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Reportable in the Supreme Court of India

Supreme Court Advocates-On-Record Association and ANR. Vs. Union of India

[Writ Petition (Civil) No.13 of 2015]

[Writ Petition (Civil) Nos.23 of 2015, 70 of 2015, 83 of 2015]

[T.P. (C) No. 391 of 2015]

[W.P. (C) NOS. 108 of 2015, 124 of 2015, 14 of 2015, 18 of 2015, 24 of 2015, 209 of 2015, 309 of 2015, 310 of 2015 and 323 of 2015]

ADARSH KUMAR GOEL, J.

Introduction

1. Articles 124, 127, 128, 217, 222, 224 and 231 of the Constitution of India ('the Constitution') deal with the appointment of the judges of the Supreme Court and the High Courts ('the Constitutional courts'), and other allied matters. The Constitution (Ninety-Ninth Amendment) Act, 2014 ('the Amendment Act') inter alia seeks to amend these constitutional provisions. The National Judicial Appointments Commission Act, 2014 ('the NJAC Act'), enacted simultaneously, purports to regulate the procedure of the National Judicial Appointments Commission (NJAC). The present batch of petitions challenge the constitutional validity of the Amendment Act and the NJAC Act. . The Supreme Court Advocates-on-Record Association has filed [WRIT PETITION (Civil) No.13 of 2015, which has been treated as the lead petition.

2. I have perused the erudite opinions of my esteemed brothers. While I respectfully agree with the conclusions arrived at by Khehar J., Lokur J. and Kurian Joseph J., and respectfully disagree with the view of Chelameswar J. I prefer to record my own reasons. Pre-Amendment Scheme of Appointment and Transfer of Judges

3. The scheme of appointment and transfer of Judges in force prior to the amendment is set out in two memoranda dated 30th June, 1999 issued by the Government of India - first for appointment of Chief Justice of India (CJI) and judges of the Supreme Court and second for appointment and transfer of Chief Justices and the judges of the High Courts.

3.1 Broadly the procedure laid down in the first memorandum is that appointment to the office of the CJI should be of the senior most judge of the Supreme Court considered fit to hold the office. For this purpose, recommendation is sought from the outgoing CJI and if there is doubt about the fitness of the senior most judge, consultation is made with the other judges under Article 124(2).

Thereafter, the Law Minister puts up the matter to the Prime Minister (PM) who advises the President. After approval of the President, the appointment is notified. For appointment as judges of the Supreme Court, the CJI initiates the proposal and forwards his recommendation to the Union Minister of Law who puts up the matter to the PM, who in turn advises the President. Opinion of the CJI is formed in consultation with four senior most judges and if successor CJI is not in the said four senior most judges, he is also made part of the collegium. CJI also ascertains the views of the senior most judge in the Supreme Court who hails from the High Court from where a person recommended comes. Opinions in respect of the recommendation are in writing and are transmitted to the Government of India for record. If the views of non- judges are solicited, a memorandum thereof and its substance is conveyed to the Government of India. Once appointment is approved by the President of India, certificate of physical fitness is obtained and after the warrant of appointment is signed by the President, the appointment is announced and a notification issued in the Gazette of India.

3.2 The procedure laid down in the second memorandum deals with the appointments to the High Courts and transfers. The Chief Justices of High Courts are appointed from outside. Inter se seniority in a particular High Court is considered for appointment as Chief Justice from that High Court. Initiation of proposal for appointment of Chief Justice of a High Court is by the CJI. The CJI consults two senior most Judges of the Supreme Court and also ascertains the views of his senior most colleague in the Supreme Court who is conversant with the affairs of the High Court in which the recommendee has been functioning and whose opinion is likely to be significant in adjudging the suitability of the candidate.

The views of the Judges are sent along with the proposal of the Union Minister of Law who obtains the views of the concerned State Government and then submits the proposal to the PM who advises the President. As soon as appointment is approved by the President, notification is issued in the Gazette of India. As regards the appointment of a Judge of the High Court, the Chief Justice of the High Court communicates to the Chief Minister his views, after consulting two of his senior most colleagues regarding suitability of the person to be selected. All consultations must be in writing and these opinions are sent to the Chief Minister, along with the recommendation. If the Chief Minister desires to recommend a name, he has to forward the same to the Chief Justice for his consideration. A copy of the recommendation is also sent to the CJI and the Union Law Minister.

The Chief Minister advises the Governor who forwards his recommendation to the Law Minister. The Law Minister considers the recommendation in the light of such other reports (such as I.B. report) as may be available to the Government and then forwards the material to the CJI. CJI consults two senior most Judges and also takes into account the views of the Chief Justice and Judges of the High Court (consulted by the Chief Justice) and those Judges of the Supreme Court who are conversant with the affairs of the candidate. Thereafter the CJI sends the recommendation to the Union Law Minister along with the correspondence with his colleagues. If the Law Minister considers it expedient to refer back the name for opinion of the State Constitutional Authorities, opinion of the CJI must be obtained. The Law Minister then puts up the recommendation to the PM who advises the President. The correspondence between the Chief Justice, the Chief Minister and Governor inter se is in writing. As soon as the appointment is approved by the President, physical fitness is ascertained and as soon as warrant of appointment is signed by the President, notification is issued in the Gazette of India.

3.3 Proposal for transfer is initiated by the CJI. Consent of the Judge concerned is not necessary. The CJI consults four senior most Judges of the Supreme Court and takes into account the views of the Chief Justice of the High Court from which the Judge is to be transferred and Chief Justice of the High Court to which the transfer is to be effected. CJI also takes into account the views of one or more Supreme Court Judges who are in a position to offer his/their views. The views are expressed in writing, and are considered by the CJI and four senior most Judges. The personal facts relating to the Judge and his response to the proposal are invariably taken into account. The proposal is then referred to the Government. The Law Minister submits the recommendation to the PM who advises the President. After the President approves the transfer, a notification is issued in the Official Gazette.

3.4 The above memoranda were issued by the Government of India in the light of unamended Constitutional provisions and the judgment of this Court dated 28th October, 1998 in Special Reference No.1 of 1998[712] (Third Judges' case) which in substance reiterates the earlier Nine Judge Bench judgment in SCAORA vs. Union of India[713] (Second Judges' case).

3.5 Reference may also be made to the unamended constitutional provisions. Article 124 (2) provides that a Judge of the Supreme Court shall be appointed by the President after consultation with such Judges of the Supreme Court and the High Courts as are deemed necessary. However, the CJI is always to be consulted. Article 217 provides that a Judge of the High Court shall be appointed by the President after consultation with CJI, Governor of the State and in case of a Judge other than the Chief Justice, the Chief Justice of the High Court. The question arose before this Court on several occasions as to the value of the opinion of the CJI in the process of 'consultation'.

This Court held that under the scheme of the Constitution a proposal for appointment to the Supreme Court must emanate from the CJI and for appointment to the High Court it should emanate from the Chief Justice of the High Court and the last word on appointment must rest with the CJI[714]. This Court noted that by convention proposals for appointments were always initiated by the judiciary and appointments were made with the concurrence of the CJI. This view was reiterated in Third Judges' case on the basis of which the above memoranda were issued by the Government of India. Scheme under the Amendment

4. Reference may now be made to the impugned Amendment.

It amends Article 124 and provides that such appointments and transfers will now be on the recommendation of the NJAC (Section 2). Requirement of mandatory consultation with the CJI and consultation with such Judges as may be considered necessary has been deleted. Convention of initiation of proposal by Chief Justice for the High Courts and CJI for the Supreme Court and other scheme as reflected in the memoranda earlier mentioned and as laid down in decisions of this Court has been replaced. The amendment inserts a new Article 124A, under which the NJAC is to be constituted. It will comprise the CJI, two senior most judges of Supreme Court next to the CJI, Union Law Minister and two eminent persons to be nominated by the Committee comprising of the PM, the CJI and the Leader of the Opposition in the House of the People/Leader of single largest Opposition Party in the House of the People. The nomination of one of these eminent persons is reserved for persons belonging to the Scheduled Castes, the Scheduled Tribes, OBC, minorities or women. Under the new scheme, for any proposal five out of six members must concur. If any two members disagree, no proposal can be made.

5. The Amendment Act also provides for the Parliament to enact law to regulate the procedure for appointment of judges of higher courts and to empower the Commission to lay down, by regulations, the procedure for discharge of its functions, the manner of selection of its members and such other matters, as may be considered necessary (Section 3).

6. The NJAC Act provides for the appointment of the senior most judge of the Supreme Court as CJI, if considered fit to hold the office; and for recommendation for appointment as judge of the Supreme Court (Section 5). The Second proviso to Section 5(2) of the NJAC Act states that the Commission shall not recommend a person if two members of the Commission do not agree. Apart from its other functions, the Commission would also recommend appointments of Chief Justice and judges of High Courts (Section 6(1), (3)). Alternatively, the Commission can seek a nomination from the Chief Justice of the High Court for recommending appointment as judge of the High Court(Section 6(2)).

For appointment of judges of High Courts, however, the Commission must seek prior consultation with the Chief Justice of the concerned High Court, who in turn has to consult two senior most judges of the said High Court and such other judges and eminent advocates as may be specified. (Section 6(4)). The Commission is also to seek views of the Governor and Chief Minister of the concerned State. The power of appointment of officers and employees of the Commission is with the Central Government. The Convener of the Commission is the Secretary, Government of India, in the Department of Justice. Central Government is authorised to make rules for carrying out the provisions of the Act(section 11). The Commission is authorised to make regulations consistent with the Act and the Rules. The Rules and the Regulations framed under the Act are required to be placed before the Parliament, which may modify such rules or regulations(sections 12, 13).

7. The statement of objects and reasons of the amendment mentions that this Court had interpreted the word "consultation" as "concurrence" in Articles 124(2) and 217 (2) of the Constitution (S.2). It further states that after review of the constitutional provisions, pronouncements of this Court and consultation with eminent jurists, it was felt that a broad based National Judicial Appointments Commission should be established for making recommendation for appointment of judges of the Supreme Court and the High Courts. The Commission will provide 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 (S.3).

7.1 Though by notification dated 13th April, 2015, the Amendment and the Act have been brought into force, the Commission has not been constituted so far, as two eminent persons have not been so far appointed.

7.2 Key Constitutional unamended provisions and the provisions of the Amendment and the Act are as follows:-

Unamended Provisions

Provisions of the Amendment

Article 124 xxxx xxxx xxxx

"124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:--

(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.

(a) the Chief Justice of India, Chairperson, ex officio;

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

(b) two other senior Judges of the Supreme Court next to the Chief Justice of India --Members, ex officio;

Article 217. Appointment and conditions of the office of a Judge of a High Court - Every Judge of a High Court shall be appointed by the President by 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:

(c) the Union Minister in charge of Law and Justice--Member, ex officio;

 

(d) 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.".

7.3 The relevant constitutional and statutory provisions are set out separately in an Appendix to this opinion. Rival Contentions

8. The Amendment Act is challenged as ultra vires, inter alia for being beyond the competence of the Parliament as it alters and destroys the basic structure of the Constitution, as embodied in the independence of judiciary in the context of appointment of judges of the higher judiciary. The petitioners submit that the power of the Parliament to amend the Constitution under Article 368 is limited and does not extend to altering or destroying the basic structure or basic features of the Constitution.

The independence of the judiciary is a constitutional concept, regarded as a basic feature of the Constitution, and includes insulating the judiciary from executive or legislative control, primacy of higher judiciary in the matter of appointment of judges to the High Courts and the Supreme Court, non-amendability of conditions of service of judges of the Supreme Court and the High Court to their disadvantage. The Amendment takes away the primacy of the collective opinion of the CJI and the senior most Supreme Court judges by stalling an appointment unanimously proposed by them if the same is not concurred by two non-judge Commission members [second proviso to Section 5(2) and Section 6(6)]. This endows unchecked veto power to non- judges in appointing judges to higher courts, compromising the judiciary's independence. The Amendment also dilutes the judiciary's constitutionally- conferred power by granting unbridled power on the Parliament to control, by ordinary law, the manner of selection of a person for appointment to higher judiciary, which also damages the independence of judiciary.

This power enables the Parliament to substitute judiciary's primacy with that of the executive. If allowed to stand, the provision could easily be further amended thereby denying any effective role for the senior most judges of the higher judiciary in appointment of judges of the Supreme Court and the High Courts. Thus, the Amendment does not envisage predominant voice for the judges and makes the executive element in appointment of judges dominant which alters and damages the basic structure of the Constitution. It is also contended that the NJAC Act was void as it was passed by the Parliament before the Amendment Act became operative.

9. Thus, the contentions on behalf of the petitioners are:-

(i) Constitution is supreme and powers of all organs are defined and controlled thereunder;

(ii) Amending power of Parliament is limited by the concept of basic structure as judicially interpreted;

Final interpreter of the Constitution and the scope of powers thereunder is this Court; Independence of judiciary and separation of powers are part of basic structure; Primacy of judiciary in appointment of judges is crucial part of independence of judiciary and separation of powers and thus part of basic structure; Role of executive and legislature in appointment of judges being kept at minimum was also part of basic structure;

The composition of the Commission in the impugned Amendment severally damages the basic structure of the Constitution by destroying primacy of judiciary in appointment of judges and giving controlling role to the executive and legislature in such appointments;

The impugned amendment enables stalling of appointment of judges proposed by the judiciary unless candidates suggested by the executive are appointed thereby compromising independence of judiciary;

The impugned amendment expands the power of amendment by delegating crucial issues of appointment of judges to Parliament which is against the basic structure of the Constitution; The composition of the Commission will shake confidence of people in Judiciary if Executive or Legislature have dominant voice; and The impugned Act is beyond legislative competence of the Parliament.

10. The Joint Secretary, Department of Justice has filed a counter affidavit on behalf of the Union of India (UOI), defending the Amendment and the Act. UOI's case is that independence of judiciary is only post appointment. Appointment is an executive act and the judiciary's independence has no relevance with the executive act of appointment. UOI submits that judicial independence is to be coupled with checks and balances and that a contextual reading of Articles 124(2) and 217(1) with the Constituent Assembly Debates (CAD) makes it evident that there is no primacy of the CJI in appointment of judges. Consultation with the CJI was only by way of a check on executive, which had the final say in the matter.

Further, provision for consultation with other judges does not justify creation of a collegium. UOI's submission refers to impeachment provisions for removal of judges (Article 124(4); Parliament's power to regulate procedure for presentation of an address and investigation and proof of misbehaviour or incapacity of a judge (Article 124(5)) and to determine salary of judges and provisions pertaining to other aspects of judicial functioning conferring power on Parliament to legislate (Article 125).

UOI submits that the decisions of this Court in Second Judges' case and Third Judges' case laying down primacy of the judiciary in the context of consultative process under Articles 124(1) and 217(1) have no relevance to test the validity of the impugned Ninety Ninth Amendment by which provisions of Articles 124(2) and 217(1) stand amended. However, it is contended that the view taken in the said judgments that the judiciary has primacy in appointment is erroneous, and needs to be revisited. In any case, the UOI contends that the primacy of judiciary in the matter of appointment of judges of the higher judiciary has no connection with independence of judiciary and is not the basic feature of the Constitution.

In several countries, such as Australia, independence of judiciary exists without primacy of the judiciary in appointments of judges to the higher judiciary. UOI submits that the power conferred on Parliament to enact law to regulate the procedure of the NJAC or to modify the regulations framed by the NJAC is valid. The NJAC is accountable to Parliament in framing regulations. The presence of Law Minister as a member of the NJAC ensures accountability to public. The presence of two eminent persons is a check and balance on the functioning of other members. Diversity of members will ensure greater accountability of each member to the other.

This will ensure greater public confidence in the functioning of the judiciary. The NJAC will fall under the purview of Right to Information Act, 2005 which will ensure transparency. Even if the Amendment was struck down, original provisions could not be revived as doctrine of revival does not apply to Constitutional Amendments. The issue was raised in Property Owners' Association vs. State of Maharashtra[715] with respect to Article 31C of the Constitution which is pending before a nine-judge Bench. It is also submitted that the [WRIT PETITION is pre-mature as the new system has not been given a chance to operate and no rights have been affected.

11. The contentions on behalf of the respondents can be summed up as follows:-

(a) Power of appointment of judges rests with the executive and role of judiciary is confined to consultation which may or may not be accepted by the executive;

(b) Primacy of judiciary in appointments was recognised by erroneous interpretation of unamended provisions of the Constitution and by way of amendment such interpretation has been corrected and thus there is no violation of basic structure. Alternatively larger Bench be constituted to correct the earlier interpretation;

(c) Primacy of judiciary in appointments was not inalienable and in changed situation, in the light of experiences gained, the primacy could be done away with or modified;

(d) Wisdom of constituent body in making a choice was not open to judicial review;

(e) Taking the Constitution as a whole, value of independence of judiciary could be balanced with other constitutional values of democracy, accountability and checks and balances;

(f) Power of amendment was plenary and could not be questioned unless it results in destruction of a pillar of Constitution;

(g) Even with power being with executive or power of veto being with executive, independence of judiciary could survive so long as there was protection of tenure and service conditions of judges;

(h) Accountability and transparency in functioning of every constitutional organ was part of democracy in which case exclusive power of appointment of judges with the judiciary was undemocratic; (i) The impugned amendment retains primacy by having three out of six members, out of which two could stop an undesirable appointment. The executive did not have predominant role as two eminent persons were appointed by a committee having the Prime Minister, the CJI and the Leader of Opposition thereby role of Prime Minister being limited. Law Minister and eminent persons as members ensured giving of relevant feedback and ensuring accountability and transparency.;

(j) The impugned amendment in conferring power on Parliament and the Central Government in procedural matters did not violate independence of judiciary; and

(k) The impugned Act was within legislative competence of Parliament.

12. Shri Fali S. Nariman, learned senior counsel led the arguments on behalf of the petitioners in the lead petition followed by S/Shri Ram Jethmalani, Anil B. Divan, K.N. Bhat, Arvind Datar, Dr. Rajeev Dhawan, learned senior counsel and other counsel appearing either in person or as intervenor or otherwise. They have been opposed by learned Attorney General Shri Mukul Rohtagi, learned Solicitor General Shri Ranjit Kumar and S/Shri K. Parasaran, Soli J. Sorabjee, K.K. Venugopal, Harish N. Salve, T.R. Andhyarujina, Dushyant Dave learned senior counsel and other learned counsel for various States and intervenors or otherwise. I record my gratitude to learned counsel for their painstaking assistance to the Court with their exceptional ability and skill for deciding important issues arising for consideration. Their contentions will be referred to at appropriate stage to the extent necessary.

13. While generally learned counsel on either side have taken identical stand, Shri Venugopal, appearing for the State of M.P., which is otherwise supporting the amendment, in his alternative submission, filed on 14th July, 2015 by way of additional propositions, inter alia submitted as follows:

"3 Looking at the scheme of the 99th Amendment and the National Judicial Commission Appointments Act, 2014 (NJAC Act), the scheme evolved provides for the constitution of a 6 member Commission and under Article 124-C, for the procedure to be provided under a law made by the Parliament.

The NJAC Act has certain salient features that includes under the second proviso to Section 5(2), a provision in the nature of a 'veto', as no appointment can be made if two members of the Commission do not agree to that appointment. This provision is challenged by the Petitioners as the 99th Amendment Act does not make any such provision and to provide for a 'veto', as it were, by two out of six members, is stated to be ultra vires the Amendment Act or, in any event, not a matter of procedure.

4 This submission appears to be correct for the following reasons:

a. The principle of 'primacy' of the judiciary, which is a part of judicial independence, must necessarily be read into the NJAC Act as well. Any Act providing for procedure would be ultra vires the Constitutional provision if it does not satisfy the requirement of primacy. The 'veto' provision, therefore, is clearly antithetical to the concept of 'primacy' and must be struck down as being ultra vires the amendment.

xxxxxx xxxxxx xxxxx

6. Irrespective of the nine Judges' Bench judgment, certain concepts in law exist in the matter of the functioning of the judiciary in a democracy. The existence of an independent judiciary is a sine qua non for democracy to flourish. Here, we are concerned with the issue of appointment of judges to the higher judiciary. Whether, the power is executive or not, it cannot be gainsaid that it impinges on the independence of the judiciary in case the executive were to exclusively have the power to appoint the judges. Such a system of appointment could result in brining into existence judges who are subservient to the will of the Government, which would be a major litigant in the Courts. Independence therefore, would stand affected.

7. If the 'veto' is invalid, then the common law principle of majority would apply. The Chief Justice of India and the two other judges have expertise in the matter of selection of judges to the higher judiciary and also have full knowledge of the functioning of the potential candidates. However, the unanimous view of the three judges would not carry the day if opposed by the other three members. In every other case, where all six are in agreement on a candidate, no problem in making the right decision would arise. The real question, therefore, is what would be the position if a deadlock arises when the unanimous decision of the three judges is opposed by the other three members. Needless to state, that if the three judges are not ad idem on a candidate, no 'issue of primacy' would arise and the majority would prevail.

8. It is true that the nine judges case can no more hold the field for the purpose of nullifying the 99th amendment, which, obviously, is inconsistent with the Collegium system evolved by the nine judges judgment. But that does not mean that the principles enunciated by the said judgment could not be relied upon as being a juristic principle that would be applicable in such cases. In other words, these principles can be said to be relevant for all time to come because of the following reasons :

a. The power of appointment can be used to affect or subvert the independence of the appointees when functioning as members of the superior judiciary.

b. A system of appointment where the executive voice predominates would affect such independence.

c. If however, the voice of the Chief Justice of India, representing the judiciary prevails, even in a system where the executive or anyone else has a minor part to play, this will nevertheless not affect the independence and on the other hand would sub-serve independence. In other words, primacy in the matter of appointment has to be with the judiciary.

xxxxx xxxxx xxxxx

11. These are general principles enunciated by the Supreme Court based on the concept of independence of the judiciary. That concept is all pervasive and whenever that situation arises, the Court would, in the same manner as it did in the Second Judges' case , interpret the present Article 124-A. This would mean that the principle of independence underlying the appointment of judges of the higher judiciary would require that the views of the three judges of the Commission, speaking with a single voice would have primacy.

This would be the result not because the judgment in the Second Judges' case would bind the Court but because the concept of judicial independence applicable in the case of appointment of judges to the higher judiciary would be applicable wherever and whenever a situation arose where no explicit provision in the Constitution gave primacy to the judicial wing. In such cases, the validity of the constitutional provision would be upheld and legitimized exactly on the same basis as the concept was evolved in the Second Judges' case. As a result, the 99th amendment to the Constitution, would always be deemed to have been a valid exercise of Constituent power. In the absence of the existence of a 'veto', if the three Judges speak with a single voice, their decision would prevail. The President would then have to issue the warrant of appointment.

xxxxx xxxxx xxxxx

16. Apart from the above, petitioners have also contended that the term 'eminent person' is too broad and that the appointment of eminent persons who have nothing to do with the law and who are not aware of the working of the judicial system would result in a violation of the principle of judicial independence. 'The rule of purposive interpretation' can be applied to this provision. By application of this rule, the Court can interpret eminent persons to mean only 'persons trained in law' or 'eminent jurists' (see in this regard, P. Vaikunta Shenoy v. P. Hari Sharma (2007) 14 SCC 297 @ Paras 11-13 and VC Shukla v. State (Delhi Amn.) (1980 Supp. SCC 249 @ para 28)"

The Issue

14. There being no dispute that a Constitutional Amendment can be valid only if it is consistent with the basic structure of the Constitution, the core issue for consideration is whether the impugned amendment alters or damages the said basic structure and is void on that ground. According to the petitioners the primacy of judiciary in appointment of judges and absence of interference by the Executive therein is by itself a part of basic feature of the Constitution being integral part of independence of judiciary and separation of judiciary from the Executive.

According to the respondents primacy of judiciary in appointment of judges is not part of independence of judiciary. Even when appointments are made by Executive, independence of judiciary is not affected. Alternatively in the amended scheme, primacy of judiciary is retained and independence of judiciary is strengthened. The amendment promotes transparency and accountability and is a part of needed reform without affecting the basic structure of the Constitution. To determine the question one has to look at the concept of basic feature which controls the amending power of the Parliament. This understanding will lead to the decision whether primacy of judiciary and absence of Executive interference in appointment of judges is part of such basic structure.

Discussion A. Concept of Basic Features - As Limitation on Power of the Parliament to amend the Constitution

15. Article 368 of the Constitution provides for power to amend the Constitution and procedure therefor. In Kesavananda Bharti vs. State of Kerala[716] (Kesavananda Bharti case), the scope of amending power was gone into by a bench of 13-Judges. In the concluding para signed by 9-Judges it was held that "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution". The conclusion was based on interpretation of the word 'amendment'. It was observed that the word was capable of wide as well as narrow meaning and while wide meaning was to be preferred but consistent with the intention of Constitution makers and the context. It could not be given too wide meaning so as to permit damage to the constitutional values which depict the identity of the Constitution.[717]

15.1 The basic structure or framework was not exhaustively defined but some of the features of the Constitution were held to be the illustrations of the basic structure by the majority of seven Judges - Sikri CJ, Shelat, Grover, Hegde, Mukherjea, Reddy and Khanna, JJ. Illustrations by them include Supremacy of the Constitution, democratic form of Government, secular character of the Constitution, separation of powers between the Judiciary, the Executive and the Legislature, federal character of the Constitution, dignity of the individual secured by basic rights in accordance with Parts III and IV, unity and integrity of the nation.[718]

15.2 It was held that the power of the Parliament to amend the Constitution was limited by the requirement that basic foundation and structure of the Constitution remains the same. Power of amendment was envisaged to meet the challenge of the problems which may arise in the course of socio economic progress of the country but it was never contemplated that in exercise of the power of amendment certain inalienable features of the Constitution will be changed. The court referred to various decisions in different jurisdictions dealing with the scope of amendment of the Constitution. Sikri, CJ. observed that having regard to importance of freedom of the individual and the importance of economic, social and political justice, mentioned in the preamble the word "amendment" could not be read in its widest sense.

The Fundamental Rights could not be amended out of existence. Fundamental features of secularism, democracy and freedom of individual should always subsist. The expression "amendment" had a limited meaning. Otherwise a political party with two- third majority could so amend the Constitution as to debar any other party from functioning, establish totalitarianism and enslave the people and thereafter make the Constitution unamendable. Thus, the appeal to democratic principles to justify absolute amending power, if accepted, could damage the very democratic principles.

Thus, the amendment meant addition or change within the broad contours of the preamble of the Constitution. The Parliament could adjust the Fundamental Rights to secure the objectives of the Directive Principles while maintaining freedom and dignity of every citizen. The dignity and freedom of the individual was held to be of supreme importance. The basic features were held to be discernible not only from the preamble but the whole scheme of the Constitution. Shelat & Grover, JJ. observed that the Constitution makers did not desire that the citizens will not enjoy the basic freedoms, equality, freedom of religion etc. so that dignity of an individual is maintained. The economic and social changes were to be made without taking away dignity of the individual.

The vital provisions of Part III or Part IV could not be cut out or denuded of their identity. Hegde and Mukherjea, JJ. observed that the power of amendment was conferred on the Parliament. People as such were not associated with the amendment. The Constitution was given by the people to themselves. The voice of the members of the Constituent Assembly was of the voice of the people. Two-third members of the two Houses of Parliament did not necessarily represent even the majority of the people. Thus, the two-third members of the two Houses of Parliament could not speak on behalf of the entire people of the country[719].

Even best of the Government was not averse to have more and more powers to carry out their plans and programmes which they believe to be in public interest, but freedom once lost could hardly be regained. Every encroachment of freedom sets a pattern for further encroachment. The development was envisaged without destruction of individual freedoms. Reddy, J. observed if any of the essential features was altered, the Constitutional structure could not maintain its identity. There could be no justice, liberty or equality without democracy. There could be no democracy without justice, equality and liberty. The structure of the Constitution was an organic instrument. The core commitment to social revolution lies in Parts III and IV.

They are the conscience of the Constitution. They had roots deep in the struggle for independence. They were included with the hope that one day victory of people would bloom in India. They connect India's future, present and past. The demand for Fundamental Rights had its inspiration in Magna Carta, the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the US Constitution. Referring to the statement of Dr. Ambedkar, that Article 32 was the soul of the Constitution and the very heart of it, it was observed that such an article could not be abrogated by an amendment. Khanna, J. observed that as a result of amendment, the old Constitution could not be done away with. Basic structure of framework must be retained. It was not permissible to touch the foundation or to alter the basic institutional pattern. What can be amended is the existing Constitution and what must emerge as a result of amendment is not a new and different Constitution but the existing Constitution.

What was contemplated by amendment was varying of the Constitution here and there and not elimination of its basic structure resulting in losing its identity. 15.3 One of the questions considered was validity of Section 3 of the Twenty-Fifth Amendment Act, 1971 adding Article 31-C as follows:- "416. Section 3 of the twenty-fifth amendment, reads thus:

3. After Article 31B of the Constitution, the following article shall be inserted, namely: 31. C. 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 is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; 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: "Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent."

The highlighted part was held by majority to be unconstitutional, for granting immunity from challenge thereby affecting the basic feature of judicial review[720].

15.4 The scope of amending power was again considered by this Court in the course of challenge to Thirty-Ninth Amendment which debarred any challenge to the election of PM and Speaker of the Lok Sabha in Indira Nehru Gandhi vs. Raj Narain[721]. Chandrachud, J. (later the Chief Justice) observed that it is not that only certain named features of the Constitution are part of its basic structure. The features named by individual judges in Kesavananda Bharti case were merely illustrations and were not intended to be exhaustive. Having regard to its place in the scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution, a feature of the Constitution could be held to be a basic feature[722]. He added that undoubted unamendable basic features are :-

"(i) India is a Sovereign Democratic Republic;

(ii) Equality of status and opportunity shall be secured to all its citizens;

(iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion and that

(iv) the Nation shall be governed by a Government of laws not of men".

39th Amendment debarring challenge to election inter alia of PM was struck down as being against the basic features of the Constitution.[723] Article 329A, Clause (4) (added by way of Amendment) provided that election law will not apply to a person holding office of PM and Speaker and election of such persons shall not be deemed to be void under any such law. It was held that the democracy was the part of the basic structure which contemplated free and fair election.

Without there being machinery for resolving an election dispute, the elections could not be free and fair which in turn will damage the basic feature of democracy. In absence of any law to deal with validity of election of PM, the basic feature of rule of law will be violated. Referring to the writing of Madison in

"The Federalist", it was observed that all powers of the Government could not be vested in one Department. No Constitution could survive without adherence to checks and balances. "Just as courts ought not to enter into problems entwined in the "political thicket", Parliament must also respect the preserve of the courts[724]."

15.5. Validity of Forty-Second Amendment was considered by this Court in Minerva Mills Ltd. vs. Union of India[725]. The court considered the validity of Sections 4 and 55 of the 42nd Amendment Act. By Section 4, Article 31C was sought to be amended to provide that a law giving effect to Part IV of the Constitution could not be deemed to be void for being inconsistent with Articles 14, 19 and 31 and could not be challenged on the ground that the said law was not for giving effect to the said Part IV. By Section 55, it was provided that no amendment of the Constitution could be challenged on any ground and that there will be no limitation on the constituent power of Parliament to amend the Constitution.

This Court observed that the Constitution had conferred limited amending power on the Parliament which itself was a basic feature of the Constitution. The Parliament could not expand its amending power so as to destroy the said basic feature of the Constitution. The limited power could not be converted into unlimited one. Clauses 4 and 5 of Article 368 added by Forty- Second Amendment were struck down as violative of basic structure of the Constitution. It was observed that the balance between Part III and Part IV of the Constitution was basic feature of the Constitution[726]. Limited amending power of Parliament was also part of basic structure.[727]

It was also held that judicial review to determine whether a law was to give effect to Part IV could not be excluded as judicial review was part of the basic structure.[728] It was also observed that though there is no rigid separation of powers in three departments of the State - the Executive, the Legislature and the Judiciary, there is broad demarcation. Fine balance between the three organs could not be upset as it will destroy the fundamental premise of a democratic government. The judiciary is entrusted with the duty to keep the Executive and the Legislature within the limits of power conferred on them which is also a basic feature of the Constitution.[729]

15.6. In L. Chandra Kumar vs. Union of India[730], part of Article 323 - A(2)(d) and 323 - B (3)(d) to the extent it excluded the jurisdiction of High Courts in respect of specified matters for which jurisdiction was conferred on Tribunals was struck down as violative of basic structure. Power of judicial review conferred on this Court and the High Courts was held to be integral to constitutional scheme in view of earlier decisions and conferment of power of judicial review on another judicial body could not justify exclusion of jurisdiction of the High Courts.[731]

15.7. In I.R. Coelho vs. State of Tamil Nadu[732], bench of nine Judges, considered the scope of judicial review of inclusion of a law in Ninth Schedule by a constitutional amendment thereby giving immunity from challenge in view of Article 31B of the Constitution. It was held that every such amendment shall have to be tested on the touchstone of essential features of the Constitution which included those reflected in Articles 14, 19 and 21 and principles underlying them. Such amendments are not immune from the attack on the ground they destroy or damage the basic structure. The Court will apply the 'rights test' and the 'essence of the rights' test taking synoptic view of Articles in Part III of the Constitution. It was further observed that the Court has to be guided by the 'impact test' in determining whether a basic feature was violated. The Court will first determine if there is violation of rights in Part III by impugned Amendment, its impact on the basic structure of the Constitution and the consequence of invalidation of such Amendment[733].

15.8 In M. Nagaraj vs. Union of India[734] , Eighty-Fifth and allied amendments to the Constitution were called in question on the ground of violation of right of equality as a basic feature of the Constitution. While considering the challenge, it was observed that the Constitution sets out principles for an expanding future. This called for a purposive approach to the interpretation. It was observed that a constitutional provision must not be construed in a narrow sense but in a wide and liberal sense so as to take into account changing conditions and emerging problems and challenges.

The content of the rights is to be defined by the Courts. Some of the concepts like federalism, secularism, reasonableness and socialism reasonableness are beyond the words of a particular provision. They give coherence to the Constitution and make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules. To qualify as essential feature, a principle has to be established as part of constitutional law and as such binding on the legislature. Only then, it could be examined whether it was a part of basic feature. Theory of basic feature was based on concept of constitutional identity. The personality of the Constitution must remain unchanged. The word 'amendment' postulated that the Constitution survived without loss of identity despite the change. [735]

Conclusion:

15.9 It can safely be held that a constitutional amendment has to pass the test of basic structure. Whether or not the basic structure was violated has to be finally determined by this Court from case to case.

B. Whether Primacy of Judiciary in Appointment of Judges is Part of Basic Structure

16. Whether a feature of the Constitution is basic feature or part of basic structure is to be determined having regard to its place in the scheme of the Constitution and consequence of its denial on the working of the Constitution.

16.1 The judiciary has been assigned the role of determining powers of every Constitutional organ as also the rights of individuals. The disputes may arise between the Government of India and the States, between a citizen and the State or between a citizen and a citizen. Disputes relating to the powers of Union Legislature and the State Legislature or the exercise of the executive power may involve issues of constitutionality or legality. It may involve allegations of malafides even against highest constitutional dignitaries. This requires an impartial and independent judiciary. The judiciary is required to be separate from the executive control. Judiciary has to inspire confidence of the people for its impartiality and competence.

It has not been disputed by learned Attorney General that independence of judiciary is part of the basic structure. It is also undisputed that judicial review is part of basic structure. The decisions of this Court expressly lay down that independence of judiciary and judicial review are part of basic structure. Broad separation of powers between the three departments of the State is a part of doctrine of checks and balances. It is also a part of democracy. Independence of judiciary is integral to the entire scheme of the Constitution without which neither primacy of the Constitution nor Federal character, Social Democracy nor rights of equality and liberty can be effective.

16.2 The judiciary has apolitical commitment in its functioning. Once independence of judiciary is acknowledged as a basic feature of the Constitution, question is whether power of appointing Judges can be delinked from the concept of independence of judiciary or is integral part of it. Can the independence of judiciary be maintained even if the appointment of Judges is controlled directly or indirectly by the executive?

16.3 To what extent primacy of judiciary in appointment of judges is part of unamendable basic feature of the Constitution. Since the issue has been gone into in earlier binding precedents, reference to such decisions is apt. As already mentioned, it remains undisputed that power of judicial review, independence of judiciary, broad separation of powers in three departments of the State, federalism and democracy are the basic features of the Constitution. Stand of the respondents is that power of appointment of judges does not have impact on such basic features as independence of judges is envisaged post appointment. By an amendment, process of appointment of judges can be altered to reduce the role of judiciary and to increase the role of Executive and Legislature. Alternatively, it is submitted that no substantial change has taken place in the said roles.

16.4 In Second Judge's case, a Bench of 9-Judges of this Court examined the question of interpretation of unamended constitutional scheme dealing with the appointment of judges of the Constitution case. The issue was referred to the Bench of 9-Judges on account of doubts having arisen as to the correctness of the view expressed in S.P. Gupta vs. Union of India[736] (First Judges' case), laying down that primacy in the matter of appointment of judges rested with the Central Government[737]. The basis of the said decision was that the word 'consultation' used in Articles 124, 217 etc. implied that the views of the consultee need not be treated as binding as the ultimate power of appointment rested with the Central Government. It was held that the views of the CJI or other Judges who were consulted may be entitled to great weight but the final view in case of difference of opinion could be taken by the Central Government. The word 'consultation' could not be read as 'concurrence'.

16.5 The view taken was doubted in Subhash Sharma vs. Union of India[738]. The question whether opinion of CJI with regard to appointment of Judges was entitled to primacy was referred for consideration of a larger bench, as already mentioned. This Court observed that Constitutional phraseology was required to be read and expounded in the context of Constitutional philosophy of separation of powers and the cherished values of judicial independence. The role of the CJI was required to be recognised as of crucial importance for which the view taken in First Judges' case required reconsideration by a larger Bench. It was noted that there was an anxiety on the part of the Government of the day to assert choice in selection of Judges and if the power to recommend appointment of Judges was vested in the State Government or the Central Government, the picture was likely to be blurred and process of selection may turn out to be difficult.

It was also observed that the judiciary had apolitical commitment and the assurance of non-political complexion of judiciary should not be divorced from the process of appointment. The phrase "consultation" had to be understood consistent with and to promote the constitutional spirit. The constitutional values could not be whittled down by calling the appointment of judges as an executive act. The appointment was rather the result of collective constitutional process. It could not be said that power to appoint solely vested with the executive or that the executive was free to take such decision as it deems fit after consultation with the judiciary. The word "consultation" was used in recognition of the status of high constitutional dignitary and could not be interpreted literally.

Moreover, the appointment not recommended by Chief Justice of the State and the CJI would be inappropriate and arbitrary exercise of power. The CJI should have preponderant role. Primacy of CJI will improve the quality of selection. The view of the Chief Justices of States and CJI should be decisive unless the executive had material indicating that the appointee will be undesirable. The view of the majority in First Judges' case did not recognise the said pivotal position of the institution of the CJI and correctness of the said opinion required reconsideration.

It was noted that the Union Government had often stated before Parliament and outside that as a matter of policy it had not made any appointment without the name being given by the CJI and the executive must be held to the standard by which it professed its actions to be judged. Upon reference to larger Bench, the view taken in First Judges case was overruled in Second Judges' case which was reiterated in the Third Judges case. It held that the term "consultation" in Article 124 should not be literally construed. It was to be construed in the constitutional background of its purpose and to maintain and uphold independence of judiciary.

So interpreted, it was held that in the event of conflicting opinions of the constitutional functionaries, the opinion of the judiciary as symbolized by the view of the CJI and formed in the manner indicated, would have primacy.

16.6 Pandian, J. held that the requirement of consultation was not relatable to any other service and only applied to appointment of judges in contrast to other high ranking offices. The consultation with the CJI was condition precedent for appointment and advice given by the judiciary in the process had sanctity. The executive power of appointment comes into play by virtue of Articles 74 and 163 though it was not specifically provided for in Articles 124 and 217.

The State was major litigant. The superior courts were faced with controversies with political flavour and in such a situation if the executive had absolute say in appointment of judges, the independence of judiciary will be damaged. The Law Commission Reports and opinion of jurists suggested radical change in appointment of judges by curbing the executive power[739].

16.7 Kuldip Singh, J. observed that the concept of judicial independence did not only mean the security of tenure to individual judges. There has to be independence of judiciary as an institution so that it could effectively act as an impartial umpire between the Governments and the individuals or between the Governments inter se. It would be illogical to say that the judiciary could be independent when power of appointment vested in the Executive.

The framers of the Constitution never intended to give this power to the Executive which was the largest litigant before the courts[740]. There was established constitutional convention recognising the primal and binding opinion of CJI in the matter of appointment of judges. All appointments since the commencement of the Constitution were made with the concurrence of the CJI. The 14th Report of the Law Commission and discussion in the Parliament on 23rd and 24th November, 1959 were referred to[741]. With regard to the statement of Dr. Ambedkar on 24th May, 1949 before the Constituent Assembly that the CJI could not be given a veto on appointment of judges, it was observed that primacy of the CJI acting in representative as against individual capacity would not be against the objective of the said statement[742].

16.8 Verma, J. observed that the scheme of the Constitution of separation of powers, with the Directive Principles of separation of judiciary from Executive, and role of the judiciary to secure rule of law required that appointment of judges in superior judiciary could not be left to the discretion of the Executive. Independence of judges was required even at the time of their appointment instead of confining it to the provisions for security of tenure and conditions of service. It was necessary to prevent influence of political consideration on account of appointments by the Executive. In choice of a candidate, opinion of CJI should have greatest weight. The role of the Executive in the participatory consultative process was intended to be by way of a check on the exercise of power by the CJI. The Executive element was to be the minimum to eliminate political influence[743].

16.9 Accordingly, conclusions were recorded in para 486 to the effect that initiation of proposal for appointment and transfer could be initiated by the judiciary and in case of conflicting opinions, the opinion of the CJI had the primacy. In exceptional cases the appointment could be declined by disclosing the reasons but if the reasons were not accepted by the CJI acting in representative capacity, the appointment was required to be made as a healthy convention. The CJI was to be appointed by seniority. The senior most judge, considered fit to hold the office, was to be the CJI.

16.10 Conclusions in Third Judges' case in para 44 reiterated this view with only slight modification. On that basis, memoranda of procedure mentioned in earlier part of this opinion were issued. The National Commission to Review the Working of the Constitution (NCRWC) headed by Justice M.N. Venkatachaliah, in its report dated 31st March, 2002, observed that appointment of judges was part of independence of judiciary. It was observed that the Executive taking over the power of appointment and playing a dominant role will be violative, of basic structure of the Constitution, of independence of judiciary[744].

16.11 Contention of the petitioners is that the said decisions conclusively recognise primacy of judiciary in appointment of judges inferred from the scheme of the Constitution and such primacy was part of basic structure. 16.12 It is submitted that if the Executive has primacy, the power of appointment of Judges can be used to affect or subvert the independence of the appointees as members of the Constitutional Courts. This would be against the intention of the Constitution makers.

The unamended provision could not be replaced by the new mechanism unless the new mechanism ensured that a role of the Judiciary was not decreased and the role of the Executive was not increased and the change made had no adverse impact on the functioning of the Constitution. If this contention is upheld, the impugned amendment will have to be struck down unless it could be held that the amended provisions also retained the said primacy. If primacy of judiciary is held not to be a part of basic structure of the Constitution or it is held that the same is still retained, the amendment will have to be upheld.

C. Plea of the Respondents for re-visiting earlier binding precedents

17. The correctness of the view taken in the above decisions was sought to be challenged by learned counsel for the respondents. The ground on which reconsideration of the earlier view is sought is that the interpretation in Second and Third Judges cases is patently erroneous. Members of the Constituent Assembly never intended that the CJI should have last word on the subject of appointment of Judges. The text which was finally approved and which became part of the Constitution did not provide for concurrence of the CJI as has been laid down by this Court. It is also submitted that the interpretation taken by this Court may have been justified on account of the abuse of powers by the Executive specially during emergency (as noticed in Union of India vs. Sankalchand Himatlal Sheth[745]) and in the Law Commission Reports (particularly 14th and 121st Reports), the same situation no longer continues. More over there is global trend for Judicial Appointment Commissions. Even without primacy of the judiciary in appointment of judges, the judiciary could function independently. Judicial Appointment Commission was suggested even earlier. The eminent jurists had criticized the existing mechanism for appointment of Judges and particularly the working of the collegium system.

17.1 Referring to the scheme of Chapter IV of the Constitution, learned Attorney General submitted that Executive and the Legislature had the role in the working of the judiciary. Salary and Conditions of Service of Judges are fixed by the Parliament. The Rules for functioning of the Supreme Court are framed with the approval of the President and are subject to the law made by the Parliament. Parliament could confer supplementary powers on the Supreme Court. Conditions of service of officers and servants of the Supreme Court are subject to law made by the Parliament. The rules framed by the CJI require approval of the President.

There was inter play of Executive and Legislature in the functioning of the judiciary. Independence of judges was in respect of their security of tenure and service conditions. Manner of appointment did not affect independence of judiciary. Executive appointing Comptroller General of India or Election Commission did not affect their independence. Power of appointment of judges is the Executive power to be exercised by the President with the advice of the Council of Ministers after consultation with the judiciary. The doctrine of separation of powers or separation of judiciary from Executive does not require that the Executive could have no role in appointment of judges. Primacy of judiciary in appointment of judges ignores the principles of checks and balances. The interpretation placed in the earlier decisions ignores the principles of transparency and accountability. Even without there being manifest error in earlier decisions, having regard to the sensitive nature of the issue and also the fact that an amendment has now been brought about, the earlier decisions need to be revisited.

17.2 The stand of learned Attorney General and other learned counsel appearing for the respondents was contested by learned counsel for the petitioners. It was submitted that all issues sought to be raised by the respondents were duly considered by the Bench of nine-judges. The Central Government sought opinion of this Court under Article 143. A statement was made by the then learned Attorney General that the Second Judges' case was not sought to be reconsidered. The view of the nine-Judge Bench was based on earlier binding decisions in Shamsher Singh vs. State of Punjab[746] and Sankalchand case (supra) laying down that the last word on such matters was of the CJI. The expert studies and the Constituent Assembly Debates ruled out pre-dominant role for the Executive or Legislature in appointment of judges.

The constitutional scheme did not permit interference of the Executive in appointment of judges. The Executive could give feed back and carry out the Executive functions by making appointments but the proposal had to be initiated and finalised by the judiciary. Frequent reconsideration of opinions by larger Benches of this Court was not desirable in absence of any doubt about the correctness of the earlier view.

17.3 Parameters for determining as to when earlier binding decisions ought to be reopened have been repeatedly laid down by this Court. The settled principle is that court should not, except when it is demonstrated beyond all reasonable doubts that its previous ruling given after due deliberation and full hearing was erroneous, revisit earlier decisions so that the law remains certain.[747] In exceptional circumstances or under new set of conditions in the light of new ideas, earlier view, if considered mistaken, can be reversed. While march of law continues and new systems can be developed whenever needed, it can be done only if earlier systems are considered unworkable[748].

17.4 No such situation has arisen. On settled principles, no case for revisiting earlier decisions by larger Benches is made out. As regards the contention that there was patent error in the earlier decisions, the Second Judges' case shows that the Constituent Assembly Debates are exhaustively quoted and considered. Neither the debates nor the text adopted by the Constitution show that the power of appointment of Judges was intended to be conferred on the Executive or the Legislature. The word 'consultation' as interpreted and understood meant that the final word on the subject of appointment of Judges was with the CJI. The practice and convention ever since the commencement of the Constitution showed that proposal for appointment was always initiated by the Judiciary and the last word on the subject belonged to the CJI. This scheme was consistent with the intention of the Constitution makers. All the points now sought to be raised by learned Attorney General have been exhaustively considered in the Second Judges case.

The contention that earlier situation of Executive interference has now changed also does not justify reconsideration of the earlier view. If the situation has changed, there can be no reason for change of the system which is functioning as per the intention of the Constitution makers when such change will be contrary to basic structure which is not constitutionally permissible. The objection as to deficiencies in the working of the collegium system will be subject matter of discussion in the later part of this judgment. Individual failings may never be ruled out in functioning of any system. The Judicial Appointment Commissions earlier considered were not on the same pattern.

Initially proposal to set up Judicial Commission was made prior to Second Judges case, with the object of doing away with the primacy of the Executive as laid down in First Judges case. In Sixty-Seventh Amendment Bill, in the Statement of Objects and Reasons, it is mentioned that the object of setting up of Commission was to 'obviate the criticism of arbitrariness on the part of the Executive'[749]. Ninety-Eighth Amendment Bill, 2003 was introduced with a different composition on recommendation of National Commission to review the working of the Constitution. One-Twentieth Amendment Bill, 2013 did not provide for any composition and left the composition to be provided for by the Parliament. Validity of such proposed Commissions was never tested as such Commissions never came into existence.

17.5 The Judicial Commissions in other countries and provisions of Constitutions of other countries conferring power on the Executive to appoint Judges may also not call for reconsideration of the Second Judges' case as many of such and similar provisions were duly considered in the Second Judges' case to which reference will be made. No case is thus made out for revisiting the earlier decisions in Second and Third Judges' cases.

D. Consequential consideration of issue of primacy of judiciary in appointment of judges as part of basic structure.

18. The earlier decisions in Second and Third Judges' case have to be taken as binding precedents. Once it is so, it has to be held that primacy of the judiciary in appointment of judges is part of the basic structure. Appointment of judges is part of independence of judiciary. It is also essential to uphold balance of powers between Legislature, Executive and Judiciary which by itself is key to the functioning of the entire Constitution. The judiciary is entrusted the power to control the power of the Executive and the Legislature whenever it is alleged that the said organs have exceeded their constitutionally assigned authority.

This is the essence of the democracy. Learned counsel for the petitioners highlighted that at times exercise of powers of Judicial Review by the Constitutional Courts may not be to the liking of the Executive or the Legislature. Particular instances have been given of decisions of this Court in 2G Spectrum case[750] and Coal Scam case[751] where actions of the Executive were found to be violative of constitutional obligations causing huge loss to public exchequer.

It was submitted that arbitrary distribution of State largess by way of giving scarce resources or contracts or jobs or positions of importance akin to 'spoil system' have been held by this Court to be in violation of the Constitution. Policies of the State for arbitrary acquisition of land or in violation of environmental laws have been struck down by this Court. Dissolution of State Assemblies and dismissal of State Governments have also been struck down by this Court[752].

This Court also had to deal with the issues arising out of decisions of Speakers in recognizing or otherwise the defections in Central or State Legislatures[753]. There are enumerable instances when the Courts have to deal with validity of Legislative or Executive decisions of far reaching nature. It is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of judges, which is integral to functioning of judiciary is influenced or controlled by the Executive, it will certainly affect impartiality of judges and their functioning.

Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded. 18.1 Submissions of learned Attorney General are that even if appointment of judges is held to be part of independence of judiciary, choice of a particular model is not part of basic structure. The role of the Executive cannot be denied altogether nor there can be any objection to members of civil society being included in the process of appointment. The primacy of judiciary in appointment of judges is not an absolutist ideal. Power of appointment has to be seen in the light of need for checks and balances. Independence of judiciary is not a uni- dimensional test. There could be inter mingling of other wings in the process of appointment of judges. After repeal of Articles 124 and 217, basis of Second Judges' case did not survive. Primacy of judiciary in appointment of judges is only in the context of stopping wrong appointment or preventing pre-dominance of the Executive. Even if primacy of judiciary was recognized at a given point of time, the same could apply only till the Constitution is amended.

Two eminent persons could be laymen to give societal view point. The Law Minister was made a member of the Commission for accountability and transparency. As laid down in I.R. Coelho case, inspite of separation of powers, different branches of the Government could have overlapping functions[754]. In Sahara India Real Estate Corpn. Ltd. vs. SEBI[755], it was observed that under the Constitution there are different values which must be balanced. Thus, independence of judiciary, checks and balances, democracy and separation of powers are to be considered as a whole. He referred to the background of supersession of judges in the year 1973 and 1977 and selective transfer of judges during emergency as noted in 121st Report of the Law Commission[756].

The report records that in 1976, sixteen judges were transferred from the respective High Courts in which they were functioning to other High Courts. This was perceived to be an act of interference with the judiciary. Circular of the then Law Minister providing for transfer and short term appointment of judges considered in First Judges' case was taken in the said report as the executive interference. The report also mentioned the concern arising out of supersession in appointment of CJI, non confirmation of additional judges, transfer of judges giving rise to apprehension of erosion of independence of judiciary at the hands of the Executive. It was concluded that the model then prevalent (with the primacy of the Executive) had failed to deliver the goods. This led to introduction of 67th Amendment Bill, 1990.

18.2 The contentions of learned Attorney General cannot be accepted. The matter having been gone into in great details in above binding precedents which do not require reconsideration, I do not consider it necessary to repeat in detail the discussion which has been recorded in the said decisions.

18.3 In Second Judges' case, following findings have been recorded :

(i) The word 'consultation' used in Articles 124, 217 and 222 of the Constitution meant that the opinion of consultee was normally to be accepted thereby according primacy to the judiciary; The Executive being major litigant and role of judiciary being to impartially decide disputes between citizen and the State, the Executive could not have decisive say in appointing judges; Doctrine of separation of powers under the Constitution required primacy of judiciary in appointing judges; Since traits of candidates could be better assessed by the Chief Justice, the view of the Chief Justice as to suitability and merit of the candidate had higher weight; The Chief Justice of India was not to make a recommendation individually but as representing the judiciary in the manner laid down, that is, after consulting the collegium; and Primacy of judiciary in appointment of judges is part of independence of judiciary and separation of powers under the Constitution.

18.4 Referring to the constitutional scheme, its background and interpretation, irrespective of the literal meaning of the language employed in Articles 214 and 217 of the Constitution, it was observed that initiation of proposal must always emanate from the Chief Justice of the High Court/CJI (in representative capacity as laid down) and last word on any objection thereto should be normally of the CJI.[757] 18.5 Reference was made to the interpretation of the word 'consultation' in the context of appointment of judges in earlier judgments in Chandra Moulishwar Prasad vs. Patna High Court[758], Shamsher Singh and Sankalchand cases. It was held that "in practice, the last word in such sensitive subject must belong to CJI, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order."

18.6 Reference was also made to the statement of Dr. Ambedkar that it was dangerous to give power to appoint judges to the Executive or with concurrence of the Legislature.[759] Further statement that it was dangerous to give veto power to CJI was explained to mean that the CJI must act not in individual capacity but after consulting senior judges.[760]

18.7 Needless to say that the Constitution of India is unique. While reference to other Constitutions can be made for certain purposes[761], the basic features of Indian Constitution (which may be distinctly different from other Constitutions) have to be retained and cannot be given a go bye. In the above judgment, in the context of working of Indian Constitution, it was held that the role of Executive and Legislature in appointment of judges could not be predominant. Even in the Constituent Assembly, models of other countries were not found to be suitable to be followed in India[762]. As already mentioned the Government of India appointed First Law Commission headed by Shri M.C. Stealvad to review the system of judicial administration and all its aspects. The Commission expressly mentioned that the Executive interference in appointment of Judges has not been congenial to independence of judiciary. The Commission noted that the Chief Ministers were having direct or indirect hand in appointment of Judges which results in appointments being made not on merit but on considerations of community, caste, political affiliations. The Chief Minister holding a political office is dependent on the goodwill of his party followers. The recommendation of the CJI is more likely to be on merit. An opinion noted in the report mentions that if the Executive continued to have powerful role, the independence of judiciary will disappear and the Courts will be filled with Judges who owe from appointments to politicians[763].

It was recommended that the hands of CJI should be strengthened and instead of requiring consultation it should require recommendation by the CJI[764]. There should be requirement of concurrence of the CJI[765]. The Report was discussed in the Parliament and the then Home Minister declared that the Executive was only an order issuing authority and appointments were virtually being made by the CJI. This statement was reiterated by the then Law Minister[766]. Again in 121st Report, it was observed that appointment of Judges with Executive influence was not conducive to healthy growth of judicial review. Trends all over the world indicate that power of the Executive in appointment of Judges was required to be diluted[767].

The Second Judges' case took care of the ground realities in the light of constitutional convention. It held that the CJI was better equipped to select the best and for appointments being free from Executive domination to inspire public confidence in impartiality and consistent with the principle of separation of Judiciary from Executive and also consistent with the spirit of Constitution makers. The principle of primacy was recognised and appointment of Judges was held to be integral to the independence of judiciary[768]. To check arbitrary exercise of power by any individual, it was made mandatory that the Chief Justices consult senior Judges. Thus, primacy of judiciary was recognized in initiating proposal as well as in taking final decision[769]. However, participation of the Executive in giving inputs by suggesting names before the proposal was initiated or giving feedback even after the proposal was initiated was permissible. It was noted that right from beginning of the Constitution, all the proposals for appointments were always initiated by the Chief Justices[770]. View in First Judges' case that primacy in appointment of Judges was of the Central Government was held to be erroneous by larger Bench inter alia for following reasons :

(i) The judiciary has apolitical commitment and if power of appointment of judges is given to the Executive, this will affect independence of judiciary[771];

(ii) Rule of law requires that justice is impartial and people have confidence in judiciary being separate and independent of the Executive so that it can discharge its functions of keeping vigilant watch for protection of rights even against the Executive[772]; Judiciary has key role in working of the democracy and for upholding the rule of law[773]; The constitutional scheme provides for mandatory consultation with the CJI since the CJI was better equipped to assess the merit of the candidate which consultation was not provided for in respect of other high constitutional appointments[774]. The appointment of judges was inextricably linked with the independence of judiciary and even in the matter of appointment of district judges, the conclusive say was of the High Courts and not of the Government[775]. Even in countries where power of appointment of judges was with the Executive, there is demand/proposal for minimizing the role of the Executive[776].

The effort of the Executive to have say in appointment of judges was found by expert studies to be not congenial to the independence of judiciary[777]. Reference was made to the 14th Report of the Law Commission that if the Executive had powerful voice in appointment of judges, the independence of judiciary will disappear and the courts will be filled with judges who owe their appointments to the politicians. Reference was also made to 121st Report of the Law Commission to the effect that even in UK there was thinking to create a check on the power of the Executive to select and appoint judges. Consultation with the CJI was not envisaged by the Constitution makers to be of formal nature but implied that great weight was to be given so that the last word belonged to the CJI[778]. Article 50 and the background of its enactment spells out the mandate for appointment of judges being taken away from the Executive and its transference to the judiciary.[779]

18.8 In the above background, the forceful contention of learned Attorney General that the scheme of the Constitution did not envisage primacy of judiciary but only mandatory consultation with the CJI and optional consideration with such other judges as may be considered necessary cannot be accepted, even if it is so suggested by the literal meaning of the words used in the text of the provision. It may be mentioned that the word 'consultation', on account of the scheme of the Constitution, was held to carry special meaning, on a purposive interpretation. The interpretation was not based solely on the word 'consultation' but on scheme of independence of judiciary. The contention that independence of judiciary was not affected even when the Executive made the appointment is contrary to the expert studies and well considered decisions of this Court.

The acknowledged scheme of the Constitution and its working is not to allow domination of the Executive in appointment of Judges. Such domination affects independence of judiciary, public faith in its impartiality (when the Government is major litigant), brings in extraneous considerations, compromises merit, weakens the principles of checks and balances and separation of judiciary from the Executive. Thus, by substitution of the words, the Parliament could not interfere with the primacy of judiciary in appointment of judges and thereby interfere with the basic feature of the Constitution.

It may be mentioned that use of similar expression in Article 74 of the Constitution in the context of Executive power of the President to act on "aid and advice" of Council of Ministers was held to mean that the President was only a formal head.[780] It cannot be suggested that by amendment of the expression used, constitutional scheme of the President being formal head can be changed as such amendment will be repugnant to the basic structure of the Constitution. Likewise, even by amendment primacy of judiciary in appointment of judges cannot be excluded. Such primacy existed not merely by word 'consultation' but by virtue of role of judiciary in working of the Constitution, by CJI being better suited to assess merit of the candidate and on account of Executive being major litigant. There is no change in these factors even after amendment.

It is not thus a question of change of model or of available choice with the Parliament. Plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged. Similarly, the plea that Parliament is best equipped to assess the needs of the people is not enough reason to extend the power of Parliament to amend the basic feature of the Constitution. The change of time does not justify greater role for the Executive in appointment of judges. The plea of overlapping role of different Departments of the Government is against the basic structure as far as appointment of judges is concerned.

18.9 While it is true that the Legislature can even retrospectively clarify its intention and thereby bring about a change in law[781], in the present context meaning of the unamended provision was not based merely on the words used but also the entire scheme of the Constitution particularly the independence of judiciary. It has been held that in the context of the Indian Constitution, having regard to the consistent past practice and to avoid political interference in appointment of judges, and also on account of the CJI/CJ being better equipped to assess the merit of a candidate, proposal must always be initiated by the CJI/CJ and the CJI must also have final word on the subject. It can hardly be doubted that the Constitution is a dynamic document and has to be interpreted to meet the felt needs of times and cannot bind all future generations. At the same time, it is also now well settled that the amending power is limited to non essential/non basic features and does not extend to altering the basic features and framework of the Constitution.

Primacy of judiciary is certainly a part of the basic feature of the Constitution. If primacy of judiciary in the appointment of judges is held to be not a part of basic feature, the Parliament may be free to confer the said power on the Executive or the Legislature or to any other authority which can certainly compromise the independence of judiciary. It will also in turn disturb the doctrine of separation of powers and other basic features like rule of law, democracy and federalism and working of the Constitution as a whole.

Independence of judiciary is key element in the entire functioning of the Constitution and such independence is integrally linked with the appointment of judges free from Executive interference. The alternative submission of Shri Venugopal, learned senior counsel appearing for the State of Madhya Pradesh in Paras 4 and 8 (reproduced in para 13 above) also supports the conclusion that appointment of judges is part of independence of judiciary and primacy of judiciary in appointment of judges is required to be retained. The power of appointment of judges cannot be exercised by the Executive as the same will affect independence of judiciary. Even after the original provisions are amended, this principle is still applicable.

18.10 At this stage, it may be mentioned that any perceived shortcoming in the working of existing mechanism of appointment of judges cannot by itself justify alteration or damage of the existing scheme once it is held to be part of basic feature.

As Dr. Ambedkar observed[782] :-

"The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics." To the same effect Dr. Rajendra Prasad* said :- "If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them."

Even a good system may have shortcomings in its working on account of individual failures. It may be mentioned that criticism of working may be leveled against working of every organ of the Constitution including the Executive and the Legislature and while all efforts must be continuously made to bring about improvement in every sphere, the basic scheme set up by the Constitution cannot be given a go bye on that ground.

It is not necessary to comment upon how good or bad any constitutional authorities have performed in discharge of their duties or how good or bad the judiciary has performed, as the limited question for consideration of the Court is to identify and retain the basic structure of the Constitution in appointment of judges. The improvement in working of existing system of appointment of judges can be the subject matter of separate consideration which is being proposed but certainly without giving a go bye to the basic features of the Constitution of independence of judiciary. In Manoj Narula vs. Union of India[783], question considered was how persons with criminal antecedents could be prevented from being appointed as Ministers. There was also reference to the concern as to how persons with such antecedents could be prevented from being legislators. This Court held that the issue has to be dealt with by those to whom the Constitution has entrusted the responsibility and this Court could only enforce the constitutional scheme.

18.11 At this stage, it may be mentioned that the claim of learned Attorney General that the Parliament represented the will of the people or that the amendment represented the will of the people and interference therewith will be undesirable is contrary to the law laid down in Kesavananda Bharti case (supra)[784]. The will of the people is the Constitution while the Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution, that is, the will of the people.

The Constitution was supreme and even Parliament has no unlimited amending power. Learned Attorney General rightly submitted that the last word on the validity of a constitutional amendment is of this Court. Even if the judiciary is not an elected body, it discharges the constitutional functions as per the will of the people reflected in the Constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary[785]. Conclusion:

18.12 Accordingly, I hold that primacy of judiciary and limited role of the Executive in appointment of judges is part of the basic structure of the Constitution. The primacy of judiciary is in initiating a proposal and finalising the same. The CJI has the last word in the matter. The Executive is at liberty to give suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment for disclosed reasons as held in Second and Third Judges' cases.

E. Whether the Impugned Amendment alters or damages the basic structure

19. In the above background, the only question which remains to be considered is whether under the impugned amendment the basic feature of primacy of judiciary in appointment of judges has been altered or damaged. 19.1 Learned Attorney General submitted that basic structure comprises many features like several pillars in a foundation, some of which are enumerated in opinions rendered in Kesavananda Bharti case. In judging the validity of a constitutional amendment, test is whether the amendment would lead to collapse of the Constitution. Merely affecting or impinging upon an Article embodying a feature that is part of the basic structure was not sufficient to declare an amendment unconstitutional. Violation of basic structure of the constitution must be such that the structure itself would collapse.

He also relied upon the observations in Bhim Singh Ji vs. Union of India[786] particularly the following observations : "Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. But to permit the Bharati8 ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of parliamentary function. Nor can the constitutional fascination for the basic structure doctrine be made a trojan horse to penetrate the entire legislative camp fighting for a new social order and to overpower the battle for abolition of basic poverty by the 'basic structure' missile." and following observations in Ashoka Kumar Thakur vs. Union of India[787]:- "There are large number of provisions in the Constitution dealing with the federal character of the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the Constitution. Various fundamental rights are given in the Constitution dealing with various aspects of human life. The Constitution itself sets out principles for an expanding future and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs."

19.2. Applying the above tests it was submitted that the Ninety-Ninth Amendment was consonant with and strengthens the independence of judiciary while upholding the democracy, rule of law and checks and balances. NJAC is in sync with the needs of time and is modelled on checks and balances to ensure a democratic process with plurality of views. NJAC dilutes power of executive in favour of the judiciary. He submitted that identity test was required to be applied which means that after the amendment the amended Constitution loses the identity of the original Constitution. There is no bar to making changes and to adopt the Constitution to the requirements of changing times without touching the foundation or altering the basic constitutional pattern. He further relied upon the observations in the Indira Gandhi and Minerva Mills Ltd. cases (supra).

19.3 The learned Attorney General further submitted that the object of the amendment is to broad base the collegiate body so as to provide for participatory and collective role to the judiciary, the executive and the civil society. The executive has only one member, the Law Minister. The object of having the Law Minister is to provide information about the candidates which information the other members may not have. The eminent persons will be independently appointed by a committee comprising of the PM, the CJI and the Leader of Opposition. In this way there is no abrogation of independence of judiciary. Moreover, three of the six members are from the judiciary and thus, the right to reject was available to the judges, while the executive alone cannot exercise the right to reject. Even in Second Judges' case it is observed that the process of appointment is a participatory process. An area relating to suitability of candidates such as his antecedents and personal character may be better known to consultees other than the CJI.

The expression, 'eminent person' is well known and it means distinguished in character or attainments or by success in any walk of life. The expression 'distinguished' is used in Article 124 (3) providing for eligibility criteria for judges of the Supreme Court. Since the high powered committee comprising three high functionaries is to appoint an eminent person, there is sufficient safeguard against any uncanalised power. The principles of constitutional trust apply to the high powered committee which can be trusted to select the most appropriate persons. Such eminent persons shall provide inputs for the qualities which make a person suitable for appointment as a judge. Diversity in composition of the Commission will mitigate the danger of cloning.

In other bodies also there are provisions for non judges. For example, Consumer Protection Act. Reservation in favour of minorities, women, Scheduled Castes, Scheduled Tribes and OBC will have the effect of sensitizing other members for the problems to be faced by these sections. Even in the report of National Commission to Review the Working of the Constitution (NCRWC), also known as Venkatachalliah Commission, a provision for an eminent person was made without prescribing any criteria. The eminent person will be guided by the CJI, who will be the Chairman and best placed to access the legal merit of the candidates.

The executive is a key stake holder in justice delivery system for which it is accountable to the Parliament and it cannot be denied role in appointment of judges. Mere possibility of abuse of provision cannot be a ground for holding a provision unreasonable. Reliance has been placed on Mafat Lal Industries Ltd. vs. Union of India[788] which reads as under :- "To the same effect are the observations by Khanna, J. in Kesavananda Bharati v. State of Kerala (SCR at p. 755 : SCC p. 669). The learned Judge said: (SCC p. 821, para 1535) "In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience."

To the same effect are the observations in T.N. Education Deptt. Ministerial and General Subordinate Services Assn. v. State of T.N. [(1980) 3 SCC 97] (SCR at p. 1031) (Krishna Iyer, J.). It is equally well-settled that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding the provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty [ 1962 (3) SCR 786], this Court observed: "The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." It was said in State of Rajasthan v. Union of India [(1977) 3 SCC 592] (SCR at p. 77), "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power.

The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief". (Also see Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [ (1954) SCR 1005] (SCR at p. 1030)." Transparency and accountability in the matter of appointment are essential for public confidence in the judiciary. In this connection reference has been made to Inderpreet Singh Kahlon vs. State of Punjab[789] which reads as under :- "This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated.

The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."

19.4 These submissions cannot be accepted. It is obvious that pre-dominant role of the judiciary, as it exists in light of original Constitutional scheme in taking a final decision on the issue of appointment of judges of the Supreme Court and appointment and transfer of judges of the High Courts, has been given a go bye. Under the unamended scheme of appointment of judges, which is a basic feature of the Constitution, the President is to make appointment, after consultation with the CJI representing the judiciary. Disregarding the views of the CJI is permissible in exceptional situations for recorded reasons having bearing on character and antecedents of a candidate and if such reasons are found to be acceptable to the CJI. Under the amended scheme, no such final view can be taken by the CJI. Without giving any reason, the Minister or the nominated members can reject the unanimous view of the judges. Chief Justice of the High Court is not a member of the Commission and has no Constitutional role in appointment/transfer of the judges of the High Courts.

Mere fact that without the judges, the Minister and the nominated members cannot make an appointment is not at par with the situation where a decision itself is taken by the CJI representing the judiciary. The Constitutional power of the Chief Justice of the High Court to initiate proposal for appointment as judge of the High Court has been done away with, at least as far as the Constitutional provisions are concerned.

19.5 The contention that the amendment strengthens the independence of judiciary or the democracy or brings about transparency or accountability is not shown to be based on any logic beyond the words. Even if in appointing two eminent members CJI is also a member of the Committee, the fact remains that the PM and the Leader of the Opposition have significant role in appointing such members, who will have power not only equal to the CJI and two senior most judges of the Supreme Court in making appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts but also right to reject the unanimous proposal of the CJI and the two senior most judges. Such composition of the Commission cannot be held to be conducive to the independence of judiciary. Appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts, can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary.

19.6 Contention of learned Attorney General that there is a presumption that the Law Minister and the nominated members will conduct themselves independently and will make value addition in selecting the judges in a better way cannot be accepted. The views of the Constitution makers and eminent expert committees clearly show that role of the Executive in appointment of judges has to be minimum and by and large limited to check the character and antecedents of the candidates and not to finally assess the merit and suitability of such candidates. In this view of the matter, even if the contention that no guideline was required for criteria for appointment of eminent persons when the Committee will be comprised of high dignitaries is accepted the fact remains that such persons will play not merely supporting but pre-dominant role in appointing Supreme Court and High Court judges which will not be congenial to the independence of judiciary. There is no justification for reservation for one of the nominated members being from specified categories. Such provision is against the scheme of the Constitution and contrary to the object of selecting judges purely by merit. The nature of appointment does not justify any affirmative action for advancement of any socially and educationally backward classes or for the Scheduled Castes or Scheduled Tribes or women. The appointment of judges has to be on evaluation of merits and suitability of the candidates. Religion, caste or sex of the evaluator has no relevance.

The plea that the Law Minister and the nominated members will provide feed back also does not provide any justification for their being members of the Commission and thereby participating in evaluation and suitability of a candidate for appointment as judge of the Supreme Court or High Courts and having power to overrule unanimous view of judges. The appointment of a judge of the Supreme Court is normally made out of Chief Justices of High Courts or senior judges or eminent lawyers or eminent jurists whose merit is better known to senior judges.

Their evaluation has to be impartial and free from any political or other considerations. Persons making selection are required to be best placed to assess their merit and suitability. Pre-dominant and decisive role of the judiciary is a requirement not only of independence of judiciary and separation of powers but also for inspiring confidence of the people at large necessary for strength of the Democracy. The citizens having a grievance of violation of their fundamental and legal rights against the Executive or the Legislature expect that their grievance is considered by persons whose appointments are not influenced by the Executive or the Legislature.

If an appointment is perceived as being influenced by political consideration or any other extraneous influence, faith in impartiality, which is hall mark of independence of judiciary, will be eroded. The scheme in other countries cannot be mechanically followed when it is in conflict with the basic scheme of the Indian Constitution.

19.7 In this regard, it may be recalled that the word amendment literally means betterment or improvement and sponsor of amendment may always claim improvement. Such claim has to be tested by applying the 'identity test' and the 'impact test'. The said tests have already been mentioned in the earlier part of its opinion. The amendment should not affect the identity of an essential feature of the Constitution. The impact of the amendment on the working of the scheme of the Constitution has to be taken into account[790].

This brings to some extent subjective element which is unavoidable even while testing any legislation which is alleged to be violative of fundamental rights and justified on the concept of 'reasonable restrictions'[791]. In this regard, effect of Executive interference which has been documented by expert studies cannot be held to be irrelevant or ignored on the ground that this is a subject of wisdom of Parliament. As already mentioned, the working of the Judiciary has affected the Executive and Legislature on several occasions, including (by way of illustration) Privy Purses case[792], Bank Nationalisation Case[793], Freedom of Press case[794], Kesavananda Bharati case (supra), Indira Gandhi case (supra), Minerva Mills case (supra), L. Chandrakumar case (supra), M. Nagaraj case (supra), I.R. Coelho case (supra), S.R. Bommai case[795].

19.8 The new structure provides for decisive voice with the Commission which apart from judges comprises of Law Minister and two eminent persons to be nominated by a specified committee. Before examining the said structure, it may be noted that it is not merely the text of the amendment but also its impact and potential which has to be kept in mind on 'identity' of the original scheme and the 'width' of the power under the new scheme[796]. In a similar context when an alternative judicial forum was sought to be created to deal with the company matters in place of High Courts, this Court held that the concept of rule of law required that the new mechanism should, as nearly as possible, have same standards[797]. Same view was taken in the context of setting up of National Tax Tribunals to substitute the jurisdiction of the High Courts in tax matters[798]. The new scheme may iron out the creases but the mechanism should be comparable to the substituted scheme.

19.9 As already mentioned under the unamended scheme, as authoritatively interpreted by this Court, power of initiating a proposal was always with the judiciary. At the time of making of the Constitution, the draft of the Constitution was circulated to the Federal Court and High Courts to elicit views of the judges. In the memorandum representing the views of the judges, it was mentioned that the existing convention was that appointment of judges was made after referring the matter to the Chief Justice and obtaining his concurrence[799].

19.10 In CAD, various models were considered but the system applicable in other countries providing for final say of the Executive or concurrence of Legislature (as in UK and USA) were found to be unsuitable. It was stated by Dr. Ambedkar that the power could not be left to be exercised on the advice of the Executive or be made subject to concurrence of the Legislature. It was further stated that the Chief Justice could also not be given a veto upon the appointment of judges[800]. The Law Commission in its 14th Report criticised the interference by the Executive in appointment of judges. The matter came up for discussion before the Parliament and the Home Minister and the Law Minister made a statement that all appointments were made on the recommendation of the CJI as the CJI was familiar with the merits of the candidates. Out of 211, 210 appointments were made with the consent and concurrence of the CJI[801]. It was noted that the procedure for appointment of judges applicable prior to Second Judge's case was that a proposal for appointment was initiated by the CJI in case of the Supreme Court and by Chief Justice of the High Court in case of the High Court Judges[802]. This mechanism was held to be a part of the convention[803].

19.11 In Shamsher Singh case (supra) this Court observed that in practice the last word in matters of judiciary must belong to the CJI. The same view was expressed in Sankalchand case (supra) in the context of transfer of judges[804]. In 80th Report of the Law Commission headed by Justice H.R. Khanna, J. (1979), a Commission was proposed with a pre-dominant voice of judiciary to deal with the appointment and transfer of judges. The Report was significant in the background of supersession of judges in appointment of the CJI and selective transfer of judges which were perceived to be interference with the independence of judiciary.

However, contrary to the said recommendations, a circular was issued by the Law Minister in 1981 proposing transfer of judges and making appointment of judges for short period which itself was perceived to be interference with the independence of judiciary and was challenged in First Judges' case. As already mentioned, the majority held that primacy in such matters rested with the Central Government[805]. The said view was subject matter of severe criticism.

Eminent constitutional expert Seervai commented that the Executive was not qualified to assess the merits or demerits of a candidate. Initiation of a proposal by the Executive was against the intention of the framers of the Constitution. Political, Executive or Legislative pressure should not enter into the appointment of a judge[806]. The Law Commission headed by Justice D.A. Desai in its 121st Report also criticised the system where the Executive had overriding powers in the matter of appointment of judges. He stated that power to appoint and transfer judges of superior courts by the Executive affects independence of judiciary and is not conducive to its healthy growth. He recommended a Judicial Commission to check the arbitrariness on the part of the Executive in such appointments and transfers[807].

19.12 The interpretation in the Second Judge's case was in the above historical background. In the context of working of the Indian Constitution, the dominant role of the Executive in appointment of judges adversely affected the independence of judiciary. The judiciary is assigned important role for upholding the rule of law and democracy. Its independence and its power of judicial review are part of basic structure. Primacy of judiciary in appointment of judges is part of basic structure. In this background question is whether the new scheme retains the said primacy of judiciary in appointment of judges. 19.13 Under the new scheme, the Law Minister has been given role equal to the CJI. Right from the commencement of the Constitution, this role of the Law Minister was never envisaged while initiating the process and finalizing it.

Law Minister, in participatory scheme, could at best suggest a name or give his comments on the names proposed but the proposal could and was always initiated by the CJI. At the stage of initiation, if equal authority is conferred, this will erode the primacy of judiciary as declared by this Court authoritatively. Any deviation in the past was always adversely commented upon and held to be undesirable amounting to interference with the independence of judiciary[808]. Other two persons to be nominated by a Committee which also has predominant political voice to be placed at par with the CJI in initiating and finalizing a proposal destroys the original scheme beyond its identity.

Any suggestion before initiation of a name or feedback even after initiation may be useful and may not affect independence of judiciary but equal participation by the Law Minister and two outsiders in final decision for initiation or appointment can be detrimental to the independence of judiciary. It cannot be wished away by presuming that the Law Minister and the two distributors will not be influenced by any extraneous consideration. Such a presumption will be contrary to the acknowledged factual experience. It will also be against the concept of separation of judiciary from the Executive. More over this will be contrary to the basic intention of the Constitution makers.

The amendment is not an insignificant amendment and is not within the basic framework of the working of the Constitution. The very premise and object of the amendment as reflected in the Statement of Objects and Reasons and the stand of the Union of India in its pleadings and during the course of arguments is that the primacy of judiciary was evolved by erroneous interpretation which is sought to be corrected. It is stated that the primacy of judiciary was undemocratic and denied the Executive a meaningful role. These reasons are untenable for reasons already discussed. As regards the plea of transparency and accountability, the same has to be achieved without compromising independence of judiciary. If on the perceived plea of transparency and accountability, the independence of judiciary is sought to be adversely affected by the Amendment, this will cause severe damage to the functioning of the Constitution.

The primacy of judiciary, as already noticed, is integral to the independence of judiciary, separation of powers, federalism and democracy, rule of law and supremacy of the Constitution. The amendment does away with the primacy of even unanimous opinion of the judicial members as such opinion is not enough to finalise an appointment. While Shri Venugopal has rightly stated in his alternative submission that primacy of judiciary is part of judicial independence and if Executive has pre-dominant voice, it could subvert independence of judiciary, his submission that the situation could be retrieved by giving the suggested interpretation cannot be accepted.

Such interpretation is not warranted by the text of the amendment or by the principles of interpretation. It is difficult to hold that primacy of judiciary is still retained as a wrong proposal can still be stalled by any two members, including two judges. The primacy of judiciary as always understood in binding judicial precedents comprises of initiation of name and taking a final call[809]. These two core features constitute identity of the primacy of judiciary. Subject to these two features, any amendment could have been made and if these two features are compromised, the basic identity of the Constitution can be held to have been altered or damaged.

19.14 There can be no doubt about the propositions forcefully canvassed by the respondents that the legislative wisdom of the choice of the Parliament was not open to question and that possibility of abuse of power could not affect the existence and exercise of power but these submissions cannot ignore the limitation of basic features. Examining whether basic feature was sought to be altered, is different from questioning the wisdom of the Parliament. It is testing the power of Parliament conferred by the Constitution. Similarly determining whether the new mechanism complied with the framework of the Constitution is different from the issue of possibility of abuse. In the present case, question is of independence of judiciary which implies having judges not influenced by any political consideration as per the intention of framers of the Constitution.

Even assuming the best of intention, can the power of judicial review by the constitutional courts be subjected to scrutiny by any 'eminent persons' on the ground that working of the judiciary was perceived to be unsatisfactory. Obviously it will be clear interference with independence of judiciary[810]. Same way, constitutionally conferred judicial primacy in appointment of judges cannot be whittled down or sought to be controlled by those who are not given or allowed to take over such functions. Even granting the best of intentions, the Parliament could not act beyond the authority conferred on it by the Constitution.

Thus, taking away primacy of judiciary or conferring such primacy on a body which is not at par with the said concept is certainly not a choice available with the Parliament. As already mentioned, the concept of primacy of judiciary comprises of initiating the proposal and taking a final decision in case any adverse feed back is received after the proposal is initiated. This concept of primacy is compromised if the judiciary is unable to initiate a proposal in the first instance or if such proposal can be effectively rejected. The impact thereof being that the appointment of judges could be made under the influence of the Executive represented by the Law Minister or the non-judge members in whose appointment the pre-dominant voice is not of the judiciary.

The impact of such appointments will be that the judges appointed will owe their appointments to the Executive which may be destructive of the public confidence and impartiality of judiciary and adversely affect the role of the judiciary as an important impartial constitutional organ. As already noted, the role of the judiciary is to define and regulate working of other constitutional authorities within the scope of roles assigned to them[811].

19.15 If the amendment had merely provided for advisory or recommendatory role to the Law Minister or the non-judicial members with the professed object of transparency and accountability, the situation may have been different. It may not have, in that case, interfered with the primacy of the judiciary in appointment of judges which is the mandate of the Constitution. Such power cannot be justified under the doctrine of wisdom of Parliament nor on the principles of trust once such power is in violation of principle of primacy of judiciary in appointment of judges. No individual instance either of working of the Executive or Legislature or the existing system of appointment of judges need be discussed as the issue involved here is of interpretation of the Constitution and not of success or failure of any individual or persons. As already mentioned, the shortcomings in working of every institution may need to be removed by constant efforts constitutionally permissible but cannot justify the altering of the framework of the Constitution or the same being damaged.

20. Reference may now be made to the submission of learned counsel for the respondents that in many countries without primacy of judiciary in appointment of judges, independent judiciary is functioning and thus unfettered judicial primacy was inconsistent with the international trend. Particular mention has been made of 15 countries, namely, Kenya, Pakistan, South Africa, UK, Israel, France, Italy, Nigeria, Sri Lanka, Australia, Canada, New Zealand, Bangladesh, Germany and United States.

20.1 The submission of learned Attorney General in relation to judicial appointments in the said 15 countries is as follows : "a. 9 countries conduct appointment of judges through either judicial appointment commissions (Kenya, Pakistan, South Africa and UK), committees (Israel) or councils (France, Italy, Nigeria and Sir Lanka); 4 countries appoint judges through a direct order of the Governor General (Australia, Canada, New Zealand) or the President (Bangladesh), where applicable; 1 (Germany) follows a multi-stage process of nomination by the Minister of Justice, confirmation by Parliamentary Committees and final appointment by the President; and 1 (United States) follows a process of nomination by the President (executive) and confirmation by the Senate (legislature). b. In all 15 countries, the executive is the final or determinative appointing authority. Out of the 9 countries with commissions, in 2 countries (South Africa and Sri Lanka) the executive has absolute majority in comparison with members of other groups (judiciary, legislature and independent persons).

In 4 countries (France, Israel, Kenya and UK) there is a balanced representation of various stakeholders, including the executive. Out of 3 countries where the number of judges are in a majority (Italy, Nigeria and Pakistan), in 2 countries (Nigeria and Pakistan) the decision of the commission is subject to the vote of a parliamentary committee/Senate, while in 1 (Italy), the President of the Republic is the final appointing authority and the chairman of the judicial appointment body. In 5 of the countries without commissions (Canada, Australia, New Zealand, Bangladesh and United States of America), the decision is taken by the Executive without any formal process of consultation with the judiciary, while in 1 (Germany), the appointment process is conducted by the Parliament, and later confirmed by the President.

c. In 8 countries (France, Israel, Italy, Kenya, Nigeria, Pakistan, South Africa and UK) with bodies for judicial appointments, independent members have a mandated role in the selection process through representation on the said bodies. In 4 countries where independent members do not play a formal role in the appointment process (Canada, USA, Australia and New Zealand), the appointing authority (body or person) consults independent members at various stages of the appointment process for their feedback on the selection or recommendation of a prospective candidate. In 3 countries (Bangladesh, Germany and Sri Lanka) no documented process of consultation with independent members is provided for."

20.2 Learned counsel for the respondents also referred to criticism of the collegium system by some jurists including the eminent jurist Shri Nariman, appearing in the present case for the petitioners.

20.3 On the other hand, Shri Nariman opposed the above submissions and referred to decisions of this Court particularly Kesavananda Bharti case, Indira Gandhi case and Minerva Mills case, where the Constitution amendments were struck down. He also referred to expert studies including reports of the 14th and 121st Law Commissions and the National Commission to Review the Working of the Constitution (NCRWC), headed by Justice M.N. Venkatachaliah (retired CJI), wherein it was observed that independence of judiciary was basic feature of the Constitution and composition of a National Commission was required to be consistent with the concept of independence of judiciary.

Method of appointment of judges could not be altered in such a way as may impinge upon the independence of judiciary. Composition of a Judicial Commission has to uphold the primacy of judiciary.[812] 20.4 Shri Nariman also submitted that the impugned amendment was introduced in response to decisions of this Court affecting certain legislators. He submitted that independent functioning of the judiciary often comes in conflict with the Executive and the Legislature but mandate of the Constitution of upholding the independence of judiciary was necessary to inspire faith of citizens in impartial justice and to uphold the constitutional values like the Rule of law and the Democracy, by upholding protection of fundamental rights even against the State. He particularly made reference to the history of proposed Forty-Fifth Amendment vide Bill 88 of 1978 to provide in Article 368 that an Amendment compromising the independence of judiciary could be made by approval by majority at a referendum.

The same was brought about by the Janta Government led by leaders who were arrested during emergency. It was not approved for want of majority in Rajya Sabha. He also referred to decisions of this Court Lily Thomas vs. Union of India[813] and Chief Election Commissioner vs. Jan Chaukidar[814] holding that a member of a Legislature will stand qualified on conviction and that a person confined in jail could not contest an election and efforts to undo such decisions. He also referred to the treatise, Constitutional Law of India by Seervai, 4th Edition, to the effect that the decision of First Judges' case put the judicial independence at the mercy of the Executive[815]. 20.5 He also gave a personal note, in response to reliance on behalf of the respondents on his own biography "Before Memory Fades" as follows:- "I have been, and I continue to be, a supporter of the "Judicial- Appointment-Commission-system" and so are my clients whom I represent (this is so stated in the [WRIT PETITION at page 26 to 31, and 44 to 45).

BUT I am definitely opposed to a pretence of a Judicial Appointments Commission - which in reality is not judicial, only partly or quasi judicial. The "Judicial Appointments Commission system" (so called) as embodied in the 99th Constitutional Amendment, 2014 and along with the NJAC Act, 2014, is opposed BECAUSE is not in accordance with and does not conform to the Beijing Principles on Independence of the Judiciary (by which we in India are governed). The principles were formulated after long deliberation by Heads of the Judiciary in the LAWASIA region (including India's Chief Justice) - who are all signatories to the Beijing Principle.

Principles No.15 reads as follows:- "15. In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen 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 of the higher Judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained."

Note - NOT OUTSIDERS, not representatives of the EXECUTIVE: because this is not helpful in the interests of maintaining the INDEPENDENCE of THE JUDICIARY. Text of Beijing Principles are annexed as Exhibit-II. The then Law Minister had stated in Parliament, when these measures were first introduced, that he had consulted named persons including myself - and as to what I said is accurately recorded in the Minutes of the Meeting prepared by the office of the Law Minister.

This is what the minutes record: Constitutional Expert and Senior Advocate, Shri Fali Nariman stated that it is important to remember the independence of the judiciary and the separation of powers. The basic structure doctrine as laid down by the Supreme Court in the Keshavananda Bharti case could not be violated and any proposal for appointment of judges must be in conformity with the basic structure. He felt that the Government should consider following the model of the Appointments Commission as suggested by the Justice Venkatchaliah Commission that gave dominance to the judiciary in the appointment process. He stated that composition of the Commission is the basic issue, and a Commission with non-Judge domination would not be viable in India.

......................." 21. As already mentioned, the Constitution of India has its own background and personality[816]. Models of other countries could not be blindly followed so as to damage the identity and personality of the Indian Constitution. The Judicial Commissions referred to by learned Attorney General do not show the trend of reducing the pre-existing role of judiciary. In fact, the trend is for reducing the pre-existing role of the Executive. In the impugned amendment it is the reverse. Thus, the contention of working of other Constitutions or setting up of judicial Commissions with varying compositions in other countries does not justify the impugned amendment which is contrary to the basic structure of the Indian Constitution.

22. There is also no merit in the contention that in the present case mere alteration in a constitutional provision does not amount to damage of a basic feature. It is not a case of simple amendment to iron out creases. Its impact clearly affects the independence of judiciary. As already mentioned, appointment of judges has always been considered in the scheme of the working of the Indian Constitution to be integral to the independence of judiciary. It is for this reason that primacy in appointment of judges has always been intended to be of the judiciary. Pre- dominant role of the Executive is not permissible. Such primacy comprises of initiating the proposal by the judiciary and final word being normally with the CJI (in representative capacity). This scheme is beyond the power of amendment available to the Parliament.

22.1 In the new scheme, the Chief Justices of the High Courts have not been provided any constitutional say. The Chief Justice of the High Court is in a better position to initially assess the merit of a candidate for appointment as judge of the High Court. The constitutional amendment does not provide for any role to the Chief Minister of the State. This may affect the quality of the candidate selected and thereby the independence of judiciary. The statutory provision in the NJAC Act will be gone into separately.

22.2 The contention of learned Attorney General that the amendment was justified to uphold the principles of checks and balances and transparency which were equally important constitutional values cannot be accepted. Even assuming that there is a scope for improvement in the working of the collegium system, it cannot be held that under the existing system there is no transparency or checks and balances.

The procedure laid down in memoranda issued by the Central Government has been noted in the earlier part of this opinion. All proceedings in initiating a proposal are in writing and are forwarded to the constitutional functionaries. The Chief Minister, the Governor, the Law Minister, the PM and the President have opportunity to give their views in the matter of appointment of Chief Justices and Judges of High Courts apart from judges and non-judges involved in the process.

The Law Minister, the PM and the President also have opportunity to give their comment on appointment of CJI and the Judges of the Supreme Court. There is also an opportunity to suggest names before initiation of proposal. There is no bar to an expert feedback from the civil society through the constitutional functionaries involved. Thus, there is transparency as well as checks and balances. These considerations do not justify interference with the final initiation of proposal by the judiciary or in taking a final view in the matter by the judiciary, consistent with the mandate of the Constitution.

22.3 Learned Attorney General sought to compare the existing provision for veto by two members of collegium in appointment of Supreme Court Judges as per Third Judges' case to justify veto under Section 6 (6). As already mentioned, the role of the Law Minister and the non-judge members cannot be placed at par with the Chief Justice and Judges of the Supreme Court. They cannot be compared for obvious reasons. The veto power with the Law Minister or with a non-judge members, as against a Supreme Court Judge who is the member of the collegium, may involve interference with the independence of judiciary. Similarly, requirement of special majority in any other ordinary situation was not comparable with the scheme of appointment of judges which is sui generis.

Similarly, the plea of giving vital inputs does not justify participation of the non-judge members with the Chief Justice and the Judges in discharging their functions of initiating a proposal or taking a final view. Though, formal act of appointment of judges may be an executive function, there is a unique judicial element in the process of appointment of judges of constitutional courts. The criticism against perceived short comings in the working of the collegium also does not justify the impugned provisions. As already observed, there may be criticism even against discharging of judicial functions by the aggrieved parties or otherwise. But that does not justify interference with the judicial decisions[817]. Needless to say that criticism can be against the working of any system but the systems can be changed only as per the Constitution. Efforts to improve all systems have to be continuously made. Conclusion:-

22.4 I would conclude that the new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary. Under the new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained.

F. Validity of the NJAC Act 23. In view of my conclusion about the amendment being beyond the competence of the Parliament, I do not consider it necessary to discuss the validity of the NJAC Act in great detail as the said Act cannot survive once the amendment is struck down. However, consistent with my earlier view that primacy of judiciary in appointment of judges cannot be compromised and on that ground not only Section 2 of the Amendment dispensing with the mandatory consultation with the judiciary as contemplated under the unamended provisions, Section 3 conferring power on the NJAC (under Article 124B) and providing for composition of the Commission under Article 124A giving a role to the Law Minister and two eminent persons equal to the CJI in recommending appointments as CJI, Judges of Supreme Court, Chief Justices and other Judges of the High Courts and recommending transfer of Chief Justices and Judges of the High Courts are unconstitutional but also Article 124C giving power to the Parliament to regulate the procedure and to lay down the manner of selection was also unconstitutional, the impugned Act has to be struck down.

It goes far beyond the procedural aspects. In Section 5 (2) 'suitability criteria' is left to be worked out by regulations. Second proviso to Section 5 (2) and Section 6 (6) give veto to two members of the Commission which is not contemplated by the Amendment. Section 5 (3) and Section 6 (8) provide for conditions for selection to be laid down by regulations which are not mere procedural matters. Section 6 authorises the recommendations for appointment as judges of the High Courts without the proposal being first initiated by the Chief Justice of the High Court. Section 6 (1) provides for recommendation for appointment of Chief Justice of a High Court on the basis of inter se seniority of High Court Judges.

This may affect giving representation to as many High Courts as viable as, in inter se seniority, many judges of only one High Court may be senior most. Section 6 (2) provides for seeking nomination from Chief Justices of High Courts, but Section 6 (3) empowers the Commission itself to make recommendation for appointment as Judge of the High Court and seek comments from Chief Justice after short listing the candidates by itself. Section 8 enables the Central Government to appoint officers and employees of the Commission and to lay down their conditions of service. The Secretary of the Government is the Convenor of the Commission. Section 13 requires all regulations to be approved by the Parliament. These provisions in the Act impinge upon the independence of judiciary. Even if the doctrine of basic structure is not applied in judging the validity of a parliamentary statute, independence of judiciary and rule of law are parts of Articles 14, 19 and 21 of the Constitution and absence of independence of judiciary affects the said Fundamental Rights. The NJAC Act is thus liable to be struck down.

G. Effect of Amendment being struck down

24. The contention that even if Amendment is held to be void, the pre- existing system cannot be restored has no logic. In exercise of power of judicial review, a provision can be declared void in which case the legal position as it stands without such void provision can be held to prevail. It is not a situation when position has not been made clear while deciding an issue. Power of this Court to declare the effect of its order cannot be doubted nor the decisions relied upon by the respondents show otherwise. I hold that on amendment being struck down, the pre-existing system stands revived.

H. Review of Working of the Existing System

25. Since the system existing prior to amendment will stand revived on the amendment being struck down and grievances have been expressed about its functioning, I am of the view that such grievances ought to be considered. It is made clear that grievances have not been expressed by the petitioners about the existence of the pre-existing system of appointment but about its functioning in practice. It has been argued that this Court can go into this aspect without re-visiting the earlier decisions of the larger Benches. I am of the view that such grievances ought to be gone into for which the matter needs to be listed for hearing.

Conclusion

26. The impugned Amendment and the Act are struck down as unconstitutional. Pre-existing scheme of appointment of judges stands revived. The matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.

........................................................J. [ ADARSH KUMAR GOEL]

NEW DELHI

OCTOBER 16, 2015

APPENDIX Key Provisions of the Unamended Constitution

"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). xxxxxxx

217. Appointment and conditions of the office of a Judge of a High Court- Every Judge of a High Court shall be appointed by the President by 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: xxxxxx

222. Transfer of a Judge from one High Court to another- The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. xxxxx"

(II) The 99th Amendment Act

"THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014 [31st December, 2014] An Act further to amend the Constitution of India. Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:-

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.

2. In article 124 of the Constitution, in clause (2),-- (a for the words "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", the words, figures and letter "on the recommendation of the National Judicial Appointments Commission referred to in article 124A" shall be substituted;

(b) the first proviso shall be omitted;

(c) in the second proviso, for the words "Provided further that", the words "Provided that" shall be substituted. 3. After article 124 of the Constitution, the following articles shall be inserted, namely:-

"124A.

(1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:--

(a) the Chief Justice of India, Chairperson, ex officio;

(b two other senior Judges of the Supreme Court next to the 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 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.".

4. In article 127 of the Constitution, in clause (1), for the words "the Chief Justice of India may, with the previous consent of the President", the words "the National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the President" shall be substituted.

5. In article 128 of the Constitution, for the words "the Chief Justice of India", the words "the National Judicial Appointments Commission" shall be substituted.

6. In article 217 of the Constitution, in clause (1), for the portion beginning with the words "after consultation", and ending with the words "the High Court", the words, figures and letter "on the recommendation of the National Judicial Appointments Commission referred to in article 124A" shall be substituted.

7. In article 222 of the Constitution, in clause (1), for the words "after consultation with the Chief Justice of India", the words, figures and letter "on the recommendation of the National Judicial Appointments Commission referred to in article 124A" shall be substituted.

8. In article 224 of the Constitution,-- (a) in clause (1), for the words "the President may appoint", the words "the President may, in consultation with the National Judicial Appointments Commission, appoint" shall be substituted; (b) in clause (2), for the words "the President may appoint", the words "the President may, in consultation with the National Judicial Appointments Commission, appoint" shall be substituted.

9. In article 224A of the Constitution, for the words ''the Chief Justice of a High Court for any State may at any time, with the previous consent of the President'', the words ''the National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the President'' shall be substituted.

10. In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted."

The NJAC Act

"THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014 NO. 40 of 2014 [31st December, 2014]

An Act to regulate the procedure to be followed by the National 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. Be it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:-

1.

(1) This Act may be called the National Judicial Appointments Commission Act, 2014.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. In this Act, unless the context otherwise requires,--

(a) "Chairperson" means the Chairperson of the Commission;

(b) "Commission" means the National Judicial Appointments Commission referred to in article 124A of the Constitution;

(c) "High Court" means the High Court in respect of which recommendation for appointment of a Judge is proposed to be made by the Commission;

(d) "Member" means a Member of the Commission and includes its Chairperson;

(e) "prescribed" means prescribed by the rules made under this Act;

(f) "regulations" means the regulations made by the Commission under this Act.

3. The Headquarters of the Commission shall be at Delhi.

4. (1) The Central Government shall, within a period of thirty days from the date of coming into force of this Act, intimate the vacancies existing in the posts of Judges in the Supreme Court and in a High Court to the Commission for making its recommendations to fill up such vacancies.

(2) The Central Government shall, six months prior to the date of occurrence of any vacancy by reason of completion of the term of a Judge of the Supreme Court or of a High Court, make a reference to the Commission for making its recommendation to fill up such vacancy.

(3) The Central Government shall, within a period of thirty days from the date of occurrence of any vacancy by reason of death or resignation of a Judge of the Supreme Court or of a High Court, make a reference to the Commission for making its recommendations to fill up such vacancy.

5.

(1) The Commission shall recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India if he is considered fit to hold the office: Provided that a member of the Commission whose name is being considered for recommendation shall not participate in the meeting.

(2) The Commission shall, on the basis of ability, merit and any other criteria of suitability as may be specified by regulations, recommend the name for appointment as a Judge of the Supreme Court from amongst persons who are eligible to be appointed as such under clause (3) of article 124 of the Constitution: Provided that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge shall be considered: Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation.

(3) The Commission may, by regulations, specify such other procedure and conditions for selection and appointment of a Judge of the Supreme Court as it may consider necessary.

6. (1) The Commission shall recommend for appointment a Judge of a High Court to be the Chief Justice of a High Court on the basis of inter se seniority of High Court Judges and ability, merit and any other criteria of suitability as may be specified by regulations.

(2) The Commission shall seek nomination from the Chief Justice of the concerned High Court for the purpose of recommending for appointment a person to be a Judge of that High Court.

(3) The Commission shall also on the basis of ability, merit and any other criteria of suitability as may be specified by regulations, nominate name for appointment as a Judge of a High Court from amongst persons who are eligible to be appointed as such under clause (2) of article 217 of the Constitution and forward such names to the Chief Justice of the concerned High Court for its views.

(4) Before making any nomination under sub-section (2) or giving its views under sub-section (3), the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such other Judges and eminent advocates of that High Court as may be specified by regulations. (5) After receiving views and nomination under sub-sections (2) and (3), the Commission may recommend for appointment the person who is found suitable on the basis of ability, merit and any other criteria of suitability as may be specified by regulations.

(6) The Commission shall not recommend a person for appointment under this section if any two members of the Commission do not agree for such recommendation.

(7) The Commission shall elicit in writing the views of the Governor and the Chief Minister of the State concerned before making such recommendation in such manner as may be specified by regulations.

(8) The Commission may, by regulations, specify such other procedure and conditions for selection and appointment of a Chief Justice of a High Court and a Judge of a High Court as it may consider necessary.

7. The President shall, on the recommendations made by the Commission, appoint the Chief Justice of India or a Judge of the Supreme Court or, as the case may be, the Chief Justice of a High Court or the Judge of a High Court: Provided that the President may, if considers necessary, require the Commission to reconsider, either generally or otherwise, the recommendation made by it: Provided further that if the Commission makes a recommendation after reconsideration in accordance with the provisions contained in sections 5 or 6, the President shall make the appointment accordingly.

8. (1) The Central Government may, in consultation with the Commission, appoint such number of officers and other employees for the discharge of functions of the Commission under this Act. (2) The terms and other conditions of service of officers and other employees of the Commission appointed under sub-section (1) shall be such as may be prescribed. (3) The Convenor of the Commission shall be the Secretary to the Government of India in the Department of Justice.

9. The Commission shall recommend for transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court, and for this purpose, specify, by regulations, the procedure for such transfer.

10.

(1) The Commission shall have the power to specify, by regulations, the procedure for the discharge of its functions.

(2) The Commission shall meet at such time and place as the Chairperson may direct and observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meeting), as it may specify by regulations.

11. (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(a) the fees and allowances payable to the eminent persons nominated under sub-clause (d) of clause (1) of article 124A of the Constitution; (b) the terms and other conditions of service of officers and other employees of the Commission under sub-section (2) of section 8;

(c) any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules.

12. (1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act, and the rules made thereunder, to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-

(a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court under sub-section (2) of section 5;

(b) other procedure and conditions for selection and appointment of a Judge of the Supreme Court under sub-section (3) of section 5;

(c) the criteria of suitability with respect to appointment of a Judge of the High Court under sub-section (3) of section 6;

(d) other Judges and eminent advocates who may be consulted by the Chief Justice under sub-section (4) of section 6;

(e) the manner of eliciting views of the Governor and the Chief Minister under sub-section (7) of section 6;

(f) other procedure and conditions for selection and appointment of a Judge of the High Court under sub-section (8) of section 6;

(g) the procedure for transfer of Chief Justices and other Judges from one High Court to any other High Court under section 9;

(h) the procedure to be followed by the Commission in the discharge of its functions under sub-section (1) of section 10;

(i) the rules of procedure in regard to the transaction of business at the meetings of Commission, including the quorum at its meeting, under sub- section (2) of section 10;

(j) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be made by regulations.

13. Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

14.

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, after consultation with the Commission, by an order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:

Provided that no such order shall be made after the expiry of a period of five years from the date of commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament."

The Statement of Objects and Reasons of the Amendment Act

"Statement of Objects and Reasons The Judges of the Supreme Court are appointed under clause (2) of article 124 and the Judges of the High Courts are appointed under clause (1) of article 217 of the Constitution, by the President. The Ad-hoc Judges and retired Judges for the Supreme Court are appointed under clause (1) of article 127 and article 128 of the Constitution respectively.

The appointment of Additional Judges and Acting Judges for the High Court is made under article 224 and the appointment of retired Judges for sittings of the High Courts is made under article 224A of the Constitution. The transfer of Judges from one High Court to another High Court is made by the President after consultation with the Chief Justice of India under clause (1) of article 222 of the Constitution.

2. The Supreme Court in the matter of Supreme Court Advocates-on-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 Court.

6. The Bill seeks to achieve the above objectives."

Item No.1a Court No.4 Section X, PIL,XVIA

Supreme Court of India

Supreme Court Advocates-On-Record Association and Another Vs. Union of India

[Writ Petition(s)(Civil) No(s). 13/2015]

[W.P.(C) No. 23/2015]

[W.P.(C) No. 70/2015]

[W.P.(C) No. 83/2015]

[T.P.(C) No. 391/2015]

[W.P.(C) No. 108/2015]

[W.P.(C) No. 124/2015]

[W.P.(C) No. 14/2015]

[W.P.(C) No. 18/2015]

[W.P.(C) No. 24/2015]

[W.P.(C) No. 209/2015]

[W.P.(C) No.309/2015]

[W.P.(C) No. 310/2015]

[W.P.(C) No.323/2015]

[T.P.(C) No.971/2015]

[W.P.(C) No.341/2015]

HEARD BY HON'BLE JAGDISH SINGH KHEHAR,

HON'BLE J. CHELAMESWAR,

HON'BLE MADAN B. LOKUR,

HON'BLE KURIAN JOSEPH

HON'BLE ADARSH KUMAR GOEL, JJ.

Date :16/10/2015

These petitions were called on for judgment today.

For Petitioner(s)

Mr. Fali S. Nariman,

Sr. Adv. In WP 13/2015

Mr. Subhash C. Kasyap, Adv.

Mr. Pranav Vyas, Adv.

for Mr. Surya Kant, Adv

For Petitioner(s)

Prof. Bhim Singh, Sr. Adv. In WP 23/2015

For Petitioner(s)

Mr. Santosh Paul, Adv. In WP 70/2015

Mr. Joseph Aristotle S.,Adv.

Mr. Arvind Gupta, Adv.

Mr. M.B. Elakkumanan, Adv.

Mr. Malay Swapnil, Adv.

Ms. Priya Aristotle, Adv.

Ms. Savita Singh, Adv.

For Petitioner(s)

Mr. Prashant Bhushan,Adv. In WP 83/2015

For Petitioner(s)

Mr. Anil. B. Divan, Sr. Adv. In WP 108/2015

Mr. R.K.P. Shankar Das, Sr. Adv.

Mr. K.N. Bhat, Sr. Adv.

Mr. Prashant Kumar, Adv.

Mr. Syed Rehan, Adv.

Mr. Ranvir Singh, Adv.

Ms. Anindita Pujari,AOR

Mr. Jitendra Mahapatra, Adv.

For Petitioner(s)

Mr. Mathews J. Nedumpara, in person in WP 124/2015

Mr. A.C.Philip, Adv.

Mr. Rabin Majumder,AOR

For Petitioner(s)

Mr. Manohar Lal Sharma, in person in WP 14/2015

Ms. Suman, Adv. For Petitioner(s)

Mr. R.K. Kapoor, in person in WP 18/2015 For Petitioner(s)

Mr. Bishwajit Bhattacharyya, in person in WP 24/2015

For Petitioner(s)

Mr. Rajiv Daiya, in person in WP 209/2015

For Petitioner(s)

Mr. P.M. Duraiswamy, in person in WP(C) 309/2015

Mr. V.N. Subramaniam, Adv.

For Petitioner(s)

Mr. Subhasish Bhowmick, AOR in WP 310/2015 For Petitioner(s)

Mr. S.K.Sinha, Adv. In WP 323/2015

Mr. Joydeep Mukherjee, Adv.

for Mr. Rabin Majumder,AOR

For Petitioner(s)

Mr. Sriram Parakkat, Adv. In WP 341/2015

Mr. Vishnu Shankar Jain, Adv.

for Mr. Ankur S. Kulkarni, AOR For Petitioner(s)

Ms. Prachi Bajpai, Adv. in TP(C) No.971/2015

For Respondent(s)

Mr. Ranjit Kumar, Solicitor General of India (UOI)

Mr. P.S. Narasimha, ASG and for

Mr. Guru Krishna Kumar, Sr. Adv. petitioner(s)

Ms. V. Mohana, Sr. Adv. In TP 391/2015

Mr. D.L. Chidananda, Adv.

Ms. Madhvi Divan, Adv.

Mr. Abhinav Mukherji, Adv.

Ms. Binu Tamta, Adv.

Dr. Arghya Sengupta, Adv.

Ms. Ranjeeta Rohatgi, Adv.

Ms. Devanshi Singh, Adv.

Ms. Diksha Rai, Adv.

Mr. Ninad Laud, Adv.

Mr. Ajay Sharma, Adv.

Ms. Ritwika Sharma, Adv.

Mr. Samit Khosla, Adv.

Mr. Nikhil Rohatgi, Adv.

Mr. R.K. Sharma, Adv.

Mr. Gurmehar s. Sistani, Adv.

for Mr. B.V. Balaram Das, AOR

Mr. Gautam Narayan, Adv. for SCBA

Mr. Dushyant Dave, Sr. Adv.

Ms. Aishwarya Bhati, Adv.

Mr. Devashish Bharuka,AOR

Capt. K.S. Bhati, Adv.

Mr. A.K. Tiwari, Adv.

Mr. T. Gopal, Adv.

Mr. Dilip Nayak, Adv. for State of

Mr. Shiv Mangal Sharma, AAG Rajasthan

Mr. S.S. Shamshery, AAG

Mr. Sandeep Singh, Adv.

Mr. Amit Sharma, Adv.

for Ms. Ruchi Kohli, AOR IA 10/2015

Mr. Ashish Dixit, in person

Mr. Gautam Takuldar, AOR for State of MP

Mr. Ankur Talwar, Adv.

Mr. Rohit Bhat, Adv.

Ms. Prerna Priyadarshini, Adv.

Ms. Suhasini Sen, Adv.

Mr. Ankit Kr., Adv.

for Mr. Mishra Saurabh, Adv. for State of

Mr. T.R. Andhyarujina, Sr. Adv. Maharashtra

Mr. Mahaling Pandarge, Adv.

Mr. Nishant Kanteshwarkar, AOR

Mr. Arpit Rai, Adv.

Mr. Anip Sachthey, Adv.

Mr. Saakaar Sardana, Adv.

Ms. K. Enatoli Sema, Adv.

Mr. Edward Belho, Adv.

Mr. Amit Kumar Singh, Adv.

Mr. Vir Bahadur Singh, AG

Mr. Gaurav Bhatia, AAG

Mr. Abhisth Kumar, AOR.

Mr. Abhishek Kumar Singh, Adv.

Mr. Vijay Pratap Yadav Adv.

Mr. Som Raj Choudhury, Adv.

Ms. Anitha Shenoy, Adv.

Mr. V.N. Raghupathy, Adv.

Mr. Tapesh Kumar Singh, Adv.

Mr. Mohd. Waquas, Adv.

Mr. Kumar Anurag Singh, Adv.

Ms. Rachana Srivastava, Adv.

Mr. Ravindra Shrivastava, Sr. Adv.

Mr. C.D. Singh, AAG

Ms. Shashi Juneja, Adv.

Mr. A.P. Mayee, Adv.

Mr. Apoorv Kurup, Adv.

Mr. V.C. Shukla, Adv.

Mr. Pulkit, Adv.

Mr. Ramesh Babu M.R., Adv.

Ms. Swati Setia, Adv.

Mr. Sapam Biswajit Meitei, Adv.

Mr. Z.H. Isaac Haiding, Adv.

Mr. Ashok Kumar Singh, Adv.

Mr. Tushar Mehta, ASG

Ms. Hemantika Wahi,Adv.

Mr. Sanchar Anand, AAG

Mr. Ajay Bansal, AAG

Mr. Jagjit Singh Chhabra, Adv.

Mr. Kuldip Singh, AOR

Mr. Ajay Yadava, Adv.

Mr. Anil Nishani, Adv.

Mr. Jaswant P, Adv.

Mr. Sibo Sankar Mishra, Adv.

Mr. Suryanarayana Singh, AAG

Ms. Pragati Neekhra,AOR

Mr. Indra Pratap Singh, Adv.

Mr. Prakash Kumar Singh,AOR

Mr. Arun Monga, Adv.

Ms. Kudrat Sandho, Adv.

for Mr. Tushar Bakshi, AOR

Mr. M.Yogesh Kanna, Adv.

Mr. Jayant Patel, Adv.

Dr. Rajeev Dhawan, Sr. Adv.

Mr. Krishna Sarma, Adv.

Mr. Avijit Roy, Adv.

Mr. Navnit Kumar, Adv.

Ms. Barnali Das, Adv.

Ms. Deepika, Adv.

for M/s Corporate Law Group

Mr. Guntur Prabhakar, Adv.

Ms. Prerna Singh, Adv.

Mr. Anil Grover, AAG

Mr. Ajay Bansal, AAG

Mr. Gaurav Yadava, Adv.

Ms. Nupur Singhal, Adv.

Mr. Sanjay Visen, Adv.

Mr. Anil Kumar Chopra, Adv.

Mr. Ashok Kumar Thakur, Adv.

Mr. Imran Khan Burni, Adv.

Hon'ble Mr. Justice Jagdish Singh Khehar, Hon'ble J. Chelameswar, Hon'ble Madan B. Lokur, Hon'ble Kurian Joseph and Hon'ble Adarsh Kumar Goel, JJ. Pronounced the separate judgments, 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; the Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void; the National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void; 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; and to consider introduction of appropriate measures, if any, for an improved working of the "collegium system", list on 3.11.2015.

Renuka Sadana

Parveen Kr. Chawla

Court Master

AR-cum-PS

[1] 1981 (Supp) SCC 87

[2] (1993) 4 SCC 441

[3] (1998) 7 SCC 739

[4] 1991 Supp (1) SCC 574

[5] (1977) 4 SCC 193

[6] (2002) 8 SCC 481

[7] (2002) 8 SCC 237

[8] (2001) 7 SCC 126

[9] 1992 Supp (3) SCC 217

[10] (1973) 4 SCC 225

[11] (1974) 2 SCC 831

[12] (2014) 9 SCC 1

[13] (2010) 5 SCC 538

[14] (2007) 6 SCC 586

[15] (2012) 13 SCC 497

[16] (2010) 4 SCC 595

[17] 1993 Supp (1) SCC 96(II)

[18] (2006) 6 SCC 258

[19] (1955) 6 SCR 603

[20] (1974) 2 SCC 402

[21] (1989) 2 SCC 754

[22] (2002) 5 SCC 111

[23] (2011) 4 SCC 450

[24] (2004) 10 SCC 201

[25] (1990) 1 SCC 12

[26] (1992) 4 SCC 97

[27] (1953) SCR 1069

[28] (1965) 2 SCR 908

[29] (1961) 2 SCR 828

[30] (1980) 1 SCC 223

[31] (1993) 1 SCC 364

[32] (1999) 7 SCC 725

[33] (1980) 3 SCC 625

[34] 1992 Supp (2) SCC 651

[35] (2014) 10 SCC 1

[36] (2006) 8 SCC 212

[37] AIR 1971 SC 1547

[38] (2010) 11 SCC 1

[39] 2015 (4) SCALE 1

[40] (1952) SCR 597

[41] AIR 1967 SC 1643

[42] (1971) 1 SCC 85

[43] (2012) 3 SCC 1

[44] (2014) 2 SCC 532

[45] (1990) 4 SCC 366

[46] (1979) 1 SCC 380

[47] (2014) 8 SCC 682

[48] AIR 1993 SC 1873

[49] (1982) 1 SCC 271

[50] AIR 1951 SC 41

[51] AIR 1958 SC 538

[52] (1975) 1 SCC 166

[53] (2008) 4 SCC 720

[54] AIR 1958 SC 731

[55] 1952 SCR 284

[56] (1975) Supp SCC 1

[57] (1981) 2 SCC 362

[58] 1989 Supp (2) SCC 364

[59] (1997) 2 SCC 453

[60] (1961) 3 SCR 707

[61] (1976) 1 SCC 843

[62] (1987) 1 SCC 658

[63] (2005) 5 SCC 363

[64] AIR 1941 FC 72

[65] 1961 (1) SCR 96

[66] 1994 Supp (1) SCC 324

[67] (1996) 4 SCC 49

[68] (2001) 4 SCC 455

[69] (2013) 7 SCC 522

[70] AIR 1955 SC 352

[71] AIR 1963 SC 928

[72] AIR 1965 SC 1430

[73] (1969) 1 SCC 255

[74] (1971) 3 SCC 53

[75] (1974) 2 SCC 376

[76] (1977) 1 SCC 643

[77] (1975) 3 SCC 512

[78] (2000) 2 SCC 536

[79] (2011) 5 SCC 305

[80] (2011) 5 SCC 435

[81] (2011) 8 SCC 737

[82] (1969) 1 SCC 475

[83] (1970) 2 SCC 780

[84] (1995) 4 SCC 611

[85] (2007) 2 SCC 1

[86] (2013) 7 SCC 653

[87] (2013) 7 SCC 507

[88] (1977) 4 SCC 608

[89] (2006) 7 SCC 1

[90] (2008) 6 SCC 1

[91] (2003) 4 SCC 104

[92] (2012) 7 SCC 1

[93] (2000) 4 SCC 640

[94] (2015) 5 SCC 479

[95] (1985) 1 SCC 641

[96] 1988 (Supp) SCC 30

[97] (1996) 5 SCC 60

[98] (2002) 2 SCC 645

[99] (2006) 3 SCC 354

[100] Supreme Court Advocates-on-Record Association & Others v. Union of India, (1993) 4 SCC 441

[101] 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.

[102] Order dated 22.04.2015 insofar as it is relevant reads thus:

"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. Issue rule. "

[103] The expression 'recuse' according to the New Oxford Dictionary English means - (the act of a Judge) to excuse himself from a case because of possible conflict of interest for lack of impartiality.

[104] R. Grant Hammond, Judicial Recusal: Principles, Process and Problems, (Hart Publishing, 2009).

[105] Regina v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte, (1999) 1 All E.R. 577

[106] P.D. Dinakaran(1) v. Judges Inquiry Committee, (2011) 8 SCC 380, paras 49 to 53.

[107] Wakefield Local Board of Health v. West Riding and Grimsby Rly Co. (1865) 1 Q.B. 84.

[108] R V. Byles ex p. Hollidge (1912) 77 J.P. 40; R. v. Nailsworth Licensing Justices ex p. Bird [1953] 1 W.L.R. 1046; R v. Lilydale Magistrates Court ex p. Ciccone [1973] V.R. 122; and see R. v. Antrim Justices [1895] 2 I.R. 603; Tolputt (H.) & Co. Ltd. v. Mole [1911] 1 K.B. 836; Corrigan v. Irish Land Commission [1977] I.R. 317.

[109] The details of which are already noted in the judgment of my brother Khehar, J.

[110] Section 6 (6). "The Commission shall not recommend a person for appointment under this section if any two members of the Commission do not agree for such recommendation."

[111] "Para 520. There is another fact of life which, however unpleasant, cannot be denied and this is that precious little are our masses or litigants concerned with which Judge is appointed or not appointed or which one is continued or not continued. The high sounding concept of independence of judiciary or primacy of one or the other of the Constitutional functionaries or the mode of effective consultation are matters of academic interest in which our masses are least interested. On the other hand, they are mainly concerned with dangerous forces at work and evils reflected in economic-pressures, inflationary tendencies, gruelling poverty, emancipation of women, maintenance of law and order, food and clothing, bread and butter, and above all the serious problem of unemployment,

521. It is only a sizeable section of the intellectuals consisting of the press and the lawyers who have made a prestigious issue of the independence of judiciary. I can fully understand that lawyers or other persons directly connected with the administration of justice may have a grievance however ill-founded that proper selection of Judges or interference with the appointment of Judges strictly according to constitutional provisions may mar the institution of judiciary and therefore they may to some extent be justified in vindicating their rights. But at the same time, however biting or bitter, distasteful and diabolical it may seem to be, the fact remains that the masses in general are not at all concerned with these legal niceties and so far as administration of justice is concerned they merely want that their cases should be decided quickly by Judges who generate confidence."

[112] 5 U.S 137 (1803)

[113] Supreme Court of Canada in Valente v. Queen, (1985) 2 SCR 673

[114] "... judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both houses of parliament it may be lawful to remove them." This clause has been repealed by ____

[115] Sir William Blackstone's, Commentaries on the Laws of England, (1765) Vol. I p. 269

[116] Article III Section I. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

[117] Article II Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

[118] Section 72. Judges' appointment, tenure, and remuneration: The Justices of the High Court ....

(ii) shall not be removed except ...... on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

[119] The British North America Act, 1867 renamed by the Amendment in 1982 as the Constitution Act, 1867

[120] Commonwealth of Australia Constitution Act, 1900.

[121] The existing constitution and organization of constitutional courts in this country is discussed in some detail by Justice Verma in the Second Judges case at paras 444, 445, 446.

444. The Government of India Act, 1919 provided in Section 101 for the Constitution of High Courts; and the appointment of the Chief Justice and the permanent Judges was in the absolute discretion of the Crown, subject only the prescribed conditions of eligibility. The tenure of their office, according to Section 102, was dependent entirely on the Crown's pleasure.

xxxxx xxxxxx xxxxxx xxxxx

445. Then, in the Government of India Act, 1935, provision for the establishment and Constitution of the Federal Court was made in Section 200, while the Constitution of High Courts was provided for in Section 220. xxxxx xxxxxx xxxxxx xxxxx

446. Thus, even under the Government of India Act, 1935, appointments of Judges of the Federal Court and the High Courts were in the absolute discretion of the Crown or, in other words, of the executive, with no specific provision for consultation with the Chief Justice in the appointment process.

[122] L Chandra Kumar & Ors v. Union of India & Ors., (1997) 3 SCC 261, para 78

[123] Article 124(4) A Judge of the Supreme Court shall not be 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 that 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.

[124] Article 217(1)(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;

[125] Under the proviso to Article 125(2) and proviso to Article 221(2) respectively.

[126] Article 112(3)(d) -

(3) The following expenditure shall be expenditure charged on the Consolidated Fund of India - ***** ***** ***** ***** ******

(i) the salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court; Article 202(3)(d) -

(3) The following expenditure shall be expenditure charged on the Consolidated Fund of each State - ***** ***** ***** ***** ******

(d) expenditure in respect of the salaries and allowances of Judges of any High Court;

[127] 113(1) - So much of the estimates as relates to expenditure charged upon the Consolidated Fund of India shall not be submitted to the vote of Parliament, but nothing in this clause shall be construed as preventing the discussion in either House of Parliament of any of those estimates.

[128] 203 (1) - So much of the estimates as relates to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly, but nothing in this clause shall be construed as preventing the discussion in the Legislature of any of those estimates.

[129]

[130] Fali S. Nariman, Before Memory Fades: An Autobiography, [First Edition Hay House (2010 ), p.348 ] "I once knew a fine, independent judge in South Africa during the days of apartheid - Judge- President John Milne of the Natal Supreme Court. We used to correspond, and Milne said something similar. Milne wrote to me on one occasion (in despair) : It seems that however much they may pay lip service to the idea that the Judiciary is totally independent of the Executive, politicians throughout the ages and throughout the world would actually much prefer to have executive minded lackeys and are considerably irritated by independent Judges functioning in an independent manner."

[131] Article II Section 2 The President "shall have power ... to .. nominate and by and with the advise and consent of the Senate .. appoint .. Judges of the Supreme Court .." In the case of the appointment of Judges of the other Statutory Federal Courts, the Congress can by law entrust the power to the Supreme Court itself.

[132] The Federal Legislature of America is called the Congress of the United States consisting of two chambers - Senate and House of Representatives.

[133] Section 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

[134] Now replaced by Supreme Court Act, 1985.

[135]

[136] Section 71. Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

[137] Constituent Assembly Debates, 24th May 1949 (Vol. VIII)

[138] Recall the words of Jackson, J. in Sacher v. United States 343 US 1 (1952) "Men who make their way to the Bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which human flesh is heir."

[139] Para 371 ".........

(iii) All the appointments to the Supreme Court from 1950 to 1959 were made with the concurrence of the Chief Justice of India. 210 out of 211 appointments made to the High Courts during that period were also with the concurrence of the Chief Justice of India.

(iv) Mr. Gobind Ballabh Pant, Home Minister of India, declared on the floor of the Parliament on November 24, 1959 that appointment of Judges were virtually being made by the Chief Justice of India and the Executive was only an order - issuing authority.

(v) Mr. Ashok Sen, the Law Minister reiterated in the Parliament on November 25,1959 that almost all the appointments made to the Supreme Court and the High Courts were made with the concurrence of the Chief Justice of India.

(vi) Out of 547 appointments of Judges made during the period January 1, 1983 to April 10, 1993 only 7 were not in consonance with the views expressed by the Chief Justice of India."

[140] Article 222 - Transfer of a Judge from one High Court to another

(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court

(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963 , as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix

[141] During the subsistence of a (partially controversial) declaration of emergency.

[142] Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193 (Bhagwati, J. - para 46)

[143] Para 47 of Sankalchand case, Bhagwati, J.

[144] Para 41 of Sankalchand case - Chandrachud, J.

[145] Para 62 of Sankalchand case - Bhagwati, J.

[146] Para 115 of Sankalchand case - Krishna Iyer, J.

[147] Per Fazal Ali, J. - S.P. Gupta case, p.403 - "It is true that there were, quite a few transfers during the emergency which were not in consonance with the spirit of Article 222 and that is why the Government had conceded this fact and took steps to revoke the transfers by retransferring, almost all the Judges to the High Courts from where they had been transferred."

[148] Para 2 of S.P. Gupta case - Bhagwati, J.

[149] See paras 30 & 31 - Bhagwati, J.; Para 134 - Gupta, J., Para 632 - Tulzapurkar, J.; Para 726 - Desai, J. Paras 890 & 891 - Pathak, J.; Paras 1031 & 1032 - E S Venkataramaiah,J

[150] Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574, at page 586 :

Para 18. "We gather that the Kerala High Court where the sanctioned strength has been reduced by 2, has a sanctioned strength of 22 while its pendency as on January 1, 1990 being 34,330 cases justifies a Judge strength of almost 50 on the basis of the measure of 650 cases per Judge per year. We intend to indicate that there was no justification for reduction of the sanctioned strength."

[151] Para 19. "For the present we suggest to government that the matter should be reviewed from time to time and steps should be taken for determining the sanctioned strength in a pragmatic way on the basis of the existing need. If there be no correlation between the need and the sanctioned strength and the provision of Judge-manpower is totally inadequate, the necessary consequence has to be backlog and sluggish enforcement of the Rule of Law. ......"

[152] Abhinav Chandrachud, The Informal Constitution : Unwritten Criteria in Selecting Judges for the Supreme Court of India, (Oxford University Press, United Kingdom 2014) See Pages 113 to 120

[153] From 1978, Governments at the State level and the Union level ceased to be necessarily of the same political party. Regional parties in parts of the country had captured power putting an end to one party rule at both the levels.

[154] Para 421 - These questions have to 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 the preservation of the democratic system. The broad scheme of separation of powers adopted in the Constitution, together with the directive principle of 'separation of judiciary from executive' even at the lowest strata, provides some insight to the true meaning of the relevant provisions in 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 essential for retaining the Constitution as a vibrant organism.

[155] Article 50. Separation of judiciary from executive - "The State shall take steps to separate the judiciary from the executive in the public services of the State."

[156]

[157] Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:- "I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do swear in the name of God that I will bear true faith and solemnly affirm faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or illwill and that I will uphold the Constitution and the laws."

[158] Form of oath or affirmation to be made by the Judges of a High Court:- "I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) .........-..... do swear in the name of God that I will bear solemnly affirm true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

[159] Article 124(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).

[160] Article 124(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 that 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.

[161] (per Hon. Pandian, J.) - Para 49. "one other basic and inseparable vital condition is absolutely necessary for timely securing the independence of judiciary; and that concerns the methodology followed in the matter of sponsoring, selecting and appointing a proper and fit candidate to the (Supreme Court or High Court) higher judiciary. The holistic condition is a major component that goes along with other constitutionally guaranteed service conditions in securing a complete independence of judiciary.

To say differently, a healthy independent judiciary can be said to have been firstly secured by accomplishment of the increasingly important condition in regard to the method of appointment of judges and, secondly, protected by the fulfilment of the rights, privileges and other service conditions. The resultant inescapable conclusion is that only the consummation or totality of all the requisite conditions beginning with the method and strategy of selection and appointment of judges will secure and protect the independence of the judiciary. Otherwise, not only will the credibility of the judiciary stagger and decline but also the entire judicial system will explode which in turn may cripple the proper functioning of democracy and the philosophy of this cherished concept will be only a myth rather than a reality."

(per Hon. Kuldip Singh, J.) - Para 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."

(per Hon. Verma, J.) - Para 447. "When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made.

It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment is ultimately an executive act."

[162] See the articles of Lord Templeman's favourable opinion and the critical view of Lord Cooke of Thorndon published in the book titled Supreme but not Infallible - Oxford University Press - 2000 A.D. "Article 124 of the Constitution empowers the President (acting on the advice of the Prime Minister and Cabinet) to appoint the judges of the Supreme Court. The President is given a discretion about consulting judges of the Supreme Court and High Courts but in the case of appointments of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Similarly, Article 217 requires the Chief Justice of India to be consulted concerning the appointment of a judge of the High Court of a state. In 1993, in the Supreme Court Advocates on Record Association case the Supreme Court by a majority held that, having regard to the independence of the judiciary and the separation of powers which the Court held to be implicit in the Constitution, the views of the Chief Justice of India expressed when he was consulted must be supreme.

The Court also laid down guidelines governing the appointment and duration of office of temporary acting judges. The majority decision has been criticized as an extension of the meaning of the word 'consultation'. However, having regard to the earlier experience in India of attempts by the executive to influence the personalities and attitudes of members of the judiciary, and having regard to the successful attempts made in Pakistan to control the judiciary and having regard to the unfortunate results of the appointment of Supreme Court judges of the United States by the President subject to approval by Congress, the majority decision of te Supreme Court of India in the Advocates on Record case marks a welcome assertion of the independence of the judiciary and is the best method of obtaining appointments of integrity and quality, a precedent method which the British could follow such advantage." ---- Lord Templeman "All in all, the opinion of the Supreme Court in the third Judges case must be one of the most remarkable rulings ever issued by a supreme national appellate court in the coomon law world. Since, in some respects, I have had to voice respectful doubts about the soundness of the constitutional foundations of that opinion...." ---- Lord Cooke of Thorndon

[163] Iyer, V.R. Krishna, Judiciary : A reform agenda -II, The Hindu (online edition) 15.08.2002

[164] "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial Lecture on 10th November 2011. "As I have said elsewhere 'the process by which a judge is appointed to a superior court is one of the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a judge. A chance remark, a rumour or even third-hand information may be sufficient to damn a judge's prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and 'lobbying' within the system."

[165] Shanti Bhushan (supra) - Para 2. The primary ground urged is that the opinion of the Chief Justice of India has to be formed collectively after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of opinion and no appointment can be made unless it is in conformity with the final opinion of the Chief Justice of India formed in the aforesaid manner. .... It is, therefore, submitted that the appointment of Respondent No.2 as a permanent Judge as notified on 2.2.2007 has no sanctity in law.

[166] Mehta, Pratap Bhanu, 'Whom do you trust', The Indian Express, May 14, 2015 - "The implicit constitutional accusation is this. The judiciary had, through improvisation, created a method of appointing judges that effectively sidelined other branches of government. This arrangement was tolerated, not because it conformed to a constitutional text or some hallowed principle, but because it seemed to maintain judicial independence.

The experience of the 1970s made the prospect of political packing of the judiciary a live fear. This arrangement is being challenged, not because we have discovered a new principle, but because the credibility of the judiciary has declined. We are, in effect, saying that any arrangement that relies solely on the judiciary has proved untrustworthy. Those challenging the NJAC are relying on the ghost of the 1970s: Do you really want the political class to have a greater say in appointments? Both branches of government are accusing each other of not being worthy of trust. In the process, they have dragged each other down. The problem is that both are right."

[167] See para 31 (supra)

[168] Constituent Assembly Debates, 24th May 1949 (Vol. VIII)

[169] On 24th May 1949 while draft Article 103 of the draft Constitution was being discussed corresponding to present Article 124, four members, Prof. Shibban Lal Saksena and Prof. K.T. Shah, who represented the United Provinces of Bihar and Mr. B. Pocker Sahib and Mr. Mahboob Ali Beig Sahib, who represented Madras Provinces suggested amendments to Article 103, the relevant portions of which read as follows: "Prof. Shibban Lal Saksena: That for clause (2) of article 103, the following clauses be substituted-

(2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be appointed by the President subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both the Houses of Parliament." "Prof. K.T. Shah:

Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with the Council of States and such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years."

"Mr. B. Pocker Sahib: That for clause (2) and the first proviso of clause (2) of article 103, the following be substituted-

(2) Every judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the judges of the Supreme Court and the Chief Justices of the High Court in the States and every judge of the Supreme Court."

"Mr. Mahboob Ali Beig Sahib: That in the first proviso to clause (2) of article 103, for the words 'the Chief Justice of India shall always be consulted' the words 'it shall be made with the concurrence of the Chief Justice of India' be substituted."

[170] See Footnote 50 (supra)

[171] Heard by a Bench of 11 Judges and decided by a majority of 6:5

[172] Article 13(3)(a). "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

[173] Article 13(2). The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

[174]

[175] (Per Sikri, CJ) - Para 292, "fundamental rights cannot be abrogated but reasonable abridgements of fundamental rights can be effected in public interest". ... "That every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution." (Per Shelat, J. who spoke for himself and Grover, J.) - Paras 582, 583, "there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure.

These cannot be catalogued but can only be illustrated:

(1) The supremacy of the Constitution.

(2) Republican and Democratic form of government and sovereignty of the country.

(3) Secular and federal character of the Constitution.

(4) Demarcation of power between the Legislature, the executive and the judiciary.

(5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.

(6) The unity and the integrity of the Nation." and, therefore, "the power under Article 368 is wide enough to permit amendment of each and every article ... so long as its basic elements are not abrogated or denuded of their identity".

(Per Hegde, J, who also spoke for Mukherjea, J.) - Para 666, "Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens." ... and "mandate to build a welfare State and egalitarian society."

(Per P. Jaganmohan Reddy, J.) - paras 1159, 1162, "A sovereign democratic republic. Parliamentary democracy, the three organs of the State ... constitute the basic structure." He further held that "without either the fundamental rights or directive principles it cannot be democratic republic. Therefore, the power of amendment under Article 368 ..... is not wide enough to totally abrogate ..... any one of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity". (Per Khanna, J.) - para 1426,, "the power under Article 368 does not take within its sweep the power to destroy the old Constitution" ... means "the retention of the basic structure or framework of the old Constitution" ... "it is not permissible to touch the foundation or to alter the basic institutional pattern." According to Justice Khanna, "such limitations are inherent and implicit in the word "amendment"."

[176] See the summary of the majority of the judgment signed by 9 Judges, p. 1007 of (1973) 4 SCC 225.

[177] The judgment in Indira Nehru Gandhi case (supra) is neatly summarised by Chandrachud, J. in Waman Rao case at para 15:

"15.......... in Indira Gandhi v. Raj Narain Article 329-A(4) was held by the Court to be beyond the amending competence of the Parliament since, by making separate and special provisions as to elections to Parliament of the Prime Minister and the speaker, it destroyed the basic structure of the Constitution. Ray, C.J. based his decision on the ground that the 39th Amendment by which Article 329-A was introduced violated the Rule of Law (p. 418) (SCC p. 44); Khanna, J. based his decision on the ground that democracy was a basic feature of the Constitution, that democracy contemplates that elections should be free and fair and that the clause in question struck at the basis of free and fair elections (pp. 467 and 471) (SCC pp. 87 and 91); Mathew, J. struck down the clause on the ground that it was in the nature of legislation ad hominem (p. 513) (SCC p. 127) and that it damaged the democratic structure of the Constitution (p. 515) (SCC p. 129); while one of us, Chandrachud, J., held that the clause was bad because it violated the Rule of Law and was an outright negation of the principle of equality which is a basic feature of the Constitution (pp. 663- 65) (SCC p. 257)."

[178] Para 13. The question which we have to determine on the basis of the majority view in Kesavananda Bharati is whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.

[179] Para 31. For these reasons, we are of the view that the Amendment introduced by Section 4 of the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the Constitution. The Amendment must, therefore, be upheld on its own merits.

[180] See paras 25 to 29 - Ahmadi, J., para 145 - Sawant, J., paras 183 to 186 - Ramaswamy, J., para 304 - Jeevan Reddy, J.

[181] In this case, this Court had to decide the validity of the Constitution (Eighty Fifth) Amendment Act 2001 by which Article 16(4A) was amended in the Constitution with retrospective effect. It provided a rule of reservation in the context of the promotion in the Government service. Such an amendment was challenged to be violative of the basic structure of the Constitution.

[182] Articles 79-84 and 168-173

[183] Articles 83 and 172

[184] Article 326

[185] Articles 245 and 246 etc.

[186] Article 324

[187] The National Commission to Review the Working of the Constitution (NCRWC), 2002 chaired by Justice M.N. Venkatachaliah

[188] 7.3.7 "The matter relating to manner of appointment of judges had been debated over a decade. The Constitution (Sixty-seventh Amendment) Bill, 1990 was introduced on 18th May, 1990 (9th Lok Sabha) providing for the institutional frame work of National Judicial Commission for recommending the appointment of judges to the Supreme Court and the various High Courts. Further, it appears that latterly there is a movement throughout the world to move this function away from the exclusive fiat of the executive and involving some institutional frame work whereunder consultation with the judiciary at some level is provided for before making such appointments. The system of consultation in some form is already available in Japan, Israel and the UK.

The Constitution (Sixty-seventh Amendment) Bill, 1990 provided for a collegium of the Chief Justice of India and two other judges of the Supreme Court for making appointment to the Supreme Court. However, it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations. The Commission proposes the composition of the Collegium which gives due importance to and provides for the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges. This Commission, accordingly, recommends the establishment of a National Judicial Commission under the Constitution. The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of:

1. The Chief Justice of India Chairman

2. Two senior most judges of the Supreme Court: Member

3 The Union Minister for Law and Justice: Member

4 One eminent person nominated by the President after consulting the CJI Member The recommendation for the establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary."

[189] Fali S. Nariman, Before Memory Fades - An Autobiography,

p. 389 - "If there is one important case decided by the Supreme Court of India in which I appeared and won, and which I have lived to regret, it is the decision that goes by the title - Supreme Court Advocates-on-Record Association vs Union of India. It is a decision of the year 1993 and is better known as the Second Judges Case." p.400 - "I don't see what is so special about the first five judges of the Supreme Court. They are only the first five in seniority of appointment - not necessarily in superiority of wisdom or competence. I see no reason why all the judges in the highest court should not be consulted when a proposal is made for appointment of a high court judge (or an eminent advocate) to be a judge of the Supreme Court. I would suggest that the closed-circuit network of five judges should be disbanded. They invariably hold their 'cards' close to their chest. They ask no one. They consult no one but themselves."

[190] See Federist No.51 - (Hamilton or Madison) (1788)

[191] Sudhanshu Ranjan, 'Justice, Judocracy and Democracy in India : Boundaries and Breaches', p.185-186

[192] Laurence H. Tribe, God Save this Honorable Court, First Edition, p.10-11

[193] A.K. Gopalan v. State of Madras AIR 1950 SC 27

[194] Union of India v. Sankalchand Himatlal Sheth & Anr., (1977) 4 SCC 193

[195] ADM Jabalpur Vs. S.S. Shukla Etc. Etc. AIR 1976 SC 1207

[196] Laurence H. Tribe (American Constitutional Law) Second Edition, Page 2 of Chapter 1 "Approaches to Constitutional Analysis" - "That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and most central tenet of American constitutionalism. At the outset, only a small number of explicit substantive limitations on the exercise of governmental authority were thought essential; in the main, it was believed that personal freedom could be secured more effectively by decentralization than by express command. From the thought of seventeenth century English liberals, particularly, as elaborated in eighteenth century France by Montesquieu, the Constitution's framers had derived the conviction that human rights could best be preserved by inaction and indirection-shielded behind the lay of deliberately fragmented centers of countervailing power, in a vision almost Newtonian in its inspiration.

In this first model, the centralized accumulation of power in any man or single group of men meant tyranny; the division and separation of powers, both vertically (along the axis of federal, state and local authority) and horizontally (along the axis of legislative, executive and judicial authority) meant liberty. It was thus essential that no department, branch, or level of government be empowered to achieve dominance on its own. If the legislature would punish, it must enlist the cooperation of the other branches-the executive to prosecute, the judicial to try and convict. So too with each other center of governmental power; exercising the mix of functions delegated to it by the people in the social compact that was the Constitution, each power center would remain dependent upon the others for the final efficacy of the social designs."

[197] Article 124A. National Judicial Appointments Commission.-

(1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely-

xxx xxx xxx xxx

(d) 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.

[198] AIR 1967 SC 1, para 20.

[199] "An Independent Judiciary" - speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial Lecture on 10.11.2011

[200] Sankalchand case (supra) para 78.

[201] Maharao Sahib Shri Bhim Singhji v. Union of India & Ors., (1981) 1 SCC 166, Krishna Iyer, J. - "20. The question of basic structure being breached cannot arise when we examine the vires of an ordinary legislation as distinguished from a constitutional amendment."

[202] Thomas Babington Macaulay's address on 2nd March 1831 in the House of Commons on Parliamentary Reforms

[203] MANU/DE/9073/2007

[204] 325 US 897 (1945)

[205] 446 US 1301 (1980)

[206] PLD 1996 SC 324 (Five Judges Bench)

[207] https://archive.org/stream/saprucommittee035520mbp/saprucommittee035520mbp_d jvu.txt

[208] Paragraph 288

[209] http://164.100.47.132/LssNew/constituent/vol4p6.html

[210] Lay persons were also not included in the consultation process.

[211] B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 486

[212] B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 519

[213] Paragraphs 4.4 and 4.5

[214] B. Shiva Rao: 'The Framing of India's Constitution' Select Documents, Volume II page 583

[215] B. Shiva Rao: 'The Framing of India's Constitution' - Select Documents, Volume II page 662

[216] The text of the Memorandum is available in B. Shiva Rao: 'The Framing of India's Constitution' - Select Documents, Volume IV page 193

[217] Page 373-374

[218] The Framing of India's Constitution - Select Documents, Volume -IV, Page 84.

[219] Article 103(2) of the Draft Constitution reads: "Every judge of 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 may be 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."

[220] The Framing of India's Constitution - Select Documents, Volume - IV, Page 147.

[221] Indian Constitution - Cornerstone of a Nation by Granville Austin at page 126, footnote 39

[222] http://parliamentofindia.nic.in/ls/debates/vol10p4.htm

[223] http://parliamentofindia.nic.in/ls/debates/vol10p7c.htm

[224] Indian Constitution - Cornerstone of a Nation, pages 138-139

[225] http://parliamentofindia.nic.in/ls/debates/vol8p7a.htm

[226] http://parliamentofindia.nic.in/ls/debates/vol8p7a.htm

[227] http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm

[228] http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm

[229] (1993) 4 SCC 441 (Nine Judges Bench)

[230] Paragraph 207 (Justice Pandian). A similar view was expressed by Justice Kuldip Singh in paragraph 327.

[231] Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and Wales

[232] https://www.ucl.ac.uk/constitution-unit/events/judicial-independence- events/lord-phillips-transcript.pdf

[233] 1981 (Supp) SCC 87 (Seven Judges Bench)

[234] 1991 Supp (1) SCC 574

[235] Lee Epstein, Jack Knight & Olga Shvetsova, Comparing Judicial Selection Systems, 10 WM & MARY BILL RTS J. 7, n.9 (2001) (quoting Philip Dubois).

[236] The Report is titled 'Reforms of the Judicial Administration'

[237] Chapter 5 paragraph 5

[238] Chapter 5 paragraph 6

[239] Chapter 6 paragraph 8

[240] Chapter 6 paragraph 11

[241] Chapter 6 paragraph 14

[242] Chapter 6 paragraph 14 and 15

[243] Chapter 6 paragraph 82

[244] Page 287

[245] Page 288-289

[246] Although Justice H.R. Khanna did not sign the Report, it had his full concurrence

[247] Paragraphs 2.2 to 2.5 are relevant in this context

[248] Chapter 7

[249] This later on became what is commonly called the 'collegium system' of appointment of judges

[250] Chapter 9

[251] Paragraph 5.9

[252] Paragraph 6.14

[253] Chapter 9

[254] Chapter 1 paragraph 1.4

[255] Paragraph 7.8

[256] Paragraph 7.10 and 7.15

[257] Paragraph 5.1

[258] Paragraph 5.4

[259] Paragraphs 5.5 and 5.6

[260] Paragraph 5.8

[261] Paragraph 6.11

[262] Paragraph 6.9

[263] Paragraph 124

[264] Paragraph 130

[265] This expression was used by Justice Bhagwati and by Justice D.A. Desai in paragraph 719 of S.P. Gupta v. Union of India.

[266] http://parliamentofindia.nic.in/ls/debates/vol11p12.htm

[267] Judicial Independence, Transitional Justice and the Rule of Law by David Dyzenhaus, (2001-2004) 10 Otago L Rev 345 at 345-346

[268] S.P. Gupta v. Union of India, 1981 Supp SCC 87 (Seven Judges Bench)

[269] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (Nine Judges Bench)

[270] Special Reference No. 1 of 1998, (1998) 7 SCC 739 (Nine Judges Bench)

[271] Paragraphs 27, 320 and 634. This view has been upheld in several decisions thereafter.

[272] Paragraph 27

[273] Paragraph 1033

[274] Paragraph 30 and paragraph 890

[275] Paragraphs 30, 632 and 848

[276] Paragraph 30

[277] Paragraph 30

[278] Paragraph 30 and 31

[279] (1977) 4 SCC 1993 (Five Judges Bench)

[280] AIR 1953 Mad 392

[281] Paragraph 30

[282] I entirely agree with Justice Chelameswar when he says that the Second Judges case did not hold that consultation means concurrence.

[283] Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574

[284] Paragraph 27

[285] Paragraph 28

[286] Paragraph 31

[287] Paragraph 32

[288] Paragraph 728 of the First Judges case

[289] Paragraph 34

[290] Paragraph 34

[291] Paragraph 49

[292] Paragraph 63

[293] Paragraph 81

[294] 50. Separation of judiciary from executive - The State shall take steps to separate the judiciary from the executive in the public services of the State.

[295] Paragraphs 95 to 99. Though such a practice exists and is accepted, there have been some aberrations in this regard as mentioned in the 14th Report of the LCI and in the Conference of Chief Justices.

[296] Paragraph 164

[297] Paragraph 172

[298] Paragraph 197 and 209

[299] Paragraph 212 [300] Paragraph 254

[301] Paragraph 313

[302] Paragraph 303 and 313. It was observed in paragraph 303: "If the President has to act on the aid and advice of the Council of Ministers it is difficult to hold that he is bound by the opinion of the Chief Justice of India unless we hold that the Council of Ministers including the Prime Minister would be bound by the opinion of the Chief Justice of India, a construction which to our mind is too artificial and strained to commend acceptance."

[303] Paragraph 334

[304] Paragraph 335

[305] Paragraph 277, 356, 383 and 411

[306] Paragraph 359, 371,373 and 376. The figures relating to the appointment of judges have been mentioned in paragraphs 367 and 369.

[307] Paragraph 377 and 411

[308] Paragraph 385, 387 and 411

[309] Paragraph 392 and 411

[310] Paragraphs 369 and 370

[311] Paragraph 447

[312] Paragraph 444, 446, 448 and 450

[313] Paragraph 450, 451, 455, 478 and 486

[314] Paragraph 462

[315] Paragraph 478(7)

[316] Paragraph 456 and 466

[317] Paragraph 478(8)

[318] Paragraph 478(7)

[319] Paragraph 448

[320] Paragraph 457

[321] Paragraph 457 and 476

[322] Paragraph 478(10) and 486(2)

[323] Paragraph 486

[324] Paragraph 500

[325] According to the learned Attorney-General, this would have made Dr. Ambedkar turn in his grave. Not so and quite to the contrary.

[326] Paragraph 478(1)

[327] Paragraph 478(5)

[328] Paragraph 478(7)

[329] The Frontline, Volume 25 Issue 20 September 27, 2008 to October 10,2008

[330] http://www.tnsja.tn.nic.in/article/Judicial%20Independence%20JSVJ.pdf

[331] Paragraph 44

[332] (1974) 2 SCC 831 (Seven Judges Bench)

[333] (1971) 1 SCC 411 (Five Judges Bench)

[334] Paragraph 88

[335] Paragraph 154

[336] [1965] 2 SCR 53 (Five Judges Bench)

[337] 217. Appointment and conditions of the office of a Judge of a High Court. -

(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.

[338] (1971) 1 SCC 396 (Five Judges Bench)

[339] Paragraph 149

[340] Granville Austin: Working a Democratic Constitution page131

[341] (1977) 4 SCC 193 (Five Judges Bench)

[342] 222. Transfer of a Judge from one High Court to another.-

(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.

[343] Paragraph 37

[344] Paragraph 41

[345] Paragraph 115

[346] Paragraph 115

[347] Paragraph 39

[348] Paragraph 30

[349] Paragraph 563, 564 and 569

[350] Paragraph 632 and 663

[351] Paragraph 848 and 849

[352] Paragraphs 129 to 133 and 164

[353] http://doj.gov.in/sites/default/files/memohc.pdf (for High Court Judges) http://doj.gov.in/sites/default/files/memosc.pdf (for Supreme Court judges)

[354] Paragraph 96 and 97

[355] Paragraph 7.8

[356] The Consultation Paper can be found on the website of the Law Ministry. This was accessed on 2nd May, 2015: http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm

[357] Second Judges case

[358] Paragraph 7.3.7

[359] This is factually incorrect. The Memorandum was drawn up by the Law Minister and did not confer any power upon the judiciary.

[360] Paragraph 486(1)

[361] I am somewhat uncomfortable with the word 'primacy' while dealing with the President and the Chief Justice of India. In the context of the appointment of judges, the word 'responsibility' used by the LCI in its 14th Report seems more appropriate.

[362] See for example: Hammond v. Clark, 136 Ga. 313 (1911), Fahey v. Hackmann, 291 Mo. 351 (1922), Associated Industries of Oklahoma v. Oklahoma Tax Commission, 176 Okla. 120 (1936), State of Wisconsin v. Adam S. Gonzales, 253 Wis.2d 134 (2002), The State v. Swift, 69 Ind. 505 (1880) etc.

[363] http://parliamentofindia.nic.in/ls/debates/vol11p11.htm

[364] By Professor M.P. Singh, (1999) 8 SCC (Jour) 1

[365] Supreme But Not Infallible, Essays in Honour of the Supreme Court of India page 48, 53

[366] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (Nine Judges Bench)

[367] Special Reference No. 1 of 1998, (1998) 7 SCC 739 (Nine Judges Bench)

[368] [1955] 2 SCR 225 (Five Judges Bench)

[369] Paragraph 12

[370] (1973) 4 SCC 225 (Thirteen Judges Bench)

[371] 1965 AC 172

[372] Paragraph 577

[373] 1975 Supp SCC 1 (Five Judges Bench)

[374] (4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, insofar as it relates to election petitions and matters connected therewith shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void, or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

[375] Paragraph 190

[376] A Grammar of Politics (Works of Harold J. Laski), 297

[377] Paragraph 318

[378] 293 U.S. 388 (1935)

[379] Paragraph 87

[380] (1980) 3 SCC 625 (Five Judges Bench)

[381] Paragraph 86

[382] Paragraph 87

[383] (2007) 2 SCC 1 (Nine Judges Bench)

[384] Paragraph 63. This has been reiterated in paragraphs 67, 125 and 129.

[385] (2010) 5 SCC 538 (Five Judges Bench)

[386] Paragraphs 77 and 78

[387] (2014) 12 SCC 696 (Five Judges Bench)

[388] Paragraphs 98 to 126.7. The conclusions are stated in paragraphs 126.1 to 126.7.

[389] (2006) 3 SCC 643 (Five Judges Bench)

[390] Paragraph 298 and 304

[391] Paragraph 443

[392] (1894-95) 22 I.A. 107, 118

[393] 1950 SCR 88 (6 Judges Bench)

[394] Quoted from Willoughby on the Constitution of the United States, page 64

[395] (1904) 1 Com LR 208

[396] 169 US 649, 699

[397] Page 110 and 111

[398] Page 158 and 159

[399] Page 201 and 202

[400] Page 273 and 274

[401] 1952 SCR 1112 (5 Judges Bench)

[402] 169 US 290, 318

[403] Page 1121

[404] (1967) 2 SCR 762 (11 Judges Bench)

[405] Page 782

[406] Page 783

[407] Page 792

[408] Page 836, 837 and 838

[409] Page 922

[410] Page 917

[411] (1972) 2 SCR 331

[412] Paragraph 183

[413] Paragraph 184 to 186

[414] Paragraph 683

[415] Paragraph 1368

[416] Paragraph 2137

[417] Paragraph 2140

[418] Paragraph 1088

[419] Paragraph 1598

[420] 1992 Supp (3) SCC 217 (9 Judges Bench)

[421] Paragraph 772

[422] (2001) 7 SCC 126

[423] (2014) 9 SCC 1 (5 Judges Bench)

[424] (2002) 8 SCC 481 (11 Judges Bench)

[425] This conclusion appears to be doubtful

[426] Paragraph 286

[427] [1975] AC 591

[428] Paragraph 297

[429] (2002) 8 SCC 237

[430] Paragraph 16

[431] 1995 (3) SA 391 (CC) (Eleven Judges Bench) paragraph 16

[432] Paragraph 16

[433] Paragraph 14

[434] With due apologies to George Mallory who is famously quoted as having replied to the question "Why do you want to climb Mount Everest?" with the retort "Because it's there."

[435] (3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the revenues of India, and any fees or other moneys taken by the court shall form part of those revenues.

[436] http://parliamentofindia.nic.in/ls/debates/vol8p10b.htm

[437] http://parliamentofindia.nic.in/ls/debates/vol8p10b.htm

[438] AIR 1955 SC 661 (7 Judges Bench)

[439] (1953) 4 SCR 1069 (5 Judges Bench)

[440] Paragraph 17

[441] 85 CLR 237

[442] AIR 1961 SC 532 (7 Judges Bench)

[443] AIR 1965 SC 1636 (7 Judges Bench)

[444] (1960) 1 SCR 249

[445] (1963) Supp 1 SCR 871

[446] Paragraph 23

[447] (1974) 2 SCC 402 (7 Judges Bench)

[448] AIR 1967 SC 1581

[449] Paragraph 22

[450] (1980) 1 SCC 223 (5 Judges Bench)

[451] (1989) 2 SCC 754 (5 Judges Bench)

[452] Reference was made to Dr. Alan Paterson's Law Lords. This reference is not at all clear and is simply stated as '1982 at pp. 156-157'

[453] Paragraph 13

[454] (1993) 1 SCC 364

[455] (1989) 2 SCC 645

[456] (2002) 5 SCC 111 (7 Judges Bench)

[457] (1975) 1 SCC 485 (5 Judges Bench)

[458] Sabhajit Tewary was a unanimous decision of 5 learned judges of this Court. To conclude that it "sought precedential support from decisions which were irrelevant" is, with respect, rather uncharitable.

[459] Paragraph 59 to 61

[460] Paragraph 10

[461] Paragraph 17

[462] Paragraph 19

[463] (1985) 1 SCC 582

[464] (1985) 3 SCC 737

[465] How is this to be ascertained?

[466] [1986] 2 SCR 56 wherein it is stated: With respect to the first of these arguments, I do not think s.100 [of the Constitution Act, 1867] imposes on Parliament the duty to continue to provide judges with precisely the same type of pension they received in 1867. The Canadian Constitution is not locked forever in a 119-year old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Accordingly, if the Constitution can accommodate, as it has, many subjects unknown in 1867--airplanes, nuclear energy, hydroelectric power-- it is surely not straining s. 100 too much to say that the word 'pensions', admittedly understood in one sense in 1867, can today support federal legislation based on a different understanding of 'pensions'.

[467] "The law, so far as it depends on learning, is indeed, as it has been called, the government of the living by the dead. To a very considerable extent no doubt it is inevitable that the living should be so governed. The past gives us our vocabulary and fixes the limits of our imagination; we cannot get away from it. There is, too, a peculiar logical pleasure in making manifest the continuity between what we are doing and what has been done before. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity." "Learning and Science", speech at a dinner of the Harvard Law School Association in honor of Professor C. C. Langdell (June 25, 1895); reported in Speeches by Oliver Wendell Holmes (1896). p. 67-68

[468] I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 paragraph 42

[469] 1994 Supp (1) SCC 324

[470] 1994 Supp (1) SCC 324 paragraph 124

[471] In his concluding speech, Br. Rajendra Prasad used the expression 'distribution of powers' and not 'separation of powers'. See: http://parliamentofindia.nic.in/ls/debates/vol11p12.htm

[472] 5 U.S. (1 Cranch) 137, 177 (1803)

[473] [1965] 1 SCR 413 (Seven Judges Bench)

[474] Page 446

[475] Paragraph 371

[476] 279 U.S. 655, 689 (1929)

[477] 248 U.S. 276

[478] 272 U.S. 52

[479] 77 Conn. 257

[480] Second Judges case, paragraph 450

[481] Clause 5(a) of Article 62 reads:

"(5)a In the choice of his Ministers and the exercise of his other functions under this Constitution, the President shall be generally guided by the instructions set out in Schedule III-A, but the validity of anything done by the President shall not be called in question on the ground that it was done otherwise than in accordance with such instructions."

[482] 343 U.S. 579, 635 (1952)

[483] Judicial Independence and the Rule of Law by Jonathan K. Van Patten, Volume 2 Benchmark page 117, 129 (1986)

[484] Paragraph 335

[485] Paragraph 149

[486] Paragraph 27 and paragraph 83

[487] Paragraph 320

[488] Paragraph 634

[489] Paragraph 56

[490] Paragraph 331

[491] Paragraph 421

[492] Paragraph 502

[493] (1991) 4 SCC 699 (Five Judges Bench)

[494] Paragraph 16

[495] (1994) 3 SCC 569 (Five Judges Bench)

[496] Paragraph 412

[497] (1992) 4 SCC 605 paragraph 66

[498] (2010) 11 SCC 1 (Five Judges Bench)

[499] Paragraph 101

[500] Paragraph 126.2

[501] Southey Memorial Lecture, 1981

[502] Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and Wales

[503] Article 124(2)

[504] Article 124(4)

[505] Article 125

[506] Article 112(2)(d)

[507] Article 113

[508] Article 217

[509] Article 218

[510] Article 202

[511] Article 112(3)(d)

[512] Article 203

[513] http://www.judiciary.senate.gov/imo/media/doc/kennedy_testimony_02_14_07.pdf

[514] [1895] 1 Q.B. 668, 670

[515] [1985] A.C. 528, 540

[516] Article 141. There is no corresponding constitutional provision for the High Court.

[517] Article 144. There is no corresponding constitutional provision for the High Court.

[518] Article 142. There is no corresponding constitutional provision for the High Court.

[519] Article 145. There is no corresponding constitutional provision for the High Court.

[520] Article 146. The corresponding constitutional provision for the High Court is Article 229.

[521] Article 146. The corresponding constitutional provision for the High Court is Article 229.

[522] Article 121

[523] Article 211

[524] Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State.

[525] Page 50

[526] Paragraph 77

[527] Paragraph 709

[528] Paragraph 27

[529] Granville Austin - "Indian Constitution: Cornerstone of a Nation" pages 164-164

[530] 50. Separation of judiciary from executive.-The State shall take steps to separate the judiciary from the executive in the public services of the State.

[531] 39-A. That State shall take steps to secure that, within a period of three years from the commencement of this Constitution, there is separation of the judiciary from the executive in the public services of the State.

[532] http://parliamentofindia.nic.in/ls/debates/vol7p12.htm

[533] http://parliamentofindia.nic.in/ls/debates/vol7p13.htm

[534] http://parliamentofindia.nic.in/ls/debates/vol7p13.htm

[535] http://parliamentofindia.nic.in/ls/debates/vol7p13.htm

[536] J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice (Report of Research Undertaken by Bingham Centre for the Rule of Law) paragraph 0.2.9

[537] Granville Austin - "Working a Democratic Constitution: The Indian Experience" page 124

[538] Second Judges case, paragraph 49, 335 and 447.

[539] 14th Report of the LCI, Chapter 5

[540] Pages 155 and 156

[541] Contributors: Professor Dr Jutta Limbach, Professor Dr Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr Andrzej Zoll. Available at http://www.interights.org/document/142/index.html

[542] As agreed by Law Ministers and endorsed by the Commonwealth Heads of Government Meeting, Abuja, Nigeria, 2003

[543] http://thecommonwealth.org/sites/default/files/history- items/documents/LatimerHousePrinciples.pdf

[544] Page 52

[545] Paragraph 1033

[546] Paragraph 886

[547] Paragraph 49

[548] Paragraph 335

[549] Paragraph 431

[550] Paragraph 447

[551] Judges on Trial: The Independence and Accountability of the English Judiciary, Chapter 4

[552] As amended at Manila on 28th August, 1997. This has been referred to in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 in paragraph 11 of the Report.

[553] Clause 3

[554] Clause 11

[555] Clause 12

[556] The six values are: Independence, Impartiality, Integrity, Propriety, Equality, Competence and Diligence

[557] It is not necessary, for the purposes of this discussion, to get into the controversy whether the recommendation of a person to be considered for appointment should originate from the executive or the judiciary.

[558] Second Judges case, paragraph 293 and 428

[559] Second Judges case, paragraph 442, 450, 461, 486 and 509

[560] Second Judges case paragraph 462 and 478(6)

[561] Second Judges case paragraph 467, 468 and 478(6)

[562] Frontline, Volume 25 - Issue 20: September 27-October 10, 2008

[563] Second Judges case paragraph 353 and 376

[564] (1977) 3 SCC 592 at paragraph 56

[565] Paragraph 149

[566] Paragraph 41

[567] http://parliamentofindia.nic.in/ls/debates/vol8p11a.htm

[568] I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 paragraph 42

[569] Foot Note 16

[570] Paragraph 287

[571] Article 8 and 10 of the UDHR are relevant in this regard:

Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

[572] Paragraph 475

[573] Paragraph 546

[574] Paragraph 666

[575] Paragraph 1435

[576] Paragraph 1537

[577] Paragraphs 251 and 252. Justice Bhagwati also adverts to this in Minerva Mills v. Union of India, (1980) 3 SCC 625.

[578]

13. Laws inconsistent with or in derogation of the fundamental rights -

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,-

(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

[579] Kesavananda Bharati

[580] (1977) 4 SCC 608 paragraph 238 (Seven Judges Bench)

[581] (1996) 7 SCC 1 paragraph 107 (Five Judges Bench)

[582] (2008) 6 SCC 1 paragraph 116 (Five Judges Bench)

[583] (2014) 10 SCC 1 paragraph 109 (Five Judges Bench)

[584] Justice Khanna refers to this conclusion in paragraph 198 in the decision rendered in Indira Nehru Gandhi

[585] Paragraph 173

[586] Paragraphs 175 and 176

[587] Paragraph 210

[588] Paragraph 213

[589] Paragraph 264 and 265

[590] Paragraph 651

[591] Paragraph 663

[592] (1980) 3 SCC 625 (Five Judges Bench)

[593] Paragraph 1

[594] Paragraphs 12 and 13

[595] I am unable to agree with Justice Chelameswar when he says that the 'basic structure' and 'basic features' convey different ideas. Lexicographically - yes, but constitutionally speaking - no. they are two dimensions of the same picture. In any event, for the present discussion, the distinction, if any, is not relevant.

[596] (1983) 1 SCC 147 (Five Judges Bench)

[597] Paragraph 11

[598] Paragraph 77-A

[599] (2006) 8 SCC 212 (Five Judges Bench)

[600] [1967] 2 SCR 762 (Eleven Judges Bench)

[601] Paragraph 21

[602] Paragraph 119

[603] (1981) 1 SCC 166 (Five Judges Bench)

[604] Paragraph 20

[605] Paragraph 70 and 151

[606] [1950] SCR 869 (Five Judges Bench)

[607] [1959] SCR 279 (Five Judges Bench)

[608] Paragraph 661

[609] (1981) 4 SCC 675 (Five Judges Bench)

[610] Paragraph 7

[611] (1969) 2 SCC 283 (Five Judges Bench)

[612] Paragraph 4

[613] (1996) 11 SCC 428 [614] Paragraph 5

[615] Paragraph 5

[616] (1994) 6 SCC 77

[617] Paragraph 11

[618] (1993) Supp (1) SCC 96

[619] Paragraph 76

[620] (1996) 7 SCC 637

[621] Paragraph 111

[622] 198 US 45

[623] [1950] 1 SCR 88 (Five Judges Bench)

[624] [1967] 1 SCR 15 (Five Judges Bench)

[625] Paragraph 288

[626] Paragraph 317

[627] Paragraph 532

[628] Paragraph 909

[629] Paragraph 1106

[630] Paragraph 1436. This view was reiterated in paragraph 1534.

[631] 372 US 726

[632] 244 U.S. 590 (1917)

[633] 261 U.S. 525 (1923)

[634] 300 U.S. 379 (1937)

[635] Paragraph 1442

[636] Paragraph 176

[637] Paragraph 661

[638] (2008) 2 SCC 254

[639] Paragraph 19

[640] 249 US 152, 157 paragraph 11 [641] [1959] SCR 629 (Five Judges Bench)

[642] Per Chaskalon, J paragraphs 88 and 89

[643] 408 U.S. 238, 290 (1972)

[644] 319 U.S. 624, 638 (1943)

[645] Mistretta v. United States, 488 U.S. 361, 407 (1989)

[646] [1952] SCR 284 (Seven Judges Bench)

[647] Paragraph 634

[648] Paragraph 1437

[649] 250 US 616 (1919)

[650] Paragraph 1563

[651] [1986] 2 SCR 56 paragraph

[652] Paragraph 46

[653] (1996) 3 SCC 709 paragraph 43

[654] (2003) 4 SCC 104 paragraph 26

[655] 1962 Supp (2) SCR 1 = AIR 1962 SC 104 (Five Judges Bench)

[656] 1992 Supp (2) SCC 651 paragraph 61 and 62 (Five Judges Bench)

[657] 1986 Supp SCC 20 in paragraph 50

[658] (1997) 5 SCC 536 in paragraph 88

[659] [1960 (1) SCR 605 (Five Judges Bench)

[660] (2007) 3 SCC 184 (Five Judges Bench)

[661] Paragraphs 360 (Two), 366

[662] Page 54

[663] Page 55

[664] Page 56 [665] Page 57-59

[666] Public Law (2015): Judicial Independence and Accountability in the UK have both emerged stronger as a result of the Constitutional Reform Act 2005 by Robert Hazell

[667] See State of Punjab v. Salil Sablok, (2013) 5 SCC 1 paragraph 115 of the Report.

[668] (1982) 1 SCC 271 (Five Judges Bench)

[669] Paragraph 61

[670] Paragraph 468

[671] Paragraph 216(3)

[672] (2011) 4 SCC 1

[673] (2014) 11 SCC 547

[674] Paragraph 16

[675] Paragraph 20

[676] The discussion in paragraphs 79 to 86 of the Report is quite useful.

[677] It was held in Ishwar Chandra v. Satyanarain Sinha, (1972) 3 SCC 383 in paragraph 10 of the Report: "... where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid."

[678] Paragraph 207

[679] Paragraph 327

[680] Paragraph 335

[681] The position that the State is a major litigant in the country remains the same even today.

[682] Justice Bhagwati: "We may point out that even countries like Australia and New Zealand have veered round to the view that there should be a Judicial Commission for appointment of the higher judiciary. As recently as July 1977 the Chief Justice of Australia publicly stated that the time had come for such a commission to be appointed in Australia. So also in New Zealand, the Royal Commission on the Courts chaired by Mr Justice Beattle, who has now become the Governor-General of New Zealand, recommended that a Judicial Commission should consider all judicial appointments including appointments of High Court Judges." [Paragraph 31]

[683] Appointing Australian Judges: A New Model by Simon Evans and John Williams, [2008] Sydney Law Review Volume 30 page 295. See http://sydney.edu.au/law/slr/slr30_2/Evans.pdf

[684] http://www.sabar.co.za/law-journals/2010/december/2010-december- vol023-no3-pp43-48.pdf

[685] http://www.lawsociety.org.bw/news/Position%20Paper%20on%20Appointment%20of%2 0Judges%20Final%2014%20june%202012%20'Final'.pdf

[686] This may be contrasted with the direct exchange of views between the President and the Chief Justice of India referred to earlier.

[687] Australia and South Africa have had a gay judge on the Bench. The present political executive in India would perhaps not permit the appointment of a gay person to the Bench.

[688] In I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 this Court observed in paragraph 138 of the Report: "The relevance of Indira Gandhi case, Minerva Mills case and Waman Rao case [(1981) 2 SCC 362] lies in the fact that every improper enhancement of its own power by Parliament, be it clause (4) of Article 329-A or clauses (4) and (5) of Article 368 or Section 4 of the 42nd Amendment has been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review. They made directive principles en bloc a touchstone for obliteration of all the fundamental rights and provided for insertion of laws in the Ninth Schedule which had no nexus with agrarian reforms."

[689] Carly Van Orman, Introduction to the Symposium: The Judicial Process Appointments Process, 10 Wm. & Mary Bill Rts. J. 1 (2001), http://scholarship.law.wm.edu/wmborj/vol10/iss1/2

[690] 'The Appointment and Removal of Judges' by Sir Anthony Mason AC KBE, formerly Chief Justice of Australia http://www.judcom.nsw.gov.au/publications/education-monographs- 1/monograph1/fbmason.htm

[691] Paragraph 531

[692] 'The Appointment and Removal of Judges' by Sir Anthony Mason AC KBE, formerly Chief Justice of Australia http://www.judcom.nsw.gov.au/publications/education-monographs- 1/monograph1/fbmason.htm

[693] Shimon Shetreet, Judges on Trial (North-Holland Publishing Company, Amsterdam, (1976), p 46.

[694] Akkas, Sarkar Ali (2004) "Appointment of Judges: A Key Issue of Judicial Independence," Bond Law Review: Vol. 16: Iss. 2, Article 8. Available at: http://epublications.bond.edu.au/blr/vol16/iss2/8

[695] (1992) 2 SCC 428

[696] Reference Re Supreme Court Act, sections 5 and 6, [2014] 1 SCR 433

[697] (2014) 14 SCC 50

[698] Paragraph 4

[699] (1985) 1 SCC 641

[700] 1973 3 All ER 54

[701] (1975) 4 SCC 428 [702] (1988) 4 SCC 592

[703] (2002) 2 SCC 645

[704] AIR 1965 SC 1430 (Five Judges Bench)

[705] AIR 1963 SC 928 (Five Judges Bench)

[706] (1985) 1 SCC 641

[707] Paragraph 15

[708] (2011) 8 SCC 737

[709] R v. Sussex Justices, Ex parte McCarthy, [1924] 1KB 256, [1923] All ER Rep. 233

[710] 343 U.S. 451 (1952)

[711] (1974) 3 SCC 459

[712] 1999 (4) SA 147.

[713] (1973) 4 SCC 225

[714] (1974) 2 SCC 831

[715] Manu/USSC/0060/2015

[716] (1998) 7 SCC 739

[717] (1993) 4 SCC 441

[718] Paras 210, 214, Pandian, J., Paras 361 to 376, Kuldip Singh, J., Para 486, Verma, J., Para 505, Punchhi, J. in Second Judges' case

[719] (1996) 4 SCC 49

[720] 1973 (4) SCC 225

[721] (Para 284, Sikri, CJ.) ; (Para 583, Shelat & Grover, JJ.); (Para 651 Hegde & Mukherjea, JJ.); (Para 1162, Reddy, J.) and (Para 1426, Khanna, J.)

[722] Paras 292, 582, 666, 1159, 1426

[723] Paras 652 and 653

[724] Para 1535 A. (Khanna, J.) In my opinion, the second part of Article 31-C is liable to be quashed on the following grounds:

(1) It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31-C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution.

(2) The Legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in Article 31- C. The vice of second part of Article 31-C lies in the fact that even if the law enacted is not for the object mentioned in Article 31-C, the declaration made by the Legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by the Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31-C goes beyond the permissible limit of what constitutes amendment under Article 368.

The second part of Article 31-C can be severed from the remaining part of Article 31-C and its invalidity would not affect the validity of the remaining part. I would, therefore, strike down the following words in Article 31-C:

"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."

[725] (1975) Supp. SCC 1

[726] Para 663 - For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country's governance. But it is needless for the purpose of these appeals to ransack every nook and cranny of the Constitution to discover the bricks of the basic structure. Those that are enumerated in the majority judgments are massive enough to cover the requirements of Shri Shanti Bhushan's challenge.

[727] Khanna and Mathew, JJ held that free and fair election was essential for democracy and was part of basic structure. Chandrachud, J. held that right of equality was part of basic structure which was violated. Ray, CJ held that rule of law was basic structure of the Constitution which was violated.

[728] Para 688

[729] (1980) 3 SCC 625

[730] Para 56

[731] Paras 17 and 88

[732] Paras 12, 88

[733] Paras 21, 86 and 87

[734] (1997) 3 SCC 261

[735] Judicial review by constitutional courts was held to be part of basic structure. (Paras 77, 78)

[736] (2007) 2 SCC 1

[737] Fundamental Rights under Articles 14, 15, 19 and 21 were held to be part of basic structure. (Paras 109 and 147)

[738] (2006) 8 SCC 212

[739] Identity test discussed in M. Nagaraj case (supra) (Para 28)

[740] 1981 Supp. SCC 87, Para 30 (Primacy in appointment of judges is held to be of Central Government by holding that obligation of the President (the Central Government) was only to consult the judiciary which could not be treated as binding)

[741] Para 25, Pandian J. (Second Judges Case) : Reasons which led to reconsideration of First Judges' case

[742] 1991 Supp (1) SCC 574 - Paras 31-34, 42-46

[743] Paras 195 and 207

[744] Paras 334, 335

[745] Para 357

[746] Para 392

[747] Paras 421, 422, 447 and 450

[748] Paras 9.6 and 9.7

[749] 1977 (4) SCC 193 (referred to in Paras 125 to 130 Second Judges' case)

[750] 1974 (2) SCC 831

[751] Gannon Dunkerly vs. State of Rajasthan, 1993 (1) SCC 364, paras 28 to 31

[752] 2nd Judges' case, Paras 19 to 22

[753] The Bill was introduced in the light of 121st Report of the Law Commission.

[754] [755] Centre for Public Interest Litigation vs. UOI (2012) 3 SCC 1

[756] Manohar Lal Sharma vs. UOI (2014) 2 SCC 532

[757] S.R. Bommai vs. UOI (1994) 3 SCC 1; Rameshwar Prasad vs. UOI (2006) 2 SCC 1; M.C. Mehta vs. Kamal Nath (1997) 1 SCC 388

[758] Kihoto Hollohan vs. Zachillhu (1992) Supp. (2) 651

[759] Para 64

[760] (2012) 10 SC 603 [761] Paras 1.21 to 1.23, 7.1 and 7.2

[762] Reasons for holding the primacy in appointment of judges to be with the judiciary have been summarized by Pandian, J. in Para 195 (Second Judges' case)

[763] 1969 (3) SCC 56

[764] Para 25(5), Pandian, J.

[765] Para 392, Verma, J. (Second Judges' case)

[766] Such as power of Judicial Review, content of right to life etc.

[767] Paras 184 & 192, Second Judges' case (In para 192 reference is made to famous statement of Dr. Ambedkar about unsuitability of UK and US models in this regard)

[768] Para 14

[769] Para 19

[770] Para 20

[771] Paras 362-371 (Second Judges' case)

[772] Paras 7.5 - 7.11 (121st Law Commission Report)

[773] Paras 333-335, Kuldip Singh, J., Paras 47, 49,63, Pandian, J.

[774] Para 486

[775] Para 505, Punchhi, J.; 210, 214, Pandian, J.; Paras 361 to 376, Kuldip Singh, J.

[776] Paras 84 and 197, Pandian, J; Paras 428 and 439, Verma, J; Para 334, Kuldip Singh, J

[777] Paras 56, 72 to 74 and 207, Pandian, J.

[778] Paras 55 to 57, Pandian, J.

[779] Para 195 Pandian, J and Para 450, Verma, J.;

[780] Paras 447 to 463, Verma, J.; Paras 195 to 197, Pandian, J.; Paras 335 and 380, Kuldip Singh, J. (Para 215, Pandian, J. - Appointments and control of district judges is with the High Courts)

[781] Para 25(6), Pandian, J.

[782] 14th Report of the Law Commission is referred to in paras 64 and 65 by Pandian, J.; 121st Report of Law Commission is referred to in Paras 184 to 191 and 204, Pandian, J.

[783] Paras 383 to 387, Kuldip Singh, J. (However, CJI was not to be the persona designata but as spokesman of the judiciary in the manner laid down in the judgment.)

[784] Second Judges' case (Paras 74 to 81)

[785] Paras 48 and 57, Shamsher Singh case

[786] Shri Prithvi Cotton Mills Ltd. vs. Broach Borough Municipality, 1969 (2) SCC 283

[787] In speech dated 25.11.1949 on conclusion of proceedings of the Constituent Assembly (Page 975 of the CAD). *In his speech as President of the Constituent Assembly quoted in Para 429 of the Second Judges' case)

[788] 2014 (9) SCC 1

[789] Paras 652 amd 653

[790] Paras 328 and 334, Kuldip Singh, J. (Second Judges' case)

[791] (1981) 1 SCC 166

[792] (2008) 6 SCC 1

[793] (1997) 5 SCC 536

[794] (2006) 11 SCC 356

[795] Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOI (1978) 1 SCC 248 - Para 19; I.R. Coelho case - Para 149

[796] V.G. Row vs. State of Madras (1952) SCR 597

[797] Madhav Rao Jivaji Rao Scindia vs. UOI [1971 (1) SCC 85],

[798] Rustom Cavasjee Cooper vs. Union of India [1970 (1) SCC 248]

[799] Bennett Coleman & Co. Ltd. vs. Union of India [1972 (2) SCC 788]

[800] S.R. Bommai vs. UOI [(1994) 3 SCC 1]

[801] Kesavananda Bharati case - Para 531; Maneka Gandhi vs. UOI (1978) 1 SCC 248 - Para 19; I.R. Coelho case - Para 149

[802] Union of India vs. Madras Bar Asson. (2010) 11 SCC 1 - Para 108

[803] Madras Bar Asson. vs. UOI (2014) 10 SCC 1 - Pars 136 and 137

[804] Second Judges' case - Paras 360 and 361

[805] Statement of Dr. Ambedkar referred in Para 192 in Second Judges' case

[806] Debates reproduced in Paras 362 - 368 in Second Judges' case

[807] Para 98 Second Judges' case

[808] Para 370, Kuldip Singh, J. and Para 505, Punchhi, J. in Second Judges' case

[809] Paras 39, 41 Chandrachud, J.; 50-52 Bhagwati, J.; 103, 115 Krishna Iyer, J.,

[810] Para 30 - First Judges' case

[811] Seervai, 4th Edition, Constitutional Law of India - Paras 25.350, 25.353 and 25.354

[812] Para 7.5 and 7.8 - 121st Report of the Law Commission

[813] Para 505, Punchhi, J.; Paras 210,214, Pandian, J.; Paras 361 to 376, Kuldip Singh, J. in Second Judges' case

[814] Paras 471, 478, 486(2), 486 (3), 486(4 and 5) , Verma, J.

[815] By way of illustration : P. Sambamurthy vs. State of A.P. [(1994) 3 SCC 1]; Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535; Union of India vs. Madras Bar Asson. (2010) 11 SCC 1; Madras Bar Asson. vs. UOI (2014) 10 SCC 1

[816] Special Reference No.1 (1965) 1 SCC 413 at 446

[817] (Paras 9.6 and 9.7 of the Report dated 26.9.2001 as included in Vol. II of the Report of the NCRWC, 2002)

[818] 2013 (7) SCC 653

[819] 2013 (7) SCC 507

[820] Paras 25.350 to 25.354

[821] R.C. Poudyal vs. UOI (1994) Supp. 1 SCC 324, para 53

[822] P. Sambamurthy vs. State of A.P. (1987) 1 SCC 362 - Paras 3 and 4, striking down Article 371D(5), Amrik Singh Lyallpuri vs. UOI (2011) 6 SCC 535 - Para 15 - 17, striking down Section 347D of the Delhi Municipal Corporation Act, 1957 (66 of 1957)


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