  the  petitioners  deserved  to  be
rejected.
122.  Mr.  Ravindra  Srivastava,  Senior  Advocate,  entered  appearance  on
behalf of the State of Chhattisgarh.  He  had  chosen  to  make  submissions
divided under eleven  heads.   However,  keeping  in  view  the  fact,  that
detailed submissions had already been advanced by counsel  who  had  entered
appearance before him, he chose to limit  the  same.   It  was  the  primary
contention of the learned senior counsel, that the  impugned  constitutional
amendment, as also the NJAC Act, did not in any manner  violate  the  “basic
structure” of the Constitution. According to  the  learned  senior  counsel,
the impugned constitutional amendment, furthers and strengthens  the  “basic
structure” principle, of a free  and  independent  judiciary.   It  was  his
submission, that the assertions made at the hands  of  the  petitioners,  to
the effect that the impugned constitutional  amendment,  impinges  upon  the
“basic  structure”  of  the  Constitution,  and  the  “independence  of  the
judiciary”, were wholly misconceived.  It was  submitted,  that  this  Court
had not ever held, that the primacy  of  the  judiciary  through  the  Chief
Justice of India, was an essential component of  the  “independence  of  the
judiciary”. It was asserted, that while considering the challenge raised  by
the petitioners to  the  impugned  constitutional  amendment,  it  would  be
wholly unjustified to approach the challenge by assuming, that  the  primacy
of the judiciary through the Chief Justice of  India,  would  alone  satisfy
the essential components of “separation of power” and “independence  of  the
judiciary”. It was submitted, that the introduction  of  plurality,  in  the
matter of appointment of Judges to the higher judiciary, was an instance  of
independence, rather than an instance of interference.   With  reference  to
the Members of the NJAC, it was submitted, that the same  would  ensure  not
only transparency, but also a broad based  selection  process,  without  any
ulterior motives.  It was asserted,  that  the  adoption  of  the  NJAC  for
selection of Judges to the higher judiciary, would result in  the  selection
of the best out of those willing to be appointed.   With  reference  to  the
participation of the Union Minister in charge of Law and Justice, as  an  ex
officio Member of the NJAC, it was submitted, that  the  mere  participation
of one executive representative, would not make  the  process  incompatible,
with the concept of  “independence  of  the  judiciary”.   In  this  behalf,
emphatic reliance was placed on the observations of E.S. Venkataramiah,  J.,
from two paragraphs of the First Judges  case,  which  are  being  extracted
hereunder:
“1033. As a part of this very contention it  is  urged  that  the  Executive
should have no voice at all in the matter of appointment of  Judges  of  the
superior courts in India as the independence of the  judiciary  which  is  a
basic feature of the Constitution  would  be  in  serious  jeopardy  if  the
executive can interfere with  the  process  of  their  appointment.   It  is
difficult to hold that merely because the power of appointment is  with  the
executive, the independence of the judiciary  would  become  impaired.   The
true principle is that after such appointment the executive should  have  no
scope to interfere with the work of a Judge.”
“1038.  The foregoing gives a fairly reliable picture of the English  system
of appointments of Judges.  It is thus seen that in England the  Judges  are
appointed by the Executive. “Nevertheless, the  judiciary  is  substantially
insulated by virtue of rules  of  strict  law,  constitutional  conventions,
political practice and professional tradition, from political influence.”

It  was  finally  submitted  by  learned  counsel,   that   a   multi-member
constitutional body, was expected to act fairly and independently,  and  not
in violation of the Constitution.   It  was  contended,  that  plurality  by
itself was an adequate safeguard.  Reliance in this  behalf  was  placed  on
T.N. Seshan v. Union of India[84], so as to eventually  conclude,  that  the
constitutional amendment did  not  violate  the  “basic  structure”  of  the
Constitution, and that, it was in consonance with the concept of a free  and
independent judiciary, by further strengthening  the  “basic  structure”  of
the Constitution.
123.  Mr. Ajit Kumar Sinha, Senior Advocate, entered  appearance  on  behalf
of the State of Jharkhand.  He asserted, that he should be taken  as  having
adopted all the submissions addressed, on behalf  of  the  Union  of  India.
While commencing his submissions, he placed reliance on Article  124(4)  and
proviso (b) under Article 217(1) to  contend,  that  Judges  of  the  higher
judiciary, could not be removed except by an order passed by the  President,
after an address by each House of Parliament, supported  by  a  majority  of
the total membership of that House, and by  a  majority  of  not  less  than
2/3rd of the Members of the House present and voting, had been presented  to
the President, on the ground of proved misbehaviour or incapacity.  In  this
behalf, learned senior counsel placed reliance on Section 16 of the  General
Clauses Act, 1897, which provides that the power  to  appoint  includes  the
power to suspend or dismiss.  Read in conjunction with  Article  367,  which
mandates, that unless the context otherwise required, the provisions of  the
General  Clauses  Act  1897,  would  apply  to  the  interpretation  of  the
provisions of the Constitution, in the same manner as they  applied  to  the
interpretation of an Act of the legislature. Based on the aforesaid, it  was
sought to be asserted, that in the absence of any role of the  judiciary  in
the matter of removal of a Judge belonging  to  the  higher  judiciary,  the
judiciary could not demand primacy in the matter of  appointment  of  Judges
of the higher judiciary, as an integral component of  the  “independence  of
the judiciary”. It was submitted, on  the  issue  of  “independence  of  the
judiciary”, the question of manner of appointment was  far  less  important,
than the question of removal from the position of Judge.  Adverting  to  the
manner of removal of Judges of the higher judiciary, in accordance with  the
provisions referred to hereinabove, it was asserted, that in the  matter  of
removal of a  Judge  from  the  higher  judiciary,  there  was  no  judicial
participation.  It was solely the  prerogative  of  the  legislature.   That
being so, it was contended, that the submissions advanced at the  behest  of
the petitioners, that primacy  in  the  matter  of  appointment  of  Judges,
should be vested in the judiciary, was nothing but a fallacy.
124.  The second contention advanced by learned senior counsel was, that  it
should not be assumed  as  if  the  NJAC,  would  take  away  the  power  of
appointment of Judges to the higher judiciary, from the  judiciary.  It  was
submitted, that three of the  six  Members  of  the  NJAC  belonged  to  the
judiciary, and that, one of them, namely, the Chief Justice of India was  to
preside over the proceedings of the NJAC, as its Chairperson.  Thus  viewed,
it was submitted, that it  was  wholly  misconceived  on  the  part  of  the
petitioners to contend, that the power of appointment of  Judges,  had  been
taken away from the judiciary,  and  vested  with  the  executive.   It  was
submitted, that there was nothing fundamentally illegal or  unconstitutional
in the  manner  of  appointment  of  Judges  to  the  higher  judiciary,  as
contemplated  by  the  impugned  constitutional  amendment.   It  was   also
contended, that the manner of appointment of  Judges,  contemplated  through
the NJAC, could not be perceived as violative of the  “basic  structure”  of
the Constitution, by the mere fact, that any two Members  of  the  NJAC  can
veto a proposal of appointment of a Judge  to  the  higher  judiciary.   And
that, the above would result in the subversion of the “independence  of  the
judiciary”. In support of the aforestated submissions, it  was  highlighted,
that the manner of appointment  of  Judges,  which  was  postulated  in  the
judgments rendered in the Second and Third Judges cases, do not lead to  the
inference, that if the manner of appointment  as  contemplated  therein  was
altered, it would violate the “basic structure” of the Constitution.
125.  Mr. Yatindra Singh, learned Senior Advocate, entered appearance as  an
intervener.  He contended, that the preamble to the Constitution  of  India,
Article 50  (which  provides  for  separation  of  the  judiciary  from  the
executive),  the  oath  of  office  of  a  Judge  appointed  to  the  higher
judiciary,  the  security  of  his  tenure  including  the  fixed   age   of
retirement, the protection of the emoluments  payable  to  Judges  including
salary and leave, etc., the fact that the Judges  appointed  to  the  higher
judiciary served in Courts  of  Record,  having  the  power  to  punish  for
contempt, and the provisions of the Judicial Officers Protection Act,  1850,
and the Judges (Protection) Act, 1985, which grant  immunity  to  them  from
civil  as  well  as  criminal  proceedings,  are  incidents,  which  ensured
“independence of the judiciary”.  It  was  submitted,  that  the  manner  of
appointment of Judges to the  higher  judiciary,  had  nothing  to  do  with
“independence of the judiciary”.  It was pointed out, that  insofar  as  the
determination of the validity of the impugned constitutional  amendment  was
concerned, it was not  essential  to  make  a  reference  to  the  judgments
rendered by this Court in  the  Second  and  Third  Judges  cases.   It  was
submitted, that the only question that needed to be  determined  insofar  as
the  present  controversy  is  concerned,  was  whether,   the   manner   of
appointment postulated through the NJAC, would interfere with  “independence
of Judges”. In this behalf,  it  was  firstly  asserted,  that  neither  the
Second nor  the  Third  Judges  case  had  concluded,  that  the  manner  of
appointment  of  Judges  would  constitute  the  “basic  structure”  of  the
Constitution.  Nor that, the manner of appointment of Judges to  the  higher
judiciary as postulated in the Second and Third Judges cases,  if  breached,
would violate the “basic structure” of the Constitution.  It was  submitted,
that the judgments rendered in the Second  and  Third  Judges  cases  merely
interpreted the law, as it then existed.  It was asserted,  that  the  above
judgments did  not  delve  into  the  question,  whether  any  factor(s)  or
feature(s) considered, were components  of  the  “basic  structure”  of  the
Constitution.
126.  Learned  senior  counsel,  also  placed  reliance  on  the  manner  of
appointment of Judges in  the  United  States  of  America,  Australia,  New
Zealand, Canada, and Japan to contend, that in all  these  countries  Judges
appointed to the higher judiciary, were discharging  their  responsibilities
independently, and as such, there was no reason or  justification  for  this
Court to infer, if the manner of appointment of Judges was altered from  the
position contemplated in the Second and  Third  Judges  cases,  to  the  one
envisaged by the impugned constitutional  amendment,  it  would  affect  the
“independence of the Judges”.  It was submitted,  that  different  countries
in the world had adopted different processes of  selection  for  appointment
of Judges.  Each country had achieved “independence of the  judiciary”,  and
as such, it was presumptuous  to  think  that  Judges  appointed  by  Judges
alone, can discharge their duties independently.
127.  Learned senior counsel also pointed out, that the  “collegium  system”
was not the only process of appointment of Judges, which could  achieve  the
“independence of the judiciary”.  Had it been so,  it  would  have  been  so
concluded in the judgments rendered in the Second and  Third  Judges  cases.
It was the submission of the learned senior counsel, that  “independence  of
the judiciary” could be achieved by other methods, as had  been  adopted  in
other countries, or in a manner, as the Parliament deemed  just  and  proper
for India.  It was asserted, that the manner of appointment contemplated  by
the impugned constitutional amendment had no infirmity,  with  reference  to
the issue of “independence of the judiciary”, on account of the  fact,  that
there was hardly any participation in the NJAC,  at  the  behest  of  organs
other than the judiciary.
128.  Last of all, learned senior counsel  contended,  that  the  “collegium
system” did  not  serve  the  purpose  of  choosing  the  best  amongst  the
available.  The failure of the “collegium system”, according to the  learned
senior counsel, was apparent from the  opinion  expressed  by  V.R.  Krishna
Iyer, J. in the foreword to the book “Story of a  Chief  Justice”,  authored
by U.L. Bhat, J. The “collegium system” was also adversely  commented  upon,
by Ruma Pal, J., while delivering the 5th V.M. Tarkunde Memorial Lecture  on
the topic “An Independent Judiciary”.  Reference in this  behalf,  was  also
made to the observations made by S.S. Sodhi, J., a former Chief  Justice  of
the Allahabad High Court, in his book “The Other Side of Justice”,  and  the
book authored by Fali  S.  Nariman,  in  his  autobiography  “Before  Memory
Fades”. It was contended, that the aforesaid experiences,  and  the  adverse
all around comments, with reference to the implementation of the  “collegium
system”, forced the Parliament to enact the  Constitution  (99th  Amendment)
Act, which provided for a far better method for  selection  and  appointment
of Judges to the higher judiciary, than  the  procedure  contemplated  under
the “collegium system”. It was submitted,  that  whilst  the  NJAC  did  not
exclude the role of the judiciary, it included two  “eminent  persons”  with
one executive nominee, namely, the Union  Minister  in  charge  of  Law  and
Justice, as Members of the NJAC. Since the role of the  executive/Government
in the NJAC was minimal, it was preposterous to assume, that  the  executive
would ever be able to have its way, in the matter of appointment  of  Judges
to the higher judiciary. It was submitted, that the NJAC would  fulfill  the
objective of transparency, in the matter of appointment of  Judges,  and  at
the  same  time,  would  make  the  selection  process  broad  based.  While
concluding his submissions, it was also suggested by  the  learned  counsel,
that the NJAC should be allowed to operate  for  some  time,  so  as  to  be
tested, before being scrapped at its very inception. And that, it  would  be
improper to negate the process even before the experiment had begun.
129.  Mr. Dushyant A. Dave, Senior Advocate and  President  of  the  Supreme
Court Bar Association, submitted that the only question that  needed  to  be
adjudicated upon, with reference to the  present  controversy  was,  whether
the manner of appointment of Judges to the  higher  judiciary,  through  the
NJAC, would fall  within  the  constitutional  frame  work?  Learned  senior
counsel  commenced  his  submissions  by   highlighting   the   fact,   that
parliamentary  democracy  contemplated  through  the   provisions   of   the
Constitution, was a greater basic concept, as compared to the  “independence
of the judiciary”. It was submitted, that the manner  in  which  submissions
had been advanced at the behest of the  petitioners,  it  seemed,  that  the
matter of appointment of Judges to the higher judiciary, is  placed  at  the
highest pedestal, in the “basic structure doctrine”. Learned senior  counsel
seriously contested the veracity of the aforesaid belief. It was  submitted,
that if those representing the petitioners, were  placing  reliance  on  the
judgment rendered in the  Second  Judges  case,  to  project  the  aforesaid
principle, it was legally fallacious, to do so.  The  reason,  according  to
learned senior counsel was, that the judgment in  the  Second  Judges  case,
was not premised on an interpretation of  any  constitutional  provision(s),
nor was it premised on  an  elaborate  discussion,  with  reference  to  the
subject under consideration, nor was  reliance  placed  on  the  Constituent
Assembly debates.  It was pointed out,  that  the  judgment  in  the  Second
Judges case was rendered, on the basis of  the  principles  contemplated  by
the authors of the judgment, and not on  any  principles  of  law.   It  was
accordingly asserted, that the petitioners’ contentions,  deserved  outright
rejection.
130.  Learned senior counsel invited this Court’s  attention  to  the  fact,
that the judgments rendered in the Kesavananda Bharati case10,  the  Minerva
Mills Ltd. case33, and I.R. Coelho v. State of Tamil Nadu[85],  wherein  the
concept of “basic structure” of the Constitution was  formulated  and  given
effect to, were all matters wherein  on  different  aspects,  the  power  of
judicial review had been  suppressed/subjugated.   It  was  submitted,  that
none of the aforesaid judgments could be relied upon to  determine,  whether
the  manner  of  appointment  of  the  Judges  to  the   higher   judiciary,
constituted a part of the “basic structure” of  the  Constitution.   It  was
therefore, that reliance was placed on Article  368  to  contend,  that  the
power to amend the  Constitution,  had  been  described  as  a  “constituent
power”, i.e., a power similar to the one which came  to  be  vested  in  the
Constituent Assembly, for drafting  the  Constitution.   It  was  submitted,
that no judgment could negate or diminish  the  “constituent  power”  vested
with the Parliament, under Article 368.  Having  highlighted  the  aforesaid
factual position, learned senior  counsel  advanced  passionate  submissions
with reference to various appointments made, on the basis of  the  procedure
postulated in the Second and Third Judges cases.   Reference  was  pointedly
made to the appointment of a particular Judge to this  Court  as  well.   It
was pointed out, that the concerned Judge had decided a  matter,  by  taking
seisin of the same, even though it was not posted for  hearing  before  him.
Thereafter, even though a review petition was filed to correct the  anomaly,
the same was  dismissed  by  the  concerned  Judge.   While  projecting  his
concern with reference to the appointment of Judges to the higher  judiciary
under the collegium system,  learned  senior  counsel  emphatically  pointed
out,  that  the  procedure  in  vogue  before  the  impugned  constitutional
amendment, could be described as a closed-door process,  where  appointments
were  made  in  a  hush-hush  manner.   He  stated  that  the  stakeholders,
including  prominent  lawyers  with  unimpeachable  integrity,  were   never
consulted.  It was submitted, that inputs were never sought, from those  who
could render valuable assistance,  for  the  selection  of  the  best,  from
amongst  those  available.   It  was  pointed  out,  that  the  process   of
appointment of Judges under the collegium system, was  known  to  have  been
abused in certain cases, and  that,  there  were  certain  inherent  defects
therein.  It was submitted, that the policy of selection, and the method  of
selection, were not justiciable, being not amenable to judicial review,  and
as such, no challenge could be raised  to  the  wrongful  appointments  made
under the “collegium system”.
131.  On the subject of the manner of interpreting  the  Constitution,  with
reference to appointments to the higher judiciary, reliance  was  placed  on
Registrar (Admn), High Court of Orissa, Cuttack v. Sisir Kanta  Satapathy32,
to contend, that in spite of having noticed the judgments  rendered  in  the
Second Judges case, this Court struck a note of caution, with  reference  to
the control, vested in the High Courts, over the subordinate judiciary.   It
was pointed out, that it had been held, that control  had  to  be  exercised
without usurping the power vested with the executive, especially  the  power
under Articles 233, 234 and 235.  It is submitted, that  the  power  of  the
executive in the matter of appointments of Judges to the  higher  judiciary,
could not be brushed aside, without any justification.   It  was  contended,
that it was improper to assume, that only the judiciary  could  appoint  the
best Judges, and the executive or the legislature could not.
132.  Learned senior counsel also made  an  impassioned  reference,  to  the
failure of the judiciary, to grant relief to the victims of the  1984  riots
in Delhi, and the 2003  riots  in  Gujarat.   It  was  also  asserted,  that
justice had been denied to those who deserved it the most, namely, the  poor
citizenry  of  this  country.  It  was  pointed  out,  that  the  manner  of
appointment of Judges, through the  “collegium  system”,  had  not  produced
Judges of the kind who were sensitive to the rights of the poor  and  needy.
It was the assertion of the learned senior  counsel,  that  the  new  system
brought in for selection and appointment of Judges to the higher  judiciary,
should be tried and tested, and  in  case,  certain  parameters  had  to  be
provided for, to ensure  its  righteous  functioning  to  achieve  the  best
results, it was always open to this Court to provide such guidelines.



V.    THE DEBATE AND THE DELIBERATION:
                                     I.
133.  The Union Government, as also, the  participating  State  Governments,
were all unanimous in their ventilation, that  the  impugned  constitutional
amendment, had been passed unanimously by both the Lok Sabha and  the  Rajya
Sabha, wherein parliamentarians from all political  parties  had  spoken  in
one voice.  The Lok Sabha had passed the Bill with  367  Members  voting  in
favour of the Bill, and no one against it (the Members from the AIADMK –  37
in all, had however abstained from voting).   The  Rajya  Sabha  passed  the
Bill with 179 Members voting in favour of the Bill, and one of  its  Members
– Ram Jethmalani, abstaining. It was  submitted,  that  on  account  of  the
special procedure prescribed under the proviso to Article 368(2),  the  Bill
was ratified in no time by half the State Legislatures.  Mr.  Tushar  Mehta,
learned Additional Solicitor General of India, had informed the Court,  that
as many as twenty-eight State Assemblies, had eventually ratified the  Bill.
It was assented to  by  the  President  on  31.12.2014.   It  was  therefore
asserted,  that  the  Constitution  (99th  Amendment)  Act  manifested,  the
unanimous will of the people, and therefore, the same must be deemed  to  be
expressive of the desire of the nation. Based on  the  fact,  that  impugned
constitutional  amendment  reflected  the  will  of  the  people,   it   was
submitted, that it would not be appropriate to test it through a process  of
judicial  review,  even  on  the  touchstone  of  the  concept   of   “basic
structure”.
134.  Learned counsel representing the petitioners, described the  aforesaid
assertion as misplaced. The contention  was  repulsed  by  posing  a  query,
whether the same was the will of the nation of the “haves”, or the  will  of
the nation of the “have-nots”?  Another  question  posed  was,  whether  the
impugned constitutional amendment represented the desire of  the  rich,  the
prosperous  and  the  influential,  or  the  poor  and  the   needy,   whose
conditions, hopes and expectations had  nothing  to  do  with  the  impugned
constitutional amendment? It was submitted, that the  will  of  the  nation,
could only be decided by a plebiscite or a referendum.   It  was  submitted,
that the petitioners would concede, that it could certainly be described  as
the overwhelming will of  the  political-executive.  And  no  more.  It  was
asserted, that the impugned constitutional amendment had an oblique  motive.
The amendment was passed unanimously, in the  opinion  of  the  petitioners,
for the simple reason, that the higher judiciary  corrects  the  actions  of
the executive and the legislatures. This, it was pointed  out,  bothers  the
political-executive.
135.  With reference to the will of the people, it was submitted,  that  the
same could easily be ascertainable from the decision  rendered  in  the  L.C
Golak  Nath  case41,  wherein  a  eleven-Judge  Bench   declared,   that   a
constitutional amendment was  “law”  with  reference  to  Part  III  of  the
Constitution,  and  therefore,  was  subject  to  the  constraint   of   the
fundamental rights,  in  the  said  part.  It  was  pointed  out,  that  the
Parliament, had invoked Article 368, while passing  the  Constitution  (25th
Amendment) Act, 1971. By the above amendment, a law  giving  effect  to  the
policy of the State under Articles 39(b) and 39(c)  could  not  be  declared
void, on the ground that it was inconsistent  with  the  fundamental  rights
expressed through Articles 14, 19 and 31. Article 31C also provided, that  a
legislative enactment containing such a “declaration”, namely, that  it  was
for giving effect to the above policy of the State, would not be  called  in
question on the ground, that it  did  not  factually  gave  effect  to  such
policy.  It was pointed out, that this  Court  in  the  Kesavananda  Bharati
case10, had overruled the judgment in the  I.C.  Golak  Nath  case41.   This
Curt, while holding as unconstitutional  the  part  of  Article  31C,  which
denied judicial review, on  the  basis  of  the  “declaration”  referred  to
above, also held, that the right of  judicial  review  was  a  part  of  the
“basic structure” of the Constitution, and its denial would  result  in  the
violation of the “basic structure” of the Constitution.
136.  Proceeding further, it was submitted, that on 12.6.1975, the  election
of Indira Gandhi to the Lok Sabha  was  set  aside  by  the  Allahabad  High
Court. That decision was assailed before  the  Supreme  Court.  Pending  the
appeal, the Parliament passed the Constitution (39th Amendment)  Act,  1975.
By the above amendment, election to the Parliament, of  the  Prime  Minister
and the Speaker could not be assailed, nor could the election be held  void,
or be deemed to have ever become void, on any of the  grounds  on  which  an
election could be declared  void.   In  sum  and  substance,  by  a  deeming
fiction of law, the election of the Prime Minister  and  the  Speaker  would
continue to  be  valid,  irrespective  of  the  defect(s)  and  illegalities
therein.  By the above amendment, it was provided, that any  pending  appeal
before the Supreme Court would  be  disposed  of,  in  conformity  with  the
provisions of the Constitution (39th Amendment)  Act,  1975.  The  aforesaid
amendment was struck  down  by  this  Court,  by  declaring  that  the  same
amounted to a negation of the “rule of law”, and also because, it was “anti-
democratic”,  and  as  such,  violated  the   “basic   structure”   of   the
Constitution. It was submitted, that as an answer to the  striking  down  of
material parts of Article 39A of  the  Constitution,  the  Parliament  while
exercising its power under Article 368, had passed  the  Constitution  (42nd
Amendment) Act, 1976,  by  an  overwhelming  majority.   Through  the  above
amendment, the Parliament added clauses (4) and (5) to  Article  368,  which
read as under:
“(4) No amendment of this Constitution (including  the  provisions  of  Part
III) made or purporting to have been made under this article whether  before
or after the commencement of section 55 of  the  Constitution  (Forty-second
Amendment) Act, 1976 shall be  called  in  question  in  any  court  on  any
ground.
(5) For the removal of doubts, it is hereby declared that there shall be  no
limitation whatever on the constituent power of Parliament to amend  by  way
of addition, variation or repeal the provisions of this  Constitution  under
this article.”

The aforesaid amendment was set  aside,  as  being  unconstitutional,  by  a
unanimous decision, in the Minerva Mills Ltd. case33.   It  was  held,  that
the amending  power  of  the  Parliament  under  Article  368  was  limited,
inasmuch as, it had no right to repeal or abrogate the Constitution,  or  to
destroy its “basic or essential features”.
137.  Learned senior counsel pointed out, that over the years,  yet  another
stratagem was adopted by the Parliament, for avoiding judicial  interference
in the working of the Parliament.  In this behalf,  reference  was  made  to
the Constitution (45th Amendment) Bill, 1978, wherein it was provided,  that
even the “basic structure” of the Constitution  could  be  amended,  on  its
approval through a referendum.  The amendment added  a  proviso  to  Article
368(2) postulating, that a law compromising with the  “independence  of  the
judiciary” would require  ratification  by  one  half  of  the  States,  and
thereupon, would become unassailable, if adopted by a simple  majority  vote
in a referendum.  Through its aforesaid action, the Government of  the  day,
revealed  its  intention  to  compromise  even  the  “independence  of   the
judiciary”. Though the above Bill was passed by an overwhelming majority  in
the Lok Sabha, it could not muster the two-thirds majority required  in  the
Rajya Sabha.  It was pointed out, that the propounder of the  Bill  was  the
then Janata Party Government, and not the Congress Party  Government  (which
was  responsible  for  the  emergency,  and   the   earlier   constitutional
amendments). It was therefore asserted, that it should not surprise  anyone,
if all political parties had spoken in  one  voice,  because  all  political
parties  were  united  in  their  resolve,  to  overawe  and  subjugate  the
judiciary.
138.  It was submitted, that  the  intention  of  the  legislature  and  the
executive, irrespective of the party in power, has been to invade  into  the
“independence of the judiciary”. It was further submitted, that attempts  to
control the judiciary have been more pronounced in recent  times.   In  this
behalf, the Court’s attention was drawn to the judgments in Lily  Thomas  v.
Union of India[86], and Chief Election Commissioner  v.  Jan  Chaukidar[87].
It was pointed out, that in the former judgment, this Court held as  invalid
and unconstitutional, Section 8(4) of the Representation of the People  Act,
1951, which provided inter alia, that a Member of  Parliament  convicted  of
an offence and sentenced to imprisonment for not less than two years,  would
not suffer the disqualification contemplated  under  the  provision,  for  a
period of three months from the date of conviction,  or  if  the  conviction
was assailed by way of an appeal or  revision  –  till  such  time,  as  the
appeal or revision was  disposed  of.  By  the  former  judgment,  convicted
Members became disqualified, and had to vacate their respective seats,  even
though, the conviction was under challenge. In  the  latter  judgment,  this
Court upheld the order passed by the Patna  High  Court,  declaring  that  a
person who was confined to prison, had no right to vote, by  virtue  of  the
provisions contained in Section 62(2) of the Representation  of  the  People
Act, 1951.  Since he/she was not an elector, therefore  it  was  held,  that
he/she could not be considered as qualified, to contest elections to  either
House of Parliament, or to a Legislative Assembly of a State.
139.  It was pointed  out,  that  Government  (then  ruled  by  the  U.P.A.)
introduced a series of Bills, to invalidate the judgment  rendered  by  this
Court in the Jan Choukidar case87. This was sought to  be  done  by  passing
the Representation of the  People  (Amendment  and  Validation)  Act,  2013,
within three  months  of  the  rendering  of  the  above  judgment.  It  was
submitted,  that  it  was  wholly  misconceived  for  the  learned   counsel
representing the Union of India, and the concerned States to  contend,  that
the determination  by  the  Parliament  and  the  State  Legislatures,  with
reference to constitutional amendments, could be described as actions  which
the entire nation desired, or represented the will of the  people.   It  was
submitted, that what was patently  unconstitutional,  could  not  constitute
either the desire of the nation, or the will of the people.
140.  Referring to the  “collegium  system”  of  appointing  Judges  to  the
higher judiciary, it was pointed out, that the same was put in  place  by  a
decision rendered by a nine-Judge Bench, in the Second Judges case,  through
which the “independence of the judiciary”  was  cemented  and  strengthened.
This could be achieved, by  vesting  primacy  with  the  judiciary,  in  the
matter of selection and appointment of Judges to the  higher  judiciary.  It
was  further  pointed  out,  that  the  collegium  system  has  been   under
criticism, on account of lack  of  transparency.   It  was  submitted,  that
taking advantage of  the  above  criticism,  political  parties  across  the
political spectrum, have  been  condemning  and  denouncing  the  “collegium
system”. Yet again, it was pointed out, that the Parliament  in  its  effort
to build  inroads  into  the  judicial  system,  had  enacted  the  impugned
constitutional amendment, for interfering with the  judicial  process.  This
oblique motive, it was asserted, could not be described as the will  of  the
people, or the will of the nation.
141.   In  comparison,  while   making   a   reference   to   the   impugned
constitutional  amendment  and  the  NJAC  Act,  it  was  equally  seriously
contended, that the constitutional amendment compromised  the  “independence
of the judiciary”,  by  negating  the  “primacy  of  the  judiciary”.   With
reference to the insinuations  levelled  by  the  Union  of  India  and  the
concerned State Governments, during the course  of  hearing,  reference  was
made to an article bearing the  title  “Structure  Matters:  The  Impact  of
Court Structure on the Indian and U.S. Supreme  Courts”,  authored  by  Nick
Robinson. Reference was made to the following expositions made therein:
“Given their virtual self-selection, judges on the Indian Supreme Court  are
viewed as less politicised than in the United States.  The  panel  structure
of the Court also prevents clear ideological  blocks  from  being  perceived
(even if there are more “activist” or “conservative” judges)  there  is  not
the sense that all the judges have to assemble together for  a  decision  to
be legitimate or fair in the eyes of the public. Quite the opposite,  judges
are viewed as bringing  different  skills  or  backgrounds  that  should  be
selectively utilized.”

142.  It was submitted, that the method of appointment, evolved through  the
Second and Third Judges cases, had been hailed by several jurists,  who  had
opined that the same could be treated as a precedent worthy of emulation  by
the United Kingdom.  Reference in this behalf was also made to, the  opinion
of Lord Templeman, a Member of the House of Lords in the United Kingdom.
143.  Having given our thoughtful consideration to the position  assumed  by
the learned counsel representing the  rival  parties,  it  is  essential  to
hold, that every constitutional amendment passed by the  Parliament,  either
by following the ordinary procedure contemplated under  Article  368(2),  or
the special procedure contemplated in the proviso to Article  368(2),  could
in a sense of understanding,  by  persons  not  conversant  with  the  legal
niceties of the issue, be treated as the will of the people, for the  simple
reason, that parliamentarians  are  considered  as  representatives  of  the
people. In  our  view,  as  long  as  the  stipulated  majority  supports  a
constitutional amendment, it would be treated as a constitutional  amendment
validly passed.  Having satisfied the above benchmark, it may be  understood
as an expression of the will of the people, in the sense noticed above.  The
strength and enforceability of a constitutional  amendment,  would  be  just
the same, irrespective  of  whether  it  was  passed  by  the  bare  minimum
majority postulated therefor, or by a substantial majority, or  even  if  it
was approved unanimously. What is important, is to keep in mind, that  there
are  declared  limitations,  on  the  amending  power   conferred   on   the
Parliament, which cannot be breached.
144.  An ordinary legislation enacted by the Parliament  with  reference  to
subjects contained in the Union List or the Concurrent List,  and  likewise,
ordinary legislation enacted by State Legislatures on subjects contained  in
the State List and the Concurrent List, in a sense of understanding  noticed
above, could be treated as enactments made in consonance with  the  will  of
the people, by lay persons not conversant with the  legal  niceties  of  the
issue.  Herein  also,  there  are  declared  limitations  on  the  power  of
legislations, which cannot be violated.
145.  In almost all challenges, raised on the ground  of  violation  of  the
“basic structure” to constitutional amendments made under Article  368,  and
more particularly, those requiring the compliance of the  special  and  more
rigorous procedure expressed  in  the  proviso  under  Article  368(2),  the
repeated assertion advanced at the hands of the Union, has  been  the  same.
It has been the contention of the Union of India, that an amendment  to  the
Constitution, passed by following the procedure expressed in the proviso  to
Article 368(2), constituted the will of the people, and  the  same  was  not
subject to judicial review. The same argument had been  repeatedly  rejected
by this Court by holding, that Article 368  postulates  only  a  “procedure”
for amendment of the Constitution, and that, the same could not  be  treated
as a “power” vested in the Parliament to amend the Constitution,  so  as  to
alter, the “core” of the Constitution, which has  also  been  described  as,
the  “basic  features/basic  structure”  of  the  Constitution.   The  above
position has been projected, through the judgments cited on  behalf  of  the
petitioners, to which reference has been made hereinabove.
146.   Therefore,  even  though  the  Parliament   may   have   passed   the
Constitution  (121st  Amendment)  Bill,  with  an   overwhelming   majority,
inasmuch as, only 37 Members from the AIADMK had consciously abstained  from
voting in the Lok Sabha, and only one  Member  of  the  Rajya  Sabha  –  Ram
Jethmalani, had consciously abstained from  voting  in  favour  thereof,  it
cannot be accepted, that the same is  exempted  from  judicial  review.  The
scope of judicial  review  with  reference  to  a  constitutional  amendment
and/or an ordinary legislation, whether  enacted  by  the  Parliament  or  a
State Legislature, cannot vary, so  as  to  adopt  different  standards,  by
taking into consideration the strength  of  the  Members  of  the  concerned
legislature, which  had  approved  and  passed  the  concerned  Bill.  If  a
constitutional  amendment  breaches  the  “core”  of  the  Constitution   or
destroys its “basic or essential features” in a manner  which  was  patently
unconstitutional, it would  have  crossed  over  forbidden  territory.  This
aspect, would undoubtedly fall within the realm of judicial review.  In  the
above view of the matter, it  is  imperative  to  hold,  that  the  impugned
constitutional amendment, as  also,  the  NJAC  Act,  would  be  subject  to
judicial  review  on  the  touchstone  of  the  “basic  structure”  of   the
Constitution, and the parameters laid down by this  Court  in  that  behalf,
even though the impugned constitutional amendment  may  have  been  approved
and passed unanimously or by an overwhelming majority,  and  notwithstanding
the ratification thereof  by  as  many  as  twenty-eight  State  Assemblies.
Accordingly, we find no merit in the  contention  advanced  by  the  learned
counsel for the respondents, that the impugned constitutional  amendment  is
not assailable, through a process of judicial review.
                                     II.
147.  It was the submission  of  the  learned  Attorney  General,  that  the
“basic  features/basic  structure”  of  the  Constitution,  should  only  be
gathered from a plain reading of the provision(s) of  the  Constitution,  as
it/they was/were originally enacted.  In this behalf,  it  was  acknowledged
by the learned counsel representing the  petitioners,  that  the  scope  and
extent of the “basic features/basic structure” of the Constitution,  was  to
be ascertained only from the provisions of the Constitution,  as  originally
enacted, and additionally, from the interpretation placed on  the  concerned
provisions, by this Court.  The above qualified assertion made on behalf  of
the petitioners, was unacceptable to the learned  counsel  representing  the
respondents.
148.  The above disagreement, does not require any  detailed  analysis.  The
instant aspect, stands determined in the M. Nagaraj case36, wherein  it  was
held as under:
“...The question is – whether the impugned amendments discard  the  original
Constitution. It was vehemently urged on behalf of the petitioners that  the
Statement of Objects and Reasons  indicates  that  the  impugned  amendments
have been promulgated by  Parliament  to  overrule  the  decisions  of  this
Court.  We do not find any merit in this argument.   Under  Article  141  of
the Constitution the pronouncement of this Court is the law of the land.”

149.  The cause, effect and the width of a provision, which is the basis  of
a challenge, may sometimes not be apparent from  a  plain  reading  thereof.
The interpretation placed by this Court on  a  particular  provision,  would
most certainly depict a holistic understanding thereof,  wherein  the  plain
reading would have naturally been considered, but in addition  thereto,  the
vital silences hidden therein, based on a  harmonious  construction  of  the
provision, in conjunction with the surrounding provisions, would  also  have
been taken into consideration. The mandate of  Article  141,  obliges  every
court  within  the  territory  of  India,  to  honour  the   interpretation,
conclusion, or meaning assigned to a provision by  this  Court.   It  would,
therefore be rightful, to  interpret  the  provisions  of  the  Constitution
relied upon, by giving the concerned provisions, the meaning,  understanding
and exposition, assigned to them, on their interpretation by this Court.  In
the above view of the matter,  it  would  neither  be  legal  nor  just,  to
persist on an understanding of the concerned  provision(s),  merely  on  the
plain reading thereof, as was suggested on behalf of the respondents.   Even
on a plain reading of Article 141, we are obligated, to read the  provisions
of the Constitution, in the  manner  they  have  been  interpreted  by  this
Court.
150.  The manner in which the term “consultation” used in Articles 124,  217
and 222 has been interpreted by the Supreme Court, has  been  considered  at
great length in the “Reference Order”, and therefore, there is  no  occasion
for us, to re-record the same yet again.  Suffice it  to  notice,  that  the
term “consultation” contained in Articles 124, 217 and 222 will have  to  be
read as assigning primacy to the opinion expressed by the Chief  Justice  of
India (based on a decision, arrived at by a collegium  of  Judges),  as  has
been concluded in the “Reference Order”. In  the  Second  and  Third  Judges
cases, the above provisions were interpreted by this Court, as they  existed
in their original format, i.e., in the manner in which the  provisions  were
adopted by the Constituent Assembly, on 26.11.1949 (-which  took  effect  on
26.01.1950).  Thus viewed, we reiterate, that in the matter  of  appointment
of Judges to the higher judiciary, and also, in the matter  of  transfer  of
Chief Justices and Judges from one High  Court  to  any  other  High  Court,
under Articles 124, 217 and 222, primacy conferred on the Chief  Justice  of
India and his collegium of Judges, is liable to be accepted as  an  integral
constituent of the above provisions  (as  originally  enacted).   Therefore,
when a question with reference to the selection and  appointment  (as  also,
transfer) of Judges to the higher judiciary is  raised,  alleging  that  the
“independence of the  judiciary”  as  a  “basic  feature/structure”  of  the
Constitution has been violated, it would have to be ascertained whether  the
primacy of the judiciary  exercised  through  the  Chief  Justice  of  India
(based on a collective wisdom of a collegium of Judges), had been  breached.
 Then alone,  would  it  be  possible  to  conclude,  whether  or  not,  the
“independence of the judiciary” as  an  essential  “basic  feature”  of  the
Constitution, had been preserved (-and had not been breached).
                                    III.
151.  We have already concluded in the  “Reference  Order”,  that  the  term
“consultation” used in Articles 124, 217 and  222  (as  originally  enacted)
has to be read as vesting primacy in the judiciary, with  reference  to  the
decision making process, pertaining to  the  selection  and  appointment  of
Judges to the higher judiciary, and also, with reference to the transfer  of
Chief Justices and Judges of one High Court, to another.   For  arriving  at
the  above  conclusion,   the   following   parameters   were   taken   into
consideration:
(i)   Firstly, reference was made to four  judgments,  namely,  the  Samsher
Singh case11, rendered in 1974 by a seven-Judge Bench,  wherein  keeping  in
mind the cardinal principle – the “independence of the  judiciary”,  it  was
concluded, that consultation with the highest dignitary in the  judiciary  –
the Chief Justice of India, in practice  meant,  that  the  last  word  must
belong to the Chief Justice of India, i.e., the primacy  in  the  matter  of
appointment of Judges to the higher judiciary must rest with the  judiciary.
The above position was maintained in the Sankalchand  Himatlal  Sheth  case5
in 1977 by a five-Judge Bench, wherein it was held, that in all  conceivable
cases, advice tendered by the Chief Justice of India (in the course  of  his
“consultation”), should principally be accepted by the Government of  India,
and that, if the Government departed from the counsel  given  by  the  Chief
Justice of India, the Courts would have an opportunity to  examine,  if  any
other  extraneous  circumstances  had  entered  into  the  verdict  of   the
executive. In the instant judgment, so as to emphasize  the  seriousness  of
the matter, this Court also expressed, that  it  expected,  that  the  above
words would not fall on deaf ears. The same  position  was  adopted  in  the
Second Judges case rendered in 1993 by a nine-Judge Bench, by a majority  of
7:2, which also arrived at the conclusion, that  the  judgment  rendered  in
the First Judges case, did not lay down the correct law.  M.M. Punchhi,  J.,
 (as he then was) one  of  the  Judges  on  the  Bench,  who  supported  the
minority opinion, also endorsed the view, that the action of  the  executive
to put off the recommendation(s) made by the Chief Justice of  India,  would
amount to an act of deprival, “violating the spirit  of  the  Constitution”.
In sum and substance therefore, the Second Judges case,  almost  unanimously
concluded, that in the matter of selection and appointment of Judges to  the
higher judiciary, primacy in the  decision  making  process,  unquestionably
rested with the judiciary.  Finally, the  Third  Judges  case,  rendered  in
1998 by another nine-Judge Bench, reiterated the position  rendered  in  the
Second Judges case.
(ii)  Secondly, the final intent  emerging  from  the  Constituent  Assembly
debates, based inter alia on the concluding remarks expressed  by  Dr.  B.R.
Ambedkar,  maintained  that  the  judiciary  must  be  independent  of   the
executive. The aforesaid position came to be  expressed  while  deliberating
on the subject of “appointment” of Judges to the higher judiciary. Dr.  B.R.
Ambedkar while responding to the sentiments expressed  by  K.T.  Shah,  K.M.
Munshi,  Tajamul  Husain,  Alladi  Krishnaswami  Aayar  and   Ananthasayanam
Ayyangar, noted the view of the Constituent Assembly, that the Members  were
generally in agreement, that  “independence  of  the  judiciary”,  from  the
executive “should be made as clear and definite  as  it  could  be  made  by
law”. The above assertion made while debating on the  issue  of  appointment
of  Judges   to   the   Supreme   Court,   effectively   resulted   in   the
acknowledgement, that the issue  of  “appointment”  of  the  Judges  to  the
higher judiciary, had a direct nexus with “independence of  the  judiciary”.
Dr.  B.R.  Ambedkar  declined  the  proposal  of  adopting  the  manner   of
appointment of Judges, prevalent in the United Kingdom  and  in  the  United
States of America, and thereby, rejected the subjugation of the  process  of
selection and appointment of Judges to the higher judiciary,  at  the  hands
of the executive and the legislature respectively. While  turning  down  the
latter proposal, Dr. B.R. Ambedkar was suspicious and distrustful,  that  in
such  an  eventuality,  appointments  to  the  higher  judiciary,  could  be
impacted by “political pressure” and “political considerations”.
(iii) Thirdly, the actual practice and manner of appointment  of  Judges  to
the higher judiciary,  emerging  from  the  parliamentary  debates,  clearly
depict, that absolutely all Judges (except  in  one  case)  appointed  since
1950, had been appointed on the advice of the Chief Justice  of  India.   It
is therefore clear, that the political-executive has been conscious  of  the
fact, that the issue of appointment  of  Judges  to  the  higher  judiciary,
mandated the primacy of the judiciary, expressed through the  Chief  Justice
of India.  In this behalf, even the learned Attorney General  had  conceded,
that the supersession of senior Judges of the Supreme Court, at the time  of
the appointment of the Chief Justice of India in 1973, the mass transfer  of
Judges of the higher judiciary during the emergency in 1976, and the  second
supersession of a Supreme Court Judge, at the time  of  the  appointment  of
the Chief Justice of India in 1977, were executive aberrations.
(iv)  Fourthly, the Memorandum of Procedure for appointment  of  Judges  and
Chief Justices to the higher judiciary  drawn  in  1950,  soon  after  India
became independent, as also, the Memorandum of Procedure for appointment  of
Judges and Chief Justices to the higher judiciary  redrawn  in  1999,  after
the decision in the Second Judges case, manifest  that,  the  executive  had
understood and accepted, that selection and appointment  of  Judges  to  the
higher judiciary would emanate from, and would be made on the advice of  the
Chief Justice of India.
(v)   Fifthly, having adverted to the procedure in place for  the  selection
and appointment of Judges to the higher judiciary, the  submission  advanced
on behalf of the respondents, that the Second and  Third  Judges  cases  had
created a procedure, where Judges select and appoint Judges,  or  that,  the
system of Imperium in Imperio had been created for  appointment  of  Judges,
was  considered  and  expressly  rejected  (in   the   “Reference   Order”).
Furthermore, the  submission,  that  the  executive  had  no  role,  in  the
prevailing process of selection and appointment  of  Judges  to  the  higher
judiciary was also rejected, by highlighting the role of  the  executive  in
the matter of  appointment  of  Judges  to  the  higher  judiciary.   Whilst
recording the above  conclusions,  it  was  maintained  (in  the  “Reference
Order”), that primacy in the matter of appointment of Judges to  the  higher
judiciary, was with the Chief Justice of  India,  and  that,  the  same  was
based on the collective wisdom of a collegium of Judges.
(vi)  Sixthly, the contention advanced at the  behest  of  the  respondents,
that even in the matter of appointment of Judges  to  the  higher  judiciary
(and in the matter of their transfer) under Articles  124,  217  (and  222),
must be deemed to be vested in  the  executive,  because  the  President  by
virtue of the constitutional mandate contained in Article 74, had to act  in
accordance with the aid and  advice  tendered  to  him  by  the  Council  of
Ministers,  was  rejected  by  holding,  that  primacy  in  the  matter   of
appointment of Judges to the higher judiciary, continued to remain with  the
Chief Justice of India, and that, the  same  was  based  on  the  collective
wisdom of a  collegium  of  Judges.   In  recording  the  above  conclusion,
reliance was placed on Article 50. Reliance was also placed on  Article  50,
for recording a further conclusion, that if  the  power  of  appointment  of
Judges was left to the executive, the same would breach  the  principles  of
“independence of the judiciary” and “separation of powers”.
152.  In view of the above, it has to be concluded, that in  the  matter  of
appointment of Judges to the higher judiciary, as also,  in  the  matter  of
their transfer, primacy in the decision  making  process,  inevitably  rests
with the Chief Justice of India. And that,  the  same  was  expected  to  be
expressed, on the basis of the collective wisdom, of a collegium of  Judges.
 Having so concluded, we reject all the submissions advanced  at  the  hands
of the learned counsel for the respondents, canvassing to the contrary.
                                     IV.
153.  The next question which  arises  for  consideration  is,  whether  the
process of selection and appointment  of  Judges  to  the  higher  judiciary
(i.e., Chief Justices, and  Judges  of  the  High  Courts  and  the  Supreme
Court), and the transfer of Chief Justices and Judges of one High  Court  to
another,  contemplated  through  the  impugned   constitutional   amendment,
retains and preserves primacy in  the  decision  making  process,  with  the
judiciary? It was the emphatic contention of the learned  Attorney  General,
the learned Solicitor General, the  learned  Additional  Solicitor  General,
and a  sizeable  number  of  learned  senior  counsel  who  represented  the
respondents, that even after the impugned constitutional amendment,  primacy
in the decision making process, under Articles 124, 217 and  222,  has  been
retained with the judiciary.  Insofar as the instant aspect  of  the  matter
is concerned, it was contended on behalf of the respondents, that  three  of
the six Members  of  the  NJAC  were  ex  officio  Members  drawn  from  the
judiciary - the Chief Justice of India, and two other senior Judges  of  the
Supreme  Court,  next  to  the  Chief  Justice.   In  conjunction  with  the
aforesaid factual position, it was pointed out,  that  there  was  only  one
nominee from the political-executive – the Union Minister in charge  of  Law
and Justice. It was submitted, that the remaining two Members,  out  of  the
six-Member  NJAC,  were  “eminent  persons”,  who  were   expected   to   be
politically neutral. Therefore, according to  learned  counsel  representing
the respondents, primacy in the  matter  of  selection  and  appointment  of
Judges to the higher judiciary, and also,  in  the  matter  of  transfer  of
Chief Justices and Judges from one High Court to  another,  even  under  the
impugned constitutional amendment, continued to remain, in the hands of  the
judiciary.
154.  In conjunction with the  aforesaid  submission,  it  was  emphatically
pointed out, that the provisions of the NJAC Act postulate,  that  the  NJAC
would not recommend a person for  appointment  as  a  Judge  to  the  higher
judiciary, if any  two  Members  of  the  NJAC,  did  not  agree  with  such
recommendation.  Based on the fact, that the Chief Justice of India and  the
two other senior Judges of the Supreme Court, were  ex  officio  Members  of
the NJAC, it was asserted, that the veto power for rejecting  an  unsuitable
recommendation by the judicial  component  of  the  NJAC,  would  result  in
retaining primacy in the hands of the judiciary, in the matter of  selection
and appointment of Judges to the higher judiciary, and also, in  the  matter
of transfer of Chief Justices and Judges from one  High  Court  to  another.
This according to learned counsel  for  the  respondents,  was  because  the
judicial component would be sufficient, in preventing the other  Members  of
the NJAC, from having their way.
155.  Having given our thoughtful consideration  to  the  above  contention,
there can be no doubt, that in the manner expressed by the learned  counsel,
the suggested inference may well  be  justified  on  paper.   The  important
question to be considered is, whether  as  a  matter  of  practicality,  the
impugned constitutional amendment  can  be  considered  to  have  sustained,
primacy in the matter of decision making, under the  amended  provisions  of
Articles 124, 217 and 222, in conjunction with the  inserted  provisions  of
Articles 124A to 124C, with the judiciary?
156.  The exposition made by the learned Attorney General and  some  of  the
other learned counsel representing the respondents,  emerges  from  an  over
simplified and narrow approach.  The primacy vested in the Chief Justice  of
India based on the collective wisdom of  a  collegium  of  Judges,  needs  a
holistic approach. It is not possible for us to accept, that the primacy  of
the judiciary  would  be  considered  to  have  been  sustained,  merely  by
ensuring that the judicial component in the  membership  of  the  NJAC,  was
sufficiently capable, to reject the candidature of an unworthy  nominee.  We
are satisfied, that in the matter of primacy, the judicial component of  the
NJAC, should be competent by itself, to ensure the appointment of  a  worthy
nominee, as well. Under the substituted scheme, even if  the  Chief  Justice
of India and the two other senior most Judges of the Supreme Court (next  to
the  Chief  Justice  of  India),  consider  a  nominee  to  be  worthy   for
appointment to the higher judiciary, the concerned individual may still  not
be appointed, if any two Members of the NJAC opine otherwise. This would  be
out-rightly obnoxious,  to  the  primacy  of  the  judicial  component.  The
magnitude of the instant issue, is apparent  from  the  fact  that  the  two
“eminent  persons”  (-lay  persons,  according  to  the   learned   Attorney
General), could defeat  the  unanimous  recommendation  made  by  the  Chief
Justice of India and the two  senior  most  Judges  of  the  Supreme  Court,
favouring the appointment of an individual under consideration. Without  any
doubt, demeaning primacy of the judiciary, in the matter  of  selection  and
appointment of Judges to the higher judiciary. The reason to describe it  as
being obnoxious is  this  –  according  to  the  learned  Attorney  General,
“eminent persons” had to be  lay  persons  having  no  connection  with  the
judiciary, or even to the profession of advocacy,  perhaps  individuals  who
may not have any law related academic qualification, such lay persons  would
have the collective authority, to override  the  collective  wisdom  of  the
Chief Justice of India and two Judges of the Supreme  Court  of  India.  The
instant issue, is demonstrably far more retrograde, when the Union  Minister
in charge of Law and  Justice  also  supports  the  unanimous  view  of  the
judicial component, because still  the  dissenting  voice  of  the  “eminent
persons” would prevail. It is apparent, that primacy of  the  judiciary  has
been rendered a further devastating blow, by making it extremely fragile.
157.  When  the  issue  is  of  such  significance,  as  the  constitutional
position of Judges of the higher judiciary, it  would  be  fatal  to  depend
upon the moral strength of individuals. The judiciary has to  be  manned  by
people of unimpeachable integrity, who can  discharge  their  responsibility
without fear or favour. There is no question  of  accepting  an  alternative
procedure, which does not ensure primacy of the judiciary in the  matter  of
selection and appointment of Judges to the higher  judiciary  (as  also,  in
the matter of transfer of Chief Justices  and  Judges  of  High  Courts,  to
other High Courts). In the above stated position,  it  is  not  possible  to
conclude, that the combination contemplated for constitution  of  the  NJAC,
is  such,  that  would  not  be  susceptible  to  an  easy  breach  of   the
“independence of the judiciary”.
158.   Articles  124A(1)(a)  and  (b)  do  not  provide  for   an   adequate
representation in the matter, to the judicial component, to  ensure  primacy
of the judiciary in the matter of selection and  appointment  of  Judges  to
the higher judiciary, and therefore, the same are liable  to  be  set  aside
and struck  down  as  being  violative  of  the  “basic  structure”  of  the
Constitution of India. Thus  viewed,  we  are  satisfied,  that  the  “basic
structure” of the Constitution would be clearly violated, if the process  of
selection of Judges to the higher judiciary was  to  be  conducted,  in  the
manner  contemplated  through  the   NJAC.   The   impugned   constitutional
amendment, being ultra vires the “basic structure” of the  Constitution,  is
liable to be set aside.
                                     V.
159.  It is surprising, that the Chief Justice of India, on account  of  the
position he holds as pater familias  of  the  judicial  fraternity,  and  on
account of the serious  issues,  that  come  up  for  judicial  adjudication
before him, which have immeasurable political  and  financial  consequences,
besides issues of far reaching public interest, was suspected by none  other
than Dr. B.R. Ambedkar,  during  the  course  of  the  Constituent  Assembly
debates, when he declined to accept the suggestions made by some Members  of
the Constituent Assembly, that the selection and appointment  of  Judges  to
the higher judiciary should be made with  the  “concurrence”  of  the  Chief
Justice of India, by observing, that even though the Chief Justice of  India
was a very eminent person, he  was  after  all  just  a  man  with  all  the
failings, all the sentiments, and all the prejudices,  which  common  people
have.  And therefore, the Constituent Assembly  did  not  leave  it  to  the
individual wisdom of the Chief Justice of India, but  required  consultation
with a plurality of Judges, by including in  the  consultative  process  (at
the discretion of the President of India), not only Judges  of  the  Supreme
Court of India,  but  also  Judges  of  High  Courts  (in  addition  to  the
mandatory consultation with the Chief Justice  of  India).  One  would  also
ordinarily feel, that the President of India and/or the  Prime  Minister  of
India in the discharge of their  onerous  responsibilities  in  running  the
affairs of the country, practically all the time take decisions  having  far
reaching consequences, not only in the matter of  internal  affairs  of  the
country on the domestic front, but  also  in  the  matter  of  international
relations  with  other  countries.  One  would  expect,  that  vesting   the
authority of appointment of Judges to the higher judiciary with any  one  of
them  should  not  ordinarily  be  suspect  of  any  impropriety.  Yet,  the
Constituent Assembly did not allow any of them,  any  defined  participatory
role.   In  fact  the  debate  in  the  Constituent  Assembly,  removed  the
participation of the  political-executive  component,  because  of  fear  of
being impacted by “political-pressure” and “political  considerations”.  Was
the view  of  the  Constituent  Assembly,  and  the  above  noted  distrust,
legitimate?
160.  A little personal research, resulted in the revelation of the  concept
of the “legitimate power of reciprocity”, debated by Bertram  Raven  in  his
article  –  “The  Bases  of  Power  and  the  Power/Interaction   Model   of
Interpersonal Influence”  (this  article  appeared  in  Analyses  of  Social
Issues and Public Policy, Vol. 8, No.1, 2008, pp.  1-22).   In  addition  to
having  dealt  with  various  psychological  reasons  which  influenced  the
personality of an individual, reference was also  made  to  the  “legitimate
power of reciprocity”.  It  was  pointed  out,  that  the  reciprocity  norm
envisaged, that if  someone  does  something  beneficial  for  another,  the
recipient would feel an obligation to reciprocate (“I helped  you  when  you
needed it, so you should feel obliged to do this for  me.”  –  Goranson  and
Berkowitz, 1966; Gouldner, 1960).  In the view expressed by the author,  the
inherent need of power, is universally available in the subconscious of  the
individual. On the satisfaction and achievement of the desired power,  there
is a similar unconscious desire to reciprocate the favour.
161.  The psychological concept of the “legitimate  power  of  reciprocity”,
was also highlighted by Dennis T. Regan of the  Cornell  University  in  his
article – “Effects of a Favour and Liking on Compliance”.   It  was  pointed
out, that there was  sufficient  evidence  to  establish,  that  favours  do
generate feelings of obligation, and the desire  to  reciprocate.  According
to the author, the available data suggested, that a  favour  would  lead  to
reported feelings of obligation, on the part of its recipient.
162.  In his  book  “Influence:  The  Psychology  of  Persuasion”  –  Robert
Cialdini,  Regent’s  Professor  Emeritus  of  Psychology  and  Marketing  at
Arizona State University, in Chapter II titled – “Reciprocation”,  expressed
the view, that “possibly one of the most potent compliance  techniques,  was
the rule of reciprocation, which prompts one  to  repay,  what  someone  has
given to him.  When a gift is extended, the recipient feels indebted to  the
giver,  often  feels  uncomfortable  with  this  indebtedness,   and   feels
compelled to cancel the debt…often against his/her better judgment”. It  was
pointed out, that the rule  of  reciprocation,  was  widespread  across  the
human  cultures,  suggesting   that   it   was   fundamental   to   creating
interdependencies on  which  societies,  cultures,  and  civilizations  were
built. It was asserted, that in fact  the  rule  of  reciprocation  assured,
that someone who had given something away first, has a  relative  assurance,
that this initial gift will eventually be repaid.  In the above view of  the
matter,  nothing  would  be  lost.   Referring  to  Marcel  Nauss,  who  had
conducted a study on gift giving, it  was  emphasised,  that  “there  is  an
obligation to give, an obligation to receive, and an obligation  to  repay”.
According to the author, it was in the above network of  indebtedness,  that
the first giver could exploit the favour, and would  rightfully  assume  the
role of a compliance practitioner.  And accordingly it was  concluded,  that
although the obligation to repay constituted the essence of the  reciprocity
rule, it was the obligation to receive,  that  made  the  rule  so  easy  to
exploit. Describing the  power  of  reciprocity,  Cialdini  in  his  article
expressed, that the person who gives first  remains,  in  control;  and  the
person who was the recipient, always remained in debt.  It is  pointed  out,
that   the   above   situation   was   often   deliberately   created,   and
psychologically maintained.  It was also the view of the  author,  that  the
more valuable,  substantial  and  helpful  the  original  favour,  the  more
indebted the recipient would continue to feel.   In  the  above  article,  a
reference was made to Alvin Gouldner, in whose opinion, there was  no  human
society on earth, that does not follow the rule of  reciprocity.   Referring
also to the views of the renowned cultural anthropologists  –  Lionel  Tiger
and  Robin  Fox,  it  was  affirmed,  that  humans  lived  in  a   “web   of
indebtedness”.  Therefore it was felt, that reciprocity was  a  debt  and  a
powerful psychological tool, which was all, but impossible to resist.
163.  Under the constitutional scheme in  place  in  the  United  States  of
America, federal Judges are nominated by the  President,  and  confirmed  by
the Senate. The issue being debated, namely, the concept of “the  legitimate
power of reciprocity”, therefore directly arises in the  United  States,  in
the matter of appointment of  federal  Judges.   The  first  favour  to  the
federal Judge is extended by the President,  who  nominates  his  name,  and
further favours are extended by one or more Member(s) of  the  Senate,  with
whose support the Judge believes  he  won  the  vote  of  confirmation.   An
article titled as “Loyalty, Gratitude, and the Federal  Judiciary”,  written
by Laura E. Little (Associate Professor of Law, Temple University School  of
Law, as far back as in 1995), deals with the issue in hand,  pointedly  with
reference to appointment of Judges.  The article reveals, that the issue  of
reciprocity has been a subject of conscious debate, with  reference  to  the
appointment of Judges for a substantial length  of  time.   The  conclusions
drawn in the above article are relevant to the present controversy, and  are
being extracted hereunder:
“On  the  issue  of  impartiality,  an  individual  undertaking  a   federal
judgeship confronts a difficult task. Contemporary  lawyers  commonly  agree
that the law is not wholly the product of  neutral  principles  and  that  a
judge must choose among values as she shapes the  law.  Yet,  the  standards
governing impartiality in federal courts largely assume that total  judicial
neutrality and dispassion  are  possible.  The  process  of  mapping  out  a
personal  framework  for  decisionmaking  is   therefore   apt   to   create
considerable discordance for  the  judge.  Added  to  this  burden  are  the
special pulls of gratitude and  loyalty  toward  the  individuals  who  made
possible the judge's job.
I have sought to show both that gratitude and loyalty can  have  a  powerful
influence for a federal judge undertaking to decide a case. The  problem  is
complex because loyalty and gratitude pose a greater potential  problem  for
some judges than for others. This complexity emerges to a great degree  from
the process of nomination and confirmation, which  often  generates,  or  at
least  reinforces,  a  judge's  sense  of  loyalty  and  gratitude  to   her
benefactors.
In the last few years, we have witnessed a wave of dissatisfaction with  the
selection process for federal judges. Legal scholarship  in  particular  has
offered frequent critique and constructive suggestions  for  change.  As  it
must, this scholarship recognizes that any change ventured  must  weigh  the
impact of nomination and confirmation on a number of  segments  of  American
life, including the constitutional balance of powers and  public  perception
of the judiciary.
To omit from these concerns  the  effect  of  any  change  on  the  ultimate
quality of judicial decisionmaking would, of course, be a mistake. Thus,  in
studying any new selection procedure, we must  contemplate  the  procedure's
potential for creating and invigorating a judge's feelings  of  loyalty  and
gratitude to her benefactors. The  foregoing  should,  therefore,  not  only
shed light on the process of federal court decisionmaking  in  general,  but
also give much needed guidance for evaluating proposed changes  to  judicial
selection.”

164.  It is however pertinent to mention, that  in  her  article,  Laura  E.
Little has expressed, what most moral philosophers believed, that  gratitude
has significant moral components.  And further, that gratitude has  a  ready
place in utilitarian moral  systems,  which  were  designed  to  ensure  the
greatest good for  the  greatest  number  of  individuals.  The  concept  of
gratitude was however intertwined with loyalty by Laura  E.  Little,  as  in
her view, gratitude and loyalty, were closely related. A  beneficiary  could
show gratitude to a benefactor, through an expression of loyalty. The  point
sought to be made was, that in understanding loyalty  one  understands,  who
we  are  in  our  friendships,  loves,  family  bonds,  national  ties,  and
religious devotion.  Insofar as the patterns  of  behaviour  in  the  Indian
cultural system is concerned, a child is always  obligated  to  his  parents
for his upbringing, and it is  the  child’s  inbuilt  moral  obligation,  to
reciprocate  to  his  parents  by  extending   unimpeachable   loyalty   and
gratitude. The above position finds replication in relationships of  teacher
and taught, master and servant,  and  the  like.   In  the  existing  Indian
cultural scenario, an act of not reciprocating towards a  benefactor,  would
more often than not, be treated as an act of grave moral deprivation.   When
the favour extended is as important as the  position  of  judgeship  in  the
higher judiciary, one would best leave  it  to  individual  imagination,  to
determine the enormity of the reciprocal gratitude and loyalty.
165.  The consideration recorded hereinabove, endorses the  view,  that  the
political-executive, as far as possible, should  not  have  a  role  in  the
ultimate/final selection and appointment of Judges to the higher  judiciary.
 Specially keeping  in  mind  the  enormity  of  the  participation  of  the
political-executive, in actions of judicial adjudication.  Reciprocity,  and
feelings of pay back to the  political-executive,  would  be  disastrous  to
“independence of the judiciary”.  In  this,  we  are  only  reiterating  the
position  adopted  by  Dr.  B.R.  Ambedkar.  He  feared,   that   with   the
participation of the political-executive, the selection of Judges, would  be
impacted by “political pressure” and “political considerations”.  His  view,
finds  support  from   established   behavioural   patterns   expressed   by
Psychologists. It is in this background, that it needs to be  ensured,  that
the political-executive dispensation has the least nexus, with  the  process
of finalization of appointments of Judges to the higher judiciary.
                                     VI.
166.  The jurisdictions that have to be dealt with, by Judges of the  higher
judiciary, are large and extensive. Within the  above  jurisdictions,  there
are a number of jurisdictions, in  which  the  executive  is  essentially  a
fundamental party to the lis.  This would inter alia include  cases  arising
out of taxing  statutes  which  have  serious  financial  implications.  The
executive is singularly engaged in the exploitation  of  natural  resources,
often through private entrepreneurs. The sale of  natural  resources,  which
also, have massive financial ramifications, is  often  subject  to  judicial
adjudication,  wherein  also,  the  executive  is  an  indispensable  party.
Challenges arising out of orders passed by Tribunals of the  nature  of  the
Telecom Disputes Settlement & Appellate Tribunal and the Appellate  Tribunal
for Electricity, and the like, are also dealt with by the higher  judiciary,
where also the executive has a role. Herein also,  there  could  be  massive
financial implications. The executive is  also  a  necessary  party  in  all
matters  relating  to  environmental  issues,  including  appeals  from  the
National Green Tribunals. Not only in all  criminal  matters,  but  also  in
high profile scams, which are no longer  a  rarity,  the  executive  has  an
indispensable role. In these matters,  sometimes  accusations  are  levelled
against former and incumbent Prime Ministers  and  Ministers  of  the  Union
Cabinet, and sometimes against former  and  incumbent  Chief  Ministers  and
Ministers of the State Cabinets.  Even in the realm  of  employment  issues,
adjudication rendered by the Central Administrative Tribunal, and the  Armed
Forces  Appellate  Tribunal  come  up  before  the  Judges  of  the   higher
judiciary.  These  adjudications  also  sometimes  include,   high   ranking
administrators and armed forces personnel. Herein too, the executive  is  an
essential constituent.  This is only  a  miniscule  part  of  the  extensive
involvement of the political-executive,  in  litigation  before  the  higher
judiciary.
167.  Since the executive has a major stake, in a majority of  cases,  which
arise for consideration before the higher judiciary,  the  participation  of
the Union Minister in charge of Law and Justice, as an ex officio Member  of
the NJAC, would be  clearly  questionable.  In  today’s  world,  people  are
conscious and alive to the fact, that their rights should be adjudicated  in
consonance of the rules of natural justice. One  of  the  rules  of  natural
justice is, that the adjudicator should not be  biased.   This  would  mean,
that he should neither entertain a prejudice against either party to a  lis,
nor should he be favourably inclined towards any of them. Another  component
of the rule of bias is, that the adjudicator should not have a  conflict  of
interest, with the controversy he is to settle.  When  the  present  set  of
cases came up for consideration, a plea of conflict of interest  was  raised
even against one of the presiding Judges on the  Bench,  which  resulted  in
the recusal of Anil R. Dave, J. on 15.4.2015.  A similar  prayer  was  again
made against one of us (J.S. Khehar, J.), on 21.4.2015,  on  the  ground  of
conflict  of  interest.   What  needs  to  be  highlighted  is,  that  bias,
prejudice, favour and conflict  of  interest  are  issues  which  repeatedly
emerge. Judges are careful to avoid adjudication  in  such  matters.  Judges
are not on one or the other side of the adjudicatory process. The political-
executive  in  contrast,  in  an  overwhelming  majority  of  cases,  has  a
participatory role.  In that sense, there would/could be  an  impact/effect,
of a decision rendered one way or the other. A success or a defeat –  a  win
or a loss. The plea of conflict of interest would be available  against  the
executive, if it has  a  participatory  role  in  the  final  selection  and
appointment of Judges, who  are  then  to  sit  in  judgment  over  matters,
wherever the executive is an essential  and  mandatory  party.  The  instant
issue arose for consideration in the Madras Bar Association case35.  In  the
above case a five-Judge Bench considered the legality of  the  participation
of Secretaries of Departments of the Central  Government  in  the  selection
and  appointment  of  the  Chairperson  and  Members  of  the  National  Tax
Tribunal.  On the above matter, this Court held, as under:
“131.Section 7 cannot even otherwise be considered  to  be  constitutionally
valid, since it includes in the process of selection and appointment of  the
Chairperson and Members of NTT, Secretaries of Departments  of  the  Central
Government.  In this behalf, it would also be pertinent to mention that  the
interests of the Central Government would be  represented  on  one  side  in
every litigation before NTT.  It is not possible to  accept  a  party  to  a
litigation can participate in the selection process whereby the  Chairperson
and Members of the adjudicatory body are selected….”

The position herein is no different. The Attorney General however  attempted
to distinguish the matter in hand,  from  the  controversy  decided  in  the
cited case by asserting, that in cases adjudicated upon by the National  Tax
Tribunal the “…Central Government would be represented on one side in  every
litigation …” which is  not  the  case  before  the  higher  judiciary.  The
rebuttal, clearly avoids the issue canvassed.  One  would  assume  from  the
response, that the position was conceded to the  extent  of  matters,  where
the executive was a party to the lis.  But that  itself  would  exclude  the
selected  Judges  from  hearing  a  large  majority  of  cases.   One  would
therefore reject the response of the Union of India.
168.  We are of the view, that consequent  upon  the  participation  of  the
Union  Minister  in  charge  of  Law  and  Justice,  a  Judge  approved  for
appointment with the Minister’s support,  may  not  be  able  to  resist  or
repulse a plea of conflict of interest, raised by a litigant,  in  a  matter
when the executive has an adversarial role. In the NJAC, the Union  Minister
in charge of Law and Justice would be a party to all  final  selections  and
appointments of Judges to the higher judiciary.  It  may  be  difficult  for
Judges approved by the NJAC, to resist a plea of conflict  of  interest  (if
such a plea was to be raised, and pressed),  where  the  political-executive
is a party to the lis. The  above,  would  have  the  inevitable  effect  of
undermining the “independence of the judiciary”, even where such a  plea  is
repulsed. Therefore, the role assigned to the  political-executive,  can  at
best be limited to a collaborative participation, excluding any role in  the
final determination.  Therefore,  merely  the  participation  of  the  Union
Minister in charge of Law and Justice, in the final  process  of  selection,
as an ex officio Member of the NJAC, would render the amended  provision  of
Article 124A(1)(c) as ultra vires the Constitution, as it  impinges  on  the
principles of “independence of the judiciary” and “separation of powers”.
                                    VII.
169.  The learned Attorney General had invited our attention to  the  manner
in which judicial appointments were being made  in  fifteen  countries.   It
was submitted, that in nine countries Judges were appointed  either  through
a Judicial Appointments  Commission,  or  through  a  Judicial  Appointments
Committee, or through a Judicial Appointments Council.  It was  highlighted,
that in four countries, Judges were appointed  directly  by  the  executive,
i.e., by the Governor General or the President.  We were informed,  that  in
one European country, Judges were nominated by the Minister of  Justice  and
confirmed by the Parliamentary Committee.  In the United States of  America,
Judges were appointed through a process of nomination by the  President  and
confirmation by the Senate.  It was highlighted, that  in  all  the  fifteen
countries, the executive was the final  determinative/appointing  authority.
And further that, in all the countries, the executive had a role to play  in
the selection and appointment of Judges.  The foresaid factual position  was
brought to our notice  for  the  singular  purpose  of  demonstrating,  that
executive participation in the  process  of  selection  and  appointment  of
Judges had  not  made  the  judiciary  in  any  of  the  fifteen  countries,
subservient  to  the  political-executive.   It  was  asserted,   that   the
countries referred to by him were in different continents of the world,  and
there  was  no  complaint  with  reference  to  the  “independence  of   the
judiciary”.  The  point  sought  to  be  driven  home  was,  that  the  mere
participation of the executive in the selection and  appointment  of  Judges
to the higher judiciary, did not  impinge  upon  the  “independence  of  the
judiciary”.
170.  The aforestated submission  does  not  require  an  elaborate  debate.
Insofar as the instant aspect of the matter is concerned, as  the  same  was
examined in the Second Judges case, wherein S. Ratnavel Pandian, J., one  of
the Judges who passed a separate concurring order, supporting  the  majority
view. He had rejected the submission of the nature advanced by  the  learned
Attorney General, with the following observations:
“194.  Nevertheless, we have, firstly to find out the ails  from  which  our
judicial system suffers; secondly  to  diagnose  the  root  cause  of  those
ailments under legalistic biopsies,  thirdly  to  ascertain  the  nature  of
affliction on the system and finally to evolve a new method and strategy  to
treat and  cure  those  ailments  by  administering  and  injecting  a  'new
invented medicine' (meaning thereby a newly-developed method  and  strategy)
manufactured in terms of the formula  under  Indian  pharmacopoeia  (meaning
thereby according to national problems in a  mixed  culture  etc.)  but  not
according to American or  British  pharmacopoeia  which  are  alien  to  our
Indian system though the system adopted in other countries  may  throw  some
light for the development of our system. The outcry of some of  the  critics
is when the power of appointment of Judges in all democratic countries,  far
and wide, rests only with the executive, there is no substance in  insisting
that the primacy should be given to the opinion of the CJI in selection  and
appointment of candidates for judgeship. This proposition that we must  copy
and adopt the foreign method is a dry legal logic, which has to be  rejected
even on the short ground that the  Constitution  of  India  itself  requires
mandatory consultation with the CJI  by  the  President  before  making  the
appointments to the superior judiciary. It  has  not  been  brought  to  our
notice by any of the counsel for the respondents  that  in  other  countries
the executive alone makes the appointments notwithstanding the existence  of
any existing similar constitutional provisions in their Constitutions.”

171.  Despite our having dealt with the submission canvassed  at  the  hands
of the learned Attorney General  based  on  the  system  of  appointment  of
Judges to  the  higher  judiciary  in  fifteen  countries,  we  consider  it
expedient to delve further  on  the  subject.  During  the  hearing  of  the
present controversy, a paper written in November 2008, by Nuno  Garoupa  and
Tom Ginsburg of the Law School, University of Chicago, came  to  hand.   The
paper bore the caption – “Guarding  the  Guardians:  Judicial  Councils  and
Judicial Independence”. The paper refers to  comparative  evidence,  of  the
ongoing debate, about the selection and discipline of Judges.   The  article
proclaims to aim at two objectives.  Firstly, the  theory  of  formation  of
Judicial Councils, and the dimensions on which they differ.   And  secondly,
the extent to which different designs of Judicial Council,  affect  judicial
quality.  These two issues were considered as of extreme importance, as  the
same were determinative of the fact, whether Judges would be  able  to  have
an effective role in implementing social policy, as  broadly  conceived.  It
was observed, that Judicial Councils had come  into  existence  to  insulate
the appointment, promotion and discipline of Judges from partisan  political
influence, and at the  same  time,  to  cater  to  some  level  of  judicial
accountability. It was the authors’ view, that  the  Judicial  Councils  lie
somewhere in between the polar extremes of letting Judges manage  their  own
affairs, and the alternative  of  complete  political-executive  control  of
appointments, promotions and discipline.
172.  According to the paper, France established the first High  Council  of
the Judiciary in 1946.   Italy’s  Judicial  Council  was  created  in  1958.
Italy was the first to fully insulate the entire  judiciary  from  political
control.  It was asserted, that the Italian model was,  thereupon,  followed
in other countries.  The model established in Spain and  Portugal  comprised
of a significant proportion of Members who were Judges.  These  models  were
established, after the fall of dictatorship in  these  countries.   Councils
created by these countries, are stated to be  vested  with,  final  decision
making authority, in matters pertaining to judicial  promotion,  tenure  and
removal.  According to the paper, the French model came into existence as  a
consequence of  concerns  about  excessive  politicization.  Naturally,  the
process  evolved  into  extensive  independence  of  judicial  power.   Yet,
judicial concern multiplied manifolds in the  judiciary’s  attempt  to  give
effect to the European Convention  of  Human  Rights.  And  the  judiciary’s
involvement  in  the  process  of  judicial  review,  in  the  backdrop   of
surmounting political scandals.  The paper describes the  pattern  in  Italy
to be similar.  In Italy also, prominent scandals led  to  investigation  of
businessmen, politicians and bureaucrats (during the  period  from  1992  to
1997), which resulted in  extensive  judicial  participation,  in  political
activity.  The composition of the Council in Italy, was accordingly  altered
in 2002, to increase the influence of the Parliament.
173.  The paper noted, that the French-Italian models had  been  adopted  in
Latin America, and other developing countries.  It  was  pointed  out,  that
the World Bank and other similar multilateral donor  agencies,  insist  upon
Judicial Councils, to be associated with judicial  reform,  for  enforcement
of the rule of law.  The Elements of European Statute on the Judiciary,  was
considered as a refinement of the Judicial  Council  model.   The  perceived
Supreme Council of Magistracy, requires that at least half  of  the  Members
are Judges, even though, some of the Members  of  the  Supreme  Council  are
drawn from the Parliament.  It was the belief of the authors of  the  paper,
that the motivating concern for adoption of the  Supreme  Councils,  in  the
French-Italian  tradition,  was  aimed  at  ensuring  “independence  of  the
judiciary” after periods of undemocratic rule.  Perhaps because of  concerns
over structural problems, it was pointed out, that  external  accountability
had emerged as a second goal for these Supreme Councils.  Referring  to  the
Germany, Austria  and  Netherlands  models,  it  was  asserted,  that  their
Councils were limited to playing a role in selection (rather than  promotion
and discipline) of Judges.  Referring to Dutch model, it  was  pointed  out,
that  recent  reforms  were  introduced  to  ensure  more  transparency  and
accountability.
174.  It  was  also  brought  out,  that  Judicial  Councils  in  civil  law
jurisdictions, had a nexus to the Supreme Court of the  country.   Referring
to Costa Rica and Austria, it was brought out, that  the  Judicial  Councils
in these countries were a subordinate organ of the Supreme Court.   In  some
countries like  Brazil,  Judicial  Councils  were  independent  bodies  with
constitutional status,  while  in  others  Judicial  Councils  governed  the
entire judiciary.  And in some others, like Guatemala  and  Argentina,  they
only governed lower courts.
175.  Referring to recruitment to the judiciary in common law countries,  it
was pointed out, that in the United Kingdom, the Constitutional Reform  Act,
2005 created a Judicial Appointments Commission, which was  responsible  for
appointments solely based on merit, had no executive participation.  It  was
pointed out, that New Zealand and Australia were debating whether to  follow
the same. The above legislation, it was argued, postulated a statutory  duty
on Government Members,  not  to  influence  judicial  decisions.  And  also,
excluded the participation of the Lord Chancellor in  all  such  activities,
by transferring his functions to the President of the Courts of England  and
Wales, (formerly designated as Lord Chief Justice of England and Wales).
176.  Referring to the American experience, it was noted, that concern  over
traditional methods of judicial  selection  (either  by  politicians  or  by
election) had given way to “Merit Commissions” so as to  base  selection  of
Judges on merit. Merit Commissions, it was felt, were analogous to  Judicial
Councils. The system contemplated therein, was non-partisan.   The  Judicial
Selection Commission comprised of judges, lawyers and political appointees.
177.  Referring to the works of renowned jurists  on  the  subject,  it  was
sought  to  be  concluded,  that  in  today’s  world,  there  was  a  strong
consensus, that  of  all  the  procedures,  the  merit  plan  insulated  the
judiciary from political pressure.  In  their  remarks,  emerging  from  the
survey carried out by them, it was concluded,  that  it  was  impossible  to
eliminate  political  pressure  on  the  judiciary.  Judicial   Commissions/
Councils created in different countries were, in  their  view,  measures  to
enhance judicial independence, and to minimize political influence.  It  was
their view that  once  given  independence,  Judges  were  more  useful  for
resolving a wider range of more important disputes,  which  were  considered
essential, given the fact that more and more tasks were now  being  assigned
to the judiciary.
178.  In analyzing the conclusions drawn in the article, one is  constrained
to conclude, that in the  process  of  evolution  of  societies  across  the
globe, the trend is to free  the  judiciary  from  executive  and  political
control, and to  incorporate  a  system  of  selection  and  appointment  of
Judges, based purely on merit.  For it is only then,  that  the  process  of
judicial review will effectively support nation building.   In  the  subject
matter, which falls for our consideration, it would be  imperative  for  us,
to keep in mind, the progression of the concepts  of  “independence  of  the
judiciary” and “judicial review” were now being recognized the  world  over.
The diminishing role  of  executive  and  political  participation,  on  the
matter of appointments to the higher judiciary, is an obvious  reality.   In
recognition of the above trend, there cannot  be  any  greater  and  further
participation of the executive, than that  which  existed  hitherto  before.
And  in  the  Indian  scenario,  as  is  presently  conceived,  through  the
judgments rendered in the Second and Third Judges  cases.  It  is  therefore
imperative to conclude, that the participation  of  the  Union  Minister  in
charge of Law and Justice in the final determinative process vested  in  the
NJAC, as also, the participation of the Prime Minister  and  the  Leader  of
the Opposition in the Lok Sabha (and in case  of  there  being  none  –  the
Leader of the single largest Opposition Party in the House of  the  People),
in the selection of “eminent persons”,  would  be  a  retrograde  step,  and
cannot be accepted.
                                    VIII.
179.  The only component of the NJAC, which remains to  be  dealt  with,  is
with reference to the two “eminent persons” required to be nominated to  the
NJAC. It is not necessary to detail the rival  submissions  on  the  instant
aspect, as they have already been noticed extensively, hereinbefore.
180.  We may proceed by accepting the undisputed position, that neither  the
impugned constitutional amendment, nor the NJAC Act postulate  any  positive
qualification to be possessed by the two “eminent persons” to  be  nominated
to the NJAC. These constitutional and legislative  enactments  do  not  even
stipulate any negative disqualifications. It  is  therefore  apparent,  that
the choice of the two “eminent persons” would depend on  the  free  will  of
the nominating authorities. The question that arises for  consideration  is,
whether it is just and appropriate to leave the issue, to the free will  and
choice, of the nominating authorities?
181.  The response of the learned Attorney General was emphatic.  Who  could
know better than the Prime Minister, the Chief  Justice  of  India,  or  the
Leader of Opposition in the Lok Sabha (and when there is no such  Leader  of
Opposition, then the Leader of the single largest Opposition  Party  in  the
Lok Sabha)?  And he answered the same by himself, that if such high  ranking
constitutional authorities can be considered as being unaware, then  no  one
in this country could be trusted, to be competent, to  take  a  decision  on
the matter – neither the legislature, nor the executive, and  not  even  the
judiciary. The Attorney General then quipped – surely this Court  would  not
set aside the impugned constitutional amendment, or the NJAC Act, on such  a
trivial issue.  He also suggested, that we should await the outcome  of  the
nominating authorities, and if this Court felt that a particular  individual
nominated to discharge the responsibility entrusted to him  as  an  “eminent
person” on the NJAC, was inappropriate or unacceptable or had no nexus  with
the responsibility required to be shouldered, then his appointment could  be
set aside.
182.  Having given our thoughtful consideration to the  matter,  we  are  of
the view, that the issue in hand is certainly not as trivial, as  is  sought
to be made out. The two “eminent persons” comprise of 1/3rd strength of  the
NJAC, and  double  that  of  the  political-executive  component.  We  could
understand  the  import  of  the  submission,  only  after  hearing  learned
counsel. The view emphatically expressed by the Attorney  General  was  that
the “eminent persons” had to be “lay persons” having no connection with  the
judiciary, or even to the profession of advocacy,  perhaps  individuals  who
may  not  have  any  law   related   academic   qualification.    Mr.   T.R.
Andhyarujina,  learned  senior  counsel  who  represented   the   State   of
Maharashtra, which had ratified the impugned constitutional  amendment,  had
appeared to support the impugned constitutional amendment, as well  as,  the
NJAC Act, expressed  a  diametrically  opposite  view.   In  his  view,  the
“eminent persons” with reference to the NJAC, could only be picked  out  of,
eminent lawyers, eminent jurists, and even  retired  Judges,  or  the  like,
having an insight to the working and functioning  of  the  judicial  system.
It is therefore clear, that in the view of the learned senior  counsel,  the
nominated “eminent persons” would have  to  be  individuals,  with  a  legal
background, and certainly not lay persons, as was suggested by  the  learned
Attorney  General.   We  have  recorded  the  submissions  advanced  by  Mr.
Dushyant A. Dave, learned senior counsel –  the  President  of  the  Supreme
Court Bar Association, who had addressed the Bench  in  his  usual  animated
manner, with no holds barred.  We solicited his view, whether  it  would  be
proper to consider the inclusion of the President of the Supreme  Court  Bar
Association and/or the Chairman of the Bar Council of India, as  ex  officio
Members of the NJAC in place of the two “eminent persons”. His response  was
spontaneous “Please don’t do that !!” and then after a short  pause,  “…that
would be disastrous !!”.  Having examined the issue with the  assistance  of
the most learned and eminent counsel, it is  imperative  to  conclude,  that
the issue of description  of  the  qualifications  (–  perhaps  ,  also  the
disqualifications) of “eminent persons” is of utmost importance, and  cannot
be left  to  the  free  will  and  choice  of  the  nominating  authorities,
irrespective of the high constitutional positions held by  them.   Specially
so, because the two “eminent persons” comprise of  1/3rd   strength  of  the
NJAC, and double that of the political-executive  component,  and  as  such,
will have a supremely important role in the decision making process  of  the
NJAC. We are therefore persuaded  to  accept,  that  Article  124A(1)(d)  is
liable to be set aside and  struck  down,  for  having  not  laid  down  the
qualifications of eligibility for being nominated as “eminent persons”,  and
for having left the same vague and undefined.
183.  It is even otherwise difficult to appreciate the  logic  of  including
two “eminent persons”, in the six-Member NJAC.  If one  was  to  go  by  the
view expressed by the learned Attorney General, “eminent persons”  had  been
included in the NJAC, to infuse inputs which  were  hitherto  not  available
with the prevailing selection process, for  appointment  of  Judges  to  the
higher judiciary. Really a submission with all  loose  ends,  and  no  clear
meaning. He had canvassed, that  they  would  be  “lay  persons”  having  no
connection with the judiciary, or even  with  the  profession  of  advocacy,
perhaps  individuals  who  did  not  even  have  any  law  related  academic
qualification. It is  difficult  to  appreciate  what  inputs  the  “eminent
persons”, satisfying the qualification  depicted  by  the  learned  Attorney
General, would render in the matter of selection and appointment  of  Judges
to the higher judiciary. The absurdity of including  two  “eminent  persons”
on the NJAC, can perhaps  be  appreciated  if  one  were  to  visualize  the
participation of such “lay persons”, in the  selection  of  the  Comptroller
and Auditor-General, the Chairman and Members  of  the  Finance  Commission,
the Chairman and Members of the Union Public Service Commission,  the  Chief
Election Commissioner and the  Election  Commissioners  and  the  like.  The
position would be disastrous. In our considered view,  it  is  imprudent  to
ape a system prevalent  in  an  advanced  country,  with  an  evolved  civil
society.
184.   The  sensitivity  of  selecting  Judges  is  so  enormous,  and   the
consequences of making inappropriate  appointments  so  dangerous,  that  if
those involved in the process of selection and appointment of Judges to  the
higher judiciary, make wrongful selections, it  may  well  lead  the  nation
into a chaos of sorts. The role of “eminent persons” cannot  be  appreciated
in the manner expressed through the impugned  constitutional  amendment  and
legislative enactment.  At  best,  to  start  with,  one  or  more  “eminent
persons” (perhaps even a committee of “eminent persons”),  can  be  assigned
an advisory/consultative role, by allowing them  to  express  their  opinion
about  the  nominees  under  consideration.  Perhaps,  under  the   judicial
component of the selection process.  And  possibly,  comprising  of  eminent
lawyers, eminent jurists, and even retired Judges, or  the  like  having  an
insight to the working and functioning  of  the  judicial  system.   And  by
ensuring, that the participants have no conflict  of  interest.   Obviously,
the final selecting body would not be bound by the opinion experienced,  but
would be obliged to keep the opinion tendered in mind, while finalizing  the
names of the nominated candidates.
185.  It is also difficult to appreciate the wisdom of  the  Parliament,  to
introduce two lay persons, in the process of selection  and  appointment  of
Judges to the higher judiciary, and  to  simultaneously  vest  with  them  a
power of veto.  The second proviso under Section 5(2), and Section  6(6)  of
the NJAC Act, clearly mandate, that a person nominated to be considered  for
appointment as a Judge of the Supreme Court, and  persons  being  considered
for appointment as Chief Justices and  Judges  of  High  Courts,  cannot  be
appointed, if any two Members of the NJAC do not agree to the proposal.   In
the scheme of the selection process  of  Judges  to  the  higher  judiciary,
contemplated under the impugned constitutional amendment read with the  NJAC
Act, the two “eminent persons” are  sufficiently  empowered  to  reject  all
recommendations, just by  themselves.   Not  just  that,  the  two  “eminent
persons” would  also  have  the  absolute  authority  to  reject  all  names
unanimously approved by the remaining four Members of the NJAC.  That  would
obviously include the power to reject, the unanimous recommendation  of  the
entire judicial component of the NJAC. In our considered view,  the  vesting
of such authority in the “eminent persons”,  is  clearly  unsustainable,  in
the scheme of “independence of the judiciary”.  Vesting  of  such  authority
on persons who have no nexus to the system of administration of  justice  is
clearly arbitrary, and we hold it  to  be  so.  The  inclusion  of  “eminent
persons”, as  already  concluded  above  (refer  to  paragraph  156),  would
adversely impact primacy of the judiciary, in the matter  of  selection  and
appointment of Judges to the higher judiciary (as also their transfer).  For
the reasons recorded hereinabove, it is apparent,  that  Article  124A(1)(d)
is liable to be set aside and struck down as being violative of  the  “basic
structure” of the Constitution.
                                     IX.
186.  During the course of hearing, the learned Attorney General, made  some
references to past appointments to the Supreme Court, so as to  trumpet  the
accusation, that the “collegium  system”  had  not  functioned  efficiently,
inasmuch as, persons of the nature referred to by him, came to  be  selected
and appointed as Judges of the Supreme Court.  In a manner as  would  be  in
tune with the dignity of this Court, he had  not  referred  to  any  of  the
Judge(s) by name.  His reference was by deeds.  Each  and  every  individual
present in the Court-hall, was  aware  of  the  identity  of  the  concerned
Judge, in the manner the submissions were advanced.  The projection  by  the
learned Attorney General was joyfully projected by the print and  electronic
media, extensively highlighting  the  allusions  canvassed  by  the  learned
Attorney General.
187.  If our memory serves us right, the learned Attorney General  had  made
a reference to the improper appointment  of  three  Judges  to  the  Supreme
Court.  One would have felt, without going into the merits  of  the  charge,
that finding fault with just three Judges, despite the appointment  of  over
a hundred Judges to the Supreme  Court,  since  the  implementation  of  the
judgment rendered in the Second Judges  case  (pronounced  on  6.10.1993)  –
M.K. Mukherjee, J., being the first Judge  appointed  under  the  “collegium
system” on 14.12.1993,  and  B.N.  Kirpal,  CJ.,  the  first  Chief  Justice
thereunder,  having  been  appointed  as  Judge  of  the  Supreme  Court  on
11.9.1995, under the “collegium system”, should be  considered  as  no  mean
achievement.
188.  The first on the list of the learned  Attorney  General  was  a  Judge
who, according to him, had hardly delivered any judgments, both  during  the
period he remained a Judge and Chief Justice of  different  High  Courts  in
the country, as also, the period during which he remained a  Judge  of  this
Court. The failure of the “collegium system”, was attributed  to  the  fact,
that such a person would have been weeded out,  if  a  meaningful  procedure
had been in place. And despite his above disposition,  the  concerned  Judge
was further elevated to the Supreme Court. The second instance cited by  him
was, in respect of a Judge, who did not abide by any time schedule.  It  was
asserted,  that  the  Judge,  was  inevitably  late  in   commencing   court
proceedings.  It was his contention, that past experience with reference  to
the said Judge, indicated a similar demeanour, as a Judge of different  High
Courts and as Chief Justice of one High Court. It  was  lamented,  that  the
above behaviour was  not  sufficient,  in  the  process  adopted  under  the
“collegium system”, to reject  the  Judge  from  elevation  to  the  Supreme
Court. The third Judge was described as an individual,  who  was  habitually
tweeting his views, on the internet.  He  described  him  as  an  individual
unworthy of the exalted position of a Judge of the Supreme Court,  and  yet,
the “collegium system” had supported his appointment to the Supreme Court.
189.  Just as it was impossible to overlook a  submission  advanced  by  the
Attorney General, so also, it would be improper  to  leave  out  submissions
advanced on a similar note, by none other than the President of the  Supreme
Court Bar Association. Insofar as Mr. Dushyant A. Dave, Senior Advocate,  is
concerned,  his  pointed  assertion  of  wrongful  appointments  included  a
reference to a Judge of this Court, who had allegedly taken on his  board  a
case, which was not assigned to his roster.  It was  alleged,  that  he  had
disposed of the case wrongfully. Before, we dwell on the  above  contention,
it is necessary to notice, that the charge leveled, does not  relate  to  an
allegedly improper selection and appointment. The accusation is  limited  to
a wrongful determination of “one” case. Insofar as  the  instant  aspect  of
the matter is concerned, it is necessary for us to  notice,  that  a  review
petition came to be filed against the alleged improper order, passed by  the
said Judge. The same was dismissed.  After  the  Judge  demitted  office,  a
curative petition was filed, wherein the alleged improper  order  passed  by
the concerned Judge,  was  assailed.  The  same  was  also  dismissed.  Even
thereafter, a petition was filed against the concerned Judge, by  impleading
him as a party-respondent. The said petition was also dismissed. We need  to
say no more, than what has been observed hereinabove, with reference to  the
particular case, allegedly wrongly decided by the concerned Judge.
190.   It  is  imperative  for  us,  while  taking  into  consideration  the
submissions advanced by the learned Attorney  General,  to  highlight,  that
the role of appointment of Judges in consonance with the  judgment  rendered
in the Second Judges case, envisages the dual participation of  the  members
of the judiciary, as also, the members of the executive.   Details  in  this
behalf have been recorded by us in the “Reference Order”. And therefore,  in
case of any failure, it is not only the judicial  component,  but  also  the
executive component, which are jointly and equally  responsible.  Therefore,
to single out the judiciary for criticism, may not be a rightful  reflection
of the matter.
191.  It is not within our realm to express our  agreement  or  disagreement
with the contentions advanced at the hands of the learned Attorney  General.
 He may well be right in his own perception, but the misgivings pointed  out
by him may not  be  of  much  significance  in  the  perception  of  others,
specially those who fully appreciate the working  of  the  judicial  system.
The misgivings pointed out by the  learned  Attorney  General,  need  to  be
viewed in the background of the following considerations:
Firstly, the allegations levelled against the Judges  in  question,  do  not
depict any lack of ability in  the  discharge  of  judicial  responsibility.
Surely, that is the main consideration to be  taken  into  account,  at  the
time of selection and appointment of an individual, as a Judge at the  level
of the higher judiciary.
Secondly, none of the misgivings expressed on  behalf  of  the  respondents,
are referable to integrity and misdemeanor. Another aspect, which cannot  be
compromised, at the time of selection of an individual, as a  Judge  at  the
level of the higher judiciary. Nothing wrong at this front also.
Thirdly, not in a single of the instances referred to above, the  political-
executive had objected to the elevation of the Judges referred  to.  We  say
so, because on our asking, we were furnished with the details of  those  who
had been elevated, despite objections at the hands of  the  Union-executive.
None of the Judges referred to, figured in that list.
Fourthly, no allegation whatsoever was made by the  Attorney  General,  with
reference to Judges, against whom objections were raised by  the  political-
executive, and yet, they were appointed  at  the  insistence  of  the  Chief
Justice, under the “collegium system”.
Fifthly, that the political-executive disposition, despite  the  allegations
levelled by the learned Attorney General,  chose  to  grant  post-retirement
assignments, to three of the four instances referred to, during  the  course
of hearing. A post-retirement assignment was also allowed by the  political-
executive, to the Judge referred to by Mr. Dushyant A. Dave.  In  the  above
factual scenario, either the learned Attorney General had got it all  wrong.
 And if he is right, the political-executive got it all  wrong,  because  it
faltered despite being aware of the factual position highlighted.
Lastly, it has not been possible for us to comprehend, how and why, a  Judge
who commenced to tweet his views after his retirement, can be considered  to
be unworthy  of  elevation.  The  fact  that  the  concerned  Judge  started
tweeting his views after his retirement, is not in  dispute.  The  inclusion
of this instance may well demonstrate, that all in all, the  functioning  of
the “collegium system” may well not be as bad as it is shown to be.
192.  The submissions advanced by Mr. Dushyant  A.  Dave  were  not  limited
just to the instance of a Judge of the Supreme Court.  He  expressed  strong
views about persons like Maya Kodnani, a former Gujarat Minister,  convicted
in a riots  case,  for  having  been  granted  relief,  while  an  allegedly
renowned activist Teesta Setalvad, had to run from pillar to  post,  to  get
anticipatory bail. He also made a reference  to  convicted  politicians  and
film stars, who had been granted relief by two  different  High  Courts,  as
also by  this  Court.  It  was  his  lament,  that  whilst  film  stars  and
politicians were being granted immediate relief  by  the  higher  judiciary,
commoners suffered for years. He  attributed  all  this,  to  the  defective
selection process in vogue, which had resulted in the  appointment  of  “bad
Judges”.  He repeatedly emphasized,  that  victims  of  the  1984  anti-Sikh
riots in Delhi, and the 2002 anti-Muslim riots in Gujarat, had not  got  any
justice.  It was his contention, that Judges selected and appointed  through
the process presently in vogue, were to blame. He also expressed  the  view,
that the appointed Judges were oblivious of violations of human rights.   It
was submitted, that it was shameful, that courts of law  could  not  deliver
justice, to those whose fundamental and human rights had been violated.
193.  It is necessary to emphasise, that under every system  of  law,  there
are two sides  to  every  litigation.  Only  one  of  which  succeeds.   The
question of how a matter has been  decided  would  always  be  an  issue  of
debate.  The party, who succeeds, would feel justice had been  done.   While
the party that loses, would complain that justice had been denied.   In  the
judicial process, there are a set of remedies, that  are  available  to  the
parties concerned. The process contemplates, culmination of  proceedings  at
the level of the Supreme Court. Once the process has run  the  full  circle,
it is indeed futile to allege any  wrong  doing,  except  on  the  basis  of
adequate material to show otherwise. Not that, the Supreme Court  is  right,
but that, there has to be a closure.  Most of the instances,  illustratively
mentioned by the President of the Supreme Court Bar  Association,  pertained
to  criminal  prosecutions.  The  adjudication  of  such  controversies   is
dependent on the adequacy of  evidence  produced  by  the  prosecution.  The
nature of the  allegations  (truthful,  or  otherwise),  have  an  important
bearing, on the interim relief(s) sought, by  the  parties.  The  blame  for
passing (or, not passing) the desired orders, does  not  therefore  per  se,
rest  on  the  will  of  the  adjudicating  Judge,  but  the   quality   and
authenticity of the evidence produced, and the nature  of  the  allegations.
Once all remedies available stand exhausted, it does not lie  in  the  mouth
of either the litigant, or the concerned counsel to imply  motives,  without
placing on record any further material.  It also needs to be recorded,  that
while making the insinuations,  learned  senior  counsel,  did  not  make  a
pointed reference to any High Court Judge by name, nor was it  possible  for
us to identify any such Judge,  merely  on  the  basis  of  the  submissions
advanced, unlike the instances with  reference  to  Judges  of  the  Supreme
Court. In the above view of the matter, it is not possible for us to  infer,
that  there  are  serious  infirmities  in  the  matter  of  selection   and
appointment  of  Judges  to  the  higher  judiciary,  under  the  prevailing
“collegium system”, on the basis of the submissions advanced before us.
194.  It is apparent  that  learned  counsel  had  their  say,  without  any
limitations. That  was  essential,  to  appreciate  the  misgivings  in  the
prevailing procedure of selection and appointment of Judges  to  the  higher
judiciary.  We have also recorded all the submissions (hopefully)  in  terms
of the contentions advanced, even in the absence  of  supporting  pleadings.
We will be failing in discharging our responsibility, if we do not refer  to
the parting words of Mr. Dushyant A. Dave – the  President  of  the  Supreme
Court Bar Association, who having regained his breath  after  his  outburst,
did finally concede, that still a majority of the Judges  appointed  to  the
High Courts and the Supreme Court, were/are  outstanding,  and  a  miniscule
minority were “bad Judges”. All in all, a substantial  emotional  variation,
from how he had  commenced.   One  can  only  conclude  by  observing,  that
individual failings of men who are involved in  the  actual  functioning  of
the executive, the legislature and the judiciary, do  not  necessarily  lead
to the inference, that the system which selects them, and  assigns  to  them
their role, is defective.


                                     X.
195.  It must remain in our  minds,  that  the  Indian  Constitution  is  an
organic document of governance, which needs to change with the evolution  of
civil society.  We have already concluded, that for far  more  reasons  than
the ones, recorded in the  Second  Judges  case,  the  term  “consultation”,
referred to selection of Judges to the higher judiciary, really meant,  even
in the wisdom of the framers  of  the  Constitution,  that  primacy  in  the
matter, must remain  with  the  Chief  Justice  of  India  (arrived  at,  in
consultation with a plurality of Judges). Undoubtedly, it  is  open  to  the
Parliament, while exercising its power under Article  368,  to  provide  for
some other alternative  procedure  for  the  selection  and  appointment  of
Judges to the higher judiciary, so long as, the  attributes  of  “separation
of powers” and “independence of the judiciary”, which are “core”  components
of the “basic structure” of the Constitution, are maintained.
196.  That, however, will depend upon the standards of the  moral  fiber  of
the Indian polity.  It cannot  be  overlooked,  that  the  learned  Attorney
General had conceded, that there were  certain  political  upheavals,  which
had undermined the “independence of the judiciary”, including  an  executive
overreach, at the time of appointment of  the  Chief  Justice  of  India  in
1973, followed by the mass  transfer  of  Judges  of  the  higher  judiciary
during the emergency in 1976, and thereafter a second supersession,  at  the
time of appointment of another Chief Justice of India in 1977. And  further,
the interference by the executive, in the matter of  appointment  of  Judges
to the higher judiciary during the 1980’s.
197.  An important issue, that will need determination, before  the  organic
structure of the Constitution is altered, in the manner contemplated by  the
impugned constitutional amendment, would be, whether the civil society,  has
been able to maneuver its leaders, towards national interest?  And  whether,
the strength of the civil  society,  is  of  a  magnitude,  as  would  be  a
deterrent for any overreach, by any of the pillars  of  governance?  At  the
present juncture, it seems difficult to repose faith and confidence  in  the
civil society, to play any effective role in that direction. For the  simple
reason,  that  it  is  not  yet  sufficiently  motivated,   nor   adequately
determined, to be in a position to act as a directional deterrent,  for  the
political-executive  establishment.  It  is  therefore,  that   the   higher
judiciary, which is the savior of the fundamental rights of the citizens  of
this country, by virtue of the constitutional responsibility assigned to  it
under Articles 32 and 226, must continue to act  as  the  protector  of  the
civil  society.  This  would  necessarily  contemplate  the  obligation   of
preserving the “rule of law”, by forestalling the political-executive,  from
transgressing  the  limits  of  their  authority   as   envisaged   by   the
Constitution.
198.  Lest one is accused of having recorded  any  sweeping  inferences,  it
will be necessary to record the  reasons,  for  the  above  conclusion.  The
Indian Express, on 18.6.2015, published an interview  with  L.K.  Advani,  a
veteran BJP Member of Parliament in the Lok Sabha, under the caption  “Ahead
of the 40th anniversary of the imposition of the  Emergency  on  25.6.1975”.
His views were dreadfully revealing.  In  his  opinion,  forces  that  could
crush democracy, were now stronger than ever before. He asserted, “I do  not
think anything has  been  done  that  gives  me  the  assurance  that  civil
liberties will not be suspended or destroyed again. Not  at  all”!!  It  was
also  his  position,  that  the  emergency   could   happen   again.   While
acknowledging, that the media today  was  more  alert  and  independent,  as
compared to what it was, when emergency  was  declared  by  the  then  Prime
Minister Indira Gandhi, forty years ago. In his perception,  the  media  did
not have any  real  commitment  to  democracy  and  civil  liberties.   With
reference to the civil society, he  pointed  out,  that  hopes  were  raised
during the Anna Hazare mobilization against corruption, which  according  to
him, ended in a disappointment,  even  with  reference  to  the  subject  of
corruption. This when the poor and downtrodden  majority  of  this  country,
can ill afford corruption. Of the various institutions, that could  be  held
responsible, for the well functioning  of  democracy  in  this  country,  he
expressed,  that  the  judiciary  was  more  responsible  than   the   other
institutions.
199.  On the above  interview,  Mani  Shankar  Aiyar,  a  veteran   Congress
Member of  Parliament  in  the  Rajya  Sabha,  while  expressing  his  views
noticed, that India could not be “emergency proof”,  till  the  Constitution
provided for the declaration of emergency, at the discretion of  an  elected
Government. He pointed out, that it should not be forgotten, that  in  1975,
emergency had been declared within the framework  of  the  Constitution.  It
was therefore suggested, that one of the solutions to  avoid  a  declaration
of emergency could be, to remove Part  XVIII  of  the  Constitution,  or  to
amend it, and “to provide for  only  an  external  emergency”.   He  however
raised a poser, whether it would be practical to do so?  One  would  venture
to answer the same in the negative. And in such situation,  to  trust,  that
the elected Government would act in the interest of the nation.
200.  The stance of L.K. Advani was affirmed by Sitaram Yechury,  a  veteran
CPI (Marxist) Member of Parliament in the Rajya  Sabha,  who  was  arrested,
like L.K. Advani, during the emergency in 1975.
201.  The  present  N.D.A.  Government  was  sworn  in,  on  26.5.2014.  One
believes, that thereafter thirteen Governors of  different  States  and  one
Lieutenant Governor of a Union Territory tendered their resignations  in  no
time.  Some of the Governors demitted their office shortly after  they  were
appointed, by the previous U.P.A.  –  dispensation.   That  is  despite  the
fact, that a Governor under the Constitutional  mandate  of  Article  156(3)
has a term of five years, from  the  date  he  enters  upon  his  office.  A
Governor is chosen out of  persons  having  professional  excellence  and/or
personal acclaim.  Each one of them, would be eligible to  be  nominated  as
an “eminent person” under  Article  124A(1)(d).  One  wonders,  whether  all
these resignations were voluntary. The above depiction is not  to  cast  any
aspersion. As a matter of fact, its predecessor  –  the  U.P.A.  Government,
had done just that in 2004.
202.  It  is  necessary  to  appreciate,  that  the  Constitution  does  not
envisage the  “spoils  system”  (also  known  as  the  “patronage  system”),
wherein the  political  party  which  wins  an  election,  gives  Government
positions to its supporters, friends and relatives, as a reward for  working
towards victory, and as an incentive to keep the party in power.
203.  It is also relevant to indicate, the images  of  the  “spoils  system”
are reflected from the fact, that a large number  of  persons  holding  high
positions, in institutions of significance,  likewise  resigned  from  their
assignments, after the present N.D.A. Government  was  sworn  in.   Some  of
them had just a few months before their tenure  would  expire  –  and  some,
even less than a month. Those who left included  bureaucrats  from  the  All
India  Services  occupying  coveted  positions   at   the   highest   level,
Directors/Chairmen   of   academic   institutions   of   national   acclaim,
constitutional authorities (other  than  Governors),  Directors/Chairmen  of
National  Research  Institutions,  and  the  like.  Seriously,  the  instant
narration is not aimed at vilification, but of appreciation  of  the  ground
reality, how the system actually works.
204.  From the above, is one to understand, that all these individuals  were
rank   favorites,   approved   by   the   predecessor    political-executive
establishment? Or, were the  best  not  chosen  to  fill  the  slot  by  the
previous dispensation?  Could it be, that those who get to  hold  the  reins
of  Government,  introduce  their  favourites?  Or,  whether  the   existing
incumbents,  deserved  just  that?  Could  it  be,  that   just   like   its
predecessor, the present political establishment has now appointed its  rank
favourites? What emerges is, trappings of the  spoils  system,  and  nothing
else. None of the  above  parameters,  can  be  adopted  in  the  matter  of
appointment of Judges to the higher judiciary. For the judiciary,  the  best
out of those available have to be chosen.  Considerations cannot be  varied,
with a  change  in  Government.  Demonstrably,  that  is  exactly  what  has
happened (repeatedly?), in  the  matter  of  non-judicial  appointments.  It
would be of utmost importance therefore, to  shield  judicial  appointments,
from any political-executive interference, to preserve the “independence  of
the judiciary”, from the regime of the spoils  system.   Preserving  primacy
in the judiciary, in the matter of selection and appointment  of  Judges  to
the, higher judiciary would be a safe way to do so.
205.  In conclusion, it is  difficult  to  hold,  in  view  of  the  factual
position expressed above, that the wisdom of appointment of Judges,  can  be
shared with the political-executive.  In India, the organic  development  of
civil society, has not as yet sufficiently evolved.   The  expectation  from
the judiciary, to safeguard the rights of the citizens of this country,  can
only be ensured, by keeping it absolutely insulated  and  independent,  from
the other organs of governance.  In our considered view, the present  status
of the evolution of the  “civil  society”  in  India,  does  not  augur  the
participation of the political-executive  establishment,  in  the  selection
and appointment of Judges to the higher  judiciary,  or  in  the  matter  of
transfer of Chief Justices and Judges of one High Court, to another.

                                     XI.
206.  It may be noticed, that one of the contentions advanced on  behalf  of
the petitioners was, that after the 121st Constitution  Amendment  Bill  was
passed by the Lok Sabha and the Rajya  Sabha,  it  was  sent  to  the  State
Legislatures for ratification.  Consequent  upon  the  ratification  by  the
State Legislatures, in compliance of the mandate contained in  Article  368,
the President granted his assent to the same  on  31.12.2014,  whereupon  it
came to be enacted as the Constitution (99th Amendment)  Act.  Section  1(2)
thereof provides, that the provisions of  the  amendment,  would  come  into
force from such date as may be notified by the Central  Government,  in  the
Official  Gazette.   And  consequent  upon  the  issuance   of   the   above
notification, the amendment was brought into force, through a  notification,
with effect from 13.4.2015.  It was the submission of the petitioners,  that
the jurisdiction to enact the NJAC Act, was acquired by  the  Parliament  on
13.4.2015, for the simple reason, that the same could not have been  enacted
whilst the prevailing Articles 124(2) and  217(1)  were  in  force,  as  the
same, did not provide for appointments to be made by  a  body  such  as  the
NJAC. It was submitted, that the NJAC Act was promulgated, to delineate  the
procedure to be followed by the  NJAC  while  recommending  appointments  of
Judges and Chief Justices, to the higher judiciary.  It was contended,  that
procedure to be followed by the NJAC could not have been legislated upon  by
the Parliament,  till  the  Constitution  was  amended,  and  the  NJAC  was
created, as a constitutional entity for the selection  and  appointment  (as
also, transfer) of Judges at the level of the higher judiciary.   The  NJAC,
it was asserted, must  be  deemed  to  have  been  created,  only  when  the
Constitution (99th Amendment) Act, was brought into force, with effect  from
13.4.2015.  It was submitted, that the NJAC Act received the assent  of  the
President on 31.12.2014 i.e., on a date when the NJAC had not yet come  into
existence.  For this, learned counsel had placed reliance on  the  A.K.  Roy
case49, to contend, that the constitutional amendment in  the  instant  case
would not come into force on 13.12.2014, but on 13.4.2015.
207.  A complementary additional submission was advanced on  behalf  of  the
petitioners, by relying upon the same sequence of facts. It  was  contended,
that the power of veto vested in  two  Members  of  the  NJAC,  through  the
second proviso under Section  5(2)  of  the  NJAC  Act  (in  the  matter  of
appointment of the Chief Justice and  Judges  of  the  Supreme  Court),  and
Section 6(6) of the  NJAC  Act  (in  the  matter  of  appointment  of  Chief
Justices and Judges of High Courts) could not be described  as  laying  down
any procedure.  It was submitted, that the above provisions clearly  enacted
substantive law. Likewise, it was  contended,  that  the  amendment  of  the
words “after consultation with such of the Judges of the Supreme  Court  and
the High Courts in the States as the President may deem  necessary  for  the
purpose”, on being substituted by the words “on the  recommendation  of  the
National Judicial Appointments Commission referred to in Article  124A”,  as
also, the deletion of the first proviso under Article 124(2) which  mandated
consultation with the Chief Justice of India, and the  substitution  of  the
same with the  words,  “on  the  recommendation  of  the  National  Judicial
Appointments Commission referred to under Article  124A”,  would  result  in
the introduction of an absolutely new regimen.  It was submitted, that  such
substitution would also amount to an amendment of  the  existing  provisions
of  the  Constitution,  and  as  such,  the  same  would  also  require  the
postulated ratification provided in respect of a  constitutional  amendment,
under the proviso to Article 368(2).  And  since  the  NJAC  Act,  had  been
enacted as an ordinary legislation, the same was liable to be  held  as  non
est on account of the fact, that the procedure  contemplated  under  Article
368,  postulated  for  an  amendment  to  the  Constitution,  had  not  been
followed.
208.  Since it was not disputed, that  the  Parliament  had  indeed  enacted
Rules of Procedure and the Conduct of Business of Lok  Sabha  under  Article
118, which contained Rule 66 postulating, that a Bill  which  was  dependent
wholly or partly on another Bill could be “introduced”  in  anticipation  of
the passing of  the  Bill,  on  which  it  was  dependent.  Leading  to  the
inference, that the 121st Constitution Amendment Bill,  on  which  the  NJAC
Bill was dependent, could be taken up for consideration (by introducing  the
same in the Parliament), but could not  have  been  passed  till  after  the
passing  of  the  Constitution  (99th  Amendment)  Act,  on  which  it   was
dependent.
209.  Whilst there can be no doubt, that viewed in  the  above  perspective,
we may have unhesitatingly accepted the above submission, and  in  fact  the
same was conceded by the Attorney General to the effect, that the  dependent
Bill can “… be taken up for consideration and passing  in  the  House,  only
after the first Bill has been passed by the House…”.  But our attention  was
invited by the Attorney General to Rule 388, which  authorises  the  Speaker
to allow the suspension, of a particular  rule  (which  would  include  Rule
66).  If Rule 66 could be  suspended,  then  Rule  66  would  not  have  the
impact, which the petitioners seek through the instant  submission.   It  is
not a matter of dispute, that the then Union Minister in charge of  Law  and
Justice had sought (under Rule 388 of the Rules of Procedure and Conduct  of
Business of the Lok Sabha) the suspension of the proviso to Rule 66. And  on
due consideration, the Lok Sabha had suspended the proviso to Rule  66,  and
had taken up the NJAC Bill for consideration.  Since the  validity  of  Rule
388 is not subject matter of challenge before us, it is  apparent,  that  it
was well within the competence of the  Parliament,  to  have  taken  up  for
consideration the NJAC Act, whilst the Constitution (121st Amendment)  Bill,
on which the NJAC Act was fully dependent, had still  not  been  passed,  in
anticipation of the passing of the Constitution (121st Amendment) Bill.
210.  The principle contained in Rule 66, even if  the  said  rule  had  not
been provided for, would always be deemed to have been impliedly  there.  In
the absence of a foundation, no superstructure can be raised.   The  instant
illustration is relateable to  Rule  66,  wherein  the  pending  Bill  would
constitute the foundation, and the Bill being introduced in anticipation  of
the passing of  the  pending  Bill,  would  constitute  the  superstructure.
Therefore, in the absence of the foundational Bill (-in  the  instant  case,
the 121st Constitution Amendment  Bill),  there  could  be  no  question  of
raising the infrastructure (-in the instant case, the  NJAC  Act).   In  our
considered view, it was possible in terms of  Rule  388,  to  introduce  and
pass a Bill in the  Parliament,  in  anticipation  of  the  passing  of  the
dependent Bill – the Constitution (121st Amendment) Bill.  But, it is  still
not possible to contemplate, that a Bill which is dependent wholly  (or,  in
part) upon another Bill, can be passed and brought into operation, till  the
dependent Bill is passed and brought into effect.
211.  It is however necessary to  record,  that  even  though  the  position
postulated in  the  preceding  paragraphs,  as  canvassed  by  the  Attorney
General, was permissible, the passing of the dependent enactment  i.e.,  the
NJAC Bill, could not have  been  given  effect  to,  till  the  foundational
enactment had become operational.  In the instant case, the NJAC Act,  would
have failed the test, if it was given effect to, from a date  prior  to  the
date on which, the provisions of the enactment on which it was  dependent  –
the Constitution (99th Amendment) Act, became functional.  In  other  words,
the NJAC Act, would be stillborn, if the  dependent  provisions,  introduced
by way of a constitutional amendment, were yet to come  into  force.  Stated
differently, the contravention of the principle  contemplated  in  Rule  66,
could not have been overlooked, despite the suspension  of  the  said  rule,
and  the  dependent  enactment  could  not  come  into  force,  before   the
depending/controlling provision became operational. The  sequence  of  facts
narrated hereinabove reveals, that the dependent and  depending  provisions,
were  brought  into  force  simultaneously  on  the  same  date,  i.e.,   on
13.4.2015.   It  is  therefore  apparent,  that   the   foundation   –   the
Constitution (99th Amendment) Act, was in place, when the  superstructure  –
the NJAC  Act,  was  raised.   Thus  viewed,  we  are  satisfied,  that  the
procedure adopted by the Parliament at the time of putting to vote the  NJAC
Bill, or the date  on  which  the  NJAC  Act  received  the  assent  of  the
President, cannot invalidate the enactment of the NJAC Act, as suggested  by
the learned counsel for the petitioners.
212.  One is also  persuaded  to  accept  the  contention  advanced  by  the
learned  Attorney  General,  that  the  validity  of  any   proceeding,   in
Parliament, cannot be assailed on the ground of irregularity  of  procedure,
in  view  of  the  protection  contemplated  through  Article  122.   Whilst
accepting the instant contention, of the learned  Attorney  General,  it  is
necessary for us to record, that in our  considered  view,  the  aforestated
irregularity pointed out by the learned counsel, would be completely  beyond
the purview of challenge, specially because it  was  not  the  case  of  the
petitioners, that the Parliament did not have the legislative competence  to
enact the NJAC  Act.  For  the  reasons  recorded  hereinabove,  it  is  not
possible for us to accept, that the NJAC Act was stillborn, or that  it  was
liable to be set aside, for the reasons canvassed  by  the  learned  counsel
for the petitioners.
213.  It is also not possible for us to  accept,  that  while  enacting  the
NJAC Act, it was imperative for  the  Parliament  to  follow  the  procedure
contemplated under Article 368.   Insofar  as  the  instant  aspect  of  the
matter  is  concerned,  the  Constitution  (99th  Amendment)  Act,   amended
Articles 124 and 217 (as also, Articles 127, 128, 222, 224, 224A  and  231),
and  Articles  124A  to  124C  were  inserted  in  the  Constitution.  While
engineering the above amendments, the procedural requirements  contained  in
Article 368 were admittedly complied with. It is  therefore  apparent,  that
no procedural lapse was committed  while  enacting  the  Constitution  (99th
Amendment)  Act.  Article  124C,  authorized  the  Parliament  to  enact   a
legislation in the nature of the NJAC Act. This could validly  be  done,  by
following the procedure contemplated for an ordinary legislation. It is  not
disputed, that such procedure, as was contemplated for enacting an  ordinary
legislation, had indeed been followed by  the  Parliament,  after  the  NJAC
Bill was tabled in the Parliament, inasmuch as, both  Houses  of  Parliament
approved the NJAC Bill by the postulated majority, and thereupon,  the  same
received the assent of the President on 31.12.2014.  For the above  reasons,
the instant additional submission advanced by the petitioners,  cannot  also
be acceded to, and is accordingly declined.
                                    XII.
214.  Mr. Mukul Rohatgi, learned Attorney General for  India,  repulsed  the
contentions advanced at the hands of the  petitioners,  that  vires  of  the
provisions of the NJAC Act, could be challenged,  on  the  ground  of  being
violative of the “basic structure” of the Constitution.
215.  The first and foremost  contention  advanced,  at  the  hands  of  the
learned Attorney  General  was,  that  the  constitutional  validity  of  an
amendment to the Constitution, could only be assailed on the basis of  being
violative of the “basic structure” of  the  Constitution.   Additionally  it
was submitted, that an ordinary legislative enactment (like the  NJAC  Act),
could only be assailed on the grounds  of  lack  of  legislative  competence
and/or the violation of Article 13 of the Constitution.   Inasmuch  as,  the
State cannot enact laws, which take away  or  abridge  rights  conferred  in
Part  III  of  the  Constitution,  or  are  in  violation   of   any   other
constitutional  provision.  It  was   acknowledged,   that   law   made   in
contravention of the provisions contained in Part III of  the  Constitution,
or  of  any  other  constitutional  provision,  to  the   extent   of   such
contravention, would be void. Insofar as the instant aspect  of  the  matter
is concerned, the learned Attorney General, placed reliance  on  the  Indira
Nehru  Gandhi  case56,  State  of  Karnataka  v.  Union  of  India[88],  and
particularly to the following observations:
“238. Mr Sinha also contended that an ordinary law  cannot  go  against  the
basic scheme or the fundamental backbone of  the  Centre-State  relationship
as enshrined in the Constitution. He put his argument in this respect  in  a
very ingenious way because he felt difficulty in  placing  it  in  a  direct
manner by saying that an ordinary law cannot violate the basic structure  of
the Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj  Narain
such an argument was  expressedly  rejected  by  this  Court.  We  may  rest
content by referring to a passage from the judgment of our  learned  brother
Chandrachud, J., … which runs thus:
“The constitutional amendments may, on the ratio of the  Fundamental  Rights
case be tested  on  the  anvil  of  basic  structure.  But  apart  from  the
principle that a case is only an authority for what it decides, it does  not
logically follow from the majority judgment in the Fundamental  Rights  case
that  ordinary  legislation  must  also  answer   the   same   test   as   a
constitutional amendment. Ordinary laws have to answer two tests  for  their
validity: (1) The law must be  within  the  legislative  competence  of  the
Legislature  as  defined  and  specified  in  Chapter  I,  Part  11  of  the
Constitution and (2) it must not offend against the provisions  of  Articles
13(1) and (2) of  the  Constitution.  ‘Basic  structure’,  by  the  majority
judgment, is not a part of the fundamental rights nor indeed a provision  of
the Constitution. The  theory  of  basic  structure  is  woven  out  of  the
conspectus of the Constitution and the amending power  is  subjected  to  it
because it is a constituent power.  ‘The  power  to  amend  the  fundamental
instrument  cannot  carry  with  it  the  power  to  destroy  its  essential
features’— this, in brief, is the arch of the theory of basic structure.  It
is wholly out of place in matters relating to the validity of ordinary  laws
made under the Constitution.”

The Court’s attention was also drawn to Kuldip Nayar v. Union of  India[89],
wherein it was recorded:
“107. The  basic  structure  theory  imposes  limitation  on  the  power  of
Parliament to amend the  Constitution.  An  amendment  to  the  Constitution
under Article 368 could be challenged on the  ground  of  violation  of  the
basic structure of the Constitution. An ordinary legislation  cannot  be  so
challenged. The challenge to a law made, within its legislative  competence,
by Parliament on the ground of violation  of  the  basic  structure  of  the
Constitution is thus not available to the petitioners.”

Last of all, learned  Attorney  General  placed  reliance  on  Ashoka  Kumar
Thakur v. Union of India[90], and referred to the following observations:
“116. For determining whether a particular feature of  the  Constitution  is
part of the  basic  structure  or  not,  it  has  to  be  examined  in  each
individual case keeping in mind the scheme of the Constitution, its  objects
and  purpose  and  the  integrity  of  the  Constitution  as  a  fundamental
instrument for the country’s governance. It may be noticed that  it  is  not
open to challenge the ordinary  legislations  on  the  basis  of  the  basic
structure principle. State legislation can be  challenged  on  the  question
whether it is violative of  the  provisions  of  the  Constitution.  But  as
regards constitutional amendments, if any challenge is made on the basis  of
basic structure, it has to be examined based on the basic  features  of  the
Constitution.”

Based on the afore-quoted judgments, it was the  assertion  of  the  learned
Attorney General, that the validity of a  legislative  enactment,  i.e.,  an
ordinary statute, could not be assailed on the ground,  that  the  same  was
violative of the “basic structure” of the  Constitution.  It  was  therefore
asserted, that  reliance  placed  at  the  hands  of  the  learned  counsel,
appearing for the petitioners, on the Madras  Bar  Association  case35,  was
not acceptable in law.
216.  The above contention, advanced by the learned  Attorney  General,  has
been repulsed.  For this, in the first  instance,  reliance  was  placed  on
Public Services Tribunal Bar  Association  v.  State  of  U.P.[91]   In  the
instant judgment, it is seen from the  observations  recorded  in  paragraph
26, that this Court  concluded,  that  the  constitutional  validity  of  an
ordinary legislation could be challenged on only two  grounds,  namely,  for
reasons of lack of legislative competence, and on account  of  violation  of
any fundamental rights guaranteed in Part III of  the  Constitution,  or  of
any other constitutional provision.  The above  determination  supports  the
contention advanced by the learned Attorney  General,  who  seeks  to  imply
from the above conclusion, that an ordinary legislation cannot  be  assailed
on the ground of  it  being  violative  of  the  “basic  structure”  of  the
Constitution.  Despite  having  held  as  above,  in  its  final  conclusion
recorded in paragraph 44, it was observed as under:
“44.   For the reasons stated above, we find that the State Legislature  was
competent to enact the impugned provisions.  Further,  that  the  provisions
enacted are not arbitrary and therefore not violative of Articles 14, 16  or
any other provisions of the Constitution.  They are not  against  the  basic
structure of the Constitution of India either.  Accordingly, we do not  find
any merit in these appeals and the same are dismissed with no  order  as  to
costs.”

It was pointed out, that it was apparent, that even  while  determining  the
validity of an  ordinary  legislation,  namely,  the  U.P.  Public  Services
(Tribunals) Act, 1976, this Court in the aforestated judgment had  examined,
whether the provisions of the assailed legislation, were against the  “basic
structure” of the Constitution, and having done  so,  it  had  rejected  the
contention. Thereby implying, that it was open for  an  aggrieved  party  to
assail, even the  provisions  of  an  ordinary  legislation,  based  on  the
concept of “basic structure”. In addition to the above, reliance was  placed
on the Kuldip Nayar  case89  (also  relied  upon  by  the  learned  Attorney
General), and whilst  acknowledging  the  position  recorded  in  the  above
judgment, that an ordinary  legislation  could  not  be  challenged  on  the
ground of violation of  the  “basic  structure”  of  the  Constitution,  the
Court, in paragraph 108, had observed thus:
“108. As stated above, “residence” is  not  the  constitutional  requirement
and, therefore, the question  of  violation  of  basic  structure  does  not
arise.”

It was submitted,  that  in  the  instant  judgment  also,  this  Court  had
independently examined,  whether  the  legislative  enactment  in  question,
namely, the Representation of the People (Amendment) Act 40 of 2003,  indeed
violated the “basic structure” of the Constitution.  And in so  determining,
concluded  that  the  question  of  residence  was  not   a   constitutional
requirement,  and  therefore,  the  question  of  violation  of  the  “basic
structure” did not arise.  Learned counsel then placed reliance  on  the  M.
Nagaraj case36, wherein it was concluded as under:
“124. Subject to the above, we uphold the  constitutional  validity  of  the
Constitution  (Seventy-seventh  Amendment)  Act,  1995;   the   Constitution
(Eighty-first  Amendment)  Act,  2000;   the   Constitution   (Eighty-second
Amendment) Act, 2000 and  the  Constitution  (Eighty-fifth  Amendment)  Act,
2001.
125.   We have  not  examined  the  validity  of  individual  enactments  of
appropriate States and that question will be gone into  in  individual  writ
petition by the appropriate Bench in accordance with law laid down by us  in
the present case.”

217.  It was submitted by Dr. Rajeev Dhavan, learned  senior  counsel,  that
this Court in the M. Nagaraj  case36,  while  upholding  the  constitutional
validity of the impugned constitutional amendment, by testing  the  same  by
applying  the  “width  test”,  extended  the  aforesaid  concept  to   State
legislations.   It  was  accordingly  sought  to  be  inferred,  that  State
legislations could be assailed, not only on the  basis  of  the  letter  and
text of constitutional provisions, but also, on  the  basis  of  the  “width
test”, which was akin to a  challenge  raised  to  a  legislative  enactment
based on the “basic structure” of the Constitution.
218.  Reliance was then placed on Uttar Pradesh  Power  Corporation  Limited
v. Rajesh Kumar[92], wherein the issue under reference had been  raised,  as
is apparent from the discussion in paragraph 61, which is extracted below:
“61.  Dr. Rajeev Dhavan, learned senior Counsel, supporting the decision  of
the Division  Bench  which  has  declared  the  Rule  as  ultra  vires,  has
submitted that if M. Nagaraj is properly read, it does clearly  convey  that
social justice  is  an  overreaching  principle  of  the  Constitution  like
secularism,  democracy,  reasonableness,  social  justice,   etc.   and   it
emphasises  on  the  equality  code  and  the  parameters   fixed   by   the
Constitution Bench as the basic purpose is to bring in a  state  of  balance
but the said balance is destroyed by Section 3(7) of the 1994 Act  and  Rule
8-A inasmuch as no exercise has been undertaken during the post  M.  Nagaraj
period. In  M.  Nagraj,  there  has  been  emphasis  on  interpretation  and
implementation, width and identity, essence of a right,  the  equality  code
and avoidance of reverse discrimination,  the  nuanced  distinction  between
the adequacy and  proportionality,  backward  class  and  backwardness,  the
concept of contest specificity as  regards  equal  justice  and  efficiency,
permissive nature of the provisions and conceptual essence of guided  power,
the implementation in concrete terms which would not cause violence  to  the
constitutional mandate; and the effect  of  accelerated  seniority  and  the
conditions prevalent for satisfaction of the conditions precedent to  invoke
the settled principles.” 

The matter was adjudicated upon as under:

“86.  We are of the firm view that a fresh exercise  in  the  light  of  the
judgment  of  the  Constitution  Bench  in  M.  Nagaraj  is  a   categorical
imperative. The stand that the constitutional  amendments  have  facilitated
the reservation in promotion with consequential  seniority  and  have  given
the stamp of approval to the  Act  and  the  Rules  cannot  withstand  close
scrutiny  inasmuch  as  the  Constitution  Bench  has  clearly  opined  that
Articles 16(4-A) and 16(4-B) are enabling provisions and the State can  make
provisions for the same on  certain  basis  or  foundation.  The  conditions
precedent have not been satisfied. No exercise  has  been  undertaken.  What
has been argued with vehemence is that it is not necessary  as  the  concept
of reservation in promotion was already in vogue. We are  unable  to  accept
the said submission,  for  when  the  provisions  of  the  Constitution  are
treated valid with certain conditions or riders,  it  becomes  incumbent  on
the part of the  State  to  appreciate  and  apply  the  test  so  that  its
amendments can be tested and withstand the scrutiny on parameters laid  down
therein.”

In addition to the above judgment, reliance was  also  placed  on  State  of
Bihar v. Bal Mukund Sah[93], wherein a Constitution  Bench  of  this  Court,
while examining the power of the State  legislature,  to  legislate  on  the
subject of recruitment of  District  Judges  and  other  judicial  officers,
placed reliance on the judgment rendered by this Court  in  the  Kesavananda
Bharati case10, which took into consideration five of  the  declared  “basic
features” of the Constitution, and examined the subject matter in  question,
by applying the concept of “separation of powers” between  the  legislature,
the executive and the judiciary, which was accepted as an essential  feature
of the “basic structure” of the Constitution.  Finally, reliance was  placed
on Nawal Kishore Mishra  v.  High  Court  of  Judicature  of  Allahabad[94],
wherefrom reliance was placed on conclusion no. 20.11,  which  is  extracted
below:
“20.11 Any such attempt  by  the  legislature  would  be  forbidden  by  the
constitutional  scheme  as  that  was  found  on  the  concept  relating  to
separation  of  powers  between  the  legislature,  the  executive  and  the
judiciary as well as the fundamental concept of an independent judiciary  as
both the concepts having been elevated to the level of  basic  structure  of
the Constitution and are the very heart of the constitutional scheme.”

It was therefore the contention of the learned senior counsel, that  it  was
not justified  for  the  respondents  to  raise  the  contention,  that  the
validity of the provisions of the NJAC  Act  could  not  be  tested  on  the
touchstone of the concept of the “basic structure” of the Constitution.
219.  It needs to be highlighted, that the issue under  reference  arose  on
account of the fact, that learned counsel for  the  petitioners  had  placed
reliance on the judgment of this Court,   in   the  Madras  Bar  Association
case35, wherein this Court had examined the provisions of the  National  Tax
Tribunal Act, 2005, and whilst doing so, had  held  the  provisions  of  the
above  legislative  enactment  as  ultra  vires  the   provisions   of   the
Constitution, on account of their being violative of the  “basic  structure”
of the Constitution.  It  is  therefore  quite  obvious,  that  the  instant
contention was raised, to prevent the learned counsel for  the  petitioners,
from placing  reliance  on  the  conclusions  recorded  in  the  Madras  Bar
Association case35.
220.  We have given our thoughtful consideration to the  above  contentions.
The “basic structure” of the Constitution,  presently  inter  alia  includes
the supremacy of the Constitution, the republican  and  democratic  form  of
Government, the “federal character” of distribution of  powers,  secularism,
“separation of powers” between  the  legislature,  the  executive,  and  the
judiciary, and “independence of the judiciary”. This  Court,  while  carving
out each of the above “basic features”,  placed  reliance  on  one  or  more
Articles of the Constitution (some times, in conjunction with  the  preamble
of the Constitution). It goes without saying, that for carving out  each  of
the “core” or “basic features/basic structure”  of  the  Constitution,  only
the provisions of the  Constitution  are  relied  upon.    It  is  therefore
apparent, that the determination of  the  “basic  features”  or  the  “basic
structure”, is made exclusively from the  provisions  of  the  Constitution.
Illustratively, we may advert to “independence of the judiciary”  which  has
been chosen because of its having been  discussed  and  debated  during  the
present  course  of  consideration.   The  deduction  of  the   concept   of
“independence of  the  judiciary”  emerged  from  a  collective  reading  of
Articles 12, 36 and  50.  It  is  sometimes  not  possible,  to  deduce  the
concerned “basic structure” from a plain reading of the  provisions  of  the
Constitution. And at  times,  such  a  deduction  is  made,  from  the  all-
important silences hidden within those Articles, for instance, the  “primacy
of the judiciary” explained in the  Samsher  Singh  case11  the  Sankalchand
Himatlal Sheth case5 and the Second Judges case, wherein  this  Court  while
interpreting  Article  74  along  with  Articles  124,  217  and   222,   in
conjunction with the intent of the  framers  of  the  Constitution  gathered
from the Constituent Assembly debates, and the  conventions  adhered  to  by
the political-executive authority in the matter of appointment and  transfer
of Judges of the higher judiciary, arrived at the conclusion, that  “primacy
of the judiciary” was a constituent of the “independence of  the  judiciary”
which was a “basic feature” of the Constitution. Therefore, when a  plea  is
advanced raising a challenge on the basis of the  violation  of  the  “basic
structure” with reference  to  the  “independence  of  the  judiciary”,  its
rightful understanding is, and has to be, that Articles 12,  36  and  50  on
the  one  hand,  and  Articles  124,  217  and  222  on  the  other,   (read
collectively and harmoniously) constitute the basis  thereof.  Clearly,  the
“basic structure” is truly a set  of  fundamental  foundational  principles,
drawn from  the  provisions  of  the  Constitution  itself.  These  are  not
fanciful principles carved out by the judiciary, at its own.  Therefore,  if
the conclusion drawn is, that the “independence of the judiciary”  has  been
transgressed, it is  to  be  understood,  that  rule/principle  collectively
emerging from the above provisions, had been breached,  or  that  the  above
Articles read together, had been transgressed.
221.  So far as the issue of examining the  constitutional  validity  of  an
ordinary  legislative  enactment  is  concerned,  all   the   constitutional
provisions, on the basis whereof the concerned “basic feature”  arises,  are
available. Breach of a  single  provision  of  the  Constitution,  would  be
sufficient to render the legislation, ultra vires the Constitution. In  such
view of the matter, it would be  proper  to  accept  a  challenge  based  on
constitutional validity, to refer to the particular  Article(s),  singularly
or collectively, which the legislative  enactment  violates.  And  in  cases
where the cumulative effect of a number of Articles of the  Constitution  is
stated to have been violated, reference should be made to all the  concerned
Articles,  including  the  preamble,  if  necessary.  The  issue  is  purely
technical. Yet,  if  a  challenge  is  raised  to  an  ordinary  legislative
enactment based on the doctrine of “basic structure”,  the  same  cannot  be
treated to suffer from a legal infirmity. That would  only  be  a  technical
flaw. That is how, it will be possible to explain the observations  made  by
this Court, in the judgments relied upon by  the  learned  counsel  for  the
petitioners.  Therefore,  when  a  challenge  is  raised  to  a  legislative
enactment based on the cumulative effect of a  number  of  Articles  of  the
Constitution, it is not always necessary to refer to each of  the  concerned
Articles, when a cumulative effect of the said  Articles  has  already  been
determined,  as  constituting  one  of   the   “basic   features”   of   the
Constitution.  Reference to the “basic structure”,  while  dealing  with  an
ordinary legislation, would obviate the  necessity  of  recording  the  same
conclusion,  which  has  already  been  scripted  while   interpreting   the
Article(s) under reference,  harmoniously.  We  would  therefore  reiterate,
that the “basic structure” of the Constitution is inviolable, and  as  such,
the Constitution cannot be amended so as  to  negate  any  “basic  features”
thereof, and so also, if a challenge is raised to  an  ordinary  legislation
based on one of the “basic features” of the Constitution, it would be  valid
to do so. If such a challenge is accepted, on the  ground  of  violation  of
the “basic structure”, it would mean that  the  bunch  of  Articles  of  the
Constitution (including the  preamble  thereof,  wherever  relevant),  which
constitute the particular  “basic  feature”,  had  been  violated.  We  must
however credit the contention of the learned Attorney General by  accepting,
that it would be technically sound  to  refer  to  the  Articles  which  are
violated, when an ordinary legislation is  sought  to  be  struck  down,  as
being ultra vires the provisions of the Constitution.  But  that  would  not
lead  to  the  inference,  that  to  strike  down  an  ordinary  legislative
enactment, as being violative of the “basic structure”, would be  wrong.  We
therefore find no merit in the contention advanced by the  learned  Attorney
General, but for the technical aspect referred to hereinabove.
                                    XIII.
222.  Various challenges were raised to  the  different  provisions  of  the
NJAC Act.  First and foremost, a challenge  was  raised  to  the  manner  of
selection and appointment of the Chief Justice of India.   Section  5(1)  of
the NJAC Act, it was submitted, provides that the NJAC would  recommend  the
senior most Judge of  the  Supreme  Court,  for  being  appointed  as  Chief
Justice of India, subject to the condition, that he is considered  “fit”  to
hold the office.  It was contended, that the Parliament had been  authorized
by law to regulate the procedure for the appointment of  the  Chief  Justice
of India, under Article 124C.  It was submitted, that the NJAC  should  have
been  allowed  to  frame  regulations,  with  reference  to  the  manner  of
selection and appointment of Judges to the higher  judiciary  including  the
Chief Justice of India.
223.  It was submitted, that the term “fit”, expressed in  Section  5(1)  of
the NJAC Act, had not been elaborately  described.   And  as  such,  fitness
would be determined on the subjective satisfaction of  the  Members  of  the
NJAC.  It was acknowledged, that even though the  learned  Attorney  General
had expressed, during  the  course  of  hearing,  that  fitness  only  meant
“…mental and physical fitness…”, a successor Attorney General may  view  the
matter differently, just as the  incumbent  Attorney  General  has  differed
with the concession recorded on behalf of  his  predecessor  (in  the  Third
Judges case), even though they both  represent  the  same  ruling  political
party.  And, it was always open to the  Parliament  to  purposefully  define
the term  “fit”,  in  a  manner  which  could  sub-serve  the  will  of  the
executive. It was pointed out,  that  even  an  ordinance  could  be  issued
without the necessity, of following the procedure of enacting law, to  bring
in a person of the choice of the  political-executive.   It  was  contended,
that the criterion of fitness could be defined  or  redefined,  as  per  the
sweet will of the non-judicial authorities.
224.  It was pointed  out,  that  there  was  a  constitutional  convention,
whereunder the senior most Judge of  the  Supreme  Court,  has  always  been
appointed as Chief Justice of India.  And  that,  the  aforesaid  convention
had remained  unbroken,  even  though  in  some  cases  the  tenure  of  the
appointee had  been  extremely  short,  and  may  not  have  enured  to  the
advantage of the  judiciary,  as  an  institution.   Experience  had  shown,
according to learned counsel, that adhering to the  practice  of  appointing
the senior most Judge as  the  Chief  Justice  of  India,  had  resulted  in
institutional harmony and collegiality amongst Judges, which  was  extremely
important for the health of the judiciary, and also,  for  the  independence
of the judiciary.  It was submitted, that it would be just and  appropriate,
at the present juncture, to understand the width of  the  power,  so  as  to
prevent any likelihood of its misuse in future.
225.  It was suggested, that various ways and  means  could  be  devised  to
supersede senior Judges, to bring in favourites. Past experience had  shown,
that the executive had abused its  authority,  when  it  departed  from  the
above seniority rule in April 1973, by superseding J.M. Shelat,  the  senior
most Judge, and even the next two Judges in the  order  of  seniority  after
him, namely, K.S. Hegde and A.N. Grover, while appointing the fourth  senior
most Judge A.N Ray, as the Chief Justice of India.  Again  in  January  1977
on the retirement of A.N. Ray, CJ., the senior most Judge H.R.  Khanna,  was
ignored, and the next senior most Judge  M.H.  Beg,  was  appointed  as  the
Chief Justice of India.   Such  control  in  the  hands  of  the  executive,
according to learned counsel, would cause immense inroads  in  the  decision
making process.  And could result in, Judges trying to placate  and  appease
the political-executive segment, aimed at personal gains and rewards.
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,  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 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 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. (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, AIR 1974 SC  1480.  It  may
also be noticed that in Koteswar Vittal Kamath case, AIR 1969  SC  504,  the
ruling in the case of Firm A.T.B. Mehtab Majid and Co. AIR 1963 SC  928  has
been distinguished. The case of State of Maharashtra  v.  Central  Provinces
Manganese Ore Co. Ltd., 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)  6  Bing  576,  582 and
Lord Tenterdon in Surtees  v.  Ellison (1829)  9  B&C  750,  752 cited  with
approval in State of Orissa v. M.A. Tulloch & Co., AIR 1964 SC 1284).
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)  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) 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




                               J U D G M E N T

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:
1.    That the judiciary must be both independent and competent.
2.     It  is  dangerous  to  confer  an  unchecked  power  of  choosing  or
appointing Judges on the executive.  The concurrence of the  legislature  is
also not desirable as it  leads  to  a  possibility  of  appointments  being
influenced by political considerations or under political pressure.
3.    (a)   Requiring concurrence of the Chief Justice is also  a  dangerous
proposition.
      (b)   That, the Chief Justice is also a human being and is a man  with
all  the  failings,  sentiments  and  prejudices  which  common  people  are
supposed to have[136].
      (c)   Providing for the concurrence  of  CJI  would  be  conferring  a
power of veto on the CJI which in substance means transferring the power  of
appointment to  the  CJI  without  any  limitation,  which  the  Constituent
Assembly thought it imprudent to confer on the President.

4.    That, the  Drafting  Committee  thought  the  arrangements,  specified
under Articles 124 and 217 (as they stood prior  to  the  AMENDMENT),  would
ensure requisite independence and  competence  of  the  judiciary  and  such
arrangements would be sufficient for the “moment”.

39.     Till  1977,  the  true  meaning  and  amplitude  of  the  expression
consultation occurring in Articles 124 and 217 of the Constitution of  India
troubled neither the executive nor the judiciary.  There had always  been  a
consultation between the  constitutional  functionaries.  Appointments  were
made without much controversy. This Court  in  Supreme  Court  Advocates-on-
Record Association  v.  Union  of  India,  (1993)  4  SCC  441  (hereinafter
referred to as the Second Judges case) recorded so[137].

40.   Article 222[138] authorises  the  President  to  transfer  High  Court
Judges in consultation with the CJI.  Till 1975, that power was very  rarely
exercised by the President.  In 1976[139], the power under Article  222  was
invoked to make a mass transfer of 16 High Court Judges[140].   One  of  the
16 Judges, though complied with the order of  transfer  but  challenged  the
transfer by filing a petition pro bono publico to assert and  vindicate  the
independence of the Judiciary[141].   It was in the context  of  that  case,
for the  first  time,  the  true  meaning  of  the  expression  consultation
occurring under Article 222(1) fell for the  consideration  of  this  Court.
The matter, Union of India v. Sankalchand Himatlal Sheth &  Anr.,  (1977)  4
SCC 193 (for short  Sankalchand  case)  was  heard  by  five  Judges.   Four
separate judgments were delivered by Chandrachud,  Bhagwati,  Krishna  Iyer,
and Untwalia, JJ.  Justice Chandrachud opined  that  “consultation”  in  the
context means an effective consultation and sharing of complete data on  the
basis of which transfer is sought to be effected but concluded that –  After
an effective consultation with the Chief Justice of India,  it  is  open  to
the President to arrive at a proper  decision  of  the  question  whether  a
Judge should  be  transferred  to  another  High  Court  because,  what  the
Constitution requires is  consultation  with  the  Chief  Justice,  not  his
concurrence  with  the  proposed  transfer[142].   After  recording  such  a
conclusion, His Lordship went on to observe as follows:
“41.  ……..  But it is necessary to reiterate what Bhagwati and Krishna  Iyer
JJ.  said  in  Shamsher  Singh  (supra)  that  in  all  conceivable   cases,
consultation with the Chief Justice of  India  should  be  accepted  by  the
Government of India and that the Court will have an opportunity  to  examine
if any other extraneous circumstances have entered into the verdict  of  the
executive if it departs from the counsel  given  by  the  Chief  Justice  of
India. "In practice the last word in such a sensitive  subject  must  belong
to the Chief Justice of India, the rejection of his advice being  ordinarily
regarded as prompted by oblique considerations vitiating the  order."  (page
873). It is hoped that these words will not fall  on  deaf  ears  and  since
normalcy has now  been  restored,  the  differences,  if  any,  between  the
executive and the judiciary will be resolved by  mutual  deliberation  each,
party treating the views of the other with respect and consideration.”

41.   Justice Bhagwati, was entirely in agreement with what  has  been  said
by Krishna Iyer in his judgment.[143]

42.   Justice Krishna Iyer spoke for himself  and  for  Justice  Fazal  Ali.
Justice Krishna Iyer, while reiterating the views expressed  by  this  Court
in two earlier judgments, i.e. Chandramouleshwar Prasad v. Patna High  Court
and Ors. , (1969) 3 SCC 56 and Samsher Singh v. State of  Punjab,  AIR  1974
SC 2192, opined that although the opinion of the Chief Justice of India  may
not be binding on the Government it is  entitled  to  great  weight  and  is
normally to be accepted by the Government ……….[144]  with a caveat:
“115.  ……. It must also be borne in mind  that  if  the  Government  departs
from the opinion of the Chief Justice of India it has to justify its  action
by giving cogent and convincing reasons for the same and, if challenged,  to
prove to the satisfaction of the Court that a case  was  made  out  for  not
accepting the advice of the Chief Justice of India. It seems to us that  the
word  'consultation'  has  been  used  in   Article 222 as   a   matter   of
constitutional courtesy in view of the fact that two very  high  dignitaries
are concerned in the matter, namely, the President and the Chief Justice  of
India. Of course, the Chief Justice has no power of veto,  as  Dr.  Ambedkar
explained in the Constituent Assembly.”

Justice Untwalia agreed with the views expressed by Justice  Chandrachud  on
the question of consultation with the Chief Justice of India and added:
“125. ………  The Government, however, as rightly conceded by Mr.  Seervai,  is
not bound to accept and act upon the advice of the  Chief  Justice.  It  may
differ from him and for cogent reasons may take a contrary  view.  In  other
words, as held by  this  Court  in  the  case  of  Chandramouleshwar  Prasad
v. Patna High Court and Ors.  [1970]2SCR666 , the advice is not  binding  on
the Government invariably and as a matter of  compulsion  in  law.  Although
the decision of this Court  in  Chandramouleshwar  Prasad's  case  was  with
reference   to   the   interpretation   of    Articles 233 and 235 of    the
Constitution, on principle there is hardly any difference.”

43.   One  interesting  factor  that  is  required  to  be  noted  from  the
abovementioned case is that all the 16 transfers were made  in  consultation
with the then CJI.   Within  a  year  thereafter,  in  March  1977,  general
elections  took  place  and  a  new  political  party  came  to  power.  The
Government on a re-examination of  the  matter  opined  that  there  was  no
justification for transferring Justice Sheth from Gujarat.  It is  a  matter
of history that all 16 Judges who were transferred  during  emergency,  were
sent back to their parent High Courts along with Justice  Sheth[145].   This
fact is significant in the context  of  the  argument  that  permitting  the
executive to have any  say  in  the  matter  of  appointment  of  Judges  to
Constitutional  Courts  would  be  destructive  of   independence   of   the
judiciary.

44.   Within three  years  thereafter,  another  significant  event  in  the
constitutional history of this country occurred.  The then Law  Minister  of
the Government of India sent a circular  dated  18th  March  1981  to  Chief
Ministers of various States.  Chief Ministers were requested to obtain  from
all the Additional Judges (working in the concerned High Courts) consent  to
be appointed as permanent Judges in any other High  Court  in  the  country.
It also advised Chief Ministers  to  obtain  similar  consent  letters  from
persons who have already been or may  in  future  be  proposed  for  initial
appointment as Judges of the High Court.  The said letter was challenged  in
S.P. Gupta case on the ground it was a direct attack on the independence  of
the judiciary which is a basic feature of the  Constitution[146]  (Para  2).
The matter was  heard  by  seven  Judges  of  this  Court.   Seven  separate
judgments were delivered.  One  of  the  questions  before  this  Court  was
whether the opinion of CJI be  given  primacy  over  the  opinion  of  other
constitutional functionaries.  Substantially, this Court took the same  view
as was taken in Sankalchand case[147].

45.   Growth of population, increasing awareness  of  legal  rights  in  the
population, expansion of the scope of judicial review as a consequence of  a
change in the understanding of the amplitude of various  fundamental  rights
and their inter-relationship, a sea change in  the  law  on  the  procedural
limitations in the exercise of the jurisdiction under  Article  32  and  226
led to the explosion  of  dockets  of  the  CONSTITUTIONAL  COURTS  of  this
country.  But, the Judge strength remained relatively  stagnant.    By  80s,
the problem became more acute and complex.   Government  of  India  did  not
undertake the requisite exercise to make a periodic assessment of  the  need
to increase the judge strength.  In the case of some High Courts, there  was
even a reduction[148].  Even, the appointment process of High  Court  Judges
was taking unreasonably long periods on legally untenable  grounds[149].   A
three Judge Bench of this Court in Subhash Sharma v. Union of  India  (1991)
Supp.1 SCC 574  (for  short  Subhash  Sharma  case)  took  note  of  such  a
situation.

46.    There  was  a  turmoil  with  regard  to  appointment  of  Judges  of
CONSTITUTIONAL COURTS in 1970s and 1980s.   Senior  Judges  were  superceded
for appointment to the office of CJI.   Perhaps, emboldened by judgments  of
this Court in Sankalchand and S.P. Gupta the executive (at the  National  as
well as the State level) resorted to unhealthy manipulation of  the  system.
The Informal Constitution : Unwritten Criteria in Selecting Judges  for  the
Supreme Court of India[150] records some  instances  of  such  manipulations
based on  news  items  published  in  print  media  of  some  reputation  by
Commentators of well established  credentials  on  Contemporary  issues  and
scholars.  It appears that out of 53 appointments of  Judges  to  some  High
Courts made in 1984-85, 32 were made on the recommendations of acting  Chief
Justices.  It is believed that the senior most Judges of  some  High  Courts
(from where the said 32 recommendations had originated) who initiated  those
recommendations  as  acting  Chief  Justices,  were  made  permanent   Chief
Justices only  after  they  agreed  to  recommend  names  suggested  by  the
Executive.  A particular Additional Judge was not confirmed as  a  permanent
Judge  for  several  years  notwithstanding  the  recommendations  for   his
confirmation by three successive Chief Justices of the High Court and  three
CJIs allegedly on the ground that the Judge had  delivered  a  judgment  not
palatable to the State Government.  It appears that  the  Government  headed
by Prime  Minister  V.P.  Singh  had  stalled  appointments  of  67  persons
recommended by the Chief Justices of  various  High  Courts.   Charges  were
freely traded against each other by  the  constitutional  functionaries  who
are part of the  appointment  process  of  the  CONSTITUTIONAL  COURTS.   It
appears that a Law Minister for the Union of  India  complained  that  State
Governments were trying to pack High Courts with their ‘own men’[151].   The
basic facts are verifiable, inferences therefrom  are  perhaps  contestable.
Unfortunately, the correspondence between the Government  and  the  CJI  and
the record of the consultation process are some of the best guarded  secrets
of this country.

47.   The question is not whether the various statements made in the  above-
mentioned book are absolutely  accurate.   The  observations  made  by  this
Court in Subhash Sharma case can lead to a safe conclusion, that there  must
be some truth in  the  various  statements  made  in  the  book.  The  above
scenario  whether  true  or  partially  true  formed  the  backdrop  of  the
observations made in Subhash Sharma case (supra).   As  a  consequence,  the
Bench thought it fit that the correctness  of  S.P.  Gupta  case  should  be
considered by a larger Bench.
“49.  …….. majority view in S.P. Gupta’s case  should  be  considered  by  a
larger Bench we direct the papers of W.P. No. 1303  of  1987  to  be  placed
before the learned Chief Justice for constituting a Bench of nine Judges  to
examine the two questions we have referred to above,  namely,  the  position
of the Chief Justice of India  with  reference  to  primacy  and,  secondly,
justiciability of fixation of Judge strength…….”


48.   This led to the Second Judges case.  The  matter  was  heard  by  nine
Judges.  Five separate judgments were delivered.  Justice  Verma  spoke  for
five of them.  Justice Pandian  and  Justice  Kuldip  Singh  wrote  separate
judgments but agreed with the conclusions  of  Justice  Verma,  but  Justice
Ahmadi and Justice Punchhi did not.   One  proposition  on  which  all  nine
Judges were  unanimous  is  that  under  the  scheme  of  the  Constitution,
independence of judiciary  is  indispensable.  Justice  Verma  categorically
held that it is a part of the  basic  structure  of  the  Constitution[152].
The point  of  disagreement  between  the  majority  and  minority  is  only
regarding the mode by which the establishment and  continuance  of  such  an
independent judiciary can be achieved.

49.   Textually, provisions which indicate that the  judiciary  is  required
to be independent of the executive are Article 50[153] and the form of  oath
required to be taken by the Judges of CONSTITUTIONAL  COURTS  prescribed  in
Forms IV[154] and VIII[155] under the Third Schedule to the Constitution  of
India.

50.   However, structurally there are many indications in the scheme of  the
Constitution which lead to an unquestionable inference that the  Framers  of
the  Constitution  desired  to  have  a  judiciary   which   is   absolutely
independent of the Executive and insulated from vagaries  of  transient  and
shifting majoritarian dynamics.   Under  the  scheme  of  the  Constitution,
State Legislatures have absolutely no role  in  matters  pertaining  to  the
establishment of CONSTITUTIONAL COURTS of this country.    Parliament  alone
is authorized to deal with certain  aspects  of  the  establishment  of  the
CONSTITUTIONAL COURTS and their  administration  such  as  fixation  of  the
strength of the courts, salaries and other service conditions of the  judges
etc.  Termination of an appointment made to a CONSTITUTIONAL  COURT  can  be
done only through  the  process  of  impeachment  by  Parliament,  the  only
legislative body authorised to impeach by following a  distinct  legislative
process only on the ground of ‘proved misbehaviour or incapacity’.   Such  a
process is  made  more  stringent  by  a  constitutional  stipulation  under
Article 124(5)[156] that  the  procedure  for  investigation  and  proof  of
misbehaviour or incapacity of a Judge must be regulated by law.  Even  after
misbehaviour or  incapacity  is  established  removal  of  a  Judge  is  not
automatic but subject to voting and approval by a special  majority  of  the
Parliament specified under Article 124(4)[157].   Prior  to  the  AMENDMENT,
the  power  to  appoint  Judges  of  CONSTITUTIONAL  COURTS  vested  in  the
President to be exercised in consultation with  the  various  constitutional
functionaries mentioned under Articles 124 and 217,  as  the  case  may  be.
Consultation with the CJI was mandatory for the  appointment  of  Judges  of
all CONSTITUTIONAL COURTS.  Consultation with the  Chief  Justices  of  High
Courts was mandatory for appointment of Judges of High Courts.

51.   In  the  backdrop  of  such  scheme,  a  question  arose  whether  the
appointment process, in any way,  impacts  independence  of  the  judiciary,
which,  admittedly,  formed  a  part  of  the   basic   structure   of   the
Constitution.  Majority of  the  Judges  opined  that  it  does[158].  Their
Lordships drew support for such conclusion from history and debates  in  the
Constituent Assembly apart from  the  observations  made  in  the  cases  of
Sankalchand and S.P. Gupta.  Their Lordships also  took  note  of  the  fact
that  the  Constituent  Assembly  consciously  excluded  any  role  to   the
Parliament in the process of appointments, a conscious  departure  from  the
American  Constitutional  model  where  Federal  Judicial  appointments  are
subject to consent of the Senate.

52.   In the background of such an analysis,  consultation  with  the  Chief
Justice of India in Articles 124  and  217  was  interpreted  as  conferring
primacy to the opinion of CJI.   Consultation with the CJI  was  part  of  a
design of the Constituent Assembly to  deny  unfettered  authority  (to  the
union executive) to  appoint  Judges  of  the  CONSTITUTIONAL  COURTS.   The
Constituent Assembly did not choose to vest such controlling  power  in  the
Parliament to which the Executive is otherwise accountable under the  scheme
of  the  Constitution.    This  Court,  therefore,  concluded  that  without
primacy to the opinion of CJI the whole  consultation  process  contemplated
under Articles 124  and  217  would  only  become  ornamental  enabling  the
executive to make appointments  in  its  absolute  discretion,  most  likely
based on considerations of political expediency.   Such a process  would  be
antithetical to the  constitutional  goal  of  establishing  an  independent
judiciary.  However, Justice Verma categorically declared–
“438. The debate on primacy  is  intended  to  determine,  who  amongst  the
constitutional  functionaries  involved  in  the   integrated   process   of
appointments is best equipped to discharge the greater  burden  attached  to
the role of primacy, of making the proper choice; and this debate is not  to
determine who between them is entitled to greater importance or is  to  take
the winner's prize at the end of the debate. The task before us  has  to  be
performed with this perception.

450.  …………. The indication is, that in the choice of  a  candidate  suitable
for appointment, the opinion of the Chief Justice of India should  have  the
greatest  weight;  the  selection  should  be  made  as  a   result   of   a
participatory consultative process in which the executive should have  power
to act as a mere check on the exercise of power  by  the  Chief  Justice  of
India, to achieve the constitutional purpose. Thus,  the  executive  element
in the appointment process is reduced  to  the  minimum  and  any  political
influence  is  eliminated.  It  was  for   this   reason   that   the   word
'consultation' instead of 'concurrence' was used, but that was  done  merely
to indicate that absolute discretion was not given to any one, not  even  to
the Chief Justice of India as individual, much less to the executive,  which
earlier had absolute discretion under the Government of India Acts.”
                                                         [emphasis supplied]

53.   This Court also indicated the circumstances on which the President  of
India would be constitutionally justified in not acting in  accordance  with
the opinion expressed by the CJI.  This Court never held  that  consultation
means concurrence as is sought to be interpreted  in  some  quarters  and  I
regret to say even in the stated objects and reasons for the AMENDMENT.
“As regards the appointment of Judges of the Supreme Court and High  Courts,
the Supreme Court, in the matters of the Supreme  Court  Advocates-on-Record
Association v. Union of India and its Advisory Opinion 1998 in Third  Judges
case, had interpreted articles 124(2) and 217(1) of  the  Constitution  with
respect to the meaning of “consultation”  as  “concurrence”.   It  was  also
held that the consultation of the Chief Justice  of  India  means  collegium
consisting of the Chief Justice and two or four Judges, as the case may  be.
 This has resulted in a Memorandum of  Procedure  laying  down  the  process
which is being presently followed for appointment  of  Judges  to  both  the
High Courts and the Supreme Court.   The  Memorandum  of  Procedure  confers
upon the Judiciary itself the power for appointment of Judges.”
                                                         [emphasis supplied]


54.   There are  conflicting  opinions[159]  regarding  the  jurisprudential
soundness of the judgment  of  Second  Judges  case.   I  do  not  think  it
necessary  to  examine  that  aspect  of  the  matter  for  the  purpose  of
determining the present controversy.

55.   After some 20 years of the working of the  regime  created  under  the
Second Judges case, serious questions arose whether the regime emanating  as
a consequence of the interpretation placed  by  this  Court  in  the  Second
Judges  case,  yielded  any   constitutionally   aspired   result   of   the
establishment  of   an   independent   and   efficient   judiciary   –   the
CONSTITUTINONAL  COURTS.   Answer  regarding   the   independence   can   be
subjective, and efficiency perhaps may not be very pleasant.

56.   Within a few years doubts arose regarding  the  true  purport  of  the
Second Judges case. The President of India invoked Article  143  and  sought
certain clarifications on the   judgment of the Second Judges  case  leading
to the opinion of this Court reported in Special  Reference  No.1  of  1998,
(1998)  7  SCC  739  (hereinafter  referred  to  as  ‘Third  Judges  case’).
Unfortunately, the factual matrix on which doubts were  entertained  by  the
Government of India are not recorded in the opinion.   But para  41  of  the
Third Judges case records:
“41.  …We take the optimistic view that successive Chief Justices  of  India
shall henceforth act in accordance with the  Second  Judges  case  and  this
opinion.”


57.   No wonder, gossip and speculations gather  momentum  and  currency  in
such state of affairs.  If  a  nine-Judge  Bench  of  this  Court  takes  an
optimistic view that successive Chief Justices  of  India  shall  henceforth
act in accordance with the Second Judges case, the  only  logical  inference
that can be drawn is that the law laid down by the Second  Judges  case  was
not faithfully followed by the successive Chief Justices, if not in  all  at
least in some  cases  attracting  comments.  Instead  of  Ministers,  Judges
patronised.[160]

58.   In the next one and a half decade,  this  nation  has  witnessed  many
unpleasant events connected with judicial appointments - events  which  lend
credence to the speculation that the system established by  the  Second  and
Third Judges cases in its  operational  reality  is  perhaps  not  the  best
system for securing an independent and efficient judiciary.[161]

59.   Two events are part of the record of this  Court  and  can  be  quoted
without attracting the accusation of  being  irresponsible  and  unconcerned
about the sanctity of the institution.  These events led  to  the  decisions
reported in Shanti Bhushan & Another v. Union of India & Another,  (2009)  1
SCC 657, P.D. Dinakaran (1) v. Judges Inquiry Committee & Others,  (2011)  8
SCC 380, P.D. Dinakaran (2) v. Judges Inquiry Committee & Another, (2011)  8
SCC 474.
While the 1st of the said two events pertains to the appointment of a  Judge
of the Madras High Court, the 2nd pertains to  the  recommendation  made  by
the CJI (Collegium) regarding elevation of  the  Chief  Justice  of  a  High
Court to this Court.

60.   The dispute in Shanti Bhushan case (supra) was  regarding  appointment
of a permanent Judge to the Madras High Court.  The  allegation  appears  to
be that the procedure indicated in the Second and  Third  Judges  cases  had
not been followed.  I use  the  expression  appears  to  be  because  it  is
difficult to identify what was the exact pleading in the case[162].   It  is
only by inference such a conclusion can be  reached.   Even  the  conclusion
recorded by this Court does not really throw any light.  In para 22  of  the
judgment of this Court it is recorded as follows:
“22.  The position is almost undisputed that on  17.3.2005  the  then  Chief
Justice of India recommended for extension of term of 8  out  of  9  persons
named as Additional Judges for  a  further  period  of  four  months  w.e.f.
3.4.2005.  On 29.4.2005 the collegium including the then  Chief  Justice  of
India was of the view that name of Respondent 2 cannot be recommended  along
with another Judge  for  confirmation  as  permanent  Judge.   Since  it  is
crystal clear that the Judges are not concerned with any political angle  if
there be any in the matter of appointment as Additional Judge  or  permanent
Judge; the then Chief Justice should have stuck to  the  view  expressed  by
the collegium  and  should  not  have  been  swayed  by  the  views  of  the
Government to recommend extension of the term of Respondent 2 for one  year;
as it amounts to surrender of primacy by jugglery of words.”

                                                         [emphasis supplied]

Even if I choose to ignore the controversial statements made (in the  recent
past) with regard to the appointment in question in  the  case,  by  persons
who  held  high  constitutional  offices  and  played  some  role   in   the
appointment process including former Members of  this  Court,  the  judgment
leaves sufficient scope for believing that all did  not  go  well  with  the
appointment.  It appears to have been a joint venture in the  subversion  of
the law laid down  by  the  Second  and  Third  Judges  cases  by  both  the
executive and the judiciary which neither party is willing to acknowledge.

61.   The grievance of the petitioners in that case appears to be  that  “….
Collegium was not consulted.  …  .”   Unfortunately,  there  is  no  precise
finding in this regard in  the  said  judgment.   On  the  other  hand,  the
content of para 22 of the judgment leaves me with an  uncomfortable  feeling
that there was some departure from the  law  perhaps  under  some  political
pressure.  I wish that I were wrong.

62.   The second event is a recommendation made by the then  CJI  apparently
with the concurrence of the  Collegium  for  elevation  of  the  petitioner.
[See:  P.D.  Dinakaran  (1)  (supra);  P.D.  Dinakaran  (2)  (supra)].   The
recommendation did not fructify.  Serious allegations  of  unsuitability  of
the candidate whose name was recommended surfaced leading to  a  great  deal
of public debate.  It is unpleasant to recount those allegations.  They  are
recorded in the abovementioned two judgments.  There  is  no  allegation  of
any failure on the part of the Collegium to comply with the  procedure  laid
down  in  Second  and  Third  Judges   cases   in   making   the   ill-fated
recommendation. But, the recommendation certainly  exposed  the  shallowness
(at least for once) of the theory propounded by this Court  in  the  trilogy
of cases commencing from S.P. Gupta and ending with the  Third  Judges  case
that the CJI and the Collegium are the most appropriate authorities to  make
an assessment of the suitability of candidates for appointment as Judges  of
CONSTITUTIONAL  COURTS  in  this  country.    A  few  more  instances   were
mentioned at the bar during the course of hearing to  demonstrate  not  only
the shallowness of the theory but also the recommendations by the  Collegium
have not necessarily always been in the best interests  of  the  institution
and the nation.   It is not really necessary to  place  on  record  all  the
details but it is sufficient to  mention  that  the  earlier  mentioned  two
cases are not certainly the only examples of the inappropriate  exercise  of
the power of the Collegium.

63.   I am aware that a few bad examples of the  improper  exercise  of  the
power does not determine the character of  the  power.   Such  inappropriate
exercise of the power was resorted to also by the Executive already  noticed
earlier.   Both branches of government are accusing each other of not  being
worthy of trust.[163]   At least a section of  the  civil  society  believes
that both are right.   The impugned AMENDMENT came in the  backdrop  of  the
above-mentioned experience.

64.   Independence of the judiciary is one of  the  basic  features  of  the
Constitution.  A seven-Judge Bench of this  Court  in  L  Chandra  Kumar  v.
Union of India & Ors., (1997) 3 SCC 261  already  held  that  the  power  of
judicial review of legislative action by the CONSTITUTIONAL COURTS  is  part
of the basic  structure  of  the  constitution  and  the  exercise  of  such
important function demands the existence of an independent judiciary.
“78.  The  legitimacy  of  the  power  of   courts   within   constitutional
democracies to review legislative action has been questioned since the  time
it was first conceived. The Constitution  of  India,  being  alive  to  such
criticism, has, while conferring  such  power  upon  the  higher  judiciary,
incorporated important safeguards. An analysis of the manner  in  which  the
Framers  of  our  Constitution  incorporated  provisions  relating  to   the
judiciary  would  indicate  that  they  were  very  greatly  concerned  with
securing the independence of the judiciary. These attempts were directed  at
ensuring that the judiciary would be capable of effectively discharging  its
wide powers of judicial review. While the Constitution confers the power  to
strike down laws upon the  High  Courts  and  the  Supreme  Court,  it  also
contains  elaborate  provisions   dealing   with   the   tenure,   salaries,
allowances, retirement age of Judges as well as the mechanism for  selecting
Judges to the superior courts. The inclusion of  such  elaborate  provisions
appears  to  have  been  occasioned  by  the  belief  that,  armed  by  such
provisions, the superior courts would be insulated  from  any  executive  or
legislative attempts to interfere with the making of  their  decisions.  The
Judges of  the  superior  courts  have  been  entrusted  with  the  task  of
upholding the Constitution and to this end, have been  conferred  the  power
to interpret it. It is they who have to ensure that  the  balance  of  power
envisaged by the Constitution is maintained and  that  the  legislature  and
the executive do not,  in  the  discharge  of  their  functions,  transgress
constitutional limitations. It is equally their duty  to  oversee  that  the
judicial decisions rendered by those who  man  the  subordinate  courts  and
tribunals do not fall foul of strict  standards  of  legal  correctness  and
judicial  independence.  The  constitutional  safeguards  which  ensure  the
independence of the Judges of the superior judiciary, are not  available  to
the Judges of the subordinate  judiciary  or  to  those  who  man  tribunals
created  by  ordinary  legislations.  Consequently,  Judges  of  the  latter
category can never be considered full  and  effective  substitutes  for  the
superior  judiciary  in   discharging   the   function   of   constitutional
interpretation. We, therefore, hold that the power of judicial  review  over
legislative action vested in the High Courts under Article 226 and  in  this
Court under Article 32 of the Constitution  is  an  integral  and  essential
feature of the Constitution,  constituting  part  of  its  basic  structure.
Ordinarily, therefore, the power of High Courts and  the  Supreme  Court  to
test the constitutional validity of legislations  can  never  be  ousted  or
excluded.”
                                                         [emphasis supplied]


This aspect of the  matter  is  not  in  issue.   None  of  the  respondents
contested that  proposition.  The  text  of  the  Constitution  bears  ample
testimony for the proposition that the Constitution seeks to  establish  and
nurture an independent  judiciary.  The  makers  of  the  Constitution  were
eloquent about it.  Various Articles of the  Constitution  seek  to  protect
independence of the judiciary by providing  appropriate  safeguards  against
unwarranted interference either by the Legislature or  the  Executive,  with
the  Judges  conditions  of  service  and  privileges  incidental   to   the
membership of the CONSTITUTIONAL COURTS, such as, salary, pension,  security
of tenure of the office etc.  The scheme of the Constitution in that  regard
is already noticed.[164]  Such  protections  are  felt  necessary  not  only
under our Constitution, but  also  several  other  democratic  Constitutions
(the details of some of them are already noticed in paras 25  to  27).  Such
protections are incorporated in the light of the  experience  and  knowledge
of  history.   Various  attempts  made  by  Governments   to   subvert   the
independence  of  the  judiciary  were  known  to  the   makers   of   those
Constitutions and also the makers of our Constitution.

65.   Articles 124 and 217 deal  with  one  of  the  elements  necessary  to
establish  an  independent  judiciary  -  the  appointment  process.     The
Constituent Assembly was fully  conscious  of  the  importance  of  such  an
element  in  establishing  and  nurturing  an  independent  judiciary.    It
examined various models in vogue in other countries.  Dr. Ambedkar’s  speech
dated 24th May 1949[165] (quoted supra) is proof of  such  awareness.    The
Constituent Assembly was fully appraised of the dangers  of  entrusting  the
power of appointment of members of the CONSTITUTIONAL COURTS exclusively  to
the Executive.   At  the  same  time,  the  Constituent  Assembly  was  also
sensitised to the undesirability of entrusting such a power  exclusively  to
the CJI or allowing any  role  to  the  Parliament  in  the  matter  of  the
judicial appointments. The probable consequences of assigning  such  a  role
were  also  mentioned  by  Dr.  Ambedkar.    The  Constituent  Assembly  was
informed of the various models and institutional mechanisms in  vogue  under
various democratic Constitutions for  appointment  of  the  members  of  the
superior judiciary.  The Constituent Assembly was told by Dr. Ambedkar  that
the model, such as the one contained in Articles 124 and 217 (as they  stood
prior to the AMENDMENT) - may be regarded  as  sufficient  for  the  moment.
Various alternative models suggested by the members were not  accepted.[166]
The  legislative  history  clearly  indicates  that  the  members   of   the
Constituent Assembly clearly refused to  vest  an  absolute  and  unfettered
power to appoint Judges of the CONSTITUTIONAL COURTS in any  one  of  the  3
branches of the Constitution.   Constituent Assembly declined to assign  any
role to the Parliament.   It declined to vest  an  unbridled  power  in  the
executive.   At the same time did not  agree  with  the  proposal  that  the
CJI’s concurrence is required for any appointment.

66.   The system of Collegium the product of an interpretative gloss on  the
text of Articles 124 and 217 undertaken in the Second and Third Judges  case
may or may not be the best to  establish  and  nurture  an  independent  and
efficient judiciary.  There  are  seriously  competing  views  expressed  by
eminent people[167], both on the jurisprudential soundness of the  judgments
and the manner in which the  Collegium  system  operated  in  the  last  two
decades.

67.   Neither the jurisprudential correctness of the  concept  of  Collegium
nor how well or ill the Collegium system operated in the  last  two  decades
is the question before us.  The question is  –  whether  such  a  system  is
immutable or is Parliament competent to amend the  Constitution  and  create
an alternative mechanism for selection and appointment  of  the  members  of
CONSTITUTIONAL COURTS of this country.

68.   The  basic  objection  for  the  impugned  AMENDMENT  is  that  it  is
destructive  of  the  Constitutional  objective  of  establishment   of   an
independent  judiciary,  and  consequently  the  basic  structure   of   the
Constitution.  Therefore, it falls foul of the law laid down by  this  Court
in Bharati case.

69.   To decide the correctness of the submission, it is necessary:
(1)   to identify the ratio decidendi of Bharati case where  the  theory  of
“basic structure” and “basic features” originated.
(2)   Whether the expressions “basic features” and “basic structure” of  the
Constitution are synonyms or do they convey  different  ideas  or  concepts?
If so, what are the ideas they convey?
(3)   Have they been clearly identified by earlier decisions of this Court?
(4)   Are there any principles of law laid down by this  Court  to  identify
the basic features of the Constitution?
(5)   If the two expressions “basic features”  and  “basic  structure”  mean
two different things, is it  the  destruction  of  any  one  of  them  which
renders any Constitutional amendment void or should  such  an  amendment  be
destructive of both of them to become void.
(6)   When can a Constitutional amendment be said  to  destroy  or  abrogate
either a “basic feature” of the Constitution or  the  “basic  structure”  of
the Constitution?


70.   In Bharati case, one of  the  questions  was  –  whether  Article  368
confers unbridled power on the Parliament to amend the  Constitution.   That
question arose in the background of an earlier decision  of  this  Court  in
I.C. Golak Nath & Others  v.  State  of  Punjab  &  Another,  (1967)  2  SCR
762[168] wherein it was held that Article  368  conferred  on  Parliament  a
limited power to amend the  Constitution.   A  Constitutional  amendment  is
‘law’ within the  meaning  of  Article  13(3)(a)[169].   Any  Constitutional
amendment which seeks to take away or even abridge any  one  of  the  rights
guaranteed under Part-III of the Constitution  would  be  violative  of  the
mandate contained under Article 13(2)[170] and therefore illegal.

71.   The correctness of I.C. Golak Nath was  one  of  the  questions  which
fell for consideration of the larger Bench of this Court  in  Bharati  case.
Eleven opinions were rendered.  This  Court  by  majority  held  that  every
Article  of  the   Constitution   including   the   articles   incorporating
fundamental  rights  are  amenable  to   the   amendatory   power   of   the
Parliament[171] under Article 368 which is  a  constituent  power  but  such
power does not enable Parliament to alter the basic structure  or  framework
of the Constitution.[172]

72.    That  is  the  origin  of  the  theory  of  basic  structure  of  the
Constitution.  Justice Shelat and  Grover,  J.  used  the  expression  basic
elements and held  that  they  cannot  be  abrogated  or  denuded  of  their
identity.  Justice  Hegde  and  Mukherjea,  J.  used  the  expression  basic
elements or fundamental features and held that they cannot be  abrogated  or
emasculated.  Justice  Jaganmohan  Reddy  used  the   expression   essential
elements of the basic structure and  held  that  they  cannot  be  abrogated
thereby destroying the identity  of  the  Constitution.  Justice  Sikri  and
Khanna,  J.  employed  the  expressions  basic   structure   or   framework,
foundation, the basic institutional pattern, which is beyond  the  power  of
the Parliament under Article 368 of the Constitution.   Some of the  learned
Judges mentioned certain features which according to them  constitute  basic
or essential features etc. of the Constitution.  All of them  were  cautious
to make it explicit that such features or elements  mentioned  by  them  are
only illustrative but not exhaustive.  In  Minerva  Mills  Ltd.  &  Ors.  v.
Union of India & Ors., (1980) 3 SCC 625, Justice Chandrachud,  speaking  for
the majority of the Constitution Bench,  observed  that  para  No.2  of  the
summary signed by the nine Judges correctly reflects the majority view.
“12. The summary of the various judgments  in  Kesavananda  Bharati  (Supra)
was signed by nine out of the thirteen Judges. Paragraph 2  of  the  summary
reads to say that according to the majority, "Article 368  does  not  enable
Parliament to alter the basic structure or framework of  the  Constitution".
Whether or not the summary is a legitimate part of the judgment, or  is  per
incuriam for the scholarly reasons cited by authors, it is  undeniable  that
it correctly reflects the majority view.”
                                                         [emphasis supplied]
73.   Again in Waman Rao & Ors. etc. etc. v. Union of India &  Ors.,  (1981)
2 SCC 362, Chief  Justice  Chandrachud  speaking  for  another  Constitution
Bench observed:
“The judgment of the majority to which seven  out  of  the  thirteen  Judges
were parties, struck a bridle path by holding that in the  exercise  of  the
power  conferred  by  Article  368,  the   Parliament   cannot   amend   the
Constitution so  as  to  damage  or  destroy  the  basic  structure  of  the
Constitution.” (Para 15)

                                                         [emphasis supplied]

By then Justice Chandrachud had already  expressed  his  opinion  in  Indira
Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1 as follows:
“663.       There was some discussion at the Bar as  to  which  features  of
the Constitution form the basic structure of the Constitution  according  to
the majority decision in the Fundamental Rights case. That,  to  me,  is  an
inquiry both fruitless and irrelevant. The ratio of  the  majority  decision
is not that some named features of the Constitution are a part of its  basic
structure but that the power of amendment  cannot  be  exercised  so  as  to
damage or destroy the essential elements  or  the  basic  structure  of  the
Constitution, whatever these expressions may comprehend.”
                                                         [emphasis supplied]

The above passages, indicate that it is not very  clear  from  Bharati  case
whether  the  expression  basic  structure,  basic  features  and  essential
elements convey  the  same  idea  or  different  ideas.   Therefore,  it  is
necessary  to  examine  some   decisions   where   the   legality   of   the
constitutional  amendments  was  considered  by  this  Court  subsequent  to
Bharati case.

74.   The earliest of them is Indira Nehru  Gandhi  case  (supra).   By  the
Constitution 39th Amendment Article 329A was inserted.  Clauses (4) and  (5)
of the said Article sought to exclude the complaints  of  violation  of  the
provisions of The Representation of the People Act, 1951  from  scrutiny  of
any forum whatsoever in so far as such complaints pertain  to  the  election
of the Prime Minister or  the  Speaker  of  the  Lok  Sabha.   The  question
whether such an amendment violated any one of  the  basic  features  of  the
Constitution arose.  It was argued that the amendment was violative of  four
basic features of the Constitution.  They  are  :  (1)  Democratic  form  of
Government; (2) Separation of Powers between the legislature, the  executive
and the judiciary; (3) the principle of Equality  of  all  before  the  law;
and (4) the concept of the rule of law.  A Constitution Bench of this  Court
held  that  the  impugned  clauses  were  beyond  the  competence   of   the
Parliament’s power under Article 368.[173]

75.   Four out of the five  Judges  agreed  upon  the  conclusion  that  the
impugned  amendment  was  destructive  of  the  basic   structure   of   the
Constitution.  Each one of the Judges opined  that  the  impugned  provision
violated a distinct  basic  feature  of  the  Constitution  leading  to  the
destruction of the basic structure of the Constitution.

76.   In Minerva Mills case (supra), this Court once  again  was  confronted
with the problem of “basic structure  of  the  Constitution”.[174]   By  the
Constitution (42nd Amendment) Act among other things, Clauses  (4)  and  (5)
came to be added in Article 368 and Article  31-C  came  to  be  amended  by
substituting  certain  words  in  the  original  Article.    Chief   Justice
Chandrachud spoke for the majority of the Court and declared Sections 4  and
55 of the Constitution (42nd Amendment) Act to be  violative  of  the  basic
structure of the Constitution. Dealing with the amendment  to  Article  368,
this Court held:
“Para 16. ….. The majority (in Bharati case) conceded to the Parliament  the
right to make alterations in the Constitution so long  as  they  are  within
its basic framework. And what fears can that judgment  raise  or  misgivings
generate if it only means this and no more.  The  preamble  assures  to  the
people of India a polity whose basic structure is  described  therein  as  a
Sovereign Democratic Republic; Parliament may make  any  amendments  to  the
Constitution as it deems expedient so long as they do not damage or  destroy
India’s sovereignty and its democratic, republican character.  Democracy  is
not an empty dream. It is a meaningful concept  whose  essential  attributes
are  recited  in  the  preamble  itself:  Justice  —  social,  economic  and
political; Liberty of thought, expression, belief, faith  and  worship;  and
Equality of status and opportunity.  Its  aim,  again  as  set  out  in  the
preamble, is to promote among the people an  abiding  sense  of  “fraternity
assuring the dignity of the individual and the unity  of  the  nation”.  The
newly introduced clause (5) of Article 368 demolishes the  very  pillars  on
which the preamble rests  by  empowering  the  Parliament  to  exercise  its
constituent power without any “limitation whatever”.  No  constituent  power
can conceivably go higher than the sky-high power conferred by  clause  (5),
for it even empowers the  Parliament  to  “repeal  the  provisions  of  this
Constitution”, that is to say, to abrogate the democracy and substitute  for
it a totally antithetical form of Government. That can most  effectively  be
achieved, without calling a democracy by any other name, by a  total  denial
of social, economic and political justice to  the  people,  by  emasculating
liberty of thought, expression, belief, faith and worship  and  by  abjuring
commitment to the magnificent ideal of a society of  equals.  The  power  to
destroy is not a power to amend.”

                                                         [emphasis supplied]


The issue arising from the amendment to Article 31-C was identified to be  –
whether the directive principles of the State Policy  contained  in  Part-IV
can have primacy over the fundamental rights contained in  Part-III  of  the
Constitution  –  because  the  42nd  amendment  sought  to  subordinate  the
fundamental rights  conferred  by  Articles  14  and  19  to  the  directive
principles. This Court formulated the question – whether such  an  amendment
was within the amendatory power of the Parliament in view of  the  law  laid
down by this Court in Bharati case.  The Court propounded that:
“41. ….. It is only if the rights conferred by these two Articles are not  a
part of the basic structure of the Constitution that they can be allowed  to
be abrogated by a constitutional amendment. If they are a part of the  basic
structure, they cannot be obliterated out of  existence  in  relation  to  a
category of laws described in Article 31-C or, for the matter  of  that,  in
relation to laws of any description whatsoever, passed in order  to  achieve
any object or policy whatsoever. This will serve  to  bring  out  the  point
that a total emasculation of the essential features of the Constitution  is,
by the ratio in Kesavananda Bharati, not permissible to the Parliament.”

The Court finally reached the conclusion that the Parts III and  IV  of  the
Constitution are like two wheels of a chariot  both  equally  important  and
held:
“56.  ….. To  give absolute primacy to one over the other is to disturb  the
harmony  of  the  Constitution.   This  harmony  and  balance  between   the
fundamental rights and directive principles is an essential feature  of  the
basic structure of the Constitution.”
                                                         [emphasis supplied]

This Court concluded that the amendment to Article  31C  is  destructive  of
the basic structure as it abrogated  the  protection  of  Article  14  &  19
against laws which fall within the ambit of  the  description  contained  in
Article 31C.

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

But this Court finally reached the conclusion that  the  Amendment  did  not
damage  or  destroy  the  basic  structure  and,   therefore,   upheld   the
Amendment[175].  Such a conclusion was reached on the basis of the logic –
“29.   The  First  Amendment  is  aimed  at  removing  social  and  economic
disparities in the agricultural sector. It may happen  that  while  existing
inequalities are being removed, new inequalities may  arise  marginally  and
incidentally. Such marginal and incidental  inequalities  cannot  damage  or
destroy the basic structure of the Constitution. It is  impossible  for  any
government, howsoever expertly  advised,  socially  oriented  and  prudently
managed, to remove every economic disparity without  causing  some  hardship
or injustice to a class of persons who also are entitled to equal  treatment
under the law.  …..”

This Court held that though the protection of Articles 14 and 19 is  totally
abrogated,  the  withdrawal  or  abrogation  of  such  protection  does  not
necessarily result in damage or destruction of the basic  structure  of  the
Constitution.  In other words, this Court held that if  in  the  process  of
seeking to achieve a larger  constitutional  goal  of  removing  social  and
economic disparities in the agricultural sector and  effectuating  the  twin
principles contained in Article 39(b) and (a)  if  new  inequalities  result
marginally and incidentally they cannot be said to  be  destructive  of  the
basic structure of the Constitution.

78.   Both Minerva  Mills  and  Waman  Rao  dealt  with  the  abrogation  of
Articles 14 and 19  or  absolute  withdrawal  of  the  protection  of  those
fundamental rights with reference to certain classes of  legislation.   This
Court held in the first of the above mentioned cases  that  such  withdrawal
amounted to abrogation of a basic feature  and,  therefore,  destructive  of
the basic structure of the Constitution and in the second  case  this  Court
carved out an exception to the rule enunciated in  Minerva  Mills  and  held
that such abrogation insofar as the law dealing with  agrarian  reforms  did
not destroy the basic structure.  These cases only indicate  that;  (i)  the
expressions ‘basic structure’ and  ‘basic  features’  convey  two  different
ideas, (ii) the basic features are COMPONENTS of basic structure.   It  also
follows from these  cases  that  either  a  particular  Article  or  set  of
Articles can constitute a basic feature of  the  Constitution.     Amendment
of one or some of the Articles constituting a basic feature may or  may  not
result in the destruction of the basic structure of the  Constitution.    It
all depends on the context.

79.   This Court in  S.R.  Bommai  v.  Union  of  India,  (1994)  3  SCC  1,
recognised the concept of secularism as one of the  basic  features  of  the
Constitution not because any one of the Articles of  the  Constitution  made
any express declaration to that effect but such a conclusion  followed  from
the scheme of the various provisions of the Constitution.[176]

80.   This Court in M. Nagaraj & Others v. Union  of  India  &  Others[177],
(2006) 8 SCC 212, deduced the principle that  the  process  of   identifying
the basic features of the Constitution lies in the  identification  of  some
concepts which are beyond the words of any particular provision but  pervade
the scheme of the Constitution.  Some of these concepts may be so  important
and fundamental as to  qualify  to  be  called  essential  features  of  the
Constitution or part of the basic structure of  the  Constitution  therefore
not open to the amendment.

This Court specified  the  process  by  which  the  basic  features  of  the
Constitution are to be identified.  The Court held:
“23.  …. Therefore, it is important to note that the recognition of a  basic
structure in the context of amendment provides an insight  that  there  are,
beyond the words of particular provisions, systematic principles  underlying
and connecting the provisions of the  Constitution.  These  principles  give
coherence  to  the  Constitution  and  make  it  an  organic  whole.   These
principles are part of constitutional law even if  they  are  not  expressly
stated in the form of rules. An instance is the principle of  reasonableness
which connects Articles 14, 19 and 21. Some of these principles  may  be  so
important and fundamental, as to qualify as “essential features” or part  of
the “basic structure” of the Constitution, that is  to  say,  they  are  not
open to amendment. However,  it  is  only  by  linking  provisions  to  such
overarching principles that one would be able to distinguish essential  from
less essential features of the Constitution.

24.   The point which is  important  to  be  noted  is  that  principles  of
federalism, secularism, reasonableness and socialism, etc.  are  beyond  the
words  of  a  particular  provision.  They  are  systematic  and  structural
principles   underlying   and   connecting   various   provisions   of   the
Constitution. They  give  coherence  to  the  Constitution.  They  make  the
Constitution an organic whole. They are part of constitutional law  even  if
they are not expressly stated in the form of rules.

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

                                                         [emphasis supplied]

81.   In I.R. Coelho (Dead) By LRs v. State of T.N. (2007) 2 SCC 1, this
Court ruled;

“129. Equality, rule of law, judicial review and separation of  powers  form
parts of the basic structure of the Constitution.  Each  of  these  concepts
are intimately connected. There can be no  rule  of  law,  if  there  is  no
equality before the law. These would be meaningless  if  the  violation  was
not subject to the judicial review. All these  would  be  redundant  if  the
legislative,  executive  and  judicial  powers  are  vested  in  one  organ.
Therefore, the duty to decide whether the limits have been transgressed  has
been placed on the judiciary.

130.  Realising that it is  necessary  to  secure  the  enforcement  of  the
fundamental rights, power for  such  enforcement  has  been  vested  by  the
Constitution in the Supreme Court and the High Courts.  Judicial  Review  is
an essential feature of the Constitution. It gives practical content to  the
objectives of the Constitution embodied in Part III and other parts  of  the
Constitution. It may be noted that the mere fact that equality, which  is  a
part of the basic structure, can be  excluded  for  a  limited  purpose,  to
protect certain kinds of laws, does not prevent it from being  part  of  the
basic structure. Therefore, it  follows  that  in  considering  whether  any
particular feature of the Constitution is part  of  the  basic  structure  -
rule of law, separation of powers - the fact  that  limited  exceptions  are
made for limited purposes, to protect certain kind of laws,  does  not  mean
that it is not part of the basic structure.”
                                                         [emphasis supplied]

82.   An analysis of the judgments of the  abovementioned  cases  commencing
from Bharati case yields the following propositions:
Article  368  enables  the  Parliament  to  amend  any  provision   of   the
Constitution;
The power under Article 368  however  does  not  enable  the  Parliament  to
destroy the basic structure of the Constitution;
None of the cases referred to above specified or declared what is the  basic
structure of the Constitution;
(iv)   The  expressions  “basic  structure”  and  “basic  features”   convey
different ideas though some of the learned  Judges  used  those  expressions
interchangeably.
(v)   The basic structure of the Constitution is the sum total of the  basic
features of the Constitution;
(vi)  Some of the basic  features  identified  so  far  by  this  Court  are
democracy,  secularism,  equality  of  status,  independence  of  judiciary,
judicial review and some of the fundamental rights;
(vii) The abrogation of any one of the basic features  results  normally  in
the destruction of the basic structure of the Constitution subject  to  some
exceptions;
(viii)      As to when the abrogation of a particular basic feature  can  be
said to destroy the basic structure of the  Constitution  depends  upon  the
nature of the basic feature sought to be amended  and  the  context  of  the
amendment. There is no universally applicable test vis-à-vis all  the  basic
features.

83.   Most of the basic features identified so  far  in  the  various  cases
referred to earlier  are  not  emanations  of  any  single  Article  of  the
Constitution.  They are concepts emanating from a combination  of  a  number
of Articles each of them creating certain  rights  or  obligations  or  both
(for the sake of easy reference I call them “ELEMENTS”).   For example,

(a) when  it  is  said  that  the  democracy  is  a  basic  feature  of  our
Constitution, such a feature,  in  my  opinion,  emerges  from  the  various
articles of the Constitution which provide  for  the  establishment  of  the
legislative bodies[178] (Parliament and  the  State  Legislatures)  and  the
Articles which prescribe a periodic election to these bodies[179]  based  on
adult franchise[180];  the role assigned to these bodies, that is,  to  make
laws for the governance of this Country in  their  respective  spheres[181];
and  the establishment of an independent machinery[182] for  conducting  the
periodic elections etc.;
(b)   the concept of secularism emanates from various articles contained  in
the fundamental rights chapter like Articles 15 and 16 which  prohibits  the
State from practicing any kind of discrimination on the ground  of  religion
and Articles 25 to 30 which guarantee certain fundamental  rights  regarding
the freedom of religion to every person and the  specific  mention  of  such
rights with reference to minorities.

84.   The abrogation of a basic feature may ensue as a  consequence  of  the
amendment of a single Article in the cluster of  Articles  constituting  the
basic feature as it happened in Minerva Mills case and Indira  Nehru  Gandhi
case.

85.   On the other hand, such a result may not ensue in the context of  some
basic features.  For example, Article 326 prescribes that  election  to  Lok
Sabha and the  Legislative  Assemblies  shall  be  on  the  basis  of  adult
suffrage.  Adult suffrage is explained in the said Article as:
“… that is to say, every person who is a citizen of India  and  who  is  not
less than eighteen years of age on such date as may be fixed in that  behalf
by or under  any  law  made  by  the  appropriate  Legislature  and  is  not
otherwise disqualified under this  Constitution  or  any  law  made  by  the
appropriate Legislature on  the  ground  of  non-residence,  unsoundness  of
mind, crime or  corrupt  or  illegal  practice,  shall  be  entitled  to  be
registered as a voter at any such election.”

One of the components is that the prescription of the minimum age  limit  of
18 years.  Undoubtedly, the right created under Article  326  in  favour  of
citizens of India to participate in the election process of  the  Lok  Sabha
and the Legislative  Assemblies  is  an  integral  part  (for  the  sake  of
convenience, I call it an ELEMENT) of  the  basic  feature  i.e.  democracy.
However, for some valid reasons, if the Parliament  were  to  amend  Article
326 fixing a higher minimum age  limit,  it  is  doubtful  whether  such  an
amendment would be abrogative of the basic  feature  of   democracy  thereby
resulting in the destruction of the basic  structure  of  the  Constitution.
It is worthwhile remembering that the minimum  age  of  18  years  occurring
under Article 326 as on today came up by way  of  the  Constitution  (Sixty-
first Amendment) Act, 1988.  Prior to the amendment, the minimum  age  limit
was 21 years.

86.   As held by this Court in  Minerva  Mills  case,  the  amendment  of  a
single article may result in the destruction of the basic structure  of  the
Constitution depending upon the nature of the basic feature and the  context
of the abrogation of that article if the purpose sought to  be  achieved  by
the Article constitutes the quintessential to the  basic  structure  of  the
Constitution.

87.   In my opinion, these cases also are really of no help for  determining
the case on hand as they do not lay down any general principle by  which  it
can be determined as to when can  a  constitutional  amendment  be  said  to
destroy the basic structure of the Constitution.  In the case on  hand,  the
identity of the basic feature is not in dispute.  The  question  is  whether
the AMENDMENT is abrogative of the independence  of  judiciary  –  (a  basic
feature) resulting  in  the  destruction  of  the  basic  structure  of  the
Constitution.

88.   By the very nature of the basic feature with which we are dealing,  it
does not confer  any  fundamental  or  constitutional  right  in  favour  of
individuals.  It is only a means  for  securing  to  the  people  of  India,
justice, liberty and equality.   It creates a collective right in favour  of
the polity to have a judiciary  which  is  free  from  the  control  of  the
Executive or the Legislature in its essential function of decision making.

89.   The challenge to the AMENDMENT is  required  to  be  examined  in  the
light of  the  preceding  discussion.    The  petitioners  argued  that  (i)
Independence of the judiciary is a basic feature (COMPONENT)  of  the  basic
structure of the Constitution; (ii) the process of  appointment  of  members
of constitutional courts  is  an  essential  ingredient  (ELEMENT)  of  such
COMPONENT; (iii) the process prescribed under  unamended  Articles  124  and
217, as interpreted by this Court in the Second and Third Judges  cases,  is
a basic feature and was so designed  by  framers  of  the  Constitution  for
ensuring independence of the judiciary, by providing   for  primacy  of  the
opinion of the CJI (Collegium); and not of  the  opinion  of  the  President
(the Executive); (iv) the AMENDMENT  dilutes  such  primacy  and  tilts  the
balance in favour of the Executive,  thereby  abrogating  a  basic  feature,
leading to destruction of the basic structure.

90.   The prime target of attack by the petitioners is Section 2(a)  of  the
AMENDMENT by which the institutional mechanism for appointment of judges  of
constitutional courts  is  replaced.   According  to  the  petitioners,  the
AMENDMENT is a brazen attempt by the Executive branch to grab the  power  of
appointing Judges to CONSTITUTIONAL COURTS.   Such shift of power  into  the
hands of Executive would enable packing of the  CONSTITUTIONAL  COURTS  with
persons who are likely to be less independent.

91.   It is further argued that the principles laid down in the  Second  and
Third Judges cases are not based purely on the interpretation  of  the  text
of the Constitution as it stood prior to the impugned AMENDMENT but also  on
the basis of a fundamental  Constitutional  principle  that  an  independent
judiciary is one of the basic features of the Constitution.   The  procedure
for appointment of the Judges of the CONSTITUTIONAL COURTS is  an  important
element in the establishment and  nurturing  of  an  independent  judiciary.
Such conclusion not only flows from the text of the Articles 124 and 217  as
they stood prior to  the  impugned  AMENDMENT  but  flow  from  a  necessary
implication emanating from the scheme of the Constitution  as  evidenced  by
Articles 32, 50, 112(3)(d), 113(1), 203(1), 125(2), 221(2) etc.

92.    Mr.  Nariman,  learned  Senior  Counsel  appearing  for  one  of  the
petitioners emphatically submitted that he is  not  against  change  of  the
mechanism provided under Articles 124 and  217.    He  submitted  that  this
aspect of the matter fell for consideration of Justice  M.N.  Venkatachaliah
Commission[183], which also recommended  creation  of  a  National  Judicial
Appointments Commission but with a slightly different composition[184].   If
really Parliament wanted to change in the mechanism  for  the  selection  of
the members of the superior judiciary, the model recommended by the  Justice
M.N. Venkatachaliah Commission could well have been adopted.   According  to
Mr. Nariman the  model  identified  by  Venkatachaliah  Commission  is  more
suitable for preservation of independence of the judiciary  than  the  model
adopted in the AMENDMENT.   Mr. Nariman further argued that no  reasons  are
given by the Union of India explaining why recommendations  of  the  Justice
M.N. Venkatachaliah Commission were not accepted.

93.   On the other hand, it is submitted by  the  learned  Attorney  General
and other senior counsel appearing for various respondents;
(i)   Parliament’s power to amend the Constitution is plenary  subject  only
to the limitation that  it  cannot  abrogate  the  basic  structure  of  the
Constitution.  The AMENDMENT in no way abrogates the basic structure of  the
Constitution.

      (ii)  Independence of judiciary is not the  only  objective  envisaged
by the Constitution, it also envisages an efficient  judiciary.  To  achieve
such twin objects, Parliament in  its  wisdom  thought  that  the  selection
process of the members of the CONSTITUTIONAL COURTS as it existed  prior  to
the AMENDMENT required  modification.   The  wisdom  of  Parliament  is  not
amenable to the scrutiny of this Court, even  in  the  context  of  ordinary
legislation.  Logically, a constitutional amendment therefore  should  enjoy
a greater degree of immunity.

In other words, where the goal  sought  to  be  achieved  by  Parliament  is
constitutionally legitimate, the legislation by which such a goal is  sought
to be achieved can be questioned only on limited  grounds.    They  are  (i)
lack of legislative competence, (ii) the legislation  violates  any  one  of
the fundamental rights enumerated in Part III of the Constitution, or is  in
contravention  of  some  other  express  prohibition  of  the  Constitution.
Absent such objectionable features, the possibility that the goal sought  to
be achieved by the legislation can be achieved through modes other than  the
one chosen by the legislation can never be a ground  for  invalidating  even
an ordinary legislation as has been consistently held by  this  Court.    In
the case of a constitutional amendment question  of  legislative  competence
in the above-mentioned sense and conflict with the other provisions  of  the
Constitution are irrelevant and does not arise.

      (iii) Checks and balances of powers conferred by the  Constitution  on
the  three  great  branches  of  governance  –  Legislature,  Executive  and
Judiciary is  the  most  basic  feature  of  all  democratic  constitutions.
Absolute independence of any one of the three branches is inconsistent  with
core democratic values and the scheme of our Constitution.   This  Court  by
an interpretative process of the Constitution  as  it  stood  prior  to  the
AMENDMENT disturbed such balance.   The  AMENDMENT  only  seeks  to  restore
such balance and therefore cannot be said to be  destructive  of  the  basic
structure of the Constitution.

(iv) That the law laid down by this Court in Second and  Third  Judges  case
is no more relevant in view of the fact that the text  of  the  Constitution
which was the subject matter of interpretation  in  the  said  cases  stands
amended.  In the light of  well  settled  principles  of  interpretation  of
statutes the law laid down in those two cases is no more a good law.  It  is
further argued that in the event this Court comes  to  the  conclusion  that
the law laid down in the abovementioned two  judgments  has  some  relevance
for determining the constitutional validity of the AMENDMENT  and  also  the
correctness  of  the  principles  laid  down  in  those  judgments  requires
reconsideration by a  Bench  of  appropriate  strength.   According  to  the
Attorney  General  and  other   learned   counsel   for   respondents,   the
abovementioned two judgments are contrary to the text  of  the  Constitution
as it stood then and in complete disregard  of  the  constitutional  history
and background of the relevant provisions.  It  is  further  submitted  that
under the scheme of the Constitution, neither this  Court  nor  High  Courts
are conferred unqualified autonomy though a large  measure  of  autonomy  is
conferred under various provisions.  For example  the  salaries,  privileges
and allowances, pension etc.  could  still  be  regulated  by  law  made  by
Parliament under Article 125 and 221, 137, 140, 145 etc.

(v)   It is submitted that independence of the judiciary is  indisputably  a
basic feature of the  Constitution.  An  essential  element  of  this  basic
feature is that the President (Executive)  should  not  have  an  unfettered
discretion in such appointment process but not that the opinion of  the  CJI
(Collegium) should have primacy or dominance.  The judgments of  this  Court
in the Second and Third Judges cases are not only counter textual  but  also
plainly contrary to the intent  of  the  Constituent  Assembly  and  clearly
beyond limits of judicial power, it is an exercise of constituent  authority
in the disguise of interpretation.  Under the AMENDMENT, the  President  has
no discretion in the matter  of  appointment  of  Judges  of  CONSTITUTIONAL
COURTS. He is bound by the recommendation of the  NJAC  wherein  members  of
the judiciary constitute the single largest  group.   Parliament  exercising
constituent  power  (under  Article  368)  considered  it  appropriate  that
representatives of the Civil Society  should  be  accorded  a  participatory
role in the process of appointments to CONSTITUTIONAL COURTS and that  their
presence would be a check on potential  and  consequently   ruinous   ‘trade
offs’; (i) between and amongst the three members representing the  judiciary
and (ii) between the judiciary  and  the  executive;  and  would  accentuate
transparency to what had hitherto been an opaque  process.  Such  wisdom  of
the Parliament in  not  open  to   question.    It  is  an  established  and
venerated principle that the Court  would  not  sit  in  judgment  over  the
wisdom  of  Parliament  even  in  respect  of  an  ordinary  legislation;  a
constitutional amendment invites a greater degree of deference.

      (vi)  Even under the scheme of the AMENDMENT,  judiciary  has  a  pre-
dominant role. The apprehension that, under the new dispensation,  Executive
would have the opportunity of packing  the  CONSTITUTIONAL  COURTS  of  this
country with cronies is illogical and  baseless.    The  presence  of  three
senior most Judges of this Court  in  the  NJAC  is  a  wholesome  safeguard
against such possibility.   Any two of the three Judges can  stall  such  an
effort, if ever attempted by the Executive.

(vii) The fact that a Commission headed by Justice  M.N.Venkatachaliah  made
certain recommendations need not necessarily mean that the  model  suggested
by the Commission is  the  only  model  for  securing  independence  of  the
judiciary or the best model.  At any rate, the  choice  of  the  appropriate
model necessarily involves a  value  judgment.   The  model  chosen  by  the
Parliament in exercise of its  constituent  powers  cannot  be  held  to  be
unconstitutional only on the ground that in the opinion of some,  there  are
better models or alternatives.  Such a value judgment is exclusively in  the
realm of the Parliament’s constituent powers. It is  also  argued  that  the
mechanism for selection  of  members   of   the  constitutional  courts   as
expounded  in  the  Second  and  the  Third  Judges  cases, even   according
 to  Mr.  Nariman’s opinion is not the  best.   Mr.  Nariman  is  on  record
stating so in one of the books authored by him “Before  Memory  Fades  :  An
Autobiography”[185].

94.   Any  appointment  process  established  under  the  Constitution  must
necessarily be conducive  for  establishment  of  not  only  an  independent
judiciary but also  ensure  its  efficiency.  Two  qualities  essential  for
preservation of liberty.
“In order to lay a due foundation for that separate  and  distinct  exercise
of the different  powers  of  government,  which  to  a  certain  extent  is
admitted on all hands to be essential to the preservation of liberty, it  is
evident  that  each  department  should  have  a  will  of  its   own,   and
consequently should be so constituted that the members of each  should  have
as little agency as possible in  the  appointment  of  the  members  of  the
others.  Were this principle rigorously adhered to, it  would  require  that
all the appointments for the supreme execu